Episode 13

Transcript

 

Chris Koehler: Welcome to another episode of Frantz Ward's podcast series, Shoveling Smoke. I'm Chris Koehler, a partner at Frantz Ward, and I'll be your host today. Today, we're taking the podcast all the way up to the Supreme Court of Ohio, as we talk to Justice Michael Donnelley about an important new initiative in Ohio criminal courts that aims to bring fairness and transparency in sentencing for felonies. Justice Donnelley has served on the Supreme Court since January of 2019. Before that, he served on the Cuyahoga County Court of Common Pleas for 16 years. Prior to serving on the Common Pleas bench, he was a practicing attorney for over 10 years, first as a Cuyahoga County prosecutor, and then in a civil litigation practice. So he's really seen things from all sides. Justice Donnelly's interests and involvement in judicial issues reflect his passion for service and professionalism in the legal world. Here are just a few of the groups he's worked with. The Supreme Court's Commission on Professionalism, the Supreme Court's Death Penalty Task Force, Cuyahoga County's Mental Health and Developmental Disabilities Court, and he's also a faculty member at the Ohio Judicial College. So the topic we're talking about today is really just a continuation of the important work he's done in the past. Welcome, Justice Donnelley.

 

Justice Michael...: Thank you for having me, Chris.

 

Chris Koehler: Also joining us today is my friend and partner, Chris Keim, who is Frantz Ward's managing partner. Prior to joining us in 2002, Chris was a Cuyahoga County prosecutor as well, and tried dozens of murder, drug trafficking, and other serious felony cases. He's still trying cases here at Frantz Ward, but in the civil arena. Like Justice Donnelley, he doesn't let his day job get in the way of serving the community. He's involved in a host of non-profit organizations, including his recent work with the Cleveland Metropolitan Bar Association and its initiative on racial equity and the law, known as REAL. Chris is the co-chair of the REAL work group focused on criminal justice reform. Welcome, Chris.

 

Chris Keim: Thanks. Glad to be back. You and Smith can't keep me out anymore.

 

Chris Koehler: We will try. This is probably your last one. Justice Donnelley, how is life on the Supreme Court? Is there much difference from the Common Pleas bench?

 

Justice Michael...: Oh, yes. There's a big difference. I love it. But in terms of day to day pressures, I would describe being at the trial court for 14 years as I was as more of an emergency room type atmosphere where you have to make decisions a mile a minute. And now the Supreme Court, I have much more time to think about the issues that we're deciding, which I think is important by design. But I'm really enjoying the cases and reviewing the cases and working on initiatives like what we're going to talk about today.

 

Chris Koehler: Well, that's a good transition. Let's move on to that topic, which is criminal justice reform. Chris Keim, people may think it's strange that Frantz Ward, which doesn't focus on criminal law, has become involved in this issue. How did you get involved and how did that lead you to Judge Donnelley?

 

Chris Keim: So it's interesting. We have to go all the way back to 1996 as I was graduating law school. Then Assistant County Prosecutor Mike Donnelley and I went to lunch, as I was strategizing how in the world Stephanie Tubbs Jones was going to hire me to become a prosecutor. Mike was kind enough to help me, and ultimately, I did get into the prosecutor's office. Fast forward to last summer, during the social unrest we were all experiencing. I, like many people, wanted to figure out how to help. We realized as a civil firm, we probably need to join with other stakeholders and key organizations, because as a firm, we probably wouldn't be able to do much ourselves. So the same time, the CMBA had accepted the challenge to be a force for positive permanent change in our justice system. It started listening to its members and hosting a variety of conversations regarding the need for ongoing justice reform. It placed out a call to action for its members and I ultimately volunteered. As someone who grew up as a prosecutor, I always wanted to be able to heed that call to action and help with the criminal justice issues we were seeing. I ultimately became the co-chair, along with Russ Tye of the Cuyahoga County Public Defender's Office, of the CMBA REAL work group called Continuing Criminal Justice Reform. The other three important work groups that they did were dismantling systemic and negotiated racism, promoting and growing white allyship, and interrupting the legal profession's systemic inequities. During our last work group meeting last week, we decided that one of the things we needed to do was to promote and educate the folks on the criminal sentencing database that's underway, which led us to Judge Donnelley, who, along with others, has been an outspoken proponent and advocate of creating such a database.

 

Chris Koehler: Judge Donnelley, why is it important to create such a centralized database?

 

Justice Michael...: Well, for a variety of reasons. I'm going to preface that by saying the more I study this issue, the more I've come to believe that this is really the most important undertaking we can take as stakeholders in the system to advance the system to a place where we will be light years from where we are now in our ability to treat people more fairly, more equitably, under the system. I could tell you a little bit about how I came to believe that.

