Wednesday, September 8, 2010

Seminars directed to only judges, prosecutors are troubling

Recently, I became aware of a situation that, as a criminal defense lawyer, I find troubling. I discovered the Ohio Highway Patrol is conducting seminars with federal government monies.

What makes this so disturbing is the fact the seminars are directed to judges and prosecutors only, and defense counsel are specifically excluded. This raises concerns the programs are being conducted to indoctrinate judges and to influence future court decisions

I can only assume these specific programs somehow slipped by the Ohio Supreme Court's CLE committee and disciplinary counsel without being properly vetted to see if they are ethically proper and to see if credit could be given appropriately for attendance. From the perspective of one who has been excluded, these programs do not appear to pass muster on either point.

Rule 2.9 of the Code of Judicial Conduct precludes ex parte communications. Ex parte communications includes not only pending matters but also impending matters. I understand the definition of ex parte communications can be a term of art, especially when dealing with lawyers; however, in the instant matter, we have law enforcement indoctrinating judges and prosecutors to the exclusion of defense counsel on the use and validity of speed-measuring devices, identifying drugged drivers, crash reconstruction and finally now field sobriety tests. The information that is provided is only from the law enforcement perspective, and it is not subject to confrontation or challenge by defense-oriented peers.

It is fairly apparent the purpose of these seminars is to influence judges and prosecutors to the exclusion of defense counsel on issues that will be coming before the court in the near future. In addition, it gives the appearance the bench and the state are in bed together and defense counsel is the ugly stepchild of criminal court. The Ohio Highway Patrol officers are in court day in and out sitting at the prosecutors table, and they drive the case as much as any defendant does. Mass ex parte communications are as improper as if the officer spoke individually with the judge before trial without the defendant or defense counsel being present.

One might argue this is too vague to fall within the definition of impending, however, one cannot disagree that, at minimum, it gives the appearance of impropriety and does not appear to promote impartiality as required under Rule 2. Even more specifically, Canon 1 states a judge shall uphold and promote the independence, integrity and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.

My complaint does not seem to concern the Bar like it should. Just imagine the complaints that would be raised if taxpayer-paid-for CLE seminars were conducted by Medical Malpractice Plaintiff firms for the purposes of influencing and indoctrinating only judges and plaintiff lawyers to the exclusion of the insurance defense attorneys. The Bar would immediately put a stop to these seminars.


Source: The Newark Advocate

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