Update: Digging a Deeper Hole

The Ethics Meltdown at the OH Supreme Court...Gets Worse

Yesterday, I highlighted the egregious conflict of interest when a sitting Justice of the Ohio Supreme Court heard a case in which he had served as counsel/prosecutor at the lower court level.

The photo captures him actually listening as his former co-counsel (he was listed as lead counsel below) argues the case they handled together two years ago:

For all the ugly details, read HERE.

Well, my tweets and newsletter kicked up quite a stir—good trouble! In fact, the opening tweet was viewed 3 million times!

NBC4 in Columbus covered the episode with a special investigation Wednesday night:

Watch it HERE.

Well…sometimes a little light and heat are all it takes to make a story bigger, and that is starting to happen here.

Because with all these questions being raised, the Justice involved…Joseph Deters…felt the need to explain away his bad behavior.

It didn’t go well.

Specifically Deters told reporters the same story, and also released this statement:

His attempt at clean-up even appeared on my television in Cincinnati as I was writing this:

But none of it holds up.

To summarize, he lays out a two-part approach as his “personal” ethics policy regarding his former office:

• First, he said he would recuse automatically for ANY case that came out of the Hamilton County Prosecutor’s office for his first year as a Justice;

• Second, he says, after that one year passed (which it now has), he recuses from cases where he “participated personally and substantially or about which I expressed an opinion.”

Gotcha.

But there are three BIG problems with this so-called personal policy of his.

And they only make this all even more problematic.

For HIM. And for the Court (now that he roped Chief Justice Kennedy in).

Strike 1

First, the new rule he suggests is NOT consistent with the applicable Ohio Code of Judicial Conduct rule.

That rule is clear, and does not expire after only one year. It requires recusal if a judge “served as a lawyer in the matter.” Period.

No expiration date on the requirement for recusal in a case when one served as counsel.

And Deters is indeed listed as counsel—lead counsel—on the matter. So, he WAS a lawyer in the matter.

That’s it.

The rule requiring disqualification could not be more clear, regardless of whatever personal policy Deters has cooked up. The passage of 366 days does not cleanse the conflict. Which makes sense, because a conflict doesn’t just go away—even more so when his co-counsel in this case is still arguing the case, now before him.

Strike 2

Second, Deters now claims he wasn’t personally or substantially involved in this matter. And did not express an opinion on it.

But….again…he was listed as lead counsel. He signed onto a brief representing one side of a highly contested argument, and attesting that he was an attorney on the matter.

That seems like both personal and substantial involvement.

And when you’re listed as the first signatory of a legal brief, that’s pretty obviously weighing in on the case with a clear opinion on one side of the case.

Why is your name on the brief if that brief is not expressing your opinion?

Were you neutral? Agnostic?

That assertion makes zero sense.

Now…those are both pretty flimsy excuses for his taking part yesterday.

But let’s forget those for a second….

The Third and Much Bigger Strike

…because Deters also created a far bigger problem with his statement.

One which appears to be an open admission that he violated legal ethics—including even his own, watered-down rule.

Recall that he said that in his first year as Justice, his policy was to recuse from “any case” in which the Hamilton County Prosecutor represented a party.

And, he said, that approach reflected the ethical guidance he had received and comported with the rules of conduct judges must abide by (note: it actually doesn’t).

One year. Recusal from all cases.

According to Deters, that’s his policy. The Chief Justice apparently was part of this discussion.

Well, it says here that Deters took his oath and began his term on January 7, 2023.

So that means, according to even his own rule, informed by those ethics experts, he could not have been involved in any case from the Hamilton County Prosecutor’s Office before…

January 7, 2024.

And since this case was argued Wednesday, outside that window. he’s safe, right?

Actually, no.

You see, whether or not the Court was even going to take this appeal was something that the Justices also had to decide, and were split on.

And if the Court had voted NOT to take the case, then Deters’ loss below would’ve been locked in place (which is the fate of most appellate cases, btw). Meaning, the Court’s decision to take the appeal in the first place was the key step giving Hamilton County a chance to reverse the case they had lost below.

It takes four votes for the Supreme Court to take a case being appealed from below.

And in this case, outside of Deters himself, the Court was split 3-3 as to whether to take the appeal at all .

But Deters saved the day, also voting to take the case, which gave the Court the four votes it needed to accepted the appeal from Hamilton County (again, giving them a chance to reverse their/his loss).

So…Deters clearly voted on a case involving the Hamilton County Prosecutor’s Office.

And that vote made the difference in allowing the appeal to happen at all. He revived his former office’s losing case.

According to Deters’ “policy,” this vote must’ve happened after January 7, 2024, right?

Otherwise he’d be in conflict with the ethical rules he had “fashioned.”

And that’s where the problem arises.

Because according to the Supreme Court, his tie-breaking vote to take the appeal from his office’s loss was announced on…August 1, 2023…

….which means Deters cast that crucial vote benefiting his prior office well within that one-year window where he told us he recused from all cases involving his old office. 🤔😱👀

Which means:

1) this whole one-year window thing was something they came up with in recent days—because again, it has no basis in the Code of Judicial Conduct—and Deters forgot about that original vote; or

2) he really did consult all those ethics resources to come up with this odd rule, only to openly and egregiously violate it less than seven months into his time on the bench in a way that advanced a failed Hamilton County appeal to the Ohio Supreme Court…and then lied about it yesterday.

So…you see…he seems to have confessed to quite a problem here.

I’ll let him answer for that. And I certainly hope that the press he sent that statement to follows up with more questions. And follow-ups.

And if he tries to say that voting to take an appeal is the same as recusing from a case, please call me.

Given that he invoked the Chief Justice as being involved in the conversation, the press should also ask her what she thinks about a Justice violating the policy they had worked out. Doesn’t this taint the court?

What Can You Do? Help Justice Melody Stewart

In the meantime, let’s do all we can to support Justice Melody Stewart, a wonderful public servant who Deters recently decided to oppose in this year’s election. (He could’ve run for the open seat to which he was appointed, but he decided to try to defeat Justice Stewart instead).

NOTE: Justice Stewart actually recused in a different case on the same day because a recent clerk was involved in the case and she knew hearing a case involving that recent clerk might create an appearance of a conflict. Yknow—ethics.

And that contrast in judgment and ethics is but one of many reasons why you should help Justice Stewart in her campaign this year.

Give what you can HERE.

Then share this so others give to her as well.