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January 2010 Greetings and salutations - Happy New Year to all and safe journeys in the upcoming year! The beginning of a new year makes us think about the future. Recently, I was the presenter of a "professionalism" CLE on the use of social networking, and its technological implications to the practice of law. In order to present, I needed a working definition what defines "professionalism" in today’s world. After significant research I concluded that "professionalism" is best summarized as the pursuit of best practice. I googled "best practice" and came up with many definitions, mostly from computer science and technology genre. This was gleaned from a computer services company: "Best practice is a technique or methodology that, through experience and research, has proven to reliably lead to a desired result. A commitment to using the best practices in any field is a commitment to using all the knowledge and technology at one’s disposal to ensure success." Satisfied with the definition, I applied it to this assignment, i.e., what are best practices in a world of technological real time communication? I refer you to Facebook and a YouTube posting - "Do you know, future technology 2009." http://www.youtube.com/watch?v=jpenfwiqdx8&feature=fvw The facts therein are stupefying. In addition, I went to the Facebook website. The following facts were obtained from it: More than 300 million active users (50% of active users) log on to Facebook on any given day. The fastest growing demographic is those 35 years old and older. The average user has 130 friends on the site. More than 8 billion minutes are spent on Facebook each day, worldwide. More than 45 million status updates appear each day. More than 2 billion photos are uploaded to the site each month. More than 14 million videos are uploaded each month. More than 2 billion pieces of content are shared each week. More than 45 million active user groups exist on the site. There is a reasonable probability if something is happening, someone is uploading it, creating instantaneous evidence! Twenty hours of video are uploaded every minute on You Tube. An example was recently discussed at one of my Criminal Sentencing Commission meetings. The legislature is debating several "sexting statutes," since fourteen-year-olds who send provocative pictures of themselves on Facebook to their significant others are presently subject to prosecution for distributing child pornography. If a recipient posts a picture on their "wall" it automatically posts to an average of 130 "friends," who may then disseminate it to 130 of their friends, and thus to millions of Facebook users. How many counts of child pornography would we be dealing with? How many parents are "friends" with their kids on Facebook, and would be in possession of "kiddie porn?" We have a twentieth century legislative and judicial system dealing with a twenty first century information highway. I use Facebook as the example but there are several hundred other social networking sites. 1. The following questions come to mind: How do we keep a jury from being contaminated? Should our rules be modified to accommodate the YouTube video that the jury will look at on their iPods? How do we prevent jurors from looking witnesses or defendants up on Facebook, or attorneys checking jurors for unsuitability? How do we keep witnesses from communicating to the next witness in the hallway vie text or facebook? How do we control the admission and authenticity of data when everyone under fifty relies on Wikipedia and the world-wide web for all their facts? (For those of you who do not know, Wikipedia is a self-user sponsored site where people can write whatever they want about something, and others can audit it.) During trial, participants conditioned to research data to support their conclusions are using multiple web sources, some accurate, some not, each weighted and evaluated differently based upon a user’s underlying bias. The honor system does not work, and it is impossible to insure jurors’ integrity, when our system of evidence is designed only to present "admissible evidence," not all evidence. Jurors and witnesses are known to research dockets to see if defendants have a criminal record, or use a blog to determine if a civil defendant has a poor reputation for consumer practices. One recent case involved a juror who texted a question about the trial to her cousin, a lawyer. A mistrial was declared. What is the consequence of a juror or witness doing his or her own research? The result for the juror or witness, in his or her mind, is an accurate verdict, not a tainted trial. What is evidence? How do we authenticate it? How do we insure the integrity of the process? How can the Rules of Evidence accommodate a Facebook page if the defendant does not admit he is the author, or if it was created by the victim’s family to incriminate him? How do we validate YouTube uploads? Should judges be allowed to research the reliability of medical testimony through Pub Med, another medical research online database, to come up with a better, more informed result as to expert testimony? Whether we like it or not, jurors, witnesses and judges are doing so. This scenario questions the very foundation of the role of evidence in a trial. How can our justice system continue to function in slow motion given this data? The reality is that our case management guidelines expect a typical case turnaround to be twelve months at the trial level, twelve months for an appeal, and, at this point, over four hundred days in the Supreme Court of Ohio. How do we stay relevant and resolve cases in a manner which preserves the integrity of due process and the basic guarantees of a fair trial? The trial attorneys and the trial judges are on the front line. We must confront these issues at the trial court level and on appeal. We must have a critical review of our Rules of Evidence and procedure, and become comfortable with this "brave new world." Everyone under thirty-five is using the web as their primary source of communication, data gathering and learning. How can we try a case if we do not understand what the participants are doing? How can a witness’ credibility be evaluated if you do not know the questions to ask as to where he got his information? How can we solve these issues if we do not even know they exist? How can we, as a legal system, stay relevant? The answers are up to all of us. I respectfully submit the concept of best practice is relevant here. Thank you for your consideration, and Happy New Year. 1. Judge O’Toole can provide legal networking sites if requested or contact her on Facebook.
Anyone appearing in the Painesville Municipal Court will inevitably be present when a Hispanic individual will be brought before the Court on a charge of No Operator’s License, an unclassified misdemeanor offense since October, 2009. Oh yes, I have heard the street talk jokingly referring to the probable cause for No Operator’s License as D.W.M. ("Driving While Mexican"). I estimate our court handles an average of 10 cases a week; nearly every one of the defendants being an illegal Latino immigrant. I realize the topic of illegal immigration is a fervent and controversial topic, particularly with the residents of eastern Lake County. There are arguments and positions on all sides of this issue. Some want the immediate deportation of these illegal immigrants, others steadfastly assert their presence is needed to fill vacant positions in the nursery and factory business, yet others are calling for the legalization of immigrants by grandfathering their residency into citizenship. It is not the role of judges to engage in discussion regarding the above respective positions, but the present situation of an increasing Latino population presents critical management issues impacting the law enforcement and judicial system. The paramount issue is determining the identity of illegal immigrants. Obviously, language is the first impediment to an investigatory stop. Most police officers have a rudimentary knowledge of basic Spanish, sufficient for initial questioning, but insufficient to permit even a minimal investigation. Naturally, identification of any suspect is a fundamental aspect of police work. In an attempt to establish identification of a Latino immigrant, it is common practice for the officer to be handed a fraudulent Social Security card, out-of-state driver’s license, or a Mexican driver’s license that has been purchased, at a very high cost, from a forgery business. The police officer confiscates the fake I. D. but has yet to establish the individual’s identity. Some illegals will be honest and give their full, correct name yet, many will give a "half-truth" name. The common practice in the home country of a Latino is to use their first name followed by their mother’s surname (hyphen), followed by their father’s surname. As a fictional example; the full legal name is Jose Ramirez-Garcia. A suspect will often respond when asked, "Como te llamas?" with Jose Ramirez, Jose Garcia-Ramirez, or, truthfully, Jose Ramirez-Garcia. Many have learned the game of giving a police officer their first name and one surname or the other, thereby saving their true identity for another time. The police officer is stymied as a LEADS or criminal background check will reveal hundreds of Jose Ramirez-Garcias, with no other identity factors, except perhaps a date of birth. Local police procedure calls for a booking process at the Lake County Sheriff’s Department only on a serious offense and /or an offense requiring a cash bond. If an individual is charged with an offense such as No Operator’s License, an unclassified misdemeanor, no booking takes place and no photographs or fingerprints are taken. A record of the individual’s identity is never placed in the system. A charge of No Operator’s License does not become a serious misdemeanor offense unless there have been two prior convictions within three years. A "street-smart" Latino is therefore able to escape the enhanced violation, by using the names available to him or her. If unlucky, an attentive police officer may recognize the offender from a previous encounter with the law. Suprisingly, when an illegal immigrant is asked for proof of automobile liability insurance coverage, a high rate of compliance exists because of certain loop holes. The former policy of the Ohio Bureau of Motor Vehicles allowed illegal immigrants to register a car in their names by using a Power of Attorney form, even if they didn’t have a driver’s license. Others simply rented vehicles from individuals who had the legal right to own, register, and insure an automobile. As of December 9th, the judicial and law enforcement system will be facing new issues. The Ohio BMV will be cancelling vehicle registrations whose owner registration does not include a social security number, Ohio driver’s license or an Ohio ID card. In October, 2009, the Bureau of Motor Vehicles issued over 47,000 notices for owners to be in compliance or the vehicle’s registration will be cancelled. Without a doubt, the illegal immigrant will continue to drive. Ohio does not have a mass transportation system as found in the larger cities like Washington, D. C., Chicago, New York, etc. A large population of illegal Latino immigrants in this state need and depend on their automobiles for work and family needs. As the previously issued valid plates and stickers become expired, and the owner is unable to renew, additional arrests and charges will significantly burden the system. These individuals will continue to operate their cars, and without liability insurance. I predict we will see an increase in hit-and-run accidents in order to avoid arrest and possible deportation by the Division of Immigration and Customs Enforcement (ICE). There needs to be a common sense solution. Most legislators in this country suffer from political paranoia when this controversial issue surfaces. Perhaps an idea favored by Senator Charles E. Schumer (D-N.Y.) for a forgery-proof worker ID card, secured with biometric data such as fingerprints will make it easy for employers to avoid undocumented workers and tough sanctions against employers who break the law, thereby leaving no jobs available for illegal immigrants. Although favored by some it has also provoked others to vehemently oppose this implementation. Although this proposal validates the legal immigrants, it does nothing to assist in the identification of illegal immigrants who will remain in this Country. Maybe, in the interest of improving the judicial and law enforcement system it may be time to consider some type of legal drivers licenses for those who illegal but are in the process of applying for green cards and are working and paying taxes. Like the ID cards, as proposed by Senator Schumer, it would provide law enforcement with a genuine method of identification, allow the legal sales of automobiles, with sales tax and title fees being paid, and the legitimate purchase of vehicle liability insurance. The Hispanic population is now the largest minority population in the United States. It is not going to decrease. Somewhere, somehow, the hot-potato issue must be handled by our legislators.
