Disciplinary Counsel v. O'Neill

Pfeifer, J.,

concurring in judgment only.

*219 {¶ 67} I concur in judgment only because I have several concerns about this case. Judge Puffenberger’s dissent from the report and recommendation of the board so well articulates my concerns that I herein incorporate his entire dissent, except for his recommended sanction. 2

{¶ 68} “The extensive allegations presented in this complaint are far reaching in substance and, in many instances, require Respondent to justify judicial determinations made many years before. This Board must be cautious not to infringe upon areas of our legal system wherein our judiciary has traditionally been granted extensive discretion in making judicial determinations. Inappropriate actions of one member of the judiciary must not be sanctioned in a manner that would have a ‘chilling effect’ on judges who may sometimes utilize methods which may be perceived as ‘unconventional’. Judges are constantly making split second decisions in the courtroom and sometimes their motives for making these determinations can be placed in question. Our legal system has acknowledged this and provides proper avenues of recourse outside the disciplinary process. To require our judges to be placed under oath in a disciplinary setting and explain why a judicial determination was made is foreign to our legal system. In situations where the judicial determination was made years earlier, that task of explaining why the decision was made can be nearly impossible.

{¶ 69} “While it is not my intention to review the panel report case by case, I will generally address each of the counts in the Amended Complaint and conclude by formulating a more generalized dissent to both the findings and the recommendation.

{¶ 70} “In reviewing each of the Counts in the Amended Complaint, the Board must apply the standard of whether the violations have been proven by clear and convincing evidence. This is a high standard to meet and is more than a simple preponderance of the evidence.

{¶ 71} “In Count I, the panel report finds that Respondent engaged in ex parte communications. In Nezvalova, Disciplinary Counsel clearly failed to establish that the conversations were ex parte in nature. No one gained a procedural or tactical advantage as a result of the conversation which was administrative in nature. Two distinguished judges, Judge Corzine and Judge Parrott, testified that this was not an ex parte conversation. Likewise, the conversation in Smiley was administrative in nature and Judges Corzine, Parrott and former Judge Tracey testified that conversations such as this are not uncommon. Certainly the clear and convincing standard was not met to establish that any ex parte communications even occurred unless one were to totally disbelieve the testimony of not only Judge O’Neill, but also the testimony of Judge Corzine, Judge Parrot[t] and former Judge Tracey. Moreover, the Smiley case was not a pending case and the conversation did not involve the merits of the case. *220 Absolutely no one was prejudiced by these conversations and they do not fall within the realm of sanctionable conversations. That portion of Count I relating to ex parte communications is without merit and must be dismissed.

{¶ 72} “Count II alleges that Respondent refused to allow attorneys to go on the record. In 1998, the local rules of the Franklin County Common Pleas Court did not require pretrials to be on the record. The allegation that Attorney Swartz was denied the opportunity to go on the record during a pretrial was readily admitted by Respondent in her letter to the Chief Justice on September 10, 1998. (Ex. ON 01507) Respondent explained to the Chief Justice that she, ‘denied Mr. Swartz’ request to put the bench conference on the record as I did not find it necessary to record my denial of his request for a continuance.’ This denial was not even found to be sufficient for the granting of an Affidavit of Disqualification by the Chief Justice, much less a disciplinary violation. In both Dennis and Lane the allegations of failure to allow a record occurred in pretrial settings. Both Judge Parrot[t] and former Judge and now Professor Tracey testified that the preferred method of making a record is not to disrupt the schedule in order to make a record whenever one is demanded, but to wait until such time as there is an actual court hearing. In fact, Attorney Swartz testified that a written motion would have been the proper way to make a record for the motion for continuance. The allegations in Count II have not been established by clear and convincing evidence and must be dismissed.

{¶ 73} “Count III consists of allegations that Respondent denied continuances without exercising judicial discretion. The granting or denial of requests for continuance should not be the subject of disciplinary actions. The law adequately provides recourse to the parties in these situations.

{¶ 74} “Count IY relates to alleged misrepresentations Respondent made in her interactions with lawyers, judges and court personnel. While there is certainly variation in the recollection of parties to the same incidents, it must be remembered that these incidents occurred years ago and it is common for people to have different perceptions of an incident after the passage of time. The panel report takes great umbrage to the fact that Respondent denied the allegations against her and her recollection of incidents was often times different from those of other witnesses. This does not mean that Respondent was necessarily lying or being deceitful. It means that she had a different perception of certain encounters. In addition, her answer to the complaint seems to contain responses in conflict with her own testimony at hearing. The panel was made aware that the answer was prepared prior to any formal discovery and that Respondent answered the complaint utilizing her best recollection at the time. Those familiar with legal proceedings are quite aware that recollection can be refreshed once the witness is afforded an opportunity to review documents relative to an incident. *221 This is especially true when the incident occurred years prior. The finding of a violation for merely denying the allegations and having a different perception of what transpired from that of her accusers is totally unfair. In addition, it is not difficult to find that a number of witnesses who testified as to Count IV had their own agendas which compromised their credibility. Once again, the burden of clear and convincing evidence has not been met in these allegations.

{¶ 75} “While Disciplinary Counsel has attempted to demonstrate a ‘pattern’ of inappropriate behavior by Respondent, the allegation of a violation in Count VI is totally unrelated to any other count in that it concerns activity that occurred outside the courthouse setting. The Panel report finds a solitary violation related to a campaign conversation Respondent had with an individual who was still technically her employee even though the individual had already tendered her employment resignation. It is exactly this type of remote violation that the Preamble to the Code of Judicial Conduct envisioned when it states: ‘It is not intended, however, that every transgression will result in disciplinary action.’ This single technical violation of the campaign solicitation canon by a judge who has been involved in several contested elections does not demonstrate a ‘pattern’ of campaign violations and should be dismissed in conformity with the spirit of the Preamble.

{¶ 76} “Counts I, II and III generally relate to matters within the discretion of the trial judge which this Board should not allow the disciplinary procedure to substitute for the Courts of appeals and Counts IV and VI have been addressed above. However, Count V of the Amended Complaint is much more problematic for Respondent. In fact, it goes to the very crux of this dissent. Count V relates to Respondent’s interaction with lawyers, judges and court staff. Herein lies the one true, glaring basis for the entire Amended Complaint: the judicial temperament of Respondent. This is the underlying theme of the entire complaint. All of the allegations, with the exception of the alleged campaign violation, relate in one way or another to the judicial temperament of Respondent. Judicial temperament includes common sense, compassion, humility, open-mindedness, patience, tact and understanding. It is a quality that can best be identified when it is absent. The absence of judicial temperament generally exhibits itself in many ways including arrogance, impatience, pomposity, loquacity, irascibility, arbitrariness or tyranny. Unfortunately, the absence of judicial temperament by Respondent exhibited itself far too often during the hearing of this matter. Wdiile all judges have ‘bad days’ even this dissenter believes that Disciplinary Counsel has established a pattern of behavior by Respondent that exceeds the acceptable bounds of what must be demanded of the judiciary. I therefore agree that, in Count V, Disciplinary Counsel has established a violation of Canon 1 and Canon 3(B)(4) of the Code of Judicial Conduct which must be sanctioned.

*222 {¶ 77} “The panel report regarding aggravation, mitigation and recommended sanction underscores the temptation to be swept up in the sheer magnitude of the evidence presented. Every possible aggravating circumstance is mentioned and testimony was molded to justify the severe sanction recommended. The panel heard many witnesses, reviewed many exhibits and considered an incredible number of incidents alleging numerous violations. The volume of evidence should not be used as a justification to take drastic action. A reasoned approach to this matter is consistent with the above argument. This is a case about a judge who lacks judicial temperament, nothing more, nothing less. After all of the detailed analysis of each specific case and every shred of evidence that could be solicited over a number of years, we are left with the ultimate conclusion: this is a judge who has a number of good qualities but judicial temperament is not one of them. Her behavior warrants action.

{¶ 78} “In considering a recommended sanction, the panel report discards each of Respondent’s defenses. One of Respondent’s defenses was that the complaints were politically motivated. Certainly, politics did not force Respondent to behave the way she did at times. However, to totally discard this factor one would have to ignore substantial evidence to the contrary. One witness, Sherry Mitchell, [a] former employee of the Franklin County Court of Common Pleas, who left for a better employment opportunity, seemed to be one of the few impartial witnesses on this topic. She described the Court as a ‘political, back-biting environment’ and that decisions by court administration were ‘rarely based on fact’ but rather were ‘made on personal agenda, who knew who and politics.’ She testified as to the ‘self-serving, malicious environment.’ One judge openly made derogatory comments about Respondent to courthouse staff. (TR 17/22) Having served on a multi-judge court, I do not discard this issue as easily as the other panel members. The atmosphere which seems to pervade this Court has Respondent at the center, but there are other parties who seem to relish throwing gasoline on the fire. The scene of one of the complainant judges on her hands and knees writing an antagonistic remark with chalk on Respondent’s parking spot would be comical if not so tragic. Some who claim that Respondent brings disrespect to that Court should consider the atmosphere they have helped foster. It must be clearly stated once again that Respondent cannot utilize this atmosphere as justification for her actions, but to ignore it is to provide only a partial picture of reality. The panel report’s reference to a prior disciplinary action that was dismissed is prejudicial and should be removed.

{¶ 79} “The panel report reference to Respondent’s refusal to acknowledge the wrongful nature of her conduct as a significant aggravating factor is not born[e] out by her testimony. Respondent did testify that in some instances she should have handled things differently. She acknowledged that some mistakes were made. The fact that she denies the allegations is not evidence of anything. To *223 chastise her for denying the allegations and mounting a vigorous defense should not be an aggravating factor since many of the counts are without basis.

{¶ 80} “The panel report further considers the criminal litigants to be victims of Respondent’s actions. All of these individuals had recourse in the law for perceived violations of their due process rights. These individuals do not have a ‘right’ to probation or a presentence investigation if the judge determines that probation is not going to be granted. Competent counsel protects your due process rights within the law. That is their function. These criminal defendants were not denied their right to go to trial. These instances cannot stand alone on their merits as violations and certainly cannot be considered as a pattern of how Respondent handles criminal cases. Since 1992, she has presided over hundreds, if not thousands, of criminal cases and to allege that these several cases demonstrate a ‘pattern’ is stretching beyond the limits of reasonableness.

{¶ 81} “The panel report finding that Respondent was motivated by a selfish motive lacks justification. Respondent did not personally gain from her actions in any way. To insinuate that her personal motive was to have a manageable caseload is to ignore pressures put on trial judges to keep the docket current. The Supreme Court initiated the case reporting requirements to insure the timely resolution of cases. Once again, the few cases mentioned in the Amended Complaint certainly do not establish a pattern that docket control was more important to respondent than the rights of the parties. The testimony established the Respondent did grant continuance requests when she felt they were merited. A clear and convincing pattern is not established by such a min[u]scule percentage of cases handled.

{¶ 82} “In conclusion, the bases for the panel report sanction recommendation have not been established by clear and convincing evidence. It has not been established that Respondent acted with dishonesty. A pattern of conduct was not established except as it relates to intemperate behavior. Any resulting harm from Respondent[’]s decisions was minimal and could have been reviewed by a higher court. Respondent was responsible for her part in the effect on the public esteem for the integrity of the judiciary. Others are also to blame.

{¶ 83} “At the end of the day, the question is what to do with a judge who lacks judicial temperament. Should she effectively be removed from office even though the citizens of Franklin County want her to be their judge? Should the citizens of Franklin County have the right to a judge who lacks judicial temperament if they want one?

{¶ 84} “Respondent has a problem that is affecting her ability to be a better judge. For some time the legal profession has sought to render assistance to members who experience problems. The OLAP program of the Ohio S[t]ate Bar Association is one example of a profession striving to assist colleagues who are experiencing personal problems. I believe that the panel unanimously agrees *224 that Respondent is in need of professional assistance in helping her attain a better judicial temperament on a more consistent basis. Her situation is not hopeless. The testimony regarding her temperament was not all one-sided. A number of witnesses, including a former Board member, testified as to very positive experiences in her courtroom. Unfortunately, her past behavior toward others in the legal system has contributed to the dislike some individuals seem to have for her. Sometimes she is not an easy person to like. She is demanding. She is strong-willed. She can and has displayed some very negative emotions in the courthouse. It is my belief that the Board has several responsibilities in this matter. The Board must not get caught up in the negative media frenzy that has followed Respondent for some time. The Board must not look at the sheer volume of the evidence presented and think that severe punishment must be justified. Above all, the Board has a responsibility to try to assist this individual in dealing with her imperfections at the same time that she is sanctioned. Any sanction by this Board is a severe sanction for Respondent. The publicity of a sanction against a sitting judge for lack of proper judicial temperament will be a severe punishment in itself. The cost of her defense in this matter will be astronomical. The mitigating factors contained in the panel report are substantial and aggravating factors are minimal at best. This Board should strive to fashion a sanction that is not overly punitive, but addresses the true violation of Respondent: her temperament.”

{¶ 85} One additional note: I am concerned that Disciplinary Counsel in this case developed a strong animus against Judge O’Neill. During oral argument, counsel repeatedly called Judge O’Neill a liar. As with the rest of her problems, much of this one was her own doing; many of her explanations do not bear up under scrutiny. Many other “lies,” however, are simply disputes about events that occurred in the past, sometimes years in the past. Disciplinary Counsel appears in this case not to differentiate among legitimate differences of recollection, inadvertent misrepresentations, and deliberate misrepresentations.

{¶ 86} Disciplinary Counsel sought disbarment of Judge O’Neill, a remarkable instance of overcharging — to the best of my knowledge, no sitting judge has ever been disbarred in this country. He continued to seek this sanction despite the recommendation of the panel that heard the case and against the recommendation of the Board of Commissioners on Grievances and Discipline.

{¶ 87} Finally, because of the multitude of minor charges that counsel chose to present to the panel, the hearing in this case took 19 days, a period of time that maximally taxed our volunteer hearing panel and the financial resources of Judge O’Neill. A sharper focus on the significant charges would have led to a more timely and economic resolution of this case.

Resnick, J., concurs in the foregoing concurring opinion.

*225

APPENDIX to concurring opinion of Pfeifer, J.

BEFORE THE BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE OF THE SUPREME COURT OF OHIO

In Re:

Complaint against Judge Deborah P. O’Neill Attorney Reg. No. 0007128 Respondent, Disciplinary Counsel Relator.

Case No. 02-34

Findings of Fact, Conclusions of Law and Recommendation of the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio

1. This matter came on for final hearing before panel members Judge Jack Puffenberger of Toledo, Ohio, Attorney Stanley C. Bender of Portsmouth, Ohio and Attorney Jean M. McQuillan of Rocky River, Ohio, Chair, on May 19, 20 and 21, August 5, 6 and 7, September 29 and 30, October 1, November 17, 18, 19, 20, 21, 24, 25 and 26, 2003 and February 2 and 3, 2004. None of the panel members was a member of the probable cause panel that heard this Complaint, or resides in the district from which this Complaint arose.

2. The panel heard testimony from ninety-nine different witnesses and received and considered the Stipulations of Fact and Stipulated Exhibits as to each Count. (Numbered Exhibits 1-529) The panel also considered Exhibits from each party as to each Count of the Amended Complaint. (Relator’s Exhibits A-XXX and Respondent’s Exhibits A-V)

3. This complaint originated from a group of grievances filed with the Office of Disciplinary Counsel in January 2001 signed by 8 Franklin County Common Pleas judges: Judges Watson, McGrath, Cain, Crawford, Miller, Bessey, Sadler and Hogan. Judge O’Neill received a first letter of inquiry relating to these *226 grievances from Disciplinary Counsel dated January 19, 2001. Respondent submitted a reply dated March 6, 2001. A second letter of inquiry to respondent regarding additional matters was dated June 14, 2001 and Respondent replied to the second letter of inquiry on July 25, 2001. Within one year of the first letter of inquiry, on January 7, 2002, Relator provided to Respondent notice that the investigation had terminated and Relator intended to file a complaint. A draft complaint was submitted to Respondent on March 9, 2002. Respondent requested additional time to respond. On June 6, 2002 a Probable Cause Panel of the Board considered the complaint and on June 17, 2002 the complaint, as approved by Probable Cause, was filed.

4. Respondent’s Answer was filed on July 8, 2002 and a panel was assigned on July 10, 2002. On July 23, 2002 Relator sent Respondent a third letter of Inquiry. With the agreement of the parties, the filing of an amended complaint was delayed until November 19, 2002, adding Count VI and other factual matters to the already existing counts. Respondent’s Answer to the Amended Complaint was filed on January 15, 2003. Respondent filed a Motion for Judgment on the Pleadings or, in the Alternative Summary Judgment on February 20, 2003. Briefing of these Motions was completed on March 28, 2003. An entry denying the Motions was filed April 5, 2003. Final hearing dates were set based on the jointly proposed dates from counsel for the parties and the final hearing commenced on May 19, 2003. Additional hearing dates were added in August 2003 and February 2004 based upon the progress of hearings and with the consent of the parties.

