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Cross: Tim Young, Leading Ohio’s Public Defenders

January 11, 2017 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross the State of Ohio’s Public Defender, Tim Young.

Q. You were an Air Force kid, born at Hill AFB in Utah and, like many military brats, shunted around much of the globe while growing up. You graduated high school at Ramstein AFB in Germany, just forty miles from Trump’s ancestral homeland. Do you speak any exotic languages? Did growing up abroad leave you with an exotic outlook on American criminal law? Did you long for home, or was the adventurous lifestyle the right one for you? And why’d you repatriate?

A. As a kid I didn’t know anything different. Moving from place to place is what my family did. After a year and a half or two years, there was this expectation that it was time to move on. People often ask, “how could you move all the time?” I respond with the question of “how could you stay in one place so long?” People are amazingly adaptable.

As a kid, I was adapted to moving – often. And it was great. I lived in so many places; outside of DC, in New Mexico, in Wisconsin, overseas, and so many more. My mom was a teacher. New places were an educational opportunity in her mind. We were the family that stopped at all of the historic markers and vista overlooks along the highways. When we got to a new city or sometimes, a new country, she had lists of places we needed to see and things we needed to do.

Don’t misunderstand, I did not come to appreciate any of this until later in life. I was the typical kid griping in the back seat of the car and asking how much longer till we got there. But I was also being exposed to cultures and people from all over the country. I lived in states all across this country and that was my real education – school was the same everywhere – but the people and cultures were so different.

That is what living abroad did for me, it gave me a perspective on my home from afar. When we moved to Germany, we did not live on the base but instead lived in a small village, one of only two American families in the village. Later I would understand this as my mother taking advantage of another educational opportunity. Again, this is my perspective now. At the time I was a 17-year-old kid living in Germany, a place I could legally drink. Enough said.

Q. You attended the University of Dayton in Ohio for undergrad, then stayed on for your law degree. Why Ohio? Going in, was the plan to become a lawyer? Or did someone entice you into the profession with promises of riches and glory? And what attracted you to crim law? You clearly gave your classmates the impression it was the perfect gig for you; they voted you “most likely to become a criminal defense lawyer.” Did you embrace the label or refuse to be pigeonholed?

A. I returned to Ohio to attend school. My father and stepfather both served full careers in the Air Force. There was no “home” to return to when I graduated high school in Germany. My father had retired from the Air Force and had started his second career at the University of Dayton. They had a tuition-free policy for kids of employees. That made the college choice pretty easy. There was no grand plan. Just get a degree.

Grad school was always an option. I was probably a junior in college when I really started to consider law school seriously. At that point, I was a philosophy major so grad school had become a concrete plan. As much as I enjoyed philosophy and defended it as my choice of major, even I knew it should just be renamed “the going to grad school major.”

As I entered law school, I knew I wanted to be a litigator but nothing much more specific than that. As I took classes, I was largely defining areas I never wanted to practice. After contracts, I realized I was never going to do anything with the UCC. And tax law was an easy no. I really enjoyed environmental law, but upon graduation the only interview I got remotely related to environmental law was with Ashland Oil Company. Given I became a public defender, I don’t imagine it is hard to see what a bad fit that would have been, defending an oil company. I would have lost my license.

But by the end of third year, my classmates knew what I was supposed to do, voting me most likely to be a criminal defense attorney. In a classically predictable way for a future public defender, I had to be contrary, and it took me two more years before I accepted what others knew about me.

Q. After you graduated in ‘92, you signed on as an associate with Ruppert, Bronson, Chicarelli, & Smith in Franklin, Ohio, where you primarily handled civil cases. What could’ve induced you to give away your criminal-justice birthright? Did they promise you a spectacular mess of potage? Were you at all doubtful about a career in criminal defense, given that it can be a poorly paid, stressful and low-status job?

You spent two years at RBC&S, during which time you also handled the odd criminal case. That takes us to the obligatory first trial question. What was the case about? Who’d you go up against? Going in, did you believe you were adequately prepared? Were you right?

A. I started with RBC&S because I had clerked for them and they were a really great small firm doing plaintiff’s work. And, like many people, I was blind to what I should have seen much earlier. I was still narrowing down my plans for what kind of lawyer I was going to become. It was a general practice firm ranging in practice areas from family law, wills and estates, medical malpractice to criminal defense. But most importantly, they were really great people. I had friends who despised the firms and people where they worked. I had a huge benefit in that after two years of work, I really liked the people I worked with. I just hated most of the work. Bless the lawyers who handle divorce cases, but I wanted to go back to bartending before I took another family law case.

But before I got to the moment that I was going to become a client if I had to do another divorce case, I had also done two years of appointment work in public defense cases. One of the things about Ohio is that not all counties have public defender offices. RBC&S was in one of those counties. All public defense cases were handled by appointed counsel and the firm had committed to having all of the lawyers on those lists. But the reality of firm practice is that the partners, while on the list, rarely handled the cases when appointed. They gave them to the lowest associate – me.

And that was my first jury trial. It was an appointed case. I had been a lawyer for just about a year and I was about to handle a felony jury trial. The case involved a guy charged with burglary. He and his ex-girlfriend had children together and he was probably not getting over her as much as he should have. She, however, was over him and had moved on.

One morning, the kids call him and tell him that they are hungry and mom is not there. He goes and finds her at her new boyfriend’s apartment and barges in demanding she get up and get home to take care of the kids. He won’t leave until she gets up and comes outside to go home. The cops are called and, miracle of miracles, actually refuse to arrest to him. I remember getting the case file with the police report and thinking this is a mistake – I’ll call the prosecutor and get this cleared up – plea to a trespass (a low level misdemeanor in Ohio). But the prosecutor had already indicted for burglary and refused to budge. Ohio has one of those statutes where trespassing in an occupied dwelling is a burglary without anything more. No other act is required, just trespass in a house. My client was technically guilty, but the case seemed so damn wrong.

I was woefully unprepared. There was really little investigation to be done. The police reports and witness statements were clear. There was little dispute about what happened; versions differed a little and blame was allocated differently in each version, but the three versions all matched up at the important points. The unpreparedness was simply my inexperience. I had never tried a case. I did not know crap about proper cross. My objections were tentative and hesitant. But there were two good things in the client’s favor. Most people reacted like I did when asked about the charges, that this seemed wrong. And I had a judge who was going to give the trespass charge as a lesser included offense.

I stumbled and stammered through the day. The jury went out. I had always heard that quick verdicts are bad for defendants. The jury was back in 20 minutes. Not guilty of burglary, guilty of trespass. We would have pled to that months before, and the client was released with time served. I had tried my first criminal case.

Q. You resigned your gig in Franklin in ’94 to join the Montgomery County Public Defender’s Office, headquartered in Dayton. Here at Fault Lines, we’ve interviewed former PDs who were desperate to leave the profession and move on to things as unlikely as comedy, citing overwork, the lack of money and the misery of representing unappreciative defendants in the trenches as reasons to leave the life behind. Others, however, seem drawn to it.

What made you want to swim upstream? Why’d you trade it in for one of the most demanding and responsible jobs a lawyer can do? And when you arrived at the PD’s office, how difficult was it for someone used to private practice to adjust? Did you find you had fewer resources at your disposal? Was there less leeway to choose how best to represent your clients? Conversely, did the PD’s office come with a bigger storehouse of knowledge to draw upon? Were you mentored, or thrown in the deep end and left to swim?

A. I came to the realization of what I wanted to do while on a long drive home after taking my younger brother to college. Between my own appointed cases and those I handled for partners at RBC&S, about a third of my work was appointed counsel work. And those were the cases I enjoyed. As corny as it sounds, I got into law to help people. And despite my Con Law professor’s best efforts at beating the majesty of the bill of rights out of me, I was (and still am) completely awestruck by the founders and their foresight to create these fundamental rights. Today, a big sign hangs outside of my office, it is a quote from John Adams: “it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished…”

I had come to loathe much of my other work and it showed in the quality of work I was doing. And with this clarity, I resigned the day I returned from the trip with my brother and applied to the public defender office in Dayton, Ohio. I did not have a job with the public defender office yet, but I knew that was what I was meant to do.

I was hired a couple of weeks later and was doing what I loved. But I was drowning. The caseloads were and remain far too high. At first, trying to juggle 15 files for a morning call in a misdemeanor court was almost too much. Learning to focus on what was in front of me was really hard when I had so many other cases that needed something done. And the knowledge gap was huge — what was a lesser of what, when did the government have to prove a gun was operable, what are the elements of every criminal charge in the code? I was drowning.

But six months later, most of that was second-hand knowledge. Every day there had been another PD I could go to and ask another annoying question. Every day I could copy someone’s organizational system for juggling so many cases. And for the first time since I became a lawyer I could focus on the people in front of me and help them.

Q. By 1994, violent and property crime rates in Ohio were already falling from their peak in ’90. But had anyone noticed? The nation was in the grip of panic about crime, fed by “superpredator” rhetoric, kneejerk federal and state legislation and the impulse to ramp up the drug war to deal with the crack cocaine epidemic.

