Disciplinary Counsel v. Stuard

901 N.E.2d 788 (2009)

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Nature of the Case

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Facts

Stuard (D) has served as a judge since 1991. Becker (D) was admitted to the Ohio bar in 1990. Stuard (D) presided over the capital murder trial of Donna Roberts. Becker (D) and Bailey represented the state, and J. Gerald Ingram and John Juhasz represented the defendant. A jury found Roberts guilty of two counts of aggravated murder, among other crimes, and recommended a sentence of death. Stuard (D) engaged in ex parte communications four times with Becker (D) about the sentencing opinion in Roberts's case. Stuard (D) asked Becker (D) to prepare the court's opinion sentencing Roberts to death. Judge Stuard (D) gave Becker (D) two pages of notes on the aggravating circumstances and mitigating factors that he had weighed in deciding that the death sentence was appropriate. The notes did not relate the history and facts of the Roberts case beyond the discussion of aggravating circumstances and mitigating factors. Judge Stuard (D) instructed Becker (D) to refer to the sentencing opinion in the companion case of Nathaniel Jackson, Roberts's codefendant. Becker (D) agreed to write the opinion. Judge Stuard (D) reviewed the draft, which set forth five sections recounting the case history, facts, aggravating circumstances, mitigating factors, and conclusions of law. He then noted one or more corrections to be made. Judge Stuard (D) asked Becker (D) later that day to make the corrections. Becker (D) made the corrections and also incorporated Bailey's editorial suggestions, made after Bailey's review of the draft opinion. Judge Stuard (D) received the corrected version of what became his opinion sentencing Roberts to death. Judge Stuard (D) failed to include defense counsel in the process. Ingram and Juhasz did not learn until the sentencing hearing that the prosecution had assisted in preparing the court's opinion. Judge Stuard (D) acknowledged that he had given his notes to the prosecution and instructed counsel to draft the sentencing order. Ingram then challenged the process by which the court had prepared the order sentencing Roberts to death as an impermissible collaboration and ex parte communication. Judge Stuard (D) concedes that his ex parte communications engaged in without the knowledge or consent of opposing counsel, violated Canon 2 (requiring a judge to 'respect and comply with the law and * * * act at all times in a manner that promotes public confidence in the integrity of the judiciary') and 3(B)(7) (providing that, except in situations not relevant here, '[a] judge shall not initiate, receive, permit, or consider communications [as to substantive matters or issues on the merits] made to the judge outside the presence of the parties or their representatives concerning a pending or impending proceeding * * *'). Becker (D) was found in violation of DR 1-102(A)(5) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice) and 7-110(B) prohibiting ex parte communication on the merits of a cause with a judge before whom the proceeding is pending.