State of the JudiciaryRetired Chief Justice Maureen O'Connor
September 10, 2020
(Remarks delivered during the Ohio Judicial Conference Annual Meeting on September 10, 2020, to a virtual audience)
Well, thank you. Thank you, Judge Powell. I want to thank you for your service.
Good morning, everybody.
I’m honored to speak with you today.
This is my 10th State of the Judiciary address.
And all of them have been delivered, of course, at the Ohio Judicial Conference annual meeting.
I want to begin by congratulating the new officers of the Ohio Judicial Conference that I swore in a few minutes ago.
It has been a pleasure for me to work with you as a group. And I look forward to our continuing involvement through the judicial conference.
Your vision, your contribution, your discussion, and your perspective are always welcome and a great a great resource, I think, for the Supreme Court.
Praise is warranted for the Judicial Conference members and staff, as well as Judicial College of the Supreme Court for putting together a very fine program.
If this morning’s program was any indication, I really enjoyed the professor and as always, very insightful. And this afternoon should be no exception.
Recognition goes to the Ohio State Bar Association for serving as the remote host of the programs this year.
I also want to recognize my colleagues who are online like the rest of you.
Justices Kennedy, French, Fischer, Justice DeWine, Mike Donnelly and Justice Melody Stewart.
Normally, they would be standing in front of you, but maybe they can stand in place like the officers and the chairs.
This forum is all about sharing ideas and working to advance the judiciary of our state.
The theme of this year’s conference, Breaking Barriers, a reference to the one hundredth anniversary of the ratification of the 19th Amendment, is quite fitting.
But of course, we all know there continue to be barriers in our society.
One of the most obvious presented itself when Ohio was hit with the pandemic over six months ago.
The need to follow the Department of Health guidelines presented a barrier to business as usual within our court system.
Closing courts was not an option.
If ever there was an essential activity in Ohio courts and the work we do rises to high on that list.
Definitely, but below first responders and medical professionals and all of the many, many service workers who don’t have the option or the luxury of working from home. Like all of us do.
Technology has made us the judiciary, a pretty fortunate group of people during this pandemic.
In the face of Covid-19, what were judges to do?
What did we do?
And what do we continue to do?
To answer that question, I will outline for you today the commitment of the Ohio judiciary to not only deal with this pandemic, but to go even further to improve the administration of justice in our state.
We have a health crisis to deal with and we do not know when it will end.
But we also have a long overdue mission separate from that crisis.
That mission is to seek out new and higher levels of the fair administration of justice and access to justice for all who come before our courts.
We must accomplish this mission by creating new tools and new ways of sharing information.
We will commit ourselves to examining the quality of our work and we will we will make our work more visible to the public and improve their confidence in what we do.
Before I explain further, I want to look back at the past year and in particular the past six months.
The public health mandates in our state have been a great but necessary burden.
I’m confident that the court of public opinion will render a verdict in favor of our courts when this health crisis draws to a close.
That’s because when the pandemic hit, our first order of business was to act quickly, to act positively, and to act wisely.
The response of judges in Ohio was remarkable.
You identified essential matters upon which to focus and meet the needs of those who came before your courts. v
You released inmates from jail to lessen the chance of the virus spreading.
You set up hearings with remote participation and adhered to masks and sanitizing and social distancing requirements. And you continue to do so.
You held proceedings in makeshift courtrooms.
Many courts constructed plexiglass shields and configured new ways for participants to enter and exit hearing rooms.
You communicated your efforts locally.
This deadly virus forced all of us to adapt, and we did.
Ohio, of course, remained open.
Circumstances forced us to issue tolling orders and jury trials were delayed.
But those interruptions were an effort to keep people safe while we followed through on our obligation to deliver justice fairly.
Ohio judges went beyond the call to service and the public took notice of our labors.
The news media spotlight has been on us constantly since March, and the coverage has been overall quite favorable.
The media and the public came to understand that the courts were innovating on their behalf.
It’s safe to say that many judges and staff have even surprised themselves on how well they’ve adjusted to this new reality.
When I made $6 million from our budget available and marked for judges to purchase remote equipment for their courtrooms, the courts in 87 out of 88 counties responded immediately.
