Tuesday, February 7, 2017
State of Ohio v. Donna M. Roberts, Case no. 2014-0989
Trumbull County Common Pleas Court
Ohio Patrolmen’s Benevolent Association and David Hill v. City of Findlay, Case no. 2015-1581
Eighty District Court of Appeals (Cuyahoga County)
In re: Application of Michael A. Callam, Case no. 2016-1240
Board of Commissioners on Character and Fitness
Death Penalty
State of Ohio v. Donna M. Roberts, Case no. 2014-0989
Trumbull County Common Pleas Court
In October 2013, the Ohio Supreme Court sent the case of Donna Roberts, convicted for the 2001 planned murder of her ex-husband in Trumbull County, back to the trial court for resentencing. It was the second time the Supreme Court had vacated Roberts’ death sentence. The trial court resentenced Roberts and again imposed the death penalty. For a third time, Roberts appeals the death sentence to the Court.
Roberts’ Husband Is Killed
Though divorced, Roberts and Robert Fingerhut lived together in Warren. Fingerhut owned two life insurance policies, with a total benefit of $550,000 and naming Roberts as the sole beneficiary.
While living with Fingerhut, Roberts had an affair with Nathaniel Jackson, who was sent to prison in 2001. In December of that year, Jackson was released and spent the next few days with Roberts. On Dec. 11, Fingerhut was shot to death at his home.
Jackson was convicted of murdering Fingerhut and was sentenced to death. Roberts’ charges were based on her acting in complicity with Jackson to commit the murder, and she was found guilty of aggravated murder, aggravated burglary, and aggravated robbery. The trial court sentenced her to death in June 2003. She is the only woman on death row in Ohio.
Supreme Court Returns Case to Trial Court Twice
In 2006, in Roberts’ first direct appeal of her case, the Supreme Court upheld her convictions, but found the trial judge engaged in improper ex parte communications with the prosecutor by letting the prosecutor help draft the sentencing opinion. The Court set aside Roberts’ death sentence and returned the case to the trial court for resentencing, this time without the prosecutor’s participation. The Supreme Court directed the trial court to allow a statement from Roberts before sentencing; to evaluate the evidence and weigh the aggravating circumstances against any relevant mitigating factors; to decide again whether the death penalty was appropriate; and to write a new sentencing opinion.
After hearing statements from Roberts on remand, the trial court resentenced her to death in October 2007. Roberts appealed, and the Supreme Court, in its second remand of the case in 2013, determined that the trial court hadn’t considered potentially mitigating information Roberts provided at her first resentencing hearing. The Court ordered the trial court to consider the entire record, including Roberts’ allocution made during the resentencing hearing, when deciding whether the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt.
“Roberts is not entitled to present any further evidence on remand,” the Court’s opinion stated. “Moreover, because Roberts has been given her opportunity to make allocution pursuant to Crim.R. 32, she is not entitled to make another one.”
The Court also stated that the new sentencing opinion had to reflect compliance with the instructions.
Trumbull County Court Sentences Roberts to Death Again in 2014
Before the Court released its 2013 opinion, the judge who had presided during Roberts’ trial retired and died a little more than a month later. In April 2014, the new judge reviewed Roberts’ case and concluded that death was the appropriate penalty. Roberts appealed the ruling to the Ohio Supreme Court, which considers direct appeals in death-penalty cases.
Roberts Suggests “Bare Transcript” Not Enough for New Judge to Rule
Roberts notes that the new judge didn’t conduct her trial, wasn’t present for the penalty phase of her proceeding, and didn’t hear her allocution. The new judge was instructed to correct errors made in the original trial without having the benefit of actually hearing any part of the proceedings, including her allocution, she argues.
“Clearly, the key aspect of the allocution is the actual words spoken by the defendant,” her brief to the Court stated. “The [Supreme Court’s] order required the trial court to assess Roberts’ credibility based on the bare transcript alone. As in all cases, weight given to witness statements are based upon that witness[‘]s demeanor, sincerity, facial expressions, emotion, body language, tone of voice and the list goes on. This is impossible from the reading of a transcript alone.”
Citing Lockett v. Ohio, a 1978 U.S. Supreme Court decision, Roberts states that a death sentence can’t be upheld if the sentencing court can’t consider relevant evidence that might suggest death is inappropriate. Without hearing her make her statements, the new judge couldn’t properly consider the allocution as mitigating evidence, Roberts maintains, asking that the Court instead impose a life sentence.
