O'Reilly For Judge Blog

4-0 Victory in Ohio Elections Commission 10/19/06

2006-10-20T05:41:00.000-07:00

The Ohio Elections Commission ruled 4-0 on October 19 that our opponent's charges against our television advertising was not supported by probable cause, and the charges were dismissed. The hearing took about 40 minutes in a Columbus hearing room. Our opponent had asked for an injunction forcing the ad off the air and referral to the Hamilton County Prosecutor for court action against us.

According to our notes and recollection while sitting next to the podium, the lawyer presenting the opponent's case asserted in his argument to the Commission that there is no pornography being sold in Hamilton County. He further asserted that it was false to use the words "alleged rape victim" as we did in our ad. He asserted that a rape "accuser" is not a rape "victim" until and unless the crime of rape is proven and a rape conviction is obtained. We will post excerpts from the transcript as soon as it is obtained, as it will make fascinating reading for voters in Hamilton County.

POST ENDORSEMENT

2006-10-20T05:39:00.000-07:00

We are very pleased that the Cincinnati Post endorsed our candidacy on October 19. The editorial is available through cincypost.com. Together with the Enquirer and Cincinnati Bar Association endorsements, we are grateful for the support.

Endorsed By The Enquirer

2006-10-16T05:21:00.000-07:00

The lead editorial in the Oct. 15 Sunday Enquirer (Forum page 2) endorsed our candidacy for the Court of Appeals. It is gratifying to see their thoughtful analysis of the competing candidates. We can hope that more contested elections in future Hamilton County races will bring out such careful analyses of the competing candidates. Sunday evening meetings at Southern Baptist Church and at the Finneytown Civic Association demonstrated that many voters had read the Enquirer's views and were supportive of our efforts.

HOORAY FOR TEACHERS!

2006-10-08T04:38:00.000-07:00

This week's endorsement by the Cincinnati Federation of Teachers was especially gratifying. They know the courts; they teach our young people; they work tirelessly for the good of our community. I am proud that four of the six siblings in my family are in education, and that each of them worked hard to get there, earning two Ph.Ds, an MD and a JD. Because we are teachers, we know that we must "stand and deliver", as the Irish expression says; we must be prepared, must be good listeners, must be good communicators. Of all the awards and prizes, my most cherished is the Waterford glass bowl presented to me by the College of Law for 25 years of teaching and service. The listening, teaching and communicating skills will be fully involved in the work of the court of appeals; I will read carefully the briefs filed, ask questions of the advocates, express opinions with due care for the case precedents, constitutional provisions and statutes, and reach out to the community as a lecturer to schools and civic groups. Thank you, teachers, for your warm welcome and for your support!

Causing Ripples to Grow into a Wave

2006-10-05T06:59:00.000-07:00

The Enquirer's Oct. 4 story at B1, "Judge Candidates Turn to TV", accurately recaps the current state of the judiciary here: "Elections for judges generally bring yawns and cause few ripples because the Hamilton County judiciary is so overwhelmingly controlled by Republicans." The six months of our very extensive door to door visits, 1-to-1 conversation which have yielded so much visible support throughout the County, have grown from a "ripple" to a wave of support. As we have gone to so many parades, community festivals, community council meetings, civic and club meetings, it has been heartening to feel the wave of public sentiment for change in our courts.

We have been heartened by so many attorneys sharing their desire for us to bring our very qualified perspective to the appeals court. But out there beyond the lawyers, beyond the business managers and professional people who have been supporting us, are the residents of so many neighborhoods who have expressed their desire for change. Thank you, Cleves and Colerain, Terrace Park and Deer Park, we hear you. A good teacher is a good listener, and their voices will be heard in the Court of Appeals.

Contributor Influence Alleged By Journalists

2006-10-01T08:26:00.000-07:00

The New York Times for October 1 (and the Cincinnati Enquirer via reprint on Oct. 1) reported that Ohio Supreme Court decisions appear to be influenced by campaign contributions, and that in some cases the influence may affect outcomes. One Justice "voted for his contributors 91 percent of the time, the highest rate of any justice on the court."

This is not unsurprising to students of the Ohio judiciary. As an invited presenter on the symposium celebrating the 200th anniversary of the Ohio Supreme Court, I had observed the same problems. The Times correctly noted: "(N)owhere is the battle for judicial seats more ferocious than in Ohio."

It will be interesting to see the reaction to this developing story in the weeks to come.

Judicial Advertising

2006-09-29T11:46:00.000-07:00

The Sept. 29 e-newsletter "Whistleblower" states that a local judicial candidate is spending his wife's money on his campaign.

Sadly there are only two of us who are campaigning, since the other 7 are getting their positions free of campaign cost, without having any opposition.

If indeed the wife of the only other local judicial candidate is doing so, that is his (and her) constitutional right.

I am pleased to have more than 200 donors to my campaign and they have been terrific supporters. In addition to these funds, I have loaned money to my campaign from my retirement savings, in order to balance the opponent's $104,000 television purchase. But for the record, my wife has not been asked and has not made donations to the campaign. She works hard as a teacher of disabled children and adults and has not been a financial donor to my campaign.

I SUPPORT MOYER ON BUSINESS COURT DOCKETS

2006-09-21T12:59:00.000-07:00

In his Sept. 14 speech on the State of the Judiciary in Ohio, Chief Justice Moyer referenced the new study of court dockets that would deal with business litigation. The study is to be co-chaired by Cincinnati Bar President Patrick Fischer. Moyer said in part:

“Advocates of a commercial litigation docket emphasize that most kinds of business litigation is different from other litigation in the number of documents and witnesses required, the extent of the motion practice, discovery disputes, other applications to the court, and the complexity of the legal issues. Often such cases benefit from advanced case management techniques, the availability of dispute resolution and technology. We in Ohio are living with a dramatically changed economy. We should be able to say to the entities of a new economy that the court system in this state is prepared to facilitate the resolution of legal disputes presented in complicated business and technology cases.”

I am well prepared for the new approach. During my 24 years at Procter & Gamble I saw from the inside the complexities of these commercial cases. Both through arbitration and skillful litigation, P&G was able to favorably resolve the great majority of its commercial disputes. The lessons I learned there will be very helpful in assessing the appeals that arise in complex civil cases. Unlike criminal law prosecutors, those of us who worked with commercial and civil law disputes understand the sophisticated ways in which modern complex litigation must be resolved.

I applaud the initiatives by Chief Justice Moyer and I am well prepared to deal with the appeals from such a valuable improvement in our Common Pleas system.

SALUTING VETERANS & THEIR SACRIFICES

2006-09-17T18:19:00.000-07:00

The joys of meeting almost 3,000 voters along the campaign trail have been a great learning for me. Many are interesting people with memorable stories.

But one Sept. 17 dialogue in Blue Ash was a remarkable testimony to the bravery of my fellow veterans. I make a special effort to talk to men and women who, like me, served the nation in our armed forces and made a sacrifice that others chose not to provide. It’s the veterans who fought for this country that always appreciate our effort to give voters truly competitive elections and a full choice for the voters.

This senior veteran still walked tall, as he left the Blue Ash air show. His cap read “Army Air Corps”, so I compared stories of my father’s role in the Air Corps. My hobby has been research and writing in the history of Pacific War operations, 1941-45, and so it was terrific to learn his piece of that vast story. He spoke of the wonderful view he had of giant bomber formations, as seen from the ball turret of the B-29 bomber on the 3,000 mile flights from Saipan to Tokyo and other Japanese targets. There were no emergency landing zones, no fighters with enough gas tanks to accompany the bombers, no second chance if the engines failed over the depths of the Pacific. He had been in all of the night bombing raids, including the incendiary bombing that swept Tokyo with horrific fires. Yet many of his colleagues did not return, and he knew the risks that he undertook with every one of those long flights.

As with all of my fellow veterans I have met along the campaign trail, I wished him well, and expressed my gratitude for the bravery and sacrifice he had shown so long ago. His story is a terrific reminder of why our democracy means so much. The epigram for veterans is a somber reminder: “All gave some, some gave all.”

GOOD NEWS ON GLENWAY SAFE CITY EFFORTS

2006-09-14T15:03:00.000-07:00

Law enforcement agencies can't reduce crime without a collective effort of the entire community. The announcement on Sept. 14th of a Glenway Avenue "Safe City" program was a welcome moment in Cincinnati's recent civic history. I attended the public session, held in Covedale, to understand the impact that the Target Stores' $250,000 grant for anti-crime efforts would have on the crime in the city's West Side neighborhoods.

The overall program will take several years and perhaps a million dollars to implement, but it will help reduce criminal activity in hot spots along Glenway. This effort will combine technology of internet-linked cameras with citizen volunteers to make the corridor safer for residents, shoppers and pedestrians. Volunteers will make the key decisions and will solicit the additional funding, and police will redeploy to aid the efforts.

Sitting among the residents and listening to their concerns, as I had been listening on the doorsteps of west side neighbors, it was heartening to hear the sense of hope, that crime might be reduced through the new initiative. Real crime reduction is a vital goal of the community's leaders, and the quarter million dollar gift from Target would make a unique contribution. I told the Target manager who led the team that this was a much appreciated contribution that will make a difference.

In the past months I have spent several days along the Glenway corridor speaking with residents, so I appreciate their frustration and fears of crime. There will be more hope for change in the community as the camera-based preventive operations are implemented.

PLEASE READ CITY BEAT'S 9/13 COVERAGE

2006-09-14T14:59:00.000-07:00

A very well balanced review of this electoral race is found in Ben Kauffman's article in this week's City Beat, http://citybeat.com/current/news.shtml

We appreciate the kind words for each candidate, building on Ben's decades of experience as a courts-beat reporter. This truly is a rare contest in Hamilton County!

Judicial "Activism" & Appellate Judges

2006-09-11T07:43:00.000-07:00

In our opponent’s website he boldly proclaims, “Judicial activism represents everything that could be wrong with a court system.” But he fails to tell us what level of activism he applies when, for example, he researches and prepares a detailed memorandum opinion in support of a decision that interprets an Ohio civil statute on summary judgment. Is an appeals court decision finding our opponent has erred on the law, see e.g. Stand Energy v Cinergy Services, 144 Ohio App.3d 410 (1st Dist. 2001), a product of judicial activism, or is it an appropriate quality control check on errors?

To learn what he means, we examined the “judicial activism” study that was recently done at the University of Kentucky law school. As the New York Times’ editorial on Sept. 11, 2006 summarized the extensive research, conservative Justices Scalia and Thomas “were far more willing than the liberals to strike down federal laws — clearly an activist stance, since they were substituting their own judgment for that of the people’s elected representatives in Congress. Justice Thomas voted to overturn federal laws in 34 cases and Justice Scalia in 31, compared with just 15 for Justice Stephen Breyer. … Justices Thomas and Scalia, who are often held out as models of nonactivism, voted to strike down laws in more of these cases than Justice Breyer and Justice Ruth Bader Ginsburg, the court’s two Clinton appointees. By the … measure (of) overturning the court’s own precedents … the conservatives were far more activist. Justice Thomas voted to overturn precedent 23 times and Justice Scalia 19 times, while the court’s four liberals did so in 10 cases or fewer.” (N.Y. Times editorial, Sept. 11, 2006, refers to a forthcoming paper by Prof. Lori Ringhand, "The Rehnquist Court: A By the Numbers Retrospective" (University of Pennsylvania Journal of Constitutional Law, 2007).

The Kentucky study is too detailed to summarize here, but it will be useful to have our opponent tell his website visitors what “judicial activism” is, as he sees it, and perhaps align himself with Justices Stephen Breyer and Ruth Bader Ginsburg in their (conservative?) view of the work of our legislative branch and of case precedents. I’ll remind him of the first line of the Sept. 11 editorial: “It is wrong to turn judicial activism into a partisan talking point, when the numbers show a very different story.”

"SECRET DEALS & OLD-FASHIONED CRONYISM"?

2006-09-10T07:37:00.000-07:00

In a September 9 editorial, “Breaking Down the Clubhouse”, the New York Times observed: “Judicial selection in New York remains the last bastion of the clubhouse. Judges ascend to the bench as a result of loyal work for the party or friendship with a political power broker. … This backroom process is fueled by political quid pro quos. …. The best permanent solution, however, would be a merit-based appointment system that puts qualifications ahead of political connections. That would require amending the state Constitution, and that is exactly what should be done. The current system of choosing judges through secret deals and old-fashioned cronyism corrodes the integrity of the legal system and diminishes the courts.”

