Justice Speeches

Good morning.

I am glad you are able to gather together to share information and ideas for making a stronger judiciary. Thank you for your commitment and for looking for ways to improve and advance the administration of justice. While I am sorry I cannot be with you in person, I am thankful for the technology that makes it possible for me to be here to update you on the state’s judiciary.

This on-going global pandemic has now taken the lives of more than 38,000 Ohioans. Total cases to date, in Ohio, have exceeded 2.6 million. Many of our citizens have long-term illness, and in some communities, the gap between wealth and poverty has widened as a result. All of this impacts the court system. But for all the pandemic has done, it has also reinforced a lot about what works in the justice system in Ohio. The foundation of the legal system is strong, regardless of forces we cannot control.

The last couple of years are proof positive that courts are adept at change.

When we needed to close some doors to protect the safety of our employees and the public, remote technology became critical. Courts moved quickly to provide access to justice through technology.

Cuyahoga County has of course been ahead – in some cases far ahead – of other courts around the state and the country when it comes to technology. Size has its advantages. But the pandemic accelerated the technology needs for all courts, of all sizes.

Today, video proceedings have helped parents with health issues participate in important cases involving their children. A mother paralyzed in an accident could not be transported from the hospital to court to transfer custody of her children to their grandmother. But she was able to be there by Zoom. It meant so much to her to be a part of the process.

Virtual courtrooms have been a big win for clients and attorneys. The billing for travel time has been eliminated and attorneys are grateful that they can serve many more clients effectively and efficiently. Clients or pro se litigants can take a break from work to attend court virtually. Cases can be resolved and access to justice is maintained.

During the pandemic, the Court formed the iCOURT task force – which stands for Improving Court Operations Through Technology. Attorneys, judges, litigants, justice partners from guardians to interpreters, and more were surveyed for needs and best practices. The result is a report that includes 97 recommendations on how and why we should continue to use technology to operate and improve courts. The report is a great resource. You can read it online on our website sc.ohio.gov. It is 600 plus pages, so you probably don’t want to print it.  But if you need a hard copy, just ask the Supreme Court and we will get one to you.

The exhaustive framework proposed by the task force represents an opportunity for courts to retain the best from the struggles of the pandemic.

The Supreme Court recognizes the importance of technology to what we do…and what you do. I have been encouraging the adoption of technology in courts for more than a decade. We have learned it can provide greater access to justice, greater efficiency in administering justice, and even identify better outcomes. Since 2015, the Supreme Court has granted a total of $32 million to local courts to enhance their use of technology.

Judicial Discretion

As great a boon as virtual hearings are, we know that virtual does not work in every situation. For example, in a domestic matter where a child is testifying, there is no substitute for a conversation in person with a compassionate judge.

Judicial Discretion comes in many forms. It is a powerful tool which should not be used for power. Its best use is in a show of fairness, strength and reasonableness. And when appropriate, to show compassion.

Fairness starts with each of us. Are we understanding the people before us? Do we have enough information about the accused and the circumstances? Are we considering our own bias?

I would like to spend a moment and comment on bail reform and the misinformation that is apparently being used for political gain.

The purpose of bail is to provide the accused a means of leaving detention while awaiting resolution of a case   It was not intended to be a means to keep someone in jail. You know that.

Yet, in our state and others, most jail detainees have not been convicted of anything. They are people waiting for their case to be resolved and who cannot afford bail. In many cases, by what may be a nominal amount to you or me. The inability to pay a bail of $250 is a reality for many Ohioans.

We know that even 3 days in jail may mean the loss of a job. And then the parade of “horribles” begins. After being fired, they lose their place to stay. There may be repercussions with Children’s’ Services. It is a spiral that only goes downward.

Now I would like to set the record straight regarding the content and effect of the DuBose case.

When a defendant comes before you for an arraignment there is usually the matter of bond to be considered.

I am now going to quote from the DuBose case:

{¶ 20} A judge may impose bail or hold a criminal defendant without bail.
The process of assessing bail is governed by Crim.R. 46. When determining the
amount and conditions of bail, a court must consider “all relevant information,”
including (1) the nature and circumstances of the crime charged and whether the
crime involved a weapon, (2) the weight of the evidence against the defendant,
(3) the confirmation of the defendant’s identity, (4) the defendant’s family ties,
employment, financial resources, character, record of convictions, and (5) whether
the defendant was on parole or subject to another form of court control at the time
of the alleged offense. Crim.R. 46(C); Mohamed, 162 Ohio St.3d 583, 2020-Ohio-
4585, 166 N.E.3d 1132, ¶ 7.

{¶ 21} Alternatively, if the state believes that a person poses a danger to the
community and must be held without the possibility of release, then the state must
follow the procedures set forth in R.C. 2937.222 for an order of detention without
bail. In order to hold a person without bail under that statute, the judge must find
by clear and convincing evidence that “the proof is evident or the presumption great
that the accused committed the [serious offense] with which the accused is charged,
* * * that the accused poses a substantial risk of serious physical harm to any person
or to the community, and * * * that no release conditions will reasonably assure the
safety of that person and the community.” R.C. 2937.222(B).
In the present case, the court of appeals concluded that the state is trying to hold DuBose without bail
without attempting to meet its burden of proof under the statute, which the court
deemed “improper” because “ ‘setting a high bail in order to keep someone accused
of a crime incarcerated pretrial is both statutorily and constitutionally unlawful.’ ”
2021-Ohio-3815 at ¶ 18, 26, quoting Mohamed at ¶ 24 (Stewart, J., concurring).