Prosecutor Maintains New Judge Took Proper Steps for Resentencing
The Trumbull County Prosecutor’s Office points to a court rule for criminal cases stating that a judge designated by an appropriate authority may oversee a case if the original judge is unable to perform the duty after a defendant has been found guilty of an offense. The prosecutor notes that the Supreme Court knew the original judge had died and wouldn’t be able to preside over the resentencing when the 2013 opinion was issued.
“[The Supreme] Court in Roberts II left on the table the option of a death sentence for the successor judge when it ordered him to reweigh the aggravating circumstances and the mitigating factors,” the prosecutor’s brief explained. “If this Court sought to preclude the imposition of the death penalty because a successor judge would not hear [Roberts] personally plead her case, it would not have given the trial court directions to reweigh the facts and evidence and to consider her 2007 allocution.”
The new judge’s assessment on remand showed “careful attention to any potential mitigating factors Roberts presented in 2007,” the prosecutor asserts, noting that Roberts never expressed remorse or asked for leniency in her statements. The prosecutor concludes that Roberts received a “full and fair review” by the new judge.
Parties Disagree About Weighing of Mitigating Factors
Roberts takes issue with a statement in the new judge’s resentencing opinion that the mitigating factors “do not even draw the [c]ourt’s attention away from the aggravating circumstances.” She contends this is an improper weighing procedure. Instead, the trial court must consider aggravation independently from mitigation, and not require the mitigating factors to be so significant that they lessen consideration of the aggravating factors, she argues. Roberts also maintains that the new judge negated the appropriate weight of the mitigating factors because of the nature and circumstances of the murder – an error that calls for another remand to hold a new sentencing hearing.
The prosecutor counters that the new judge “paid scrupulous attention” to the mitigating factors. It was within the new judge’s discretion to assign weight to the various factors that might lessen Roberts’ sentence, which the judge did, and then concluded that they didn’t outweigh the aggravating circumstances in the case, the prosecutor explains. Noting that the trial court is required to consider a crime’s nature and circumstances, the prosecutor states that courts aren’t confined to considering only those aspects that are favorable to Roberts.
Roberts Argues New Jury Must Be Seated for Another Resentencing
Roberts also cites R.C. 2929.06(B), which states that when a court vacates a death sentence because of an error in the trial’s sentencing phase, the trial court must resentence the offender in a new sentencing hearing and impanel a new jury if the offender was tried by a jury.
The prosecutor responds that precedent dictates that a case “rewind[s]” only to the point of the error. In this case, the error occurred during the court’s sentencing hearing, not during the penalty phase that included the jury. The error identified by the Supreme Court took place after the jury was dismissed, and Roberts’ position contradicts the Supreme Court’s 2013 order, the prosecutor states.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Trumbull County Prosecutor’s Office: LuWayne Annos, 330.675.2426
Representing Donna Roberts: David Doughten, 216.361.1112
Was Police Discipline Matrix Part of City’s Collective Bargaining Agreement with Union?
Ohio Patrolmen’s Benevolent Association and David Hill v. City of Findlay, Case no. 2015-1581
Eighty District Court of Appeals (Cuyahoga County)
ISSUE: Was an arbitrator’s ability to review and modify a disciplinary action under the “just cause” standard specifically bargained for by the parties and contained within the four corners of the collective bargaining agreement?
BACKGROUND:
After serving for six years in the Findlay Police Department, David Hill was promoted in November 2005 to sergeant. On Nov. 13, 2012, Hill was supervising the midnight shift with another sergeant and, after roll call, some officers began discussing an upcoming Christmas party. An officer asked Hill who was on the committee that was planning the party, and Hill listed the names. He identified Officer Morgan Greeno as a committee member by referring to her as “Whoregan.”
Greeno filed a complaint against Hill, noting that the comment was made in front of her colleagues by a supervisor. She indicated that Hill may have been retaliating against her because she was scheduled to testify against him in a separate disciplinary matter in which Hill allegedly made a derogatory comment about the mental health of a recently promoted sergeant and pretended to shoot himself when the announcement was made.
