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Legal Ethics

Judge Appoints PD, Has Him Arrested

Posted Aug 20, 2007 9:38 AM CST
By Martha Neil

Updated: Criminal law blogs are abuzz over the contempt case of Brian Jones, an assistant public defender in Portage County, Ohio.

Seems that Jones was appointed Wednesday by Portage County Municipal Court Judge John Plough to represent Jordan Scott, 20, on a charge of misdemeanor assault. The trial was then scheduled for 11 a.m. Thursday, but the judge moved it back—by two-and-a-half hours—to give Jones more time to prepare, reports the Record-Courier.

With the trial about to begin, Jones said he couldn't proceed because he wasn't ready, in accord with what a source said is a written policy for the office not to take cases to trial on such short notice. The judge then held him in contempt, the newspaper writes, "and ordered a Portage County Sheriff's deputy to remove Jones from his courtroom in front of his client, spectators and courthouse employees."

The assistant PD was held for five hours before being released on bond, according to the Cleveland Plain Dealer.

Dennis Lager, chief public defender, said this is the second time Plough has ordered an assistant public defender arrested, and said the judge had also threatened what the Plain Dealer describes as "similar action" twice in 2006, the newspaper reports. Each time, the issue was that the judge expected an assistant PD to try a case within a day or two of being assigned.

Criminal defense bar associations have rallied to Jones' defense. Meanwhile, Plough was unapologetic Thursday, saying that "The public defender's office is not going to impede justice in Portage County," the Record-Courier reports. The judge is a controversial former Portage County prosecutor who won an upset victory in a contested November 2005 judicial election after being rated "not recommended" by the Portage County Bar Association, the newspaper writes.

Since this post was written, there has been another hearing in the contempt case and Brian Jones was fined by Plough (the fine was suspended pending appeal). For more details, see the latest ABAJournal.com post.

(Hat tip: CrimLaw.)

(Updated at 7:02 p.m., central time, on Aug. 27, 2007.)

Comments

1.

WooWooWoo
Aug 24, 2007 6:48 AM CST

Unless there is a lot more to the story than is written, this is frightening-and a perfect example of a judge far too impressed with his own (in)ability.  Not only should he be removed from the bench, but this calls into question his fitness to be licensed at all.

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2.

Linda Dominguez
Aug 24, 2007 6:48 AM CST

It seems this judge has lost any “judicial temperment” he ever had (assuming he had any to begin with given the “not recommended” finding of the local bar).  A public defender needs time to review a case and to demand instantaneous representation is just not reasonable given the normal workload of public defenders.  I hope this judge mellows his attitude and seeks to have a good relationship with the Public Defenders Office rather than the confrontational one he presently has.

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3.

Dan Kuhn
Aug 24, 2007 7:04 AM CST

I’m a law student, and I agree that unless there is far more to this story, the judge is being ridiculous.

Newsflash to the judge:  You all get paid no matter if you hear the case that day or not.  If the PD just got the case and isn’t ready, take some stuff that IS ready… I’m sure there’s plenty of it.

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4.

David F. Segadelli
Aug 24, 2007 7:09 AM CST

Apparently the judge’s desires to speed up the cogs of (in)justice overwhelm any concern about promoting justice.  Its truly astonishing that an individual like this is allowed to sit on the bench.

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5.

Chris Pesapane
Aug 24, 2007 7:37 AM CST

I’m also a law student and I just finished an internship with a defense attorney.  Two days in most cases is only enough time to meet with the client and start thinking of a defense.  Hiring an outside investigator to interview witnesses was a crucial part of any defense I assisted with.  That could take a week or more to complete.  Not to mention there are many other measures to take in preparing a defense for assault.  To force a defendant to accept counsel from an ill prepared attorney is not the direction we want to go.  I dont know what it takes to remove a judge from the bench but it would seem to be the correct course of action in this case.  This judge seems more concerned with clearing his docket than in any promotion of justice.

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6.

Kevin Cromer, Esq.
Aug 24, 2007 7:41 AM CST

I applaud the Judge for his efforts to ensure each defendant receives a speedy trial but wonder if this constitutional protection was his true motivation.  While the case before the court was a misd. thus may not - in the eyes of the judge - warrant severe preparation, to the defendant the fine/limited incarceration possibly imposed by such charge(s) is a life changing event and should mandate proper preparation by counsel.  I wonder what the judges response would have been should the defendant gone to trial and then claimed ineffective counsel based on a lack of preparation.  There seems to be more history behind this relationship between the PDO and Bench.