Did you know? ….. 41% of the basic court costs charged to a traffic offender are forwarded to the State of Ohio for disbursement in various accounts; victims of crime, indigent defense support fund, public defender fund, indigent treatment fund and the drug fund. Only 59% remains with the Court for operating expenses. Did you know? ..... As of October 15, 2009, the Supreme Court terminated reimbursement to the funding cities of municipal courts for Acting Judge salaries. Only Visiting Judges, appointed by the Chief Justice, will be paid by the State Supreme Court. (There are no active Visiting Judges in Lake County!) Did you know?..... The American Judges Association, through a White Paper project by President-Elect Mary Celeste (Denver, CO) is challenging the Judicial Canons & Ethics which prohibits Judges from participating in Presidential primaries and caucuses. Judge Celeste’s work will present argument that directives and opinions should not override the constitutional rights of Judges, the same constitutional rights that Judges swore to uphold in their Oath of Office. Best wishes to all for a Happy Holiday Season!
A Lawyer’s Duty of Safekeeping Funds Goes Beyond IOLTA Attorneys know that they must hold their clients’ property separately from their own property. This is accomplished through a client trust account, most commonly referred to as the attorney’s IOLTA account. Many attorneys, however, are still unaware of a completely new provision that was added to the "safekeeping rule" when the Ohio Code of Professional Responsibility was replaced by the Ohio Rules of Professional Conduct on February 1, 2007. Under the new rules a lawyer must also safeguard funds for a third party when the lawyer knows that the third party has a lawful, not frivolous, claim to those funds. Ignorance of the rule could negatively affect one’s good relationship with the client, as well as one’s license and bottom line. The rule provides that "[u]pon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client or a third person, confirmed in writing, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive. Upon request by the client or third person, the lawyer shall promptly render a full accounting regarding such funds or other property." What if there are multiple claims upon the funds? The rule further provides that" [w]hen in the course of representation a lawyer is in possession of funds or other property in which two or more persons, one of whom may be the lawyer, claim interests, the lawyer shall hold the funds or other property pursuant to division (a) of this rule until the dispute is resolved. The lawyer shall promptly distribute all portions of the funds or other property as to which the interests are not in dispute." Comment [4] to Rule 1.15 drives home the full import of this rule as it explains that "[d]ivision(e) also recognizes that third parties may have lawful claims against specific funds or other property in a lawyer’s custody, such as a client’s creditor who has a lien on funds recovered in a personal injury action. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client. In such cases, when the third-party claim is not frivolous under applicable law, the lawyer must refuse to surrender the property to the client until the claims are resolved. A lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party, but, when there are substantial grounds for dispute as to the person entitled to the funds, the lawyer may file an action to have a court resolve the dispute." So just what are the lawyer’s safekeeping duties? The question was answered in great detail in an advisory opinion issued by The Supreme Court of Ohio’s Board of Commissioners on Grievances and Discipline. When there is no dispute as to funds, the lawyer must "promptly notify and deliver the funds to which a client or third person is entitled." When a lawyer knows there is a dispute between a client and a third person "who has a lawful claim under applicable law to the funds," or when the lawyer is uncertain whether the third person’s claim is lawful, the lawyer must "notify both the client and the third person and to hold the disputed funds in a trust account until the dispute is resolved…" and must "promptly" deliver the balance of the funds that are not subject to the dispute. When a lawyer knows the third party’s claim is not lawful, the lawyer must notify the client and "promptly" deliver the funds to the client. The advisory opinion further explains that that the lawyer should attempt to resolve any disputes before the funds arrive. But failing that, the lawyer should "encourage the client and the third person to resolve the dispute through discussion", mediation, or arbitration. But the lawyer is cautioned that she or he "should not unilaterally assume to arbitrate a dispute between a client and a third person." In the end, if the dispute is not resolved and "there are substantial grounds for the dispute," a lawyer may resort to an interpleader action. What constitutes a "lawful claim"? The opinion provides six familiar examples for those practicing tort or business law: statutory subrogation rights such as Medicare, Medicaid, and state and federal workers’ compensation; judgment liens or other court orders regarding the specific funds at issue; written agreements between the client and a medical care provider such as assignments or "doctor’s liens"; a letter from the lawyer to a medical care provider promising to honor the client’s agreement to pay the bill out of settlement proceeds, otherwise known as "letters of protection"; health insurance contracts containing subrogation or right of reimbursement clauses; and a creditor’s secured claim that is specific to the funds at issues as opposed to the client’s general unsecured creditor’s claims. Finally, the opinion clarifies the term "knows" as "actual knowledge of the fact in question"; however, "[a] person’s knowledge may be inferred from circumstances." After reading the rule and the Board of Commissioner’s advisory opinion, it quickly becomes apparent that the lawyer’s work is far from done when a settlement is reached with the opposing side. It also is clear that the lawyer’s exposure now extends beyond her or his client even in those situations where the lawyer has scrupulously avoided the practice of giving letters of protection or other assurances of payment that have been found by courts to create a suretyship. Concerns and question as to this new rule were raised by the practicing bar as soon as the rule went into effect and then again after the Board of Commissioners issued its advisory opinion. A special committee of the Ohio State Bar Association was formed to study the rule and make recommendations for amendment. Members of the special committee included attorneys representing the interests of injured plaintiffs, civil defendants, insurance house counsel, physicians, and attorneys involved in disciplinary proceedings along with a representative of the Office of Disciplinary Counsel. After unanimous approval, the committee’s recommendations for amendment were passed by the OSBA Council of Delegates and forwarded to the court. The conflict this rule creates between the attorney and the client is real. The special committee observed that "the law does not require an attorney to search out undisclosed liens and claims, so having a disciplinary rule which arguably requires an attorney to do just that, creates an inherent conflict by pitting an attorney to act against the interests of his or her own client." With the increasing prevalence of certain medical care providers trolling police reports, soliciting new patients who are required to sign assignments mandating payment of the provider’s bill in full before payment of the attorney fees, other bills, and, of course, a settlement to the injured client, the lawyer’s new client may have already potentially signed away an entire gross settlement before the client reaches the attorney’s office for the first time. Another situation faced by lawyers is even more precarious. After the lawyer has entered into a contingent fee contract with the new client, the client then, without consultation with the lawyer, gives an assignment to the medical care provider which mandates priority of payment of that provider’s billing in full ahead of the attorney fee or the client’s recovery. Now the lawyer is squarely pitted against both the client and the medical care provider, as arguably the medical care provider has interfered with the attorney/client contractual relationship and most importantly, the client expects to receive some compensation at the end of the day. As reported by the special committee, this problem is compounded when the attorney attempts to negotiate a reduction of the billing for the client and is threatened with a grievance by the medical care provider attempting to use the disciplinary system as a collection agency. The rule affects business litigators as well. The lawyer representing a distressed business successfully negotiates a settlement of a contract disputes and collects the funds from the settlement. The question then arises, does the lawyer have to act as a collection agency for the client’s creditors? Must the lawyer search out all judgments liens? Must the lawyer then contact the lien holder and hold funds to satisfy the lien holder before disbursing the funds to her client? Relief may be at hand. On August 31, 2009, the Supreme Court of Ohio published for public comment proposed amendments to the safekeeping rule. Under the proposed amended rule the lawyer must have "actual knowledge" of the third party’s interest. Further, the proposed amendments limit the claimed interest to "a statutory lien, a final judgment addressing the disposition of the funds or property, or a written agreement by the client or the lawyer on behalf of the client guaranteeing payment from the funds or property." Until such time as the court adopts the proposed amendment, lawyers should read the rule, the advisory opinion, and carefully examine their settlement closing procedures accordingly. [1] Rule 1.15(a), Ohio Rules of Professional Conduct. [1] Rule 1.15(d), Ohio Rules of Professional Conduct. [1] Rule 1.15(d), Ohio Rules of Professional Conduct. [1] Rule 1.15(e), Ohio Rules of Professional Conduct.(Emphasis original.) [1] Rule 1.15, Comment [4], Ohio Rules of Professional Conduct. [1] Opinion 2007-7 (12/7/07) is found at http://www.sconet.state.oh.us/Boards/BOC/Advisory_Opinions/2007/op_07-007.doc
[1] Id. at syllabus, paragraph 2. [1] Id. at syllabus, paragraphs 3 and 4. [1] Id. at syllabus, paragraph 5. [1] Id. at syllabus, paragraph 6. [1] Id. at 4-5. [1] Id at 4, citing Rule 1.0(g): Terminology. [1] See Solon Family Physicians v. Buckles (1994), 96 Ohio App. 3d 460. [1] Report of the Special Committee to Review ORPC 1.15 at line 255. [1] The full text of the proposed amended rule is found at