5. Because of the factual complexity of the Amended Complaint, the number of different incidents alleged and witnesses involved, the panel chair ordered that the final hearing not proceed in the traditional manner but rather proceed Count by Count. The purpose was to hear all the testimony relating to each factual incident in as close proximity as possible. As nearly as practicable, Relator and Respondent both presented their evidence on each separate Count before proceeding to present evidence on the next Count. The parties proposed and the hearings proceeded on Count 1, then Counts 2-4, then Count 5 and then Count 6. When the Relator rested on each Count or group of Counts, Respondent made Motions for Dismissal which were opposed by Relator and denied by the Panel. The Respondent then proceeded with her evidence on the Count being heard. Evidence relating generally to mitigation was taken throughout the final hearings. The parties submitted final arguments in written briefs.

6. Despite the complex and hotly contested nature of these proceedings the Panel notes with appreciation and gratitude that counsel for Relator and counsel for Respondent presented this matter in an extremely civil and professional matter.

*227 7. The six count Amended Complaint alleges violations of the Disciplinary-Rules and Canons of Judicial Conduct. The factual incidents involved date from 1997 through 2002. This report will cover each Count of the Complaint separately making findings of fact and conclusions of law as appropriate to each Count. This report, for consistency, will use the descriptive labels that appear in the Amended Complaint and/or the name of the primary party involved to organize findings of fact.

FINDINGS OF FACT

8. COUNT 1 alleged that Judge O’Neill held ex parte conversations, failed to exercise judicial discretion and failed to follow the law. The panel heard evidence relating to 11 factual incidents, detailed below and identified by the names of the parties involved.

9. BIRCHLER-. Testimony taken on behalf of Relator from Kenneth Birchler, (defendant) (Transcript Vol. I — 115-150), Barry Littrell (defense attorney) (Transcript Vol. I — 27-112), Angela Canepa, (Director of Sex Offender’s Unit, Franklin County Prosecutor) (Transcript Vol. I — 153-195) Professor Lewis Katz (Transcript Vol. IV — 8-80), Judge O’Neill, (Transcript Vol. V — 6-59, Vol. VI— 185-197, Vol. VII, 159) and on behalf of Respondent from Rachel Ginsburg (Franklin County Probation Department, Sex Offenders Unit Supervisor) (Transcript Vol. IV — 81-119) Judge William J. Corzine (Transcript Vol. XI — 155-183), Judge Richard E. Parrott (Transcript Vol. XI — 183-212), former Judge Lewis E. Williams, Jr. (Transcript Vol. VII — 73-194), former Judge Gary Tyack (Transcript Vol. VI — 37-71), former Judge Ann Marie Tracey (Transcript Vol. XII— 35-87) and Judge O’Neill, (Transcript Vol. VI — 185-197, Vol. VII, 159), Stipulated Exhibits 1-45, (Relator’s Exhibits A, B), (Respondent’s Exhibits A, D).

10. Kenneth Birchler was charged with multiple counts of rape, sexual assault and kidnapping relating to an incident, which occurred in 1997 while he was working as a maintenance man in an apartment complex. The victim alleged that he had sexually assaulted her while he was in her apartment to perform maintenance.

11. Barry Littrell represented Birchler. Littrell was admitted to practice in 1983 and has a general practice in central Ohio. Birchler admitted to being in the victim’s apartment but adamantly denied that a sexual assault took place or any sexual conduct took place. The case was called for trial on November 10, 1997 and the jury was selected. Angela Canepa, who was the Director of the Sex Crimes Unit of the Franklin County prosecutor’s office, took over the case on the day of trial. She learned that day that there was no physical evidence and there were serious issues with the victim’s credibility, which compromised the prosecution’s case. (Transcript Vol. I — 157-159)

*228 12. Seeking to salvage this prosecution Canepa offered Birchler a plea to simple assault (a non-sex offense misdemeanor). Birchler accepted and counsel discussed with Judge O’Neill a sentence of six months with 60 days work release jail time, the rest suspended and five years probation. In the transcript, (Exhibit 35) the plea is described as an Alford plea, albeit somewhat tardily. Although considerable testimony was taken as to the nature of the plea, all participating parties who testified herein agreed this was an Alford plea. In an Alford plea the defendant pleads guilty to a charge while protesting his innocence.

13. In the sentencing transcript, Judge O’Neill for the first time told the parties that one of the conditions of probation would be Birchler’s participation in sex offender counseling. Neither Birchler, Littrell nor Canepa were aware that sex-offender counseling required participants to admit they committed a sexual assault on a victim. (Transcript Vol. I — 23,163,187). Over the next 2 years Birchler complied with all conditions of his probation except the sexual offender counseling. He was discharged from the 2 programs offered in Franklin County, because he refused to admit he committed a sexual assault and that he had a victim.

14. In 2000, a Request for Revocation of Probation was filed. Littrell and Canepa entered into and submitted to Judge O’Neill an entry that removed Birchler’s sex offender counseling condition of his probation to resolve the matter. (Exhibit 1, Relator’s Exhibit A) Judge O’Neill rejected the entry and a revocation hearing was held February 28, 2000. (Transcript Vol. I — 168,169)

15. At the revocation hearing it was established that Birchler had not completed the sex-offender counseling programs because he would not admit to committing a sexual assault and having a victim. He would only admit he had been convicted of simple assault out of a plea bargain. (Exhibit 35, p. 38) Littrell argued that the sexual assault requirement was inconsistent with his client’s Alford plea. (Exhibit 35, p. 43-46) Judge O’Neill revoked Birchler’s probation for failure to meet the sexual offender counseling condition stating she was “infuriated” that Birchler denied he had a victim and stated in the transcript “it doesn’t take a rocket scientist to figure out that if you are on probation from a sex offense and the Judge tells you that you are to successfully complete sex offender counseling that you either go with the program or you are going to be revoked,” “I don’t care what you call it, this was a sexual assault and he did plead guilty,” and “he has been convicted of an assault that arose out of a sexual attack” (Exhibit 35, pp. 48, 57)

16. Littrell appealed the probation revocation and the Tenth District Court of Appeals reversed, stating “We cannot reconcile appellant’s Alford plea and the requirement as a part of his counseling session that he admit he had a victim.... Requiring appellant to admit that there was a victim or to specific criminal *229 conduct would be in contradiction to his maintenance of factual innocence pursuant to Alford.” (Exhibit 5, p. 4) The appellate court further held that “because appellant did not have notice of this term of his probation, which was significant due to his Alford plea, he could not have been expected to file a direct appeal of his probation requirements. The trial court abused its discretion in revoking appellant’s probation based upon that reasoning.” (Exhibit 5, p. 6) Littrell also argued that the trial court had failed to serve as a neutral and detached hearing officer in the revocation hearing but that assignment of error was held moot. (Exhibit 5, p. 6-7)

17. In anticipation of the remand hearing, Littrell and Canepa prepared another agreed entry for Judge O’Neill amending the probation to remove the sex offender counseling requirement. Judge O’Neill did not accept the proffered entry and refused to meet with counsel. (Transcript Vol. 1 — 51-52, Vol. V — 36, Exhibit 5, P.7, Relator’s Exhibit B)

18. On November 7, 2000 Judge O’Neill held a remand hearing. Littrell testified that in this hearing Judge O’Neill had an air of prejudice and hostility. Birchler testified that the judge was not happy with him. (Transcript Vol. I — 46-47, 120) Respondent began the hearing by stating, “I have read the decision. I respectfully disagree. The Court can assess those terms, especially since the underlying offense was a sex offense.” (Exhibit 34, p. 2-3)

19. Judge O’Neill then stated: “This is where it stands. It stands that either he is going to comply with the terms and conditions of his probation, or the State is going to withdraw — file a motion to withdraw the guilty plea and the Court will set it for trial on the rape charge.” Twice more in the hearing Judge O’Neill represented that the state would move to withdraw Birchler’s plea if Birchler would not comply with terms and conditions of probation as originally ordered. (Exhibit 34, p. 4, 6) Canepa testified that the state had no intention nor any desire to vacate the plea and that she had never discussed that topic with Judge O’Neill before the hearing. (Transcript Vol. I — 170-171) Canepa was asked: Q. Have you ever heard of a judge saying to a prosecutor, ‘You will be making a motion to withdraw the defendant’s guilty plea” other than this instance? A. No. Judges don’t usually tell the state what they should or should not do.” (Transcript Vol. 1 — 17)

20. In the hearing record, Judge O’Neill characterized Birchler’s behavior as absolutely despicable and entering into an Alford plea to try to take advantage of the system. When Littrell objected that only the defendant has the right to ask for a withdrawal of the plea and asked Judge O’Neill to reimpose probation without the obligation for counseling as set forth by the Court of Appeals order, Judge O’Neill stated, “Well, Barry, you don’t do a lot of criminal work down here and I don’t know if you’ve ever done one before this case.” (Exhibit 34 p. 5)

*230 21. Judge O’Neill concluded the. hearing stating: “I’m going to set this back in the original terms and conditions of probation ... If he fails to cooperate, he’ll be set for revocation and at that time I’m sure the State will file its motion to withdraw the guilty plea. Of course you know what the Court’s thinking was all along in the matter. We’ll just set the matter for trial.” (Exhibit 34 p. 7)

22. Birchler described his impression from that hearing: “And she just basically said that it was her courtroom, she was going to do what she wanted, and, you know, that’s the way it was. And she told me if I didn’t like it to appeal it. I was — just kind of made me lose faith in the judicial system. It was just like, what did I go to appeals court for, what was I paying $17,000 for if I’m going to win an appeal, and then they’re just going to deny it?” (Transcript Vol. 1— 146)

23. Birchler attempted another sex offender counseling program that refused to admit him until he admitted to a sexual assault. “I just decided to go ahead and do the three months in jail, because I didn’t want to take the chance of Judge O’Neill — she’d already threatened me with the fact that she was going to take me back up on the original charges if I didn’t comply with the sentencing that she’d sentenced me on I said, “I’ll just go ahead and do the three months and get it over with.” I didn’t want to, but I did. “ (Transcript Vol. I — 147)

24. Professor Lewis Katz is the Hutchins Professor of Law at Case Western Reserve University and he has taught Criminal Law and Criminal Procedure for 37 years. Regarding Birchler he testified that the withdrawal of a plea under Ohio law is the right of a defendant only. An Alford plea is a plea of guilty to the charge with protestations of innocence. Given the mandate from the Court of Appeals, the Court should have amended the conditions of probation in some fashion to eliminate the need for sexual offender counseling, either by removing the requirement of admitting a victim or substituting other counseling. (Transcript Vol. IV — 23-25)

25. Judge O’Neill’s testimony was that at the remand hearing she just wanted to get Birchler back to square one given that there had been a lack of understanding. She maintained in her Answer and in testimony that Canepa had told her before the remand hearing that the State felt defrauded by the “ruse” of Birchler’s Alford plea. She admitted that that position was clearly inconsistent with Canepa’s testimony at this hearing and Canepa’s willingness to consent to amend Birchler’s probation requirements at the time of the revocation and at the time of the remand. Judge O’Neill believed that this inconsistency was due to the State feeling “stuck”. (Transcript Vol. V — 46-49)

26. NEZVALOVA: Testimony taken on behalf of Relator from Joseph Edwards (defense attorney)(Transcript Vol. I — 197-228), Renee Amblin (prosecutor)(Transcript Vol. I — 228-257), Corrina Vaughn (supervising prosecutor)(Tran *231 script Vol. 257-287) and Judge O’Neill, (Transcript Vol. V — 60-91, VI — 197-202), (Exhibits 46-75)

27. Three non-U.S. citizens, Lenka Nezvalova, Peter Janik and Marcel Stasko were arrested by Columbus police in the act of using cocaine. They were charged with F-5 drug offenses. They were at first all represented by W. Joseph Edwards, admitted to practice in 1985 with a criminal defense and personal injury practice in Columbus. Prior to indictment Edwards had approached Cindy Taylor, the head of the Narcotics Unit of the Franklin County prosecutors office to discuss a deal in which his clients would cooperate, give information and make introductions for the police in return for these first-time charges being dropped against the clients. Since the defendants were not citizens, even a plea to a first-degree misdemeanor was a deportable offense.

28. At the time of the first pretrial in September 13, 2000, the prosecution, represented by Corinna Vaughan would not consider dismissal until the defendants actually met with the police and were “debriefed”. Vaughan and Edwards appeared at the pretrial and asked Judge O’Neill for a 2-4 week continuance of the trial to accomplish that debriefing session. Judge O’Neill refused a continuance and reminded the parties of her procedure that she will entertain pleas only at the pretrial and after the pretrial she will only accept a plea to the indictment. Counsel were unsuccessful at persuading Judge O’Neill to alter her policy or grant a continuance. In conversations at the sidebar, Judge O’Neill became frustrated and angry with counsel. Edwards’s clients overheard the discussions and were disturbed and expressed concern about the Judge’s anger and their status. Edwards and Vaughan were unsuccessful at scheduling the debriefing and several days before trial Edwards was informed that Nezvalova and Stasko had retained their own counsel who entered appearances and requested continuances of the trial date of November 28, 3000.

29. On the scheduled trial date the defendants appeared each with their own lawyers, Edwards, Dennis Belli and David Rieser. Renee Amblin, a new prosecutor was assigned on rotation to the trial and appeared with Vaughan available in the courtroom as backup. In a series of discussions at the sidebar and on the record among counsel and Judge O’Neill the unopposed Motions for Continuance made by new counsel were denied by Judge O’Neill who mentioned concerns about controlling her criminal docket. Prosecutor Amblin’s attempts to offer misdemeanor or no-contest pleas were denied by Judge O’Neill. (Transcript Vol. V — 79-81) (Exhibit 47, p. 12) Counsel were told by Judge O’Neill that only guilty pleas to the indictment would be considered. Judge O’Neill’s demean- or was described by Amblin as, “I felt like we were being yelled at ... I was about to cry, because I didn’t know what to do. I felt as if she were upset about things that shouldn’t be the cause of being so upset.” Her demeanor was *232 described by Edwards as, “very tense” and by Vaughan as “very angry, very loud, very demeaning to the defense counsel, very frustrated with the prosecutor’s office ... It was a very hostile courtroom.” (Transcript Vol. I — 216, 240-242, 268-269) All three defendants plead to the indictment. Judge O’Neill denied being angry, loud, frustrated or demeaning to defense counsel. (Transcript Vol. V — 72-79)

30. Nezvalova and Stasko appealed and their convictions were reversed by the Tenth District Court of Appeals on grounds that the trial court’s refusal to accept no contest pleas was an abuse of discretion, which prejudiced appellants’ rights. “Appellants sought to enter no contest pleas to preserve the appealability of pretrial evidentiary decisions. The trial court repeatedly advised appellants’ new defense counsel that appellants either had to plead guilty to the indictment or proceed forward with trial. In addition, the court suggested that a failure to enter pleas would result in an abbreviated period of time in which the court’s staff could have lunch. As a result, appellants plead guilty. Therefore, the trial court, by injecting itself into the plea bargain process, affected the voluntariness of appellants’ decision to plead guilty.” (Exhibit 52 p. 9)

31. The Court of Appeals opinion was filed on May 21, 2002. (Exhibit 52) On May 24, 2002, a Friday afternoon, Corrina Vaughan received a phone call at her office from Judge O’Neill about the Nezvalova case. She testified that Judge O’Neill was agitated and angry and stated: “You’re not going to believe this. They overturned that Russian case. We’re going to have to do something about this. We’re going to have to fight this. We’re going to have to do something about this. I think we did everything right. I don’t think we did anything wrong.” (Transcript Vol. I — 273-274)

32. Vaughan testified that she said very little in response and was horribly uncomfortable with Judge O’Neill’s statements “as if we were on the same team, meaning me and Judge O’Neill, is how she kept phrasing these discussions or these comments.” Judge O’Neill did not discuss scheduling or procedural matters in this call. (Transcript Vol. I — 274-275) Judge O’Neill admitted that she made a single phone call to Vaughan but maintained that it only concerned scheduling matters and nothing else. Judge O’Neill testified that she made the phone call because her -bailiff was out that day and she was concerned that the matter be scheduled as quickly as possible although Judge O’Neill’s bailiff did not enter such an order until more than a month later on June 27, 2000. (Exhibit 65) (Transcript Vol. V — 87-91) Vaughan testified that several days later she did receive a voicemail message from Judge O’Neill, which did ask what the prosecutors’ office intended to do with the case and whether it should be scheduled back on the docket. Vaughan deliberately did not return the call to Judge O’Neill based on her discomfort with the first phone call. Instead, after consulting *233 others in her office she left a message with the bailiff directing the inquiry to attorneys in the appellate division of the office, which had handled the appeal. (Transcript Vol. I — 275-276).

33. MONTOYA: Testimony was taken from Rebecca Pokorski (Franklin County Public Defender)(Transcript Vol. I — 287, II — 8-41), Kevin Mulrane (Head of the Common Pleas Unit, Franklin County Public Defender)(Transcript Vol. 41-91), Michael Jakubow (Assistant Franklin County Proseeutor)(Transcript Vol. II — 91-125), Professor Lewis Katz (Transcript Vol. IV — 8-80), Judge William J. Corzine (Transcript Vol. XI — 155-183), Judge Richard E. Parrott (Transcript Vol. XI — 183-212), former Judge Ann Marie Tracey (Transcript Vol. XII — 35-87) Judge O’Neill (Transcript Vol. V — 91-113, VI 202-210, VII — 7-8,117,134-135) (Exhibits 76-102).

