The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Double Trouble

Posted by judicialethicsforum on Friday, February, 6, 2009

Lawyers can get judges in trouble and vice versa as recent synchronized lawyer and judicial discipline cases from Indiana and Ohio illustrate.


The Indiana Commission on Judicial Qualifications publicly admonished Judge Daniel Banina for entertaining and granting an ex parte petition for temporary custody without prior notice to the custodial parent or an opportunity for her to be heard.  On the same day, the Indiana Supreme Court publicly reprimanded attorney Jeffrey Price, the attorney who filed the petition with Judge Banina.  The petition had not alleged an emergency or certified the petitioner’s efforts to give notice to the mother or reasons why notice should not be required.  Public Admonition of Banina (Ind. Comm’n on Judicial Qualifications Jan. 20, 2009); In the Matter of Price (Ind. Sup. Ct. Jan. 20, 2009).  The Judicial Qualifications Commission stated: 

In the Commission’s view, there is perhaps no greater injustice than to strip a parent of custodial rights without an opportunity to be heard and in the absence of an emergency.  The Commission calls upon all judges and lawyers in Indiana to respect this fundamental notion, one the Commission and its counter-part, the Supreme Court Disciplinary Commission, attempted to convey now for several years, only to repeatedly address the same violation.

Also in January, the Ohio Supreme Court publicly reprimanded Judge John Stuard and assistant prosecutor Christopher Becker for ex parte collaboration on a sentencing order.  Disciplinary Counsel v. Stuard (Ohio Sup. Ct. Jan. 29, 2009).


After a jury found a defendant guilty of two counts of aggravated murder and recommended a sentence of death, Judge Stuard asked Becker to prepare the court’s opinion sentencing Roberts to death, gave Becker his notes on the aggravating and mitigating factors, reviewed the 17-page draft opinion written by Becker and left on his desk, and relayed corrections to Becker. 


During the sentencing hearing, defense counsel noticed that one of the prosecutors seemed to be silently “reading along” as Judge Stuard read his opinion from the bench, turning pages of a document in unison.  The defense objected.  In the sidebar discussion, Judge Stuard acknowledged that he had given his notes to the prosecution and instructed counsel to draft the sentencing order.  On appeal, the Ohio Supreme Court held that the judge committed prejudicial error by delegating responsibility for the content and analysis of his sentencing opinion.


By: Cindy Gray, Center for Judicial Ethics, American Judicature Society


One Response to “Double Trouble”

  1. judicialethicsforum said

    With respect to the delegation issue in Stuard, see also Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. Rev. 759, 803–11 (1995) (documenting numerous instances of improper delegation to the prosecution in capital cases). KS

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