What was it like for Ohio public defenders in the mid-‘90s? Were you insulated from the madness, or was Montgomery County as hard-hit as any other? Was funding remotely adequate? Were enough public defenders being hired to deal with the influx of indigent clients? Was the kind of grotesquely excessive caseload PDs across the country are expected to shoulder today common back then? And what were your bosses at the Montgomery County PD doing in response?

A. Montgomery County PD remains a place of which I have very fond memories. It was where I became a trial lawyer and then a manager and office leader. But Montgomery County was like everywhere else. Caseloads exploded. There were 100,000 new police on the streets across the country, we doubled down on the failed war on drugs, and tough on crime was and is the hue and cry of too many policy makers.

But Montgomery County was far better prepared to deal with some of it. Years before caseloads exploded, a jurist, Carl Kessler, had the amazing capacity to bring unlikely groups together, and he essentially overhauled the county justice system and put in place a systemwide case management plan. This plan includes open discovery available upon indictment, a very coordinated scheduling of dockets, and active participation from all the players in the case.

The court also instituted a mentoring system for new judges, and this helped bring a consistency to sentencing within the court with variations being far less than seen elsewhere throughout the state. Having these kinds of systems in place helped absorb some of the extensive caseload growth. But at some point, the money stops keeping up. The caseloads creep up, the budget lines for experts remain flat even though there are more cases, the amount of money dedicated to training declines. Budgets continued to increase but at a slower pace than caseloads. I had too many cases. We all did.

But I was never pressured to not try cases or file motions. In fact, just the opposite. I never had an expert request denied when I needed it. I also never once in the 14 years that I worked there, saw a lawyer take a verdict alone. The Montgomery County PD office had 40 lawyers and there were regular jury trials across the office. Regardless of when a jury came in, I cannot think of one time that other PD colleagues had not remained to be there with the lawyer and client when a jury returned. The dedication of my colleagues is what keeps me going every day.

Q. It didn’t take you long to make it into a leadership position. In 1997, the Supreme Court of Ohio appointed you to the state Public Defender Commission, where you and your fellow commissioners were responsible for overseeing the Office of the Ohio Public Defender – which you now run – and allocating money to PD’s offices throughout the state.

Was the lege generous enough with the money it set aside for public defense, or were Ohio’s elected officials like those in most U.S. counties and states in that they’re reluctant to fund a service that, though mandated by the Constitution, doesn’t win them a lot of love from voters? How independent was, and is, OPD’s funding? How’d you divvy up the money? And should Ohio, which has its fair share of counties without trial PD services, be doing more to expand access?

A. The undeniable reality is that public defense is woefully underfunded in Ohio. Ohio is a “home rule” state. Local delivery and control of governmental services is the model. Ohio divides its public defense funding between the state and counties. Originally, this split was to be 50/50, but the state has underfunded the appropriation to meet 50%, going as low as 25% in 2008. This places a burden on the counties, and with a larger share, the counties are even more reluctant to increase the budget dedicated to public defense.

OPD’s operating budget is drastically underfunded. From FY 2000–2015, OPD’s operating budget grew only 7.7%, or half a percentage point per year. The Consumer Price Index during this same period increased 37%. Caseloads, workloads, and the prison population have all grown dramatically. But OPD has lost nearly a third of its staff.

A decade ago, the Ohio Supreme Court created a group to examine indigent defense in Ohio. The Task Force that issued the 2006 Report and Recommendations on Pro Se & Indigent Litigants found that:

Funding dedicated to indigent criminal defense in Ohio … totals $128.8 million in fiscal year 2007. The task force believes, based on its understanding of the needs of the system, that $148.7 million is a more appropriate figure.

Despite consistent growth in the size of Ohio’s criminal justice system, the total funding dedicated to indigent defense remains below that recommended figure, ten years later.

Building a high-quality indigent defense system will cost Ohio substantially more than it currently spends on the system, but other areas of the criminal justice system will realize cost savings as a result of improved defense services. Local jail populations and costs will stabilize or decrease, as defense attorneys identify alternative placements or monitoring systems for clients awaiting trial, and as cases are processed more quickly and efficiently. Ohio’s prison system will benefit, as more sentences will be legally sound and appropriate, and as more clients are diverted to appropriate community alternatives. And Ohio’s courts will realize efficiencies and savings, as defense attorneys are more prepared to proceed with cases, better able to represent their clients, and less likely to commit constitutional errors that result in legal appeals.

A high-quality indigent defense system increases public safety by ensuring the right people are in prison, serving the right sentences. Well-trained, adequately supported defense counsel are also the most likely obstacle between an innocent Ohioan and a wrongful conviction.

Q. In 2008, you took over as state public defender after fourteen years in Montgomery County. Now that you had your hands on the tiller, what were some of the first reforms you wanted to undertake? Was the transition from lawyer in the trenches to high-profile administrator a smooth one? Had anything in your career prepared you for the responsibility of overseeing a large staff? What about the responsibility of ensuring access to quality representation for so many Ohioans? Did you ever think to yourself, “I wish I were still in the well?”

A. I don’t know of anything that prepares you for a job like this. I joked with people for the first six months: don’t tell me anything new after 2:00 p.m. as my brain was full for the day, already overloaded with all the new information I could possibly digest.

But a few things were obvious. The first was giving the juvenile section the same status as the adult divisions within the office. I believe public defense does a distinct disservice to children and the justice system when we use juvenile court as a training ground for lawyers – when we treat it as ‘kiddie court’. These are children, they deserve our best. So, when I got to OPD, my first ‘official act’ was to restructure the office so the juvenile section was not a subset of another department but instead a department of its own, on the same footing and stature as the other departments within the office.

The second major effort I knew I wanted to undertake was to try and bring the public defense system together. Being a home rule state, each county office is independent. For years in Montgomery County, both as a lawyer and as a manager, whenever I was trying to solve a problem I always thought to myself that someone in Ohio must have addressed this problem before. But there was no coordination of information flow between county PD offices. Each was an island without much contact with other PD offices across the state. And the state office, OPD, had something of an ivory tower reputation. It was viewed as insular and not necessarily as a resource for those working in public defense across Ohio.

This outreach project is continuous to this day and into the future. During my first year I started by getting in the car and driving to every county PD office in the state. I wanted to meet everyone and make sure they knew that OPD was here to help. This is a project that continues to this day. OPD has staff going somewhere across the state every day. We hold annual conferences for all of the county PDs. Our website is driven by user needs. We host a caselaw handbook, a motion bank, immigration guides, a collateral consequences database, and numerous other resources.

Finally, OPD now has a Policy and Outreach division. One of the main purposes of this division is to coordinate with and assist county PD offices and appointed counsel throughout the state. Public defenders by their nature are non-conformists. We are not joiners. We reject authority. But, we are stronger together. We can be better lawyers when we share our work, when we coordinate our efforts, and when we speak with a unified voice for our clients and for the resources we need to help them.

Q. One of your signature achievements as Ohio Public Defender was the creation of the Wrongful Convictions Project, which, since 2009, has sought to free innocent Ohioans languishing in prison for crimes they didn’t commit. Where’d the impetus come from? The project was initially funded through a donation from the Moritz College of Law, paid for by TV reporter Erin Moriarty, who’s put out a great deal of coverage of wrongful convictions. How’d you get that grant?

DoJ subsequently signed on and agreed to provide additional funding, allowing you to expand WCP and hire more people. It’s not easy to get the feds to open their purse strings for so eminently worthy a cause. How’d you do it?

Since its inception, WCP has made use of law students to review prisoners’ claims of innocence. These days, it’s trendy to complain about the flakiness and unreliability of young soon-to-be lawyers. Is that true of the kind of law student attracted to helping out the public defender?

And finally, how many prisoners has the WCP freed in its seven years of existence? Is the project high-profile enough? Does the average Ohioan know about the good work you’re doing?

A. I want to answer these questions, but I also have a distinct desire to answer a broader question about the people who do this work. So, let me try to do both and answer the question and also use it as a jumping off point.

As a public defender for 14 years in courtrooms, nothing scared me more than an innocent client. It was terrifying to think of someone locked up in a cell for something they did not do and making sure I stopped it from happening. And DNA testing had revealed how flawed so many of the other “forensic sciences” are, and the unreliability of other evidence we rely upon to convict people and take their freedom. But DNA exonerations meant there had to be hundreds and thousands of more cases that had the same faulty science or unreliable evidence. When I became state public defender, Ohio already had the Ohio Innocence Project, a DNA-based exoneration group that is doing tremendous work, headed up by Mark Godsey and housed at the University of Cincinnati.

I also had the privilege of representing two individuals who were exonerated. (State v. Aldridge) Along with three other lawyers, we represented two clients who had been convicted of molesting a group of children in an apartment complex in a twisted and sordid tale that was unbelievable on its face years later. But right after the McMartin preschool case, everyone was looking for these kinds of cases and was determined to find them, evidence be damned. It was one of those cases that you remember forever, but the highlight was the state had fought us on discovery. In Ohio, discovery is discretionary in post-conviction actions. We had won the right to an evidentiary hearing, but the state had won the discovery battle – they thought. We already had volumes of Brady violation material we had obtained through public records over the years.