It’s an interesting parallel to our county, though I favor having a robust electoral debate, so that the candidate’s real ability to handle the appellate court’s duty of rigorous analysis of legal issues can be explained to the public. Cronyism and deals like those elsewhere would certainly be unacceptable in the selection of appeals court judges in Ohio, if that were ever to occur here.

WARM RECEPTION IN THE WEST

2006-09-10T05:03:00.000-07:00

The warm reception we have received in western Cincinnati has been especially gratifying this week. Walking around the Harvest Home Festival with seven volunteers on Saturday, we met many of the voters who will decide the Nov. 7 appeals court race. They were receptive to the need for choice in our judicial elections.

At the Thursday parade, we chose to hand out bottles of water to the warm and appreciative crowd along North Bend Road. About 400 stickers and 300-plus bottles of water had passed from our booth before our opponent’s truck drove by in the twilight. Conversing with voters, giving kids a smile and a sticker, and meeting new friends was Thursday night’s joy.

On Saturday, signs went up on Glenway, Werk, River, Anderson Ferry, and other major routes throughout the western parts of the county, reflecting the terrific responses we have received there during our May-September canvassing of voters. This is a great effort by all of us that will reflect well in the November results!

JUDGE RUPERT DOAN: A GREAT ROLE MODEL

2006-09-10T04:54:00.000-07:00

The College of Law has lost a loyal alumnus and the Ohio Courts have lost an icon of judicial leadership. The passing of First District Court of Appeals Presiding Judge Rupert A. Doan at age 72 is a tremendous loss.

I enjoyed our talks at law alumni events, most recently in May, with a far-reaching discussion of trends in the court’s civil cases and the challenges of appeals on complex civil litigation. It was a pleasant conversation as we sat together at our UC alumni luncheon. Judge Doan was a loyal member of the UC Law class of 1958 and had a great sense of humor. He made the tough judgment calls on cases when he followed the law, even though they could be controversial. His devotion to the law and his willingness to hire and help young people from UC made us proud of him. He is a terrific role model for future appellate judges.

On that happy occasion in May, I did not bring up with Judge Doan the criticism of him, by name, by Patrick Dinkelacker, in a Feb. 4th talk to the Cincinnati Neighborhood Summit held at Xavier. Our opponent used the occasion to name Judges Doan and Painter and to strongly criticize them for their decision overturning on constitutional grounds Dinkelacker’s decision that had imposed an excessively stringent bond, Smith v Leis, 165 Ohio App.3d 581 (Feb. 3, 2006). The opinion that drew this angry, podium-hitting response by Dinkelacker against Doan and Painter, had held that Dinkelacker had made a serious error in handling a defense request for setting bond for an accused person; the opinion cited Ohio’s constitutional requirement against excessive bail and found that Dinkelacker’s error disregarded controlling decisions of higher courts. Dinkelacker was reversed by the appeals court decision.

Judge Doan’s reputation for fairness, good humor and intellect will be missed on the Court of Appeals.

WHAT SKILLS DO VOTERS WANT?

2006-08-26T08:13:00.000-07:00

The complexity of modern laws and the problems that civil courts face in interpreting these laws is a major challenge for judges. Legislators, aided by lobbyists who actually draft most Ohio civil legislation, pass laws with ambiguous terms that can be vexing to the judge hearing a trial.

One local lawyer described the propensity of certain Common Pleas Court judges who were former criminal prosecutors to dismiss complex civil cases, rather than to delve into the nuances and details of the civil law issues. That leaves the tough legal research and analysis to be done in the First District Court of Appeals. "Using the appeals court as their law clerk", this lawyer contended, showed the unwillingness of some judges to dig into complex civil cases.

If that is the way that some trial judges view the appeals court, shouldn't we have judges on the appeals court who are very aware of how to interpret complex statutes and how they are best interpreted in light of the Ohio and U.S. Constitution? If a trial judge was not inclined to deep research, statutory evaluation and reflection, is the appellate court the right place for the public to send that judge as a promotion?

Why should this matter to you? The vast majority of the almost 2,000 county residents with whom I have spoken, at their doorsteps and at community events, are not going to be criminal defendants. They are going to have accidents, or fraud complaints against vendors, or probate or child support or matrimonial issues that sometimes pose complex civil issues. For these many residents, the level of an appeals court judge's ability to analyze and interpret laws will matter the most. Has the candidate worked hard to understand, to analyze and explain tough issues? Is the candidate not only impartial but fully competent to understand civil law and apply it?

Two unrelated topics of recent public controversy have been genetic engineering and federal government demands placed upon local governments. Sometimes these topics spill over into civil court cases. In the past week, my report for the National Association of State Departments of Agriculture on agricultural biotech legal issues was published on the website of a prestigious national study organization, see http://pewagbiotech.org/events/1214/WorkshopReport.pdf and my textbook, "Federal Preemption of State & Local Powers" went to the printing plant for the American Bar Association Press. While I don't expect to have a lot of Hamilton County cases on either topic, they illustrate that I have the ability to dig into complex civil issues and to make sense of complexities, conflicts and case precedents. These are the tools that make for a successful appeals court judge -- on the cases most likely to impact on the lives of the majority of our county's residents.

What does the voter care about? I am learning each day, voter by voter, that what I have to offer is a good fit.

THE PROSECUTOR SEEKS YOUR FUNDS

2006-08-25T13:16:00.000-07:00

Just days after spending $98,000 on television ads on a local television station, our opponent has announced another fundraiser at the University Club. Our county prosecutor has written his letters to attorneys touting our opponent as “a conservative judge” in a “pivotal election; one that will help set the course of our appellate court for years to come.” We expect to see the comfortable flow of dominant party funds leading to yet another blanketing of the airways with the garish yellow banner of the opponent. It is NOT "reality TV". Out at the doorstep of the residents of the county, as we are close to 1,200 homes visited, we sense a discontent with the way things are run in our courthouse.

What seems odd about the August 24 fundraising solicitation is that the source of the call for funds to advertise this particular “conservative judge” is the current County Prosecutor, who ventures into a race in which the winner will be deciding perhaps a thousand appeals from the Prosecutor’s Office during the six-year term. Would it be better ethically to detach the judge-to-be from the perceived allegiance to such a dominant constituency? Does it create the appearance that our opponent will respond more favorably to his former colleagues, once in office overseeing their work? The current Prosecutor has his own issues from his past statewide role, which we won’t discuss here. But he cites our opponent’s years as a prosecutor and ties his support closely to the opponent’s efforts to win his first contested election in 27 years of courthouse employment.

The fundraising letter alarms the recipients of the missive with the concern that mentions of God might be removed from the Pledge of Allegiance and that a state might be prevented from “enforcing its sex offender laws”. Of course, the ungodly outcome of a case in the Ninth Circuit federal appeals court is not impacted by whomever is elected by Hamilton County voters, so the issue of the federal pledge isn’t going to be decided here. The enforcing of sex offender laws will continue, absent some dramatic change in the binding constitutional interpretations by the U.S. and Ohio Supreme Courts. To “set the course of our appellate court for years to come”, don’t lock your future into the “same old same old” ways of our courthouse. Please feel free to contribute to the candidates of your choice, but look with caution on claims that appear in such fundraising missives.

WOULD YOU HIRE THIS OPPONENT FOR THIS JOB?

2006-08-15T19:57:00.000-07:00

At last, our opponent has put out a debatable issue to discuss! It has been lonely on the campaign trail, more than 1,100 homes from Harrison to Terrace Park and Sharonville to Saylor Park, waiting for the appearance of our opponent among the voters. The self-confident “insider candidate” has been absent from the county’s doorsteps; that was perhaps predictable. He has never faced an election opponent in his 27 years within the courthouse. This is his first time to offer an issue on which to have a debate. Let’s see what he claims, and test his assertions the way we would if we voters were to be “hiring” a person for the job description of “appeals court judge”.

He announced recently on his website that: “(T)he experience that will best prepare someone for the court of appeals is the experience of being in the trial court.” Here we disagree. Bill Rehnquist, Earl Warren, Antonin Scalia, and Thomas Moyer are among the many fine appellate judges who came without trial court time on their resume. Trial judge jobs like his (he currently holds his seat unopposed from the past election through 2010) are fine for former prosecutors, but they are not a source of great insights into the constitutional and statutory issues that make a difference in 21st century Ohio law. My years of experience analyzing and writing about how the facts of cases interact with the Constitution, and of working with complex statutes, fit much better with the reality of appeals court decision-making.

His trial court and prosecutor experiences and their reversals on appeal will be discussed in depth later in the campaign. For now, we can observe that his claim of superior preparation is flawed. The haste with which objections arise in the trial court and the summary way in which a prosecutor or former prosecutor would view them is a viewpoint of black/white contrasts, “objection/overruled” in an immediate sense. His website touts 20 years as a basketball referee. Appeals judges have no split-second whistles to blow. Many of our trial court’s competent judges are well balanced and responsive, but the trial judge or the basketball referee aren’t in the same game as the appeals court jurist. The quick whistle is no help in the different thinking patterns of appeals court judges, on review of tough issues that are presented on appeal. A million dollar malpractice claim; a toxic exposures dispute; a complex international child custody case; an internet fraud assertion – would you as defendant want a quick whistle from a referee, or a reflective decision that fits the facts within the whole of the law?

If you were an employer “hiring” a person to fill the appeals court “job description”, you would probably not hire this trial judge. The transition to writing exceptionally sound appellate decisions isn’t easy. Bad writing leads to worse decisions, and to reversal by the Ohio Supreme Court. Readiness for rational and reflective writing does not flow from the quick verbal exchanges that mark the rapid pace of daily trials. The pace is very different in the appeals court, much like my life of legal scholarship and dialogue. All appellate decisions are written; the briefs are written; the oral arguments take 15 minutes for each of two sides. The judges analyze the issues over several drafts of written opinions and then issue a thoughtful evaluation disposing of the appeal.

That’s the task. As an employer, “hiring” with your vote on Nov. 7, you’d look for a very different set of skills, including in-depth knowledge of the law and constitutional provisions that appeals courts interpret.

What appeals courts see all the time are complicated statutory issues involving interpretations of what the law or the Constitution means. Calm, reflective and thoughtful assessment of how the issues should be fit within Supreme Court precedent is essential. The appeals court has no jury and zero theatrics, and none of the basketball-like pace to which my opponent may be accustomed. Sophistication of analysis in distilling the right outcome really matters, and experience in interpreting and analyzing complicated statutes will certainly matter. So is the basketball referee and trial court applicant the one you would “hire” for this distinctly different role? No.

He continues on his website: “I have heard almost every argument that I will hear on the court of appeals.” Probate, Juvenile, many types of administrative appeal cases aren’t included in this “almost every” assertion. It’s not clear how many complex civil cases he has carried through to a written decision sustained on appeal. He goes on: “The true test of any judge is the ability to hear these cases and decide them on the merits.” True for trial judges; he can continue doing this through 2010 when his current term expires.

But the test of an appeals judge is to know the law and to act as “quality control” on the errors made by trial courts or by administrative bodies. Factual issues are generally resolved by the trial level jury or judge; then an appeals judge considers how the law and the constitution fit with those facts. The deeper thought needed for appeals cases requires a jurist to have strong reasoning skills, real legal expertise -- and a wider perspective on all our laws, beyond the four walls of one courthouse.

He concludes: “On the court of appeals, I will continue to decide cases and resolve the very issues that I have been hearing throughout my judicial career.” Based on his 27 years inside the courthouse, he perceives that the same issues will continue to come out the same way. I will speak for fairness and for positive attention to the Constitution and the laws. Perhaps “same old same old” is not attractive to voters who have grown tired of the way these issues have been handled in our courthouse “throughout his judicial career”.

Can we do better as we “hire” an appeals court judge? Yes. The issues that will come before me on appeal will get close attention and careful evaluation. That’s because the decisions are more impactful as precedents, more important as protections of rights, and more sensitive to how appeals decisions shape our “rule of law”. Loyal and consistent service to this county’s courthouse seems to be rewarded with uncontested elections. Why not change? You have a choice to make November 7th in a contested election. It’s time for a change.

