This draft op-ed was sent to the Blade, which never even acknowledged receiving it though I know
they did. Given the Blade’s past
focus on Noe and also given its editorial interest in the Crawford case,
avoidance of the message in this op-ed was certainly surprising to me.
Coingate and the Appearance of Impropriety
On May 15 of 2017 the Blade
published a powerful editorial in support of justice in America.
The topic was a case in which Ohio Supreme Court Judge
Maureen O’Connor ordered a new trial because the presiding judge, named
Crawford, was slightly acquainted with a political opponent of the defendant.
Judge O’Connor observed
“… even in cases where no
evidence of actual bias or prejudice is apparent, a judge’s disqualification
may be appropriate...”
The Blade echoed
this with “It’s much easier to see the integrity of a system when it
avoids a situation that might, in the worst-case scenario, lead to a biased
result. Chief Justice O’Connor made the right call.”
Having just finished writing a book on the episode known in
Ohio as Coingate, I have to wonder why there was no similar concern about
“appearance of impropriety” eleven years ago? Back when Tom Noe was given an
18-year, effectively-no-parole sentence in an environment replete with
structural bias?
Here are two key points about a “scandal” that shook Ohio
and its political system.
First, although the state charged Noe with stealing some $12
million, I didn’t find evidence that there was any theft at all. Since the
crime of theft requires criminal intent, and since Noe meticulously and openly
documented what he owed the state -- and very likely had the ability to repay
-- theft doesn’t seem possible.
I certainly agree that Noe misled his investor, the Ohio
Bureau of Workers Compensation, and believe that some punishment would have
been appropriate. But if the standard is basic fairness, any sanction would
have been a tiny fraction of the charges Noe faced: Racketeer Influenced Corrupt Organization
(RICO); theft; and money laundering.
Based on extensive research in law and psychology, I found
no reasonable expectation that Noe’s prosecution and trial could have been fair
in circumstances in which even the Blade
argued
that public opinion was so negative toward Noe that it was likely to
affect the judge.
Consider these points:
1) the Blade
obviously disliked Noe and led in saturating the region with coverage that even
the various appeals judges agreed was predominantly negative. The hundreds of
printed editorials, articles, and letters were echoed constantly in radio,
television and in political ads.
2) research in psychology shows that many jurors develop
unconscious biases against the defendant when they are exposed to this kind of
media onslaught, and that such biased jurors will believe they can be fair and
thus get on a jury. Their biases are then evident in a significantly greater
propensity to convict. Further, research in law also suggests that the intense
environment in Toledo would attract “stealth jurors” who deliberately hide
their bias in order to punish someone they don’t like.
3) the judge knew that Noe had filed an ethics charge
against him but said he could be fair. Research in psychology suggests that
people in such a position may believe they can be fair but are often influenced
by the same “unconscious bias” that affects the judgment jurors. In Noe’s case,
the judge not only refused to move the trial but also made a discretionary
decision to prevent the jury from knowing that Noe’s investments had been
successful overall. While managing the trial, he was also the candidate for a
fiercely contested appeals court position and benefitted from an important Blade endorsement just after this
ruling.
4) the prosecutor, the one who filed the extreme charges,
had multiple potential personal and political conflicts vs. Noe. She too was
highly vulnerable to unconscious bias.
In other words, the evidence suggests that the prosecutor,
judge, and jury all had a reasonable likelihood of being biased against Noe –
and most of their actions weren’t appealable.
The prosecutor and judge were and are very highly respected
and there’s no suggestion they consciously acted inappropriately. But they were
in an impossible situation – relentlessly pressed in a supercharged political
environment. It’s hard to imagine they could escape unconscious bias.
In my opinion, the real culprit back then was the Ohio
Supreme Court. In radical contrast to its 2017 decision, that court refused to
order the judge’s recusal and was indifferent to the argument that the trial
should be moved elsewhere.
With respect to fairness, if the 2017 Crawford case cited by
the Blade rated a “1” on a 1-100
“appearance of impropriety scale,” Coingate hit the top at “100” -- the “appearance” absolutely permeated the
case.
The Blade has a
strong track record of support for the rule of law, and has done outstanding
work in exposing political corruption – including in Coingate. Perhaps the Blade can now take the lead in
acknowledging that Tom Noe’s 18-year sentence, while technically legal,
violated fundamental American concepts of fairness.
=======
If you want a perfect example of what I mean by the
“collision between law and fairness,” this is it. The Ohio Supreme Court –
strongly backed by the Blade – has
clearly stated that Noe’s conviction was hopelessly tainted and should have
been thrown out.
Except.
Except that that was then and this is now, so we’re not
going to do anything about it.
That’s certainly how the law works, but it’s also completely
contrary to what average people think of as fair. In other words, it’s a major collision
between law and fairness.