## Facts

- Judge John M. Stuard presided over the 2003 Trumbull County capital murder trial of Donna Roberts, in which the jury returned a guilty verdict and recommended a death sentence.
- After the penalty phase and before the court issued its sentencing entry, Judge Stuard had a series of ex parte communications with assistant prosecutor Christopher A. Becker about the contents of the court’s sentencing opinion.
- In the first contact, Judge Stuard asked Becker to prepare a draft sentencing opinion and provided Becker with the judge’s notes addressing aggravating circumstances and mitigating factors.
- Becker prepared a draft (described in the record as a lengthy draft, modeled in part on another capital case) and transmitted it to Judge Stuard outside the presence and knowledge of defense counsel.
- Judge Stuard reviewed Becker’s draft, marked corrections and changes, and returned it to Becker; Becker then made the requested revisions and provided a corrected version.
- Another assistant prosecutor, Mark A. Bailey, did not take part in the ex parte exchanges with the judge about the merits; his role was limited to reviewing the document for typographical or editorial errors at Becker’s request.
- Defense counsel did not learn of the prosecution’s role in drafting the sentencing opinion until the sentencing hearing, when it became apparent that the prosecution had prior access to the sentencing entry; defense counsel objected.
- In the related criminal appeal, the Ohio Supreme Court previously found the judge’s collaboration with the prosecution on the sentencing opinion improper and vacated the death sentence, remanding for resentencing.
- Disciplinary Counsel filed separate complaints: one against Judge Stuard and one against Becker and Bailey. The Board of Commissioners on Grievances and Discipline consolidated the matters, found misconduct by Stuard and Becker, found no disciplinable misconduct by Bailey, and recommended public reprimands for Stuard and Becker and dismissal as to Bailey.

## Issues

1. Did Judge Stuard violate the Ohio Code of Judicial Conduct by engaging in ex parte communications with a prosecutor and requesting that the prosecutor draft the court’s sentencing opinion in a pending capital case without notice to the defense?
2. Did Becker violate the Ohio Code of Professional Responsibility by engaging in ex parte communications with the judge and drafting the court’s sentencing opinion under those circumstances?
3. Did Bailey violate professional discipline rules by reviewing the draft sentencing opinion where his involvement was limited to proofreading and not merits discussions with the judge?
4. What sanctions were warranted for any proven violations?

## Decision

- The Supreme Court of Ohio adopted the board’s findings of fact and conclusions of law.
- The court held that Judge Stuard violated Canon 2 and Canon 3(B)(7) of the Code of Judicial Conduct by participating in ex parte communications and by obtaining one-sided assistance in drafting the sentencing opinion.
- The court held that Becker violated DR 1-102(A)(5) (conduct prejudicial to the administration of justice) and DR 7-110(B) (improper ex parte communication on the merits).
- The court dismissed the complaint against Bailey, agreeing that his limited proofreading/editing role did not amount to prohibited ex parte communication about the merits.
- The court imposed public reprimands on Judge Stuard and Becker and assessed costs.

## Legal Principles

- Judges may not initiate or participate in ex parte communications concerning a pending proceeding except within narrow, defined exceptions; communications about the content of a sentencing opinion fall outside those exceptions.
- A judge’s request that a prosecutor draft a sentencing opinion in a pending capital case—without notice to the defense—creates an appearance of partiality and violates canons requiring impartial conduct and limiting ex parte contacts.
- Lawyers may not communicate ex parte with a judge regarding the merits of a cause, and participation in one-sided drafting of a court’s dispositive sentencing entry can constitute conduct prejudicial to the administration of justice.
- In setting sanctions in judicial and attorney discipline matters, the court weighs the seriousness of the conduct (including the capital context) against mitigating factors such as lack of prior discipline, cooperation, and absence of selfish or dishonest motive.
- A prosecutor’s limited review for typographical or editorial errors, without merits discussion with the judge, may be insufficient to establish a disciplinary violation.

## Conclusion

The Supreme Court of Ohio publicly reprimanded Judge Stuard and assistant prosecutor Becker for ex parte collaboration that resulted in the prosecution drafting the court’s capital sentencing opinion without defense knowledge, while dismissing the disciplinary charges against Bailey because his involvement was confined to non-substantive proofreading and did not include improper merits communications with the judge.


Disciplinary Counsel v. Stuard, 901 N.E.2d 788 (2009)