Walking & Listening: Grass Roots Crime Fighting

2006-08-13T18:08:00.000-07:00

Empowerment of the community to deal with the problems posed by drugs and guns takes many forms. In communities that have been most affected by gun violence, this weekend marked a few visible signs of the strong desire for change. On Saturday I met some terrific people at the Avondale Community Celebration and Health Fair, and spoke with State Sen. Eric Kearney about his desire to reduce youth gun violence, and with former Mayor Dwight Tillery about his efforts to close the gap in health care between different segments of the city’s population. We will be talking further on these subjects.

Later on Saturday I walked with marchers in the “Bond Hill Sit Out”, as the community and business leaders of Bond Hill walked with signs along the busy Reading Road corridor. It was a peaceful but powerful equivalent of a “sit in”, now in full view of the good, the bad and the ugly elements of the community. The message that these brave people were sending to drug and gun users was a simple and direct one: Enough!! The good people of Bond Hill are fed up with drug sellers and armed felons threatening the peace and stability of their neighborhood. This conversation continued my earlier visits to the Bond Hill Community Council and to the National Night Out Against Crime at the Bond Hill Recreation Center. I applaud the Bond Hill leaders for their efforts! It was reminiscent of the strong police appreciation events at the College Hill Forum and the support shown for police crime reports at the Clifton Town Meeting.

I have listened and heard the similar message all over our county; we have now knocked on about 1,070 doors in voting precincts throughout the City and the county to meet and listen to voters. The level of frustration with our inability to deter the pervasive drug-related crimes is leading to a virtual abandonment of some areas by the long time residents, with many more burglar-deterrent doors in evidence and, sadly, more abandoned houses in west side neighborhoods. But fleeing is not the best answer to crime: involvement of the community and empowerment of the community leaders with resources like radios, training and support, etc. are the best ways to impact criminal behavior. Citizens on Patrol and other programs call us to action at the local and neighborhood levels. I hope to have more to say about these positive trends of community involvement, as the campaign will progress.

O'CONNOR WARNS JUDGES & PROSECUTORS

2006-08-08T18:54:00.000-07:00

How close should trial judges get to prosecutors? If a judge was once a prosecutor, how closely can he be in contact with his friends and former colleagues on issues that the law assigns to be decided by the judge? Will a judge’s close connection to the prosecutor produce an error that takes away the death penalty and remands the murder case for re-sentencing? We now have an answer.

A very conservative Republican Justice of the Ohio Supreme Court, Maureen O’Connor, wrote a major warning for Ohio’s trial judges in her a unanimous decision that appears in the August 7th Ohio Bar Report (State v Roberts, 110 Ohio St.3d at 94). In a death penalty case the law requires the trial judge to write the sentencing opinion, and does not assign that vital task to the prosecutor’s office. So when a Trumbull County death penalty case was being concluded and the judge read in open court the sentencing opinion, it seemed odd that the same words being read by the judge were simultaneously being read by the prosecutor from a similar piece of paper. The defense objected, and the judge admitted that the prosecutor had been closely involved with drafting the judge’s sentencing opinion.

“Vital ethical constraints” on judges prevent a sitting trial judge from such off the record interactions, since ethics rules say the judge shall not “initiate, receive, permit or consider communications made to the judge outside the presence of the parties” concerning the pending case. The close drafting and redrafting that passed from judge to prosecutor to judge was “wholly inconsistent” with judicial ethics, an error so serious that it can “neither be ignored nor found to be harmless error.” The judge committed a “grievous violation of the statutory deliberative process” and the death sentence was remanded “because of the critical constitutional interests and notions of justice that are implicated by the prosecutor’s participation in drafting the sentencing opinion.” (110 Ohio St. 3d at 95).

I will commit to follow the Canons of Judicial Ethics carefully if elected. I have not been a prosecutor, though I saw many Army criminal prosecutions during my military service. The Hamilton County voters can be sure that the tight bond of judge and prosecutor that led to reversal of the sentence in the Roberts decision should not be tolerated anywhere in Ohio, as we follow the unanimous Supreme Court directive.

National Night Out Against Crime: Terrific!!!

2006-08-02T18:53:00.000-07:00

The conversations at the “National Night Out” against crime and violence were especially helpful this year. Cincinnati Police officers and neighborhood leaders from Bond Hill, Roselawn and other communities engaged with residents to share a casual and pleasant discussion of the community’s anti-crime efforts. Recreation Commission staff welcomed all of us and provided the ice cream and soft drinks to make this a celebration. Other neighborhoods and cities in the county had fireworks, demonstrations of police horses and other special events.

I recognize from my experience of having been a police officer that it is sometimes difficult to break through perceptions and stereotypes: the shield we wore sometimes was perceived as a barrier by some, that hurt our ability to communicate on a person to person level. National Night Out is a terrific program for breaking down the communications barriers (and at the Bond Hill event, showed off the dancing skills of some of District 4’s officers as well!). Let’s salute the tradition and encourage more of the justice system members to come out and participate next August!

Dog Days of Summer

2006-07-16T08:07:00.000-07:00

It’s a dog’s life. Those of us who love our dogs (please see the website photos page at oreillyforjudge.org) know that they will loyally and loudly defend us from trespassers. In Anderson Township this week, two Jack Russell Terriers responded to our ringing of the bell by barking and then jumping up, very high and sustained jumps alternating one and then the other, to bark at us through the glass window of the front door. It could have been a commercial for Eukenuba!

We have probably met 500 or so dogs among the 850 homes we have visited, and there’s no correlation between size of the dog and the amount of energy they can expend to defend their “turf”. Some owners let the dogs sniff us and we are always approved; others are carried to the door by owners as a means of quieting their barks.

Our most delightful moment of the campaign occurred on July 14 at the Moeller Festival. I went over to admire a new Jack Russell Terrier puppy that a family was carrying in arms, into the festival. I told the family that we had just recently brought home a similar puppy from a Lexington horse farm where our daughter is the equine veterinarian. To my surprise and joy, they told me that this was our puppy’s sister; the farm owner’s wife attended nursing school with this woman, and she was very happy with her puppy. We will arrange a playdate soon for the two sister puppies. It could not have happened so well if we had planned it – and along with the coincidence and the playdates, we won a few votes from the dog lovers. To judge a candidate’s temperament and reasonableness, ask how he or she has handled a new puppy – the skills set of patience, reading for solid advice, and attention to details are all great attributes needed by the prospective judge.

Reducing Armed Gangs' Destructive Power

2006-07-11T19:53:00.000-07:00

While researching my new book on violent street gangs, I came upon a startling statistic. At present rates of gun violence, the Cincinnati Childrens’ Hospital expects that last year’s rate of 28 child gunshot wound surgeries will double in 2006. A community with about 50 children hit by bullets in a year has a deadly problem. This rate of gunshot wounds poses to our community a serious risk to health and safety; that need should be addressed by the elected leadership of our county and city.

A possible response to the gang violence problem is the adoption of a program similar to the very effective program that Boston used, a prosecution program focusing on stopping those felons who use or hold guns illegally. The Boston program dramatically lowered gun use among younger persons in that city. To get this dramatic reduction here would require concentrated efforts of local social service agencies, volunteer community organizations, informal block groups, police, FBI, BATF, courts, United States Attorney, etc. Joint efforts here against illegal gun traders or criminals with guns will make a lot of sense.

Federal prosecutions for firearm use in Boston have reportedly taken off the streets a large number of persons who posed a threat to their own neighbors and to the general public. My college roommate is now a federal district judge in Boston, and before that was a longtime state trial judge, so I have some familiarity with the operational burdens of shifting the serious gun-user prosecutions into the more stringent federal system of prosecution and imprisonment. Creative approaches are beneficial to the overall efficiency of handling these cases, without denying due process rights to applicants.

Gun violence needs to be reduced, and 50 gunshot wounds in our children in 2006 is far too many. Boston’s model of city, regional, and federal joint efforts is worth considering.

I am pleased to be invited to participate in the discussion group on gang violence that has been convened in our area by law enforcement professionals and community leaders. I hope that my experience in law enforcement and criminal law teaching will be of some benefit as we seek to collectively reduce these serious threats.

Why Are Appeals Courts Different?

2006-07-07T14:01:00.000-07:00

This guest column appeared in the Community Press newspaper group in the week of July 3d:

Judge Judy need not apply. No episodes of Law & Order feature this courtroom. No spectator ever stood up and exclaimed, “No -- I killed him!” It’s too boring to watch and usually gets ignored. What is it?

The Court of Appeals here in Hamilton County rarely draws attention and its quiet, scholarly reflection is little understood. Child custody, will disputes, accident cases, malpractice, harassment, big and small criminal cases, come to the quiet appeals courtroom with one lawyer on either side arguing that the Constitution, laws or rules of court were not followed at the trial stage of the case. If legal errors occurred, a new trial can be ordered.

I’ve been called the “endangered species” because our county’s ballot has had zero contested appeals court races for the past 8 years. Only one other outsider has competed with the selected party designees in the 37 countywide judicial ballots, 2000-2006. To run as an outsider would cost hundreds of thousands of dollars. Many voters have remarked that they never get a choice for judges. We love choices of chili parlors, radio stations and college basketball loyalties, so a choice for countywide judge positions would be appreciated.

Unlike trial judges’ very demanding schedule of criminal cases, the appeals court studies and reflects about how the facts of each trial fit under our constitution and under our increasingly complex laws. The judge’s scholarship and ideas matter. Having written 32 books and more than 150 articles on law, I understand the power of decisive words. Appeals court opinions teach the lower courts how statutes and rules should be interpreted, and I have been teaching UC law students for 25 years. Appeals courts listen to arguments why a decision should be reversed. That’s what I have been teaching hundreds of law students over many years. Appeals courts can’t ignore decisions of the higher courts; I was pleased when the U.S. Supreme Court called me an “expert” in 2000.

My view of fairness in courts is formed from the experiences of a lifetime working with civil justice issues, with veterans’ rights, child disability, consumer fraud and complex government regulations and laws. The majority of appeals in this Court of Appeals are not criminal cases; see oreillyforjudge.org. But for criminal appeals, my law enforcement background and my teaching and writing in criminal law and police procedure provide useful and balanced perspectives.

In 1970 I was drafted out of my state police job to join the U.S. Army. An officer told us we were fighting to give Vietnamese the right to free elections. It’s hot, sweaty and tiring to campaign, and it’s expensive to run advertising for countywide election, but the alternative is to leave you with only one choice on the ballot. I can’t promise courtroom drama, but I am going to offer you fairness, competence, and scholarly attention to each case. On Nov. 7, it’s your choice.

Guantanamo, Hamilton County & The Rule of Law

2006-07-01T15:40:00.000-07:00

John Paul Stevens enlisted in the United States Navy in 1942, became an intelligence officer, won the Bronze Star, and went on to law school after the War was over. There is no doubt about his awareness of the importance of secrecy and intelligence during wartime. Those memories probably weighed on him at the end of June as he took on a very tough assignment within the U.S. Supreme Court. Stevens was the senior Justice eligible to write the defining decision on Presidential powers, Hamdan v Rumsfeld, and you can read his carefully reasoned analysis of the complex constitutional issues at www.supremecourtus.gov/opinions/05pdf/05-184.pdf

Ohio rules prevent judicial candidates from discussing matters likely to come before the Ohio courts, but Guantanamo detentions are a wholly federal matter, and the Hamdan case is a classic constitutional “separation of powers” issue which fits well within my past areas of teaching. I encourage you to read at least the first 8 pages of the opinion, which summarize the Court’s finding. The message coming from this old veteran intelligence officer about the vital role of our Rule of Law even during wartime is an important lesson for us all. We live in a constitutional democracy with three branches of government that serve as a counter-weight to the power of any one part of our government. The President’s famous remark that “I am the Decider” was his opinion; in Hamdan, the third branch of government did not agree with him, at least as to the detainees’ trial system: “…the Executive is bound to comply with the rule of law that prevails in this jurisdiction.” (Decision at p. 72)

The Supreme Court in Hamdan rejected the presidential view that he could exert some inherent power to create special rules. The Court said that Congress could do so; it could amend the Uniform Code of Military Justice to provide a specific remedy. It could set up a process that met our Rule of Law obligations under the Geneva Convention, Common Article 3. But the “Decider” is Congress, the reviewer is the Supreme Court, and the Rule of Law overrides the preferences of any President.

