Panel weighs discipline over court case filing

By Marc Kovac | March 14, 2008 at 12:00a.m.

The defense did not receive a copy outlining the judge’s death-penalty sentence.

COLUMBUS — A state panel is considering whether to discipline two assistant prosecutors and a judge from Trumbull County over a court filing in a capital murder case.

The Ohio Supreme Court’s Board of Commissioners on Grievances Discipline must decide whether assistant county prosecutors Christopher Becker and Kenneth Bailey and Judge John Stuard of common pleas court acted improperly in the sentencing of Donna Marie Roberts.

Roberts, 63, and her boyfriend, Nathaniel Jackson, 26, were convicted in the slaying of Roberts’ husband in December 2001.

At Judge Stuard’s request and following a common practice in the county at the time, Becker, with some assistance from Bailey, wrote the court journal entry outlining the judge’s death-sentence penalty against Roberts without notifying defense counsel or providing copies of the entry in advance.

That, according to Robert Berger, assistant disciplinary counsel for the high court, constitutes improper discussions between the judge and one side in a legal case in violation of conduct rules.

But S. Michael Miller, legal counsel for Becker and Bailey, argued the communications were not on the merits of the case, and the ethics charges should be dismissed.

According to court documents, Roberts and Jackson conspired to murder Robert Fingerhut, 57, who was found on the floor of his Howland Township home with gunshot wounds to the back, chest and head.

Under questioning before the discipline panel, Becker said the resulting evidence created an iron-clad case — about 280 letters between the two and recorded phone calls in which they outlined their plans, plus DNA evidence collected afterward.

During the trial, Roberts did not defend herself, presented no mitigating evidence to outweigh a capital conviction and asked the jury for the death penalty, Becker said.

During the reading of Roberts’ death sentence, defense counsel noticed that “Bailey appeared to be reading along with Judge Stuard” from a document, and that the two “were turning pages in unison,” according to documents.

Defense counsel “raised a ‘vehement’ objection” to the prosecution’s involvement in the sentencing opinion. During the subsequent on-the-record discussion, the judge “admitted that he had given handwritten notes” to prosecutors “and instructed them to draft the sentencing entry,” according to documents.

The Board of Commissioners on Grievances and Discipline certified a complaint against Judge Stuard, Bailey and Becker in October.

Thursday’s hearing included testimony by Judge Stuard, Becker and Bailey, as well as several character witnesses speaking on behalf of the assistant prosecutors.

All three acknowledged that Becker, with some assistance from Bailey, compiled the 17-page sentencing entry at the judge’s request.

The practice had been common in Trumbull County, for practical reasons; the prosecutor’s office was the first to have computers, and judges do not have secretaries to complete such tasks, Judge Stuard said.

The judge said he had made his decision and discussed nothing of substance with the prosecutors in requesting their assistance in writing the journal entry.

Becker added, “We never had any discussion on the merits [of the case]. I truly, honestly and firmly believe to you, and I swear to you, that we never spoke about the merits.”

John B. Juhasz, co-counsel for Roberts in the original case, told the discipline panel he was not aware of the arrangement before the sentencing.

“We felt we had to ask the questions,” he said. “Once we asked the questions, at the end of it, we were satisfied that the prosecutors had simply typed up the entry that Judge Stuard had asked them to type up.” Juhasz said he did not believe an ethical violation was made.

Berger asked that Becker and Bailey receive six-month stayed suspensions, meaning they could continue to work as attorneys as long as they do not violate any other rules.

Judge Stuard would receive a public reprimand, according to stipulations he agreed to in the case. The disciplinary counsel will issue a recommendation at a later date.