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Tuesday, October 22, 2013

Von Clark Davis v. State of Ohio, Case no. 2011-0538
Butler County Court of Common Pleas

Christen Daniel v. Sean Daniel, Case no. 2012-2113
Third District Court of Appeals (Mercer County)

Disciplinary Counsel v. Joy Lenore Marshall, Case no. 2013-0924
Cuyahoga County

Death Penalty

Von Clark Davis v. State of Ohio, Case no. 2011-0538
Butler County Court of Common Pleas

This is the third time that the Ohio Supreme Court has considered the death sentence of Von Clark Davis for the 1983 murder of his estranged girlfriend, Suzette Butler, in Hamilton.

Davis shot Butler multiple times in the head in front of several witnesses on the street on December 12, 1983.

At his trial in 1984 in the Butler County Court of Common Pleas, Davis waived his right to a jury trial. Because he had previously been convicted of second degree murder in 1971, he was charged in this case with the death penalty specification that this was a repeat murder. He was convicted by a three-judge panel of aggravated murder and sentenced by the judges to death. He appealed his conviction and sentence to the Twelfth District Court of Appeals, which upheld the verdict and sentence. The Ohio Supreme Court on appeal affirmed Davis’ conviction but reversed his death sentence on the grounds that the three-judge panel had improperly considered aggravating circumstances not permitted by statute during the penalty phase of the trial. The Supreme Court remanded the case to the Butler County Court of Common Pleas, and the same three-judge panel conducted a new sentencing hearing and again sentenced Davis to death. This sentence was upheld by the Twelfth District and the Ohio Supreme Court.

Later, in a separate habeas corpus action (which alleges unlawful imprisonment) initiated in federal court, the U.S. Sixth Circuit Court of Appeals found that the trial court’s refusal to consider the presentation of additional mitigating evidence at the second sentencing hearing was in error and ordered that the case be remanded again for a third sentencing hearing. The original three judges on the case were unavailable by this time, and so three new judges were assigned for the new sentencing hearing. On September 10, 2009, the trial court again imposed a sentence of death on Davis, and this sentence was affirmed by the Twelfth District Court of Appeals.

Davis has appealed this new sentencing to the Ohio Supreme Court. His attorneys make five arguments for why the court should vacate his death sentence and impose a life sentence. In the alternative, they ask that the case be sent back to the trial court for a new sentencing hearing with a jury.

Among the arguments that Davis’s attorneys make:

Arguing for the state, attorneys from the Butler County Prosecutor’s Office respond that:

Representing Von Clark Davis: John P. Parker, 216.881.0900

Representing the State of Ohio: Michael A. Oster, Butler County Prosecutor’s Office, 513.887.3474

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Do Marital Assets Include Military Retirement Benefits That May Be Paid After a Divorce?

Christen Daniel v. Sean Daniel, Case no. 2012-2113
Third District Court of Appeals (Mercer County)

ISSUE: Are military retirement benefits that haven’t yet vested but that were earned during a marriage considered marital assets subject to division in a divorce proceeding?

Christen and Sean Daniel married in January 1995. Sean was on active duty in the military, and they lived in Texas. After Sean was discharged, they moved to St. Mary’s, Ohio, and he joined the Ohio National Guard. The couple had three children. In 2004, they couple separated and Christen moved to Dublin, Ohio, with the kids to attend veterinary school. Sean moved to a separate place in Dublin shortly thereafter to be near his kids.

Sean was redeployed to Texas in July 2005, and a few months later Sean and Christen got back together. After his military assignment ended, he returned to Dublin, living with Christen and the children. However, in early 2008, the two separated and filed for divorce, and Christen moved to Mercer County for a job. They resolved most matters related to the divorce, but Sean’s potential pension from the military if he reached 20 years of service was a contested issue.

During their marriage, Sean had earned 16 years of credit for retirement benefits with the military. Prior to the divorce hearing, Sean had also reenlisted for 6 more years of service.

The magistrate in their divorce ruled, and the trial court affirmed, that there were no retirement benefits to divide because Sean’s military retirement benefits hadn’t yet vested. The divorce was finalized in March 2011.

Christen appealed three issues, including the trial court’s decision regarding Sean’s expected retirement benefits, to the Third District Court of Appeals. In its 2-1 decision, the appeals court noted that Ohio courts differ on whether an unvested military pension may be considered in the equitable division of property during a divorce. The appeals court found that the record offered little information about the retirement benefits, including how they would be calculated. The court ruled that, given the limited record, the trial court didn’t abuse its discretion when it didn’t divide the unvested pension between Christen and Sean. Christen appealed to the Ohio Supreme Court.

Christen’s attorneys argue that the trial court’s decision was an abuse of discretion because it was unreasonable, arbitrary, and unconscionable. Citing the Ohio Supreme Court’s decision in Holcomb v. Holcomb (1989), in which the court explained that vested retirement benefits accrued during a marriage are marital assets, Christen’s attorneys assert that the same logic applies to unvested benefits. Both are compensation earned during the marriage but deferred until later, they contend.

Her attorneys also assert that the Fourth District Court of Appeals in Lemon v. Lemon (1988) ruled that a trial court has the ability to divide unvested benefits by considering the time left before the benefits vest, the length of the marriage, and each spouse’s contribution to the retirement plan.