 

Chris Koehler: Please. Yes.

 

Justice Michael...: One of the first cases I heard as a Justice on the Supreme Court was, in fact, reviewing a sentencing case. It involved a 55 year old woman named Susan Gwen down in Central Ohio. She had been indicted by the state on a number of non-violent theft related felonies. She was dressing in scrubs and going into senior citizens homes and stealing personal property from the residents there, numerous times over a number of years. I'm not trying to minimize her conduct, but there was no violence involved, and she was taking items that traditionally, thieves don't take for resale value because she was hoarding them in her house. Which suggested to me, as a former mental health court judge, that some mental health issues might be at work. Fast forward. She's indicted, she receives counsel, they negotiate a plea bargain. At the plea hearing, she enters a plea, and she's given no indication what the state plans to do in terms of advocating for a sentence at the sentencing hearing and the range involved. The judge could give probation to many decades in prison. So flash forward to her sentencing hearing. The state, for the very first time, stands up and says, "We are advocating for a prison sentence of 42 years." The defense lawyer stands up and advocates for what we call community control, otherwise known as probation. The judge ends up imposing a 65 year sentence on Ms. Gwen, who had no previous criminal record. So Ms. Gwen showed up at her sentencing hearing not knowing whether she would go home that day on probation or die in prison because she would have to reach the age of 120, and she found out the latter. It shocked me the range and the power that I had as a trial court judge. So shortly after that, I was invited to address Ohio Sentencing Commission as a new justice. Fortunately, right before that happened, a national sentencing took place in the Paul Manafort case. He received a sentence of something like 42 months when the government was asking for 19 years, and it set off this national debate on whether he was being treated too leniently because of who he was. That interested me, so I studied it, and I found out that that was not the case. I found out that in the federal system, they have the data, the information, that we do not have here in the State of Ohio. At the sentencing hearing, Manafort's lawyers were able to present 17 similarly situated defendants, some of whom had been before the very judge that he was going to be sentenced, and the sentences were dramatically lower from what the government was asking. And the judge, based on this information, was forced to follow what our laws call for, and that is to treat similarly situated defendants with similar sentences. That showed me the power of data right then and there. I addressed it and I began to meet other people that saw the same thing and have been advocating for this in different areas of the state. We've formed alliances and made it our common goal to make this a reality.

 

Chris Koehler: What type of data is captured so that if the aim is consistency and transparency in sentencing, what type of data is collected and given to the judges if they sign on to this?

 

Justice Michael...: All sorts of data. We're primarily using right now, the state of Florida as an example. If your listeners Google Florida's broken sentencing system, you'll see that in 2016, some investigative reporters down in Sarasota studied, very painstakingly, extracting sentencing data from various courts in that area. The results they found were very disturbing. They found that people of color were receiving exponentially more severe sentences than white defendants, sometimes from the same judge. They found a defendant who was charged with aggravated robbery who had one prior misdemeanor in his background, a black defendant, and then aggravated robbery with one prior misdemeanor. The black defendant received a sentence of 26 years, the white defendant received two year's jail time. So this set off a major story throughout Florida, and the legislature reacted. They said, "We need to start collecting all sorts of relevant information. Race, age, criminal background." All the factors that judges typically use to differentiate cases whenever they're weighing mitigating and aggravating factors to come up with a sentence, so judges can be presented with this type of information.

 

Chris Koehler: It sounds like the program is somewhat in its infancy. Where does it currently stand and what will the next steps be as it gets further rolled out?

 

Justice Michael...: Well under Judge Gene Zmuda, a former trial court judge himself who sees the value in this, who is now on the Sixth District Court of Appeals, he has led a initiative to come up with a uniform sentencing entry, along with Sarah Andrews, the Director of the Ohio Sentencing Commission. This is going to be the starting point. Right now in our state, we have 88 counties. If you were to draw typical sentencing entries from either of those counties, you wouldn't be able to make heads or tails if you were trying to draw analysis between the two of them because all of them look different. Believe it or not, in some rural counties in the State of Ohio, they don't have computerized entries. They still do their sentencing entries by hand on paper. So our goal is to have a uniform sentencing entry to collect necessary data points. What we are learning from organizations like Measures for Justice, a non-profit who is pushing data collection in criminal justice systems across the country, once you start on this data collection, data begets data. You see the value of obtaining other forms of data for policy makers to judge the efficiency of rehabilitation programs. It's in its infancy right now. The uniform sentencing entry has numerous data points that is designed to collect initially, but it's designed to be a living document. So once we identify data points that are relevant and necessary to collect, that we can just simply add that to the mix.