I have had the privilege to talk with the Cincinnati native responsible for running the Guantanamo military commissions, the retired Army JAG General John Altenberg, a graduate of Elder and UC Law who carefully worked to create the system that the President had imposed by Executive Order. Altenberg’s efforts were respectable and his system was well planned, but now its execution will await congressional reconstruction.

Thankfully, Hamdan does not go free; the Court assumed that if freed, he would be a danger to this country and our soldiers (Decision, p. 72). He will be tried by a properly constituted court, and may spend the rest of his life in a prison. The trial process will be more fairly administered; I served in a JAG role as a court reporter at 110 trials during my last year in the military, and I expect the Guantanamo trials will be more carefully managed in light of the Court’s decision. The presidentially decreed form of Guantanamo trials by military commissions won’t go forward for constitutional reasons, and it reminds us of the importance that judges must place on their adherence to the terms of the Constitution.

How does the Hamdan decision affect us in this county’s court system? Experienced appellate judges exercising independent judgment under the Constitution must be prepared to stand up to powerful officials. Power has its limits under federal and Ohio Constitutions. Courts should serve as a check and balance upon the exercise of power by officials. If officials stray from the Rule of Law, appeals courts should rein in the ones who exercise the errant power. That is the judge's personal responsibility to the Rule of Law, regardless of personal preferences.

While I can’t assign homework via a blog, I encourage you to take time to read part or all of the work of this case, by the old wartime intelligence officer turned constitutional jurist, in the Hamdan decision. In this case, we all are reminded that we have a stake in democracy and in preservation of the Rule of Law.

A Different Perspective on the Fourth of July

2006-06-26T06:13:00.000-07:00

The priest who gave Sunday morning’s sermon had an entirely different view; he had served in Catholic missions for many years in Africa and in Trinidad, and was back home with an insight on America on the Fourth of July. Our freedom to debate and dissent should be celebrated, he told us. We don’t know how good we have it; we should do more listening to each other, and less attacking.

He remarked that the tone and anger expressed in the media by our two major political parties against one another overlooked a very important reality. In most of the developing world, a dominant control by one party, with the elevation of its leaders to power, has excluded the alternate views of the lesser outside parties. Political speech is stifled, and the dominance of that party overwhelms the dialogue. Power is perpetuated by loyalty to the powerful party; dialogue fails, and opponents simply hold back rather than stand up to that regime.

His plea was for a more civil dialogue among our competing sets of political viewpoints. Imagine, he said, if cordial expressions of polite disagreement allowed American political leaders to narrow the areas of disagreement, and to explain why they held to a view that is contrary to the other party’s view. Then the well-informed public could listen to the competing views and be free to vote. Thomas Jefferson would have been proud of how his Constitution allowed dissent to thrive. Life in the African sub-Saharan word does not allow such a free dialogue; those who speak up against power face tough consequences. I agree with his insight; we should have more of these cordial dialogues to celebrate our divergent views on the issues of the day. The outside alternative views of our system should be celebrated, as Jefferson intended. Those are excellent insights as we approach the Fourth of July celebrations!

Writing and Learning About The Law

2006-06-23T06:49:00.000-07:00

June has been a great month for writers. The copies of my new volume, Baldwin’s Ohio Personal Injury Practice (2006 Edition) have arrived. My chapters for Baldwin’s Ohio Practice—Tort Law will be included in the edition that ships in August. The American Bar Association Press announced that my newest text, Federal Preemption of State & Local Law: Legislation, Regulation & Litigation, will be issued October 1. And my co-author and I have received the go-ahead from the publisher of our textbook aiding law enforcement officials in dealing with violent gangs, so that manuscript is moving forward. My paper on ethical challenges for lawyers who do deathbed counseling of the family of a dying person will be split into two articles at the suggestion of the editors of Ohio Lawyer magazine, and my paper on public access to pharmaceutical company clinical trial information has a tentative law review placement.

Writing about complex puzzles in the law is my passion as a law teacher. I seek to understand, analyze, critique and then to explain how the law works and how its workings could be improved. The broad coverage of my books and topics is a good analogy for what I aspire to do on the Court of Appeals, if elected: to deal fairly with the approximately 900 cases that come to our appeals court and to participate in writing intelligent (and understandable) decisions in the cases that reach a written decision. Diverse topics from protecting the constitutional rights to bail under the Ohio Constitution, to civil remedies for unfair competition, to a variety of disputes in marital and probate cases, come to this court.

The tasks given to the appeals courts and trial courts are different, of course, and the thoughtful depth of analysis that I have used in my textbooks is what I hope to bring to the appeals court. I view the research, writing, explanation and advisory roles of my recent experience as a good preparation for what the voters will expect of the person they select on November 7th.

Campaigning door to door through a rainstorm in Pleasant Ridge on June 22d, I came to the doorway of a resident who asked good questions and then promised to vote for me. Her frown of curiosity turned into a smile, and that is the reaction I seek every night in each of the neighborhoods that I visit. Any shy scholar locked up in research or intensely writing about abstract ideas would miss the valuable learnings I have achieved through my years of public service roles, and achieved again through this handshake campaign.

My experience as a police officer makes the reading of anti-gang studies much more realistic; my recent experience with the FBI weapons exercise makes the problem of gang armaments more real. These all contribute to the making of the well prepared appellate judge.

Correcting the Critic

2006-06-21T19:07:00.000-07:00

On the longest day of the year, and one of the warmest, while I was talking with voters at their homes in Sayler Park and Covedale, the commentary weblog known as the “Whistleblower” ran a report that Prosecutor Deters had been critical of me for allegedly campaigning from my UC office and for using a campaign logo based on the logo of an auto parts company. The accuracy of the “Whistleblower” in general is for the reader to decide; I had not been a reader until this was sent to me.

For the blog record, I wrote to and received permission of the auto parts company for use of the stylized O’Reilly name in my materials. Of the approximately 800 voters to whom we have given my campaign literature, none have commented that it resembles a sign used by a Springfield MO auto parts company.

I have not been campaigning from the University, where I have served for many years as an unpaid volunteer professor, unpaid because I love to teach there. I am very happy to be of service, receiving the 25 year award this past fall. My campaign work is done from my Pleasant Ridge office or my home office.

If the “Whistleblower” quoted him accurately, I am unclear why the Prosecutor would wish to publicly attack an appeals court candidate. This strikes me as unseemly, given the relationship of the appeals court to his office; approximately 40% of its decided cases relate to the criminal appeals process.

The February 2006 articles in the Enquirer regarding the extremely high affirmance rates achieved by his office on the current court of appeals cited his own statistical data, and I have no reason to doubt his good sense. I shall be careful to refrain from publicly commenting on his performance as State Treasurer or as Prosecutor during the campaign. I trust he will use the sound discretion that comes with this office's special stature in the judicial system.

Regardless of what is or is not spun inside the Courthouse, I have walked and sweated enough and shaken enough hands on doorsteps to know that the county electorate is troubled by some of the ways of our current system. Enough of them have spontaneously echoed the call for change in the Courthouse that a very significant groundswell is present. This is a most heartening message from the real people in their real homes, one voter at a time. Summer will be a most interesting season!

An Honor From the Supreme Court & A Challenge

2006-06-19T05:18:00.000-07:00

I am pleased to have been selected as a Mentor in the Ohio Supreme Court’s new Lawyer to Lawyer Mentoring Program, which begins July 1. The goal of the Court’s program is to increase the professional standards among Ohio lawyers by selecting a group of experienced mentors and assigning to them a newly-admitted young lawyer. It was an honor to be recruited and a greater honor to be selected for this pioneering program.

Over the course of a year, the Mentor’s role will be to advise the young person about the ways in which ethical and proper conduct can aid in the development of the younger practitioner. The training of Mentors occurs June 29 with an overview by Chief Justice Moyer and a presentation by Cincinnati Bar president Pat Fischer and others. Pat is a terrific role model, as I have seen in our meetings of the Ethics & Professional Responsibility Committee of the Cincinnati Bar.

What’s the benefit for others? More ethical lawyers will act more responsibly and deal more honestly with the public. In the 32 years since I joined the Ohio Bar, massive change has occurred in the profession of law. Traditional means of informal instruction included young lawyers shadowing experienced lawyers, understanding how they approached the complex scenarios that present ethical dilemmas, and following their example, but these ways are unfortunately eroding under stress. Young lawyers need to have an example to emulate, and this structured mentoring program is a positive contribution to the whole lawyer training. I am looking forward to being an effective Mentor!

Spiders in A Barn, Change in The Air

2006-06-13T07:19:00.000-07:00

Two very different experiences form a counterpoint. On June 12 in Baltimore, I was an invited speaker at the annual meeting of the Special Libraries Association, and spent the day among the cutting-edge researchers of today’s modern information and reference experts. Their tools and techniques are remarkable. My talk was well received and the experience was eye-opening about the future of databases and information in general. The week before, we helped clean out an old barn, filling a dumpster with decades of accumulated materials and seeing dust covered cobwebs everywhere. Snakes and spiders were troubled that we moved their hideouts as the dumpster gradually filled.

Our court system faces a similar challenge. How do we accelerate the change that is needed? How do we sweep out the “same old same old” mindset that locks us into the past? As treasurer of the County Law Library I have had to deal with change at the (literal) top of the courthouse, but there is much more to do within the lower floors of that building, and within the ways we as judges will work on the caseload of Hamilton County cases.

I am a strong believer in progress and modernization of the ways we do the public’s business. Chief Justice Moyer’s leadership in the effort to improve Ohio courts should be taken to heart in our ways of improving our local systems.

Frankly, this county has a long way to go to improve its service to residents inside the courthouse. I hope to be part of the transition to 21st century standards of public service. Some comfortable dusty corners will be cleaned up, as with our barn, and we’ll all be better for it. That is why I constantly talk with voters about change and constantly see them affirm their hope that our courthouse will improve. We’ll see on November 7th how the change can be put into action.

Special thanks this week to the voters whom I have been meeting in North College Hill, Deer Park, Covedale, Sharonville, Bridgetown, and Madeira. I am listening and learning as the campaign goes on. Thank you!

"If You'll Clean Up That Courthouse..."

2006-06-04T04:08:00.000-07:00

“Ordinarily I don’t let anyone post signs in my yard”, said the senior citizen on Harrison Avenue. “But if you’ll clean up that Courthouse downtown, I will be happy to have your sign anytime!”

It was a happy moment for me. Though I have lived west of the mythical Vine Street dividing line for seven years, and my wife has deep family roots in Cleves and College Hill, some politicians warned that the West Side would not welcome me. I have been heartened that people on Bridgetown Road, Glenway, Quebec, Cheviot, Harrison and throughout the western portion of the county in Delhi, Green, Cheviot and Harrison have been encouraging my race for the court of appeals, and signs will sprout there in the fall.

This may be a function of the “change in demographics in the county” that Prosecutor Deters spoke about on May 19, or it may be a resentment of the problems that average people see in the way our county’s judicial selection has been run by one dominant party apparatus for decades. Because of the judicial candidate rules’ restraints on speech, I can’t get specific about the problems that our court system needs to remedy. But the voters are urging me on, telling me they feel alienated by the us-versus-them feeling at the courthouse, by the poor service and the hostility that is felt by less affluent county residents inside the courthouse.

This week, for example, a minority business owner on the east side encouraged me to press on advocating changes. A very large car repairer read my leaflet and thanked me for making the effort to run “after all the stuff you have accomplished”. No, we’re not at the stage of dramatic protests in the way the justice system had drawn attacks in the past. We’re at a stage of real disappointment among the county’s less affluent residents about the results of the politics of the courthouse system. I am honored to serve them, meeting and talking one to one, from Harrison to Terrace Park. That will be my source of energy all summer.

"ABSOLUTE POWER CORRUPTS ABSOLUTELY"

2006-05-28T08:57:00.000-07:00

The words of the sermon were taken from Lord Acton’s epigram and not from the Bible: “Power tends to corrupt, and absolute power corrupts absolutely.”

The priest used it as part of his homily on openness and sharing, recounting some of his adventures in the Army Air Corps and in his large Italian family. It was a fitting Memorial Day weekend theme for prayers that recall the airmen, soldiers and sailors who made sacrifices that we remember on this day. I remembered their sacrifices last May as I brushed the Vietnam War Memorial name of Carmine Macedonio, one of my fallen fellow soldiers, who died in the Mekong Delta in 1970. They died defending democratic ideals, the right to choose freely among leaders. All of us who wore the uniform salute them and remember their ideals.