So we are in the hearing and there has been no exchange of anything, not even witness lists. Somehow, we had gotten Dr. Richard Ofshe as an expert in our case. Dr. Ofshe is a nationally-known leading scholar on false memories and coerced interrogations. This leads to this classic courtroom moment when Dr. Ofshe is called to the stand, the state does not know who he is and does not even have his CV. He is asked about his qualifications and awards. As he relates that he has won the Pulitzer Prize for Public Service, the lead prosecutor leans over and whispers a bit too loudly to her subordinate, “Oh crap, you take him.” Both clients were ultimately freed and remain out today.

With that background, the Wrongful Conviction Project was a no-brainer, as was the fact we needed to expand the types of cases we looked at – to the non-DNA side of the house.

As to how we got it funded and our students, I cannot say enough about the people involved. Erin Moriarty and Moritz School of Law have been the backbone of funding. We awarded Ms. Moriarty our Defender of Justice award in recognition of her commitment to the project. DOJ started guiding more grant money towards innocence projects, and we got turned down the first time we asked. It was our second effort that was rewarded.

And the law students are the only way the project could ever be successful. Our experience has been the exact opposite of the way the question is phrased – the students we have involved in the project make it function. We could not collect the relevant case documents, review the requests, and review the files without the students. Our staff lawyer assigned to the project, Joanna Sanchez, was hired directly from Moritz as part of the project.

And this is where I want to jump off and speak a little more broadly than the question asked. Public defense is about the people. It has been fun to answer these questions, but it also makes me a little uncomfortable in that I am only as good as the people I work with. People are drawn to this work. I think there are one or two career public defenders per law school class – people who do the work because it is a calling. They come to PD offices with a shared belief system in fundamental freedoms and individual liberties. They come to help those who need it the most. They come to try and rebuild lives. That is not to say that others do not share these beliefs, there are many. But PDs feel a need to do this work.

My job, as a leader, is to make sure we hire those who have this devotion to the mission and want to be career public defenders and then do everything in my power to lobby for the tools, systems, and policy changes that will allow them to do their jobs at a very high level. So, it is about them. Yes, there is great pride in our Wrongful Conviction Project, but it is the people who make it great – our project director, Joe Bodenhamer and his team. Our Juvenile Department was recognized nationally by the National Juvenile Defender Center. It is due to the people who do the work – they are amazing.

Our Legal Department has been involved in huge victories, ultimately winning the first constitutional challenge to Adam Walsh legislation. Our Death Penalty division has been involved with more clemency success than anywhere else in the nation and Ohio is ground zero for lethal injection litigation. This is true across OPD – whatever goes well, whatever recognition I have is really and truly only because of the work being done by the lawyers, investigators, mitigators, IT staff, administrators, and all of our support staff. If I thought there was a prayer it would not be edited out, I would list each and every one of the amazing employees here at OPD because they deserve the recognition!

Q. Is Ohio doing enough to fulfill Gideon’s promise? Funding is one major problem, but funding by itself isn’t enough. Strickland v. Washington established that the accused have the right to an effective lawyer, but set the bar so low as to be satisfied by breathing and the occasional “huh?” As such, it’s possible to pay lip service to an indigent defendant’s Sixth Amendment rights by giving him, not a lawyer capable of effectively and zealously representing him, but a warm body to prop up in the courtroom.

What can the state public defender do to ensure the lawyers entrusted with the poor are not just well-funded, but appropriately trained and ethically up to snuff? For that matter, what should the lege be doing?

You’ve been a major proponent of reform in this regard, including on the national level – you even met with former AG Eric Holder to discuss the issue. Could the feds be doing more? Should they be? Are national initiatives to hold indigent defense to high standards the answer, or is this a problem that defies a uniform fix?

A. Frankly, with the exception of a handful of places in this nation, no state or local government is doing enough with regards to funding. Even with a lack of funding there are still things that can and should be done. And it is public defense leaders who must seek change. No one is going to fix this broken system for us.

As noted in the question, Strickland’s second prong essentially reduces the quality of the lawyer to a lump of flesh in many cases. We support this crazy fiction that if the evidence of guilt is overwhelming it does not really matter how badly your lawyer performed – drunk, sleeping, who cares. But isn’t the corollary also true, crappy lawyering makes the evidence look overwhelming? We have a system of review that presently values economy over fundamental fairness. Because that is what Strickland really holds, you are not entitled to a fair trial or an effective lawyer if you are ‘really’ guilty. We should do better. Think how differently the system would function if the second prong of Strickland did not exist. Everyone would be incentivized to make sure the client got a fair trial – not a perfect trial, but a fundamentally fair trial where competent counsel was involved.

As a state public defender, there are still steps towards improving the quality of the system that can be taken regardless of holdings like Strickland.

First, we have invested heavily in training. We sponsor seats at numerous CLEs around the state. We partner with the National Defender Training Project to put on a trial school every June and we fully fund 40 attendees. If I could, I would double or even triple the training budget.

Second, we have undertaken the building of a case/client management system. This system will provide one platform for public defense professionals across the state to enter data and records about the cases they handle. This will be provided free of charge to county PD offices and court appointed counsel. Ultimately, we will collect a very detailed set of data about public defense in Ohio. We will be able to make much more effective arguments about the need for reform, and we can be much more detailed about the degree and location of problems.

Third, the Ohio Public Defender Commission has recently passed a full set of comprehensive administrative code rules governing the qualifications of counsel and the necessary resources for a county public defender office or a not for profit organization.

While these will not solve the problems of inadequate funding, we will ultimately raise the bar for performance, have a much better understanding of how clients are being represented across the state, and reduce the number of cases that need resources dedicated to fixing what we should have gotten right the first time the client was represented.

Q. You ended 2016 with an amazing array of decisions out of the Ohio Supreme Court, including a declaration that mandatory bindover for kids is unconstitutional; that a term of years that exceeds life expectancy for a child is unconstitutional; and a new standard that makes police records and other governmental records available as public records upon conclusion of the trial. Not too shabby. Where do you go from here? What about the death penalty? What are the big issues you hope to slay in 2017? And what happens to Tim Young next? Is there a robe in your future? Or maybe you miss the good old days of crossing a cop and watching his eyes well up with tears?

A. As a PD, you dream about the two weeks we had at the end of term in 2016 from the Ohio Supreme Court. There were a plethora of a groundbreaking decisions released.

All 7 members of the Ohio Supreme Court agreed that a statute that limited DNA testing in death penalty cases is unconstitutional. The Ohio Supreme Court reviewed the statute and the State offered the following purpose: Ensuring that the final judgments of its courts are expeditiously enforced. The Ohio Supreme Court disagreed:

“Are we to take this to mean that expeditious enforcement of the death penalty is the guiding factor and goal? Are we to value speed over certainty? Of all cases that cry out for certainty, it is cases that result in the extinguishing of a human life. If, however, the generic expeditious enforcement is the basis of the state’s argument, even a cursory investigation reveals that this rationale is faulty. See State ex rel. Nyitray v. Indus. Comm., 2 Ohio St.3d 173, 176, 443 N.E.2d 962 (1983). Indeed, expedience is subverted by the statutory scheme.”

In State v. Moore, the court held that “pursuant to Graham, a term-of-years prison sentence that exceeds a [juvenile] defendant’s life expectancy violates the Eighth Amendment to the United States Constitution when it is imposed on a juvenile nonhomicide offender.”

In State v. Aalim, the court held that mandatory bindovers of juveniles violate the Ohio Constitution. It is difficult to describe the scope of this win and how many children’s lives will benefit from it.

Finally, the Court handed down a case that completely opened up public records requests for post-conviction litigation. Today, in Ohio, the police files become public record upon completion of the trial.

Whatever else I may have thought of 2016, it ended well – it is impossible for me to be prouder of all of the staff at OPD, what this kind of work says about each and every one of them. These decisions are the result of huge team efforts that include every department and support from every part of the agency.

As to my future, OPD just finished celebrating 40 years of service. My goal, if they will have me, is to be here when the agency turns 50 and then retire. I have my dream job. I am not looking to go anywhere. I never pictured myself in a robe. And while I desperately miss trying cases, I love my job today. I am a career public defender and I am deeply proud of that. If I can finish my career at OPD and then teach a little as an adjunct professor I will be happy, for I will have spent the vast majority of my career helping people in need, people without resources, people without a political voice, people without a home. But how we treat people is the measure of the strength of our community. How we treat those in poverty, those who have the least, that is the measure of our community.

And this is what I hope the legacy of our work is at OPD – we helped people. We helped offices improve, we helped lawyers with problems, and most importantly, we helped clients.

Cross: Sheriff Russell Martin, Restoring Integrity In Delaware County, Ohio

November 30, 2016 (Fault Lines) — Ed. Note:  Scott Greenfield and David Meyer-Lindenberg cross Delaware County, Ohio, Sheriff Russell Martin, who took over following the resignation of his predecessor.