34. Lozaro Montoya was charged with multiple felony counts related to witness intimidation. He did not speak English. At arraignment he was unable to make the bail set of $20,000 and was in jail when the case was assigned to Judge O’Neill. The Franklin County Public Defender was assigned to represent him on October 13, 2000. The public defender assigned, Rebecca Pokorski (a staff attorney with the office since 1991), requested discovery from the prosecution. The case was set for a pre-trial on October 24, 2000. Pokorski, who had not received discovery, met with her client in the holding cell for the first time that day and spoke with him through an interpreter. Pokorski met with Michael Jakubow, the assigned prosecutor who consented to a continuance of trial. The defense orally requested and presented an agreed entry to Judge O’Neill allowing a continuance of the trial date then set for November 15, 2000. Pokorski explained that she had not received any discovery from the prosecution and that all the witnesses and her client were Spanish speakers and that complicated contact with them. Judge O’Neill denied the continuance.

35. After the October 24, 2000 pretrial, Pokorski filed a written Motion for Continuance, a Motion for Recusal of Judge O’Neill and a Motion to Substitute Counsel, which were all denied. On the trial date of November 15, 2000 Jakubow had not been able to locate his witnesses. As a result of discussion between Judge O’Neill and counsel it was agreed that Montoya would waive speedy trial time and in return he would be released on a personal recognizance bond with house arrest and orders not to contact the complaining witnesses. Judge O’Neill told the parties that the trial was rescheduled in two weeks on November 28, 2000. Pokorski advised the Court that two weeks was insufficient time to prepare: the prosecution witnesses still had to be found and made available for interview, the Thanksgiving holiday and a two-day death penalty seminar and other previously scheduled cases would not allow preparation within that time. *234 Judge O’Neill declined to adjust the date any further stating that counsel would be prepared and trial would proceed on that date.

36. On the November 28, 2000, Pokorski was not prepared to try the Montoya case. She had discussed the options available if trial commenced to preserve Montoya’s rights with her supervisor, Kevin Mulrane, and planned to refuse to participate in the trial should Judge O’Neill begin the trial. She had 3 other cases set for jury trials that day. That mofning she checked the availability of the other judges set for jury trials and learned the Judge Johnson was available on a ease older than Montoya. She told Judge O’Neill’s bailiff that she was starting a jury trial with Judge Johnson and went to clear her last case, a revocation hearing before Judge McGrath. Returning to the ninth floor she was told that Judge Johnson had decided to start another jury trial. At that point she went into Judge O’Neill’s courtroom and spoke to Judge O’Neill informing her if the Montoya trial commenced Pokorski would not participate in the trial. She recalls a brief, nervous but respectful exchange. She left to do a bond revocation hearing elsewhere (Transcript Vol. I — 306-310) Montoya was present sitting in Judge O’Neill’s courtroom with some family members and the interpreter.

37. Completing her work, Pokorski returned to Judge O’Neill’s courtroom and was met by the interpreter who told her that after she left, the judge revoked Montoya’s bond and had him arrested. (Transcript Vol. I — 311) In a transcript recorded outside the presence of counsel, Judge O’Neill stated, “The Court has been informed by defense counsel that she will not participate in the trial. I gave the defendant a bond last week over the objection of the prosecutor under the condition that she knew it would go to trial today or be nollied. The bond is therefore revoked. This is a witness intimidation case and it will be either tried today or it won’t; but in any event the Court did not intend for this person to be out on bond any longer than today, so the bond is revoked.” (Exhibit 94, p. 1) Judge O’Neill also completed a case-processing sheet that noted “Bond revoked. Ct only gave short bond b/c defendant would not waive time at the last trial date, defendant and counsel knew this was a definite trial date.” (Exhibit 78)

38. At the time Judge O’Neill revoked Montoya’s bond and had him arrested in the courtroom no request for revocation had been made. Judge O’Neill admitted that no conditions of Montoya’s bond had been violated. Judge O’Neill admitted that she did not record in any document when the bond was issued that this was a “short bond”, only good until the trial date. Neither Jakubow nor Pokorski recall any discussion about a time limitation on the bond when it was issued. Neither had ever heard of a “short bond” in name or concept. The only thing that had changed, as stated by Judge O’Neill on the record was Pokorski’s refusal to participate in the trial because she had not had the opportunity to *235 prepare. Judge O’Neill denied that she never saw or spoke to Pokorski before going on the record that morning. (Transcript Vol. V — 99-111)

39. Montoya was held in the courtroom lockup until noon when the prosecution “nollied” the case because of defects in the indictment. At that time he was ordered released after he was processed through the jail. Pokorski characterized the incident as frightening for him, being Spanish-speaking and not understanding why he was being arrested. (Transcript Vol. II — 31) Pokorski’s supervisor, Kevin Mulrane was present in the courtroom at the conclusion of this matter. Later that day Mulrane was called to meet with Judge O’Neill who complained that Pokorski treated the judge with disrespect and shadily. Mulrane discussed problems created for the Public Defender by Judge O’Neill’s practice of holding very early pretrials and only accepting pleas at the pretrial. According to Mulrane, Judge O’Neill’s courtroom is the only courtroom he could recall in which public defenders have refused to participate on the trial date. He testified that the office takes a very conservative position on continuance requests and rarely has any difficulty. He believed that Pokorski had done what she had to do to preserve her client’s right to effective assistance of counsel in the circumstances. (Transcript Vol. II — 80-81)

40. Professor Katz testified that the purposes of bond are to set an amount of and with conditions that will assure the defendant’s presence at a later time. Bond is typically set at the first court appearance and continues until the disposition of the case by plea or verdict. It was his opinion that Montoya’s bond was revoked because the defendant’s attorney was not willing to proceed to trial and that was inappropriate. He was unaware of any citations to the concept of a short bond in Ohio or anywhere covered by the Westlaw database. (Transcript Vol. IV — 29-34)

41. Respondent called Judges Corzine and Parrott and former Judge Tracey. They testified that factors regarding setting bond involve what is necessary to secure the appearance of the defendant. Bond revocation occurs primarily when a defendant fails to appear and usually any other factors causing revocation are brought up by the prosecution. Depending on the particular case revocation can occur as a result of specific acting out or threats made by the defendant or complaints of harassment made by victims or witnesses. The actions of counsel do not affect bond revocation. (Transcript Vol. XI — 168, 178 197, 199-200, XII— 50-51)

42. RIGHTER: Testimony taken on behalf of the Relator from Sean Dominy (defense attorney)(Transcript Vol. II — 173-193), Douglas Righter (defendant)(Transcript Vol. II — 193-211), Trent Turner (prosecutor)(Transcript Vol. II — 211-237), Sandy Grego (court reporter) (Transcript Vol. IV — 162-166) Judge *236 O’Neill (Transcript Vol. V — 113-133, VI — 176-186) and Carolyn Bostic, (deputy sheriff)(Transcript Vol. XVIII — 7-13) (Exhibits 103-114)

43. Douglas Righter was indicted on multiple felony counts related to a drive-by shooting. Earle “Duke” Frost and Shawn Dominy represented him. His case was set for trial before Judge O’Neill on Monday, March 20, 2000. Several sidebar conferences occurred that morning among Frost, Dominy, Trent Turner, the prosecutor, and Judge O’Neill. Righter was also present in the courtroom with family members. The prosecutor offered a plea to the indictment dropping the gun specification but Righter wanted to go to trial. Judge O’Neill told counsel that the case must be submitted to the jury by Wednesday because she was going on vacation. Judge O’Neill admonished counsel to have their witnesses ready at the courthouse and stated that they would work till midnight each day if necessary. Judge O’Neill then stated to Dominy in the presence of Turner “if he’s going to trial today, I am going to — I am going to revoke his bond.” (Transcript Vol. II — 221, 179-180) Turner recalled Dominy stated that his client was on bail and had appeared both times as required and asking how his client would be able to assist him in trial preparation if he is in jail. Judge O’Neill stated that Dominy can speak to his client “in the back,” the courtroom lockup, and repeated, ‘Well, I’m going to revoke him.” Turner testified that the judge’s statements about bond revocation surprised him since he did not request it and he was not aware of any reason for a bond revocation. (Transcript Vol. II — 221, 223-224)

44. Righter was in the courtroom and observed the sidebars and partially heard Judge O’Neill say something about a vacation. Righter’s counsel then conveyed to him that Judge O’Neill would revoke his bond if trial started. Shortly thereafter Righter, Turner and Dominy noticed a group of deputies enter the courtroom and after asking about the reason for their presence were told that the deputies were called to take someone into custody for a bond revocation. (Transcript Vol. II — 186, 197, 223) Righter overheard part of another sidebar discussing the prosecution witnesses and then Judge O’Neill said directly to Righter “you get your witnesses down here today.” (Transcript Vol. II — 208-209). Dominy described his client as “probably anxious” that morning. (Transcript Vol. II — 189) Further plea negotiation occurred between counsel as voir dire began and the prosecution offered a plea with reduced charges and a sentence of 18 months. Righter accepted. “Based on the advice from my counsel, and the fact that I couldn’t have my witnesses there and I was going to be sitting in jail regardless until the case was over until she got back from vacation which could have been, I didn’t know when, but I had to do something or I was going to do 12 years in prison for something that wasn’t my fault. I couldn’t prepare a defense.” (Transcript Vol. II — 203)

*237 45. Turner believed the plea was reasonable ánd fair but was concerned that it was coerced by Judge O’Neill’s threats to revoke the defendant’s bond during trial. (Transcript Vol. II — 234-235) Turner was contacted and interviewed by private counsel for Righter’s family investigating the circumstances of the plea several months later but the matter was not appealed. (Transcript Vol. II — 227, 234-235)

46. Judge O’Neill testified that she had noticed that Righter exhibited a lot of “agitation or tension” and “in and out activity” in the courtroom the morning of March 20, 2000. She maintained that she stated her concerns about his conduct and behavior to Dominy, Frost and Turner (Transcript Vol. VI — 180) but did not ask his lawyers to calm him down. (Transcript Vol. V — 123) She testified that she said: “If he wants to go to trial, we’re going today. And that basically if he continues to act that way, or I continue to have concerns about that, then, yes, that is a possibility. I could revoke his bond, not would revoke his bond if he went to trial.” (Transcript Vol. VI — 128) She acknowledged that she did not make any note of the behavior she described. She testified that Courtroom Deputy Carolyn Bostic told her that she called for additional deputies that morning due to Righter’s behavior. (Transcript Vol. V — 122) Carolyn Bostic testified that she was on a medical leave of absence from January 25 through April 25, 2000 and could not have been present for these events. (Transcript Vol. XVIII — 3-5)

47. COX: Testimony taken on behalf of Relator from Allison Cox (defendant)(Transcript Vol. II — 237-266), Ronald Welch (prosecutor)(Transcript Vol. II — 266-276), Judge O’Neill (Transcript Vol. V — 14—14) and on behalf of the Respondent from Ronald Janes (defense attorney)(Transcript Vol. VII — 247-289) and Judge O’Neill (Transcript Vol. VI — 168-177) (Exhibits 115-128).

48. Allison Cox, a registered nurse, was charged with one count of burglary and one count of domestic violence against one of her adult daughters in September 1999. Mrs. Cox had a three-month old nursing baby and two other children at home at the time. Cox had a previous criminal conviction from 1990 relating to this daughter who had a behavioral history of ADHD, explosive temper and depression. Cox had spoken to the victim the evening before trial and was not sure she would appear and testify. Cox arrived at 7:30 am with nursing infant and husband. Waiting in the courtroom, she observed Judge O’Neill’s demeanor as varied, from just facts and business and then screaming and yelling at persons appearing before her. Cox informed her lawyer, Ronald Janes that she won’t accept the plea, which had been previously offered. This was a disposition day in Courtroom 9A. When her case was called Cox observed Janes and the prosecutor approach the bench. Cox saw Judge O’Neill become irate, and she heard something about “dispo day”. The court transcript records *238 that Judge O’Neill chastised counsel for appearing on a disposition case with a case that Janes had assured the court would be a plea. (Exhibit 116 p. 1-5) In a later sidebar conference Cox heard Judge O’Neill say in a loud and harsh tone that if trial started Cox would sit until jail until every witness was called. (Transcript Vol. II — 244)

49. Cox had later discussions with Janes and was told her options were to plea to original felony offer or sit in jail during trial and possibly the judge’s vacation and face more jail time if she was convicted. Cox felt she had no choice with a baby at home she was nursing. She plead to the indictment and was sentenced to probation. (Transcript Vol. II — 244-246) (Cox visibly lost her composure while testifying to these events at this disciplinary hearing). Four days after her plea she filed a written grievance with the Columbus Bar which stated “Judge O’Neill became enraged and said that we would go to trial today and that I could sit in jail until all witnesses were contacted if we had to do the trial one hour a day. I would have my bond revoked and I would stay in jail until the trial was complete if I did not accept a plea bargain.” (Exhibit 115) The grievance was considered to be filed against Janes since Cox listed him as “the respondent” on the grievance form.

50. Prosecutor Ronald Welch (admitted in 1998, with the Franklin County Prosecutor since 1999) appeared that morning as a last minute substitute for assigned prosecutor, also believed it would be a plea. When Cox rejected the plea, Welch told Judge O’Neill he was not prepared for trial and he asked for a continuance. Judge O’Neill told Welch, “in no uncertain terms that it was my file. I was going to try the case.” (Transcript Vol. II — 270) Welch then offered a misdemeanor plea and Cox refused. At the next sidebar Welch testified Judge O’Neill became more belligerent and screaming. Judge O’Neill stated “we were going to proceed to trial, that if Mr. Janes’ client chose to go forward with the trial that she would revoke her bail, that she would then be taken into custody and that there would be no one to take care of her child.” (Transcript Vol. II— 272-273)

51. Judge O’Neill testified that while the Cox case was scheduled on a disposition day, she was not upset or angry when Cox didn’t want to accept a plea and go to trial. The docket was free for the afternoon, a trial was no problem at all and she advised the parties to notify her bailiff to request a jury for after lunch. (Transcript Vol. VI — 171-172) As to the testimony that she would revoke Cox’s bond, she maintained that was incorrect. She testified that she observed Cox in the courtroom that morning and that she was “agitated” and “disruptive” with “a lot of in and out activity”. She believed despite Cox’s family status she was a flight risk. She also recalled “vividly” that Janes at a sidebar conference disclosed that Cox and another daughter were putting significant and inappropri *239 ate pressure on the victim to drop her charges and that Cox was requesting a continuance of the trial. (Transcript Vol. VI — 172-173) As to any statement about revoking bond she testified, “I said to Mr. Janes and Mr. Welch, on maybe their third time up, because it was after the misdemeanor was rejected, which was the second side-bar, they came back at a later time that morning, and said, “Judge, she won’t take the misdemeanor, and she’s still wanting a continuance, but I’m ready to go. I’m ready to do whatever you want to do.” I recall saying to Mr. Janes and Mr. Welch, “Look, if she keeps that type of conduct up, I’ve been watching her all morning, the court can revoke her bond and put her in jail while we’re trying this case.”...” It’s going to be a situation where — that has happened with other judges and other courtrooms. I mean, there is a lot of case law on that when you’re dealing with a difficult defendant, you do whatever you can to make sure you keep control of the courtroom. And if — I pretty much — it was just more of a warning. It certainly was not a threat.” (Transcript Vol. VII — 175-176 and Vol. V — 147-149)

52. Janes (admitted in 1969, in private criminal practice) was called to testify by Respondent. He related discussions with Cox in which it was his suggestion to Cox that persuading the victim to appear in court and request that the charges be dropped would be the most effective way for Cox to get rid of these charges. (Transcript Vol. VII — 263-266) He had expected Cox to accept a plea and testified that Cox’s choice to reject a plea on June 26 was contrary to his advice. He testified that he heard Judge O’Neill state that Cox’s bond would be revoked if she went to trial. Although Cox had been agitated in private conversations with him Janes had not observed any agitated behavior in the courtroom and was aware of no reason why Cox bond should be revoked that day. He corroborated that Judge O’Neill was angry and upset, adding that everyone was upset that morning. (Transcript Vol. VII — 266-267) Janes was concerned that the threat by Judge O’Neill to revoke Cox bond when trial began was not appropriate and had influenced his client to accept the guilty plea. (Transcript Vol. VII — 270, 278-282)

53. NASH: Testimony taken from Timothy Pritchard (prosecutor) (Transcript Vol. II — 158-172), James Tullís Rogers (defense attorney)(Transcript Vol. II— 125-158) and Judge O’Neill (Transcript Vol. V — 151-158) (Exhibits 129-146).

54. Ronald Nash was indicted in 1996 on a F-5 possession of a trace amount of heroin. The case was assigned to Judge O’Neill but Nash never appeared for a pretrial scheduled in 1996. He was represented by James Tullís Rogers (admitted in 1968, served as Ohio’s first Public Defender 1975-82, since then in private criminal practice in Columbus). A bond forfeiture and capias were issued. In November 2000, Nash was arrested on the capias. Rogers moved to withdraw as counsel (Exhibit 137) but remained counsel when he learned that *240 Nash’s non-appearance in 1997 resulted from extradition to and imprisonment in New York. After serving his sentence in New York, Nash had returned to Ohio. Rogers met with the prosecutor and his client agreed to accept a misdemeanor plea with a maximum 6 months sentence less time served. (Exhibit 130).