Accountability to the voters is important in a truly democratic system. I spent four days on a state-federal dialogue project in San Diego May 24-27, aiding senior federal officials and elected or appointed state cabinet members from two dozen states to come closer to a consensus on a difficult policy issue. The common theme among all these people, some of whom have a thousand or more employees, was that they wanted to serve the public good. They feel accountable to have answers when the voters call; they feel the legislators of Vermont or Wisconsin or Texas hold them responsible for protecting the public. My topic for presentation, preemption, means the ability of federal agencies to override state powers; the balance of these conflicting authorities is important. It is essential that the general public be served well by accountable officials who are truly chosen by the representatives of the people.

The statistics of judicial choices in Hamilton County are stark: 35 times out of 37, no choice has been given in countywide elections, 2000-2006. "No other candidate filed for this race". What a powerful message that sends of the state of our local democracy! True, it is quite difficult to overcome the weight of the courthouse electoral machine, for any person who is willing to serve as a judge over his or her fellow Hamilton County residents must face that machine’s power. True, Prosecutor Deters told the Bench-Bar Conference on May 19 that a demographic shift is occurring in this county and that the former assumptions no longer can be applied inside the grand jury system. It may be that the demographic shift coincides with a stronger desire among the public for a real voter choice, in the judicial elections process. It may be that winds of change actually influence outcomes in judicial elections as they may influence congressional and county level elections.

Accountability of the powerful does not corrupt; it enriches the quality of a participative democracy. That’s a key reason for the outsiders to step up, run for office, make the sacrifices, and give voters a real choice. That's the message of Memorial Day: remembrance and commitment to democracy, once choice at a time.

VIDEOS, PROSECUTORS AND DUE PROCESS

2006-05-21T20:04:00.000-07:00

Are pictures worth 1,000 words? What of police car videotapes? On May 19th, at the 2006 Bench-Bar Conference dialogue on criminal court discovery of police records, Prosecutor Deters and Assistant Prosecutor Tolbert aired their concerns about police car videotapes that are requested by defense counsel in criminal court discovery motions.

By now the TV news programs have made “cop car video” a thrilling subset of reality TV. These cameras are expensive and relatively new tools in law enforcement, initiated after the New Jersey scandals on alleged racial bias in traffic stops. Years ago, my textbook on police traffic stops had predicted that the novel use of such videotapes would have an impact on officers’ performance, and that they sometimes would benefit an officer who had been accused of misconduct. In Cincinnati, paragraph 70(d) of the federal consent decree requires the tapes to be reviewed by police supervisors. But they are not all exciting viewing. As I watched the shift sergeant at Cincinnati District One review his officers’ videotapes rather perfunctorily, I realized (as a former police officer in the pre-television days) that the supervision function is not really great fun, but the very action of oversight has some implicit effects on the behavior of officers during traffic stops. We knew on our patrols that a sergeant’s watchful eye would lead to some pithy critiques of our policing, not always merited from the cop’s viewpoint. Whether this new climate of “caught on tape” is good or wasteful is a policy choice for each individual police department, though Cincinnati’s is required by paragraph 70 of its consent decree and other area departments are making their investments voluntarily.

So the May 19th dialogue was most interesting; Prosecutor’s Office leaders asked judges on the panel whether the erasure of the police car videotapes would result in dismissal of charges, when records sought by criminal defendants at some time after the arrest were not available. Apparently, some criminal defense attorneys include a request for preservation of videotape and audiotape evidence, when they file the requests for discovery to which the defendant is constitutionally entitled. An informal response among the judges was that 911 tapes are routinely erased and presumably police car video is also routinely recycled; if the defense asked for their retention as evidence, they would be expected to be saved. But in the event the records and tapes were not saved, judges would expect that the defense show that the destroyed tape had been material evidence and would have been exculpatory, i.e. likely to help the defendant’s assertions of innocence. The judges on that panel did not express alarm that there was abuse of due process rights in the slow speed of police responses to criminal discovery requests; they urged cooperation and reasonable accommodation by both sides.

Prosecutor Deters advised the dozens of lawyers in the audience that better communication between the defense lawyers, police and prosecutors was needed. Later this year, police communications updates to the “Copsmart” in-car computer system would allow emails to be sent directly to the police officer. A veteran criminal defense lawyer encouraged his colleagues to ask the arresting officer for an appointment to discuss the evidence; a veteran prosecutor urged telephone calls be used in lieu of more formal discovery requests with standard-form contents. If there are weaknesses in the criminal system's provision of rights to the defendant, there are numerous ways in which judges can hold prosecution and police accountable, but there is no absolute answer to all of these disputes over evidence.

What does this mean to the system? My years-ago predictions about cameras’ impacts are more than fulfilled; the video record of police activities sometimes aids the police, and sometimes calls into question the arrested person’s claims of abuse. But from the May 19th discussion, the Ohio courts are still evolving their norms for the preservation and the use of police car videos in the actual evidentiary foundation of the prosecution and the defense case.

This is an exciting time to compete for an appellate judgeship, and the Bench-Bar Conference’s lively dialogue illustrated the competing tensions of due process rights and prosecutor preferences in the expanding use of videotaped police evidence. We'll watch for further developments, and listen for such remarkable candor by prosecutors in the future.

JUDGING APPEALS FROM GOVT. AGENCIES

2006-05-18T20:21:00.000-07:00

Government licensing and regulatory agencies generate a growing percentage of the work of all appeals courts today. What should the voters look for when selecting a judge who will rule on their appeals from decisions made by government officials? If the case on appeal is more complex than a garden variety criminal trial would be, what talent should the judge have, in order to understand the government agency’s powers and responsibilities?

On May 18, I participated in the biennial convocation of invited scholars in the administrative law field, at the University of Louisville’s School of Law. These professors are among the stars of the legal field, experts who study and teach about the topic of courts’ review of decisions by administrative agencies like OSHA or EPA or the state licensing boards. It was an honor to be invited to present a paper on how the courts have dealt with drug cases on appeals. After 25 years of teaching I know many of these great teachers, and we shared ideas from our experiences and we critiqued several very insightful papers. Papers from the conference will be published by the Administrative Law Review, the leading periodical in the governmental process field, probably in early 2007.

The learning from this 2006 program was that the questions being disputed in appeals cases are definitely becoming more complex for the judges. When OSHA tried to update its set of chemical exposure standards, the appeals court rejected the process that OSHA used and told the government officials responsible for worker safety to re-do their process steps before the officials move ahead. The very exotic pollutants regulated by EPA, the disputes over terminal cancer patient access to FDA-approved drugs and the detailed economic supporting data for a regulatory decision in telecommunications are very complex. No appeals court judge can know all of the technical aspects of these issues. Similarly, the Ohio Court of Appeals gets appeals from the disputed actions of governmental bodies, and the complications within the administrative support for these actions are getting more difficult.

What does all of this mean for you? On November 7th, the voters have an opportunity to bring into our appeals court a judge who likes solving puzzles of complex governmental regulatory appeals. Expertise, street smarts in dealing with bureaucracy and patience are among the necessary traits.

To the extent you have a dispute with a government agency that ends up at the court of appeals level, you are better served with the candidate whose administrative dispute resolution experience can more easily evaluate and decide this growing set of disputes.

Debating Judicial Elections - They're Both Right

2006-05-15T16:09:00.000-07:00

Ohio Chief Justice Tom Moyer debated Rep. Bill Seitz on May 15 on the topic of judicial elections versus the merit system of selection for appellate court positions. Both presented lively and well reasoned arguments at this well-attended meeting in Cincinnati. For obvious reasons, the debate has real resonance for any judicial candidate.

I was privileged to ask a question that triggered strong responses from each speaker. I asked about the high cost of election television advertising, and about the utility of using either public financing of campaigns or caps or other means of holding down the expense of campaigns. In recent years the Ohio Supreme Court campaigns have cost $6,000,000 for candidates, and though the amounts vary with each year’s elections, the judicial races are likely to remain very, very expensive. I agree with both speakers that there is no general public support for public funding of campaigns, and that the First Amendment case law seems to preclude caps on spending.

The Chief Justice made a telling point about how difficult it is to convince successful and well credentialed attorneys to run for judicial office. He is right; those who have held assistant prosecutor positions are among the usual candidates for judgeships because their salaries are relatively low in both positions compared to private law firm positions, and judge positions pay more. The Chief Justice noted that rates of spending for the judge's campaign are almost always higher than the annual salaries to be gained, and he made his familiar request for the legislators to please raise judicial salaries.

There’s a lot of truth to his assertions, but the Ohio political consensus to raise judicial salaries is lacking and the judiciary has attractions other than financial rewards. I’m in the race to win, though I know it will be a six-figure investment and a ten-month personal effort. There needs to be serious improvement in the fairness and functioning of our court system, and only by personal sacrifices from committed lawyers will the much-needed institutional change be fostered, one judge at a time. I liked much of what both speakers said, and it is exciting to be a part of the change that is coming to our local court system.

LAWYER PERCEPTIONS & LOUSY TV SHOWS

2006-05-04T18:28:00.000-07:00

Appeals courts make lousy TV. The work is thorough, specific, analytical and scholarly. No witnesses yell out “I DID IT!” or collapse in tears in the appeals courtroom. It’s much more like a dialogue among my law teacher colleagues on the constitution and the laws, than it is like the trial court’s crowded hustle and noise. Not very “visual”, not exciting. That’s actually good news for scholars who seek appeals court judgeships.

There are some newly reported observations about the way people will perceive candidates for judgeships who were law professors – we hope. In a major study presented to the American Bar Assn. Section of Litigation annual conference, eminent psychologist and jury expert Dr. Cynthia Cohen analyzed the perceptions of lawyers that come from television, movies and other media. She tested opinions, classified the results and on April 20 presented her findings: The most trusted category in her study were professors, then followed by judges, with lawyers at the middle of the “less trusted” group. So professors are more trusted than judges? Interesting!

The more TV the surveyed persons watched, the better they rated lawyers. “Those who live by the television are more trusting of lawyers”, she found. But apart from their view of lawyers as people, 82% thought lawyers were helpful and 81% were aware of the legal profession’s pro bono activities; as a veteran of Volunteer Lawyers for the Poor and as a trustee of Legal Aid, this finding made me smile.

The media-built perceptions came in for critiques and suggestions for media improvements: TV emphasizes the shady lawyers but it “can show me some honest ones who actually want to find justice.” TV shows lawyers “as greedy or dumb”. My personal favorite: “Show programs where the attorney fights against a corrupt system, against all odds and wins!” I’ll second that.

The learning from Dr. Cohen’s study is that competent and caring lawyers do have a positive influence on public perceptions. I can’t explain why professors rated higher than judges in the survey of positive perceptions – I recognize that my candidacy might decrease the relative perception ratings I would otherwise enjoy. But there are many good things to be learned about lawyers, a few from TV but many more from the reality that is our daily interaction with others. Treat people with respect, learn humility from great mentors, practice honest listening, help those in need -- that, not just TV scripts, is how the legal profession will improve in the perceptions of the public. So thank you, Dr. Cynthia Cohen!

Why Compete for Judgeships?

2006-05-03T05:32:00.000-07:00

“No candidate filed for this office”: the primary ballot yesterday offered yet another symptom of the underlying malaise in the legal community here about the awkwardness of our county’s skewed judicial selection process. Running down the primary ballot of unopposed candidates was like the experience one has on the “real” elections each fall.

“Unopposed” has won 35 of 37 countywide judge elections in 2000-2006. Yesterday I was very pleased to receive 21,097 votes from those who selected the Democratic ballot in a relatively light turnout. The three polling places I visited were relaxed and slow during the day. My opponent won his unopposed primary, and we each are gearing up for the rare (but I consider important) contest for the fall ballot.

Cincinnatians have five ways of chili to select, dozens of entertainment venues, even competing favorites for ice cream, but have had no choice for judges on most races on most ballots. Frankly it is sad to think that among the thousands of eligible attorneys locally, only two of us since 2000 have dared to resist the power of the mighty machine, and have actually run a contested election race. Dominance like this in commerce would be a textbook antitrust violation, but court seats are not commerce. Sure, a local lawyer could compete for a judgeship, but what happens to the challenger if she or he confronts the powers that so dominate the courthouse? In an economic choice model, what investor would place more than $200,000 into competing in a business that was so dominated by its competition, that few competitors have dared to enter? Until the future day when Ohio changes its system or demographics catches up with the dominant party, disadvantage like this will confront any advocate who seeks to challenge the selection being offered by one party's leader.