Applications flew in to the Supreme Court, where our fiscal staff worked overtime to validate and approve these technology grants.
Our work these past six months has shown that judges in Ohio are focused on administering justice.
You are doing so even when faced with obstacles that could not have been predicted.
Well, actually, that’s not true.
We do have one Nostradamus on our staff, and that’s Milt Nuzum, the former Washington County judge who is director of the judicial services at the Ohio Supreme Court.
Milt came to me last year with an idea about publishing a totally revised debt and public health guide for courts.
Milt wanted me and all of you to be ready for a health emergency. In fact, he even used the word pandemic.
I said, okay.
On my mind at the time was the training and exposure that I had when I was director of the Department of Public Safety for four years before I joined the court.
I had participated in numerous tabletop exercises and trainings dealing with the spread of a fast moving, highly contagious virus for which there was no vaccine.
The visuals presented left a lasting impression upon me.
The short time it took to spread around the world and the predictions of infections and mortalities were sobering.
So fast forward to 2020 and the Covid-19 pandemic.
And now it is no tabletop exercise.
It is a reality.
Court staff worked on the Public Health Guide for courts for several months and we sent it to you in January.
The pandemic ensued a few weeks later.
Thank you, Milt, for your leadership on the guide’s creation.
That deliverable had a positive effect.
Although we did not know a year ago when we started on the project, it helped us get ready for the pandemic by providing specific details on the waste.
Courts could deal with the health disaster and the emergencies in general.
There are so many judges in our state who stepped up to the challenge of Covid-19 and kept their courts in session and kept justice flowing.
There’s simply not enough time here today to mention all of them.
I will point out a few, though, while letting you know that I appreciate every effort from every judge during this Covid pandemic.
Licking County Municipal Court Judge David Stansbury reports that jury trials have resumed there.
Both municipal courts have installed physical barriers between every juror seat, between the rows of seats in between seats and each counsel table.
There’re clear hanging barriers in front of his bench and between his seat and the witness stand in between the witness stand in the jury box.
Many courts have taken similar measures.
And I must say, I’ve been impressed with the speed at which these changes have occurred and the level of workmanship many courts are finding.
That remote video and audio equipment paid for by the tech grand is not only essential during this pandemic, but it will be used long after the pandemic is behind us ? as it should be.
We’ve identified new efficiencies and ease of operation within the courts because of the use of technology.
Franklin County Municipal Court is using its equipment to expand video remote language services.
They will now include American Sign Language interpreters to accommodate requests made under the Americans with Disabilities Act.
That is a great idea and an enduring one.
Our Supreme Court roster of interpreters covers 29 languages today and it will grow.
Remote technology is a great way to provide this service when an in-person session is not possible.
Lakewood Municipal Court Judge Pat Carroll and Cuyahoga County Domestic Relations Judge Diane Palos stepped up when the pandemic hit.
They volunteered to teach courses at the Judicial College webinars about creative solutions to keep the courts open during this crisis.
As the pandemic continues, several courts are now live streaming.
Barberton Municipal Court, Ottawa County Common Pleas, Akron Municipal Court, Common Pleas Court General Division of Cuyahoga County, The Tenth District Court of Appeals, to name a few.
The Barberton court, in fact, is making use of local public access TV channels as well.
This is a low cost, effective way to keep the public informed, to keep our courts open.
Another tool for transparency that has come about because of the pandemic, but will be with us forever going forward, is a new Ohio virtual courtroom directory.
This project allows courts who are live streaming their proceedings to have that info and schedule on this directory that is housed at the Supreme Court.
The public will, for example, be able to look at the directory.
They’ll be able to see when the Tenth District Court of Appeals is holding oral arguments and tune into that argument in real time.
Every court that has live streaming will submit that information to the Supreme Court, will put it on the directory, and that can be available.
We, of course, have done this at the Supreme Court since 2004. But now local courts can do this live streaming.
This type of project is a success in Michigan, and I believe that it will be a success here in Ohio.
Think of how it will handle your community’s knowledge of the court in action.
The people who put you on the bench will be able to see you in action.