55. On January 9, 2001 Timothy Pritchard, the assigned prosecutor, Rogers and Nash appeared before Judge O’Neill to present the plea. Rogers testified that at the sidebar conference Judge O’Neill stated she would not accept the plea. “He’ll eat the indictment or go to trial today. Pm bored today anyway.” Rogers testified that he explained the reason for Nash’s absence in 1996 but Judge O’Neill said if he doesn’t plea to indictment she would sentence him to the maximum after trial, which was 18 months. Rogers testified that the judge spoke loudly enough that Nash heard the comments. Nash was very alarmed and suspicious of Rogers but agreed to plea to the indictment. (Transcript Vol. II— 133-135) Judge O’Neill denied that she said anything about being bored: “I’m never bored.” (Transcript Vol. V — 154)

56. Pritchard, (admitted in 1992, with the Franklin County Prosecutor til 2002, now with the Ohio Attorney General) testified that the harsh tone and content of Judge O’Neill’s rejection of the plea was striking particularly because Rogers had a reputation as extremely respectful and professional lawyer (Transcript Vol. II — 162-163). Rogers discussed the two choices with Nash: plea to the indictment or trial. Nash was very alarmed and suspicious of Rogers but agreed to plea to the indictment. (Transcript Vol. II — 133-135) (Exhibit 135)

57. Judge O’Neill sentenced Nash to 12 months and concluded by stating; “He will be doing less than five months, which is less than he would have gotten if we had done the misdemeanor.” (Exhibit 146 p. 9) Rogers testified that this was wrong since jail time credit would have reduced a six-month sentence on the misdemeanor to less than 3 months. Rogers was disturbed that Judge O’Neill made that comment in front of his client who then wanted to complain. Rogers testified that while he wrote letters defending Judge O’Neill from criticism in earlier years now he testified, “I would prefer to avoid that courtroom.... It’s an uncomfortable courtroom.... And it’s very volatile.” “I fear that something will be said to scare my clients or embarrass me.” (Transcript Vol. II — 140-141, 152-153)

58. BURTON V. NICHOLSON: Testimony taken from John Waddy (plaintiffs attorney) (Transcript Vol. Ill — 68-117), Shelia Vitale (Judge O’Neill staff attorney) (Transcript Vol. Ill — 117-149), Judge O’Neill, (Transcript Vol. V — 159-177), (Exhibits 147-166)

59. John Waddy represented Laura Burton in a civil case regarding an auto accident claim. He had received a policy limits offer from the defendant’s insurer but could not accept it and dismiss the pending case until he received consent *241 from the plaintiffs underinsurance carrier. At a final pretrial with Shelia Vitale, Judge O’Neill’s staff attorney, he explained the situation and Vitale made a note on the file that it was resolved but cannot be dismissed yet. The case file went through normal processing and a dismissal entry was posted. Waddy tried unsuccessfully with phone calls to Vitale and the bailiff and a written motion to vacate the dismissal entry. He filed an appeal and the Tenth District Court of Appeals reversed the dismissal. Judge O’Neill testified that this matter “fell through the cracks” and that there were some communication problems due to a death penalty case and other events occurring in this time period. Upon remand the case was stayed until completely resolved. Waddy testified that the appeal delayed resolution of the case since the underinsurance insurance carrier would not negotiate until the appeal about the dismissal entry was resolved.

60. BIVENS: Testimony taken from David DeVillers (prosecutor) (Transcript Vol. Ill — 8-35), Timothy Pierce (public defender)(Transcript Vol. III — 35-68), Sandy Grego (Court reporter) (Transcript Vol. Ill — 19-35) and Judge O’Neill (Transcript Vol. V — 177-187 and VII — 9—13), (Exhibits 169-179)

61. Brandon Bivens, 19 years old, was indicted on two drug possession charges (F-4 and F-5). Trial was scheduled for June 3, 1999 before Judge O’Neill. Bivens was represented by Public Defender Timothy Pierce (admitted 1989, with Franklin County Public Defender since 1990). Prosecutor David DeVillers (admitted 1992, Franklin County Prosecutor’s Gang Unit 1997-2001, U.S. Attorney’s Office, Criminal Division since 2002) was assigned to the case since Bivens was identified as a gang member (“The choke and kill bloods”). Pierce contacted DeVillers the day before trial and conveyed that Bivens would accept the plea offer of an F-5 and an M-l but Pierce wanted to have a Presentence Investigation or “PSI” to determine if the sentence could be probation. Pierce sought and received DeVillers’ consent to a PSI as well as to Pierce approaching Judge O’Neill ex parte to seek her approval to order a PSI. Pierce went to Judge O’Neill’s courtroom on June 2, 1999. Pierce met with Judge O’Neill as she was leaving the bench, explained his request for a PSI for Bivens who was scheduled for the next morning and asked if Judge O’Neill would continue bond for Bivens during the PSI. Pierce testified that it was not a passing conversation; “she had my attention and I had hers.” Judge O’Neill said ‘that’s fine’. (Transcript Vol. Ill — 48) Pierce called Bivens and told him about the judge’s response and that the next day he should not expect sentencing; his plea would be entered and the PSI would be ordered.

62. . On June 3,1999 Bivens was two hours late for the 9:00 am court hearing. DeVillers was in trial and sent Jeff Reichel to cover, understanding that this was just a plea and it had been arranged to order a PSI. Neither Pierce nor Devillers had Bivens’ juvenile record, however, a juvenile record would not exclude *242 ordering a PSI. Pierce was in and out of Judge O’Neill’s courtroom that morning waiting on Bivens who arrived at 11:00 am. Pierce was in the courtroom, when he saw Bivens arrive and he walked back toward him. He heard behind him tumultuous noises, a book slamming down, and loud voices not understandable. (Transcript Vol. Ill — 40-41) Sandy Grego, the court reporter testified at that time Judge O’Neill was throwing her keys and a book down on the bench, slamming drawers and screaming. (Transcript Vol. Ill — 22-23) Bivens told Pierce he had transportation problems as Pierce realized that Judge O’Neill was demanding they approach the bench. Pierce described Judge O’Neill’s demeanor as “very, very loud, very, very, very ugly and very intimidating.” Pierce was demeaned. Pierce unexpectedly lost his composure at this disciplinary hearing describing this situation, stating, “This was not the only time that this kind of thing had happened.” (Transcript Vol. Ill — 42). Grego testified that Judge O’Neill “wanted an explanation as to why he (Bivens) was two hours late, that she wanted to leave at 11:00 and she would be really late for whatever she had to do.” Grego described Judge O’Neill as “clearly irate and definitely screaming.” (Transcript Vol. Ill — 22-23)

63. Pierce stood respectfully during the plea and when Judge O’Neill proceeded to sentencing he tried several times to request a PSI and to refer to his conversation with Judge O’Neill the day before. Judge O’Neill refused to order a PSI and ordered Pierce to speak in mitigation on sentencing. (Exhibit 167 p. 10, 11,13) Pierce testified he was not prepared to address sentencing or speak in mitigation. Bivens was sentenced to 6 months with jail time credit. Pierce never before had a judge agree to order a PSI and then renege on the agreement without any notice to the lawyer or client. (Transcript Vol. Ill — 47,55,65) Pierce went to visit Bivens the next day in the jail highly concerned that Bivens would file a grievance against him. Pierce offered to file a motion to withdraw the plea or appeal but Bivens declined. By the time such a motion or appeal would have been decided, Bivens would have served his sentence. (Transcript Vol. Ill — 58-59)

64. Judge O’Neill testified that she had no recollection of any conversation with Pierce a day earlier about ordering a PSI for Bivens. In addition to a lack of recollection she testified that it was not a conversation that she would participate in since she believed that by ordering a PSI a judge indicated that they would be willing to consider probation for an offender. She would not give that kind of indication unless and until she had reviewed the Court’s file. She would not have had seen the Bivens file at the time Pierce testified he spoke to her. She testified that after review of Bivens prior juvenile and adult record she concluded this case was in a category in which she would not have considered *243 probation as part of a sentence and a PSI was unnecessary. (Transcript Vol. V— 179-181, VII — 9-13)

65. LANE: Testimony taken from Sue Ann Reulbach, (prosecutor)(Transcript Vol. Ill — 149-176), Jeffrey Bobbitt (public defender)(Transcript Vol. Ill — 176-206), Sandy Grego (Court reporter)(Transcript Vol. Ill — 189-206), Sheryl Pritchard (prosecutor)(Transcript Vol. Ill — 206-214), Dan Cable (prosecutor)(Transcript Vol. Ill — 216—219) and Judge O’Neill (Transcript Vol. V — 186-199, VI— VII — 13-19,137,169-172,175-176). (Exhibits 180-188)

66. In February 1999, William Lane was indicted for multiple felonies relating to a bank robbery in Columbus. Because of his habit of committing robberies in nightwear, he had gained notoriety as the “pajama bank robber.” At the first pretrial before Judge O’Neill on March 25, 1999 Lane unexpectedly offered to plea to the indictment. Jeffrey Bobbitt (admitted 1982, Franklin County Public Defender, Staff Attorney since 1982) was defense counsel and Sue Ann Reulbach (admitted 1985, Franklin County Prosecutor’s Office since 1991, Senior Trial Staff) was the assigned prosecutor. Around 9:30 am counsel approached and informed Judge O’Neill there would be a plea. When Judge O’Neill wanted to proceed to sentencing, Reulbach explained that the victim, a bank teller, requested to be present and to make a statement at sentencing as required under the Ohio Victims Rights Act. (O.R.C.2930.14) Reulbach requested that the matter be continued to that afternoon or the next day to secure the attendance of the victim. Judge O’Neill asked Reulbach why the victim was not subpoenaed that morning. Reulbach explained that the plea was not expected and victims are not usually present at the first pretrial. Reulbach testified that Judge O’Neill denied the request to reschedule and stated, “Absolutely not, we are going to proceed. I’m going to get this case off my docket.” (Transcript Vol. Ill — 154-156) Reulbach called the victim who was at work at the bank but she could not leave her job at that time.

67. When Judge O’Neill requested that counsel take their places to do the plea and sentencing, Reulbach refused to proceed until she put on the record that she was not able to comply with the victim’s rights statute. Reulbach and Bobbitt testified that a back and forth banter ensued between Judge O’Neill and Reulbach. Reulbach requested to make a record on the victim issue and Judge O’Neill refused to go on the record. As this back and forth continues, Bobbitt observed that the court reporter Grego looked like a marionette with her hands going on and off on the stenotype machine as Reulbach requested a record and Judge O’Neill ordered the record not be taken. Reulbach respectfully but insistently refused to proceed with plea and sentencing until the victim’s presence was arranged or she made a record on the absence of the victim. Both counsel testified that Judge O’Neill, not the court reporter, determined that no record *244 would be made. None of these conversations appeared in the transcript. (Transcript Vol. Ill — 182-185, 156-158) (Exhibit 186) Judge O’Neill stated in her Answer to the Amended Complaint at Para. 207 that “Ms. Reulbach could proffer anything at any time with the court reporter. She additionally avers that the court reporter, Sandy Grego, refused Ms. Reulbach an opportunity to proffer.” Grego testified that she did not take a record that day because Judge O’Neill “said no” and at that time, “you couldn’t make a proffer unless Judge O’Neill agreed.” If Reulbach had asked for a proffer, Grego would have had to ask Judge O’Neill for permission. (Transcript Vol. Ill — 25,194, 203)

68. Reulbach left the courtroom and returned with Ron O’Brien, the Franklin County Prosecutor. O’Brien gave Judge O’Neill a copy of the victims’ rights statute and requested that Lane’s plea be postponed until 3:00 pm when the victim could be present. Judge O’Neill agreed to postpone the plea but offered Bobbitt the opportunity to withdraw Lane’s plea based on the morning’s events. Bobbitt refused this offer at Lane’s insistence and the plea and sentencing take place that afternoon, including testimony from the victim. (Exhibit 186) Judge O’Neill testified that Reulbach was posturing and delaying to allow time for the news media to arrive for the sentencing. (Transcript Vol. V — 193-195). Reulbach denied calling any media, believed they were already in the building that morning and when the plea did take place, no media were present. (Transcript Vol. Ill — 168-173)

69. The following morning Judge O’Neill observed Reulbach and Grego conversing briefly. Judge O’Neill then told Grego that Reulbach was considering charges against Grego for her failure to take a record in the Lane case. Grego asked Reulbach about this a couple days later and Reulbach stated she had no intention of making any charges against Grego. (Transcript Vol. Ill — 198) (Exhibit 197)

70. WOERNER: Testimony taken from Michael Siewert (defense attorneyXTranscript Vol. IV — 80-139), Christian Domis (prosecutor)(Transcript Vol. IV — 139-155), Brenda Judy (Courtroom DeputyXTranscript Vol. IV — 181-202), Sandy Grego (Court reporter)(Transcript Vol. IV — 156-163, 175-178), Judge O’Neill (Transcript Vol. V — 199-229, VI — 163-167) (Exhibits 189-214).

71. Roger Woerner was originally charged with a misdemeanor domestic violence charge and arraigned in Franklin County Municipal Court. He attended two court dates in Municipal Court. The misdemeanor indictment was then dismissed in favor of a two felonies filed in Franklin County Common Pleas Court, which is located in the same courts complex, but in a different building. Woerner’s first appearance on the felony charges was in the Municipal Court building. Woerner was released on a $5000 personal recognizance bond. The felony case was assigned to Judge O’Neill and set for a pretrial on March 2, 2000. *245 The pretrial was scheduled for 9:30 am. The defense attorney was Michael Siewert (admitted in 1984, private practice criminal defense and traffic). Siewert arrived that morning before 9:30 am, checked in and left his associate, Gary Dicker in the courtroom while he checked on other cases he had that morning. Siewert had learned from Christian Domis, the assigned prosecutor (admitted 1998, Franklin County Prosecutor since 1998, then assigned to the abuse unit) that the plea offer was an F-5.

72. Woerner arrived at 9:55 am, 25 minutes late. His explanation was that he had gone to the Municipal Court building. Siewert conveyed the plea offer, which his client rejected. The case was called for the pretrial around 11:00 am. In the transcript Judge O’Neill learned that the plea had been rejected and consistent with her policy that there would now either be a plea to the indictment or a trial, Judge O’Neill then stated: “Okay. March twenty-second is the trial date, and bond is revoked and the deputy is ordered to take him in. I need a deputy here.” Woerner asked what that meant and Siewert told him he was being arrested. Judge O’Neill then volunteered, “Because you are late. You should have been here at nine-thirty.” (Exhibit 200, p. 3) Siewert and Woerner explained to Judge O’Neill that Woerner went to the Municipal Court building and Judge O’Neill stated, “His notice was for this building. I’m getting tired of this.” Grego, the court reporter, made a contemporaneous record in her diary of these events and testified that when Woerner refused to take the plea the judge revoked his bond and put him in jail. Grego was not surprised because “she had made remarks like that before to other defendants, that if they didn’t take the plea, that she would revoke their bond.” (Transcript Vol. IV — 159)(Exhibit 250)

73. On the criminal case processing sheet Judge O’Neill entered a capias and bond forfeiture order and but also noted: “Defendant appeared at 9:55.’ (Exhibit 209) On March 9, 2000 Judge O’Neill signed an order of forfeiture that falsely stated that Woerner had not appeared on March 2, 2000. (Exhibit 210)

74. Siewert testified he was ‘stunned’. He testified that the appearance of these events and his belief was and is that his client had his bond revoked for rejecting the plea bargain. (Transcript Vol. IV — 99,130-131) There were no other explanations given to the parties at any time that day by Judge O’Neill for the revocation other than lateness. Siewert had never had a defendant’s bond revoked for less than half-hour tardiness anywhere. He testified that the rule of thumb in Common Pleas and Municipal Court was that if a client was more than a half-hour late there could be problems. Christian Domis was surprised when Judge O’Neill revoked bond, he had never seen it before or since; the victim was not concerned for her safety and he knew of no reason for revocation from the prosecution’s position. (Transcript Vol. IV — 142)

*246 75. Siewert had smelled alcohol on Woerner when he arrived that morning and said the judge’s bailiff, Karen Moore, had remarked on it. When Siewart first spoke to his client he was agitated because he was late and “it took a second to calm him down” but Siewert didn’t see any other notable behavior after that. (Transcript Yol. IV — 126-127) Siewert never thought that Woerner was intoxicated or not capable of making decisions that morning. Siewert testified that his client was never closer to Judge O’Neill than 20 feet away and Woerner was silent and respectful in the courtroom. (Transcript Vol. IV — 105)

76. Deputy Brenda Judy took Woerner into custody and was with him in the lockup about one-half hour. She didn’t smell alcohol and had no issues with Woerner’s behavior. Siewert spoke to his client in the lockup once. He sought out Judge O’Neill’s bailiff, Karen Moore, and asked that Woerner be returned the next day to the court in hopes that he might do something regarding the bond revocation to help Woerner’s situation. Siewert believed that Woerner’s situation couldn’t get any worse than it was at that point. (Transcript Vol. IV — 97-98,124) Deputy Judy testified that after Siewert left Karen Moore returned to the lockup 3 times and each time asked Mr. Woerner about accepting a plea to avoid jail. Judy believed this was being done at the direction of Judge O’Neill. These visits all took place before 11:35 am, the time on the U-10 form the Deputy filled out just before the Woerner was taken to the jail. (Transcript Vol. IV — 199-200) Grego testified per her diary that Judge O’Neill left that day for lunch at 11:35 am (Exhibit 250) Judge O’Neill testified that she had no knowledge of Moore’s visits which would have been inappropriate and believed Judy’s testimony about both Moore’s visits and about Woerner’s general condition was incorrect. (Transcript Vol. V — 215-216)