{¶ 22} The state contends that the court of appeals erred by reducing the
bail amount on this basis. The state avers that the court of appeals “took the State’s
arguments relative to the safety concerns of the victim’s family and looked at them
in terms of R.C. 2937.222, but Crim.R. 46 also mandates consideration of the
protection or safety of any person or the community at large.” By doing so, the
state contends, the court of appeals dismissed those safety concerns from the
calculus and thereby “elevated [DuBose’s] ability to pay a certain amount for bail
above all other considerations that are provided under Crim.R. 46.”

{¶ 23} As previously noted, Crim.R. 46(C) contains a nonexclusive list of
factors a court must consider when determining the amount of bail. Crim.R.
46(B)(2)(i) authorizes courts to impose “[a]ny other constitutional condition
considered reasonably necessary to ensure appearance or public safety” as a
condition of bail.
But Crim.R. 46 was amended effective July 1, 2020.
In its current form, Crim.R. 46(B) provides that
the court shall release the defendant on the least restrictive
conditions that, in the discretion of the court, will reasonably assure
the defendant’s appearance in court, the protection or safety of any
person or the community, and that the defendant will not obstruct
the criminal justice process.
If the court orders financial conditions
of release, those financial conditions shall be related to the
defendant’s risk of non-appearance, the seriousness of the offense,
and the previous criminal record of the defendant.
(Emphasis added.) Thus, the rule distinguishes between the financial conditions of
release and other conditions of release and requires the financial conditions to relate
to the risk of nonappearance.

{¶ 24} As the revised rule makes clear, public safety is not a consideration
with respect to the financial conditions of bail. In making this statement, we do not
minimize the importance of the safety concerns of the victim’s family in this case.
We merely recognize, as did the court of appeals, that under Crim.R. 46(B)(2),
public-safety concerns may be addressed by imposing nonfinancial conditions,
such as restrictions on travel and association, completion of alcohol- and drug abuse
treatment, and orders of no contact with witnesses in the case. 2021-Ohio-
3815 at ¶ 25, fn. 2.

And restrictions like these were placed on DuBose by the court of appeals. In addition to the nonfinancial conditions of release already imposed by the court of common pleas, the court of appeals ordered 24-hour lockdown enforced by electronic monitoring, no contact with the victim’s family, and the surrender of his passport.

Unfortunately, the dissenters in this case mischaracterize the majority opinion and that, whether intended or not, has had political ramifications.

Particularly, those mischaracterizations of the majority opinion have led to politically motivated legislation to put an unnecessary constitutional amendment on the ballot this fall that would require judges to consider public safety when setting bail…guess what, that is what judges do every day now, and nothing in the DuBose majority opinion tells judges not to.

Let me say what diligent judges, prosecutors, and practitioners of this state already know -- If you evaluate the facts and find there is a threat, you have the option for detention. You always have the tools to guide your determinations are in the Eighth Amendment to the U.S. Constitution, Section 9 of the Ohio Constitution, Rules of Criminal Procedure 46 and 46(B), and in the revised Code at 2937.22.

Ultimately, public confidence in the Constitution, the law, and the judiciary, rests with you.

Overall, there is evidence – historical, statistical evidence that the U.S. Criminal Justice System is fairer and more effective than ever. Yet we can do better.

For the public to be informed and for truth to win out over rumor and fiction, people must be able to see justice administered fairly, and understand how that is measured.

Having spent my career in service as a prosecutor, director of public safety, and in the judiciary, I know there is no substitute for the discretion that comes with human understanding of the unique circumstances of a legal situation and the individuals involved.

But an experienced judge who also has data: information about trends, what works and what does not, and how their rulings fall compared to norms - can be more effective and part of a more trusted system. The establishment and widespread use of databases is useful for the fair and equitable administration of justice.

In the business world, it is essential for people to measure their work, track their progress, and identify areas for improvement.

In many parts of the justice system, we just do not have the data to know how the system is working, effectiveness of programs, and how wisely we spend tax dollars. To that end, the work with the Ohio Criminal Sentencing Commission on collecting felony sentencing data in a standardized manner continues. We continue to have more and more judges offering to participate so that they can learn about the proposed data collection and help those designing the system to do so efficiently, with real world information. Long-lasting reform must be based on facts, not just anecdotes. I am proud of the members of the judiciary who are part of these pilot efforts.

Tools like technology and data are providing greater access and a path to greater faith in our system. It is the path that we must pursue.

I am going to close with a plea to focus on Voter Education. I am asking you to get out into your community and educate people about judicial voting. It is of vital importance to educate potential voters and encourage them to learn about the candidates and VOTE.

There is an election coming up this year for common pleas, appellate and supreme court. It is a great time to get out in the community. Our research tells us that most Ohio voters who do not vote for judges say it is because they feel they do not know enough about the candidates. This is an area where we can all make a difference.

Talk to people about your job. Your day job is an interesting topic for remarks to the local service clubs like the Rotary or other local groups. Let people know the good their elected public servant does! Then encourage them to learn more about judicial voting and the candidates. The award-winning civic education professionals at the Supreme Court have a tool to make it easier. JudicialVotesCount.ohio.gov. This is a comprehensive, non-partisan website where they can look up the candidates in their county and learn about their background.

There is nothing like it in the country. JudicialVotesCount.ohio.gov.

Let us work together to make sure that everyone in your community has a chance to feel the power of their informed vote.

I appreciate your time and attention today. I trust that the judges of the 8th District will continue to represent the justice system with transparency, fairness, and in a way that keeps its foundation strong.

This is my last address to the 8th District Conference. I’ve appreciated the opportunity to address you over the last 12 years as Chief Justice. And it pains me that I cannot be with you today. I will close by saying that when asked what the most difficult thing about my job is…I say, leaving it.

God Bless!