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Disciplinary Counsel v. O'Neill9/7/2004
der a PSI a day earlier. On the day of the plea while Bivens was late that fact could not justify Respondent denying a PSI with no notice to Bivens' counsel, Pierce. Respondent's unexpected action was retaliatory, and deprived Bivens' counsel Pierce of preparation to adequately represent his client. The panel majority concludes that Respondent's conduct in Bivens violates Canons 2, 3, 3(B)(2) and 3(B)(4).
105. In Lane, the Respondent's conduct was abusive to litigants, lawyers and court employees, was contrary to law, prejudiced the rights of the defendant and, but for the stubborn insistence of the prosecutor, would have prejudiced the rights of the victim as well. The panel majority finds by clear and convincing evidence that the Respondent's conduct violated Canons 3, 3(B)(2), 3(B)(4), 4 and DR 1-102(A)(5).
106. In Burton v. Nicholson, the panel majority finds that Relator failed to prove by clear and convincing evidence that Respondent violated any Canons or Disciplinary Rules. Respondent admitted that communication problems caused this case to fall through the cracks and that she had changed her office policies and procedures to prevent another such misadventure.
107. COUNT 2 alleged that Judge O'Neill refused to allow attorneys to go on the record to preserve their objections to Respondent's rulings.
108. DENNIS: testimony taken from Myron Shwartz, (defense attorney)(Transcript Vol. VII -- 197-211), Sandy Grego (court reporter)(Transcript Vol. III -- 25, VIII -- 205, 215) and Judge O'Neill (Transcript Vol. X- 219-223)(Exhibits 253A-275)
109. Arica Dennis was indicted on three counts of receiving stolen property, all F-5's. She was represented by Myron Shwartz (admitted 1967, Public Defender, private practice since 1969).
110. On August 20, 1998 at a pretrial, the prosecutor offered a plea to a single F-5. Dennis refused the plea.. The trial was set for September 14, 1998 and Shwartz orally requested a continuance that Judge O'Neill denied. Shwartz then requested that the court reporter, Sandy Grego make a record and Judge O'Neill told Grego she could not take it. (Transcript Vol. VII -- 198) As Shwartz was leaving the courtroom he testified that Judge O'Neill remarked that if Shwartz wasn't prepared for trial maybe she (Dennis) should get another attorney. Dennis' family discussed getting another attorney because they didn't feel Dennis was being treated fairly in Judge O'Neill's courtroom. (Transcript Vol. VII -- 198-199)
111. Shwartz filed an Affidavit of Prejudice less than a week later with supporting affidavits.(Exhibit 262) On September 10, 1998 in her written response to the Supreme Court about Shwartz's Affidavit of Prejudice, Judge O'Neill stated "I denied Mr. Schwartz's request to put the bench conference on the record as I did not find it necessary to record my denial of his request for a continuance... I refused to allow him to argue with me by demanding that the conversation be recorded." (Exhibit 254 p. 2) Grego, the court reporter testified that Judge O'Neill did refuse to allow Shwartz to make a record saying that there was nothing to put on the record. At that time Grego testified that parties could not make a proffer for the record unless Judge O'Neill gave permission. (Transcript Vol. III -- 25, VIII -- 205-206) The Affidavit of Prejudice was denied. Dennis' case was transferred to Judge Fais who had prior charges pending against Dennis and was resolved. (Transcript Vol. VII -- 200-201)(Exhibit 261) Schwartz testified that he did not file a written motion for continuance because it was not the custom to do so. (Transcript Vol. VII -- 205-207)
112. In her Answer to the Amended Complaint Ju
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