An investigation followed. Police Chief Gregory Horne reviewed the reports and determined that Hill’s conduct violated department rules and that he should be fired, based on the department’s discipline matrix. The discipline matrix listed four classes of rule violations defined by the seriousness of the offense. Within each class, the penalties increase when the employee has prior violations.
Dispute Sent to Arbitration
Hill formally contested the police chief’s decision in January 2013, arguing that his recommended termination lacked just cause and violated the collective bargaining agreement (CBA) between the City of Findlay and the police union – the Ohio Patrolmen’s Benevolent Association, which has its main office in North Royalton in Cuyahoga County. The city denied Hill’s appeal, and the matter moved into arbitration, as provided by the CBA.
In August 2013, the arbitrator determined that the city had just cause to severely discipline Hill for his conduct. However, the arbitrator reported that not all of the charges against Hill were proven and that termination was inappropriate. The arbitrator found that Hill engaged in “conduct unbecoming an officer,” which was categorized as a Class C offense in the discipline matrix. Because Hill had been disciplined previously for his behavior when another officer was promoted to sergeant, he was subject, according to the matrix, to either a three-to-10-day suspension or termination. The arbitrator set aside Hill’s termination and ordered his reinstatement after a “lengthy disciplinary suspension.” The city declined to place Hill back in his job.
Union and City Take Matter to Court
Hill and the police union filed an application in the Cuyahoga County Common Pleas Court to force the city to implement the arbitrator’s decision. The city also filed suit, asking the common pleas court to vacate or adjust the arbitration ruling.
The trial court ruled in November 2014 that the arbitrator had exceeded his authority under the CBA by not properly applying the discipline matrix. Department rules empowered the police chief to decide between the suspension and termination outlined in the matrix, and he chose termination – a decision that had to be upheld in arbitration, the trial court stated.
Hill and the union appealed to the Eighth District Court of Appeals, which affirmed the trial court’s decision. They submitted an appeal to the Ohio Supreme Court, which agreed to consider the issue.
Union Argues Arbitrator Could Define Remedy
The CBA between the police union and the city states that “[d]iscipline shall be imposed only for just cause.” Citing the Ohio Supreme Court’s decision in Miami Twp. Bd. of Trustees v. Fraternal Order of Police, Ohio Labor Council, Inc. (1998), Hill and the police union note that an arbitrator must decide two things when assessing whether an employer has disciplined an employee for “just cause” – whether a cause for discipline existed and whether the level of discipline was appropriate under the circumstances. According to the CBA between the city and the union, an arbitrator has no power to alter or violate the CBA’s terms.
However, Hill and the union maintain, the Court ruled in Miami Twp. that the arbitrator had authority in that case under a similar CBA to review the appropriateness of the discipline. The Court also determined in a separate case that an arbitrator “has broad authority to fashion a remedy” even if that remedy isn’t specifically detailed in the CBA, Hill and the union argue. Citing this as precedent, they contend that the arbitrator in Hill’s case was permitted to impose a different sanction that wasn’t directly in line with the discipline matrix. They conclude that the arbitrator’s decision was appropriate and within his authority.
Hill and the union add that while the discipline matrix was contained in the city’s disciplinary and recognition policies for the police department, it wasn’t included in the CBA agreed to by the union and the city. The matrix and the other related rules were unilaterally imposed by the city, existed outside the four corners of the CBA, and in no way were incorporated into the bargained agreement, Hill and the union stress. In their view, the use of the discipline matrix eliminated the CBA’s “just cause” requirement and undermined the entire collective bargaining process.
City Counters that Discipline Matrix Must Be Followed
The city points out that the CBA includes a clause that gives Findlay the right to develop, revise, or eliminate the police department’s work practices, procedures, or rules and to maintain discipline. In addition, Article 10 of the CBA states, “The Union agrees that its membership shall comply with Police Department and City of Findlay Rules and Regulations, including those relating to working conditions, conduct, and performance.” The union agreed to these provisions, the city notes.
In March 2012, the police department added the discipline matrix to its rules and regulations. The union didn’t contest or file a grievance about the procedures added to the rules, although it had that right under the CBA’s terms, the city indicates.