October 2009 POST CONVICTION DNA TESTING IN OHIO DNA analysis of hair, saliva, blood, skin tissue and semen is one of the most significant advances in the history of scientific evidence. Deoxyribonucleic acid (DNA) codes genetic in-formation for the transmission of inherited traits. Constructed into tightly coiled threads, DNA exists in every nucleus of every cell within the human body. The function of DNA is to store all information necessary to create a human being along with all traits unique to that person. Except for identical twins and bone marrow transplant recipients, every individual= s genetic makeup is unique. The collection and analysis of DNA is often referred to as DNA fingerprinting because it is second only to actual fingerprinting in the identification of individuals. The two most common types of DNA tests are Restriction Fragment Length Polymorphism Analysis (RFLP) and Polymerase Chain Reaction Amplification Analysis (PCR). Additionally, there is a newer form of DNA testing called STR testing (Short Tandem Repeat Polymorphisms). To date, DNA test results are admissible in all jurisdictions. DNA samples are considered to be non-testimonial evidence with respect to a defendant= s Fifth Amendment right against self-incrimination. DNA samples are analogous to a photograph or fingerprint identifying an individual. With DNA analysis, forensic scientists can analyze any particular biological specimen such as hair, blood or tissue and identify the person who is its source. This process consists of dividing a DNA sample into fragments, which form a unique pattern, and then matching this A identity profile@ with samples from the DNA database. The sample may come from a variety of bodily fluids and tissue, each providing an equal amount of genetic information. In addition to helping convict offenders, DNA analysis has become a powerful tool to the defense to exonerate those who have already been convicted. Using DNA testing at the post conviction stage is a controversial issue that raises both procedural and substantive questions. DNA testing may establish with a high degree of certainty that the defendant was innocent when the facts show that there was only one assailant and the test shows that the defendant was not that person. In other cases, DNA testing may raise questions about the defendant= s guilt but not be conclusive. Prosecutors generally accept the reliability of the test results but may not necessarily agree on the significance of the result. Ordinarily, claims of innocence are viewed with considerable skepticism and are resisted strenuously on the theory or principal of finality. This is to discourage unworthy post conviction claims and to minimize incentives for criminal defendants or their compatriots to manufacture false exculpatory evidence or to intimidate trial witnesses to secure recantations. It conserves police, prosecutorial and judicial resources and minimizes the burden on witnesses and victims. It also discourages public second guessing and promotes public confidence in the reliability of the criminal process. However, the state has an obligation to free innocent individuals. There is no legitimate public interest in preserving convictions of innocent defendants and continuing their confinement. The public interest in correcting false convictions is as compelling as its interest in avoiding false convictions, which is shown in our adversary trial process. Thus there is a limited ongoing obligation to correct error in view of the constant reminders that the criminal justice process, for all the rights it affords to a defendant, is fallible. With this in mind, the General Assembly in 2003 enacted a set of statutes titled A Post-conviction DNA Testing for Eligible Inmates,@ R.C. 2953.71 through R.C. 2953.83. R.C. 2953.73(A) permits an eligible inmate to submit an application for DNA testing to the court of common pleas. The court then must determine, based on the criteria and procedures set forth in R.C. 2953.74 through R.C. 2953.81, whether to accept or reject the application. R.C. 2953.74(C) provides that a court may accept an application for DNA testing for an eligible inmate, as defined under R.C. 2953.72, when the court determines that, if DNA testing is conducted and an exclusion result is obtained, the results of the testing will be > outcome determinative= regarding that inmate. Specifically, a trial court may accept an eligible inmate= s application for DNA testing only if the following factors are present: (1) biological material was collected from the crime scene and the parent sample of that biological material still exists; (2), the parent sample of the biological material is sufficient, demonstrably uncorrupted, and scientifically suitable for testing; (3) the identity of the perpetrator of the charged offense was an issue at the inmate= s trial; (4) a defense theory at trial was such that it would permit a conclusion that an A exclusion result would be outcome determinative@ ; and (5) if DNA testing is conducted and an exclusion result is obtained, the results of the testing would be outcome determinative. If the court finds that the test would not be outcome determinative, the application must be rejected. Speculation by an eligible inmate is insufficient to support a postconviction DNA testing application. Pursuant to R.C. 2953.73(D), the inmate must provide the court with supporting af-fidavits and other documentary evidence which clearly demonstrates that he or she is entitled to DNA testing, i.e. that an a DNA test exclusion result would alter the trial result. If the inmate fails to convince the trial court that a DNA test exclusion result would change the verdict, the court is under no obligation to accept the application. The trial court must, in its discretion, con-sider how to best use judicial resources. Thus, the trial court decides on whether it is appropriate to proceed with a DNA test. Under these statutes, an A exclusion result@ is defined as an outcome of DNA testing that scientifically precludes or forecloses the inmate from being the contributor of the biological material recovered from the crime scene or crime victim. Additionally, A outcome determinative@ means that had the results of DNA testing been presented at trial, there is a strong probability that no reasonable fact finder would have found the inmate guilty. An inmate is eligible to submit an application if he or she was convicted by a judge or jury of a felony and has at least one year remaining on his or her prison term or is under a sen-tence of death. An inmate is not eligible if he or she has served their prison term or has pled guilty or no contest and the prosecutor disagrees that the inmate should be permitted to obtain DNA testing. If a prior definitive DNA test has been conducted on the same biological evidence that the inmate seeks to have tested, the court shall reject the application. If a court has rejected an inmate= s application for DNA testing, it may not accept or consider subsequent applications. If an eligible inmate submits a DNA testing application, R.C. 2953.75(A) states that the trial court A [s]hall require the prosecuting attorney to use reasonable diligence to determine whether biological material was collected from the crime scene or victim and whether the parent sample of that biological material still exists at that point in time.@ Reasonable diligence as de-fined in R.C. 2953.71(Q) means A a degree of diligence that is comparable to the diligence a rea-sonable person employed in searching for information regarding an important matter in the per-son= s own life.@ If the court concludes that the requested biological evidence no longer exists, it may not accept the application. This is a significant issue since many inmate applications con-cern cases that may be decades old and the evidence either has been destroyed or lost. To determine whether the parent sample of biological material still exists, R.C. 2953.75(A) requires the prosecuting attorney to investigate all relevant sources including, but not limited to: (1) all prosecuting authorities from the original case; (2) all law enforcement authorities involved in the original investigation; (3) all custodial authorities involved at any time with the biological material; (4) the custodian of all agencies; (5) all crime laboratories involved at any time with the biological material; and (6) all other reasonable resources. Ultimately, what constitutes reasonable diligence will depend on the facts and circumstances of each particular case. R.C. 2953.75(A) expressly permits the prosecuting attorney to rely upon information from a crime laboratory involved at any time with the biological material in question. R.C. 2953.75(B) requires the prosecuting attorney to prepare and file with the court a report that reflects what efforts the prosecuting attorney undertook to determine if any biological material still exists. The statute does not require the prosecuting attorney to submit this information by affidavit. Scientific evidence has come a long way since the genetic marker analysis of the 1960's. DNA fingerprinting has developed into a powerful tool to incarcerate the guilty and exonerate the innocent. While hopefully the number of innocent individuals who have been convicted in recent years is very small, postconviction DNA testing offers a method to ensure that the right person was convicted. The criminal justice system has come a long way since allowing DNA evidence in criminal proceedings. DNA database - contributes to the creation of a more accurate criminal justice system. This increased accuracy may ultimately exonerate persons who have been, or who will be, wrongly convicted or, or charged with, a crime. Will assist law enforcement agencies in solving further crimes that have not yet been committed. R.C. 2901.07 is identical in all important respects to the federal statutes at issue. Raises recurring issues of mistaken eyewitness identification (particularly single witness cases), inaccurate serology, untruthful informant testimony. - eyewitness= s assessment of certainty is highly malleable and can be inflated by suggestive identification procedures. - there is little an appellate court can do about factual errors (vice legal errors) - tunnel vision by investigators - causing investigators and prosecutors to discount evidence that does not fit their hypothesis of guilt. Tunnel vision (otherwise known as cognitive biases) - the human tendency to evaluate evidence through the lens of one= s preexisting expectations and conclusions. Police other focus too quickly upon a particular suspect to the exclusion of others, and prosecutors then do the same based on the police investigation. - Adversarial mindset leading prosecutors to excessive partisanship. - overlook or withhold exculpatory or impeachment evidence. - blocking DNA testing or obstinately defending convictions. - threaten excessive charges, lie, or misrepresent facts to pressure or bluff defendants into plea bargains or cooperation deals. - prosecutor= s powers to subpoena, bring or dismiss charges, and strike deals are vast yet not constrained. Appellate and postconviction courts are unable to effectively review claims relating to the unreliable or false evidence supporting a wrongful