77. The next day, March 3, 2000, Woerner was returned to Courtroom 9A. Domis recalled being paged around lunchtime. In an off the record conversation Siewert and Domis testified that Judge O’Neill suggested that the prosecution offer a misdemeanor plea and stated that the sentence would be the same as if he plead to the F-5. Domis offered a misdemeanor, which was accepted and Woerner was sentenced by Judge O’Neill to probation and released that day. (Transcript Vol. IV — 100-101,144-146) (Exhibit 201)

78. The Answer to the Amended Complaint about the Woerner case stated,” The defendant was obviously intoxicated” (¶ 216) “Even if the defendant wanted to plea she (Judge O’Neill) would be unable to accept the plea, since the defendant was under the influence.” (¶ 217) “Woerner was immediately taken into custody, out of concern for the victim’s safety. (¶ 218) “Judge O’Neill did not revoke his bond solely because he was late for Court; rather the bond was revoked after she had an opportunity to observe his demeanor and after affording the defendant an opportunity to provide just cause for his actions.” (¶ 218) “Mr. *247 Woerner was indignant, refusing efforts to resolve the case between the State and his counsel.” (¶ 218)

79. Judge O’Neill was asked: “What about his conduct and demeanor said to you he was intoxicated? A. Agitated, agitated just — I guess I use the words earlier under Righter, kind of gave the impression like he was there to take issue with everything, pick a fight, kind of just not happy he was there, and, quite frankly, what was going through my thought process is this individual is going to leave here, and he’s going to go home and take it out on the person who caused this complaint to be filed. That’s the kind of air that I felt.” (Transcript Vol. V — 205)

80. Judge O’Neill testified that her bailiff slipped her a post-it note that said she smelled alcohol on Woerner, (Transcript Vol. VI — 164-165) Judge O’Neill testified that the reasons the bond was revoked, “were not as much the lateness issue, although that certainly is a grounds to revoke a bond, but also his conduct, his demeanor, the whole circumstances of his appearance on that day.” (Transcript Vol. VII — 128) Judge O’Neill acknowledged that none of her concerns about his demeanor or appearances were stated to counsel or put in the record and that it was only after the grievance was filed that she learned the Siewert had smelled alcohol on his client. (Transcript Vol. V — 113, 219)

81. On April 17, 2000 Judge O’Neill’s signed an Entry of Judgment for $5,000.00 against Woerner for the bond forfeiture. That judgment remained on the record at the time of this hearing. Judge O’Neill testified that this was an error and should not have happened. While testifying about this situation she asked this hearing panel’s approval to enter an order vacating the judgment against Woerner.

82. SMILEY: Testimony taken from Angela Bolognone (prosecutor) (Transcript Vol. IV — 202-243), Ralph Kerns (defense attorney)(Transcript Vol. IV— 243-278), Angela Canepa (Supervising prosecuting attorney, Abuse Unit)(Transcript Vol. IV — 278-305), Judge O’Neill (Transcript Vol. V — 232-248, VII — 19-32, 139, 176-182) (Exhibits 227-249).

83. James Smiley was an 18 year old indicted on two counts of corruption of a minor, fourth degree felonies. Smiley had had a liver transplant in 1995 and was basically homebound and home-schooled. (Transcript Vol. IV — 244) The case was scheduled for trial on October 5, 2000. Ralph Kerns (admitted 1981, general private practice since then) represented Smiley. At the pretrial Judge O’Neill granted leave for Smiley to consider a plea offered to a single felony count through the trial date. (Exhibit 235) Smiley agreed to accept the plea and Kerns told the assigned prosecutor, Angela Bolognone (admitted 1997, Franklin County Prosecutor’s office from 1997-October 2001, abuse unit, now inactive status for family reasons). Parties and counsel appeared on the day of trial at 9:00 am to *248 enter the plea. Bolognone advised the victim’s family that because both parties have requested a PSI and HB 180 a sexual predator status hearing was required and that sentencing would not take place that day. Under the Ohio Sexual Predator law (R.C. 2950.09) when a defendant pleads guilty to a felony sexual offense, the statute proscribes that a hearing be held to determine the defendant’s sexual offender classification. Notice is required to the parties and counsel of the date and time of the hearing and the State has the burden of proof. (Transcript Vol. IV — 209-211, 213-214, 272, 280-281)

84. Judge O’Neill was not present at 11:30 am and Bolognone told the victim’s family they could go home and they could be heard at the HB 180/sentencing hearing, which would be scheduled another day. Judge O’Neill took the bench at 1:40 pm and appeared to Kerns and Bolognone to be agitated and angry. (Transcript Vol. IV — 215, 249) Bolognone specifically requested a PSI and an HB 180 hearing, stating that there has to be formal notice given. Judge O’Neill stated, “We’re going to do that now — at the time of sentencing, which is now. The parents want .jail time, or are they interested in probation, or what is their position?” (Exhibit 22, p. 14) Bolognone apologized for the parents’ absence and again requested a PSI and that an HB 180 hearing be set. Judge O’Neill then stated “The statute makes it very clear that the House Bill 180 is at the time of sentencing and nobody should count on a presentence investigation. So I take it you are in favor of jail time, because you are not waiving a PSI?” Bolognone stated: “I was hoping to find out more about this individual from the PSI, Judge. I know very little about this individual.” Bolognone repeated her request for the HB 180 hearing and Judge O’Neill replied: “No, you have the House Bill 180 hearing at the time of sentence. If you’ve said all you’re going to say, I need to fill out these forms before I proceed.” Bolognone apologized again and testified she sensed the judge was angry and the hearing was “starting to spin out of control.” (Transcript Vol. IV — 215-216) When asked again, Bolognone declined to say anything about sentencing. Judge O’Neill went on to sentence Smiley to six months in prison finding that a prison term was consistent with the purposes of R.C. 2929.11, Smiley was not amenable to community control and “because of the nature of the case involving intercourse with a 13-year-old child, that it would demean the seriousness of the offense by giving him probation.” (Exhibit 277 p. 17, 18) Judge O’Neill then proceeded in a soliloquy to enumerate the factors for the sexual offender classifications and make findings without asking for any evidence from the prosecutor. (Exhibit 227 pp. 18 — 22)

85. Kerns went with Smiley into the lockup to discuss with him what had happened. When he returned to the courtroom, Kerns saw Judge O’Neill talking to two women near the bench and he heard Judge O’Neill state at a volume, “fully sufficient for my client’s mother to hear that had I taken the matter to trial and *249 this girl taken the stand and testified that my client wouldn’t have been convicted. ... And then I approach the judge, I’m stunned that she’s made that statement. I’m stunned at everything that has' taken place. And she says, “You should have been offered a better deal. Go up and talk to Angie Canepa and if you can get a better deal or a misdemeanor in this case, I’ll let you withdraw your plea and come back.” (Transcript Vol. IV — 254) Kerns did speak to Canepa who refused to change the plea.

86. Kerns then returned and asked to talk to Judge O’Neill. Kerns was concerned because dispensing the medications Smiley required due to his transplanted liver had been a problem when Smiley was briefly in jail when he was originally arrested on these charges. Kerns testified, “... By that time, the only thing that was left was to remind her of my client’s issues medically. Q. Did you do that? A. Yes, I did. ... Her initial reaction to me was to look me dead in the eye and tell me that he should not have had sex with a 13-year-old if he didn’t intend to go to jail, and that it wasn’t her issue, that she guessed the sheriffs would have to handle it. Then she indicated that she would dash off some kind of entry that would be sure and enforce the Franklin County Sheriffs to make sure that they gave him seven pills a day.” (Transcript Vol. IV — 256) Kerns, along with Smiley’s mother, took the seven medications Smiley took every day to the jail and Judge O’Neill did enter a special order regarding Smiley’s medications (Ex. 241).

87. Judge O’Neill requested to speak later that afternoon with Canepa, who was Bolognone’s supervisor. Canepa testified: “she was indicating to me that on this particular case, she was upset with (Bolognone) for a number of reasons. The fact that she had let the victims leave, the fact that she would not waive her right to the pre-sentence investigation, and the fact that she did not offer her— this particular defendant a better deal, that she (Bolognone) should have offered him a nonsex misdemeanor because this kid was not the type of kid that should have spent a day in jail for this offense. ... She (Judge O’Neill) wanted for us to change the plea post — you know, to change even though it had already been entered. She wanted me to have her do that.” ... ’’Her indication to me was that because Angela wouldn’t waive the pre-sentence investigation that she was compelled to do the only thing she could do, which was to impose a prison term; and that was upsetting to her.” (Transcript Vol. IV — 282-283) Canepa did not believe that Judge O’Neill was forced to impose a prison sentence: “it is true that she could not have imposed community control on that date, but she certainly could have simply ordered the pre-sentence investigation, set it down for sentencing on another date, and done whatever she felt was appropriate at that time.” (Transcript Vol. IV — 285)

*250 88. Judge O’Neill’s Answer to the Amended Complaint states: “Judge O’Neill orders a PSI if it is requested.” (¶ 250) “Her conversation with Ms. Canepa had nothing to do with the merits of the case.” (¶ 254) “At the time of Mr. Smiley’s sentencing, Judge O’Neill had been informed of all facts concerning Mr. Smiley and the offense. In her judicial experience, a PSI in such a case would not yield any additional findings ... Because Ms. Bolognone would not waive the PSI, the sentencing statutes would not permit Judge O’Neill to sentence the defendant to probation and she therefore sentenced him to the minimum prison term.” (¶ 256) The answer does not mention any other justification for the sentence.

89. Canepa discussed Smiley’s case with Bolognone. Bolognone was not disciplined or sanctioned — Canepa advised her for the future that Judge O’Neill did refuse to do PSI’s. Canepa explained that because of Judge O’Neill’s concern about her docket she will want a case off her docket that day, she will not want a PSI and she will sentence the day of the plea. Bolognone should never allow victims to go home on trial dates in Judge O’Neill’s courtroom. (Transcript Vol. IV — 288-291, 298) Bolognone was “floored” when Canepa told her that Judge O’Neill blamed the prison sentence on Bolognone’s refusal to waive a PSI: “It was hard for me to believe that instead of ordering a pre-sentence investigation, instead of having a hearing, instead of following the law and doing the hearing the way the legislature said we should do, instead of doing that, she would send this person to prison who she thought deserved a misdemeanor.” (Transcript Vol. IV — 219)

90. In her testimony at this hearing Judge O’Neill stated that she knew Smiley’s medical condition and history before sentencing (Transcript Vol. VII— 21-22) She believed the problem in this case was the inexperience of the prosecutor. (Transcript Vol. V -139) She testified that her reason for sentencing Smiley to prison was to utilize a “scared straight” approach and that was why she had ordered a post-sentence investigation. (Transcript Vol. VII — 25) “I ordered a PSI, which is the post-sentencing investigation, but I didn’t have any intentions at the time that I sentenced him to give him probation.” (Transcript Vol. V— 247)

91. Judge O’Neill denied making the statement Kerns heard that Smiley would have won at a jury trial. She admitted that she was at the bench having a conversation that she shouldn’t have been having but she believed one of the others may have made the statement. (Transcript Vol. V- — 238-239) Judge O’Neill did tell Kerns to ask Canepa about a misdemeanor plea and suggested that she would entertain a motion to withdraw his plea as allowed by Criminal Rule 32. (Transcript Vol. V — 239-240) She admitted saying to Kerns that Smiley should have considered the consequences of having sex with a 13 year old. She differed with Canepa on her recollection of meeting the afternoon of October 5th. *251 It was much shorter, more general and policy oriented. She denied that she said Smiley should never have been incarcerated. (Transcript Vol. V242-244) She denied she advised Canepa to offer a misdemeanor. (Transcript Vol. V — 247)

92. Smiley’s medications were not given by jail personnel as ordered and within a couple days he had a medical emergency at the jail and was admitted to Grant Medical Center. (Transcript Vol. IV — 256-258) Kerns was contacted by Judge O’Neill’s courtroom and attended on October 11, 2000 a hearing before Judge O’Neill. (Exhibit 228) Judge O’Neill stated that the hearing was on the Court’s own motion in light of Smiley’s medical emergency, reviewing that the prosecution did not waive the PSI but had no objection to probation but now the prosecution had indicated it would waive the PSI so Smiley could receive immediate probation. (Exhibit 288 p. 3) Ken Mitchell who appeared on behalf of the prosecution had been contacted by Judge O’Neill and asked to handle the hearing for the state. Bolognone testified that she was notified of the hearing by a page that day and only when she reached the courtroom did she learn that Judge O’Neill had contacted Mitchell who had already agreed to waive the PSI. (Transcript Vol. IV — 221-224)

93. VIOLATIONS CHARGED ON COUNT 1:

a) Canon 1 — A judge shall uphold the integrity and independence of the judiciary;

b) Canon 2 — A judge shall respect and comply with the law and shall act at all times in a manner which promotes public confidence in the judiciary;

c) Canon 3 — A judge shall perform the duties of judicial office impartially and diligently;

d) Canon 3(B)(2) — A judge shall be faithful to the law and maintain professional competence in it;

e) Canon 3(B)(4) — A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and other with whom the judge deals in an official capacity;

f) Canon 3(B)(7) — A judge shall not initiate, receive, permit or consider communications made to the judge outside the presence of the parties or their representatives concerning a pending or impending proceeding.

g) Canon 3(E)(1) — A judge shall disqualify herself in a proceeding in which the judge’s impartiality might reasonably be questioned;

h) Canon 4 — A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities;

i) DR 1-102(A)(4> — Engaging in conduct involving dishonesty, fraud deceit or misrepresentation;

*252 j) DR 1-102(A)(5) — Engage in conduct that is prejudicial to the administration of justice.

94. In considering the violations alleged in Count 1 the Relator argues that these incidents comprise a pattern of misconduct and that each individual incident on its own may not be a violation of the Code of Judicial Conduct or the Disciplinary Rules. There are no Ohio cases brought to the panel’s attention, which have used this approach, however, the Preamble to Code of Judicial Conduct provides the following guidance to the panel. “It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the. degree of discipline to be imposed should be determined through a reasonable and reasoned application of the text and should depend on such factors as the seriousness of the transgressions, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system and for the protection of the public.” As detañed below, the panel majority concludes that each incident which is found to violate the Canons or Disciplinary Rules will stand on its own merits.

95. Respondent has argued that throughout the Amended Complaint any conduct which involves the exercise of judicial discretion by Respondent cannot be the subject of disciplinary action and that an appellate reversal of any judicial decision by Respondent for an abuse of discretion cannot be the basis for disciplinary action. In considering Respondent’s actions throughout this Amended Complaint while the panel majority has considered the existence and effect of judicial discretion where it is relevant, it does not find that such discretion is an absolute bar to examining Respondent’s conduct under the Canons of Judicial Conduct or the Disciplinary Rules. The panel majority likewise does not find that an appellate court reversal of Respondent’s decisions mandates the existence of misconduct. The panel majority concludes that judicial discretion and appellate court reversals are but two of many factors to be considered in judging each incident alleged in the Amended Complaint on the specific facts presented.

96. The panel majority concludes in multiple incidents in Count 1 that in criminal cases Judge O’Neill used improper means to coerce pleas or to retaliate for the actions of counsel. The panel finds these actions to be some of the most serious charges in the Amended Complaint. In Righter, Cox, and Woemer, the panel majority finds by clear and convincing evidence that the Respondent coerced pleas from criminal defendants by threatening to or actually revoking their bond if they chose to refuse pleas and go to trial. In Montoya, the panel majority finds by clear and convincing evidence that the defendant’s bond was revoked to retaliate for his counsel’s refusal to proceed with trial without an opportunity to prepare. The panel majority makes these findings based on an assessment of the credibility of all of the witnesses who testified, their appear *253 anee and demeanor at hearing as well as the extant records of proceedings in these cases. The panel majority acknowledges that Judge O’Neill in each instance either outright denied having made such threats or testified that she had facially justifiable reasons for revoking a defendant’s bond. The only non-party fact witness called by Respondent in this matter, defense attorney Ronald Janes, corroborated the testimony of Relator’s witnesses that Judge O’Neill had threatened to revoke bond when his client, Cox, wanted to go to trial. The panel majority did not find Respondent’s testimony credible in Righter, Cox, Woemer and Montoya.

97. The panel majority concludes that the justifications Respondent proffered for to justify her actions in Righter, Cox Woemer and Montoya were not genuine but rather pretexts for her improper activity. The defendants’ behavior described by Respondent in Cox, Righter and Woemer to justify bond revocation were strikingly vague and similar for example, “lots of in and out activity” and “stress or agitation.” Although Judge O’Neill claimed she had serious concerns with the behavior of each defendant, the record of each proceeding contains no reference to any concerns much less a specific threat, even though in each instance there was ample opportunity for Respondent to state those concerns if they truly existed because all proceedings were taking place in the courtroom with a court reporter on duty. The panel majority does not believe any of the concerns actually existed on the day of these hearings. A decision on bond is committed to the discretion of a judge and testimony offered that flight risk and safety are considerations. However, every witness who testified on this subject in this hearing agreed that it is improper for a judge to threaten to revoke bond to affect or coerce a plea or because a defendant chooses trial and the panel majority concludes by clear and convincing evidence that it was Respondent’s reason for these bond threats and revocations.

