Ethics Meltdown At the Highest Level

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By David Pepper

Just when you thought the ethics meltdown at the Ohio Supreme Court couldn’t get worse….

…yesterday witnessed a conflict so egregious that even Clarence Thomas might shy away from it.

But sadly, it’s par for the course in an Ohio where the rule of law is disintegrating.

The Context

Over the last several years, Ohioans with any sense of ethics have been horrified that the Governor’s son—a sitting Justice—refused to recuse himself from gerrymandering cases where his dad was the named defendant (because he voted for the challenged/illegal maps).

And then, of course, son went on to vote for dad’s illegal maps.

Surely, Ohioans have cried out, a son should not be voting in cases involving his own dad. One newspaper called Justice DeWine’s decision not to recuse “jaw-dropping.”

And yes, ethics rules make clear that those Ohioans are correct: Recusal was required.

But….now we have an even more clear-cut conflict.

Yes, even clearer than a father-son relationship. Or a husband-wife.

What could be closer than that?

Just wait…

The Case

It’s a case that was argued yesterday at the Ohio Supreme Court.

Here’s a photo from the argument. Believe it or not, the photo itself captures the conflict:

The case is called State of Ohio v. Glover. Comes out of Hamilton County (Cincinnati). It’s a dispute about the length of a criminal sentence, but the substance isn’t what matters here.

It’s Ethics 101.

You’ll see here that the two lawyers representing the County in the case are on the brief:

Melissa Powers is the County Prosecutor.

Paula Adams is the Assistant Prosecutor.

Adams is the woman looking up at the court in that photo above. She’s a fine lawyer, and ably argued her case yesterday. Here she is doing so:

So, you’re thinking, who on the Ohio Supreme Court hearing this case yesterday has a relationship with Powers or Adams?

As direct as a son ruling on behalf of his dad?

Or is someone on the Court related to the defendant…Glover? Or one of his lawyers?

And the answer on all of those is…no.

No such familial connection.

So what’s the problem?

Well, let’s go back a few years.

The appeal was argued in 2022 in the Court of Appeals for the First District.

Adams, then as now, was one of the lawyers arguing the case.

She signed that brief, too. (She went on to lose at the First District, hence the appeal).

But if you look closely at the brief in 2022, a different lawyer was listed as Counsel on the Prosecutor’s Brief with Adams.

You see, Melissa Powers is the new County prosecutor. She was appointed to fill a vacancy left when her predecessor stepped aside.

Her predecessor is the one on that 2022 Brief with Paula Adams.

Here are those documents:

They show that that lawyer’s name is…Joseph Deters, the long-time Hamilton County prosecutor. (Ohio Appellate Rules (Rule 19A)) make clear that being listed on that brief means Deters was counsel in the case.)

Those of you from Ohio may know the name because Gov. DeWine appointed Deters to fill a vacancy on…

you guessed it…

the OH Supreme Court!

(That appointment was met with fierce criticism because Deters lacked any judicial experience and because of what one paper called the long, “incestuous” relationship between the DeWine family and Deters.)

We can comb through all that stuff later.

But for now, what matters is that we have a case before the Ohio Supreme Court, which includes a Justice (potentially a swing vote on a 4-3 court), who was counsel on the original appeal of that case made to the court one level below the Ohio Supreme Court. Yesterday’s appeal came directly from the loss below.

Surely, you’re thinking, there’s no way now-Justice Deters can hear HIS OWN case—a case he was part of only two years ago. I mean, he made some of the very arguments two years ago (and losing) that the court listened to and questioned yesterday.

And you’d be right to think he shouldn’t be involved.

After all, scholars can quote some really good Latin going back centuries that underscores the problem here — “Nemo judex in causa sua” (no one is judge in their own case).

But in case that’s too obscure for folks, the Ohio Code of Judicial Conduct also makes it clear how wrong it would be. Specifically, here’s what rule RULE 2.11 says about the situation:

“(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:…

7) (a) The judge served as a lawyer in the matter in controversy…

(b) The judge served in governmental employment, and in such capacity participated personally & substantially as a lawyer or public official concerning the particular matter…”

And in case that rule isn’t clear enough, a U.S. Supreme Court case from 2016 found that “The Eighth and Fourteenth Amendments were violated when a judge who was previously involved in the case as a prosecutor declined to recuse himself.”

