Ohio Supreme Court considers Hamilton County robbery case; former prosecutor sits on the bench
The Ohio Supreme Court heard oral arguments Wednesday in a case that could change the way sentencing is considered in the state, with the county prosecutor for the initial case this time sitting as a justice on the high court.
In State v. Tommy Glover, the state’s highest court will decide whether the 60-year sentence he received after he was charged with six armed robberies on five separate people in the Hamilton County area was appropriate.
The state asked that the Ohio Supreme Court consider the case after it said the First Appellate District Court of Appeals “set a dangerous precedent” by disagreeing with a trial court’s sentence and ruling that a shorter sentence was appropriate, according to court documents.
Attorneys for Glover want the state supreme court to consider whether the seriousness of the crime was weighed appropriately, and whether such long, consecutive sentences for these types of crimes are necessary to protect the public.
In the Wednesday oral arguments, every justice on the court asked questions of attorneys except for Justice Joseph Deters, who was the Hamilton County prosecutor in 2020 when Glover was charged and in 2022 when Glover was sentenced in the case.
Deters left the prosecutor’s office when he was appointed to the high court by Gov. Mike DeWine. He has since filed his candidacy not for his appointed seat, but to challenge Justice Melody Stewart in an attempt to take over a different spot on the court.
Despite being the head prosecutor in the county during the years that the case was adjudicated, and despite having recused himself from other cases due to his role as county prosecutor, Deters did not recuse himself from this case. His office said this is because he did not play a substantial role in the case as prosecutor, and his recusal had not been requested in this case.
When an appeal involving the six-week abortion ban case out of Hamilton County came to the state supreme court, Deters filed to step back from the case, leading a visiting judge to hear oral arguments in his place.
In a case related to the public corruption scandal that took down former House Speaker Larry Householder, Deters, who worked with former state GOP Chair Matt Borges during Deters’ two terms as Ohio Treasurer, recused himself as well. Borges was charged and convicted in connection with the House Bill 6 corruption scandal.
However, the previous recusals don’t necessarily mean Deters is obligated to recuse himself from all cases for which he was a prosecutor, according to legal experts.
“The rules require judges to recuse whenever there is reason to question their impartiality,” Cassandra Burke Robertson, law professor and director for the Case Western Reserve University School of Law’s Center for Professional Ethics, told the Capital Journal.
In recent years, the question of impartiality has come up in more ways than usual, with questions of political partisanship being used (improperly) as arguments for recusal against judges, according to Robertson.
“In general, justices are supposed to make that call about recusal personally,” Burke Robertso said.
Burke Robertson brought up a 2016 Pennsylvania case in which a former district attorney stood on that state’s supreme court when a defendant from a previous case appeared before the court, and requested the justices recusal.
The case went up to the U.S. Supreme Court, who found, in a split decision, that the defendants rights were violated when the justice did not recuse himself, despite the fact that he said he was not significantly involved in the case from three decades earlier.
“These are multi-member courts who deliberate, and those deliberations are secret, necessarily,” Burke Robertson said. “So there’s no way to know what kind of effect (the former district attorney’s) feelings could have on the other justices.”
But courts are largely relying on their judges to decide what warrants recusal.
“There’s always the possibility of a commission on judicial conduct passing judgment,” Burke Robertson said. “But it’s unlikely. That would have to be a really egregious case.”
Typically, the remedy for defendants would be a further appeal.
The Ohio Code of Judicial Conduct says a justice can file for their own recusal, or a party in a case can ask for recusal with proper reasoning.
A justice can “disqualify” themselves from a case when they were “a party to the proceeding” or “acting as a lawyer in the proceeding,” among other circumstances listed in the code.
A judge who has “served as a lawyer in the matter … or was associated with a lawyer who participated substantially as a lawyer in the matter,” and a judge who “served in government employment and in such capacity participated personally and substantially as a lawyer or public official concerning the particular matter” are also noted as eligible for disqualification in a particular case in the code.
“The supreme court standard really looks at did he take a significant action in the case,” Burke Robertson said.
According to Deters, this case does not fall into that category.
In a statement sent to the OCJ, the justice said he “did not participate personally or substantially in the matter and did not express an opinion about it.” He also said no one requested his recusal.
The justice also explained that after his appointment to the court he “fashioned a policy consistent with Ohio’s Code of Judicial Conduct” after meeting with Chief Justice Sharon Kennedy and the director of the Ohio Board of Professional Conduct.
“Under the policy, for one year after my appointment, I would recuse from any case in which the Hamilton County Prosecutor’s Office represented a party,” Deters wrote in his Wednesday statement.
One year later, he said he planned to “recuse from those cases in which I participated personally and substantially or about which I expressed an opinion.”
“I apply this policy in all cases that come before the court, whether the parties request my recusal or not,” Deters wrote.
Susan Tebben is an award-winning journalist with a decade of experience covering Ohio news, including courts and crime, Appalachian social issues, government, education, diversity and culture. She has worked for The Newark Advocate, The Glasgow (KY) Daily Times, The Athens Messenger, and WOUB Public Media. She has also had work featured on National Public Radio.