How much does the act of offering consumers a choice really matter? Is it a futile gesture to advocate popular voting choice, rather than single party leader selection of a judicial office? If we advocate a right to vote, then what will it take to induce serious competition for judicial office, not merely one party leader picking his single selection to win unopposed?

Recently I met the federal district judge whose decree broke the stranglehold of the local machine on municipal court seats. His decree gave us seven localized districts where real competition has flourished. I thanked Judge Thomas Wiseman for the positive influence that his decree has had on diversity of persons and diversity of backgrounds on our municipal court. He seemed pleased to hear that the contentious dispute has evolved into an accepted pattern of contested races. I was proud to tell him of my work for Ted Berry’s successful uphill effort in 2005, winning a municipal court seat.

In that spirit, I appreciate the trust of the 21,097 primary voters, and I pledge to carry on the fight for substantive quality and reasoned rationality on the appellate court. This is a message I will take to all of the county’s voters, one day at a time, one community forum at a time. To suppress that right of voter choice would be wrong, and the voters will speak about it on November 7th.

APPEALS, REFLECTION & QUIET JUSTICE

2006-04-23T18:39:00.000-07:00

The first lilting tones of the soprano voice are intoned precisely at 5:50 a.m. “This is the day the Lord has made, let us be glad and rejoice…” On both sides of the monastery’s choir benches, the other nuns respond in the chanting musical tones that make for a very special moment. Dawn is slipping its first pale-blue rays into the Connecticut sky, and it is dark inside the chapel’s public section beyond the cloister screen, as I sit and listen.

Each of us has to find some inner peace, somewhere, if we hope to live a reflective life. Living the reflective life asks deep questions of us, like what do we aspire to do for others, how should our lives be changed, why are we called to service for others. What’s it all about? If the answer is “me”, you’re probably not living a reflective life, but one that careens from crisis to crisis or dullness to dullness. The great gift that my daughter gave me when she entered the cloistered monastery was the opportunity to capture moments of reflection as I observe her contemplative sisters pray and sing at their chapel.

So I revive and refresh myself in contemplation several times a year when I visit Sister Ann. The silent peacefulness of the monastery grounds, the calm joy of the sisters I meet, and the serenity of the late bird calls at dusk, offer a wonderful counterpoint to the hectic demands to “produce, consume, and move on” that our urban lifestyles expect of us. Too little time for peaceful reflection exists in our lives. It’s a self-induced loss.

I have cited this need for deeper thought to my students at the College of Law, as I urge them to think about legal decisions as more than a quick Blackberry response or greater than an AOL Instant Message can convey. Law is not a civil religion, and one’s religion or lack thereof is entirely separate from civil society’s statutes, of course. The appeals court is closest to the monastery in our legal system; the stately crafting of justice, in the form of reflective application of constitutional principles to particular situations and facts, may have some parallels to the monastic isolation from daily “noise pollution” that leads one to better awareness of the truth.

Only by being able to detach, reflect, and examine more deeply, can the best appellate judges bring the lasting power of principle to the cases before the court. To rubber stamp, to hustle the caseload through the mill with rapid affirmance of some familiar judge’s decisions, is not what the principled appellate jurist should seek. This does not mean that decisions take years to make, but that reflection on legal issues deserves to be thoughtful and not driven by any other motives.

I emerge from the stillness; dawn light glides into the eastern sky, some bird songs resound in the early daybreak. These moments will come to mind during the hectic campaign whenever I pause and reflect. Perhaps my special advantage as an appellate judge would come from this inner core of reflection. Life will be stressful for the next few months but the goal of a good appellate judge is to give to each particular person’s appeal a reflective sense of justice and community responsibility.

"LAW & ORDER", TV ADS & SQUEAKY SHOES

2006-04-21T04:58:00.000-07:00

There I was, unarmed and nervous, surrounded by four armed deputies from the Hamilton County Sheriff’s Office. They were agitated and I had failed to bring them what they wanted. The room was tense as I listened carefully to their strong feelings. They told me that I MUST help them with their squeaky shoes.

Fast forward fifteen years, and recently a friend from inside the courthouse circles has cautioned me that as the television ads for the majority party candidate are taped, the candidate will be surrounded by smiling deputies in front of the Sheriff’s tank, his boat, his helicopter, his bomb truck, his SWAT truck, etc., projecting the tough law and order presence that smiling deputies will convey to the uninformed TV audience on that candidate’s behalf.

When the Ohio Supreme Court staff briefed judicial candidates in February, I asked if it is legitimate to allow incumbent judges to be advertising their strong affiliation with smiling sheriffs. I was assured that yes, if it is voluntary, the deputies may appear in the ads.

About the shoes? I was for years the state’s mediator and fact-finder in tough labor disputes in southwest Ohio, trying to reconcile management and union disputes through quiet diplomacy where possible and through binding orders where all else had failed to reach agreement. In case SERB 90-MED-09-0761 issue 7, the deputies disputed the Sheriff’s December 1989 order for all deputies to wear a new standard shoe of one make and design. They were unanimous; all the deputies in the room told me that the shoes squeaked.

It brought me back to the rookie patrolman’s fear that I felt when I first went into a darkened building after a call of possible burglary. Walking very quietly in the dark in an unfamiliar building, your senses acutely straining for any indication of where the intruder might be, you were aware of any noise. The squeak, squeak, squeak of one’s own shoes would have had at minimum a concern, and at most a danger, to the officer in alerting the hidden intruder of your progress through the maze that is inside a darkened space. The deputies were persuasive and factual in their claims.

So I ruled for the sheriff’s deputies, recommending adoption of a standard color and design but allowing each deputy to select a shoe vendor of their own choice, with their allowance for uniform equipment.

The Sheriff’s strong criticism that followed made the top local story of the Enquirer, and the fact finder report was not accepted. That was the fate of labor mediation in the context of a strong management and a rigid uniformity.

The smiles of those Hamilton County Sheriff deputies on that day – that someone who had “been there and done that” in pursuit of intruders, would actually side with them against their management – was all the reward that I could ask. I’ll be remembering their smiles when I watch the inevitable television appearances of smiling sheriffs with the other candidate. And if it’s on video, I’ll listen carefully for the squeak, squeak, squeak of the officially ordered shoes, and the lessons about flexibility and respect for the patrol officer that I had learned with them some fifteen years ago.

VICTORY, BUREAUCRACY & PERSISTENCE

2006-04-18T05:16:00.000-07:00

VICTORY, BUREAUCRACY & PERSISTENCE

Five percent doesn’t seem like a large number, but when five percent of all the residents of a city come to one place at one time on one issue it is quite impressive. I had the privilege to represent these 450 Wyoming neighbors, citizens and business owners in the audience at our presentation on April 17th, urging Ohio transportation engineers to keep open the access from I-75 to Galbraith Road. When I took the microphone to open the presentation for Wyoming, I was nervous. But the message was something that this crowd of people wanted to have expressed: the public speaks through us, elected by them, to advocate for their collective benefit. Unanimous support by county, village, township, city and federal legislators in the front row was a terrific boost to our efforts.

Bureaucracy and the oversight or control of its decisions has been a topic of several of my books and decades of my teaching. A judge can not promise any particular outcome other than fairness and impartiality, of course; but the ways that administrative agencies decide controversies can be shaped and reined in by careful examination by the appeals courts of the full record made in the decision process. Laws in today’s complex society are not implemented by the classical New England Town Meeting, though the April 17 Wyoming crowd came as close as I have ever seen to such a turnout of local opinions. Instead, laws are implemented by appointed career employees of the government, with an administrative record of the reasons why they chose a particular decision. So our ability to master their own technique and to build an insurmountable case was important. The administrative record, a dull and boring concept standing alone, is the key technique that might save the highway exit ramps on Galbraith Road, even where the state’s engineers would choose otherwise.

Victory – keeping the Gabraith exits open – is not assured; another public session on July 19 will need even more local comments in support. But persistence, attention to detail, awareness of the process, and solid advocacy really mattered in this public controversy. It was humbling to “speak truth to power” in front of such an audience. Looking out from the lectern across a scene of hundreds of neighbors, I felt reassured that the battle with the bureaucracy was worth fighting. And for me it felt more real than books, more real than academic debates about oversight of administrative decisions. It was Wyoming’s time to stand up, and not to be bulldozed by the state. April 17th will live in my memory for a long time.

2006-04-14T04:49:00.000-07:00

REAL PEOPLE AND OUR CHANGING JUSTICE SYSTEM

The humbling experience of campaigning is good for the soul. Meeting the residents and community leaders in Anderson, Blue Ash, College Hill, Delhi, Hyde Park, Lincoln Heights, Madeira, Newtown, North Avondale, Northside, Reading, Springfield Township and other communities in the past few weeks has given me a better perspective on the way that “real people” view our courthouse and our local justice system. A mood of desire for change is in the air.

Spending eight hours in Over the Rhine, as a civilian ride-along with an African American police officer meeting his friends in that community, has also been eye-opening from that community’s perspective about crime. Support for police is stronger than the media portrays. Caring for community is stronger than critics would have you believe. The level of concern about crime varies with where you live, but the common element is a concern that public safety needs to be improved. Become a better listener to the community’s concerns, and you will soon know that people realize our Courthouse does not have all the answers, and that they want to have better protection than our county's justice system has provided them.

I have especially enjoyed the Citizens on Patrol stories of the people who actually walk in the face of drug dealers’ hostility. Walnut Hills, Avondale, Kennedy Heights and other communities are reviving the historic sense that the people can collectively work against the small percentage of criminals who seek shelter in the shadows. Freedom from fear is the civil right that causes a sit-in on an active drug corner by community residents who stand up in the face of intimidation. The heroes of our battle against crime are more and more frequently the residents who say, I have had enough, I want change, and it begins with me. Getting involved with more willingness to help the police, more willingness to participate in Crimestoppers programs and more attention to one’s own block and neighborhood is a terrific development.

The answers to personal feelings of safety are not found in a massive concrete building downtown, but in the positive personal feelings of the citizens who want to work against the disastrous effects that drugs and violence have caused in their neighborhoods.

SHIKIMIC ACID & SWEETGUM: WHO CARES?

Our law school recently hosted a national competition for the future advocates who will argue appeals court cases. South Texas School of Law won with a brilliant performance, though Wisconsin, Duke and other law school teams showed excellent preparation. Many of our appeals court judges came from distant courts – Arizona, South Dakota, Oklahoma, Tennessee, Texas, Florida – and they also praised the quality of our competitors’ work.

The young advocates’ hypothetical case was that of “bird flu”, the H5N1 virus that may in some mutations spread among humans as a potent form of influenza. Several judges thanked us for the timeliness of the case problem; I have been tracking the work of FDA and CDC on bird flu so the problem flowed naturally from the headlines.

If or when bird flu spreads from humans to humans, very experienced medical experts have warned that our supplies of drugs to treat this powerful infection are inadequate. No “magic bullet” to relieve the serious illness now exists, though drugs like Tamiflu can be effective if taken early in the cycle of infection.

The making of a complex pharmaceutical is an art form as well as a science; no sure thing and no easy path exists – explaining, at least in part, why new medications take so long to reach the market. Tamiflu is a possible answer to the risk of a massive outbreak of bird flu; the drug is made by the Swiss company Roche from an extract of star anise, a Chinese plant that is in short supply as the worldwide demand for Tamiflu has far exceeded capacity.

That’s why the small group of observers applauded this week when it was announced that the key active ingredient taken from star anise plants, shikimic acid, can also be synthesized from North American sweetgum fruit, a plentiful and easily accessible plant.
I’m not a botanist but the prospect of more available, more accessible treatments for a deadly illness is a source of great joy.

Should we care? Yes. It makes sense to prepare for possible health crises, of course. It makes sense to care about the remedies for an illness, before the illness strikes. So it is great news that the short supplies of shikimic acid may be relieved by the ready supply of the American sweetgum fruit as a starting material.

