Lawyer refuses to apologize to judge, goes to jail

Since I've been on an evil judge / heroic defense lawyer jag recently, I thought I'd bring you this gem:

Judge Jennifer Brunner sentenced a Franklin County lawyer to 40 days in jail.

His contumacious behavior? Telling the judge he thought she was "colluding with" the prosecutors in order to pressure his client to plead guilty.

Are you kidding me?

That's not contemptuous--that's reality. Hardly a day goes by that I don’t see a judge pressuring someone to take a DA’s offer. In a plea driven system, that’s how it goes, and when a frustrated lawyer tells it like it is, any judge worth their salt should shut up and take it like a judge not go around issuing contempt citations.

Now don’t give me any crap about the honor and integrity of the court or the courtroom. Anyone whose ever been inside a criminal courtroom knows it’s rough and tumble in there and if you can’t stand the heat—well your honor—get out of the kitchen.

Judge Brunner, other than seeming a little overly politically opportunistic (see her website here) doesn’t come across in her personal promotional literature as awful. But then again her website seems to carefully omit mention of this case.

Why? Because this is another judicial obscenity—one that in my view renders her utterly unfit for both the judiciary and unfit to be secretary of state—a post she will evidently be running for come August.

Here’s why, thanks to this incident, she goes on my list of nasties…

First, she should never have held Mr. Vogel in contempt. That is the kind of self-important intemperate imperious behavior we shouldn’t tolerate from judges.

Second, EVEN IF she held Mr. Vogel in contempt, she should have followed the lead of nearly every other jurist in the country and imposed a small fine—a powerful symbol of the court’s authority. Her sentence of 40 days was obscene.

Third, when, three days later she brought Mr. Vogel back to court, she should not have tried to force him to apologize and she certainly shouldn't have jailed him when he wouldn’t.

I have to think it was behavior like that that gave the jailed lawyer the sensed that Judge Brunner was colluding with the DA to coerce a plea! Is it farfetched to think that any judge who would be this coercive might also be nasty and coercive to criminal defendants appearing before her?

Instead, when Vogel refused to apologize, she sent him back to serve another month in jail. Shame on Judge Brunner. Any reasonable jurist would have simply lifted the contempt--point more than made.

Finally, not satisfied with sending a lawyer to jail for 40 days for saying she was “colluding with” the prosecutors (seems likely to me she was) she has also filed a grievance with the disciplinary committee looking to have the guy disbarred. That’s the kind of shameful vindictive behavior that should disqualify anyone from public office.

Contrast this with the post below about Orange County and you’ll get a sense of just how out of line Judge Brunner is.


Anonymous said...

I write to respond to your criticism of Franklin County Common Pleas Court Judge Jennifer Brunner. I am a public defender in Franklin County who regularly appears in front of Judge Brunner and can safely say that your criticism of her is at best unfair and at worst ignorant. I am more than familiar with the type of judge you refer to who constantly looks to the prosecutor and says "What do you want to have happen?" I, like you, deal with this everyday and it is extremely frustrating.
The situation in this case, however, involved an attorney who I am confident in saying over 95% of the defense bar in this city believes was out of line. Mr. Vogel is not a "legal aid" lawyer as you incorrectly state. He is a lawyer in private practice who has since been removed from the court appointment list due to his irrational behavior.
Judge Brunner is one of the most even-handed judges in both her rulings and her sentencing. Despite resistance from other judges, she instituted a much need drug court and has brought understanding regarding the problems of addiction to many lawyers and judges in our system.
Although you are correct about many judges constantly siding with the prosecutor, I hope you are responsible enough to recognize you may be wrong about this one.

Anonymous said...

“Indefensible”, the title of your blog, is an apt adjective for your treatment of the judiciary in your May 18, 2005, comments about Judge Brunner.

The Ohio Supreme Court Rules for the Government of the Judiciary of Ohio provide in Rule I, Section 2 that:

“Justices and judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of lawyers against unjust criticism and clamor.”

The comment posted by Robert Essex provides a positive and constructive counterbalance to the comments posted by you as a lawyer.

The American system of justice is designed to deliver justice through a network of checks and balances, allowing disputes to be heard and reheard, as necessary, where errors may have been committed. The court of appeals is available for anyone found to be in contempt by a trial judge. Such check and balance is available for the contemnor in the matter raised in your comments.

Ohio’s “Lawyer’s Creed” pledges lawyers to offer respect, candor, courtesy and honor to the search for justice. To their colleagues in the practice of law, the creed directs lawyers to offer concern for the reputation and well-being of lawyers and judges, and to extend to others the same courtesy, respect, candor, and dignity that they expect to receive. The creed further acknowledges that lawyers must recognize that their actions and demeanor reflect upon our system of justice and our profession, and that lawyers must conduct themselves accordingly. I ask that you heed the creed while exercising your freedom of speech.

James E. "Ted" Roberts, Chair
Independent Judiciary and Unjust Criticism of Judges Committee
Ohio State Bar Association

Indefensible said...

Gee Ted,
I gather you don't read this blog often. If you had, you'd have seen that just after Mr. Essex posted his comments, I posted the following: addendum titled 'Erratum' which I observed that:

If a public defender is willing to publicly back a judge while diming out a fellow defense lawyer--yes that means quite a bit to me. So let me publicly recognize that I might be wrong about this. I'm still very concerned about a jail sentence of 40 days for something that doesn't on it's face seem contemputous, but I am also willing to allow for the possibility that the lawyer was a bit off his rocker (as Mr. Essex suggests). "

I have a problem with your post though--you don't address the central question: Is a 40 day jail for suggesting that a judge is trying to coerce a plea extreme?

I understand that you (like so many private lawyers) have a cozy relationship with and great esteem for the judiciary. It's even nice that there is a Chair of the "Independent Judiciary and Unjust Criticism of Judges Committee." But were you a regular reader, you'd have a better sense of my own thoughts on the subject, (See earlier posts here) and my own hesitations about politicizing the judiciary and, would, I'd like to think eschew the sonorous tone you adopt in your post in favor of something a bit more nuanced.

So back to the issue--doesn't it reflect badly on all of us when a judge sentences a lawyer to 40 days in jail?

And are you seriously suggesting the appellate process as an alternative to a public airing of dissent?

While I love the sound of 'Heed the Creed' I'm afraid you'll have to do a bit better Mr. Chairman.