conviction. Causes of wrongful conviction are complex. Ohio courts are not insensitive to the possibility of wrongful convictions. Often, even years after a conviction, witnesses recant their testimony, additional witnesses come forward, or other new evidence or information emerges that tends to exonerate a convicted defendant. The new ABA model ethics rules propose that when a prosecutor learns of new exculpatory evidence that is material and credible and that establishes a reasonable likelihood that a convicted defendant is innocent, the prosecutor should disclose the new evidence to the court and to the defendant and conduct a reasonable investigation to determine whether a miscarriage of justice in fact occurred. Rule 3.8(g) Further, the model rules would call on the prosecutor to attempt to set the conviction aside if the investigation leads to clear and convincing evidence of the defendant= s innocence. Rule 3.8(h) - Imbler v. Pachtman (1976), 424 U.S. 409, 427 n.25 - prosecutors are bound by the ethics of [their] office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction. The legal process holds out little hope for wrongfully convicted defendants, especially in the absence of help from prosecutors. - legal error is much easier to challenge on appeal or in postconviction hearings. - great weight is put on guilty verdicts when they are the outcome of knowing and voluntary guilty pleas or procedurally fair trials - in the interest of finality, it is made exceedingly difficult for a defendant to obtain relief based on the discovery of new evidence, absent procedural error of some kind. Ordinarily, claims of innocence are viewed with great skepticism and resisted strenuously on the theory or principal of finality. - Discourage unworthy post conviction claims and minimize incentives for criminal defendants or their compatriots to manufacture false exculpatory evidence or to intimidate trial witnesses to secure recantations. - conserve police, prosecutorial and judicial resources and minimize the burden on witnesses and victims. - discourage public second guessing and promote public confidence in the reliability of the criminal process. Once a defendant is convicted after a fair trial, there is a strong presumption of the defendant= s factual guilty, which may be impossible to overcome through the judicial process, despite our knowledge that trials are fallible. - Even when a judicial remedy is otherwise afforded, time restrictions or other restrictions may make it unavailable to a particular defendant. - convicted defendants generally lack the resources to uncover new evidence or to follow up effectively on their own. - prosecutors tend to mistrust witness recantations, jailhouse informants who provide exculpatory evidence. The public has now grown accustomed to doubts raised by the results of DNA tests of evidence from old cases. In some rape cases, for example, DNA testing may establish with a high degree of certainty that the defendant was innocent because it is agreed that there was only one assailant and the test shows that he was not the defendant. In other cases, DNA testing may raise questions about the defendant= s guilt but not be conclusive. Prosecutors generally accept the reliability of the test results, but they do not necessarily agree on the significance of the results. (Fn 57) The state and federal government have an obligation to free innocent individuals. There is no legitimate public interest in preserving convictions of innocent defendants and continuing their confinement. The public interest in correcting false convictions is logically as compelling as the public interest in avoiding false convictions, which finds expression in the constitutional design of the adversary process. - The ongoing obligation to correct error is part of what justifies punishment of convicted defendants in the teeth of constant reminders that the criminal justice process, for all the rights it affords, is fallible. DNA analysis of hair, saliva, blood, skin tissue and semen is the most significant advance in the history of scientific evidence. 27 WMLR 1971 (William Mitchel law Review A In the Interest of Justice: Granting Post-conviction Deoyyribonucleic Acid (DNA) testing to inmates. 2001. (Through 6 OHSTJCL 467, fn 22) Deoxyribonucleic acid (DNA) codes genetic information for the transmission of inherited traits. Constructed into tightly coiled threads resembling a helix, DNA exists in every nucleus of every cell within the human body. The function of DNA is to store all information necessary to create a human being along with all traits unique to that human being. Except for identical twins and bone marrow transplant recipients, every individual= s genetic makeup is unique. The collection and analysis of DNA is often referred to as DNA fingerprinting because is it second only to actual fingerprinting in the identification of individuals. The two most common types of DNA tests are Restriction Fragment Length Polymorphism Analysis (RFLP) and Polymerase Chain Reaction Amplification Analysis (PCR). Additionally, the newest form of DNA testing used is referred to as STR testing (short tandem repeat polymorphisms). To date, DNA test results are admissible in all jurisdiction. Thus forensic scientists can analyze any particular biological specimen - such as hair, blood or tissue - to identify the person who is its source. This process consists of dividing a DNA sample into fragments, which form a unique pattern, and then matching this A identity profile@ with samples from the DNA database. The sample may come from a variety of bodily fluids and tissue, each providing the same degree of genetic information. 6 Richmond Journal of law and Technology 27, A DNA Fingerprinting - Justifying the Special Need for the Fourth Amendment= s Intrusion into the A one of Privacy, Spring, 2000. - DNA Identification Act of 1994, 42 U.S.C. ' ' 14131-34 - 42 U.S.C. ' 14151(a) (1994) Over the last few years DNA analysis has become a powerful tool to the defense to exonerate those who already been convicted. Using DNA testing at the post-conviction stage is a controversial issue that raises both procedural and substantive questions. Need to conserve judicial resources by not opening the floodgates to meritless and costly claims. If the evidence against a defendant is overwhelming and DNA evidence did not play a large part in the overall conviction, then the post-conviction testing should not be granted. However, if the prosecution won the conviction on eyewitness identification alone, then post-conviction testing should seriously be considered. With biological evidence such as DNA testing, the courts have found post-conviction testing most suitable and beneficial to all parties involved when the following elements are present: When the identity of a single perpetrator is at issue; The prosecution= s evidence against the defendant is weak and therefor there is an element of real doubt of guilt; scientific evidence, if any, used to obtain the conviction has been impugned; and the nature of bioligical evidence make testing results on the issue of identity virtually dispositive. - do the tests carry any potential for showing exculpatory results. In 1994, Congress passed the DNA Identification Act. (Fn 205). This Act authorizes the attorney general to grant money to states to develop DNA databases. In order for a state to obtain grant money, the state is required to collect DNA from felony sexual offenders. The states may require additional criminals to submit to DNA testing to add to the databank. DNA databanks will grow to be a powerful tool for law enforcement. All of the state databases are in the process of being linked to a national database called the National Combined DNA Identification System (CODIS). Fn 222. Once this process is complete, the databases will be all the more powerful to law enforcement. - operating since 1997 under the direction of the National Crime Information Center of the Federal Bureau of Investigation. The criminal justice system has come a long way since allowing DNA evidence in criminal proceedings. Scientific evidence has come a long way since the genetic marker analysis of the 1960's. Together, a powerful tool has been developed to incarcerate the guilty and exonerate the innocent. With the number of innocent individuals who have been convicted in recent years, there is no just reason why our system should not take advantage of the scientific advances afforded to our society in order to ensure that the right person is convicted. 27 William Mitchel law Review, A In the Interest of Justice: Granting Post-Conviction Deoxyribonucleic Acid (DNA) Testing to Inmates., 2001. [39] As one court explained the biological analysis, A involves determing the specific genetic variations, or > alleles,= in DNA samples at specific sites (A loci@ ) along the DNA thread. The particular variations examined in this case are called short tandem repeats, or > STRs.= They were examined at thirteen loco which have been adopted as a national standard for use in the Combined DNA Identification System (CODIS) established by Congress in 1994. The PCR-based analysis using the thirteen STR loci has been explained by the Supreme Court of New Hampshire as follows: [40] A > At each locus, an individual= s genetic code contains a combination of chemical markers organized into a pattern. These chemical patterns repeat themselves and these repeats can be chemically cut apart from one another . At any particular chromosomal locus, an individual will have a characteristic inherited from each of hisz or her parents, known as an allele. Furether, at any give locus, a person will have DNA with a sp[ecific number of repeat of these alleles from each parent. Thus, for example, a person= s PCR-based STR DNA profiels for a particular DNA locus could contain a ten-repeat allele from his or her mother and a twelve-repeat allele from his or her father. STR testing involves tyhe examination of short repeats and distinguishes between individuals by comparing the number of repeats at a certain loci. [42] *** conversely, a DNA mismatch constitutes conclusive and certain scientific proof that the DNA samples come from different sources. For proving identity, however, as opposed to disproving identity, DNA can never provide absolute, conclusive proof, even though extremely low probabilities of a coincidental match provide a basis for very strong inferences of identity. [48] DNA samples have been held to be non-testimonial evidence with respect to the Fifth Amendment privilege against self-incrimination. A DNA sample obtained from a state prison, pursuant to Ohio Statute requiring the collection of DNA specimens from convicted felons, was physical, rather than testimonial evidence, and thus did not implicate the prisoner= s Fifth Amendment privilege against self-incrimination. The court reasoned that a DNA samples was analogous to a photograph or fingerprint identifying an individual. State v. Bruce, 5th Dist. No. 2006-CA-45, 2008-Ohio-5709, at & [4] FN1 A In 2000, Congress enacted the DNA Act, which required federal authorities to collect DNA samples from individuals in custody and while on probation, parole, or supervised release after being convicted of certain violent crimes. 42 U.S.C. ' 14135a (2000). Under the Act, the Bureau of Prisons collects DNA samples from individuals in the Bureau= s custody, and the probation offices collect DNA samples from individuals on probation, parole, or supervised release. 42 U.S.C. ' ' 14135a(a)(1)(B), (a)(2) (2005). These entities then submit the DNA sampoles to the Federal Bureau of Investigation for inclusion in its [CODIS]. 42 U.S.C. ' 14135a(b) (2005). State v. Holloway, 8th Dist. No. 91697, 2009-Ohio-1613, at &