98. After revoking Montoya’s bond, Respondent fabricated the concept of a “short bond” in court entries to justify her actions. In Woemer, Respondent misrepresented on the record that the bond revocation was for “being late” and signed an order that falsely stated Woerner did not appear on March 3, 2000. The panel majority concludes by clear and convincing evidence that these two acts violate DR 1-102(A)(4).

99. In these incidents the panel majority does not find that Judge O’Neill abused her judicial discretion but rather that her conduct was outside any permissible discretion and totally improper. The panel majority concludes that Respondent’s conduct in Cox, Righter, Woemer and Montoya violated Canons 1, 2, 3, 3(B)(2), 3(B)(4), 4 and DR 1-102(A)(5).

100. In Nash, the panel majority finds by clear and convincing evidence that the Respondent used a threat to coerce the Defendant’s plea. After refusing the *254 misdemeanor plea offered by the parties and only allowing a plea to the indictment Respondent threatened that if the defendant chose trial he would receive the maximum sentence. The panel majority finds by clear and convincing evidence that Respondent made such threat and coerced defendant’s plea with said threat. Respondent’s conduct in Nash interfered with the defendant’s rights in the plea process, destroyed the voluntariness of the plea so obtained, adversely affected the administration of justice, was contrary to law and was improper. The panel majority find by clear and convincing evidence such conduct in Nash by Respondent violated Canons 1, 2, 3(B)(2), 3(B)(7) and 4 and DR 1-102(A)(5). See, In the Matter of Cox, 680 N.E.2d 528 (Indiana, 1997)

101. In Nezvalova and Smiley, the panel majority finds by clear and convincing evidence that the Respondent engaged in improper ex-parte conversations and abandoned the ethical obligation of impartiality, advocating for action on behalf of one party over the other. In Nezvalova, when the case was reversed and remanded to her from the Tenth District Court of Appeals, Respondent discussed the merits of the case with Prosecutor Vaughan and encouraged the pursuit of an appeal by the state. In Smiley, immediately following the felony plea the Respondent directed defense counsel to seek a reduction in the plea offer from Canepa, the supervising prosecutor. Then Respondent advocated with Canepa herself to have the plea changed from a felony to a misdemeanor. Respondent misrepresented to Canepa that she was “forced” to sentence Smiley to prison because of Bolognone’s refusal to waive a PSI. Judging the credibility of the witnesses and their demeanor at hearing the panel majority finds by clear and convincing evidence that Judge O’Neill’s testimony regarding these incidents was not credible. The respondent’s actions in Nezvalova and Smiley violated Canons 1, 2, 3, 3(B)(7), 3(E)(1) and 4 and DR 1-102(A)(5) and in Smiley, the statement to Canepa that the Respondent was forced to sentence Smiley to prison was a misrepresentation and violated DR 1-102(A)(4). Such advocacy by a judge was sanctioned in Disciplinary Counsel v. Ferreri, 88 Ohio St.3d 456 [ 727 N.E.2d 908 ] (2000). See also, In re Complaint against White [ 264 Neb. 740 ], 651 N.W.2d 551 (Nebraska, 2002), Ryan v. Comm. on Judicial Performance [ 45 Cal.3d 518 , 247 Cal.Rptr. 378 ], 754 P.2d 724 (California, 1988).

102. In Smiley, Respondent also refused the parties the PSI they requested, then proceeded without statutory notice or opportunity to prepare and made findings under HB 180 without allowing the state to present any evidence. The panel majority finds by clear and convincing evidence that such conduct violates Canon 2 and 3(B)(2).

103. In Birchler, another of the more serious incidents in this Complaint, the panel majority finds by clear and convincing evidence that the Respondent abandoned impartiality, failed to follow the law and interfered as an advocate in *255 proceedings that deprived a defendant of his rights. The Respondent had a mandate from the Court of Appeals that the sex offender counseling condition of Birchler’s probation was not enforceable. Nevertheless, in the remand hearing she labeled the defendant a rapist despite the non-sex offense Alford plea she had accepted and stated on the record that the state would file a motion to withdraw his plea which was not only false and legally impossible but also highly threatening and coercive to the defendant. Her lack of impartiality is apparent on the record and corroborated by the testimony of witnesses. Respondent’s lack of impartiality in this matter should have resulted in her recusal from the case. Respondent’s improper actions resulted in Birchler abandoning his right to probation and serving the remainder of his prison term. The Respondent’s conduct in this matter violated Canons 1, 2, 3, 3(B)(2), 3(B)(4), 3(E)(1), 4 and DR 1-102(A)(4) and DR 1-102(A)(5). See, Roberts v. Comm. on Judicial Performance [ 33 Cal.3d 739 , 190 Cal.Rptr. 910 ], 661 P.2d 1064 (California, 1983), In the Matter Of David M. Cox, 553 A.2d 1255 (Maine, 1989), In re Hammermaster [ 139 Wash.2d 211 ], 985 P.2d 924 (Washington, 1999)

104. In Bivens, the panel majority finds by clear and convincing evidence that Pierce did obtain Judge O’Neill’s agreement to order a PSI a day earlier. On the day of the plea while Bivens was late that fact could not justify Respondent denying a PSI with no notice to Bivens’ counsel, Pierce. Respondent’s unexpected action was retaliatory, and deprived Bivens’ counsel Pierce of preparation to adequately represent his client. The panel majority concludes that Respondent’s conduct in Bivens violates Canons 2, 3, 3(B)(2) and 3(B)(4).

105. In Lane, the Respondent’s conduct was abusive to litigants, lawyers and court employees, was contrary to law, prejudiced the rights of the defendant and, but for the stubborn insistence of the prosecutor, would have prejudiced the rights of the victim as well. The panel majority finds by clear and convincing evidence that the Respondent’s conduct violated Canons 3, 3(B)(2), 3(B)(4), 4 and DR 1-102(A)(5).

106. In Burton v. Nicholson, the panel majority finds that Relator failed to prove by clear and convincing evidence that Respondent violated any Canons or Disciplinary Rules. Respondent admitted that communication problems caused this case to fall through the cracks and that she had changed her office policies and procedures to prevent another such misadventure.

107. COUNT 2 alleged that Judge O’Neill refused to allow attorneys to go on the record to preserve their objections to Respondent’s rulings.

108. DENNIS: testimony taken from Myron Shwartz, (defense attorneyXTranscript Vol. VII — 197-211), Sandy Grego (court reporter)(Transcript Vol. Ill — 25, VIII — 205, 215) and Judge O’Neill (Transcript Vol. X — 219-223)(Exhibits 253A-275)

*256 109. Arica Dennis was indicted on three counts of receiving stolen property, all F-5’s. She was represented by Myron Shwartz (admitted 1967, Public Defender, private practice since 1969).

110. On August 20, 1998 at a pretrial, the prosecutor offered a plea to a single F-5. Dennis refused the plea. The trial was set for September 14, 1998 and Shwartz orally requested a continuance that Judge O’Neill denied. Shwartz then requested that the court reporter, Sandy Grego make a record and Judge O’Neill told Grego she could not take it. (Transcript Vol. VII — 198) As Shwartz was leaving the courtroom he testified that Judge O’Neill remarked that if Shwartz wasn’t prepared for trial maybe she (Dennis) should get another attorney. Dennis’ family discussed getting another attorney because they didn’t feel Dennis was being treated fairly in Judge O’Neill’s courtroom. (Transcript Vol. VII— 198-199)

111. Shwartz filed an Affidavit of Prejudice less than a week later with supporting affidavits.(Exhibit 262) On September 10, 1998 in her written response to the Supreme Court about Shwartz’s Affidavit of Prejudice, Judge O’Neill stated “I denied Mr. Schwartz’s request to put the bench conference on the record as I did not find it necessary to record my denial of his request for a continuance... I refused to allow him to argue with me by demanding that the conversation be recorded.” (Exhibit 254 p. 2) Grego, the court reporter testified that Judge O’Neill did refuse to allow Shwartz to make a record saying that there was nothing to put on the record. At that time Grego testified that parties could not make a proffer for the record unless Judge O’Neill gave permission. (Transcript Vol. Ill — 25, VIII — 205-206) The Affidavit of Prejudice was denied. Dennis’ case was transferred to Judge Fais who had prior charges pending against Dennis and was resolved. (Transcript Vol. VII — 200-201)(Exhibit 261) Schwartz testified that he did not file a written motion for continuance because it was not the custom to do so. (Transcript Vol. VII — 205-207)

112. In her Answer to the Amended Complaint Judge O’Neill, “denied that she ordered the court reporter, Sandy Grego, not to make a record when Mr. Shwartz asked her (the court reporter) to go on the record after Judge O’Neill denied his request for a continuance.” (¶ 274) At hearing she was asked “Q. Do you stand by your assertion in your answer? A. Yes. I did not deny him a record.” (Transcript Vol. X — 221)

113. O.R.C. 2301.20 provides that upon trial of a civil or criminal action the trial judge shall grant any party’s request for a reporter. Crim. Rule 22 provides that all proceedings in felonies shall be recorded and in misdemeanors proceedings shall be recorded at the request of a party.

114. Testimony regarding the practices of Common Pleas judges as to making a written record described some variation in how it is to be accomplished but *257 affirmed a litigant’s rights to have a court’s decisions evidenced in the -written record. Judge Corzine testified that while some judges allow it at any time, others are more strict. It was never his practice or experience to deny an attorney the opportunity to make a record. (Transcript Vol. XI — 165,178-179) Judge Parrott testified that attorneys have a right to make a record but a judge has the right to manage when the record is made. For example in criminal cases, he allows attorneys to make whatever record they desire before trial begins, “That’s their protection., and mine, and everyone’s there.” (Transcript Vol. XI— 196) Former Judge Tracey testified a record should be made of what a judge decides, however, the judge can control when that occurs so as not to disrupt ongoing proceedings. (Transcript Vol. XII — 46)

115. LANE: “Pajama bank robber case” reported at ¶3 65-69 above regarding prosecutor Reulbach’s attempt to make a record at sentencing about compliance with the victim’s rights statute.

116. CRUTCHER, FOSTER, TRIPLETT: Testimony taken from Jeffrey Scott Weisman (Transcript Vol. VII — 212-246) Judge O’Neill (Transcript Vol. X — 223-254) (Exhibits 276-346).

117. Michael Crutcher was represented by Jeffrey Scott Weisman (admitted 1990, Franklin County Public Defender) regarding a probation violation. On March 1, 2000 Weisman filed a Motion for a Recognizance Bond to get Crutcher out of jail. The first motion was set for hearing before Judge O’Neill on March 7, 2000 at 9:30 am and Weisman was in trial on March 7th in another courtroom. He checked in with Judge O’Neill’s bailiff during breaks in his trial but later learned the motion was dismissed when he was not present when the motion was called. He refiled the Motion for Crutcher and it was set for hearing at 9:00 am on March 13, 2000. At the same time he had another client, William Foster, who was also in jail and had a Motion for a Bond Reduction scheduled in front of Judge O’Neill for 9:30 am on March 13, 2000. (Exhibits 280, 285, 304) Weisman checked in at Courtroom 9A with the bailiff at 9:00 am and learned Judge O’Neill was not present. (Transcript Vol. VII — 217-223) At 10:20 am Judge O’Neill was present and on the bench. Weisman requested that the bond hearings be held for his two clients and Judge O’Neill stated that his hearings could not proceed that day because a jury trial was starting. Judge O’Neill denied Weisman’s request to take the motions to the duty judge and told Weisman to re-file or reset the MotionsJTranscript Vol. VII — 223-225) At the same time Regina Grenauer, another public defender (who was medically unavailable to testify) had a bond hearing before Judge O’Neill postponed. Weisman asked to make a record of these matters and Judge O’Neill refused and had the jury brought into the courtroom. (Exhibit 276 p. 6)

*258 118. Weisman, Grenauer and Trent Turner, the prosecutor, proceeded to Judge Michael Watson who was the duty judge. Judge Watson notified Judge David Cain who was the administrative judge. Counsel made a record before Judge Cain regarding their efforts to have these bond hearings held that morning. Judge Cain determined that Wesiman had to obtain hearing dates from Judge O’Neill as the assigned judge. (Exhibit 276 p. 11) Weisman returned to Judge O’Neill’s courtroom and received hearing times for the next day. On March 14, 2000 the Crutcher and Foster matters were resolved.(Transcript Vol. VII — 231-235)

119. Judge O’Neill completed criminal case processing sheets for the Crutch-er and Foster motions on March 13, 2000. For Crutcher she recorded:” Pass on bond until defendant gets verification of address and employment information.” (Exhibit 284 p. 2) Weisman testified he never agreed to “pass on bond” or said anything about address or employment information to Judge O’Neill on March 13, 2000. For Foster Judge O’Neill recorded “Pass on bond until 3-14-00. For plea.” (Exhibit 306) Weisman testified he never agreed to pass on bond for Mr. Foster on March 13, 2000. (Transcript Vol. VII — 229-230) Judge O’Neill testified she completed the forms after she knew the hearings had been rescheduled for March 14, 2000. (Transcript Vol. X — 247-250)

120. Judge O’Neill testified at hearing when asked about Weisman’s testimony that she had refused him the right to make a record: “I think that there is some misunderstanding that that means I denied him a bond hearing or I denied him an opportunity to go on the record to record that he was denied a bond hearing. And that’s not the case.” Judge O’Neill testified that these motions were “add-ons” and the day’s schedule could not accommodate them but they were heard the next day. (Transcript Vol. X — 240)

121. VIOLATIONS CHARGED ON COUNT 2:

a) Canon 1 — A judge shall uphold the integrity and independence of the judiciary;

b) Canon 2 — A judge shall respect and comply with the law and shall act at all times in a manner which promotes public confidence in the judiciary;

c) Canon 3 — A judge shall perform the duties of judicial office impartially and diligently;

d) Canon 3(B)(2) — A judge shall be faithful to the law and maintain professional competence in it;

e) Canon 3(B)(4)' — A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and other with whom the judge deals in an official capacity;

*259 f) Canon 3(E)(1) — A judge shall disqualify herself in a proceeding in which the judge’s impartiality might reasonably be questioned;

g) Canon 4 — A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities;

h) DR 1-102(A)(4) — Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation;

i) DR 1-102(A)(5) — Engage in conduct that is prejudicial to the administration of justice.

122. As to the Dennis and Lane cases, the panel majority finds by clear and convincing evidence that Respondent’s conduct violated Canons 1,2,3,3(B)(2), 3(B)(4) and 4 and DR 1-102(A)(5). A Court must allow a party the means to preserve the Court’s decisions. When Judge O’Neill ruled on Shwartz’s oral motion to continue the trial he had a right to create a record of that ruling. Simply because Shwartz could resubmit the Motion in written form didn’t abrogate the Respondent’s obligation to follow the law. In Lane, Respondent also clearly denied a party a record. The stand-off between Judge O’Neill and Reulbach vividly described as the court reporter being a marionette taking and not taking down their words is not excused or diminished by the “circular” justification that a record can be postponed until a case is called. As long as Reulbach insisted on recording the victim’s absence, Judge O’Neill was not going to call the case. The fact that the standoff was resolved does not diminish the impropriety and the prejudicial appearance of such actions in open court. Since Respondent’s practice at that time prohibited proffers "without her permission her denial of a record to Dennis and Lane could not be solved by those means.

123. The panel majority finds by clear and convincing evidence that Judge O’Neill misrepresented her actions in Dennis and Lane. In her Answer regarding Lane Respondent placed the blame on the lack of a record on her court reporter Grego who “refused to take a proffer.”. This directly contradicted Grego’s testimony that Grego could not take a proffer without Judge O’Neill’s permission and Grego’s actions in the courtroom in response to Respondent’s orders. Respondent’s false statements to Grego regarding a claim by Reulbach are covered in Count 4, below, in this Panel Report. In Dennis, a letter to the Supreme Court in 1998 Judge O’Neill admitted she refused Shwartz a record. In her answer and in testimony herein she adamantly denied that she refused to allow Shwartz to make a record. Both statements cannot be true, one is clearly a misrepresentation, either to the Supreme Court or to this Panel.

124. As to Crutcher, Foster and Triplett, the panel finds that the Relator did not prove by clear and convincing evidence that Respondent denied the litigants a record. While it was clear that Wesiman was frustrated by the postponement of *260 his motion hearings and sought assistance from the court’s administrative judges, it is not clear that creating a record of his efforts to hold the hearings was the real issue. It was not clear that in these circumstances there was a ruling or decision to record rather than rescheduling a hearing on a pending motion.

125. The panel does not find a violation of Canon 3(E)(1) or DR 1-102(A)(4) in Count 2.

126. COUNT 3 alleged that Respondent denied requests for Continuances without exercising her judicial discretion.

127. FIFTH THIRD BANK V. MARGOLIS: Testimony taken from James Leickly (defendant’s counsel)(Transcript Vol. VIII — 115-159), Michael M. Schaeffer, (plaintiffs counsel)(Transcript Vol. VIII — 168-189), Judge O’Neill (Transcript Vol. X — 264-297, XI — 67-69)

128. This civil case involved the collection on cognovit notes with allegations that the Margolises had made fraudulent conveyances. There were contested issues involving the valuation of the property allegedly fraudulently conveyed by the Margolises. Michael Schaeffer (admitted 1975, private practice commercial litigation) represented Fifth Bank and James Leickly (admitted 1986, private practice, commercial litigation) represented the Margolises.

