“Absolutely nothing to justify”

Adopting the findings of misconduct and recommended sanction of the Professional Conduct Board based on stipulations, the Ohio Supreme Court suspended a judge for 1 year without pay for his undignified, improper, and discourteous demeanor toward a criminal defendant and the defendant’s girlfriend in his courtroom, for ordering that the defendant’s girlfriend take a drug test, and for sentencing her to 10 days in jail for contempt when she refused.  Disciplinary Counsel v. Repp (Ohio Supreme Court November 9, 2021).

The Court emphasized its holding in prior judicial discipline cases that “’the power to punish for contempt is properly used to secure the dignity of the courts, not to demean and intimidate people,’ and that abusing that power serves to cast doubt on the judicial officer’s impartiality and to weaken public perception of the integrity of the judiciary.”  The Board had emphasized that the girlfriend had done “absolutely nothing to justify [the judge’s] attention in the courtroom—let alone his order that she be drug tested” and that she “suffered great personal indignities and emotional distress as the result of the security and medical screenings she had to endure during her incarceration, on top of the anxiety regarding the care and well-being of her two young children.” 

On March 11, 2020, A.O. left her 2 young daughters in the car with their grandmother and entered the judge’s courtroom to observe the arraignment and probation-violation hearing of the girls’ father, T.D., who had been arrested the previous day on a bench warrant for violating the terms of his probation by failing to appear at a drug court program.  A.O. sat in the back row of the courtroom and waited quietly for T.D.’s case to be called.

On several occasions, the judge addressed A.O. from the bench although the video recording of the proceedings does not show that A.O. brought any attention to herself.

During the proceedings in an unrelated case, the judge stated, “Going to be lots of drug tests today.  Is that [T.D.’s] girlfriend back there?  I don’t know.  I thought maybe it was.”  After the defendant in that case stated that he did not believe in using drugs, the judge stated, “That’s good.  I wish all of us could say that.  Right, [A.O.]?”  A.O. did not respond to the judge’s comments.

Before calling the next case, the judge stated, “Oh, before we get started, I think [A.O.’s] under the influence.  I want her drug tested.”  A.O. had made no disturbance in the courtroom and did not have a case pending before the judge, was not on probation, and had never been charged with or convicted of a drug-related offense.

The bailiff directed A.O. to follow him out of the courtroom to the probation department so that the drug test could be administered.  A.O. complied.   In a text, she told T.D.’s mother, who was still watching their daughters, that she was afraid to leave the courthouse because she thought that the judge would issue a warrant for her arrest.  In another text, she asked her sister to come get her daughters because T.D.’s mother had to go to work.

At the probation department, A.O. requested a lawyer but was told that she was not eligible for court-appointed counsel because she had not been charged with a crime.  When A.O. said that she would not take a drug test, the probation officer stated that A.O. would go back in front of the judge after he was done with lunch.

Approximately 10 minutes after A.O. had left the courtroom, the judge called T.D.’s case.  T.D. appeared by video from the county jail.  The judge greeted him by stating, “Hold it.  Hold it.  Who’s that vision?  That vision of a man I haven’t seen in so long?  Ho, just getting by, doing his own thing.  Holy Smokes.  How you doing. [T.D.]?  How you been?”  T.D. replied, “You know, not too bad.  Just going to work, coming home, going to work, coming home and slipped up and got caught, you know.”  The judge responded, “Slipped up and got caught.  Yeah, baby.  Slipped up and got caught.”

The prosecutor recited the charges and T.D. entered a no-contest plea.  After accepting T.D.’s plea, the judge stated that he had been looking for T.D. in the drug court program and then asked T.D. whether he or A.O. had recently overdosed.  At the time, the judge did not have any verified evidence that T.D. or A.O. had recently overdosed.  After reading the police report, which indicated that A.O. was in the car with T.D. at the time of his arrest, the judge stated, “Wow.  [A.O.’s] down here.  She’s probably going to go to jail too.  Who’s watching the kids [T.D.]?”  When T.D. stated that his dad was probably taking care of the children, the judge laughed and said, “Your dad.  I heard your dad went to jail for you, too; is that right?”  T.D. replied that he was not sure, and the judge said, “Yes, he did,” although he had no verified evidence to support that statement.

The judge sentenced T.D. to a 180-day jail term for one case and a 30-day jail term for a second case, to be served concurrently.  The prosecutor recommended an additional 150-day jail sentence for T.D.’s probation violations.  When T.D. asked whether the 150 days would be concurrent with his other sentence, the judge replied, “Uh, what do you think, [T.D.]?  Am I giving two for one today?  I don’t think so.  I hate to saddle the Seneca County Jail with you, but, [T.D.], you’ve been so, you know, defiant about this and haven’t followed through with a thing.  I’m trying to help you out.  I know you overdosed since then.  I’m giving you the 150 days.  That’s consecutive * * * not concurrent.  Good luck.”

