Monday, February 28, 2011

Small World Ethics

In November, we elected two new judges for the common pleas bench in Lucas County.  One of them, Dean Mandross, has spent the last however-many years as chief of the criminal division of the county prosecutor's office.  He's taken the position that he only has to recuse himself from those criminal cases in which he had some specific involvement.
Antonin Scalia, of course, refused to recuse himself from a case involving Dick Cheney just because he went duck hunting with his good friend, Dick Cheney.
Clarence Thomas has been asked to recuse himself from any cases concerning the health care law enacted last year.  His wife's lobbying, it's said, gives at least the appearance of impropriety.  It's too soon to know what he'll do if the issue becomes more than theoretical.
And then there's Maureen O'Connor.
She's the Chief Justice of the Supreme Court of Ohio.  Has been since January 1.  Before that, she was an Associate Justice on the court.  Before that, she was Lieutenant Governor, and before that is where this gets interesting.  Because before she was Lt. Gov., she was the elected Prosecutor in Summit County, Ohio.
While she was running the prosecutor's office, Brett Hartman was charged with a gruesome, headline grabbing crime.  As prosecutor, she signed the indictment.  She didn't try the case herself, but it seems certain that she had regular contact and discussions with the line prosecutors who were doing the work on it.  And she was still prosecutor when Hartman was convicted and sentenced to be killed.
After that, the case went through process in state court and federal court and more stuff in state court.  And Prosecutor Maureen O'Connor became Lt. Gov. and then Associate Justice O'Connor.
And properly, when she was Associate Justice, she recused herself whenever Hartman was before the supreme court.  Because you can't participate in a prosecution and then seem to be an unbiased judge of the case you prosecuted, which should really be self-evident, and was apparently clear to Associate Justice O'Connor.  Or maybe it was just that the Chief Justice, the late Tom Moyer, kept reminding her.
Tom Moyer's dead now, and he couldn't have run again for the position anyway.  And maybe he had nothing to do with it.  But Associate Justice O'C is now, as I've said, Chief Justice O'Connor.  And Brett Hartman is scheduled to be murdered by agents of the state of Ohio on August 16.  And Chief Justice O'Connor didn't recuse herself from the decision setting the date.  In fact, she signed the order.
Hartman Execution Order                                                            
I don't know why.  But it's troubling.  And improper.
And so, Hartman filed a motion to vacate the date.  
 Motion to vacate execution date                                                                   
Because she shouldn't have participated in setting it. And she damn well shouldn't have signed the order.  And then there's the motion to recuse.
Motion to recuse                                                            
Because she really shouldn't be involved with Hartman's case at all.  Which she used to know.
As I said, I don't know why the change.  What I know is that what's wrong for an Associate Justice is, if anything, even more glaringly wrong for the Chief Justice.
And there's this, which may or may not be relevant:
There's a hubris that comes with the robe.  When it's on a trial bench, we call it "robitis," but whether trial or appeals, municipal court or the Supreme Court, with the power of the robe too often comes a sense of infallibility that leads to ignoring the rules.  You know, those constraints that apply to lesser mortals.
It's not rocket science (or even a tough bar exam question) to recognize that O'Connor should have recused herself this time as she had before.  And that she should do so in the future.
And if she can't figure it out herself, one of the Associate Justices on the court ought to tell her.  There are 6 of them.  Surely one has the gumption.


  1. nah cause there probably shagging her

  2. She promptly did.

    It was, pretty clearly, a matter of inattention on her part. Sorry.