Q. Some people go to college without a clue what they want to do in life. You, on the other hand, went straight for a career in law enforcement; after you completed an associate’s degree in law enforcement technology at Rhodes State, you went on to Bowling Green U, where you got a bachelor’s in criminal justice. What made you want to take up the mantle of cop? Why not join up directly, instead of putting yourself through half a decade of grueling study? (Was it actually grueling?) Did you have your heart set on the big job, chief or sheriff, from the start? And why did you stay in Ohio?

A. I originally entered college with the intent of pursuing a degree in journalism. It was 1976, and on the heels of Watergate investigative journalism had reached elevated interest. During my high school career I participated in several sports and caught on with the hometown “rag” as a weekend stringer who for a few bucks covered local sports throughout the county. I loved writing and enjoyed picking the brains of local coaches for their sports and leadership tips.

The journalism school was full of incoming freshman and it didn’t take long to discover that the job market would be glutted with aspiring journalists. My dreams of covering the Super Bowl for Sports Illustrated got a quick dose of reality when a long since defunct newspaper’s editor visited a class one day and candidly told many eager freshman that a career in journalism was going to be a difficult task. “Make journalism a minor.” he said.

As the result of spending too much time in the school gym playing pick up basketball, and not enough time on my philosophy and economics courses, I saw my grades begin to dip and started to rethink my career goals. Neither of my parents had attended college, but both had a desire to see their only son acquire a degree. I started to consider a career in the military and when I mentioned this to my father, a former member of the Army, he appealed to me to stay the course.

At about that same time I was seated with a group of students watching a made for TV movie entitled “Helter Skelter.” The movie was obviously about the Charles Manson murders. Students then had to share a television in the lounge and the mini series captured everyone’s interest. I began to wonder about the satisfaction police officers must feel when they take someone off the street who really is a menace to society. I claim that was about the time I became “infected” with the virus that would eventual grow into full-fledged case of “love for policing.”

Our family always had a respect for local law enforcement in the small community in which I grew up and when I mentioned this to my parents, neither discouraged me from the pursuit. But they also desired that I still get a college degree to compliment my career choice. The academic and career journey began with the choice to enroll in a local community college that offered an Associates Degree in Law Enforcement, while exposing me to the realities of policing.

Q. After you completed your studies in January of ’81, you signed on as a patrolman with the City of Delaware Police Department. Along with bad hair and worse music, the early 80s were notable for a nationwide rise in crime, part of what would turn out to be a thirty-year “crime wave.” In Ohio, however, the story was a little different: from 1980 to 1985, violent and property crimes actually fell, and quite steeply.

As a result, were you and your fellow beat cops insulated from the criminal-justice trends – notably, Reagan’s massive expansion of the War on Drugs and all that followed – sweeping the nation at the beginning of your career? Were you stewards or sheepdogs? Talk of police militarization was still decades away, but in retrospect, were there already “warrior cops”? How did policemen (there weren’t many female police officers back then) see their own jobs? What did Ohioans think of the originally Left Coast concept of community policing?

A. I joined the Delaware Police Department after a year of marriage and a stint working in local meat packing plant, all the while taking civil service exams throughout Ohio. I refer to that year as the “graduate school of hard knocks.” Working 12-hour days in a tough environment with few benefits solidified the work ethic that I would need to have a successful law enforcement career. I always say my worst day as a police officer was still better than my best day in the meat packing plant.

That year in that environment helped grow an already deep respect for the laborer, and I believe they are anything but common. It’s one reason of many why I believe in being a good steward of the taxpayer’s dollar. They work hard for their money and deserve public servants willing to work just as diligent and hard with their taxes and for their citizenry.

The police agency I joined was already starting to make changes in professionalizing the department. I was among a group of college graduates that were hired at about the same time. The Police Chief, Dick Browning, was using psychological evaluations to review candidates and had set in motion many progressive policing ideas that saw the department move from local hires with a military background to a broader candidate base, including the first women to join the department. The Chief also applied for and benefitted from numerous grants that were available to purchase equipment. He was also the agency’s first FBI National Academy graduate and understood the benefits of advanced training and education.

Delaware City, located almost dead center in the state of Ohio, had your typical “garden variety” crime. We didn’t deal with typical urban problems at the time and our frequent calls were thefts, domestic disturbances and bar fights. But one thing was evident. There was a growing interest in officer safety and tactics. I believe it was the beginning of a two-decade focus on training officers to be more warrior and less problem solver.

It was well intended, and as a young officer I was not interested in dying in the line of duty. We reviewed data and scenarios in the academy about officer line of duty deaths and specifically the high percentage of officers (over 50%) who were killed with their own handgun when it was taken from them while on a call. I believe it was the beginning of a transition from community policing to an emphasis on survival and suspicion.

It would eventually have the desired effect in that fewer cops lost their lives in the line of duty, but it probably contributed to a sense of slight paranoia that on any given call you could be killed with the gun you brought to that call. Good police officers were able to maintain the balance between relationships with the community you serve and managing calls tactically. But for the next two decades, a lot of training revolved around officer survival. And who would argue against it or the possible unintended consequence? Frankly, we all wanted to get home safely at the end of the shift. Period.

9-1-1 and response time began to impact policing philosophy, and evaluations often mentioned how long you took on calls or your availability. I was once criticized in an evaluation for walking a small block that included a few bars and a movie theatre because I often stopped to visit with the owner of the theatre. Sometimes he would provide observations about what he witnessed outside the bars, but often we just talked about family. For fear of being disciplined in the future, I trimmed back my visits and unfortunately spent more time in my cruiser and less time walking the downtown.

Q. After ten years on patrol, you started getting promoted through the ranks; you held a number of increasingly senior supervisory jobs. One bone of contention for advocates of criminal-justice reform is whether police administrators can be trusted to impose consequences on their fellow cops for misconduct. What about you? Since you’d gotten promoted off the street, were the bonds of camaraderie especially strong? Were you willing and able to punish bad actors? At the time, what kind of questionable behavior was tolerated, and what tended to be punished? How have things changed?

A. Day in and day out, you respond to calls with co-workers that you depend upon to help you quell a domestic or wrestle someone larger than you in a bar fight. You experience and share some of the most intimate and personal struggles that people have in their lives with a handful of fellow cops that very few other people even realize are occurring. You sit in the locker room after each shift often engaged in an informal debriefing about the arrest you made, or what could have happened.

Few professions provide such visceral and raw emotions or experiences. Perhaps only in a foxhole do people bond any tighter than the cops who routinely work together on shift for several years. When they work in concert on high-risk calls and restore safety and order in the midst of chaos it can be a beautiful thing to observe. But it does create alliances and allegiance to each other that if left unchecked or unrealized can cause co-workers to struggle in ethical decision-making.

The struggle is the result of human nature and empathy, not some inherit desire that turns those in authority into abusers of their responsibility. On one hand you want to hire people capable of empathy and concern, but then we ask them to dial it back when they develop those same feeling toward coworkers. But the reality is that when you apply the social contract theory to American policing, the expectation by the community you serve is that the police are held to a higher standard. And rightfully so.

I had to discipline a sergeant when I became Chief for conduct that I strongly believed compromised community trust. This sergeant and I had handled the most high profile homicide cases in our community when we worked in the same division and prior to my promotion to Chief. And yes it was one of the most difficult and emotional issues that I ever had to contend with.

For years it impacted our relationship and on some level the matter divided the agency between those who thought I was doing the right thing and those that thought I had become insensitive and too political. I learned some painful lessons during that time and realized that often in leadership you sit in a lonely chair. I have now taken the experience and incorporated it into ongoing reinforcement within my agency and the outside officers that I instruct on community expectations and the value of understanding the Social Contract as a cornerstone of our democratic and representative government.

Q. In 2003, you received a prestigious invitation to attend the FBI National Academy, an elite police-training course. How’d you get the nod? Are the feds, now of junk science and systematically worthless labs fame, really the crime-fighting geniuses they’re cracked up to be? Were you able to put your newfound contacts to good use? You’re an advocate of local accountability for police forces – is there something vaguely sinister about getting the best and brightest from the nation’s PDs to fall in line behind the FBI’s standard? And was it as grueling as they say? Did you run, and survive, the Yellow Brick Road?

A. Every few years, the administration within the Delaware Police Department would pick and submit for consideration a member of the agency whom they considered a possible choice for future promotion or appointment for greater responsibility. I made it known that I had a desire to pursue promotion and that I wanted to be as prepared as possible if and when the opportunity presented itself. I was honored when I passed the vetting process. Considering that each previous candidate from our department had risen to the position of Chief, I presumed the training was of value.

I was not disappointed in my FBINA experience. It remains a career highlight and one of a handful of associations within my life that has had significant ongoing professional impact. The course work was challenging, requiring responsible self-initiated study coupled with some of the best instructors I have ever sat under. But just as important was the opportunity to sit either around the dinner table or in work groups with law enforcement officers from all over the world reviewing a host of ideas as they related to how to improve policing. I found that most participants were responsible, successful officers who cared deeply about the communities they served and the profession they had chosen. I also gained a new confidence that my ideas about law enforcement were relevant in any setting.

