Gallia County judge receives stayed suspension for misconduct

Staff Report

November 19, 2013

GALLIPOLIS — Gallia County Common Pleas Court Judge D. Dean Evans has received a one-year stayed suspension from the Ohio Supreme Court for failing to disqualify himself from a case in which he had a conflict with defense counsel.

According to a release issued by the Office of Public Information of the Ohio Supreme Court, in a 5-2 per curium decision (not authored by any particular justice) announced Tuesday, the court rejected the sanction of a six-month stayed suspension that has been recommended by the Board of Commissioners on Grievances and Discipline and instead imposed a full year stayed suspension.

When contacted for comment on Tuesday afternoon in regard to the Supreme Court’s decision, Judge Evans reported that he could make no public comment on the case, but did state that the decision released on Tuesday would in no way affect the functioning of the Gallia County Common Pleas Court or the cases awaiting action in court.

Attorney Robert W. Bright practiced before Judge Evans representing indigent criminal defendants for the Gallia County public-defender commission. In the case that resulted in this disciplinary complaint, according information contained in the initial opinion released on Tuesday by the court, Bright represented a defendant who had initially agreed to enter into a plea agreement but later changed his mind during the plea hearing before Judge Evans. Moments later, the defendant changed his mind again, and Judge Evans refused to accept the plea. Three days later, Judge Evans again refused to accept the plea agreement even though Bright and the county prosecutor jointly agreed to it.

Bright then filed an 18-page motion requesting that Judge Evans accept the plea agreement and stating that the judge’s refusal to do so was “an abuse of discretion” and “unreasonable and/or arbitrary and/or unconscionable.” Bright also criticized some of Judge Evans’s other courtroom practices.

Judge Evans issued an entry overruling Bright’s motion and removing Bright as counsel in the matter. The entry stated in part:

The Court finds that while Defense Counsel’s attitude toward the Court as expressed in the instant motion may not rise to the level of Professional Misconduct or to the level of being contemptuous, it certainly is not acceptable behavior. By such conduct he has created conflict with the Court whereby in this case or for that matter any other case in the future, when he does not agree with a decision or ruling by the Court, instead of being critical by accusation of being arbitrary, unreasonable, unconscionable or of abusing discretion, he simply may accuse the court of being bias [sic] or prejudice [sic] as it relates to him. The Court must not only avoid any impropriety, bias or prejudice but must avoid any appearance of such. The expressions and attitudes of Defense Counsel as exhibited and announced in the instant motion toward this Court compromises [sic] the Court’s ability to avoid any appearance of bias [or] prejudice, or to be fair and impartial as it relates to Defense Counsel regardless [of] how hard it tries or what strides it makes toward guaranteeing that there would be no bias, prejudice and that it would be fair and impartial.

According to information provided in the Ohio Supreme Court decision, Judge Evans subsequently filed entries removing Bright as appointed counsel in 63 other criminal cases — even though none of the defendants in any case had requested Bright’s removal as their counsel. The entry in each case stated that “Attorney Robert W. Bright is relieved of further obligation due to the conflict he has created with the Court” and “due to the Court’s inquiry to the Office of Disciplinary Counsel, Supreme Court of Ohio regarding Mr. Bright’s conduct.”

Judge Evans’s actions removed Bright’s entire caseload, and, reportedly, within a month of the judge’s entries, the Gallia County public defender terminated Bright’s employment, reasoning that it had “no other options,” since Bright could not practice in Judge Evans’s courtroom. Disciplinary counsel ultimately decided against filing any charges against Bright based on Judge Evans’s grievance.

The Ohio State Bar Association subsequently brought a complaint against Judge Evans. The parties submitted a consent-to-discipline agreement recommending that Judge Evans be publicly reprimanded. The Board of Commissioners on Grievances and Discipline rejected the agreement and remanded the matter for further proceedings before a three-member panel of the board. On remand, the parties waived a hearing and submitted stipulations of fact and misconduct and jointly recommended a stayed six-month suspension. The panel, and later the board, adopted the parties’ stipulations and recommended sanction. No objections were filed before the Supreme Court.

All parties agreed that Judge Evans’s conduct violated Jud.Cond.R. 2.11 (requiring a judge to disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including circumstances in which a judge has a personal bias or prejudice concerning a party or a party’s counsel) and Gov.Bar R. V(11)(E) (requiring that all proceedings and documents relating to review and investigation of grievances be private).

In Tuesday’s decision, the court wrote: “Given the judge’s serious ethical violations and the significant harm caused by his misconduct, we impose a fully stayed one-year suspension … Accordingly, Judge David Dean Evans is hereby suspended from the practice of law in Ohio for one year, with the entire suspension stayed on the condition that he commit no misconduct during the suspension. If Judge Evans fails to meet this condition, the stay will be lifted and Judge Evans will serve the entire one-year suspension. Costs are taxed to Judge Evans.”

Joining in the majority were Ohio Supreme Court Chief Justice Maureen O’Connor and Justices Judith Ann Lanzinger, Sharon L. Kennedy, Judith L. French, and William M. O’Neill.

Justice Paul E. Pfeifer wrote a dissenting opinion in which he said that Judge Evans faces a particular set of challenges as a judge in a smaller jurisdiction that should be taken into account in setting the sanction in this case.

“When a judge in a large county has an irreconcilable conflict with an attorney, that attorney’s cases can be assigned to another judge. In smaller counties, especially those like Gallia County that have only one judge in the general division of the court, that simple resolution is not possible,” Justice Pfeifer wrote. “In the circumstances before us, it is more sensible for the attorney to give way than the judge. Judge Evans was elected by the people of Gallia County to serve as their sole judge; however highly skilled, attorney Bright is an at-will employee. Surely, when an irreconcilable conflict prevents them from working on cases, the elected judge should supersede the at-will employee.” Justice Pfeifer said he would impose the original sanction of a public reprimand that had been agreed to by the parties.

Justice Terrence O’Donnell, who also dissented, indicated that he would impose the six-month stayed suspension as recommended by the Board of Commissioners on Grievances and Discipline instead of the one-year stayed suspension.