That is an important feature for the judges to be able to access.
Please explore how your court can live stream and join this directory.
And if you go to the website of the Garfield Municipal Garfield Heights Municipal Court, you’re greeted by the image and the soft voice of an avatar.
She is a virtual assistant who asked you to click on your questions.
She then looks you in the eye and produces an answer.
The technology solutions in Ohio courts, especially those in the past six months, are the very definition of innovation.
A court’s ability to provide proper access to justice while employing these technologies is something new.
Accordingly, guidance is necessary.
We have to establish guidance for the courts.
The Supreme Court just authorized to be out for public comment.
Recommended changes to Ohio rules of criminal procedure 11 and 41 that make clear, if adopted, that defendants and affiants may appear electronically for plea hearings and search warrant applications.
Whenever rules need to be updated to make clear the new role of technology and its use in the courts, our Court will act.
Another leap forward is that Ohio will join a pilot project by the National Center for State Courts.
The project will explore public perceptions of courts and how they use remote technologies by tapping into the collective experiences of courts across America.
We will be able to determine when we in Ohio are venturing down the right path and, just as importantly, when we’re not.
Four of our courts will be part of the NCSA project: the Cuyahoga County Domestic Relations Court. Coshocton County Juvenile and Probate Court, Fairfield County Juvenile and Probate, and Montgomery County Juvenile Court.
I thank these courts for taking part and all of us await the results.
Another project that the pandemic has spawned is the creation of the iCourt Task Force.
I’m charging the task force with examining how courts have used technology during the pandemic.
What have the experiences been?
Survey judges and attorneys about their experience with remote appearances and trials identified best practices and technology.
What are the barriers and the challenges to the use of technology and more?
What do we do going forward?
I’ve asked Justice Pat DeWine to be the Supreme Court liaison to this task force, and invitations are out to all of the stakeholders to be part of this project.
Stay tuned, because I think the report that would be generated by this task force will be a guide for us in the future on the use of technology.
Now, switching gears a bit, and since it’s election season, I want to tell you that I’ve noticed a record high turnout among judges on judicial votes count website.
I’m talking about judges submitting their biographies and answering the questions.
For those of you running for office who haven’t done so, you really should.
JudicialVotesCount.org is experiencing a record number of inquiries by the public and the media, and that interest will only go higher for the next two months before the election.
Innovation in Ohio, of course, hasn’t been limited to measures taken to deal with the pandemic.
Advances in solving problems for Ohioans in the name of justice continues to grow.
Judge Laura Smith and the judges in Fairfield County have brought together their community justice partners.
They have begun training on how to intervene with spousal batters and effectively supervise them more and more courts and the judges are using phone apps to get applicants to court on time.
It is a phenomenal tool across all jurisdictions of courts to remind people of their court appointments and to appear in court.
And the increase in peer appearances has skyrocketed.
The latest is Ashtabula County Juvenile Court Judge Albert Camplese to use this technology.
The Cuyahoga County Court of Common Pleas has partnered with a child advocacy center to train every judge and magistrate in the county about how trauma affects those who come before the court.
They’re learning how judicial officers can improve access and outcomes for them and for their community.
Thank you, judges, for these efforts.
And thanks to all of you whom, due the constraints of time, I do not have the ability to acknowledge.
We have forged innovation ourselves and the Supreme Court this past year.
We’ve established new rules governing bail, bond and pretrial release in criminal cases today, or how courts must use the least restrictive bond conditions and the lowest amount of monetary bail to secure a defendant’s court appearance going forward.
Bond schedules are only to be used for securing release when court is not in session.
We also recently appointed a task force on conviction, integrity. Integrity and convictions are two words that must always be spoken in tandem.
The task force is charged with analyzing and recommending meaningful advancements in procedures regarding integrity of convictions and the postconviction review process.
All interested parties have been invited to participate and contribute to the success of the report.
I’m pleased to say that Justice Mike Donnelly is the Supreme Court liaison and Judge Gene Zmuda is the chair of the task force.
Society’s problems are laid at our doorstep and rightfully so.
It’s hard and sometimes the work we do can seem demoralizing.