[8] In 2003, the Ohio Attorney General= s Office began a federally funded program to compare colle4cted DNA samples filed in the Combined DNA Index System (A CODIS@ ) with samples on filed in unsolved criminal cases. In July 2003, the CODIS Administrator of the Ohio Bureau of Criminal Investigation (A BCI@ ) advised Sandusky police that a A candidate match@ had been obtained in the case. According to CODIS, a file sample of DNA from appellant, matches the DNA obtain from the semen sample found in the 1995 rape kit in this case. 2901.07 - [11] Requires DNA testing of certain offenders who have been sentenced to incarceration, without regard to their consent or the existence of any reason to believe that they have cvommitted a crime other than the offense for which they have been incarcerated. [12] All 50 states and the federal government have enacted statutes similar to R.C. 2901.07. Appellate courts reviewing Fourth Amendment challenges to these statutes uniformly have held that mandatory collection of DNA samples from individuals such as Cremeans does not constitutes an unlawful search and seizure, even without individualized suspicion of involvement in some other crime. [13] *** we now add our voice to the growing weight of authority and hold that Ohio= s DNA collection statute does not violate Cremean= s Fourth Amkentment right to be free from unreasonable searches. [16] DNA profiling fits within the A special needs@ doctrine, which permits a search without a warrant or individualized suspicion when the primary purpose of the search goes beyond the ordinary need for law enforcement. [27] *** These courts bypass the special needs analysis in favor of a pure totality of the circumstances or traditional balancing of interests test. *** courts adopting this second analytical approach have concluded that a prisoner= s diminished expectation of privacy, particularly as to his identity, is a key fact that also obviates the need for individualized suspicion of wrongdoing. State v. Cremeans, 160 Ohio App.3d 1, 2005-Ohio-0928, 825 N.E.2d 1124.
September 2009 SENIOR FINANCIAL ABUSE
We have entered into a period of financial catastrophe. Banks, stockbrokers and automobile companies are being bailed out by the government. This condition appears to be worldwide and we are on the verge of a depression. In Lake County, foreclosures are increasing from last year. Having stated all this, suddenly the stock market increases significantly and Merrill Lynch announces the recession is over. What is going on? The seniors have taken a financial hit, we all have. Senior financial abuse is growing. In this type of economic quandary, Probate Court is experiencing grandson’s stealing over $200,000 of their grandmother’s assets. Attorney’s taking over $100,000 of their clients funds. Parents stealing from their children’s estate. Wards co-signing notes and mortgages, which end in default. Seniors that have been financially abused are reluctant to tell their children or attorney that they have been duped. Legislators pass laws without funding. The police departments are more concerned with the investigation of a possible breaking and entering than with a senior who has been financially abused in a reverse mortgage scheme, or who has co-signed on notes, or who has quit claimed interest in their home. We have good police, but it does not seem that senior financial abuse is a critical concern. Perhaps, this is based on proof, age of victims, etc. The San Diego Prosecutor’s office has a separate method of handling both physical and financial senior abuse. Therefore, we as attorneys, have the responsibility to bring justice to people who cannot protect themselves. Perhaps we should petition our legislators to pass more stringent laws against elder abuse and funding. Perhaps they would consider, as in California, a law to have persons over 70 take priority on trial schedules . Progress will occur only if we make it happen. It will not happen as long the legislature keeps passing laws without providing the necessary funds to enforce them.
July 2009 
Judge Karen
Lawson, Lake County Juvenile CourtAs I was riding my bike this morning, I was thinking about what I was doing a year ago. It is a pleasure not to have to worry about where we are going to walk door to door this weekend. However, parades are still in my vocabulary! The Willowick parade was the first weekend in June and I am sure you will all be attending the Mardi Gras festivities in Fairport! By the time you read this, it will be near the end of my sixth month on the bench. Some days it feels like I have been here a lifetime!! Of course, the biggest item on my plate when I took office was the budget. The argument before the Ohio Supreme Court was scheduled for February 19, 2009. The new Chief of Staff, Frank Weiss, the new Director of Administration, Chris Simon, and I crunched numbers, worked 14 hour days, and met with the Board of County Commissioners. We compromised and communicated with the Commissioners. We went to them with accounting transparency. In this economy, when we are all lucky to have jobs, the case demanded to be settled. We got the job done! I would like to thank the Commissioners for their cooperation and willingness to compromise. The staff is learning my philosophy and adapting. I have found a wonderful "team" of folks at the Lake County Juvenile Court and Detention Center. We are public servants. I expect the staff to be kind, courteous, and treat the public with respect. Magistrates Weiss and Ferkol are still in the halls. Magistrates Lyons and O’Leary are part-timers. Jan Bell has returned to Juvenile Court as a Magistrate. She has quite the reputation for filling the Detention Facility! I stole Jason Wuliger from the Prosecutor’s Office. Our goal is to make efficiency our priority. The youth that appear in Juvenile Court are learning that they have choices in life and then consequences that follow. One of the places they are learning that is in our Achievement Docket. It is Thursday night drug court. We recently made some changes to streamline the program and are proud of its success. We have established a Traffic Waiver Bureau. In the most minor traffic cases the juvenile will be able to waive the ticket, as opposed to appearing in court. This will eliminate the need for parents to take off work, and keep children in school where they belong. The bureau will cut down the traffic docket by about 40%. We are also starting a mediation program. Jason Wuliger and Jeffrey Ferkol will be heading up that program. Within our detention facility, we are building a computer lab where the wood shop once was located! Also, with the help of the Master Gardeners, we have planted a garden in the enclosed outside area at the Court. The children in the detention center will weed, harvest, and be charged with the all around caring of the garden! The children will be enjoying fresh vegetables and salads that they grow. There are many more programs to be developed. We are working on a clinical assessment team. This is still in the idea stage. However, we have such wonderful talent at Juvenile Court that we are trying to utilize the trained and licensed personnel to provide services efficiently and spend public funds wisely. I want to thank everyone at the Court for welcoming me as I settle in to my new home! June 2009
Judge Colleen Falkowski, Lake County Domestic Relations Court A NEW APPROACH FOR HIGH CONFLICT FAMILIES The scene is set: Sally anxiously awaits her father’s arrival at 5:00 p.m. She is ecstatic to spend the weekend with him. At 5:10 p.m. Sally’s mother triumphantly declares to Sally “It’s after 5, your father is not here, and the court order says 5:00 p.m. You’re staying with me this weekend.” Sally breaks out in tears just as the doorbell rings. Mom tells Sally to go to her room. Instead, Sally hides in the shadows of the hallway. She hears her father apologize for being late due to an accident on I-90. Mother stridently snaps “You were to be here at 5:00 p.m. You weren’t. You forfeited your visitation.” A heated argument ensues. Dad calls the local police department to enforce his parenting time order. The officers arrive, listen to both parents, and inform Dad the incident is a civil matter and he needs to speak with his attorney. The tensions between the parents are at zenith. A battery of motion filings from both parents concerning Sally follow the incident. As attorneys and judges, we realize the legal remedy of a show cause motion is too little, too late in the world of family law. The parents in my example need timely intervention and decision making to parent their child more effectively. How can this family be helped in the throes of post-decree battles over their child? The answer may be through Parenting Coordination. A Parenting Coordinator (“PC”) is usually an attorney or a mental health professional who has taken the family law mediation courses required by the Supreme Court of Ohio as well as specific courses in parenting coordination. The Association of Family and Conciliation Courts (“AFCC”) has implemented guidelines for Parenting Coordination which are widely used by most courts across the country. For the high conflict family with a shared parenting plan, the PC addresses the parents’ difficulties in implementing the plan on a daily basis. The PC’s authority comes from the Court’s order of referral which authorizes the PC to make certain timely decisions when the parents are unable to agree on their own or through facilitated negotiations. These decisions are necessitated by the mechanics of day-to-day life for which the parents’ boilerplate shared parenting plan is silent. All too often a shared parenting plan does not address the unique circumstances of the particular family. Standard language serves to escalate problems between parents when a plan fails to incorporate a child’s 365-day-a-year sports schedule, music lessons, extended family annual reunions, and other reoccurring events. These are often the areas the PC facilitates negotiation with the parents for a timely resolution of the issue. Please note the PC does not decide who should be the residential parent, if shared parenting should be terminated, or relocation issues. These decisions are rendered solely by the Magistrates and Judge. Parenting coordination is an area where an experienced social worker or mental health professional is highly beneficial. Such a background brings an individual to