After lunch, the probation officer took A.O. back into the courtroom and told the judge that she had refused to take a drug test.  When the judge asked why, A.O. explained that she did not think she had done anything to be in trouble.  The judge stated, “Okay.  Well, you come into my courtroom, I think you’re high, you’re in trouble.”  A.O. replied, “Okay.  I’m not, though.”  The judge then asked A.O. whether she wanted to take the drug test, and when she stated that she did not, he said:  “Can I have a journal entry.  We’re going to hold you in contempt.  I’m going to submit and commit you for ten days.  When you decide you want to take a test, then I’ll, then we’ll talk about this again.  All right?”  A.O. replied, “Okay.”  The judge stated, “Is there anything else?  Remand to custody.  You have the keys, [A.O.]”

A.O. was immediately remanded to the custody of the sheriff, handcuffed, and transported to the county jail.

At the jail, A.O. experienced several indignities.  She was required to take a pregnancy test and undergo 2 full-body scans.  The female officer who conducted the scans allegedly detected anomalies that she believed could have been contraband inside A.O.’s body.  A more senior officer, who was a male, was called to review the scan.  Although the female officer attempted to cover A.O.’s breast and genital areas on the screen while the male officer reviewed the scan, the male officer told the female officer that that was unnecessary, and then the male officer asked A.O. whether she had pierced nipples.  A.O. did not respond.  She was handcuffed and transported to the hospital where she was required to submit to a second pregnancy test and a CT scan or an MRI scan.  No contraband was found, and she was returned to the jail.

A few hours later, A.O. became scared and worried about her children and told a correctional officer that she was willing to take the drug test because she wanted to go home.  The officer replied that A.O. was not allowed to take the test and that she already “had her chance.”

On the evening of her arrest, A.O. retained an attorney to represent her.  The next morning, her attorney filed a notice of appeal and a motion requesting that her sentence be stayed pending the appeal.  During a hearing on A.O’s motions later that day, the prosecutor moved to vacate the contempt finding, and the judge agreed but only on the condition that A.O. agree to a drug-treatment assessment.  However, he no longer had jurisdiction due to A.O.’s appeal.  After that hearing, A.O. was released from jail.

In September, the district court of appeals reversed the judge’s judgment of contempt against A.O., finding that the record was “devoid of any specific observations or findings by [the judge] of [A.O.’s] conduct in the courtroom supporting his stated belief that she was under the influence while observing court proceedings” and that the judge did not have the authority to compel her to submit to a drug test.  On remand, the judge dismissed the case.

The Board rejected the judge’s testimony that his misconduct was motivated by a desire to help A.O., finding that the judge’s statements to A.O. and T.D. were arrogant and exhibited “a desire to prove that his suspicions about A.O.’s impairment were accurate and consistent with unsubstantiated rumors that he had heard about her and T.D.’s past drug use.”  The Board also found that the judge’s “hearing testimony demonstrated that he was very frustrated with T.D. and that he had channeled that frustration toward A.O.”

“A one-second scream”

The Ohio Supreme Court suspended a former magistrate from the practice of law for 6 months for summarily holding a woman who screamed in the hallway outside his courtroom in contempt and, when she protested, increasing her jail sentence.  Disciplinary Counsel v. Bachman (Ohio Supreme Court December 18, 2020).  The Court adopted the findings of the Board of Professional Conduct, which were based on stipulations and evidence presented at a hearing.

On September 4, 2018, at approximately 7:45 a.m., K.J. arrived at the court to file a petition for a civil protection order.  After she completed the paperwork, a clerk’s office employee told her that she had missed the 8:10 a.m. filing deadline to be heard that day and that she would have to return the following day.

K.J. went to the magistrate’s courtroom, apparently hoping to have her case heard that day.  The magistrate was conducting an asset-forfeiture trial.  After speaking with the magistrate’s clerks in the hallway, K.J. turned away.

As she walked toward the exit, K.J. screamed so loudly that she was heard in the courtroom.  The magistrate immediately said, “Okay, time-out,” and stopped the trial.

The Court described the video footage of what followed as “revealing and disturbing.”

It shows Bachman exiting the courtroom in his robe and running down the hallway in pursuit of K.J.  He accosts her at the elevators and returns her to his courtroom.  Once there, Bachman walks her through the crowded courtroom with his hand on her shoulder, places her in a seat in his jury box, and orders her not to move just before summoning the sheriff.  Multiple sheriff’s deputies soon arrive, and Bachman orders them to take K.J. into custody and to jail her for three days for contempt, causing her to cry and attempt to leave the jury box.

The Court stated that “the next 20 minutes of the video are difficult to watch.”