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7.

H.P.
Aug 24, 2007 7:53 AM CST

The judge’s actions make sense when viewed through the lens of the prevailing attitude in our criminal justice system: that all defendants are guilty, that trial is a quaint formality born of noblesse oblige, and that any attempt to investigate or otherwise prepare a case is merely delaying the inevitable result of conviction.

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8.

Adam
Aug 24, 2007 7:57 AM CST

Perhaps this Judge is being irrational and is behaving inappropriately, but then again…

This is a misdemeanor assault case, not a felony murder trial.  Perhaps this was a very simple case that could/should have been prepared in a few hours (e.g., perhaps the record was a few pages, etc.). 

I think everyone is jumping on this Judge a little too quickly.  Perhaps this attorney was not preparing his case?  Perhaps he was being lazy?

Then again, perhaps this Judge is just a jerk.  I don’t know, but I don’t think it is fair to jump on the Judge without knowing the whole story.

For what it’s worth…

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9.

PJM
Aug 24, 2007 8:32 AM CST

Adam,  regardless of whether or not the case was “very simple” as you put it,  the attorney obviously did not feel “ready” to move forward.  This judge abused his discretion and since he’s done this before, he should be taken off the bench asap.

Yes, the defendant is entitled to a “speedy trial,” but if the defendant’s attorney was not ready, the defendant has more to lose- as there’s another fundamental right called “right to counsel”- I think competent, prepared counsel is more important than a “super” speedy trial.  Think about the reasons for “Speedy” trial versus the reasons for comepetent counsel.

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10.

Steven Braun
Aug 24, 2007 9:21 AM CST

This is a good example of the perils of electing judges.  My guess is the judge is posturing for his supporters, throwing them some red meat by being tough on criminals and those who defend criminals.

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11.

Eileen
Aug 24, 2007 9:21 AM CST

Mandy just sent this to me.  Stuff like this is why I get so frustrated with people - prosecutors, judges.  The system is so messed up sometimes.

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12.

TMD
Aug 24, 2007 9:31 AM CST

It is easy to focus on the negative (as justified as it may seem here), but we would be remiss in not noting the positive here:  Mr. Jones seems to be a fine example of a member of the bar.  This seems to be a report of zealous client representation and a refusal to represent when one is not competent to do so.  Even to the point of being jailed for it.  How many others would have just noted objection for the record and gone on—letting the client pay the consequences?

My hat is off to Mr. Jones.

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13.

Mark
Aug 24, 2007 9:33 AM CST

In 25 years of legal practice, I’ve seen it before. An overzealous prosecutor becomes a judge and continues to prosecute, rather than being fair and impartial, as judges are duty bound to be. Hats off to the public defender who was willing to risk jail on behalf of justice for his client, a client who is not paying him anything.

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14.

Victor Rivera
Aug 24, 2007 9:34 AM CST

This just sickens me and the others in our office. Judge Plough is the reason why there needs to be more accountability against renegade judges. The power of the bench has simply gone to his head and he should be removed from the bench.

Regardless of the fact that this was a misdemeanor, if the case was assigned to the PD on Wednesday and trial was set for Thursday, there is no way in hell that the APD could be ready in that short of a time period. Believe it or not, there are ethical rules that lawyers must follow and one of them is being prepared for trial. Since the client was being charged with assault, there may be witnesses to interview that may be able to defend the client. There also may be video evidence that may need to be requested and reviewed. There may be a criminal history that needs to be pulled on the other party to determine if they have a history of violence, possibly leading to a self-defense defense. The list goes on and on. So to say that just because it was a misdemeanor case and that the APD should have been ready is ludicrous. I would love to see the expression of those defending this judge if they are ever put in the same situation. Would you not want proper defense? Or should the APD just assume you are guilty, just like most courts and jurors do. Innocent to proven guilty…WHATEVER.

This is the reason why I came to the criminal defense field after being a police officer…because too many people are getting screwed by the system. I say two thumbs up to the APD for not going forward with the trial. Again, regardless if we do not have the entire story, getting a case on one day and having to be prepared for trial the next day is just WRONG!

