We are each a conglomeration of many factors. On a given day, I might be hitting on all cylinders and pushing the envelope. Yet, on another day it is possible that I might be tired, irritable, anxious, and a myriad of other emotional states all rolled into one. Bill Gates has said
"The human body is the most complex system ever created. The more we learn about it, the more appreciation we have about what a rich system it is."
And, he has dealt with some reasonably complex systems and challenges over the years. One source concluded that our bodies "contain() around 37 billion cells," and that therefore "there were about 37 billion billion (37 x 21 zeros) chemical reactions, taking place every second." Yes, we are complex in our physical composition, and all those little cells are acting and reacting nearly constantly.
Is it any wonder that sometimes "you are not you" for whatever reason? Or, perhaps you are are you at a given moment despite perhaps wishing no one would notice your behavior?
News 5 Cleveland last year reported Board recommends 2-year suspension for judge for misconduct. The Board is the Ohio Board of Professional Conduct, which appears to be similar to the Florida Qualifications Commission. The recommended suspension is a very significant period of time. Of equal note, however, the judge is accused of "over 100 serious incidents of misconduct over the last two years." This is detailed in "a 58-page report filed with the Supreme Court of Ohio."
The Board accused the judge of violations that are within the broad categories of: "issuance Capiases and False Statements," "Ex Parte Communications, Improper Plea Bargaining, Arbitrary Dispositions," "Improper use of Capiases and Bond to Compel Payment of Fines and Court Costs," "Public Confidence, Lack of Decorum and Dignity Consistent with Judicial Office," and "Abuse of Contempt Power and Failure to Recuse."
The allegations include persistent conduct of proceedings after the pandemic lockdown began. The judge is said to have refused to continue or "reschedule her cases and issued warrants for defendants who failed to appear." The article is quick to point out that the "administrative order" that was violated "was designed to ensure the safety of the public and the court’s personnel during the pandemic.” In addition, the Board alleged that the judge "lied about it to the press and to the presiding and administrative judge of her court."
The Board also accuses the judge of "routinely conducting hearings without the prosecutor present," and of "recommend(ing) pleas to unrepresented defendants with no prosecutor present." The absence of all parties is a clear warning that ex-parte may be at least perceived, even in the best of circumstances. See Judicial Behavior and Ex Parte (October 2015), Ex Parte Yet Again (September 2019).
The crux of ex parte is that conversations and communications that include the judge (or in may instances even judicial staff), but do not include all the parties are problematic. They are sometimes unavoidable, because someone declines to attend despite receiving notice. However, in such instances, if everyone was provided notice (the opportunity to attend), the judge may still proceed. Such communications should always be on the record.
Beyond the process issues alleged above, the Ohio Board also found issues with a “lack of decorum and dignity consistent with judicial office.” It alleged that the judge wore "inappropriate attire to the courtroom," including "tank tops, shorts, T-shirts and sneakers." It has been a rare "casual Friday" on which I might wear jeans and sneakers to the office, but even that level of informality is inappropriate in the hearing room. Proceedings should be dignified and shorts or t-shirts are simply not in that category absent some exigent circumstance or emergency.
The informality of such attire, in the Ohio case, was also allegedly verbal. The judge is accused of making "frequent" references in which she compared herself to a character in a cable television series "about a Mississippi strip club," "joking about accepting bribes and kick-backs," and "suggesting ‘hook-ups’ as a quid pro quo for lenient treatment."
Some of the allegations are somewhat salacious and the sheer volume of cited examples is troubling. One must remember that the Code of Judicial Conduct cautions against many behaviors specifically, but has a "catch-all" of concern: avoiding appearances of impropriety. Canon 2. Thus, even if the intent and action is all absolutely honorable, the appearance created can nonetheless be troublesome. The multitude of allegations in this case certainly suggests an appearance of impropriety, even if some particular instances of casualness, dress, or decorum were justified by some excuse or circumstance.
Back to the complexity of the human mind and body. In this case, the Judge's attorney plead medical excuse. Counsel explained that the alleged behavior was caused by "the effects of sleep apnea and menopause," and "presented expert testimony and a report from a clinical psychologist" to support the diagnosis of “Generalized Anxiety Disorder.” The news reported that the Board was somewhat critical of the expert's process and conclusions. In short, it was not persuaded by the medical excuse that essentially argued that our bodies can be complex and at times out of balance due to our sleep and other complications.
The Ohio Supreme Court will decide the Judge's fate. In a recent hearing, there was an additional indicia of skepticism about the medical excuse(s). According to Fox 8 News, one justice asked “how does sleep apnea or menopause contribute to lying?” It is practical to conclude that we are complex, and may each have an off day from time to time. It is possible for medical conditions to affect our persona and demeanor. However, the proof of that for a given instance may be required. That is, something beyond the allegation. As in all disputes, the candor and credibility of any expert opining on such a defense may likewise be an issue.
It will be interesting to see if the Ohio Supreme Court finds the evidence in this case, with so many individual instances and allegations, to be compelling or persuasive. In their deliberations, one challenge will be similar to what workers' compensation judges face daily: how do described symptoms match with diagnosis, and which experts are most credible in describing and explaining the complex issues of the human mind and body in that instance? Is the judge simply not herself due to some cause(s) or is there a generalized lack of comportment that merits this significant suspension?