 

Chris Keim: Hey, Justice Donnelly, if I could jump in. How long do you think before that data's collected and then judges are actually able to use that information in sentences?

 

Justice Michael...: Well, according to Ms. Andrews at the Sentencing Commission, it's going to take a number of years. But what I'm optimistic about is as we travel around the state and talk to judges about this, some of whom were initially wary about the issue, the more we get the judges to understand the value of this data collection and the more this information can inform their decision making, the more converts we are getting by the day. In fact, a number of judges here in Cuyahoga County have signed up for a pilot program to start using the uniform sentencing entry. The entire bench in Summit County has volunteered. So every day, we get people saying how they see the value in this. Chris, you and I were talking before the program specifically about young judges. Young judges really see the value of this. People who are being called upon to sentence people for the very first time, they're reading our sentencing law that's been on the books since 1996. The cornerstone of our sentencing laws is contained in Ohio Revised Code 2929.11 and 12. It very clearly directs judges to treat similarly situated defendants with similar sentences. And for the first time, young judges are turning to people like me, who have served on the bench for 14 years, and saying, "How did you do this? How did you do this?" Regretfully, I have to say, "Well, we had to rely on our gut." This is something that was initially called for back in 1996. The framers of our current sentencing laws saw the value in this, and said in the legislative history, "We expect the court system to collect this data and maintain it so that it can be used to carry out these laws." The problem is we never did it. These problems that have been illuminated, or not so much illuminated, the political will to address what people have long known, that a lot of our sentencing outcomes are not dependent upon the rule of law and proportionality and fairness that is required under the rule of law. The common belief amongst most people who practice in the system is that your sentencing outcome is mainly dependent on which judge is randomly assigned to your case at your arraignment. That causes a mistrust in the public view when that's what they believe, that your fate is somewhat akin to a roulette wheel, dependent on which judge you're assigned on the very first day you enter not guilty plea.

 

Chris Koehler: Are you getting specific pushback from people, or is it more just disinterest?

 

Justice Michael...: I'd say a little bit of both. The pushback usually comes secondhand about judges at judges meetings, indicating their disfavor. But what I've tried to say quite clearly is, if there's a counterargument to this proposal, I'd certainly like to hear it. I'd invite anyone that doesn't see the value in this type of transparency to voice their opinion because we need to have that debate. But the more people that we talk about the utility of this, the more people see it as a necessity that needs to be implemented.

 

Chris Koehler: So just to be clear, the goal would be to provide data and information to guide sentencing, not to tell judges what they need to issue the sentence at.

 

Justice Michael...: Absolutely. Every judge, myself included, values to have some level of discretion. Because every case is different, every case has its own mitigating factors, every case has its own aggravating factors. If you're going to treat someone differently, you should be able to articulate on the record why you're doing so. If you're going to depart from what other judges are sentencing, particularly if you're going to depart in such a severe way, there better be a good reason for it. There's a very prominent criminal defense attorney, Diane Menashe down in Columbus, who has an anecdote that illustrates exactly what the problem is and what the solution is. She was representing a client on an involuntary manslaughter and she, through word of mouth, got wind that the prosecutors had intended to ask for a 13 year sentence at sentencing hearing. She was shocked because she instinctively knew that this was way out of range on how other defendants with similar convictions had been treated. So she invested 40 hours of research time, time that the average criminal defense attorney does not have, combing the Franklin County records to come up with similar cases. She presented it to the judge at the sentencing hearing, very emotional sentencing hearing. The judge was able to follow what he was sworn to do, and that is follow the law and treat similarly situated defendants with a similar sentence, because what she came up with was that the average sentence for the set crime was three to five years. That's where she was able to keep the judge, by presenting that data. He could not articulate any reason to deviate or depart from that sentence. But also, people, I think, need to understand that the big picture policy makers down in our legislature who set the ranges on trial court judges and our laws are going to be able to make much better informed decisions about those laws than they did in 1996 when those laws were originally drafted. So ultimately, this is going to improve not only judges' informed decision making, but legislators making much more informed policy decisions when creating these laws.

