Q&A: Three vie for municipal court seat

SANDUSKY Jail overcrowding, the possibility of a new municipal court building and the need to update
Sandusky Register Staff
May 24, 2010

SANDUSKY

Jail overcrowding, the possibility of a new municipal court building and the need to update technology top the list for the three candidates running for Sandusky municipal court judge.

Vying for the six-year position are incumbent Judge Erich O'Brien, city prosecutor Michael Kaufman and private attorney Heather Love Carman.

O'Brien, 55, said he'd like to get a new municipal court facility. During his 12-year-term O'Brien said he has saved about $1.2 million from court fines, which could be used as a down payment on a new facility.

"We could do a much more efficient job ... in a better place," O'Brien said, explaining that the roof of the courtroom leaks and the court lacks a jury room. "I feel the community deserves a better place."

O'Brien spent 16 years in Sandusky as a legal aid director and public defender before becoming judge.

"I love what I do, and the job isn't finished yet," he said.

Kaufman and Carman agree the money saved from fines should be spent, but in a different way.

"The court needs a technological overhaul," Kaufman said.

Older typewriter-style computers used by clerks need to be replaced with more up-to-date machines to save time and energy, Kaufman said.

Kaufman, 36, who has served as city prosecutor since 2001, would also like to see the physical layout of the courtroom rearranged and updated to better serve the public.

"You can sit in the front of the courtroom, and you can't hear the dialogue between the judge and the defendant," he said.

Kaufman has also served as a legal consultant for Bay View and maintained a private practice in Sandusky since 1998.

The first woman and first African-American to run for municipal court judge, Carman decided put her name on the ballot after a friend questioned her on how the system could be improved.

"It would be better if people like myself would step up to the plate," Carman, 36, said. "I think I have a very different perspective than the other candidates."

The focus should be on fixing the current court facility, Carman said.

"It's hard for me to believe that 12 years have passed and they finally came up with a Web site for the court," she said.

Carman, who has worked as a private attorney since 2001, said she would rely on many of her personal and professional experiences for the job. She previously worked in entertainment law at RKO Motion Picture Studio in Century City, Calif.

Please detail your experience and the skills you possess that make you a good candidate for judge. How will these skills and your experience translate into action if you are elected?

O'Brien:

Before being elected Judge 12 years ago, I had been the executive director of Erie County Legal Aid and the Public Defender for Erie County. That experience for over 16 years was perfect preparation for the high volume of civil and criminal cases we handle in our court. For instance, since I took over as judge, our court has opened nearly 5,000 domestic violence cases and over 7,000 drunk driver cases. That amount of experience not just in the law but also working with thousands of people cannot be equaled.

My most important skill is my ability to stay focused and not lose patience while dealing with many different people in often stressful situations. By treating all with respect difficult situations can be resolved successfully.

Carman:

Experience means knowledge or wisdom gained from what one has observed, undergone or encountered, while skill means the ability coming from one's knowledge, practice or aptitude to do something well. As for experience, I grew up in "Little Italy" in Sandusky. I am the product of two loving parents, the Heritage Christian and Sandusky schools and Second Baptist Church. My initial experiences were nurtured in school, the church and Little Italy. When I talk about "experience," I am talking about my life experiences growing up and going to school here in Sandusky and during my years outside the city of Sandusky. I have a very diverse background that gives me the ability to actually listen to, hear and understand people. If elected judge, there will be times when I will be called upon to decide questions of fact between a citizen and a police officer or citizens of different economic classes. I would not be afraid to make the hard decisions, nor would I curry favor with certain people or departments. The law is the law. And my life experiences have shown me that there are always two sides to a story. When I talk about "skill," I think about my law practice. I've practiced law in all the courts in Erie County. In addition to practicing here, I've practiced in multiple other counties throughout the state of Ohio. I also have experience in the court of appeals and federal court in addition to being published. I clerked for Municipal Court Judge Alice McCollum in Dayton, Ohio. I've been defense attorney and prosecutor on felony cases. I've been defense attorney on traffic, DUS and DUI cases. I've worked for men and women alike when it comes to domestic violence and family law cases. I've prepared wills, trusts and deeds. I've handled probate and guardianship matters. I also have experience in the area of entertainment law. I've been plaintiff's attorney for personal injury, bankruptcy, worker's compensation and breach of contract cases. I've been plaintiff's attorney for discrimination cases representing men and women, young and old, black and white. I would bring all of my experiences and skills with me if elected to this position.

