The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Torture and Humiliation in Ohio

Posted by kswisher on Monday, September, 14, 2009

Associated Press and other national media have seized on a story of an Ohio judge who ordered that a defendant’s mouth be duct-taped shut.  I have been avoiding blogging about the incident for several reasons, the most relevant of which is that such scandalous stories happen (too) often on the bench (and elsewhere), often within the lowest of court tiers within the state system.  (Think New York, for example, with its rather large number of discipline cases involving town and village court justices.)  In short, if we were to blog about every outlying wart of a judge, it probably would bog down the blog in negativity, and as negativity often hopes, little rational discussion would result.  (For a more rational discussion of outlier judges, see for example Geoffrey P. Miller, Bad Judges, 83 Tex. L. Rev. 431 (2004).)  This story, however, has caused me to lose too much sleep over the last two weeks to suppress it.  A disclaimer is in order, then: If you would like to avoid negativity today, or if you value your sleep more than I do, do not read on. 

The lead-in facts are simple, particularly because they are repeated in hundreds of criminal courtrooms every day.  A man charged with shoplifting, perhaps among other charges, is rotting in jail.  While there, he naturally wonders where is his court-appointed attorney, what is she doing, why is she not visiting him, and when (if ever) will he be released pending trial (or plea bargain).  Indeed, from the time that the defendant is jailed to the time of the preliminary hearing, his court-appointed attorney spends only “three minutes” with him.  One in his shoes would understandably be irate with the criminal justice system, if not with the attorney as well.  (I remember hearing something once or twice in the greatest-country-on-earth lines that we here are presumed innocent and, not surprisingly in such a country, we have an opportunity for bail.)  For our purposes, suffice it to say that a typical defendant, like Harry Brown (the part criminal defendant, part victim of our story), would be supremely irritated by the time his preliminary hearing arrived and no one had tried to secure his release (or at a minimum, explain why release would not be forthcoming).  At his next appearance before the court, he would almost surely voice his frustration with this court-appointed arrangement.  He would expect — perhaps be entitled? — to appear before a judge who is courteous and listens to his views.  See, e.g., Ohio Code of Judicial Conduct, R. 2.8(B) (2009) (“A judge shall be patient, dignified, and courteous to litigants, . . . and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control.”).  Indeed, the “duty to hear all proceedings with patience and courtesy is not inconsistent with the duty imposed in Rule 2.5 to dispose promptly of the business of the court.”  Id. cmt. 1; see also id. R. 2.6 (ensuring each party the right to be heard according to law).   

With that wind-up, you must listen for yourself to the audio recording of the proceeding, which is short and bitter.  It can be found here (click on the Audio tab after the page opens).  You will hear that (1) the judge attempted no less-humiliating alternatives than duct-tape (save one verbal warning); (2) the defendant, while frustrated, was not disrespectful or profane; (3) the defendant offered to sit back with the other in-custody defendants, but (4) the judge demanded that duct-tape be forced over the defendant’s mouth.  You will not hear (1) the judge concerned with whether duct-tape can suffocate a person (it can), (2) whether forcefully removing duct-tape, which the judge ordered a few minutes later, will inflict pain (it does), or (3) any clear indication that this judge respects human beings.  In closing, you will hear the judge add injury to injury by giving the defendant thirty days for contempt and then cracking a joke about the matter.  All of this is particularly shocking because the judge has a long history of formal legal training — he is not a nonlawyer lower-court justice who occasionally shoots from the hip and renders “rough justice.”  (The judge’s bio can be found here.)

Of course, it almost goes without saying that you must judge this judge for yourself — these are just my opinions from listening to the audio recording.  But remember my earlier point about negativity and lack of rational discussion — if your opinion does differ from mine, this is one time in which your opinion, while welcome, will not sway mine.  In fact, I am teaching torts this semester, and we cover that great tort of outrage (aka intentional infliction of emotional distress).  This cruel ritual reminds me like no other of the Restatement’s famous formulation of that tort:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘‘Outrageous!’’

Although the judge is donned with judicial immunity and consequently cannot face judgment for the tort of outrage (or battery), trustfully the Ohio disciplinary regime is listening.  To close this vent, if we never again hear of a judge duct-taping another litigant, it will be too soon.     

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