I have no false perceptions about our federal partners. On the contrary, the ongoing exposure to them and most other agencies revealed men and women of genuine humility that wanted to learn from each other for the sake of improving their capabilities and improving their communities. As for the networking; to be able to connect with FBINA graduates around the world, especially when we are exposed to borderless crimes, is an invaluable resource. On my first family trip to Paris, it was an FBINA grad that picked us up at the airport and later treated us with a visit and meal with his own family; a cultural exchange that has given us a greater appreciation for European history, the French revolution and our current partners in the ongoing war on terrorism.

My Yellow Brick Road maintains a prominent position within my office. A daily reminder of this lasting experience.

Q. One year later, and 23 years after you signed on as a patrolman, you became Chief of the Delaware PD. You must’ve had mad skillz to secure that promotion, because if seniority and experience were enough, everyone would get a turn at the tiller. How’d you emerge as the candidate of choice? And once you were in charge, what were the changes, big and small, you made to the department? What were your goals in making them? Were any in fact necessary, or was everything going swimmingly in ’04? Did the rank-and-file resist your tyranny, or did they welcome you as chief with open arms?

A. When I look back on my career, I had more losses than victories as it pertained to promotional opportunities. It just so happens that through perseverance and timing, the promotions eventually added up to the appointment as Chief of Police. The selection process included a national search and an assessment of the final candidates; a process I scored highest on, but still didn’t assure me of the promotion. The City Manager had the final decision in the appointment and one of the other candidates was also an internal competitor of higher rank.

Fresh off my stint at the FBINA I did have a quiet confidence that after sitting in classes with law enforcement executives from around the world, I felt just as capable as many of my national and international peers. I also had confronted career disappointment in the past and felt like it prepared me to handle the very public process of the Chief’s appointment. Throughout the process I stressed two things that I believe separated me from the competitors; 1) I had scored the highest on the assessment 2) No other candidate could assert that they had supervised every division within our agency. And personally, my theology provided a peace that whatever was to ultimately occur would serve a greater purpose in my life and for the greater community. Frankly this belief and mindset eliminated a lot of the internal pressure and enabled me to perform transparently with greater confidence.

Eventually, as the process wore on, I asked the City Manager directly what else he needed to make his decision. He reminded me that the Chief of Police hire is the most significant appointment a City Manger makes. It carries the greatest liability and sets the tone for the community. Eventually, he offered me the opportunity and although my father had been deceased for a few years, my first thought was “I wish I could experience this with my Dad.”

There are advantages and disadvantages in getting promoted within your own agency. The advantage is that you know the agency and they know you. The disadvantage is that you know the agency and they know you. Although I inherited a good police department, the City Manager assured me he did not want a “caretaker” but a problem solver. The other internal candidate told me early on that he could not work for me and that probably became the first issue to contend with. Eventually he would retire and move on, and that issue resolved itself.

Over the course of the next eight years, I focused on consolidation of services, dealing with the economic downturn, developing succession and creating an environment where we wanted to focus on problem solving policing not just the traditional responses.

Q. Eight years in, your tenure as Delaware chief came to an abrupt end when then-Sheriff of Delaware County, Walter “Magnum” Davis, agreed to resign his post and never again hold office in exchange for a deferred prosecution agreement. (He’d gotten caught spending county money on an out-of-state trip with an alleged mistress.) And his predecessor as sheriff lost his job after he pleaded guilty to two misdemeanors. You were tapped to serve as interim sheriff until the November elections.

With about 200 employees, the Delaware County Sheriff’s Office was a bigger enterprise than you’d ever run before. Not only that, but it was mired in scandal, and it was your job to turn the ship around. Were you at all apprehensive about leaving your job as chief (and, by that time, President of the Ohio Association of Chiefs of Police) behind for a challenge like that? What did you have to do to clean up the department? How deep did the rot go? Did the actions of your predecessors reflect on the rank-and-file, or were they ashamed and embarrassed by what had been going on? Was it difficult to win their trust? At least you didn’t have to worry about losing the election, right?

A. I was very comfortable as the Chief of Police of the county seat. I was enjoying the opportunities and challenges provided as the President of the Ohio Association of Chiefs of Police and advocating at the state level for Ohio’s law enforcement agencies. I had no political aspirations at the time, but I was also disappointed in seeing how poorly the Delaware County Sheriff’s Office had been managed. I was partnering throughout the state on initiatives for policing, but in our own county the Sheriff refused to work with local law enforcement to share and improve services countywide. It was exasperating, because I knew the potential that could be leveraged by working with the other agencies in Delaware County.

I had little time to consider pursuing the appointment and subsequent election to Sheriff. I would have to retire, resign as president of the OACP, take an initial salary cut and tackle the problems left behind by the previous Sheriff. Exiting church one morning, during the consideration stage, my wife looked at me and could probably sense how I was laboring over the decision. She sealed the deal when she stated simply, “If you think you can make a difference I’ll support you.” It was all the affirmation I needed. Some said after that I left the frying pan for the fire. I was not in a frying pan…I had been sitting in a very comfortable chair when I jumped.

I really thought after 32 years my reputation would precede me at the Sheriff’s Office. Although I had worked with many members of the Office, I soon learned that I had to start all over gaining the trust and confidence of most co-workers. Frankly, I will confess that I thought too highly of my leadership ability and presumed in a year we would be recognized as one of the best Offices in the state. It has taken four years for many of my co-workers to believe I am who I say I am. But I also believe that they had been so poorly lead by the previous Sheriff that trust in the position had been significantly eroded.

I quickly learned something else about myself. I had 32 years at the previous agency and had a deep abiding affection for that department and my co-workers. Within a few months, that same sentiment was realized in my own life for this “new” Office. It confirmed for me how much I care about this profession, the men and women who serve and the community we work in.

Q. As sheriff, you’ve signed off on hundreds of SWAT raids on the homes of suspected drug offenders. You’ve defended the practice before, notably in a debate with Radley Balko; you said the routine use of SWAT teams works to people’s benefit because it helps keep cops safe, who in turn protect the public.

Setting aside the property and psychological damage, the loss of community goodwill, the inevitability of the shot dog, the potentially horrible mistakes like raiding the wrong house or dropping a flash-bang in a baby’s crib: What kind of “protection” is it when the people who interact with cops are forced to bear all of the risk? When it’s the cops who, between their aggression and their fear, generate most of the danger? Are you, perhaps, prioritizing law enforcement over protecting people?

In addition to criminal priors, you’ve said you factor whether someone owns a gun into your decision to send a SWAT team. Is it right to penalize the legally innocent people on whom you serve warrants for exercising their constitutional rights? Would other metrics be cool? Statistically, African-Americans are responsible for an outsize share of violent crime. Are black suspects deemed more deserving of a visit from the guys with BearCats? Where do you draw the line?

A. I have respect for Radley Balko’s research and observations. I provided copies of his book to all the law enforcement executives in the county. I also believe that a piece of equipment doesn’t necessarily equate to a militarization of police. It’s policies, practices and leadership that define how we do our job in this profession. We’ve given serious consideration to how we utilize our multi-agency tactical unit. First and foremost, we emphasize training and industry best practices. There are far too many “SWAT” teams in place that probably don’t have the oversight needed to make sure they are responding to community expectations.

One of the first things I did when I became Sheriff was create an Executive Board that oversees all of our countywide joint work groups. Although the sitting and voting members remain law enforcement executives, we have routinely invited the city managers and township managers to the table. We possess a working group of law enforcement executives that include Chiefs who do nationwide agency assessments and are forward-thinking problem solvers. We also have representatives from the County Prosecutor’s Office at the table reviewing our policies and procedures. Much of our work is then returned to local agencies and shared with local citizen academy groups.

I currently employ three analysts in my Office. The Administrative Analysts assigned to the countywide work groups is tasked with measuring and looking for metrics that determine our effectiveness. By and large, in our county the Tactical unit is deployed to respond to barricade and hostage situations. I’m responsible not only for the safety of our citizens, but the men and women I direct. The use of special tools and equipment more often than not is used to minimize exposure of risks to all the parties involved.

Q. Then there’s asset forfeiture. Where do you stand? Indispensable law-enforcement tool, needed to keep kingpins from gifting drug money to their girlfriends? Tyrannical way to expropriate the innocent? Convenient way to plug a hole in the budget? What’s your office’s asset forfeiture program look like? How much are you confiscating? Do you cooperate with the feds?

In June, Ohio’s House passed HB 347, which, if enacted into law, would keep police from confiscating unconvicted people’s stuff and restrict access to the federal Equitable Sharing Program. (It’s in limbo in the Senate.) Do you support it? Surely not? What would your friends from the National Academy say?

A. In regards to seized assets and the value they have impacting the struggle to control the distribution of illegal drugs, I don’t believe you throw the baby out with the bathwater. In Ohio, I do not believe law enforcement has abused the asset seizure laws. There are enough safeguards in place to protect the truly innocent.

I don’t want to be a part of separating citizens from their lawfully gained property. It is a fundamental right in this country. But I don’t have any problem separating drug money from dealers who exploit peoples’ addiction for their financial gain. We recently converted $27,000 of locally seized drug cash to assist a shelter for victims of domestic violence, and I routinely look for ways to promote substantive educational programs with lawfully seized assets from drug dealers. Knee-jerk reactions by the legislature rarely provide substantive solutions, but they do sound good in an election cycle.

