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Disciplinary Counsel v. O'Neill9/7/2004
el majority find by clear and convincing evidence such conduct in Nash by Respondent violated Canons 1, 2, 3(B)(2), 3(B)(7) and 4 and DR 1-102(A)(5). See, In the Matter of Cox, 680 N.E.2d 528 (Indiana, 1997)
101. In Nezvalova and Smiley, the panel majority finds by clear and convincing evidence that the Respondent engaged in improper ex-parte conversations and abandoned the ethical obligation of impartiality, advocating for action on behalf of one party over the other. In Nezvalova, when the case was reversed and remanded to her from the Tenth District Court of Appeals, Respondent discussed the merits of the case with Prosecutor Vaughan and encouraged the pursuit of an appeal by the state. In Smiley, immediately following the felony plea the Respondent directed defense counsel to seek a reduction in the plea offer from Canepa, the supervising prosecutor. Then Respondent advocated with Canepa herself to have the plea changed from a felony to a misdemeanor. Respondent misrepresented to Canepa that she was "forced" to sentence Smiley to prison because of Bolognone's refusal to waive a PSI. Judging the credibility of the witnesses and their demeanor at hearing the panel majority finds by clear and convincing evidence that Judge O'Neill's testimony regarding these incidents was not credible. The respondent's actions in Nezvalova and Smiley violated Canons 1, 2, 3, 3(B)(7), 3(E)(1) and 4 and DR 1-102(A)(5) and in Smiley, the statement to Canepa that the Respondent was forced to sentence Smiley to prison was a misrepresentation and violated DR 1-102(A)(4). Such advocacy by a judge was sanctioned in Disciplinary Counsel v. Ferreri, 88 Ohio St.3d 456 (2000). See also, In re Complaint against White, 651 N.W. 2d 551 (Nebraska, 2002), Ryan v. Comm. on Judicial Performance, 754 P. 2d 724 (California, 1988).
102. In Smiley, Respondent also refused the parties the PSI they requested, then proceeded without statutory notice or opportunity to prepare and made findings under HB 180 without allowing the state to present any evidence. The panel majority finds by clear and convincing evidence that such conduct violates Canon 2 and 3(B)(2).
103. In Birchler, another of the more serious incidents in this Complaint, the panel majority finds by clear and convincing evidence that the Respondent abandoned impartiality, failed to follow the law and interfered as an advocate in proceedings that deprived a defendant of his rights. The Respondent had a mandate from the Court of Appeals that the sex offender counseling condition of Birchler's probation was not enforceable. Nevertheless, in the remand hearing she labeled the defendant a rapist despite the non-sex offense Alford plea she had accepted and stated on the record that the state would file a motion to withdraw his plea which was not only false and legally impossible but also highly threatening and coercive to the defendant. Her lack of impartiality is apparent on the record and corroborated by the testimony of witnesses. Respondent's lack of impartiality in this matter should have resulted in her recusal from the case. Respondent's improper actions resulted in Birchler abandoning his right to probation and serving the remainder of his prison term. The Respondent's conduct in this matter violated Canons 1, 2, 3, 3(B)(2), 3(B)(4), 3(E)(1), 4 and DR 1-102(A)(4) and DR 1-102(A)(5). See, Roberts v. Comm. on Judicial Performance [33 Cal.3d 739, 190 Cal.Rptr. 910], 661 P2d 1064 (California, 1983), In the Matter Of David M. Cox, 553 A.2d 1255 ( Maine, 1989), In re Hammermaster [39 Wash.2d 211], 985 P.2d 924 (Washington, 1999)
104. In Bivens, the panel majority finds by clear and convincing evidence that Pierce did obtain Judge O'Neill's agreement to or
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