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15.

robert desjardins
Aug 24, 2007 10:09 AM CST

Sure we have an overcrowded and burdened system, but that is no reason that the quest for cheerleader type statistics should trump the bill of rights. Robeitis is an infectious disease that attacks the judiciary. A reasonable antidote would be a career path for the bench that differs from the path to the district attorney’s office.

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16.

Karl Rissland
Aug 24, 2007 10:36 AM CST

I am an attorney that does practice before Judge John Plough.  I am also a member of the Ohio Association of Criminal Defense Lawyers who are feverishly working to prepare this case for this afternoon’s hearing.  As such, I am intimately aware of all of the relevant facts of this case. 

Mr. Jones, age 27, is a new attorney, having recently graduated from the University of Akron School of Law and admitted to the Ohio Bar on May 14, 2007. 

The public can look at the docket of the case at the following link: http://67.39.103.41/courtsearch.htm

The matter starts with a defendant named Jordan Scott who had been arrested and jailed on a charge of assault.  The offense carries a maximum sentence of $1000 fine and 180 days in jail.  Scott was also in custody on an unrelated felony charge.  On August 15, 2007, Plough appointed the County Public Defender’s Office to represent Scott.  Trial for Scott was set for the following morning, August 16 at 11 AM.  Like most PD offices, they are short staff, overworked and underpaid, each attorney handling an average of 10 to 15 cases per day.  Mr. Jones never met or had a chance to interview Mr. Scott until the morning of August 16.  He had no opportunity to read the police reports, the witness statements, or investigate possible defenses.  Perhaps most importantly, he did not have an opportunity to subpoena potential defense witnesses.  Judge Plough pushed the trial back to 1:30 PM to give Jones time to prepare for trial. 

An attorney has an ethical obligation to provide a defense for his client.  Forcing an attorney to go to trial who has no knowledge of the case, has not met with the client, has had no opportunity to investigate should offend the sensibilities of even the most ardent hardcore pro-prosecution individual in America today.  Forcing an attorney to go to trial under such circumstances undermines the confidence that we are entitled to have in our justice system.

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17.

Isaac Laquedem
Aug 24, 2007 10:39 AM CST

Would Judge Plough agree that the prosecutor should also be selected one day before trial?

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18.

Mars
Aug 24, 2007 10:57 AM CST

It has been my experience, limited though it may be, that the judge and the prosecutor often work in tandem to achieve a conviction.  For some reason justice in our country=conviction.  This is a reflection of our society.  Everyone seems ready to lambast this judge, but i wonder how many with negative opinions said or did nothing as the Supreme court whittled away at the few protections for the accused in the justice system, from racial profiling to miranda to the right to counsel.  We watched apathetically as we climbed onto this slippery slope and this is just a stop on the way.  I wonder if the plane of justice is so steeply slanted at this point that we cannot stop the slide.  Think about that the next time you decide an attack against the simple protections we have seems “reasonable.”

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19.

Marsden Bigby
Aug 24, 2007 10:58 AM CST

Just wanted to make it clear who held the above opinions.

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20.

kjg
Aug 24, 2007 11:27 AM CST

It will be particularly interesting as this will likely pit not just office procedures but attorney and judicial ethics cannons against one another.  In a way, it’s good that it happened to gain some clarity on chronic, long-standing issues of untenable caseloads and prep-time.  I hope the young defender understands he took the right and principled approach to the issue and holds his head high, for acting in the profession’s interests.  I am not a defender, nor partial to defenders over prosecutors.  I am partial to the profession and disgusted with the erosion of legal *service.*

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21.

Khyle Eaton
Aug 24, 2007 11:28 AM CST

I have to say, I love the South Carolina way of “electing” judges. They have to go through a very in depth process, including testing to be sure the person understands the law, back ground checks and reference checks, they cannot have held political office within the last year, etc. and then a committee looks at them and decides if they are fit, and then the best 3 out of those that are fit. Only then can they become a judge. Not to say this is flawless, but it certainly cuts down on judges who are just not fit. (If you’re wondering, I just graduated from law school and the bar results are not in yet, so I haven’t actually practiced in front of anyone yet.)

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22.

rkj
Aug 24, 2007 11:54 AM CST

I do transactional work, not trials.  I find that most parties to a real estate transaction can’t be ready to perform on a single day’s notice.  Realtors want time to select houses and make appointments to show them. Lenders need time to review a loan application. Attorneys need time to do a title search and send to the seller’s attorney.  Seller attorneys need time to arrange payoffs.  Lenders need time to review the attorney’s documents and wire the funds. 