Q. Finally, there’s discipline. You’ve proven on several occasions that you’re unafraid to drop the hammer when cops misbehave. At the same time, Ohio has its share of police unions and loudmouth union reps. Do the Steve Loomises of the City of Delaware make your life hard? What about the voting public? Nationwide, police departments are having a bit of a PR problem. Has the storm of anti-cop outrage passed you by, and if so, how’d you manage it?

A. I said early on that we will train those that don’t know and discipline those that don’t care. Fortunately, most care and dare deeply. But I have no toleration for those who will tarnish this profession. Far too many serve for all the right reasons, and when one misrepresents us, they have eroded some of the community trust that has been afforded for us to do our duty.

I grew up the son of a union laborer who spent 42 years working in the same factory. I heard around the dinner table my father discuss some of the protections the union afforded and how they helped leverage raises in an industry driven by the bottom dollar. When I started policing, we had no union and frankly very little say in compensation. I loved the job but as I desired a home and opportunities for my family I realized that early salary comparables would probably resign us to a pretty moderate lifestyle. There were genuine discussions around the table between my wife and I about career options. Pursue the possible salaries associated with the private sector or maintain a life in public service. She was a schoolteacher and we both very much loved our jobs. But in the early 80’s, when college graduates were recommended for the policing profession, we often looked at our peers and wondered about our future.

The Union’s helped bring salaries up in the 80’s and I believe the realized benefit to that was greater retention, a more competitive labor pool and greater expectation from the community to earn that salary. But we have entered a new normal after the economic downturn of 2008, and public servants need to be very careful not to become greedy. There is a delicate balance between fair compensation and pricing yourself out of the market or alienating the constituents you serve. Just as importantly, we all owe it to the communities we serve to work diligently for them and manage our budgets with great stewardships.

The relationship between management and the union can be successful if they genuinely share the same goals; to provide quality law enforcement to the community they serve. Frustration develops when management fails to listen to the concerns of front line officers and when the union overreaches in dictating policies that inhibit best practices or becomes unreasonable in protecting officer’s behavior that erodes community trust or expectation.

I don’t believe the current arbitration process is most effective. I have a hard time with a third-party arbitrator who has no ties to the community dictating policies and then riding out of town, leaving behind the law enforcement executive to deal with the fall out. But by and large, when parties are reasonable and emotions and personal agendas are set aside, management and the union can coexist. Like most conflicts in life, it comes down to the personal relationship and trust.

Q. A couple weeks ago, you won re-election to another four-year term. (Congratulations!) What’s in your future? Got any big plans for the sheriff’s office? How about running for higher office, in 2020 or beyond? Or is a lifetime of herding cops enough for anyone, and you can’t wait to get out of government? What’s in the cards?

A. I recently reorganized the Office into four divisions, all supervised by Directors that have been tasked to focus on employee development, especially leadership and accountability. What you don’t audit you accept. We want to look even closer at how and why we do what we do. My staff knows my desire to have an internationally accredited operation and be known as one of the finest Sheriffs Offices in the country.

I’m not satisfied yet and complacency is not a part of my psychological makeup. Law enforcement around this country has faced the most turbulent and difficult challenges it has ever confronted in these last two years. I want to see it through and continue to advocate for and support this great profession. I’ve spent more time reviewing the Federalist Papers and Jean-Jacques Rousseau’s Social Contract essays in recent years. I do believe quality law enforcement is a partnership with the community and an honorable profession that can greatly enhance constitutional freedoms and quality of life on the local level.

I feel like I still have a lot to contribute on the topic of leadership and law enforcement. I make it a practice to focus on the job at hand and the people have elected me to be Sheriff of Delaware County.  I am still humbled and honored that God would allow me this privilege and the people of this great county have provided for me the opportunity. I can’t talk about leadership and its value in tough times and walk away yet. We’ve still got work to do. And frankly it’s still better than working in the meat packing plant.


Cross: Carol O’Brien, Because There Are Bad People Out There

September 28, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg Cross Delaware County, Ohio’s Prosecuting Attorney, Carol O’Brien.

Q. Your journey started at Northwestern, in Evanston, Illinois, where you majored in political science, but apparently planned to become a high school teacher. Was that the dream? Teaching is certainly a vital profession, but you chose not to pursue and to head off to law school instead. Did something put you off from teaching? What made you decide that, for a teacher, you would make a good lawyer? Was there some direction in law that drew you to law school?

A. Actually I started telling people in 5th grade – to be specific, the first time I mentioned it was in gym class… – that I wanted to be a lawyer. I wanted to be Perry Mason. Yes, all of you young folk need to look that name up. I took the education classes at Northwestern because they sounded fun – and as a back up. I am a bit of a worrier and I wanted to make sure I had something to fall back on in case I didn’t get into law school. Funny thing…I really enjoyed teaching.

By the way, I’ve never had my Perry Mason moment – you know the one where the witness on the stand breaks down under the masterful cross by Defense Attorney Mason and admits to the crime – totally exonerating the defendant. I’m still trying to get a defendant to break down on the stand during my masterful cross and admit to the crime….

Q. In 1980, you headed to Toledo for law school. Why Ohio, of all places? You excelled in school, winning the AmJur prize for torts. Did you have dreams of doing personal injury law? You also coordinated the Wagner Labor Law competition. Maybe labor law was going to be your thing? What you didn’t do was focus your energies on criminal law. Did it hold little interest at the time? What areas of law fascinated you at Toledo Law? What were your plans when you graduated in 1983?

A. Born in Toledo and raised in Maumee, Ohio. Toledo was the only law school I applied to. Figured if I didn’t get in, I would teach or stay at the full time job I had in my senior year at Northwestern. I chose Toledo because it was home. I loved Chicago but I wanted to see if it was better to be closer to home and family or to move back to Chicago – turns out I did neither!

My initial post-law school dream was to be in private practice – had no idea what that entailed! I had absolutely no inclination to practice criminal law, though one of my favorite classes was the required criminal law class. The professor was a practicing old school criminal defense lawyer who taught not only the law but the practice. I also loved the way he rushed through the discussion on sex crimes because he was embarrassed to be talking about sexual assaults in front of women. I really enjoyed my Labor Law classes and decided that was what I wanted to pursue – unfortunately (?) love got in the way and I married a fellow law student who was Naval JAG officer. He was stationed in Charleston, SC and there wasn’t a huge call for labor lawyers in Charleston.

Q. Your first job out of law school was with the Advocates for Basic Legal Equality, in appropriately-named Defiance, Ohio, handling civil litigation on behalf of low-income individuals and groups. Was this a cause to you, or was it just where you got a job? Representing the poor certainly offers a perspective that few learn in law school. Did this affect your perspective of how law impacts the poor? Did you gain an appreciation of the difficulties faced by the poor? What did you takeaway from this work?

A. I would like to say that I took the job with ABLE because I had a huge interest in the cause, but I took the job because they were as desperate to have someone with a law degree as I was to get a law job. I was living in Toledo while my husband was finishing up his training with the Navy, and we were transferring to South Carolina in April of 1984. I was barely in the office a month when the managing attorney left and I was the only attorney in the office. I tried a case (or should I say, I tried to try a case – sheesh I was bad) with no assistance against one of the most experienced attorneys in the area. It was horrible. I lost. I learned then that knowing what you don’t know and knowing when to ask for help are really important skills for a lawyer to have.

I didn’t really start practicing law until I moved to Charleston and was hired by Neighborhood Legal Assistance Program (NLAP). NLAP had a great mentoring program from which I learned what it means to be a lawyer and to represent someone. Because of the huge need for legal services for the poor in Charleston, we accepted only a small percentage of cases that walked in the door. Divorce cases with children and violence; social security disability cases, landlord tenant – where a need was immediate. The Charleston Bar was small, so all the attorneys and judges knew each other.

Working with poorer clients required me to be creative. I couldn’t just give them an appointment and expect them to be there – we had to work out the logistics. If they were taking the bus we had to look at bus schedules. If they were working we might have to meet after 5:00 pm or before 9:00 am. Many times my clients didn’t get much schooling, so I would have to make sure I took the time to explain what was happening. I couldn’t just give them paperwork and say read it; they may not be able to read.

I believe that my work with ABLE and NLAP made me a better lawyer. It taught me how to listen, how to work with people and it made me realize that if I wanted to connect with people I had to do more than dictate to them, I had to talk to them. It taught me that lawyering is not a 9 to 5 job.

Q. Following your trip down to South Carolina, where you spent a couple of years working for the Neighborhood Legal Assistance Program, against representing low-income residents in civil matters, before returning to Ohio as a staff attorney for The Ohio State law school’s Civil Litigation Clinic. Were you returning to your teacher roots? Did you want to go academic? Had you considered going for a tenured teaching position? You also did volunteer work as a mediator, teaching a mediation seminar and serving as a hearing officer for landlord/tenant disputes. Having been a litigator in the trenches, did you become a mediation convert?