the table who is accustomed to dealing with the personalities and complex dynamics that lead to ongoing high conflict. Further, such an individual does not come from the adversarial litigation stance of an attorney. I had the opportunity to attend a Parenting Coordination conference sponsored by the Ohio Supreme Court in late 2007. I was most impressed with the skill set the mental health professionals as PC’s bring into the tumultuousness of family law. The overwhelming positive attribute of a PC is that a timely decision is rendered for the family in the event of a dispute. Their lives continue on, hopefully somewhat calmer. Experience has shown it is often small variances from a court order which leads to petty, volatile litigation between the parents. The litigation inflames not just the parents but their immediate and extended families as well. The trash talk regularly occurring within earshot of the children would make Dennis Rodman flee the basketball court. As a result of my belief a PC is a much less adversarial approach for high conflict families, I am pleased to announce that the Domestic Relations Court now has its own Parenting Coordinator. Anna Tyrell has joined the Court and is doing Parenting Coordination. Lake County was the first Domestic Relations Court in Ohio to receive a grant for an in-house Parenting Coordinator from the Ohio Supreme Court. Most importantly, our new program, like mediation, is offered at absolutely no charge to families referred by Court order to the program. For those of you who have worked with psychologists or attorneys who do private parenting coordination, you realize the fees can range from $100.00 to $250.00 per hour per parent. Unlike private parenting coordinators who can be available 24/7, Anna Tyrell is available during the courthouse business hours of 8:00 a.m. to 4:30 p.m. weekdays. The goal of the Court’s new program is simple: to close the umbrella of tension and stress many children live under due to their parents’ need to perpetuate the fight over the children. These parents struggle to remember their child loves both mom and dad, not just one parent. These parents do not recognize their child wants to please each of them and be with both of them. These parents place their own emotional needs before their child and often treat the oldest child as an adult sounding board. One of the Court’s goals is to let children be children, free from worry and turmoil. Another goal is to guide the parents towards the ability to resolve these issues themselves over time.
May 2009
The Tenth Amendment Under Fire An informal poll of colleagues, friends, and acquaintances suggests that the Tenth Amendment is long-forgotten. Yet, the Tenth Amendment, according to Thomas Jefferson, is “the foundation of the Constitution.” The Tenth Amendment to the U.S. Constitution states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It was included in the Bill of Rights to further define the balance of power between the federal government and the states. No other issue dominated the deliberations of the founders as much as this. British oppression had made the founding fathers fearful of unchecked centralized power. The founders were concerned that the new federal government might seek to exercise powers not granted, and the states might not be able to exercise fully their reserved powers. Ratified in 1791, the Tenth Amendment embodies the general principles of federalism in a republican form of government. Federalism is the constitutional division of powers between the national and state governments and is regarded as one of America’s most valuable contributions to political science. It is the constitutional equilibrium between the general and the state governments; the balance of which “forms a double security to the people. … Indeed, [the federal and state governments] will both be prevented from overpassing their constitutional limits by (the) certain rivalship which will ever subsist between them,” according to Alexander Hamilton. According to James Madison, the father of the constitution, “The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concerns the lives, liberties, and properties of the people.” As Thomas Jefferson stated, the states are not subordinate to the national government, but rather the two are “coordinate departments of one simple and integral whole.” The federal government was created by the states specifically to be an agent of the states, not vice versa. This political system of federalism worked well until around the beginning of the 20th Century. State sovereignty markedly eroded under presidents and congresses comprised of both major political parties. That erosion has exponentially accelerated in the last two decades. Extreme spending programs, bailouts, the states being threatened and forced to accept federal bailout dollars, the accelerated creation of money out of thin air by the Federal Reserve, unfunded federal mandates, and the nationalization of banks and other corporations, are examples of the continued buildup of power within the federal government at the expense of the states and the people.
The Tenth is possibly the most important amendment ever written to the Constitution, yet it is nearly never enforced. Federalism, and other safeguards, are built into our lawmaking process to prevent willful encroachment on our constitutional rights. We must restore the balance of liberty in this nation, that is, the balance of power between the states and the federal government. What action can states or the people take? The last time the states asserted nullification of federal laws was 1832, and the tension between the states and the federal government ultimately resulted in the Civil War. Hopefully, history will have taught us something and the issues this nation now faces will be addressed peacefully before those forces become so extreme no other choice is possible but violent conflict It is the duty of all Americans to diligently and jealously guard the U.S. Constitution and all of its guarantees. Voting is not enough. Americans must be informed of how we are being represented, advise our representatives of our will and dismay, and be ready to remove from office those who would tread upon the very foundation of our nation. All Americans should be concerned that the Tenth Amendment is ignored by the federal government, which has been assuming additional powers not granted to it by the Constitution. We must return to our federalist form of government. The time is now to bring needed political pressure on Congress and force it to obey the Constitution. April 2009
JUDICIAL DECISION-MAKING In my view, a good judge is one who possesses judicial temperament, i.e. he or she responds, with circumspection, to the circumstances, aware of his or her personal and philosophical values, and renders a decision by application of relevant legal principles which must necessarily guide his or her analysis. There are many factors that can influence the process of judicial decision-making. To the layperson, judges simply and mechanically apply stable legal principles to a given set of facts. Nothing could be farther from the truth. As Justice Cardozo eloquently pointed out: “There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them – inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs, a sense in [William] James’ phrase of ‘the total push and pressure of the cosmos,’ which, when reasons are nicely balanced, must determine where choice shall fall.” The Nature of the Judicial Process. (1921). Of course, judicial decisions are fundamentally rooted in legal precedent and statutory authority. However, “[g]eneral propositions do not decide concrete cases.” Lochner v. New York (1905), 198 U.S. 45, 76 (Holmes, J., dissent). As Cardozo’s statement underscores, life experiences necessarily shape the manner in which a judge approaches a given case as well as the process by which he or she analyzes information. Regardless of the unique personal values and experiences a judge brings to the bench, I believe she must always take care to maintain her moral compass. A judge must be able to utilize the wisdom gained from her experiences, both personal and professional, in service of justice without tainting the judicial process through an overly personal or subjective approach toward her role. In short, a judge must possess judicial temperament. With this in mind, the bedrock of my personal and professional values comes from my family. While helping my father through a recent illness, I thought about the principles he instilled in me and my four brothers while growing up. My father was a professor at Purdue University in Indianapolis. He frequently gave us mini-lectures on ethics and the value of hard work. “You’re only as good as your word” led the moral compass. “Honesty and integrity will earn you respect.” “If you don’t have respect, you have nothing.” My brothers taught me a lot about life. I quickly learned you should never hit anyone bigger than yourself…Unless you can run faster than they can. Likewise, you cannot let someone push others around just because they are bigger. Surviving life in a large family developed my quest for justice. My father-in-law, Judge Ray Rice, taught me first-hand what the term “Honorable” really means. He was a well-respected lawyer and judge for more than 30 years. He impressed his professional philosophies on me and my husband, Judge Ron Rice. He emphasized it is shortsighted to sacrifice your integrity over a current case or client. Soon after a case is over, the issue is irrelevant and the client is gone, but you are still working with the same opposing counsel. I am truly grateful someone helped me channel my early enthusiasm. I continually appreciate my husband’s personal and professional support and guidance. Judge Wyatt McKay taught me that a prosecutor should always “wear the white hat” and “do the right thing.” While I was an assistant prosecutor, he reinforced that trying a case is not about winning; it is about justice. His philosophy was to always let the criminal process err on the side of the defendant. I determined it would be unfair to take advantage of an opposing counsel who was out of his element in the criminal justice arena. A criminal defendant should not pay for the failings of his attorney. Since being elected to the appellate court bench, I have observed first-hand that judges who legislate from the bench do a great disservice to the judiciary. While judge-made law is an ever-present reality of life, it must be forged with the goal of creating logical consistency and symmetry in the system at large. When a judge simply renders a decision based upon her own personal standards of justice and morality, she not only forsakes established restraints placed upon her discretion but exhibits a fundamental disrespect to her office and the judiciary as a whole. Although the law draws its essence from human experience, this does not imply a judge has the moral or legal authority to engage in outcome determinative analyses premised upon his or her personal conceptions of justice.