Kaufman:

I am a graduate of Sandusky High School and the University of Toledo. I have a bachelor of science degree in criminal justice and a juris doctorate. I served as an aide in the Ohio Senate, where I observed the legislative process. For 10 years I have maintained a private law practice in Sandusky. I have handled many different types of cases in all of the courts in this county. I have also practiced in all of our surrounding counties, the Court of Appeals, Federal Court and Ohio Supreme Court. Through this experience, I have been able to observe a wide range of court operations to compare with the Sandusky Municipal Court.

I am also the village solicitor for Bay View and the prosecutor for Kelleys Island. For seven years I have served as assistant law director for the city of Sandusky as one of the prosecutors in the Sandusky Municipal Court, where I handle thousands of cases. In this role I have become well acquainted with the operation of our municipal court.

My broad experience in the practice of law and in the legislative process uniquely qualify me for the position of judge because I fully understand the importance of separation of the legislative and judicial functions. My professional experience also enables me to recognize how the operation of the court can impact justice while enhancing community safety.

What would be your top three priorities if elected, and what steps would you take to accomplish these tasks?

O'Brien:

I would like to focus on the issues I have concentrated on in the past 12 years.

When people come to court, they must feel they have been treated fairly. So long as people feel they have been treated with respect and their rights upheld, they can usually live with the results.

The court's primary job is to dispense justice, but it is a branch of government and should be fiscally responsible to the tax payers of our community. Our court pays for itself. In fact, it not only pays for its daily operational costs, but it also focuses on the collection of restitution for the victims of crime. Over $750,000 in restitution has been collected and paid to the victims of crime since I became judge.

Lastly, we desperately need a new court house. I recognized that back in 1998 when we started saving for a new building. The $1.2 million we have saved so far means local taxpayers will not have to pay. Only those who use the court -- whether visitor or resident -- will contribute. The amount collected will be used as a down payment similar to when one buys a house. The new structure will enable us to further increase our efficiency and vastly increase our security for all.

It will also enable us to expand our programs targeting drug and alcohol abuse and assist families dealing in mental health issues.

Carman:

1. Modernize the court through a) expansion of the court's Web site to include a posted bond schedule and allowing attorneys to file documents online and b) the purchase of new computers, printers and Webcams with the $128,000 that's available and earmarked for that purpose. This would improve the court's efficiency and make things more cost effective.

2. Encourage meaningful access to the municipal court by a) setting up the civil cases on a time schedule once the initial complaint and answer are filed and b) lowering the $750 filing fee for civil jury trial cases as compared to $250 to file in common pleas court. If the $750 filing fee were lowered, this would make it more affordable for the taxpayers and relieve the burden on the common pleas court in trying those cases.

3. Be the type of judge that when a party walks out of the courtroom with an adverse decision, that party can say that he or she may disagree with the decision but still say that he or she was treated fairly and with dignity and respect.

Kaufman:

1. I would restructure the operation of the court to be a more formal and open setting. To accomplish this I would:

* Install a microphoned podium away from the bench so all communications between the judge and defendants could be heard by all in the courtroom.

* Cause all proceedings before the court to be digitally recorded, so a record would be preserved in the event they wished to entertain an appeal. The court has purchased new equipment since this campaign has started but still fails to use it.

* Conduct all hearings in a manner consistent with Rules of Procedure.