129. Judge O’Neill scheduled the case for trial on March 10, 1997. Parties and counsel appeared and were ready to proceed on that date, however, Judge O’Neill was involved in a criminal trial. The parties were kept on standby for 3 days and then released and told that they would receive a new trial date. Counsel were not consulted about their availability for a rescheduled date. (Transcript Vol. VIII — 119-120)

130. The Court sent notice dated March 14, 1997 that the trial was reset for April 22, 1997. Leickly sent the notice to his clients who promptly told him that April 22 was the first day of Passover and their religious practice would not allow them to attend. On March 24, 1997 Leickly filed a Motion for Continuance explaining his clients’ religious obligations. On April 7, on Leickly’s suggested entry granting the continuance Judge O’Neill writes:” Denied, at time case was continued on 3/10/97 and new date given, counsel did not notify the court of any conflicts. The case is overage by 2 months and burgeoning dockets do not allow for short continuances.” (Exhibits 354, 355)

131. Leickly discussed the ruling with his clients and was instructed to appear at the trial date to repeat the request for a continuance but not to defend the Margolises if the trial proceeded. On April 22, 1997 Leickly appeared and renewed his request for a continuance which was denied. Schaeffer, plaintiffs counsel, stated on the record that he had no objection to the continuance. Judge *261 O’Neill proceeded to trial and granted judgment to the plaintiffs for approximately 2 million dollars and ordered Schaeffer to prepare an entry.

132. Shortly thereafter Judge O’Neill and counsel received phone calls from a reporter from the Columbus newspaper “The Other Paper” which lead to a story published on April 24, 1997 with the headline “Debbie Doesn’t Do Passover” reporting these events. (Relator’s Exhibit K)

133. On April 30, 1997 Judge O’Neill filed a five page “Entry” in the Margolis case which related in detail the progress of the litigation and stated in pertinent part: “the defendant’s counsel failed to zealously defend his clients as required by Canon 7 of the Code of Professional Responsibility, especially in light of the Court’s willingness to excuse the defendants from the trial and instruct the jury that their absence was in observance of their religious holiday and use their deposition in lieu of live appearance which is permitted by Civ. Rule 32, the court had not other evidence before it and therefore rendered judgment in favor of the plaintiff.”. Both Leickly and Schaeffer testified that Judge O’Neill never discussed talking to the jury or excusing defendant’s absence on the day of trial (Transcript Vol. VIII — 136,173). The entry further stated, “The Court’s denial was based upon defendant’s failure to comply with Sup. R. 7 and Loe. R. 45.01 and the Court’s belief that the request was based on delay and dilatory tactics. With the burgeoning civil docket, the Court is unwilling to grant continuances due to a party’s failure to be prepared to proceed.” Neither Leickly nor Schaeffer ever heard Judge O’Neill mention compliance with the Local Rules as the reason the continuance was denied nor is that stated in the transcript from the trial date (Transcript Vol. III)(Exhibit 356) Judge O’Neill concluded this “Entry” by directing plaintiffs counsel to once again prepare the judgment entry and submit it to the Court. (Exhibit 357)

134. Leickly appealed the judgment to the Tenth District Court of Appeals which reversed the judgment as an abuse of discretion and remanded the matter. (Exhibit 362) The case was settled.

135. NEZVALOVA: Reported at ¶ 26-¶ 32, above.

136. SMILEY: Reported at ¶ 82-¶ 92, above.

137. MONTOYA: Reported at ¶ 33-¶ 41 above.

138. GOSNELL V. KIRKBRIDE (Attorney Dan More) Testimony taken from James Gilbert (plaintiffs counsel), Jeanine Amid (plaintiffs counsel), Christina Corl (defendant’s counsel) and Judge O’Neill (XI — 248-256 X — 252-264)

139. Attorney Dan More represented the City of Upper Arlington in this civil litigation which involved an off-duty officer who shot 2 civilians after a car chase. The officer, Kirkbride, faced criminal charges for this same incident. Both the criminal and civil case were assigned to Judge O’Neill. James Gilbert (admitted *262 1975, Private practice, partner at Crabbe, Brown) and Christina Corl (admitted 1985, associate, now partner at Crabbe, Brown) represented the plaintiffs who had filed the civil suit in 1998.

140. In mid-November 1999 Dan More began having health problems which started as severe back aches which had affected his ability to work. He handled all of the labor negotiations and civil litigation for the City of Upper Arlington. He was the only counsel assigned to the Gosnell case with total responsibility for the case. Janine Amid (admitted 1985, private practice, Staff with the City Attorney of Upper Arlington, now City Attorney) was the staff attorney who handled their criminal prosecutions and served as civil backup when needed. The City Attorney, Sharon Pfancuff, handled city council and managed the office.

141. In November 1999 Dan More was also involved in negotiations with the Teamsters for a new city contract in a situation in which there had already been a strike. On November 24, 1999 the Gosnell parties filed a Joint Motion to Continue Trial Date which was then scheduled for February 2, 2000. The motion did not mention More’s health but cited timing issues related to More’s involvement in labor negotiation. (Exhibit 374) Shortly after the November 24th motion was filed Attorney More learned that his illness was a rare and lethal form of cancer. Plans were made for aggressive intervention and treatment which was predicted to disable More for 3-6 months. (Transcript Vol. VIII — 25—29)

142. The assistant city attorney, Janine Amid filed on December 1, 1999 a Motion to Extend the existing case schedule, asking that discovery and motion deadlines be delayed. Amid sent a copy of the motion directly to Judge O’Neill accompanied by a letter which stated that Attorney More had “an unexpected and serious illness” and this was “an unusual request based on extraordinary circumstances.” (Relator’s Exhibit I) Judge O’Neill granted the Motion Extending the Case Schedule on December 7, 1999 (Exhibits 375, 376). On December 8, 1999, counsel for both parties learned that Judge O’Neill had granted a 30 day continuance of trial to March 6, 2000.

143. Amid realized that with More’s grave prognosis and the situation at the Upper Arlington City Attorney’s office transferring More’s caseload that they could not be ready for trial on March 6, 2000. Counsel consulted and a second joint Motion for Stay or to Continue the Trial was filed on December 8, 1999.(Exhibit 378) The second motion specifically referred to Attorney More’s serious and life-threatening illness and asked for a 6 month stay or six month extension on the case schedule and trial date. (Exhibit 367)

144. Attorney More was married to a Columbus Municipal Court judge, Janet Grubb. She had taken a leave of absence from Municipal Court and More’s grave prognosis was freely disclosed in the legal community by early December. (Transcript Vol. VIII — 21, 75) Judge O’Neill testified that Judge Grubb was a *263 friend and colleague of hers and she had met Dan More through her. (Transcript Vol. XI — 255) Christina Corl testified she hand-delivered the Joint Motion for Stay or Continuance to Judge O’Neill’s staff attorney, Shelia Vitale. Corl testified she called Vitale afterwards to insure that Judge O’Neill was told just how serious More’s condition was. Vitale assured Corl that Judge O’Neill knew and Vitale would convey the message. (Transcript Vol. VIII — -160)

145. Christina Corl contacted Judge O’Neill’s courtroom and obtained an appointment for Gilbert and Amid to speak to Judge O’Neill regarding the Motion to Continue. (Transcript Vol. VIII — 28) Amid has the appointment recorded in their office court calendar as 12/8/99 at 10:00 am. (Transcript Vol. VIII — 78-79) Gilbert arrived early. He recalled that he waited in the bailiff/secretary’s area in the back and was later joined by Amid. (Transcript Vol. VIII— 31-32) Gilbert testified “I heard conversation between the bailiff and what I would have to believe was Judge O’Neill in chambers, yes. Q. And what was that conversation? A. Just that conversation was that there wasn’t going to be any continuance granted on this case. The City of Upper Arlington’s problem, the fact that someone is dying is not my problem. And that they need to address this ease. This has been scheduled. It got a continuance. It needs to go.” (Transcript Vol. VIII — 34)

146. Amid testified that when she arrived and was waiting she observed the bailiff twice call to Judge O’Neill and state that they were waiting, explaining that was about Dan More “and you know how sick he is.” (Transcript Vol. VIII— 109-110) Amid and Gilbert are present for 45 minutes to an hour. According to Gilbert: “The bailiff came back into the secretary’s office where Jeanine and I was standing and said, “No, we’re not going to — The case is not going to be continued. You’re going to have to figure out what to do with it.” (Transcript Vol. VIII — 34) Gilbert and Amid walked out into the courtroom. Amid expressed concern over the City’s position and Gilbert assured her that as plaintiff, he would dismiss the case without prejudice if that was necessary.

147. Judge O’Neill’s written order denying the continuance was filed on January 11, 2000. (Exhibit 379) When Corl learned of entry she called Shelia Vitale to question what information had gotten to Judge O’Neill. Vitale confirmed she had told Judge O’Neill about More’s condition and Judge O’Neill’s reply was that no one can tell me that Dan More could try this case in 6 months therefore they don’t need a continuance. (Transcript Vol. VIII — 162)

148. Judge O’Neill testified that she arrived at court late that morning. “And I know specifically I did three pleas, one at 11:00 o’clock, or 11:30, 12:00 o’clock, and 12:40.” (Transcript Vol. X — 258) She had absolutely no idea anyone was there to see her that day and never spoke to her float bailiff, Pam Boughner, that day. (Transcript Vol. X — 259) “I know Sheila Vitale didn’t say anything to me *264 about this either. And I know at that time I did not know about Mr. More’s medical condition as well.” (Transcript Vol. X — 254) “What I recall is the critical dates that are involved in this are December 8th, and I’ve just addressed that. I do not know of any motion for stay that was dropped off. I don’t have any communication from a staff attorney. (Transcript Vol. X — 262-263) Shelia Vitale testified that she did recall there was period of time in which Christina Corl was calling and speaking with her about Dan More’s condition after a motion had been filed. She testified she knew she spoke with Judge O’Neill about Dan More’s condition but she did not have a specific recollection of the dates. (Transcript Vol. XVIII — 100-102)

149. Gilbert dismissed the Gosnell v. Kirkbride case without prejudice on January 13, 2000 and refiled the case less than 2 weeks later. The case was settled after arbitration and before a trial. Dan More died in August 2000. Amid testified that Judge O’Neill was the only judge who would not accommodate Attorney More’s illness with a stay or continuance. The Teamsters even gave consideration in the ongoing labor negotiations which were taken over by Attorney Amid. (Transcript Vol. VIII — 110-111)

150. Practices of Common Pleas Court judges in Ohio vary widely on the granting and denial of continuances of trial dates. They range from courts in which trial dates are strictly enforced to courts in which judges are far more flexible. What constitutes the “good cause” required in civil and criminal rules to justify a continuance varies depending on the facts and the practice of each individual judge. (Testimony of Judges Corzine and Parrott, former Judges Tracy, Tyack and Williams)

151. VIOLATIONS CHARGED ON COUNT 3:

a) Canon 1 — A judge shall uphold the integrity and independence of the judiciary;

b) Canon 2 — A judge shall respect and comply with the law and shall act at all times in a manner which promotes public confidence in the judiciary;

c) Canon 3 — A judge shall perform the duties of judicial office impartially and diligently;

d) Canon 3(B)(2) — A judge shall be faithful to the law and maintain professional competence in it;

e) Canon 3(B)(4) — A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and other with whom the judge deals in an official capacity;

f) Canon 3(B)(8) — A judge shall dispose of all judicial matters promptly, efficiently and fairly;

*265 g) Canon 4 — A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities;

h) DR 1 — 102(A)(5)—Engage in conduct that is prejudicial to the administration of justice.

152. The panel finds that Respondent has not proven by clear and convincing evidence that Respondent’s denial of continuances in Count 3 violated the Canons or Disciplinary Rule as alleged. Judges are granted wide discretion to determine whether good cause exists to grant a continuance. The panel is disturbed by the contradictions between the testimony of Judge O’Neill and all other witnesses about the events surrounding these continuances, however, Respondent has not been charged with any violations of DR 1 — 102(A)(4) in this Count. While the respondent’s statements and actions as described by the witnesses evidence errors of judgment and insensitivity by the Respondent, the panel finds they do not rise to the level of an ethical violation in an area where judges are granted such wide discretion.

153. COUNT IV: Respondent has repeatedly made misrepresentations in her interactions with lawyers, other judges and court personnel.

154. FREEMAN V. HOPKINS: Testimony taken from Stacy Simendinger (victim advocate)(Transcript Yol. VIII — 239-255), Sandy Grego (Transcript Vol. VIII — 212), Judge David Cain (Transcript Vol. X — 79-89, 167-170), Judge O’Neill (Transcript Vol. X — 297-319, XI — 54-57, 65-68, 69-72, 85-96) (Exhibits 409-423)

155. On January 24, 2000, Sarah Freeman filed a petition for an ex-parte emergency civil protection order per O.R.C. 2903.213(B), a “CPO” against Matthew Hopkins, an ex-boyfriend. At the time the petition was filed in Franklin County Common Pleas Court, the procedure was that these emergency petitions were to be handled by the duty judge assigned on the day they were filed.

156. Stacy Simendinger was a non-lawyer victim’s advocate with the Stalking Unit of the prosecutor’s office. She was assigned to assist Freeman with this petition as permitted by O.R.C. 2903.214(L). Simendinger accompanied Freeman to the Clerk’s Office to file the petition. (Transcript Vol. VIII — 250-252) There were criminal trespass charges against Hopkins. Hopkins had been arrested but refused at the jail for medical reasons, was transported to a hospital and then released. At the time Freeman filed for a CPO, Hopkins had not been rearrested or arraigned. While Freeman could have obtained a stay-away order as a condition of bond on the criminal charges, Hopkins had still not been arrested and arraigned on those charges. A stay-away order connected with criminal charges is in effect only as a condition of bond. If a criminal defendant violates a stay-away order, the prosecution can make a motion to revoke bond. A stay- *266 away order ends with the resolution of the criminal case. In contrast, a CPO gives police authority to make an immediate arrest of a defendant when they violate the terms of the CPO. After an evidentiary hearing, a CPO can be effective for up to 5 years. (Transcript Vol. 245-247)

157. That Monday afternoon, January 25, 2000, the matter was assigned to Judge O’Neill as the duty judge. Freeman’s petition stated “the respondent is responsible for many unwanted phone calls and unwanted visits to the petitioner’s home and workplace and well as written correspondence.” (Exhibit 410)

158. In the hearing transcript Judge O’Neill asks Freeman ‘why are you filing this?’ and she relates “I continue to have unwanted phone calls, unwanted visits to my home.”(Exhibit 421 p. 2) Judge O’Neill asks when the last incident occurs and Freeman discloses the last incident had occurred “just this past Wednesday” and that Freeman had called the police and Hopkins had been arrested. Judge O’Neill asks for no other information about the ex-boyfriend’s harassment. Instead, the remainder of the hearing involved Judge O’Neill taking issue with the ex-boyfriend’s arrest on the criminal trespass charge and questioning why the ex-boyfirend had still not been arrested by Columbus Police. Judge O’Neill advised “Well I think you need to work with the Columbus Police. How are you going to serve him with notice of this? .... You have far greater power if you just do your job right, that is to contact the police, they go out, arrest him, they bring him to jail, arraign him and they issue a no-contact order as a condition of his bond. It makes all of this unnecessary because this is not going to be any good if I sign it because you have no way of serving it on him if you don’t think he lives at this address.” (Exhibit 421 p. 5) When Simendinger stated that they knew where Hopkins lived, Judge O’Neill again asked “Why don’t you call the police?” Simendinger then explained that her supervisor, Leslie Ashworth of the Domestic Violence Unit advised Simendinger to obtain a CPO because a criminal stay-away order doesn’t give the police power to arrest on the spot like a CPO. Judge O’Neill agreed but again advised Freeman to file a criminal complaint stating, “It’s much stronger if you have criminal charges pending.” She finally advised them “Get the police to arrest him, sign a complaint with a warrant for his arrest, and then put on the file to the police that the victim insists on having no contact with him, a Stay-Away order. Okay.” (Exhibit 421 pp. 6-8) With that comment, the hearing ended.

159. Simendinger testified that Judge O’Neill never invited them back and did not say “if you can’t get what you need in criminal court come back and see me.” (Transcript Vol. VIII — 248-250) Sandy Grego, the court reporter, likewise recalled no off-the-record conversations or invitations for Freeman to return. (Transcript Vol. VIII — 212)

*267 160. On the following day, January 26, 2000, Freeman, accompanied by Simendinger, returned to Court and had another hearing on her CPO petition before Judge David Cain, the administrative judge. This hearing was arranged by Leslie Ashworth. Judge Cain granted an ex parte CPO. (Transcript Vol. VIII — 248)

161. Judge David Cain testified that the Freeman matter was brought to his attention as administrative judge. He was told by Freeman and Simendinger that Judge O’Neill had not given Freeman a chance to explain why she wanted this CPO and had told her to go back to Municipal Court and get a stay-away order in the criminal case. (Transcript Vol. IX — 82). Judge Cain testified that the last time Judge O’Neill had been duty judge in October 1999 a problem had occurred with Judge O’Neill’s handling of another CPO. The previous incident involved float Bailiff, Wanda Earns and her efforts with Judge O’Neill to obtain a hearing for a man who had petitioned for a CPO. (Transcript Vol. IX — 84-85) (See Panel Report ¶ 232-¶ 236, below for details)

162. Judge Cain wrote a memo to Judge O’Neill about the Freeman case and copied it to all the judges. (Exhibit 419) In the memo he stated, “Yesterday I handled a petition for a Stalking Civil Protection Order necessary only because you refused to do so the day before despite the fact that the petitioner and witness assistants were in your courtroom with the properly completed forms.” ... ‘Tour refusal to properly address the matter caused a woman to go another day without her right to protection ... A problem arose out of a similar matter the last time you were duty judge. When you are duty judge in the future, please give these people the attention they deserve and the law demands.”