The city agrees that Miami Twp. ruled that an arbitrator could devise his own remedy based on the penalty’s appropriateness, but asserts that this approach is allowed only when the CBA gives no other direction on discipline. In Hill’s case, the arbitrator’s discretion when determining a remedy was limited by the predetermined penalties in the discipline matrix – a set of rules incorporated into the CBA, the city maintains. It adds that the arbitrator couldn’t choose his own remedy that was outside the CBA’s scope, but instead had to impose the discipline listed in the matrix for Hill’s misconduct.
Arbitration is designed to keep disputes out of the court system, and the city explains that state law requires courts to defer to arbitration decisions as long as the award “draws its essence” from the CBA. The quote is from a 1960 U.S. Supreme Court case, United Steelworkers of America v. Enterprise Wheel and Car Corp., which also stated that “ … an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice.”
In Hill’s case, the city concludes that the arbitrator exceeded his authority by imposing a penalty not based on the matrix and asks the Court to uphold the lower court rulings, which overturned the arbitrator’s award.
Police and Employment Law Group File Briefs
The Fraternal Order of Police of Ohio, Inc. has submitted an amicus curiae brief supporting the positions of Hill and the police union. An amicus brief in their support also was filed by the Cleveland Police Patrolmen’s Association, Toledo Patrolmen’s Association, Dayton Fraternal Order of Police Lodge 44, and Ohio Employment Lawyers Association.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Ohio Patrolmen’s Benevolent Association and David Hill: Joseph Hegedus, 614.888.7901
Representing the City of Findlay: William Schmitz, 216.696.5222
Attorney Who Did Not Fully Disclose Past Lawsuits Against Him Faces Revocation
In re: Application of Michael A. Callam, Case no. 2016-1240
Board of Commissioners on Character and Fitness
The Board of Commissioners on Character and Fitness recommends that Michael A. Callam’s right to practice law be revoked and that he not be permitted to reapply for admission in Ohio. The board initiated an investigation of Callam after he was indicted in April 2015 for insurance-related crimes, and questions were raised about whether he fully disclosed material to the board before he was permitted to take the July 2014 bar exam.
Callam Sold Insurance Before Entering Law
Callam was admitted to practice law in 2014 and joined a Chagrin Falls law firm. Prior to entering law school in 2011, Callam obtained a license to sell insurance and opened a restaurant with his brother.
Callam’s father, William Callam, previously sold insurance but lost his license in 2007 and was convicted of a felony related to misappropriation of client funds. Callam said he was unaware his father didn’t have a license when his father met with prospective clients at Callam’s restaurant. Often William Callam would negotiate an insurance sale and his son would sign the application. On other occasions, Callam’s father would sign Callam’s name to the insurance application. Callam indicated he authorized the practice because he believed his father had an insurance license.
One of Callam’s insurance client’s complained to the insurer Equitrust that she was dissatisfied and that William Callam had misrepresented the policy to her. She told the insurer she dealt exclusively with Callam’s father, and when Equitrust contacted Michael Callam, he said that is when he learned his father lost his insurance license. Callam’s father drafted a response to Equitrust that Callam signed, stating Callam himself dealt personally with the client. The client’s claim was denied, and she sued the company and the Callams.
The incident prompted an investigation by the Ohio Department of Insurance, which interviewed Callam for about an hour and found that in several instances he claimed to meet with clients when only his father met with them and sold the policies. Callam filed his application to take the bar exam in March 2014, two months after the insurance department interview without mentioning any difficulties with the department to the Ohio Supreme Court’s Office of Bar Admissions. He later testified he believed the matter was resolved after the interview in spite of the fact that the department asked him to follow up with a list of insurance clients.
Callam also sold the restaurant in early 2014, and the buyer, LG Mayfield LLC, filed suit against Callam three weeks before the July bar exam. Callam didn’t disclose the lawsuit to the bar admissions office. In September 2014, the insurance department called Callam back for a second interview in which investigators presented evidence that found Callam had lied to them about his role in the insurance sales.
Callam expressed concern about his future legal career and ultimately agreed to surrender his insurance license, which happened while he was awaiting his bar exam results and was under the obligation to update his bar application. Callam didn’t update his application and began working at the Gertsburg Law Firm in Chagrin Falls. He joined the firm as a practicing attorney once he passed the bar and was admitted to practice law.
In 2015, Callam and his father were indicted for selling insurance without a license, and the Geauga County prosecuting attorney sent a letter to the bar admissions office expressing concern about Callam’s character.