2. I would modernize the operation of the court to make it more efficient, bringing it into the 21st century. To accomplish this I would:

* Provide the court staff with up-to-date computer capabilities, programs and training to better carry out the administrative functions of the court. The funds needed to pay for these improvements are already earmarked for this purpose but are not being used.

* Make the court services available to all citizens during the hours the court is open, unlike the long-standing policy of the current judge that has restricted the filing of evictions to a short time one morning and one afternoon per week.

* Utilize the individual judgment entries in rendering all decisions.

3. I will follow the law and impose appropriate sentences to punish and deter the offender from repeating violations of the law. To accomplish this, I will:

* Follow the guidelines for sentencing mandated by law and the Ohio Supreme Court.

* Within the guidelines and discretion granted to the court, make the sentence appropriate for the offense, taking into consideration the facts surrounding the violation of the law and other allowable considerations established in the law.

* To the extent allowable under the law and facts of each case, endeavor to make the violator of the law bear the costs of the violation, including restitution and the other costs of the judicial system.

Should the municipal court judge weigh a defendant's economic status or his or her ability to pay when assessing fines or court fees after an individual is convicted? If an individual's inability to pay is an issue should fines be waived; should fees be waived; or can both be reduced in equal proportion?

O'Brien

Nobody likes to pay fines.

If a defendant is not indigent by law, court costs are always to be paid before any fines. Fines for the majority of cases, such as minor traffic violations, follow a set schedule regardless of the defendant's income. For more serious crimes (but still misdemeanors because municipal court does not sentence on felony cases), fines are based on a variety of factors: past record, seriousness of the charge and restitution owed to a victim. Certain crimes carry specific minimums, even if a plea bargain was involved.

The goal is consistency while treating each individual case fairly on its own merits. Economic status cannot be ignored. Is a $100 fine the same penalty to a single mother of two with a minimum wage job as compared to an attorney who earns $150 per hour? Obviously not. Though the one's lack of resources and impact on her household should be considered, it does not mean the other should be gouged.

Carman:

With respect to fines, the court is required to consider one's ability to pay (even though a hearing or express findings on the record is not required). With respect to costs, the court is not required to consider one's ability to pay. I think it is best to consider one's ability to pay based on his or her economic status. The purpose of fines is to punish, and if you have a fine range set by law, then a poorer defendant may have a fine at the lower end of the range while the richer defendant may have a fine at the higher end. There are other means to sanction those without the ability to pay fines and court costs. Community service comes to mind and could be a consideration. Whatever is done has to be done in accordance with law on a case-by-case basis and should attempt to keep the people from committing future crimes.

Kaufman:

The law clearly sets sentencing standards for each violation of the law with an expectation that the judge imposing those sentences will do so in a manner that appropriately punishes the offender and deters the offender from repeating the offense. Those standards provide a range within which a judge has some discretion to adjust the amount of the fines and imposition of jail time based on the facts surrounding the criminal activity and the judge's evaluation of whether there is a likelihood the person will repeat the offense. The law also provides the court with directives and opportunities to impose court costs that will help to make the person violating the law responsible for paying for the costs of legal enforcement or the operation of the court. Nowhere in the laws is it written that a person's economic status in life is a factor in sentencing.

Canon Seven of the Code of Judicial Conduct specifically prohibits a judge or judicial candidate from making statements that appear to commit the judge or judicial candidate with respect to cases or controversies that are likely to come before the court. This Canon makes it difficult to address specifically the issues of economic status as it relates to assessment of fines and court costs and waiver or reduction in either of them based on ability to pay.

Therefore, as judge I will strictly operate sentencing practices within the guidelines allowed and will impose those sentences and costs required by the law.

To answer this question, perhaps a rhetorical question is an appropriate response. Does a person's economic status, either poor or rich, exempt them from the law and punishment prescribed by law? I am certain that making excuses for those who violate the law is not a deterrent in any way.

Some law enforcement leaders have stated that the overcrowded Erie County Jail has adversely impacted the ability of police officers to make arrests and remove suspected criminals from the streets, referring to this situation as the "revolving doors of justice." How has this overcrowded condition impacted the municipal court, and what steps would you take to address these impacts?