While K.J. resists being arrested and pleads with Bachman to explain why she is being jailed for three days, she is physically subdued by two deputies, threatened with being tased, and ultimately dragged from the jury box by several deputies.  Bachman’s only response is to increase her jail sentence to ten days. . . .  Bachman then congratulates a deputy on an award the deputy had recently received and resumes the proceeding as if nothing out of the ordinary has just transpired.  Meanwhile, the video footage shows, while K.J. continues protesting her arrest, she is dragged, yanked, pinned to a wall, and handcuffed to a chair.  Before the video ends, over 20 deputies and members of the court staff are involved in jailing K.J.—all because of a scream of frustration in the hallway that lasted one second.

2 days later, the administrative judge watched the video of the incident and ordered that K.J. be released from custody.  Approximately 4 days later, the magistrate was told that the “general sentiment” of the judges on the court was that he should be let go.  He resigned because, as he testified at his disciplinary hearing, he had been told that if he did, “this would be quiet and that would be it.”

Noting that a judicial officer has authority to summarily punish a person whose misbehavior in or near the courtroom “obstruct[s] the administration of justice,” the Court emphasized that K.J.’s scream outside the magistrate’s courtroom was only “a distraction at best or a momentary interruption to the proceedings at worst.  The only obstruction to the administration of justice that day occurred due to Bachman’s misconduct.”

Noting that it considers injury caused by professional misconduct when determining a sanction, the Court stated that “the chain of events set in motion by Bachman’s misconduct” physically and emotionally harmed K.J.  It noted that the magistrate’s conduct also “exposed the sheriff’s deputies and other court personnel to harm from a violent and unnecessary arrest on full display in front of a courtroom full of people who have no other choice but to sit silently and witness such a disturbing sight.”

The Court noted the Board’s finding that the magistrate defended his action as an appropriate exercise of the contempt power and “demonstrated a lack of insight as to the inappropriateness of his actions,” showing no “remorse for the effects of the incident on [K.J.],” and focusing on the impact “on his career and his resulting financial loss,” and.  The Court found:

Bachman’s sentencing K.J. to ten days in jail for a one-second scream in the hallway as she was leaving his courtroom area and for questioning why she was being jailed is outrageous.  The spectacle his conduct created was even more appalling and demonstrates his utter indifference to the harm he caused K.J. and the integrity of the judiciary. . . .

Sending someone to jail is not the adult equivalent to sending a child to his or her room for a time-out.  Yet Bachman and other judicial officers who have been sanctioned for similar conduct seem to equate the two.  Not only was Bachman’s jailing of K.J. unauthorized under the contempt statute, but he exhibited a total disregard for the reason she was at the courthouse in the first place — to get a civil protection order.  He also showed a complete indifference to the circumstances of her life (e.g., whether she had children or other family members to care for, employment she might lose, or any other harm she could suffer), to the indignity she endured by being physically restrained in a crowded courtroom, and ultimately, to the loss of her liberty.

The Board had recommended that the 6-month suspension be stayed with conditions.  The Court stated that an actual suspension was warranted “when a judicial officer’s misconduct causes harm in the form of incarceration” and “to send a strong message to members of the judiciary, to deter similar violations in the future, and to make crystal clear to the public that this type of judicial misconduct will not be tolerated.”

Other available options

Accepting the findings and recommendation of the Judicial Qualifications Commission based on stipulations, the Florida Supreme Court publicly reprimanded a judge for yelling and waving his arms at people in the lobby outside his courtroom to get them be quiet and threatening one of them with contempt.  Inquiry Concerning Miller (Florida Supreme Court November 5, 2020).

On January 17, 2020, proceedings in a civil trial over which the judge was presiding were interrupted continuously by loud noise from the public lobby outside of the courtroom.  The noise “was a result of many people congregating and not promptly disbursing” after another judge’s investiture, which had taken place in the ceremonial courtroom on the same floor.

At Judge Miller’s request, the bailiff and then the clerk and bailiff tried to quiet the people in the lobby.  When those attempts were unsuccessful, the judge stepped down from the bench wearing his robe and went to the lobby accompanied by his bailiff.  Several witnesses, including judges and lawyers, observed the judge “’yelling,’ and waving his arms at the people in the lobby while trying to get them [to] be quiet. . . .”

The judge observed a woman shaking her head while looking at him.  Believing she was indicating that she would not cooperate with his attempt to quiet the crowd and “responding to what he believed was contemptuous behavior,” the judge approached the woman and shouted, “Do not shake your head at me” and twice threatened her with contempt, demanding to know, “Do you want to be held in contempt?”  The judge asked her name and whether she was employed in the courthouse.  He then went back into his courtroom.