If people involved in a relatively standard business transaction aren’t expected to be ready within 24 hours of taking on a matter, how can a criminal defense attorney be expected to do so?

I get information from my clients.  I then have to verify it. Sometimes there are things they don’t know, like an unreleased mortgage from the prior owner.  Why would this not be true of midsemeanor defendants?

This judge sounds like someone that the criminal justice system was designed to protect defendants from. I hope it ultimately works out that way.

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23.

Elisabeth Contrades
Aug 24, 2007 11:55 AM CST

In Hawaii, we have a commission on judicial conduct that can investigate judges and recommend their removal.  Does Ohio have anything similar?  Having worked in the Court system, I’m usually the first to defend judges against criticism, but this story just turns my stomach.  I completely agree with the previous poster who said that not only should this man be removed from the bench, he probably shouldn’t be licensed to practice law.

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24.

Neil Verbrugge
Aug 24, 2007 1:24 PM CST

I think someone should look into or investigate the possibility of naming Judge Plough as a defendant in a civil suit for wrongful imprisonment or violation of civil rights of the PD.  Although Judges do have official immunity, there must be a limit to it.  In particular, a judge’s inherent powers must be limited to those necessary to further justice, not to derail justice.

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25.

Thomas W. Spinrad
Aug 24, 2007 2:08 PM CST

For Mr. Jones to have gone ahead with the trial would certainly have been grounds for inquiry into his professional ethics since he could not have represented the defendants interests at the trial.

I would seem that the constitutional provisions for representation by an attorney would require that the judge determine that the defendant was represented by an attorney prior to scheduling the trial.  The the extent that Miranda still exists the terms of the warning that “if you cannot afford an attorney one will be appointed for you” constitutes a burden on the trial court to provide the constitutional protections required by MIranda.

Given experience with local judges in upstate New York I have to ask, does Judge Plough carry a firearm under his robes.  It seems that he is carrying out a vendetta against defense attorneys.  Mr. Jones was showing proper deference to the court when he complied with the code of professional conduct.  Judge Plough violated the code of professional conduct and abused his authority in issuing the contempt order.  Judicial immunity varies from jurisdiction to jurisdiction and may very well protect Judge Plough from any civil damages caused by his actions.  I do not know if there is any question of the application of the Civil Rights Law in this case, but Judge Plough’s actions may be State action under the Civil Rights Law and may constitute a Federal Crime (1982?).

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26.

Neil Verbrugge
Aug 24, 2007 3:11 PM CST

The judicial immunity defense might be a high hurdle, but these are fairly abusive facts.

Maybe the answer is a civil action for prospective injunctive relief prohibiting the Judge from jailing public defenders under these circumstances, and charging the attorneys’ fees of such case to the Judge.  In a case called Pulliam v. Allen, 466 U.S. 522 (1984), the Supreme Court, Justice Blackmun, held that: (1) judicial immunity is not a bar to prospective injunctive relief under 42 U.S.C. 1983 against judicial officer acting in her judicial capacity, and (2) judicial immunity is no bar to award of attorney fees under section 1988.

Also, I wonder if Ohio has some system for appealing or reviewing the contempt rulings of judges, particularly when they involve imprisonment based on a Judge’s abusive practices.

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27.

lr
Aug 24, 2007 5:19 PM CST

It is grossly unfortunate that a judge who is so passionate about not allowing justice to be impeded has himself undermined the very process and principle he’s advocating.
Given the circumstances, as reported, surrounding his lack of endorsement by the Bar Association during his bid to the Bench, could he carrying a chip on his shoulder? Could there be an issue of a lack of emotional intelligence that is beclouding his judgment? Could it be that there are some insecurities triggering his need to show himself tough even at the risk of abusing his power?

As an arbitrator who has an obligation to abide by a strict code of fairness and impartiality and who sees those on the Bench as having similar obligations, I fail to see the fairness for either the defendant or his counsel in this matter as described.

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28.

Joseph Peter Myers
Aug 24, 2007 5:27 PM CST

Schedule the hearing for removal of Judge Plough.  But be generous, give him and his attorney at least one full day to prepare.  (After all, this certainly doesn’t seem like a difficult case—at least from the point of view of the Judicial Performance Commission).

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29.

