Sunday, February 17, 2002

The biggest case in town is in her court

Mediation on profiling is an effort to calm the storm

By Kristina Goetz
The Cincinnati Enquirer

        She's been known to keep litigants in her judge's chambers for hours with only M&M's to snack on until they settle a case.

        She'll entertain ideas from just about anyone — even court security guards — if it'll help solve a problem.

        Critics have dubbed U.S. District Judge Susan Dlott an unabashed liberal who only snagged an appointment from Clinton in 1995 after husband, Stan Chesley, raised millions for and the Democratic Party.

Susan Dlott
Susan Dlott
    • Born Sept. 11, 1949, in Dayton, Ohio, the granddaughter of four Russian immigrants. She has been married to Cincinnati lawyer Stan Chesley since 1991.
    • Earned a bachelor's degree from the University of Pennsylvania in 1970 and graduated from Boston University School of Law in 1973.
    • Clerked for judges Jack G. Day and Alvin I. Krenzler of the Ohio Court of Appeals in Cleveland after law school.
    • Was assistant U.S. attorney in the Southern District of Ohio from 1975 to 1979.
    • Entered private practice and, in 1981, became the first female partner at the Cincinnati law firm Graydon, Head & Ritchey.
    • During her 16 years there, represented plaintiffs and defendants in several high-profile cases that included:
    Winning an acquittal in 1981 for Dr. Bertold J. Pembaur, a doctor accused of improperly billing the state Medicaid program. At the time, it was the longest criminal trial ever in Hamilton County.
   Coordinating defenses in a 59-defendant securities fraud case in 1990 and 1991.
    • Appointed by President Clinton to U.S. District Court for the Southern District of Ohio in 1995. She has been primarily in Cincinnati since 1996.
    • Forced Hamilton County Sheriff Simon Leis to allow an inmate to have an abortion and further ruled the county's policy of barring inmate abortions violated the prisoners' constitutional rights. “The sheriff might find such a right morally repugnant,” she wrote in her 2001 ruling. “Nevertheless ... ours is a government of laws, not of men.”
    • Found that a school violated the Equal Protection Clause when it did not renew a teacher's contract because of his sexual orientation in 1998.
    • Defended Christmas as a public holiday and included this in the introduction of her 1999 ruling: “We are all better off for Santa, the Easter bunny, too, and maybe the great pumpkin just to name a few.”
        Now, the future of race relations in the Queen City may be in her hands. She's overseeing an unprecedented effort to resolve a racial-profiling lawsuit that accuses Cincinnati police of detaining African-Americans because of their skin color.

        The outcome of the case could set a new standard for resolving decades-old problems in race relations not only here but nationwide.

        Her peers say this sometimes eccentric, often unconventional judge may be just what the city has been looking for to lead it to common ground.

        She's set an April 5 deadline for lawyers to either settle the case — or resort to settling their differences in court. Nobody doubts her resolve, and her critics aren't talking.

        “If anybody can get something going here, she is the one who can do it,” says U.S. District Judge S. Arthur Spiegel, who has known Judge Dlott for 23 years.

Case of a lifetime

        Judge Dlott wasn't looking for the most important case of her career when it suddenly developed last March.

        The American Civil Liberties Union and a group of black activists wanted to widen the scope of a little-known, racial-profiling lawsuit already in her court. In that suit, businessman Bomani Tyehimba charged that police illegally ordered him out of his van at gunpoint while his 7-year-old watched.

        The ACLU asked that the 2-year-old lawsuit be turned into a class-action case, meaning it would cover all African-Americans who claim they've been wrongly detained by police.

        As part of the request, 28 people alleging police misconduct shared their stories in papers filed with the court.

        Quickly, racial profiling became front-page news, amid allegations that it was a widespread social and legal problem. Racial tensions, already rising, worsened with the Timothy Thomas shooting, April's riots and the beginning of a separate federal investigation of the police department.

        In May, Judge Dlott agreed — at the request of lawyers for the city, the ACLU and black residents — to take unprecedented action to mediate the racial profiling case in hopes of settling it.

        The class-action question was put on hold. In its place, a conflict-resolution firm was hired to interview thousands of people — whites, blacks, young, old, police, city workers, faith leaders and others — for ideas on how to improve police-community relations.

        If the mediation works, a plan of action will obligate all parties involved.

        “So much is at stake,” Judge Dlott says today. “With the lawyers we've got, with the parties we have, they are fully capable of working out a satisfactory solution for everyone.”

        Of all the post-riot initiatives to improve race relations, Judge Dlott's mediation is regarded as having the best chance for success. Not only have 3,500 people offered their ideas, but any agreement will be enforced by Judge Dlott's court.

[photo] The judge's chambers are not too serious for her spaniels Dickens (right) and Crumpet.
(Glenn Hartong photo)
| ZOOM |
        “I think Cincinnati is being very closely watched,” said Dr. Samuel Walker, a criminal justice professor at the University of Nebraska at Omaha. “It's a high-profile case. In many people's minds Cincinnati is a more typical American city than Los Angeles or New York. There is a lot of potential, but there's a big if there.”

        Since May, Judge Dlott has been in contact, often weekly, with the lawyers. She has attended a handful of meetings with citizens who shared their ideas about how police officers and community members can work better together.

        At the same time she's kept up with a yearly caseload of 300 civil and 30 criminal suits that range from contract disputes to white-collar fraud.