A. I found the clinic experience amazingly worthwhile – both for me and for the students. I think that the clinical programs are some of the most educational of any of the courses at the law schools. To give a student a look at real life, a chance to see what they face when they graduate and go out into the real world, is amazing.

When I took the position with OSU, I was informed that the position was at the most a three year position – with no chance of a tenure or longer track position. I was fine with that. However, after I was in the position for a year ,I started talking to the professors associated with the program and suggested that they look into making it into a different type of position – they agreed and the attorneys who came after me stayed for much longer periods of time. I think that change was beneficial for the program.

I think that experience did reignite my interest in teaching. I truly enjoyed working with the law students – they did amazing work on their cases and for their clients. The attorneys who were “on the other side” of the cases were truly amazed at the level of legal work they saw from the students. Of course the students were generally only working on one or two cases, but they worked them to death.

I have continued to mentor new attorneys and to teach to some degree since then. I have presented at a number of seminars for attorneys and law enforcement, I taught at Columbus State Community College and I speak to middle school and high school students on a regular basis. I would love to get back into teaching at the collegiate or law school level.

I believe that mediation is a viable alternative for the right type of cases in the system. I was fortunate enough to work with former Ohio State University College of Law Dean Nancy Rogers, who is a leader in the field of mediation. She is so knowledgeable and talented in the field that I learned a tremendous amount. I think mediation is appropriate for cases that are based on principle and where there is not a tremendous “power” difference between the parties. For some time, there was a push for mediation in domestic violence case – I do not believe that mediation is ever appropriate in those cases.

Q. In 1992, you left the warmth of academia for the cold of the Montgomery County prosecutor’s office as a special assistant. What gave rise to this paradigm shift in your practice? Had you considered being a prosecutor before that? What made you decide to leave the representation of the poor behind? Your first job dealt with nuisance abatement. Did that feel different that prosecuting individuals for crimes? Did you view yourself as a “real” prosecutor at the time? Did you see this as an extension of helping the same people you served before, but in a different capacity?

A. I actually left OSU in 1989 to take a position with the Civil Division of Franklin County Ohio Prosecutor’s Office. Toward the end of my three year commitment with OSU the chief of the civil division in Franklin County told me he’d rather have me working with him than against him and he offered me a job. We had an amazing group of folks in the civil division – it truly felt like I was home. I represented the Elected Officials and employees in the county when they were sued. I really had no intention of being a “prosecutor” (criminal) and most assistant prosecutors handling criminal cases have no idea what an assistant prosecutor in the civil division does – I believe they literally shudder just thinking about it.

During my time in the civil division we had an issue with Adult Bookstores allowing sexual acts to occur in their stores, and I was “drafted” to assist with nuisance abatement cases. We filed nuisance abatement cases against 9 bookstores. Though this was a civil enforcement issue against the book stores, it also involved the owners of the book stores and of all the civil cases I handled, these were probably most like criminal prosecutions. Though there was no jail/prison time involved, the cases were prosecuted against defendants and the penalties could be substantial.

When I was in the civil division, my clients were statutory. I represented the elected officials, the county agencies and their employees, so the client base was totally different than when I worked with Legal Aid.

Q. In 1993, you served in the Franklin County, Ohio, prosecutor’s office as Deputy Chief of Economic Crimes, where you were involved in prosecutor more serious crimes, from public corruption to RICO. Did this reflect a shift to being a serious prosecutor? Was there a different sense of purpose then, of being integral to going after criminals? You later worked for a number of other prosecutors offices, doing all manner of criminal prosecution. At what point did you decide that your purpose was to be a serious prosecutor? Did you view yourself as serving the public good, or did you just like to put those bad dudes away?

A. I’m not sure I would view the prosecution of more serious crimes as a shift to being a serious prosecutor – it was a shift to becoming a criminal prosecutor. As a civil prosecutor, I handled multi-million dollar lawsuits against county elected officials, agencies and employees. I handled wrongful death litigation, civil rights litigation and any number of other types of cases that would be considered serious. The focus is different. As a civil prosecutor I was defending people who were accused of some sort of civil breach. As a criminal prosecutor I am accusing someone of committing a crime. In both civil and criminal roles, the basic role is to look at your evidence, to talk to everyone involved – parties, witnesses, victims, investigators and try to figure out what really happened.

The role of any prosecutor – be it the elected, appointed or assistant, is to do justice. That is our mandate. I take that seriously. I “go after” criminals and “bad dudes” because they have violated the law. While I worked at the prosecutor’s offices in Franklin and Delaware and when I was at the Ohio Attorney General’s office I was often asked to handle prosecutions in other jurisdictions. The prosecutions were generally high profile and involved complicated fact patterns. I appreciate being involved in those types of cases because they are challenging and require me to utilize all my skills as a lawyer.

Behind every “bad dude” is a victim. I was at my high school reunion last month and someone came up to me just to tell me that he is an empathic person and cares about people. He represents defendants who claim to have brain injuries and he feels the criminal justice system “is not fair” to these people. They can’t help themselves and they shouldn’t be imprisoned. I told him I’m an empathic person and I care about people too. What would he suggest we do with a “brain injured” person who breaks into a home and rapes a 90-year-old woman? Frankly, I’m going to side with the 90-year-old woman.

I have sat and held the hand of an 8-year-old girl as she sobbed while telling me her grandfather raped her. I listened to a young man as he described his horror when his car was rear ended by a drunk driver (who’d been convicted of OVI numerous times) and his wife was killed as she threw herself over the carseat of their not quite one-year-old daughter to save her.

I reviewed the audio interview by an Arizona Detective of a father admitting to raping his very young daughter while they lived in Ohio because he thought the Arizona detective could not charge him with the crimes in Ohio. And then when he made bail and fled to Germany for 12 years, I worked with the feds to get him back. I’ve reviewed autopsy photos of babies and child porn videos involving babies – I can never get those images out of my mind.

My job is to do justice, protect the citizens of my state and to make sure that these defendants cannot harm another person. These victims are the people who make it “easier” for me to go after the bad dude. If I can help these victims get some semblance of their lives back and if I can help them become surviviors and thrive, then I am serving the public good. If I can get the bad dudes off the street so they don’t harm another person, then I am serving the public good.

Q. While you had plenty of experience in civil litigation, you eventually reached you first felony jury trial as prosecutor. How did that go? Were you the trial lawyer you hoped to be? Any major gaffes or moments of brilliance? What was the difference in trying a criminal case as opposed to civil? Looking back now, would you have done anything differently?

A. While I absolutely sucked in my first civil trial – if only the floor had opened and swallowed me up – my first criminal trial went well. I had a significant number of civil trials both at the state and federal levels, so I was well-versed in trial procedure. I was nervous – there is so much more at stake in a criminal trial for both the prosecution and defense. There are more rules in trying a criminal case – the defendant has a number of procedural safeguards that are not available in civil cases.

In criminal cases you have to be able to think on your feet and respond quickly to ever-shifting issues. Civil cases are more scripted out because in most civil cases you have deposed (or should have) every witness and you know exactly what they are going to say – and if they don’t follow the script, you have prior testimony with which to cross them. You do not have that in a criminal case.

Q. You were a felony staff trial prosecutor in Delaware County, when you were appointed Prosecuting Attorney in 2011. How did that happen? Did you want the big job at the time? You were elected to the position in 2012, so by then you demonstrated that you earned the position. What did it mean to hold the top job? The responsibility of locking human beings up, perhaps even taking their lives, is enormous. What was your perspective toward the awesome given prosecutors? Did you see yourself as avenging the victims of crime? Could you still remember those low income people you represented years before? Did you appreciate that you were holding a huge bludgeon?

A. Absolutely never thought I would be an elected anything….wasn’t my cup of tea. I have a tendency to speak my mind – without a lot of filters – which generally isn’t a great way to win friends and influence people. When I took the position as an assistant in Delaware County, I didn’t even live in the county.

In 2010, my mother-in-law was in need of more care and moved in with my husband and me. It took about a week to realize we needed a different home – no steps. We started looking and since both of us worked in Delaware we figured we would look for a home there. Our boss, David Yost, was running for State Auditor. At the time we purchased the home – a beautiful 1920 Craftsman home – we did not think Dave would be successful in his bid. A few months later, he was leading in the polls and on November 2, 2010 he was elected Auditor.

My husband decided to move to the Auditor’s office with Dave – though he was the appointed Prosecutor for 10 days – just ask him, he’ll tell you, he was Prosecutor first – and I had the most experience in the office. I went through the process and was appointed. I stood for election in 2012 and was fortunate enough to not have an opponent. I am on the ballot this year and again do not have an opponent.

There are many nights I don’t sleep – being the elected Prosecutor is a huge responsibility and there are hundreds of moving parts. It is not my job to avenge the victims of crime, but it is my job to make sure those who commit felony crimes in Delaware County are held responsible – to their victims, to the community. Sometimes that requires they work their way through the justice system and sometimes they take alternative routes. The Court has a program for offenders who are addicted or mentally ill and those challenges contributed to the crime – it’s called Intervention in Lieu of Conviction – if the defendant completes the terms of that program all charges are dismissed and the records can be sealed. I also have a Diversion program for first time felony offenders. Defendants are admitted to the program with the permission of the law enforcement officer, the victim and the assistant prosecutor on the case. They are supervised for a year, required to make restitution and to work community service hours. If they complete the program their charges are dismissed and records sealed. It is giving people a second chance and most folks on the program are successful.