CREDIT CARD LITIGATION Many of the cases now appearing on the Municipal Court dockets (and in all likelihood the Common Pleas docket as well) are attributed to the growing number of Americans who are becoming the subjects of burgeoning numbers of credit card collection cases. In most instances these cases are generated from a ballooning credit card debt that can’t be satisfied for various reasons including disability, declining real wages, job displacement and rising health care costs. As a result, a complaint is filed for a balance allegedly due on the credit card account, often times resulting from an unsolicited credit card. Although properly served with a complaint, the defendant does not file an answer and the resulting Civ. R. 55, Motion for Default Judgment, comes before the Court for consideration. In reviewing the sufficiency of the complaint, Civ. R. 8(A) generally provides for “notice pleadings” and states in subsection 8(D) that, “Averments in a pleading to which a responsive pleading is required, …are admitted when not denied in the responsive pleading.” However, Civ. R. 10(D) makes it clear that more than mere notice pleading is required to assert a claim on an account. Stewart v. Forum Health, 2007 WL 4465514, 2007 Ohio 6922; Fletch v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 170 (2008). Rule 10(D) requires that, “When any claim …is founded on an account…, a copy of the account …must be attached to the pleading. (or) …the reason for the omission must be stated in the pleading.” While the Rule does not recite what constitutes an account, the cases generally subscribe to the principle that to adequately plead and prove an account, “an account must show the name of the party charged. It begins with a balance, preferably with zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum. Following the balance, the item or items, dated and identified by number or otherwise, representing charges, or debits, and credits, should appear. Summarization is necessary showing a running or developing balance or an arrangement which permits the calculation of the balance charged to be due.” Asset Acceptance Corp. v. Proctor, 156 Ohio App.3d 60, 63 (2004).
Many of these Plaintiffs appear not as the original creditor but as the second or third assignee of the credit card account. Initially, note that the assignment agreement is not the foundation for the claims against the defendant, but is instead the foundation for the plaintiff being the real party in interest for purposes of bringing the action. Plaintiffs cannot prevail on a claim assigned by a credit card company or bank without proving the existence of a valid agreement assigning the account. Zwick & Zwick v. Suburban Constr. Co., 103 Ohio App. 83, 84 (1956). It is important to note that the granting of Judgment on a Motion is not predetermined by pleadings alone as it remains discretionary with the Court. Civ. R. 55 states in pertinent part that, “…if in order to enable the Court to enter judgment … the court may conduct such hearings or order such references as it deems necessary and proper and shall when applicable accord a right of trial by jury to the parties.” A useful tool in overcoming the proof burden associated with a Motion for Default Judgment (as well as a Motion for Summary Judgment per Civ. R. 56) is the written request for admissions. Unlike Civ. R. 33 (written interrogation) and Civ. R. 34 (requests for production of documents), Civ. R. 36 imposes a virtually self-executing sanction. When a party fails to timely respond to a request for admissions, “the admissions (become) facts of record which the Court must recognize.” Cleveland Trust v. Willis, 20 Ohio St.3d 66, 67 (1985). In closing, just a few brief comments on interest rates and reviving judgments. The statutory interest rate on judgments since January 1, 2009 is 5% simple interest per annum pursuant to ORC § 1343.03. This percentage is reviewed for adjustment annually. For a rate other than the statutory rate of interest to apply, two prerequisites must be met: (1) there must be a written contract between the parties; and (2) the contract must provide a rate of interest with respect to money that becomes due and payable. A statement on an invoice or bill stating such terms as “1.5% over 30” or “18% per year”, to which the other party has not asserted, does not satisfy the requirement of a contract and thus does not meet the requirements of ORC § 1343.03. Bunnell Elec., Inc. v. Ameriwash, 2005 WL 2101563, 2005 Ohio 2502. In an action to revive a judgment, the action must be brought within 10 years, from the time it becomes dormant or an identified disability is removed. During the period the judgment is dormant, interest does not accrue. ORC § 2325.18.
WITH RESPECT TO JUDGE BILL WEAVER AND JUDGE PAUL MITROVICH, I commend and respect you for your years of dedicated service to the judiciary and wish you health and “doing things of interest” in your retirement. February 2009
The Important Role of Precedent in Promoting the Stability of Our Legal System "It is a jolt to the legal system when you overrule a precedent." ~ Chief Justice John Roberts A judge’s duty to follow the law and precedent is so basic and fundamental that it often is not discussed. This article briefly examines a judge’s duty to faithfully apply the laws as determined by the legislative branch of government and to follow the settled precedents of the judicial branch. This duty is both a legal and an ethical obligation. The way in which a judge fulfills this duty has consequences that extend beyond the narrow circumstances of particular cases to impact society as a whole. Our legal system is based upon predictability and the principle that an independent, fair, and competent judiciary will interpret and apply the laws that govern the people. Judge Learned Hand proclaimed that "liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it." When a judge fails to adhere to the rule of law, the public’s confidence in the legitimacy, impartiality, and propriety of the judiciary is diminished. The importance of "settled expectations" (Chief Justice Roberts’ term) in judicial decisions is fundamental to maintaining that public confidence. The American Bar Association describes the role of judges as a duty to "call ‘em as they see ‘em, according to the facts and the law - without regard to which side is popular …, without regard to who is ‘favored,’ without regard for what the spectators want, and without regard to whether the judge agrees with the law." Ohio judges are bound to follow the law under their oath of office, the Ohio Constitution, the Ohio Revised Code, the Supreme Court Rules for the Government of the Judiciary of Ohio, and the Ohio Code of Judicial Conduct. Judicial legitimacy requires judicial compliance with the law and precedent when rendering decisions in the courtroom. As Chief Justice Roberts noted, in rendering decisions, judges "need to be bound down by rules and precedents." A judge must also comply with the appropriate established guidelines and court orders. A refusal to abide, even if for a noble cause, is problematic for a judge and can negatively affect the public’s perception of the judiciary. All judges, whether state or federal, take an oath upon entering office to follow the law. In addition, the Ohio Constitution provides that "[t]he judicial power of the state is vested in a supreme court, courts of appeals, courts of common pleas and divisions thereof, and such other courts inferior to the supreme court as may from time to time be established by law." It also states that the Ohio judiciary "shall … have and exercise such power and jurisdiction, at chambers, or otherwise, as may be directed by law." The Ohio Constitution compels judges to respect the law. In fact, courts have gone so far as to conclude the above provision prevents a trial court from "act[ing] contrary to the validly enacted and constitutionally sound legislation." In such cases, "[t]here is no inherent authority for a trial court to do anything but follow the directive of law enacted by the general assembly." The Ohio Code of Judicial Conduct states in Canon 2 that "[a] Judge Shall Respect And Comply With The Law And Shall Act At All Times In A Manner That Promotes Public Confidence In The Integrity And Impartiality Of The Judiciary." The commentary to the Canon further clarifies its meaning: "[c]omplying with the law imposes on a judge the duty to respect the precedential process of the judicial system. This aspect of our system does not limit a judge’s independent judgment to vary from precedent in those circumstances where a different legal result is justified." Therefore, the Code seeks to require judges’ adherence to the law, but not to sacrifice judicial independence. The Code is not designed to put so much fear in judges that they feel prevented from acting at all. Yet, the Supreme Court of Ohio has found the canons so important and necessary that it has declared that all canons but Canon 4 are mandatory for Ohio judges. Not only do judges who act outside of the law while writing decisions face possible disciplinary action, they also face reversal by higher courts. Because it is a duty of all judges to follow the law, a higher court must reverse a case upon reviewing a decision made by a judge who disregarded the law or decided a case contrary to a valid, constitutional law. Otherwise, the higher court itself would be violating its duty to abide by the law. While reversal might not be a direct punishment to a judge, repeated reversals can serve as a blow to a judge’s ego and/or reputation. Generally, decisions that are upheld on appeal must have not flagrantly violated the law. Thus, judges can take pride in seeing their decisions upheld by higher courts. Threat of reversal can therefore serve as an effective measure to encourage judges to follow the law. Judges should also be bound to follow the law because of the effect their failure to do so has on the community at large. One legal scholar argues that: [i]n general, the virtues and vices of having judges follow what they believe to be the law are well known. If judges follow the law, rather than doing in each case what seems to them best, many difficulties are minimized. Decisions are more predictable, offering more notice to potential