 

Chris Keim: Justice Donnelly, Judge Zmuda, who you referenced earlier, he spoke to our CMBA work group, thanks to Judge Emily Hagan and Judge John Russo of the Cuyahoga County Common Pleas bench. They're in the work group as well, and they were able to get him in to speak to us. It really struck me and crystallized in my mind when he said, "This is just another tool for the trial court to be able to tell their story about why they did what they did at sentencing." In my mind, that really crystallized what you're saying. I also would like to... We talked a little bit before we started here about you just watched Moneyball again. I'd rather let you give the analogy than me try and describe it and mess it up. So if you could tell how you were watching it the other day and it brought you back to criminal justice.

 

Justice Michael...: Sure. My daughter and I were watching that. I had seen the movie years ago, but I had not seen it since I became involved in this endeavor, and it really hit home. Our society is moving in this direction in so many areas. Watch that movie and it will really show the value. What happens is in the movie, the movie opens up when the general manager is sitting, listening to a room full of old scouts who made the decisions about who the team was going to bring on board. A lot of them, you could tell from the conversation, were simply making decisions based on their gut, not on relevant information that you could use to truly value what a player was worth and what their potential was. The manager, Billy Beane, changed the course of baseball because he said, "We're not going to go in that direction anymore. We're going to change the game. We're going to start looking at analytics and deciding who's being undervalued here." He changed the game of baseball, and as a result, he was offered one of the highest salaries in the history of the game because he moved in this direction. I think it's going to take time. Any effort to change, there's going to be people wary of moving in a direction and abandoning the old ways that we do things. But I think with this type of information and the knowledge of what's taking place in states like Florida, that didn't have the data, the unfairness of people of color receiving sentences ridiculously longer than white defendants. It's something, from a public confidence standpoint, we simply can't ignore, and we cannot drop the ball on this.

 

Chris Koehler: So someone like myself, I don't practice any criminal law, and as far as you know, have never been involved in the criminal system. How do you convince people like me that this affects them and it's a worthwhile initiative to support?

 

Justice Michael...: Well, everyone, whether we practice in the system, whether we've ever been involved in the system at all, has to have public confidence that we have a criminal justice system that is working right. Because the criminal justice system, when laws are enforced, when people break the law and there's consequences, that's how we maintain public order, that's how we maintain public safety. But we also want to believe that our laws are being followed and that our people are being treated equally and fairly. If people lose confidence in the justice system, which is the bedrock of our democracy, it's not a place where partisan politics should ever enter. It's a place for anyone, no matter whether you're conservative, whether you're liberal, whether you're moderate, independent, Republican, or Democrat. If you have a dispute, whether it's criminal or civil, you want to believe that you can take that to the court system and have it resolved according to the truth, and in a fair and just manner.

 

Chris Koehler: So how can people get involved to support this? I'll ask you, Justice Donnelley, on a statewide level. And then Chris, if you could describe how on a local level in Cleveland, people might get involved.

 

Justice Michael...: I would urge everyone that is listening and sees the value of this to contact their state legislator and ask them to support this. I'm really happy that so many judges are volunteering for this. But I think to get all 88 counties on board, I foresee that legislation is going to be required so that we can achieve that type of uniformity necessary to make this database work correctly. I hope that when every judicial candidate who wants to be a judge in the next cycle, 2022, is asked what their position is, because I think it's that important that we keep up the political will to get this implemented. I know the bar, the CMBA, has fully endorsed this, which I'm very, very happy about. Other bar associations throughout the state are doing so as well.

 

Chris Keim: As far as locally, Chris, our CMBA, the Racial Equity and Law work groups still need volunteers, so it really is not too late to still get involved. If you go to the CMBA website and look up the REAL work groups, or send me an email or reach out to the CMBA, they'll definitely point you in the right direction of how to help on a local level.

 

Chris Koehler: At the end of our podcast, we usually try to give a few takeaways. What I'm hearing, Justice Donnelly, from you is this affects us all because it fosters confidence in the system. So it's something worth supporting, and there are easy ways all across the state to get involved. And Chris, thanks for giving the information as how we can get involved here in the Cleveland Metropolitan Bar Association. Justice Donnelley, thanks very much for joining us and talking about this very important endeavor. We're anxious to see, as this is implemented, how it takes off. So thanks for coming.

 

Justice Michael...: Thank you very much. It's been a pleasure and an honor. I really appreciate the opportunity to speak about this.

 

Chris Koehler: Chris, thank you. I see you every day, but thanks for joining and getting involved on behalf of the firm in this important initiative with the local bar association.

 

Chris Keim: Love to do it.

 

Chris Koehler: So that wraps up another episode of Shoveling Smoke. Thanks for checking in with us. We hope you'll listen in next time.

 

Shoveling Smoke is a production of Evergreen Podcasts. Our producer and audio engineer is Sean Rule-Hoffman. Thanks for listening.