Caring about the public’s health and safety often takes us away from day to day details; the future availability of Tamiflu, if bird flu becomes a public health emergency, is one of those stories that probably will never make front page news. I would be happy if none of the risks of bird flu actually happen. But like hurricane preparations, public health work done early and thoughtfully is the best way to reduce casualties, if and when a pandemic of bird flu illness should strike us. It’s too early to say that sweetgum may save your life, but there are small victories over disease made every month, and this one hopefully will play a role in our defense against the potential pandemic.

Joys of Judging

2006-04-08T15:53:00.000-07:00

JOYS OF JUDGING

My joy in judging fine advocates, well prepared and very substantive, was emphasized this weekend. The 26 law student teams who came to Cincinnati this weekend for our law school’s Rendigs Moot Court Competition in Products Liability were impressively well prepared. I had worked with our students to formulate a challenging problem: what can be done if bird flu vaccine goes bad and actually causes the disease in a child after inoculation?

Our assigned issue was a complicated factual problem with a heavy social overlay: What if bird flu happens? Who gets the vaccine? What companies get immunity from suits? The competitors dug into the history behind the 2002 immunity law that protects vaccine companies from being sued. In my judging of the quarter final round, one team argued that a special compensation provision of the law, section 304, should limit what kinds of vaccines are protected by the immunity, so that smallpox vaccine, for example, should be protected. Their opponents argued that the Senator who commented about the then-pending bill intended a broad coverage, and the preamble to a federal rule on immunity allowed vaccines to be covered even if they were only in part intended for use against terrorists. It was impressive.

I was especially honored that Cincinnati’s most senior federal trial judge, Art Spiegel, was very complimentary to me, in front of the teams, about the moot court case we had prepared. His landmark rulings on products liability law are studied on every products liability course, and it felt wonderful to have such accolades. It was also interesting that one of the teams cited a March 2000 U.S. Supreme Court decision for a viewpoint different than the Court had decided; I was able to offer in my critique session, after the teams concluded, the corrected version of that principle, as well as the observation that I knew the case well since the opinion written by Justice Breyer had quoted my book as the “expert” in that field of law.

Each year’s competition is a further humbling event for me. I have the humbling realization that law students have gotten better and better. The young people entering the legal profession seem to be far more articulate, prepared and adept at argument that we were at their ages. It’s a source of great hope for lawyering in general and for the products liability field in general.

2006-04-06T05:26:00.000-07:00

APPEALS COURT JUDGES AND BIRD FLU LIABILITY

What happens if bird flu hits and the vaccine used to treat it makes things worse for patients? Is there some remedy in court when or if that occurs? If a court says "no remedy" what will the appeals court judges do?

The April 6-8 weekend is always a very special one at our law school, as some of the finest appellate justices and judges from around the nation come to the University of Cincinnati for the annual Rendigs Moot Court Competition in Products Liability Law. I have enjoyed the opportunity to sit with appeals court judges from New York, Seattle, Florida, Delaware, California, Tennessee, Oklahoma, Indiana and other parts of the nation, both as a panel “judge” and as an informal adviser to the judges who hear the arguments. Our most distinguished UC alumnus, the Chief Justice of Tennessee, William (“Mickey”) Barker, will lead this exceptional group of veterans appeals court judges.

WHY I LOVE APPELLATE ADVOCACY

My love for the great work of appellate courts comes from watching appeals courts in action, in Ohio and in the federal system, as well as from watching (and judging) our annual appeals competition. In some years, Los Angeles schools have dominated; in others, east coast large and small schools have battled it out in the finals. As the host, UC does not compete unless the starting field of schools has an uneven number, in which case our students act as if they were one of the competing sets of advocates. On several occasions I have been so moved by the quality of the arguments that I have written a personal note of praise to their law school dean because of the outstanding advocacy his or her students brought to Cincinnati. These are some of the best and brightest of future advocates, all volunteers on their own time, competing to be the finest appeals court advocates of the future.

The arcane “art” of doing appellate advocacy well has several elements, like anything that merits hard work: the advocate must understand the case, must have thoroughly studied the record made in the trial court, must understand the alternatives and the what-ifs that so often are examined in appeals judges’ questions, and must be sure to narrow in on the one or two winning points that make the case easy for the appeals judges to accept.

DOING THIS WORK ISN’T FOR EVERYONE

Appeals court judging is not for everyone. Trial judges have a different mindset and a different set of demands that are not automatically adaptable to the appeals role. Getting it right as an appeals judge requires depth of mind and intensity of focus. It takes a quiet bookish mind with the ability to connect seemingly disparate facts, provisions of statutes and aspects of the state and federal constitutions. It takes a writing ability that is clear and focused, because an appeals court speaks only by written opinions in specific cases, some of which are going to be followed by other courts as the “law” of the county or state or appellate circuit.

The rewards are so indirect that they are hardly noticeable – an appeal of the court of appeals decision to the Supreme Court is rarely accepted and decided by that Court. Here in the First District that covers Hamilton County, only about 5 cases a year are taken up and decided in the Ohio Supreme Court; an even smaller fraction of cases are reviewed by the U.S. Supreme Court. (Statistics are available at sconet.state.oh.us and uscourts.gov) The “reward” of being affirmed is terrific; I was delighted in 2000 when the U.S. Supreme Court quoted one of my books as “Experts have written…” and I am sure that a Supreme Court decision accepting the logic of an appeals court’s opinion would feel just as positive a reward for work well done. The quiet personal satisfaction of having upheld the law, and assuring justice, is all the thanks that the appeals court judge will expect for his or her service. In a way, the appeals court resembles my daughter's Dominican monastery, with quiet reflection and intense study, and no expectation of applause from the external world for your daily work.

THE BIRD FLU VACCINE CASE

Our students work hard to produce a timely controversy about which 20 or more law school teams can argue in the moot court. This year they selected bird flu and the liability risks of vaccines that spread rather than suppress the disease. Serious illness or death from bad vaccine has been a problem for many years, and federal and state courts have grappled with these complex issues. I anticipate great advocacy from the teams and hope for a balanced presentation of defendant vaccine makers and injured consumers as the hypothetical facts are explored in the case. And the answer about bad vaccines and liabilities? Sometimes the vaccine maker wins, sometimes it loses. It often turns on the quality of the appeals court arguments made by advocates – some of whom will have honed their skills in our national competitions past, present and to come.

Mastering the Law of Unintended Consequences

2006-03-30T12:11:00.000-08:00

One of my learnings as a judicial candidate has been that the Law of Unintended Consequences applies in this, my first contested electoral effort, as that Law applies elsewhere in life.

When the Republican majority in the Ohio legislature rewrote much of Ohio's campaign finance law in 2005, there were many loud opposing voices from Democrats and from independent electoral groups about the changes that affected voting rights and other electoral issues.

But tucked inside the Republican sponsored bill which became ORC 3517.105(D) was a provision that encumbers a county party, e.g. the Hamilton County Republican or Democratic Party: "Any expenditure by a political party for the purpose of financing communications advocating the election or defeat of a candidatefor judicial office shall be deemed to be an independent expenditure subject to the provisions of this section. " For electoral candidates in a county whose financing disparity in 'deep pockets' between political parties is as vast as it is in Hamilton County, this may be helpful to the candidate whose party has a much smaller bank account.

This statutory change impacting county party spending is important because the term "independent expenditure" has a special meaning and a special consequence. Penalties for "election falsification" are at stake. It can be said generally that independent expenditures by a county party or political organization will require there can be no coordination with the judicial candidate or their campaign. The mailings must carry specific disclaimers specified in the law.

This limits a county party's ability to help judicial candidates with a direct mail program. So for example a sitting judge who looked to the county political party to aid his or her candidacy could be violating the law if he or she attempted to get the county party to mail thousands of direct-mail promotional pieces in the week before the election. If the party did so and it could be shown that the county party was coordinating its plan with the judge, the "independent expenditure" could open the judge to inquiry by elections officials. Violations would cast a cloud of "election falsification" over the judge's effort to win election.

The minute details of the law are what appellate judges must consider. I am learning a lot about elections law as I progress through this fascinating process of seeking the First District Court of Appeals seat. Stay tuned to my and also to my opponent's campaigns, as we each try to stay within the law.

Bob Manley: Gentle Giant for Constitutional Rights

2006-03-29T08:28:00.000-08:00

The Passing Away of Bob Manley, Renaissance Man

A vital member of our campaign's advisory caucus passed away last weekend. Bob Manley, my personal attorney and a remarkable advocate, was buried with honors from the St. Peter in Chains Cathedral on Tuesday morning. It was a moving requiem that brought hundreds of friends together on a gloomy day to celebrate his most remarkable life. Though Bob was a stalwart Republican for a lifetime, he encouraged my campaign for judge and gladly joined my circle of bi-partisan advisers, with his offer of sage advice about the difficulties of confronting the political machine in this long-dominated county.

The Requiem Mass echoed with praise for Bob’s wonderful talents and a sorrowful bagpipe salute. We all reflected on his abilities as teacher, counselor and litigator. It was the eulogy that brought back to me the day that Bob Manley came to class to tell my law students about winning the Pembaur decision against the Hamilton County prosecutor’s office. Manley made new constitutional law and upset the county’s defenders in a civil damage lawsuit. The case involved a door in Avondale, broken down with an axe on the advice of then-Prosecutor Simon Leis. Leis’s advice to the local police was held to have been unconstitutional. Manley successfully challenged the prosecutor’s actions, and an important constitutional law principle was upheld as a result of the tenacious advocacy of this gentle giant.

The Prosecutor’s Role

In the 1986 U.S. Supreme Court Pembaur decision, according to the Court’s syllabus: “Deputy Sheriffs received instructions from the Sheriff's Office to follow the orders of the County Prosecutor, who made a considered decision based on his understanding of the law and commanded the Deputy Sheriffs to enter petitioner's clinic. That decision directly caused a violation of petitioner's Fourth Amendment rights. In ordering the Deputy Sheriffs to enter petitioner's clinic to serve the capiases on the employees, the County Prosecutor was acting as the final decisionmaker for the county, and the county may therefore be held liable under § 1983.” (475 U.S. 469)

The Manley Breakthrough

Before Bob Manley won the Pembaur case, people whose rights were violated could not win damage awards against Hamilton County or other governments until they had proved that there was an “official policy” of the county that was causing the violation of constitutional rights. Hamilton County conceded that Pembaur’s rights were violated but argued that an earlier Supreme Court case, Monell, prevented Pembaur from winning his damage claims, since the prosecutor did not make countywide policies. (475 U.S. at 479) But Hamilton County’s view was rejected by the Supreme Court majority and Pembaur won his $5,000 award from the county (947 F.2d 945). It was a Fourth Amendment victory for the rights of every citizen, a value well beyond the now-shattered door of the Avondale clinic operated by Dr. Pembaur. (Pembaur was acquitted by a jury of the prosecutor’s charge of fraud but convicted of obstructing the police by refusing a search without a warrant.)

Teaching Values

The reason that Pembaur’s case is discussed in my law classes about search and seizure is that it set an important principle of accountability for unconstitutional actions. The Avondale clinic’s door destroyed by the police axe had some value, of course, but the greater value is of the right of the individual to hold government liable for the action of the Prosecutor, even though the Prosecutor may not have had an “official policy” to support his decision to tell the police to force entry into the Avondale clinic.

The Future

Each of us leave a legacy, and Bob left a tremendous legacy of goodwill. The Supreme Court victory over the Hamilton County prosecutor’s office was a landmark in Bob’s career. He did as people of faith have long done, “Speak Truth to Power”. Power comes in all sizes and shapes, but the award for Dr. Pembaur was one small step to equalize the rights of citizens, and for that Bob Manley will long be remembered.

TV and Criminal Law: We've Built Expectations!

2006-03-23T20:18:00.000-08:00

During a class discussion of a tough issue in criminal law, the student’s voice boomed out: “Professor O’Reilly, I saw on “Law & Order” last night that this guy ---“ I stopped him in mid-sentence: “Please, that’s TV, every crime has to be wrapped up with a complete verdict in 53 minutes to allow time for commercials; that’s fiction, these are real cases!” His persistence over several classes led to an informal suggestion that time with the criminal law textbook would be more beneficial than efforts to follow Jerry Orbach and his crew through another gritty “cop show”. The student’s misunderstanding of the legal issue was an intriguing moment to ask myself: what impact does television have on the jury and its expectations?