163. Judge O’Neill wrote a memo in response to Judge Cain on January 26, 2000 which began, “Again I -have to respond to a memorandum from you that inaccurately accuses me of failing to perform my duties.” Judge O’Neill stated: “The record, under oath by the complainant reflects that she had not been contacted in any manner by the alleged stalker (her ex-boyfriend) in a week, the last contact was a call to her place of employment, that menacing by stalking criminal charges had been properly filed but not served because the police had not located him yet, that she didn’t know she could get a stay away order or Temporary Protection Order through the Municipal court case etc,etc.” The hearing record Judge O’Neill specifically invoked states that the last contact had been 5 days before, that the charges were criminal trespass and that an arrest had been made but the defendant was mistakenly released from the hospital and that the victim knew about criminal case orders. (Exhibit 420)

164. The memo goes on: “I did not refuse her or any other petitioner a hearing. I held the hearing. I did not find that she met the burden, but I told her to come back to me, that I would be here, if she couldn’t obtain a stay away.” *268 “In this case I clearly told her the petition was denied but I would issue one if a stay-away or temporary protection order could not be obtained through the municipal case”... At no time did I refer her to you nor did she lead me to believe she would ‘judge shop.’ I left the courtroom under the impression that she would come back that afternoon or the next morning if she could not obtain the above-mentioned relief.” (Exhibit 420) The hearing record does not contain any ruling on the petition, any reference to the burden of proof much less any invitation to Freeman to return to Judge O’Neill for further proceedings. (Exhibit 421) There was likewise no written order entered by Judge O’Neill denying or granting this CPO.

165. Judge O’Neill’s memo concluded with a pointed criticism of Simendinger. “The City Attorney’s Victim Assistant (not a lawyer) did not ask a single question of the complainant and could not answer any of my questions other that to say her supervisor told her to come down here. She didn’t know what the procedures were or the facts of the case.” (Exhibit 420) The actual hearing record indicates that Simendinger answered all of Judge O’Neill’s questions and clearly knew the procedures.(Exhibit 421)

166. Judge Cain testified Judge O’Neill’s written response “made no sense.” “... one of the reasons why Miss Freeman was so upset, she didn’t want to miss another day of work. And if she (Judge O’Neill) wasn’t going to give it to her in the first incident, I don’t know why she’s (Judge O’Neill) saying, “I told her she could come back and I’d give it to you tomorrow”. ...” (Transcript Vol. IX — 86-87)

167. Judge O’Neill was asked about the contradictions between the actual record of the hearing and what she wrote about the record in her memorandum to Judge Cain. She stated had not seen the actual transcript of the Freeman hearing until discovery in this disciplinary proceeding and the memo was based on what she remembered when she wrote the memorandum. (Transcript Vol. X — 304-305)

168. BIGGS: Testimony taken from Robert Schopis (defense attorney)(Transcript Vol. IX — 8-70), Judge O’Neill (Transcript Vol. XI — 9-29) (Exhibits 424-453)

169. Tracy Lee Biggs was indicted on one count of possession of Cocaine, an F-5. She was represented by Robert Schopis (admitted 1982, Franklin County public defender). Biggs refused the plea offered at the pretrial and the case was set for trial on Judge O’Neill’s docket on August 7, 2000. Schopis had a one-month vacation set which conflicted with that date, therefore Judge O’Neill granted a continuance until September 4, 2000, the day Schopis was scheduled to return to his office. Schopis asked that the trial be reset to September 5 and Judge O’Neill refused. During Schopis’ vacation a series of entries are sent on *269 July 26, August 3, August 16 by the Franklin County Common Pleas Court Assignment office rescheduling either the trial or a motion in the Biggs case for September 4 or 5, 2000. (Exhibits 428, 431, 432, 434 and 435)

170. Schopis returned from his vacation and was in his office on Sunday and learned that the Biggs trial was set for September 5th but he appeared in Judge O’Neill’s courtroom on September 4, 2000 to be certain. Schopis met Marla Farbacher, the prosecutor who was handling the trial who confirmed that she had subpoenaed witnesses for trial on September 5, 2000. (Exhibit 433).

171. On the morning of September 4, 2000 Schopis testified that Judge O’Neill took the bench and announced that the trial would start that day. Judge O’Neill threatened to issue a capias and bond forfeiture for Biggs if she did not appear that day. Schopis called Biggs who made the 2 hour drive from Ray, Ohio to Columbus and arrived at court around 1:00 pm. At that time Judge O’Neill was in another proceeding, so Biggs sat with Schopis in the front seat of the gallery. After some time Judge O’Neill’s bailiff sent back to Schopis an entry signed by Judge O’Neill that stated that “on the motion of the defendant, because the defendant was late and by the time she arrived the Court was in a 2 co-defendant criminal trial, the trial is continued to September 25.” (Exhibit 436)

172. On September 25, 2000 the suppression hearing and trial began for Biggs. (Exhibit 450) At close of trial that day Judge O’Neill warned the jury that there was a large docket the next morning and that there would be frequent interruptions in the morning. On September 26, Schopis checked in at 9:00 am, Judge O’Neill was not present and Biggs was not present and the courtroom was full of people for the criminal docket. Schopis left to do other assignments, checked back in before noon and Judge O’Neill was on the bench doing the criminal docket. Schopis met Biggs outside the courtroom who advised him Judge O’Neill was “madder than hell.” Biggs explained that because of a car breakdown and bus schedules she had arrived about 10:00 am. Biggs’ trial concluded the next day with a guilty verdict. Judge O’Neill proceeded to sentencing. (Exhibit 448 p. 268) In sentencing Judge O’Neill stated that Biggs was an hour late for trial on September 26 without just cause or apology and that Biggs had been engaging in disruptive behavior throughout the trial. When challenged by Schopis about Biggs’ lateness Judge O’Neill stated in the record, “... That’s not exactly what was said, and you weren’t here, and I was here before 9 o’clock yesterday, and when she walked in here, you were not here.” (Exhibit 452 p. 273) The parties stipulated that the court parking garage records show that Judge O’Neill arrived at 9:30 am on the morning in question. Schopis also took exception on the record with Judge O’Neill’s characterization of Biggs behavior as disruptive and testified that Biggs was no more disruptive or reactive *270 than any other unsophisticated client sitting at a trial table. (Transcript Vol. IX — 33-37) (Exhibit 452 p. 272-273)

173. July 22, 1999 Judges Meeting: Testimony taken from Judge David E. Cain (Transcript Vol. 187), Judge Nodine Miller (Transcript Vol. IX — X—94-107, 142-144), Judge Patrick McGrath (Transcript Vol. X — 175-161, 194-197), (Exhibits 454-457)

174. On the agenda for the Franklin County Common Pleas Court monthly judges meeting on July 20,1999, was a motion by the Rules Committee to amend Local Rule 81 concerning a litigant’s right to make a record. Judge Nodine Miller, chair of the Rules Committee had prepared a memorandum about the proposed rule change dated July 12, 1999 which was distributed to all Common Pleas Court judges in advance of the July 22, 1999 meeting. (Exhibit 457) The memo stated that “Within the last several months there have been at least three serious incidents involving a trial judge’s dictatorial control over the official court record which has resulted in prejudice to the rights of the parties. In two instances, prosecutors demanded the right to include judicial action on the court’s record. In one instance a defense attorney made the same demand.” The proposed amendment to the Local Rule expressly granted parties the right to memorialize for the record any action taken in a criminal or civil case and also provided guidance for a court reporter if the reporter was instructed by the trial judge not to record any action taken or request made. Judge Miller testified that she was aware of complaints from Myron Shwartz (see Dennis, Panel Report at ¶ 108-¶ 114), Sue Ann Reulbach and Dan Cable (See “pajama bank robber”/Lawe, Panel Report at ¶ 65-¶ 69) and Joe Landusky about Judge O’Neill’s control of the record. (Transcript Vol. IX — 199)

175. At the July 22, 1999 meeting Judge O’Neill asked if the proposed amendment was in response to something Judge Sheward had done. (Transcript Vol. IX — 73-74,206-207) Judge Miller stated in response, “No, the complaints we’ve gotten concern you.” (Transcript Vol. IX — 74, 206-207, X — -159-160) Judge Miller, Judge Cain and Judge McGrath testified that in reply Judge O’Neill stated that she had never denied anyone the opportunity to make a record. (Transcript Vol. IX — 74,207, X — 161) Judge Miller challenged Judge O’Neill’s assertions and Judge O’Neill asked, “Are you calling me a liar?” (Transcript Vol. IX — 74) Judge Miller responded, “Well, you’re lying right now.” (Transcript Vol. IX — 206, X- — 157) Proposed Local Rule 81 was passed by a vote of 10-2 with one abstention.

176. March 26, 1999: Statements made by Judge O’Neill to Sandy Grego about Sue Ann Reulbach bringing charges against Grego for Grego’s failure to make a record in Lane, reported in detail at Panel Report ¶8 65-69, above.

*271 177. March 29,1999: Testimony taken from Joan Richards (court administrator)(Transcript Vol. VIII — 185-195, 198-200), Sandy Grego, court reporter (Transcript Vol. VIII — 208-212), Judge O’Neill (Transcript Vol. XI — 259-260)

178. When Sandy Grego was assigned as Judge O’Neill’s court reporter in January 1996 she testified that she informed Judge O’Neill that on Thursdays she had a hair appointment at 5:30 pm and needed to complete her work on Thursday at the usual end of the workday at 5:00 pm. Judge O’Neill indicated at that time that she understood and it was not a problem. (Transcript Vol. VIII — 209-210)

179. In March, 1999, Joan Richards was the Franklin Common Pleas Court Director of Court Services and was Sandy Grego’s supervisor. She received a phone call from Judge O’Neill who complained that Sandy left every Thursday at 4:30 pm for a 5:00 pm hair appointment. Richards testified that Judge O’Neill was upset and said “she was tired of having to run my courtroom around Sandy’s schedule” (Transcript Vol. VIII — 191-194).

180. Joan Richards spoke to Sandy Grego on March 29, 1999 and learned from Sandy that she had to leave at 5:00 pm, not 4:30 pm and that she had an earlier agreement with Judge O’Neill about this appointment. Richards believed Grego and took no action on the complaints made by Judge O’Neill. Richards testified that Judge O’Neill had a history of making complaints to Richards regarding employees which were not true. (Transcript Vol. VIII — 194) Judge O’Neill testified that she did speak to Joan Richards about the hair appointments and a particular case in which there was a child witness at the end of the day. Judge O’Neill testified that it was an “end-of-the-day” issue rather than any particular time. Grego would be cleaning up her office at 4:40 pm if they were not in trial and the time she stated may have come from that practice. (Transcript Vol. XI — 259-260)

181. VIOLATIONS CHARGED ON COUNT IV:

a) Canon 1 — A judge shall uphold the integrity and independence of the judiciary;

b) Canon 2 — A judge shall respect and comply with the law and shall act at all times in a manner which promotes public confidence in the judiciary;

c) Canon 3 — A judge shall perform the duties of judicial office impartially and diligently;

d) Canon 3(B)(2) — A judge shall be faithful to the law and maintain professional competence in it;

e) Canon 3(B)(4) — A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and other with whom the judge deals in an official capacity;

*272 f) Canon 4 — A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities;

g) DR 1-102(A)(4) — Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

h) DR 1-102(A)(5) — Engage in conduct that is prejudicial to the administration of justice.

182. The panel majority finds by clear and convincing evidence that in each incident in Count 4 the Respondent made misrepresentations. The panel majority considers the incident involving Freeman v. Hopkins to be the most troublesome of these incidents. Respondent made detailed representations of what the court record contained the day after the events occurred because she maintained that Judge Cain had inaccurately accused her of failing to perform her duties. She copied those representations to every judge to defend her actions. Every representation she made was contradicted by the actual court record and established that she had not performed her duties — she had neither granted nor denied the CPO, leaving the victim in limbo. Although the tone of Judge Cain’s memo was not particularly collegial, that tone in no way justified Respondent’s misrepresentation of the events of the previous day to make it appear that she had in fact, heard and ruled on an ex-parte petition assigned to her as the duty judge.

183. In Biggs, the Respondent’s misrepresentation of the time of her arrival at court may seem trivial but Respondent relied on it to find that the defendant was tardy as a sentencing consideration. In the same way the time of Grego’s hair appointment may seem totally irrelevant until it became the basis for Respondent seeking employee discipline for a court employee whose regular working hours end at 5:00 pm. Maintaining that Grego left once a week at 4:30 pm was not only false but accused a court employee of shorting her hours every week. Respondent’s statements to Grego regarding charges being brought against her by Reulbach for failing to take a record in the “pajama bank robber” case were doubly false because they not only accused Grego of being the person who failed to take a record but also represented that Reulbach blamed Grego for the lack of that record.

184. Respondent’s statement in the July 20, 1999 judges’ meeting that she never denied any person a record is contradicted by her written statements in September 1998 to the Supreme Court responding to Myron Shwartz’s Affidavit of Prejudice in Dennis admitting that she had denied him a record as well as her conduct in the Lane matter in March 1999, when Judge O’Neill refused to allow the prosecutor to make a record about the victim’s absence at sentencing.

*273 185. These multiple misrepresentations, along with other misrepresentations found to violate DR 1-102(A)(4) in Counts 1 and 5 of this Complaint are considered by the panel majority to be the most serious charges against the Respondent. Dishonesty and misrepresentation are antithetical to the integrity of the judiciary and prejudicial to the administration of justice. By clear and convincing evidence the panel majority concludes that Respondent’s conduct in every incident in Count IV has violated Canons 1, 2, 3, 3(B)(2), 3(B)(4) and 4 and Disciplinary Rules DR 1-102(A)(4) and DR 1-102(A)(5).

186. COUNT V alleged that Respondent has consistently displayed rude behavior toward her own staff, other court personnel, attorneys, litigants as well as members of the public. This includes undignified and discourteous statements to or about deputy sheriffs, probation officials, jury commission staff and other judges.

187. CARRINGTON: Testimony taken from Denise Schwaigert (deputy sheriff) (Transcript Vol. XII — 87-135), Michael Herrell (deputy sheriff) (Transcript Vol. XII — 135-160), Charles Austin (deputy sheriff)(Transcript Vol. XII — 160-175), Judge O’Neill (Transcript Vol. XVI — 184-193), and on behalf of Respondent, Sheriff James A. Karnes (Transcript Vol. XVII — 40-46), (Exhibits 471-473), (Relator’s Exhibits U — X)

188. On October 27, 1999, Ricky Carrington had a scheduled court appearance in Judge O’Neill’s courtroom. He faced charges of theft, an F-5. Deputy Sue McCoy was assigned to Judge O’Neill’s courtroom. Deputy Denise Schwaigert (17 years deputy sheriff, retired 2003) arrived at Judge O’Neill’s courtroom that morning to assist.

189. At the time of her arrival Schwaigert testified that Judge O’Neill was upset and angry. Schwaigert tried to whisper to McCoy to sort out what was happening and Judge O’Neill yelled at them, slamming files down on the bench. (Transcript Vol. XII — 91-92) Judge O’Neill was starting a trial and the defendant, Ricky Carrington, was not dressed in street clothes. According to a policy adopted with the Common Pleas Court Judges a month earlier, (Exhibit 473) the deputies had a record from the jail that Carrington had refused to dress. (Exhibit 471 p. 8) McCoy tried to tell Judge O’Neill that Carrington had refused to dress out at the jail. According to Schwaigert, Judge O’Neill again yelled in a loud voice at McCoy, whipped around in her chair, pulled open a file drawer to get a copy of memo from the month before and ordered her bailiff to make copies for the deputies. Judge O’Neill stated that she wanted someone reprimanded about this incident. (Transcript Vol. XII — 97-98) (Exhibit 471 p. 8, U p. 2) McCoy then called for her supervisor, Lieutenant Michael Herrell (22 years sheriff, now a Major, Lieutenant in charge of Court Services in 1999). Herrell arrived and investigated, obtained the “refuse to dress” record from their office *274 and gave a copy to Judge O’Neill’s bailiff. (Exhibit W p. 3) Sgt. Charles Austin testified that he arrived at the courtroom and found that “Deputy McCoy was still upset so I relieved her and stayed in the courtroom” (Transcript Vol. XII— 165)(Exhibit X). McCoy, Schwaigert, Herrell and Austin all wrote up incident reports reporting these events. (Exhibits U, V, W X)

190. Herrell concluded in his report that policy was followed by the deputies and staff involved. (Exhibit

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