Sometimes the cases that come before us make us question if there’s even a solution for one case, let alone the thousands that are pending in our dockets.
And what’s the use?
What’s the purpose?
We may ask ourselves: am I helping my fellow man?
When those times present themselves as judges, we must remember: If not us, who?
Who is there to sit on the bench and try to mete out justice, if not us?
You’ve been placed in a unique role in society.
A historic role that has its origins in every ancient civilization that has ever existed.
That should inspire us.
That should inspire awe.
How and why you rose to the bench is not important.
But what is important is how you do your job, how you try to deal with society’s problems and how you tackle cases not as a case, but as a problem that has greatly and usually negatively impacted the lives of those who were before you.
How are you going to solve that problem for people who cannot solve it for themselves?
That’s what we do.
And I believe that God wouldn’t have placed you on the bench if she hadn’t had confidence that you’re the ones that can handle the job.
Essential to doing that job of a judge is to value the goal of equal and impartial justice under the law.
In America, we have risen to meet that goal countless times.
We have failed many times as well.
Our obligation is to strive closer to that goal, each hour of every day in accordance with the constitutions of our state and our nation.
Protests and civil unrest this past spring and summer were spawned by the death of George Floyd, an unarmed, handcuffed black man by the police in Minneapolis.
But the resentment of the protesters towards our governmental systems, including the judiciary, is not the result of that one incident alone.
The history of our nation is one of immense contradictions.
We have Founders who have envisioned equality for all while owning slaves.
Laws and court decisions discriminated against fellow Americans on the basis of their race and their gender barriers enacted by lawmakers and upheld in courts restricted access to capital and certain neighborhoods based on skin color.
The list of injustices is long, and the effects have reached from one century into another, into another.
The inequalities linger and they persist.
But our founders embedded in their hallowed documents the instruments of change.
Change for the better, is a hallmark of our system of government.
But it requires steadfastness.
It requires protest.
The suffragists that we honor this year on the 100th anniversary of the Women’s Right to vote worked on this project across several generations.
And for more than 70 years, they took their protest to the streets.
Countless times, suffragists were the very first people to demonstrate the White House.
They held silent vigils with banners and signs, all the while dressed in white.
It drove Woodrow Wilson crazy.
They were spat upon.
They were harassed.
They were threatened not just by men, but they were undaunted.
And for that, I am grateful.
Change for the better is possible.
As leaders of the judiciary, we are duty bound to continue finding new ways to make progress in the administration of justice.
Doing so requires tools.
We have a lot of tools already.
We have our research capabilities.
We have bench cards, the Judicial College, the Conference, etc.
We have our bar associations, judicial organizations, and we have each other.
But when it comes to fairness from the bench and sentencing, we still lack the number one tool employed by every successful business in this country.
That tool is advanced metrics measurements.
For us, this means metrics on sentencing and the outcome of court proceedings.
We gather reams of judicial data.
The statistical summaries from the Supreme Court are voluminous, but we don’t go nearly far enough to know how fair and equitable we are or can be when we make the most important decisions facing us as judges.
Our lack of knowledge about sentencing reverberates in the public as lack of confidence in you and me and our judicial system.
Twenty-one years ago, then-Chief Justice Tom Moyer, commissioned a report on racial fairness that called for comprehensive statewide sentencing database.
Nearly every state has a report, a commission, a blue-ribbon panel seeking the same thing to no avail. It’s difficult to do.
That’s the main excuse in our digital age.
Manufacturers can track thousands, even millions of parts in a day and ship them directly into the hands of a specific worker or customer.
Once installed, they can follow the quality of these components and the experiences of their customers.
There are many other examples like that in the business world.
So, yes, establishing a sentencing database may be hard, but it is not impossible.
And more importantly, it is necessary.
Here’s what we need to know:
What sentence did courts impose for each felony offender and what was the record of the offender?
What was the race of the offender?
How many people were sentenced to a specific felony offense this year?
And at what level, what number were placed in diversion programs?
How many were put on court-ordered community control?
And so many more data points.
Our goal is to answer these questions and many more by bringing together the data of the courts and those of law enforcement, prosecutors, probation officers, correction departments, etc.v
This information exists, but it’s not collected and aggregated.
