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Disciplinary Counsel v. O'Neill9/7/2004
d was revoked to retaliate for his counsel's refusal to proceed with trial without an opportunity to prepare. The panel majority makes these findings based on an assessment of the credibility of all of the witnesses who testified, their appearance and demeanor at hearing as well as the extant records of proceedings in these cases. The panel majority acknowledges that Judge O'Neill in each instance either outright denied having made such threats or testified that she had facially justifiable reasons for revoking a defendant's bond. The only non-party fact witness called by Respondent in this matter, defense attorney Ronald Janes, corroborated the testimony of Relator's witnesses that Judge O'Neill had threatened to revoke bond when his client, Cox, wanted to go to trial. The panel majority did not find Respondent's testimony credible in Righter, Cox, Woerner and Montoya.
97. The panel majority concludes that the justifications Respondent proffered for to justify her actions in Righter, Cox Woerner and Montoya were not genuine but rather pretexts for her improper activity. The defendants' behavior described by Respondent in Cox, Righter and Woerner to justify bond revocation were strikingly vague and similar for example, "lots of in and out activity" and "stress or agitation." Although Judge O'Neill claimed she had serious concerns with the behavior of each defendant, the record of each proceeding contains no reference to any concerns much less a specific threat, even though in each instance there was ample opportunity for Respondent to state those concerns if they truly existed because all proceedings were taking place in the courtroom with a court reporter on duty. The panel majority does not believe any of the concerns actually existed on the day of these hearings. A decision on bond is committed to the discretion of a judge and testimony offered that flight risk and safety are considerations. However, every witness who testified on this subject in this hearing agreed that it is improper for a judge to threaten to revoke bond to affect or coerce a plea or because a defendant chooses trial and the panel majority concludes by clear and convincing evidence that it was Respondent's reason for these bond threats and revocations.
98. After revoking Montoya's bond, Respondent fabricated the concept of a "short bond" in court entries to justify her actions. In Woerner, Respondent misrepresented on the record that the bond revocation was for "being late" and signed an order that falsely stated Woerner did not appear on March 3, 2000. The panel majority concludes by clear and convincing evidence that these two acts violate DR 1-102(A)(4).
99. In these incidents the panel majority does not find that Judge O'Neill abused her judicial discretion but rather that her conduct was outside any permissible discretion and totally improper. The panel majority concludes that Respondent's conduct in Cox, Righter, Woerner and Montoya violated Canons 1, 2, 3, 3(B)(2), 3(B)(4), 4 and DR 1-102(A)(5).
100. In Nash, the panel majority finds by clear and convincing evidence that the Respondent used a threat to coerce the Defendant's plea. After refusing the misdemeanor plea offered by the parties and only allowing a plea to the indictment Respondent threatened that if the defendant chose trial he would receive the maximum sentence. The panel majority finds by clear and convincing evidence that Respondent made such threat and coerced defendant's plea with said threat. Respondent's conduct in Nash interfered with the defendant's rights in the plea process, destroyed the voluntariness of the plea so obtained, adversely affected the administration of justice, was contrary to law and was improper. The pan
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