I was reminded of this “TV effect” twice later, in a class at the FBI Academy in Quantico, Virginia, in May 2005, where citizen class members were taught about the presentation of evidence, and more recently at the Cincinnati Citizens’ Police Academy in February 2006 where a veteran CPD detective bemoaned the fact that juries “all expect CSI when we tell them about a real crime – and they wonder, where is the elaborate scientific proof?”

So an article in the March 2006 “Litigation News” from the American Bar Association underscores that concern, as a veteran criminal defense lawyer criticized television scripts: “These shows may create unrealistic expectations for jurors in terms of the quantity and quality of scientific evidence. Scientific evidence rarely plays the role in real trials that it does on TV.”

Our collective fascination with new technology is very evident in the hit shows that feature exotic criminalistics and forensics. Though in the late 1960s each of us serving as police officers learned to hold the arrested person’s fingers as we rolled their fingerprint cards at the lockup, today the sophisticated equipment for identification from eyes and other ‘biometric’ markers seems to make my long-ago police evidence gathering seem so very ancient by comparison.

Juries are ordinary citizens who lead very ordinary lives until they are called to make critical decisions about guilt or innocence. The effects on them of the television presentation of high-tech evidence may be to create a far more elaborate standard of “normal” evidence than the typical prosecution case will feature. As the Cincinnati detective and the FBI specialist have each cautioned, there could be a disappointment among some jurors if the degree of available proof does not match the TV-fed expectation.

The response that some lawyers utilize is to question jurors before their selection about their expectations. The Litigation News article suggests that some defense lawyers “may be able to capitalize, to a certain extent, on the absence of this type of evidence.” To counteract that pressure, the prosecution will inquire, as the article suggests, “whether jurors will be able to separate fact from fiction.” The average normal juror’s influences from a lifetime of televised police dramas may be rising, with as yet untold impacts on the process of proving or disproving guilt in the criminal cases of the future.

2006-03-18T06:23:00.000-08:00

WORDS, HISTORY, AND CONSTITUTIONAL RIGHTS

Former Archbishop Joseph Bernardin was justly proud of his seminary’s history. Deep under its library, Bernardin and the seminary rector displayed for members of our archdiocesan pastoral council a rare wood-bound copy of an “Incunabulum”, an ancient textbook of world history dating from around the year 1490. The hand-illuminated illustrations are still gorgeous, centuries later, and the print is still readable, having been set in movable type by masters of the Gutenberg printing process more than five centuries ago.

Reflecting on the book’s attempt to include the history of the entire world up to 1490, we applaud the technological innovations of movable type and durable paper that were remarkable in that day. Johannes Gutenberg and the German master craftsmen who were the early printed book producers were the remarkable innovators who transformed the world of that time into a world of more widespread literacy – literally transforming knowledge. At that time, monks in far flung monasteries transcribed Biblical verses by hand to preserve the ancient texts. Today, my daughter, a cloistered nun in a Dominican monastery, works on her computer screen in a printing shop to produce devotional texts for the Dominican Order. Times have changed but the evolution of thought remains a constant.

I reflected on the evolution of historical knowledge, and the history of the world in 1490, when I recently received a candidate questionnaire asking whether I was an “originalist” on constitutional issues. Constitutional lawyers love to engage in arcane debates about what the words of our charter document mean, then and now. The 1490 view of the world in the Inculabulum showed a stormy ocean and perils at sea, somewhere off the far coast of Europe. It did not contemplate that three small Spanish ships and an Italian explorer would find a small island in the outer Bahamas after a daring voyage of many weeks to the uncharted “Indies”. Columbus made that particular book obsolete, as we know in retrospect that there was much more out there beyond the book printer’s horizon. The historical parallel to a constitutional “originalist” view in 1490 would be that there is no possibility of land beyond the sea, for the world does not change, and all that is to be known is known today.

As a young law student I heard Professor, now Justice, Antonin Scalia teaching at my law school, and I had the opportunity to come to know him better when I followed in his footsteps as chair of the 16,000-member Section of Administrative Law of the American Bar Association. Scalia is a brilliant man, witty and sarcastic in person, father of nine children, product of an “American dream” overcoming obstacles, and has been a historic but quite controversial figure on the Supreme Court. His extensive body of decision law evoking originalist constitutional interpretation would more than fill this short essay. But the point of the 2006 questionnaire was whether each candidate agrees with Scalia’s originalist view that only the 1787-89 original authors’ intent can be considered when one reads our Constitution today. Since the November 2006 ballot in our county allows no choices on seven judgeships and only one contested election, only the responses from me and from the opposing candidate would make a difference.

Did the Incunabulum have an accurate forecast of the whole history of the world, ending as it did just before Columbus’ fateful voyage in 1492? No. Does Hamilton County set its future by what its namesake, Alexander Hamilton, said during the constitutional debates on adoption of this controversial charter for the nation? No. Are the provisions for governance of the internet expression of views by “bloggers” fixed as of the time that penny broadsheet presses dueled with newsboys in the streets outside of Independence Hall? The challenges that 21st century judges face are different than those of the simpler days when the drafters convened in Philadelphia in 1787, picked up their quill pens, and set to drafting the Constitution.

How each judge interprets laws and the state and federal constitutions is a matter for the well-informed jurist to approach in the context of a 21st century principled evaluation. It is humbling and challenging for anyone to take up the task of interpretation of constitutional rights in the 21st century. I aspire to work with the 1787 Constitution’s words and with the expressions in the 1789 Bill of Rights; but the rights and responsibilities within those documents are not locked, as the Incunabulum was, to a view that history ended when they were first pressed into print. While I welcome the votes of all "originalists" who seek excellence from their elected judiciary, being true to the text in light of the 21st century context is far more important to far more voters. And that's how it should be.

2006-03-16T06:01:00.000-08:00

America's governmental system does not deal well with sudden emergencies, natural or man-caused. We are a federal republic, a representative democracy of states and their home-rule subdivisions and counties, so any sudden urges to get together and uniformly deal with a critical event is subject to our layered system of political decision-making. At bottom, we need to be locally well prepared for emergencies, and not await the arrival of Washington’s benevolence.

I was reminded of this last weekend while talking with one of my personal heroes, Gary Miller, one of the few national and international experts on disaster management who provide the American Red Cross with their on-site leadership teams. Gary is a truly a master of disasters worldwide and recognized far from Cincinnati for his expertise. Gary remarked how the four weeks he spent in post-Katrina relief had been made more difficult by the early missteps of the FEMA bureaucracy. While private relief aid poured into the affected zone, and state officials in Mississippi were engaged immediately in their disaster plan responses, the federal system came clumsily and belatedly into the scene and alienated many of the emergency response professionals. George W. Bush’s classic gaffe, “Brownie, you’re doing a heck of a job!” typified a federal response that was oblivious to the needs of coordinated and rapid action in a crucial moment.

Like the equally gaffe-prone Jean Schmidt’s attack on my fellow veteran Jack Murtha, the federal Administration seems to ignore the truism that one should read the target and squeeze the trigger carefully. Short on facts? Say it anyway! This failure of Washington was wholly preventable. The public disappointment that has been widely felt about FEMA and the frustration with Congressional leaders reflects the climate of the Washington Beltway, and the lack of awareness by the present political hierarchy of our needs out here in the “flyover” hinterlands.

So if we’re going to deal with disasters, should we expect Jean Schmidt and George W. Bush to save us? No, charity begins at home.

No, we can and we have done better with our own home-grown solutions. I was very proud when the Fire Chief and Health Commissioner came to the 92-member Hamilton County Emergency Planning Committee that I chaired, and told us that our work had literally saved five peoples’ lives at a disaster scene. Of all the committees I and others have led, we rarely hear such a thrilling accolade.

The plan we had created for dealing with chemical plant emergency response had worked well “from the ground up”, with fire professionals and EMS directors laying out a response plan, site training, alarm awareness, rescue techniques, and the like. Exercises and contingency what-ifs had been underway applying our plan. The fly in our ointment was that the Air Force considered its aviation fuel depot in the Addyston area to be outside our jurisdiction as county planners; we argued that explosion of a barge would set off fires endangering our West Side residents. They were reluctant to help us plan.

Our plan worked even better than we had hoped. When the BASF Inmont factory exploded in Evanston, the sound of the plant’s siren alerted a nearby Cincinnati fire company to roll. They knew the siren because of our encouragement for on-site training so the truck was on the road near the plant when the 911 dispatch came, and their ladders were up to rescue second-floor workers before the secondary explosions collapsed the interior ceilings of the second floor. All ambulance staging worked well; Norwood and Cincinnati firefighters performed heroic search and fire suppression; and all the injured were at hospitals within 15 minutes of the explosion. This was a record that led national fire groups to use BASF’s fire as a national training video for first responders.

I had been asked by county emergency management director Liore Maccarone to head the planning committee because of my textbook, Emergency Response to Chemical Accidents, which built on my involvement with the 1986 emergency planning law. The core issue then, as it has been since Katrina, is that plans must be worked through by local people. We cannot trust that Jean Schmidt’s accuracy or George W. Bush’s alert management will fill our needs when disaster strikes.

In practice, the coordination of Hamilton County assets with those of the city and the private sector is good and still could be improved. The work we have done locally in the early 1990s had been a model for others; I received many requests for copies of the plan prepared by my committee’s collective efforts. If we had Katrina-sized problems here, whether the awakening of the New Madrid fault, a long-quiet earthquake potential, or a major terror incident involving wide toxic exposures, I expect we would have to help ourselves for the critical first day while Columbus and regional FEMA officials got their act together.

Are we capable of doing it well? I think so. I have completed the volunteer CERT emergency training program and the Incident Command System course, as chair of our city council’s public safety committee, and we are blessed with great local leaders in fire and police emergency organizations. We can help ourselves and our communities by thinking ahead to volunteer in Red Cross, local disaster relief and other organizations that will give us the training in advance. We hope we’ll never have another BASF explosion, but the reality of risk must be dealt with first and foremost by Hamilton County’s people. Given the current attitudes of the current national leadership, we’re well advised to be ready on our own.

2006-03-07T07:59:00.000-08:00

Thanks for taking your time to read our blog!

Our goal is to make a positive impact on the Ohio Court of Appeals, and your thoughtful assistance will make a difference. Please let us know of your questions and requests as the campaign proceeds. Within the constraints of the Ohio judicial candidate rules, we'll be interacting and responding.

Can voters judge a judge on the basis of his or her statistics?

No. Even though more judicial data and statistics are available today than ever before, e.g. here in Hamilton County on courtclerk.org or statewide on sconet.state.oh.us, it is important to look behind the numbers before drawing a valid conclusion.

For an appeals court judge, the ideal of justice is to be done one case at a time. The rights of the individual and of the general public should always be in balance. All that we as candidates can offer is to do justice and act fairly.

It's easy to overestimate the power of statistics when evaluating a court and its work. On Feb. 6 at page A6, the Cincinnati Enquirer charted the results of statistics kept by the Hamilton County Prosecutor's office regarding the First District Court of Appeals; the statistics appeared to show that the prosecutor prevailed on appeal in 89.6% of appeals in 2003, 93.8% in 2004, and 94.5% in 2005. Individual judge statistics charted by the prosecutor and printed in the Enquirer suggest sitting judges affirmed the prosecution in a range of 80.3% of cases to a high of 89.8% of cases. The story did not show that only about 40% of the cases heard on appeal are criminal cases. The statistics don't show the whole picture since the majority of appeals are not from the criminal cases in the lower courts.

Other courts have varied percentages, but they don't tell the whole story. In my work with disabled veterans, we have often been frustrated at the high rates of deficiencies in the work of the Department of Veterans Affairs. These errors lead to reversals in the Court of Appeals for Veterans Claims when cases denying VA benefits have been appealed by veterans with competent legal representation. But statistics don't show the reality in that system, and they may be misleading whenever a court is examined without the context of a particular case.

So, should voters judge the judges based on statistics? No. A judge cannot ethically decide cases based on statistics or quotas, e.g. a fixed ratio of affirmed to reversed criminal cases. Every appeal must be fairly and impartially considered. If you are the person whose career, money or freedom is at stake, that's what you deserve. That's what I hope to do, if elected to the Court of Appeals.

Sample

2006-03-06T12:39:00.000-08:00

This is a sample posting for the O'Reilly For Judge blog, which will be a part of the O'Reilly for Judge website.