And that’s the shortcoming.
It’s inside more than 300 courts in 88 county silos and agencies and departments around the state.
This information that this is the information that we need in order to be able to make sense and to report what is happening in our courts.
You as a judge are being forced to fly blind.
And that’s not fair to you.
It’s important that our judges sentence with consistency.
Judges and lawyers should have tools to know what the data shows regarding sentencing for each offense statewide.
Given the cost of incarceration, both monetary and in human terms, consistency and predictability need to be measured.
It is a public that is demanding more equality in the judicial system and law enforcement and more transparency.
And rightfully so.
For the public to be informed and for truth to win out over rumor and fiction, they must be able to see justice for all and understand how it is measured.
This is the path to faith in our system, and it is the path that we must pursue.
Metrics and transparency are on the side of the public and it’s on our side.
We simply have to act.
The Ohio Criminal Sentencing Commission and a group of dedicated judges and court personnel have worked to make aggregation of sentencing data a reality.
The first deliverable is proposed uniform sentencing entries.
This will set the stage for data gathering and analysis by academia.
The University of Cincinnati, Ohio State, and Case Western Reserve are already involved.
Initially, a pilot program of one or more counties will be created.
The pilot will allow for the development and the identification of what works and what does not.
And, as that pilot moves forward, we will increase the number of counties participating and we will be asking for your help.
Your reward will be an increase in the public’s trust in the judiciary and a fantastic tool to help you every day.
Judges want to be fair.
We strive to be fair.
This database will give us a foundation for fairness and objectivity that will change how we do our jobs.
And it will be a change for the better.
Four years ago, we set out to tie together data and criminal information across all kinds of political and organizational borders.
In eight states, this included all the large and small bureaus and agencies and government branches in all these states with different laws and practices.
We tied them all together with academics and the federal health officials and the medical professionals.
We broke down barriers, just as the theme of this conference prescribes.
We called it the Regional Judicial Opioid Initiative, RJOI.
It’s an eight-state consortium and it works.
That task had never been undertaken before.
But in Ohio, we led the effort.
And as I said, it’s a success.
We did it.
Other regions around the country have copied our initiative and there’s a national effort as well.
We can apply the same can-do attitude to this sentencing project.
Actually, we must do so.
How can we explain to our citizens that we knew this database effort was critical to justice and our state, but we didn’t do it?
What do we say?
We failed because we didn’t get around to it or because it was too hard?
That’s not the spirit of innovation that you as judges have so ably demonstrated for years, and particularly the past six months during this pandemic.
I believe that we can do this.
I believe that we will do it.
So once again, I want to thank the OSBA for hosting us and I want to extend best wishes to the OJC and hope that you all have a successful conference.
I’m going to close by recognizing two judges who have lost their lives to Covid-19.
Two of our judges, Franklin County Municipal Court Judge William Pollitt, died as a result of Covid-19, quite unexpectedly, and it was a shock.
And retired Judge Joseph Donofrio from the Seventh District Court of Appeals also passed away from Covid-19.
Our condolences to their families and to their colleagues and the people who knew them.
They were both wonderful gentlemen.
I also want to close with a statement.
Well, just a preview.
Paul Pfeifer asked me last night about 5:30, I think I got the email or the text.
Can we do something about CLE requirements this year for judges in light of the pandemic, in light of the inability for some judges maybe to acquire all of their CLE credits for those reporting this year?
I will tell you that there wasn’t enough time between 5:30 last night and this morning to investigate it thoroughly.
But I mentioned it to my colleagues.
We will be looking at it.
I can’t promise what direction it will go.
I know that the Commission for Continuing Legal Education is meeting on the 18th of this month.
I’ve asked them to look at it.
So, stay tuned.
We will try and come up with something, whether it’s extending the deadlines for reporting, whether it’s adjusting the number of credits, etc.
We will not ignore this.
We have been looking at it, thinking about it, and we will continue to do so.
So, with that, I’m going to close.
I wish you, again, a successful conference.
I want to thank each and every one of you.
Please stay well.
Wear your masks.
And God bless you all.