Boy.

Seems pretty open and shut.

There’s just no way Deters could have heard yesterday’s case, right?

Well, take another look at the photo at the top.

Actually, here, I’ll help you:

On the far right. Here’s a close-up.

That’s Joe Deters on the bench, watching as his former co-counsel argues the case they were both counsel for and lost only two years ago.

Again, here’s their brief. Both listed:

And here the duo from the brief reappears yesterday—two years later, one making an argument to the other, who is now a sitting Justice, on the same case, about their joint argument:

Think about that.

Although he hid it in the photo, I bet Deters really liked his former co-counsel’s arguments, don’t you?

And boy, he must have sure enjoyed hearing the defendant plead her case—sitting in judgment of the arguments that had triumphed over his at the appellate level. Geez, talk about a catbird seat!

Notably, at one point in yesterday’s argument, a question arose about the actions of the Hamilton County Prosecutor’s office around an original plea offer made (but not accepted) to the defendant in the case.

Several justices wanted to know whose idea that offer was. The lawyers weren’t really sure.

Ironically, their colleague on the bench—sitting right up there with them—could very well have had more knowledge of the question they were all asking about since he was the prosecutor at the time of the offered deal.

Heck, someone should have looked over and asked him what he remembered about the deal. But, of course, that would have underscored just how screwed up and inappropriate this entire situation was.

Instead, he just sat there quietly, listening to his former counsel making arguments they had made together only two years ago. Deters didn’t make a peep for the entire hearing.

Of course not! Not a single question would’ve been appropriate.

Just like his entire involvement was inappropriate.

Why This Matters

As a matter of basic legal ethics, this was a stunning and arrogant display.

But am I surprised by this?

I wish.

Which is why this goes way beyond a question of legal ethics in one case—and into the broader downfall of Ohio’s rule of law.

Once a Supreme Court is OK with having a son routinely vote in favor of his dad, the downward slide of ethics is well underway.

So, next thing you know, hearing and ruling on a case you argued below becomes acceptable as well.

Things only slide further from there.

And this is, of course, all part of a context of a state slipping away from the rule of law in so many governance and political matters: a statehouse defying the law, Constitution, and court orders; a court allowing an election on a day that directly violates the Ohio Revised Code; a Governor stripping power from an independent school board; a son providing the swing votes in favor of his dad’s illegal maps; repeated, blatant corruption.

Now this—a Justice sitting in judgment of his own case.

But when it’s happening at the highest court of the state, it especially sends a message that the rule of law is nearing extinction here.

Think about it: the sad reality is we all know that Deters will rule in favor of the argument he made as a lawyer below. And his could well be the vote that decides the outcome.

The other Justices who sign that opinion with him all know that - meaning the entire Court is tainted by this. When they join the opinion he sides with, they sign their name to that taint.

The prosecutor arguing the case—the same one who argued at Deters’ side below—knew that as she argued yesterday, looking up at him.

The lawyer for the defendant valiantly made her case, knowing she could never win over the guy who had been on the briefs below.

Yet it all still proceeded with this egregious conflict out in the wide open.

As if it’s ok. As if the outcome will be decided by an unbiased court.

And all this sets the table for future and similar conflicts to also be overlooked.

Which, by the way, begs the question: what other conflicts are tainting other cases going through the system? Now and in the future. Ones that aren’t so blatantly obvious?

Because once sons are ruling for dads and justices are hearing appeals of their own cases, there really aren’t conflicts left that are worse, are there?

When Will Ohio Demand Better?

Until people across the aisle in Ohio decide that, at some point, this descent away from the rule of law is too much, it will keep getting worse.

And Ohio will keep slipping because of it.

It reminds me of my days in St. Petersburg, Russia (early 1990s) when job one was creating an international arbitration court to ensure fair hearings because no one trusted the Russian court system to be fair. Due to rampant conflicts and ethics issues just like these.

This is why yesterday’s egregious conflict, playing out in arrogant fashion at the highest court in the state, should set off alarm bells.

When will enough finally be enough?