The woman, who is an assistant general counsel for the court, did not yell, say anything disrespectful, or act contemptuously in any way, according to 2 judges who were talking with her at the time.  Judge Miller acknowledged that “with hindsight she could have been shaking her head in disbelief over his behavior.”

The Court noted that the Commission had recognized that “[j]udges are given tools for dealing with serious interruptions,” to court proceedings including, “the direct (or summary) contempt power . . . .”  But the Commission was “particularly disturbed by” the judge’s threat to use that contempt power against a woman merely “for shaking her head in disbelief over Judge Miller’s behavior.”  The Commission explained:  “Judge Miller had other options available for dealing with the disruption to his trial, such as taking a recess, or calling Court Administration to ask for assistance.  The method he ultimately chose to employ reflected poorly on himself, and the judiciary as a whole.”

The Court felt “constrained to observe that . . .  this case arose only because a loud crowd disrupted trial court proceedings and persisted in their noisemaking after extended efforts were made to bring quiet so that the trial could go on.”  The Court acknowledged that the interruption did not excuse the judge’s conduct but emphasized that “the lengthy disruption of that trial should never have occurred.  Investiture ceremonies are significant events in the life of our courts, but they should not occasion the disruption of judicial business.”  It noted that “the participation of judges or court staff in any such disruption . . . is a matter of serious concern” and directed that administrative measures “be taken to ensure that such problems do not recur.”

Bad faith de-escalation

Judicial conduct commissions and supreme courts do not usually second-guess a judge’s decision to hold someone in contempt, but there are exceptions to that rule, and a judge was recently censured for having a mother involved in a visitation dispute handcuffed and escorted out of the courtroom without an opportunity to be heard or any contemptuous behavior in the courtroom.  In re Foster (North Carolina Supreme Court September 27, 2019).  The North Carolina Supreme Court adopted the findings of the Judicial Standards Commission, which were based on a stipulation and agreement for a stated disposition.

The judge presided over a hearing to determine whether the mother of 15-year-old twin sons should be held in contempt after the twins, who reside with their mother, refused to visit their father during the winter holiday.  The mother’s counsel objected because the mother had not received sufficient notice of the hearing.  The judge acknowledged the objection but ordered the mother and the twins to appear in court within 30 minutes, stating:  “I’m not saying that we’re going through with the hearing, but you need to call your client and tell her to get here because I have a few choice words that I need to say to her . . . .”  The judge added that “the boys need to come . . . so that they can hear that their mother can go to jail for their behavior” and “if a child wants their parent to go to jail, I got a problem with that as well.”

When they arrived, the judge asked the 2 boys whether they understood that their mother could be incarcerated if they continued to resist visitation with their father.  After the boys told the judge that they would rather have their mother go to jail than visit with their father, the judge stated:  “my children would never allow me to go to jail for any reason whatsoever . . .  I’m appalled because my children respect me so much they would never allow that to happen.”  After the boys said that they understood the consequences of their refusal, the judge ordered the bailiff to handcuff their mother and place her in a holding cell.  The mother’s counsel objected because the judge had not held a contempt hearing or given his client an opportunity to be heard.  Nevertheless, the judge instructed the bailiff to take the mother out of the courtroom.

After the mother was removed, the judge told the twins that she was “appalled” at their behavior and that they should be “ashamed” for allowing their mother to go to jail.  The judge also shared personal stories about being a parent and “disturbing cases she had presided over where children had suffered unfortunate outcomes.”  She asked the twins whether it made more sense to spend 6 days visiting their father as originally ordered, or 60 days with him while their mother was incarcerated.  The boys relented and agreed to visit their father.

The judge had the mother brought back into the courtroom and then said “as far as your full-blown hearing, it is going to be continued.  You two need to pick a date because I do not believe that you [had] enough time to truly prepare.”  Both parties thanked the judge for trying to resolve the boys’ refusal to visit with their father.

The judge believed that her actions “were appropriate to deescalate an unfortunate situation and resolve the visitation issues without further involving the Court.”  Her conduct in the case reflected her practice of placing litigants in temporary custody for “a short ‘cooling-off period’ without an opportunity to be heard,” which she had found successful in getting litigants to comply with her directives.

The Commission emphasized that it was not reviewing the legal issue whether the judge may have properly held the mother in contempt.  The Commission noted that the judge had specifically intended to avoid a “full-blown hearing,” which she admitted she could not hold because of inadequate notice.  The Court concluded that the judge’s actions were “not a mere ‘error of judgment or mere lack of diligence’” but intentional and part a pattern.

The judge argued that she had acted “with benevolent motives to ‘deescalate an unfortunate situation and resolve the visitation issues without further involving the Court.’”  However, the Commission stated that “‘bad faith’ includes ‘any knowing misuse of the office, whatever the motive,’” and concluded that the judge “acted in bad faith because she had ‘[a] specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of [her] authority.’”