litigants, permitting planning, deterring litigation, and promoting stability. If the applicable law was established by a legislature or by many judges over time, following the law limits the power of individual judges, promoting the values of decision-making by consensus. Finally, if judges hold views aberrant from or unacceptable to the community, constraining judges limits the implementation of unacceptable values. Thus, judges who follow the law help create a society more likely to have confidence in the judiciary. The commentary to Canon 2 states that "[p]ublic confidence in the judiciary is eroded by irresponsible or improper conduct by judges." In fact, Canon 2’s requirement that judges follow the law and act in ways to promote confidence in the judiciary is so important that "evidence of public opinion polls is not required to establish a finding that a judge has acted in a manner that diminishes public confidence in the judiciary." J. Clifford Wallace, the then Senior Judge of the United States Court of Appeals for the Ninth Circuit, noted that "[i]f a country’s people are continually exposed to unjust judicial outcomes resulting from political, financial, or other illegitimate influences, they will not expect to be treated fairly when bringing their complaints to the judicial system." He further commented that "[w]hen the public perceives that either government or those individuals or groups who are favored by the government are receiving special treatment from the judiciary, the government and judiciary lose authority." A judiciary that fails to follow the law results in a branch that seems non-authoritative and that will not have the support of the people. Judges who abide by the law also create predictability in society. A judge who is fair and unbiased generally renders decisions with predictable results that allow people to plan their lives accordingly. Judges who do not abide by the law and follow precedent lead society to question why it should bother to follow the law at all. An independent judiciary also facilitates the passage of legislation because interest groups have increased faith in the endurance of legislation they support when the judiciary is not, as a whole, influenced by changes in power in the government. Judges who follow the law and precedent create economic benefits for society. A judge who adheres to the law crafts predictable opinions with predictable results. If prospective litigants can know ahead of time what the likely outcome of their case will be, they will be more likely to settle out of court, avoiding the costs of trial; or, if the law is particularly certain, perhaps the prospective parties will not even file suit. Lower court judges who follow the law will save society more money by the resulting decrease in appeals filed. If litigants know that the result achieved was fair and was in accordance with the law and precedent, they will have little motive to file an appeal. Such an appeal would waste both parties’ time and money so long as the higher court judges also follow their oath. Fewer trials and fewer cases will lead to more resources for the courts to utilize in ways that are more beneficial to society. This will also result in more timely results for those cases remaining in court and perhaps fewer cost-related settlements. The longer a trial or proceeding drags out, the more expenses a party will have; expenses that might encourage a party to settle when he or she might not otherwise consider it. As one legal commentator points out that "the increased expense of trials delayed by backlogs may pressure parties to accept unjust settlements by decreasing the gain of winning and increasing the burden of losing." Therefore, Judges also should strive to follow the law and precedent to save taxpayers and the state valuable economic resources. It is clear that judges have both a statutory and ethical obligation to follow the law and precedent. Judges should abide by precedent because doing so benefits society and decreases the costs to litigants, the courts, and taxpayers. Judges who follow the law increase public confidence in the judiciary and serve as examples to society as to how society should behave. One of the basic principles of our constitutional system is that "ours is a government of laws, not men." The strength of our laws, however, depends on the integrity of the judges who interpret and apply them. It is the court’s adherence to law and precedent that provides for stability and continuity in the functioning of our government despite the periodic changes in executive leadership. Judges who flagrantly choose to abuse or ignore precedent threaten that stability and continuity and disgrace the noble profession they represent.
January 2009 Greetings and salutations for the New Year. This is my first article for Lake Legal Views, and I thank the Lake County Bar Association for allowing me to have the month of January, which previously was allocated to Judge Mitrovich. I just returned from the luncheon given by the bar association honoring both Judge Mitrovich and Judge Weaver for their "graduation" from the bench. I was able to practice in front of both of them as a young, energetic lawyer fresh out of law school. They were both patient, kind, knowledgeable, and immensely fair. I have come to appreciate their discipline and skill since arriving in the Court of Appeals and working on the "other side" of the bench. First, it is not as easy as I thought it would be when I was a young sole practitioner. I could not understand why the judge did not understand my client’s position, no matter how many times I objected. Now I do and I humbly apologize for being overly zealous. I was treated with understanding and patience. They both will be sorely missed. That being said, I was amazed at the huge crowd of attorneys who assembled from the Lake County Bar Association. As I was mingling in the crowd, the conversation turned to the economy, the people who are being laid off from work, and the multiple homes in foreclosure. Many people, working folks, who have always paid their bills, have gotten behind on their mortgages, credit cards, and car payments. Erin Burnett on CNBC recently summarized that one in five American homeowners are living in a house that is worth less than the amount owed on the mortgage. Corporate default is two times that of the great depression. According to a December 14, 2008 article in The Economic Times, every ten seconds someone is losing their job. In case you have not noticed, it is getting bad out there. Many lawyers told me that their clients are finding it difficult to hire or retain them and then pay them for their services. Many insurance companies and corporate litigants are slow to pay. Clients are speaking to attorneys’ staff and support personnel about their personal financial difficulties. Secretaries are commenting on how many clients are asking for help with consumer collections. Many clients are receiving phone calls from collection agencies or banks that are becoming more aggressive in their collections. It was amazing to me how many law offices are receiving calls from potential clients who are in financial difficulty and can pay some money, but not enough to justify fighting a big bank or collection firm. There are far too few attorneys handling consumer side collections, and those that do are overwhelmed. In many cases, if the debt is under $5,000 it would cost the consumer more in attorney fees to defend than to succumb. It also does not help that over the past eight years, bankruptcy, consumer statutes, and IRS rules have been adjusted to favor large banks and credit card companies. Pursuant to Internal Revenue Code Section 6050 P, if a creditor reduces in whole or in part a mortgage or a credit card debt, if less than $600.00, a 1099 is issued as income to the consumer and the creditor can "write it off" as a deduction. This basically increases a client’s taxable income for the upcoming year, regardless of the validity of the amount allegedly owed to the creditor. This leaves the consumer to fight with the IRS, another costly proceeding which consumers can ill afford in this economy. So what can lawyers do, given limited resources and tight budgets within their practice? Pro bono representation is always a consideration. However, lawyers must be wary of the case that becomes so complicated and time consuming that it taxes the resources of a small firm. For solo and small practitioners, taking on a bank in an area where the lawyer has little expertise is just not feasible. However, most lawyers do have great negotiation skills for mediations, and also have a knowledge of available resources such as mediation programs, fellow lawyers or consumer groups that may be willing to take some of these cases. In some instances, it may only take a letter from an attorney or a call to a colleague or agency to assist a person in need of services or to negotiate a debt. A free half hour legal consult may be sufficient to assist a person in getting on the right track. Recently, I assisted a person who spoke English as a second language in composing a letter he wanted to send to his landlord. He did not have the writing skills to do so. I did not give him any legal advice. He just wanted someone to translate and place his thoughts in writing. We, as lawyers, have advanced writing and communication skills and, in many instances, this may be all the assistance you can give. Many times a referral and honest assessment of the next step will improve the person’s situation immensely. If all the people in the room at the luncheon gave a little bit of time over the phone or in person to the random, desperate people contacting their offices, we could lessen the impact of these rough times on others and on ourselves, and pay back a bit for the good fortune we have received. Sometimes pro bono representation is simply volunteerism. Thank you for giving me the privilege to write for the Lake Legal Views. |
Judge Colleen O'Toole,
11th District Court of Appeals
Judge Michael Cicconetti, Painesville Municipal Court
Mary
Jane Trapp, Presiding & Administrative Judge, 
Judge
Richard Collins, Lake County Common Pleas Court
Judge
Ted Klammer, Lake County Probate Court
Judge Eugene A. Lucci, Lake County Common Pleas Court