        “She's real clear that if people aren't committed to this, she'll put on her robe and meet them in court,” says Jay Rothman, president of Aria Group, the conflict-resolution firm appointed by the judge.

        Says Mayor Charlie Luken: “The rubber is meeting the road, and the deliberations are becoming more difficult. But I remain ever optimistic.”

Chambers mirror eccentricity

        Judge Dlott won't discuss details of the mediation case. If a settlement can't be reached, she'll have to hear the case in court.

        What the 52-year-old former assistant U.S. attorney will talk about is why she encouraged mediation and her approach to problem-solving.

        She is sitting with Dickens and Crumpet, her two Cavalier King Charles spaniels, in her chambers in Cincinnati's federal court building downtown. Stuffed animals fill window sills and top book shelves. There are dog clocks, dog prints and papier mache dogs, dog bones and water dishes, a dog bed and even a doggie cart for Dickens and Crumpet to ride in.

        On a bookshelf are photos of Bill and Hillary Clinton, Al Gore and John Glenn, juxtaposed with Rocky and Bullwinkle trinkets and Wizard of Oz paraphernalia.

        Hamilton County Common Pleas Judge “Melba Marsh calls it chamber-rama,” Judge Dlott says, laughing.

        “The dogs are obviously a little eccentric,” says Bill Gallagher, a criminal lawyer with the Cincinnati firm Arenstein and Gallagher. But “I've seen her do some pretty tough things.”

        Mr. Gallagher says Judge Dlott has surprised him with her willingness to investigate cases.

        “She reads everything you give her,” he says. “She definitely has a sense of perspective. She truly understands that she's affecting people's lives with every decision she makes.”

        It's all a part of her method: Make people comfortable and do what it takes to resolve difficult cases. Her style: Listen, intuit, nudge.

        “A lot of judges feel it's heavy-handed to gently push counsel toward resolution, that they ought to do it on their own,” Judge Dlott explains. “Sometimes what they're suing about is not what they're angry about.”

        Judge Dlott has been known to make litigants stay and negotiate for hours until they get to the core of a problem. Chocolate and other hard candies are strewn across the office in glass bowls to feed discussion.

        She once handed a man a box of Jenny Craig diet bars during chamber discussions after he mentioned he was hungry.

        “He ate the Jenny Craig,” she says. “You don't stop until the job is done.”

        She's even been known to conduct proceedings at home in Amberley Village.

        “I was a little embarrassed being in my bathrobe,” Stan Chesley, her husband of 10 years, says of one startling experience. “Then I realized what was going on when Betty, the court reporter, showed up. I didn't stick around.”

        If negotiations don't work, she's not reluctant to rule from the bench. Last year, she ruled that county jail inmates have the right to abortions. In 1999, she upheld Christmas as a federal holiday.

        “I respect lawyers, and I'm going to let them do their jobs,” Judge Dlott says. But make no mistake about who's in charge: “There's one person who's in control of the courtroom,” she says.

        Scott Greenwood, a lawyer involved in the federal mediation and general counsel for the Ohio chapter of the ACLU, won't speak about the case but will discuss his experiences with the judge.

        “She makes people feel comfortable, but at the same time there is this edge,” he says. “As professional and as courteous as she is, you better do certain things.

        “God help you if you show up late.”

"I don't fit any label'

        Judge Dlott grew up in Dayton, and knew she wanted to be a lawyer at age 8.

        “I couldn't be a doctor,” she says, “because I was afraid of blood.” And she was a klutz so anything physical was out.

        “The one thing I could do was get good grades.”

        Those grades paid off when she went to the University of Pennsylvania to get her undergraduate degree and to law school at Boston University.

        When she was appointed judge in 1995, there was speculation that she got the job because of her husband's connections.

        Judge Dlott is well aware of her critics, and so is her husband, Mr. Chesley, himself a nationally known, class-action lawyer.

        “I really take umbrage when people say she got her position by virtue of my political roots,” he says. “It's not fair to her.”

        About a dozen people interviewed for this story said they either wouldn't talk on the record or wouldn't talk at all about how she got her job. To that Judge Dlott has a short retort: “I don't fit any label.”

        And besides, she says, people are stuck because her appointment is for life.

        Mr. Chesley says his wife has a great temperament and work ethic and isn't afraid to make tough decisions.

        “I've never been able to win an argument,” he says. “She's tough. She wins by pure logic.”

        But the two say they don't talk about law. They discuss movies, theater and her niece and nephew. They don't have children together, but there is one special family portrait on Judge Dlott's office wall taken by Annie Leibowitz: Judge Dlott, Mr. Chesley and the two dogs.

        Sheldon Goldman, a political science professor at the University of Massachusetts Amherst and a recognized researcher and author, says people should realize there is no immaculate conception of judicial appointees. Politics matters insofar as there is someone going to bat for the nominee.

        “But it doesn't taint the person who is appointed,” he says. “People who are whispering, "Oh, it's because of her husband,' that's just malicious gossip.

        “A judge's reputation is based on what a judge does.”

        Retired U.S. Sixth Circuit Court of Appeals Judge Nathaniel Jones says he expects Judge Dlott to be viewed as someone who put her finger on a solution to the urban crisis.

        “What she has sparked is a diagnostic process in this community,” he says. “In the past we have done it on a case-by-case basis, but she has made this a community-wide diagnostic process.

        “What it means to the health of the community depends on the people involved and how they respond.”

        But what does the judge think?

        “I'm scared we won't succeed and the alternative ... ” she says, then stops herself. “Failure is not an option.”

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