A simple formula taking into account Sean’s years of military service and the length of the marriage doesn’t require any speculation by the court, Christen’s attorneys argue. They state that the Supreme Court suggested such a formula in Hoyt v. Hoyt (1990).

They conclude that a trial court can and should issue an order that plans for the division of unvested retirement benefits following a divorce. If the benefits never vest, then neither party receives any money. However, in the current case and in other similar cases, if a retirement is paid out under the Third District’s ruling, one spouse receives all the benefits, including the portion earned during the marriage, and the other receives nothing – an inequitable result, they argue.

Attorneys for Sean Daniel did not file a brief in this case, so they will not be permitted to present an oral argument in this matter.

Representing Christen Daniel: James Tesno, 419.586.6481

Representing Sean Daniel: Jeffrey Squire, 419.394.7441

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Attorney Discipline

Disciplinary Counsel v. Joy Lenore Marshall, Case no. 2013-0924
Cuyahoga County

On recommendation from the Board of Commissioners on Grievances & Discipline, the Supreme Court of Ohio will consider a two-year license suspension with one year stayed on conditions for attorney Joy Lenore Marshall, who is charged with multiple violations of the Ohio Code of Professional Responsibility and the Rules of Professional Conduct.

Specifically, Marshall was charged with conduct involving dishonesty, fraud, deceit, or misrepresentation, conduct prejudicial to the administration of justice, and conduct adversely reflecting on the lawyer’s fitness to practice law. She also was charged with false or reckless statements concerning the qualifications or integrity of a judicial officer. The panel of commissioners who considered Marshall’s case concluded there is clear and convincing evidence that Marshall committed these offenses, while clearing her of two other charges.

The complaint against Marshall arose from her acceptance of a case in February 2006 after Bessie Tyus of Richmond Heights, dismissed her previous attorneys who originally filed suit against the corporation owning and operating the Grande Point Health Community. Tyus was a resident at Grande Pointe and she allegedly suffered personal injury while a resident.

Tyus’s former attorneys represented Tyus in her case against the nursing home from 2004 to 2006. Their original fee agreement stated they were entitled to be paid 40 percent of any recovery if a complaint was filed. The case was assigned to Judge Nancy Russo of the Cuyahoga County Court of Common Pleas.

The case for wrongdoing by Marshall began with a fee dispute with Tyus’s former counsel. The case includes Marshall’s legal attempts to keep the court from considering former counsel’s claim to settlement fees, including appealing the local court’s rulings to the Eighth District Court of Appeals and the Supreme Court multiple times. Judge Russo at one point moved for sanctions against Marshall based on an allegation of frivolous actions.

Rather than follow the judge’s order not to disburse more than $85,000 of the settlement’s $150,000 proceeds to her client pending resolution of the attorney fee issue, Marshall went on to pay her client more than $98,000 and herself more than $50,000.

In numerous subsequent hearings Marshall was found in contempt of court and jailed multiple times, for violating several court orders, failing to provide documentation of her lawyer trust (IOLTA) account for court inspection, and failing to tell Judge Russo what happened to the money she awarded herself in fees. Former counsel, too, filed civil suit against Marshall alleging fraud, conversion/theft, embezzlement, and tortuous interference with business.

In January 2008, Judge Russo recused herself from the case, citing a referral to an outside investigative authority regarding the missing funds and the possibility that she may be called as a witness. Marshall later alleged that Judge Russo allowed Marshall’s race and gender to affect her partiality. While admitting later that she did not research the racial makeup of the former counsel’s law firms, Marshall alleged preferential treatment of them by Judge Russo because of their gender and race. Further, she was unable to cite specific actions by the judge that showed preferential treatment, stating rather that the sole basis for her allegation was that the judge ruled against her on the fee division issue and jailed her for contempt.

The Office of Disciplinary Counsel, which prosecuted the charges against Marshall before the board, found her bias allegations most troubling. Marshall acknowledged she based her allegation of racial and general bias of the judge, as well as her claim of disparate treatment by the judge because she believed former counsel’s law firms were composed of white male members. The Supreme Court has set forth an objective standard for attorney misconduct in Disciplinary Counsel v. Gardner (2003), in which the court stated that to survive scrutiny in a disciplinary case, statements an attorney makes about the integrity of a judicial officer must be supported by reasonable facts.

Disciplinary Counsel further argues that Marshall engaged in a pattern of misconduct, committed multiple offenses, refused to acknowledge the wrongful nature of her conduct, acted with a dishonest and selfish motive, failed to make restitution, harmed the courts by filing a “plethora of litigation,” harmed former counsel by not paying their fees, and harmed her client by “creating an impermissible conflict of interest and charging improperly for expenses.”

Marshall has filed objections to the board’s findings and recommendations. She claims she did not violate professional rules and that the sanctions are too severe. Should the court find that she violated her duties, she said, “mitigating circumstances dictate a public reprimand.”

The board’s recommended sanction include conditions that she commit no further misconduct and pay any settlement funds to former counsel still to be ordered by the Cuyahoga County Court of Common Pleas.

Joy Lenore Marshall, pro se: 614.220.0299

Representing the Office of Disciplinary Counsel: Jonathan Coughlan, 614.461.0256

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.