Jeff
Aug 24, 2007 7:49 PM CST

I’m absolutely appalled.  Appalled not of the Judge’s actions or even the apparent inability of the PD to prepare for trial, but of everyone who are so quick to immediately jump to throwing a Judge from the bench.  Folks, this “story” was little more than 5 paragraphs but yet once again that seems to be more than enough information to absolutely chastise a fellow officer of the Court.  Chastise?  Many of you have gone so far as to suggest the filing of criminal charges against this Judge for a number of ridiculous reasons.

What is truly ironic is that this alleged incident is based on the apparent inability of the PD to go to trial because he did not have enough information to do so.  That fact has not stopped the countless dozens that have tried, convicted and sentenced this Judge with far less information.  Look closely at this “story” and you will find that much of this information comes from blogs…one paragraph even starts with the word “seems.”

As members of the bar, you owe it to yourself as well as your overpriced law school education to reserve judgment until you have all the facts.  Perhaps the Judge was out of line, perhaps he wasn’t, but how many Judges have you honestly met that aside from an occasionally large ego, power-trip or bad ruling would truly go this far?  Wouldn’t you rather get all the facts, like this PD and his trial, before you condemn this Judge?

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30.

Marian
Aug 24, 2007 9:08 PM CST

Paper the SOB.  Paper him every time he is assigned.  Regardless of how small this jurisdication is if you keep him from ever hearing a criminal case this whole matter becomes moot.

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31.

Mary Kay High
Aug 25, 2007 12:29 PM CST

This Judge is not concerned with justice - the right to counsel embodies the right tot effective represntation, which at a minimum requires the court appointed attorney have time to prepare a defense -  this requires investigation and preparation.  Not something that can be accomplished in a matter of hours.  This Judge should be reported to the State judicial conduct commission or all pds should start filing affidavits of prejudice.  MK

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32.

Frederick Carmody
Aug 25, 2007 6:49 PM CST

This “judge” should be impeached, removed from office, and disbarred.  He is in clear and deliberate disregard of the most basic principles of ethical justice.

If this judge were at all competent, he would recognize t;hat forcing a defendant to trial with an unprepared attorney is grounds for reversal of any conviction due to ineffective assistance of counsel.  Unfortunately, he probably feels that if he can jail the defendant until he is reversed on appeal, he wins anyway.  Such a person is not impartial; he is a prosecutor in a black robe - the worst perversion of justice.

The clear abuse of authority shown here makes it clear that this person is unfit to serve as a judge at all.

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33.

arturo hernandez
Aug 26, 2007 12:00 AM CST

this is deja vu all over again for me.  reminds me of a judge in san jose early in my career that threathened me with contempt for delay of trial and a fine of $500 per hour because our pro bono client did not have street clothes to go to trial.  i had to strip down to my fruit of the loom briefs and socks in open court to give my suit to the defendant!  of course no fines were levied!!!  according to the media it was the first this type of incident happened in court i.e lawyer takes the shirt off his back for his client.
i hope i never have to be before this judge lets take him off the bench

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34.

Michael Caves
Aug 26, 2007 12:29 PM CST

24 hours to prep for a criminal trial!? How can anyone claim that 24 hours is enough time to prepare a defense in a criminal case, no matter how ‘simple’ the case is!? I agree with others that more information is needed, but based on the limited facts in this story, this judge must be stopped. As a prosecutor, I could not even prosecute a case under these circumstances, not only because of my duty to ‘do justice’ beyond a mere conviction, but also because these facts make a successful appeal quite likely. Maybe this was politically motivated, or maybe someone just needs a refresher course in crim pro/con law.

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35.

Mike
Aug 27, 2007 8:19 AM CST

This is grossly injust, expecting an APD to prepare for a trial on one day’s notice.  If the system in Ohio is anything like what I face in Virginia, I’m rarely ever notified that I’ve been appointed to represent an accused in under a week’s time.

Our circuit court judge is almost this bad - he typically will assign a court-appointed attorney to represent an accused felon, and then schedule the case for trial about two weeks later.  Given that the commonwealth has twenty-one days to answer a request for discovery, this usually means that I must request a continuance, or go to trial unprepared.  I don’t know this for a fact, but I have long suspected that the judge does this to force the defense into requesting a continuance, making it much harder to successfully maintain a “speedy trial” complaint.

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36.

Ileana Haedo
Aug 27, 2007 6:27 PM CST

This type of behavior, if this is true, should not be tolerated in our legal community.  His actions tarnish all our reputations, not only his.

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