Panel Considers Claims
A three-member panel of character and fitness commission heard testimony from Callam’s employer and his girlfriend, who is also an attorney, both of whom testified that Callam apologized for the mistakes in judgment he made, and believed that Callam should be able to continue to practice law.
In addition to questioning Callam’s handling of the insurance violation, the commission also considered his incomplete reporting of violations to the law school he attended. When registering for bar admission in 2012, Callam disclosed two operating a vehicle while intoxicated (OVI) convictions, one in 2001 and a second in 2011. Akron Bar Association attorneys screening Callam’s admission noted the second OVI had not been reported to his law school. Callam told the interviewers his attorney told him he didn’t need to report the incident, but he then agreed to report it.
Callam told the panel the reason he didn’t initially report the OVI was that his attorney told him not to report it “even after the situation was resolved.” However, Callam produced a letter from attorney Barry Doyle, who told him he didn’t have to disclose the letter on his law school application because the matter had not yet been resolved. The panel concluded it didn’t counsel him not to disclose the charge after the matter was resolved.
The panel also noted that Callam had disregarded his duty to disclose the LG Mayfield lawsuit and the lawsuit filed by the insurance client. The disclosures would have prompted an earlier investigation of his fitness to practice law before he was sworn in, the panel concluded.
“By failing to disclose, Mr. Callam was able to gain an advantage over applicants who followed the rules and were forthright in their disclosure. As a result, Mr. Callam has now been practicing law for eighteen months and can argue that he should be allowed to continue because nothing has occurred during that time to place his clients at risk. Among other things, this ignores the fact that he placed his employer at risk by not disclosing his felony indictment so it could be reported to his employer's malpractice carrier,” the panel wrote in its report. “Mr. Callam’s conduct was egregious and certainly impacts his ability to meet the essential eligibility requirements, specifically his ability to conduct himself with a high degree of honesty, integrity, and trustworthiness in all professional relationships and with respect to all legal obligations.”
Callam Maintains Sanction Unfair
In his response to the board’s recommendation, Callam argues that revocation of his law license and preventing him from reapplying is the equivalent of disbarment. He argues the sanction is greater than others accused of similar actions and he requests a stayed suspension.
The commission cites only the Supreme Court’s 2015 In Re Application of Wahidy as the basis for recommending Callam not be allowed to reapply for admission. Callam asserts the attorney in Wahidy failed to provide complete and accurate information on his application, during his screening interviews, and during a panel hearing. In contrast, Callam suggests he admitted his mistakes at his admission interview and testified candidly before the panel, acknowledging and explaining his mistakes.
Since Callam has practiced law for almost two years, he suggests his case be treated similar to an attorney discipline matter and that his sanction be based on those of penalties levied on other lawyers. He cited Dayton Bar Assn. v. Kinney (2000), where the Court presumed an actual suspension is warranted when an attorney engages in conduct involving dishonesty, fraud, deceit, or misrepresentation, and found that mitigating factors justify a sanction less than actual suspension.
“As a result of making misrepresentations to Equitrust and the Ohio Department of Insurance in an effort to protect his father, Michael Callam has surrendered his Ohio insurance license for cause, has been indicted, entered a plea to a misdemeanor and now has a criminal record; and is involved in these proceedings,” Callam’s response stated. “Did Michael Callam trust his father to his detriment? Yes. Should Michael Callam forever lose his license to practice law in Ohio? No.”
Callam argues that a stayed suspension still will “send a message” to bar applicants that failure to update their applications will result in sanctions.
Friend-of-the-Court Brief
An amicus curiae brief supporting Callam has been submitted by the Gertsburg Law Firm. The firm describes Callam as instrumental in serving its nearly 300 clients and that he has “an incredibly strong work ethic” and “cares deeply about the practice of law.” The firm states that Callam has learned his lesson and is remorseful, and it believes he will not repeat his mistakes.
The Akron Bar Association did not file a merit brief in the case and is not permitted to present oral arguments. The Court approved a request for Callam to share his oral argument time with the Gertsburg Law Firm.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Board of Commissioners on Character & Fitness: Damien Kitte, 614.464.5482
Representing Michael A. Callam: Mary Cibella, 216.344.9220
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.