Friday, June 04, 1999
Advice for judges: Curb your tongues
Some comments give defendants fodder for appeal
BY DAN HORN
The Cincinnati Enquirer
Before beginning a criminal trial, Judge Robert Gorman used to jot down a list of reminders to himself and tape it to his desk.
At the top of the list, he always wrote the same words: “Keep your mouth shut.”
It's still good advice, he says, but he's the first to admit it isn't easy for judges to resist the temptation to scold, lecture and otherwise carry on about their big decisions.
Several recent cases in Hamilton County Common Pleas Court suggest that temptation is as strong as ever. During the past year, issues ranging from abortion rights to the separation of church and state have found their way into sentencing decisions rendered by local judges.
The debate over when those comments are necessary — and when they go too far — has heated up as more defendants try to appeal their sentences based on statements made by judges.
“Trial courts are given tre mendous latitude on what they can do - as long as they follow the rules,” said Judge Gorman, a former trial judge who now sits on the Ohio 1st District Court of Appeals.
Because those rules recently changed, almost everyone in the judicial system has been paying closer attention to what judges say when they impose sentences.
The reason is a set of guide lines established in 1996 that changed the way judges impose sentences and made it easier for defendants to appeal those sentences.
The guidelines require judges to fill out a checklist detailing whether a defendant meets the criteria for the most severe punishment.
While doing so, judges often explain in court why they believe the defendant does or does not meet the criteria. That explanation can lead to colorful and sometimes controversial statements.
“I jawbone a little,” said Common Pleas Judge Robert Ruehlman, who's known for being outspoken on the bench. “I do it all the time because I think it's important. But I still follow the guidelines.”
Judge Ruehlman spoke out again this week when he sentenced April Parson to the maximum 10 years in prison for involuntary manslaughter. Ms. Parson was convicted of smothering her 2-month-old son to stop his crying.
Before imposing the sentence, the judge said from the bench that he believes society's acceptance of legalized abortion has made it easier for defendants such as Ms. Parson to accept the idea of killing their children.
“It's our country's fault,” the judge said. “We have sanctioned the wholesale slaughter of unborn children.”
Although his comments have sometimes become appellate issues, Judge Ruehlman sees nothing wrong with the time-honored practice of lecturing from the bench.
In some cases, he said, it's necessary because the judge is the only person who can voice outrage on behalf of the victims.
“Rather than taking matters into their own hands, they can have the court beat up on (the defendant),” Judge Ruehlman said.
Despite the note he used to keep on his desk, Judge Gorman agrees judges should have some leeway to speak their minds during sentencing. “The court is the conscience of the community,” he said.
He also acknowledged that other factors may occasionally encourage a judge to spout off.
“Judges are elected officials,” Judge Gorman said. “They are not disappointed if their names are printed in the newspaper.”
But there are limits to what a judge can say. Rules set down by the Ohio Supreme Court require judges to refrain from criticizing or commending jury verdicts and from any speech that “could reasonably be perceived as bias or prejudice.”
The problem is that what one person sees as bias, another sees as fair commentary.
“It's a subjective standard,” said Ohio Supreme Court spokesman Rick Dove. “The general rule is judges have the ability to make comments about their view of the case, especially in terms of justifying their decisions.”
Although the new sentencing guidelines have given defendants more issues to appeal, Mr. Dove said it still is rare for bias cases to make it all the way to the state's high court.
A 1991 case involving Judge Ruehlman is one of the few the court has cited as an example of a judge crossing the line. In that case, the judge chastised former Home State Savings Bank owner Marvin Warner for failing to pay $12 million in restitution.
Judge Ruehlman suggested Mr. Warner had enough assets to make the payment because he was the owner of a horse farm. “When I get through with you,” he said, “the only horse you will be riding is one of those horses out in front of the Kmart on a little merry-go-round.”
The Ohio Supreme Court removed the judge from the case a year later, ruling he could not fairly decide issues such as early release from prison.
More recently, Common Pleas Judge Melba Marsh became the target of a sentencing appeal when she quoted a Bible verse before sending convicted rapist James Arnett to prison.
Mr. Arnett's sentence was thrown out when the Ohio First District Court of Appeals concluded the judge had relied too much on the Bible for guidance. The Ohio Supreme Court will decide whether Judge Marsh or another judge should impose the new sentence.
Although he wants Judge Marsh removed from the case, Mr. Arnett's attorney said he does not dispute a judge's right to speak out at sentencing.
“When a judge goes on about his thought processes, it's a benefit to the defendants because they know why they got their sentence,” said the attorney, Charles Bartlett Jr. “But it's also dangerous because if they step outside the boundaries, they're giving the defendants an appealable issue.”
Judge Mark Painter, who wrote the appellate decision in Mr. Arnett's case, said he also sees nothing wrong with a stern lecture from the bench — as long as it sticks to the sentencing guidelines.
“If you take away judicial discretion, you almost make judges like clerks,” Judge Painter said. “You can't make everything by rote. People are different and need to be dealt with in different ways.”
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