As prosecutor you look at all the circumstances relating to the crime committed – while it may tug at my heart strings that a defendant had a hard life growing up, or is currently living in a difficult situation I really cannot take that into account in my charging decision. I have a responsibility to the citizens of Delaware County to hold defendants responsible for their actions – Lady Liberty wears a blindfold for a reason.

I do not look at defendants during court proceedings. As a mother of three sons, my heart breaks when I see a young man or woman walk into the courtroom wearing shackles – there but for the Grace of God….As prosecutors we have to focus on the facts, all the facts of a case and not let our innate biases influence our decisions. There are some words I never want to hear from a defense attorney or defendant – do not ever tell me that what I am doing is going to a) ruin your family’s life b) embarrass your mother, sister, wife, children etc., or c) make you lose your job. Why should I care if you didn’t? I always feel for the family of the defendant – they pay a huge price for the actions of a family member – but I did not cause the defendant to take the actions he /she did.

Q. Ohio has experienced some huge issues in the past few years, from the killing of Tamir Rice, which likely cost Cuyahoga County prosecutor Tim McGinty his job, to Michael Brelo’s acquittal for killing Timothy Russell and his passenger, Malissa Williams, both black. How does this affect what you do? Is racism, explicit or implicit, a concern in how police perform their function? Would you hesitate to prosecute a cop if you believed the evidence was there? What can a prosecutor do to change the perception of an untrustworthy system that favors the life of a police officer? Is the First Rule of Policing, make it home for dinner, real? Should it be? Are cop lives more valued than others?

A. Most certainly Tim McGinty lost his job because of the grand jury’s decision in the Tamir Rice shooting. I know Tim. I know that he would handle the situation the same way, even knowing he would lose the election, because he thought what he did was the right way to handle the situation. I don’t know Judge O’Donnell, but he had an extreme amount of pressure to convict Michael Brelo and he found the evidence insufficient. Tough call.

I think that racism is always a concern for law enforcement agencies. Most people have innate biases and prejudices that have to be overcome – sometimes this is easy and other times not so much. I’m going to give a shout out to the law enforcement agencies in Delaware County because all of the agencies have significant outreach programs that help address the perception of an untrustworthy system. Each public school district in Delaware County partners with law enforcement and there is a School Resource Officer (SRO) in every school. Unlike the Chicago statistics, there has not been an increase in arrests or expulsions as a result of the presence of the SROs. Many times the SROs have been there to assist students with the difficult realities of their lives – bullying, domestic violence, no food, and any other number of situations.

Westerville PD has a Cops and Kids day where local law enforcement and community groups get together to host a day of fun for the children – the chief in the dunk tank is a huge draw. Powell PD sponsors Candy by the Carload – a Halloween event, and Mystery Night. Delaware Police Department and the Delaware County Sheriff’s Office host Picnic with the Cops in August, and they sponsor basketball and baseball leagues for children who are in the less affluent areas of the city.

At least in Delaware County there is an effort to open the lines of communication, an effort to address the innate bias and prejudices that exist and to help people understand the system. As prosecutor, I participate in a lot of public events. Besides the events with law enforcement (yes, I was in the dunk tank), I speak to school age children, I attend events at the schools and in the community. I will speak to any group that contacts me even if there are only 2 to three people attending the event. When I speak to groups, I invite students to spend a day, a week, a month shadowing in my office. We have a booth at the fair and I write a monthly article for the local newspaper.

I just recently indicted the Sheriff of Sandusky County, Ohio – so, no I do not hesitate to prosecute law enforcement. If a police officer commits a crime he gets indicted. End of story. Generally, if the officer or deputy is someone that I or my staff have a lot of involvement with, I will have a Special Prosecutor appointed because the appearance of a conflict might make my decision to indict or not indict subject to question. I do not hesitate to request the appointment of a special prosecutor in those situations.

I have only had one lethal police shooting in Delaware County – white officer, black man stopped for a traffic violation. The encounter was captured on cruiser video, the suspect was under the influence of drugs and earlier in the evening had waved a gun around, telling people that he wasn’t going back to prison. When stopped, he had the gun on his lap and was waiting for the officer to come to the driver side window. Instead the officer went to the passenger side window, saw the gun, told the driver put his hands up, the driver picked up the gun, pointed it at the officer and the officer shot him. Had the officer gone to the driver’s window, the officer would have been dead. An outside agency investigated the shooting and the case was presented to grand jury. There was no indictment.

The first rule of any job should be to make it home for dinner. Period. If you are a truck driver, a teacher, a prosecutor, a police officer, a garbage man or if you work at the makeup counter at Macy’s, you should always get to go home to your family. I don’t think that the system favors the life of a police officer. I think that the system recognizes that police officers face dangers that non-police officers don’t. The Powell Police Department invited citizens to attend a training, where they were placed into scenarios where a suspect may have a gun – or may have a phone or some other object – and the participants were given the opportunity to shoot or not shoot – every single person pulled that trigger. Granted those folks do not have the training that police officers have but the scenario gives folks an idea of what law enforcement faces.

I teach the legal aspect of the Concealed Carry Class in Ohio. Two of my three sons are concealed carry permit holders – the third is military. I drill into them – if you are stopped by police – hands remain on the wheel, you say officer, let me interrupt, I am a concealed carry holder – I do (or do not) have my gun. And if they have their gun, tell the officer where it is. Not only is this the law but, more importantly, it lets the officer know what he/she is facing. Do not argue with a police officer – you know the officer has a gun, if he says lift your hands into the air – do it. Do not argue. It should be your goal to go home for dinner.

Q. You gave the approval to an assistant prosecuting attorney, Andrew King, to do what many other prosecutors are scared to death to allow. You let him write for Fault Lines. What makes a prosecutor afraid to allow their staff to express their views? Are these concerns real, or more CYA in the sense of why take a chance? Many prosecutors find themselves wishing their perspective was out there, in an honest and forthright discussion, but they refuse to let their people take the chance. Why did you? Is there any sound reason why prosecutors, as well as anyone else, shouldn’t be able to express their views? Does this add to transparency and help people to better understand the system? Would we all be better off if we appreciated all points of view, rather than echos of our own? Are you as proud of Andrew as I am?

A. Andrew does a great job with his posts – I read most of them and I am pleased to see the time and effort he puts into the analysis of every article he writes. Andrew is actually in our civil division, but is currently second chair on a criminal case with me – after this experience he may want to stay in the civil division.

I have a staff of 31 – 16 lawyers (15 ½ – one waiting for bar results), victim advocates and support staff. At any given time I can have anywhere from 1 to 6 legal and non-legal interns. I am responsible for what each of them say and do on any given day. I can also tell you that we do not always agree on how every case should be handled. Because my name is on the door, the final say is mine but I generally only overrule the decision of an assistant prosecutor if I believe they need to do more work on the case. If they have done their leg work and can give me a legitimate reason, other than we might not win at trial, why they case should be pleaded down or dismissed, I usually agree.

Can anyone think of anytime a prosecutor put their perspective out there in an honest and forthright way where he/she wasn’t vilified? Cuyahoga County Prosecutor McGinty? Baltimore City State’s Attorney Marilyn Mosby? The prosecutor in the Michael Brown case? And many others? As you mentioned being a prosecutor is an awesome responsibility – and it is a complex position. Most citizens do not understand how the criminal justice system works in their state– and once you add in the federal system it becomes even more confusing. There are so many intricacies to the system that we as prosecutors live with but are difficult to explain to the public.

While I cannot speak for any other prosecutor, I think that there are a few generalizations that apply to all of us. Prosecutors are subject to a different set of standards/rules/ethical concerns than other attorneys. We have restrictions that a defense attorney does not have. We are not supposed to discuss a case other than what is public record or procedure. If we do, and the case results in an acquittal, we can get sued. Try getting a home loan when you have a pending lawsuit for a couple of million dollars! We need to be able to pick an unbiased jury – we have to be very careful to not prejudice the jury pool.

I’m not sure that Prosecutors are afraid to allow their staffs to express their views – the problem arises when something an assistant says is attributed to the elected Prosecutor and deemed to be the position of the Office. The headline is not going to read, Assistant Prosecutor says ….it will read Prosecutor’s office says….and then the following article will – maybe – attribute the source.

And then something is taken out of context from the article and then, 50,000 shares later, the Prosecutor is trying to dig themselves out of a hole. I am responsible for what my assistants say and do – always. When an assistant gets into trouble – say gets a DUI, it makes headline news, and will be used against you in the next election. I cannot say, that isn’t what I said because someone from my staff made the statement. I have to explain that what was said is not the position of the office (me) and then I have to do something about it (discipline a staff member). Frankly, my assistants would much rather not talk to the media – and most of them do not have much free time to write articles – that’s one of the things that is so impressive about Andrew’s writings – I know how busy he is and I know how much time is invested in writing an article – I’m not sure he sleeps!