O'Brien:

Jail overcrowding is a daily and significant problem for our court. In 2006, 1,200 inmates were released from the jail due to overcrowding. Over 900 were from our court. It complicates the collection of fines, since many defendants know jail time is not likely for failure to pay back fines due to the overcrowding. We prepare court files for defendants to be arraigned on closed circuit TV from the jail only to learn they were released and instructed to report to court. We are still waiting for a number of these.

In response, we have increased our community service and house arrest programs for those eligible.

A new/expanded jail or misdemeanant facility is the answer that is needed. All the judges and the elected public officials in our county realize this. One potential option which has been done elsewhere is the development of a justice center, which would include a new municipal court, police stations and a misdemeanant jail. The monies already saved by the Court could be used as a down payment for the anchor of the site, which would be the court house. Obviously other revenue sources such as grants may be procured by the appropriate government bodies.

Carman:

I do believe this does have an impact on the court, but instead of looking at building misdemeanor jails, we need to take a look at why the jail is overcrowded. There are a lot of people in jail awaiting trial, and that the main purpose of bail is to ensure the public safety and ensure the defendant's appearance at future hearings.

Too often, bail is used coercively and the defendant and defendant's family is not involved or consulted when it comes to setting bail. Example: If a defendant waives the right to a preliminary hearing or if he cooperates with the police, then he might get a recognizance bond or low bail. This gives the appearance of impropriety.

I would embrace the challenge of having preliminary hearings and would encourage the practice. And in setting bail, the defendant and his family should have a say. The law allows for this. One's family and friends can have a positive effect on a defendant when they are involved in the process. Not only should the victim and law enforcement be consulted regarding bail, the court should consider the defendant's employment history, financial resources, character, length of residence here, record of convictions, record of appearances in court or see if the defendant is a flight risk in order to avoid prosecution.

These defendants are citizens, too, and their words and the words of their families should mean just as much. We must remember that for the most part these misdemeanor defendants are citizens of this community. They are husbands, wives, sons, daughters and friends. They have made mistakes and for the most part, the mistakes are correctable.

Kaufman:

The phrase "the revolving doors of justice" to the law enforcement community has a broader meaning than just the overcrowded jail. My experience is that they also attribute the phrase to sentencing practices where other mandatory components of sentences are not imposed, when the law requires the court to do so. An example of this is the current municipal judge's refusal to impose mandatory driving suspensions in drug offense cases, even though the law says the court "shall" do so.

Admittedly jail overcrowding makes it difficult to put many misdemeanor offenders in jail. However, it should not be an excuse for failing to impose proper sentences under the law. Other alternatives exist such as house arrest with proper monitoring. Additionally I will actively lead the push for a misdemeanor jail like the one in Ottawa County, where they have up to 47 offenders at a time with only two corrections officers. Finally, proper and meaningful use of probation and thinking out of the box in imposing sentences, within the law, is something that I would do to punish and deter crime in our community.

Has the court kept up with modern technologies by making information available via the Internet or via other avenues that make the court more productive? Please explain. What upgrades or other changes in the operation of the court, if any, would you implement if you are elected and how would you implement these changes?

O'Brien:

Sandusky Municipal Court has kept up with modern technology. The court currently has 20 computers for its employees and a public viewer for those who do not have computer access. The court has its own Web site: www.sanduskymunicipalcourt.org. Our web site offers online record search for all of our court cases since approximately 1990. We have listed information that is helpful to the general public as well as to the legal community. It is possible to view the daily docket from the Web site also. We will be adding online payments in the first quarter of 2008.

We use our computers, laser printers and laser bar code scanner in conjunction with our civil/small claims certified mailers. This minimizes the employee time in preparing and processing the incoming and outgoing certified mail.

We accept some filings via fax (according to the Supreme Court of Ohio guidelines).

We are also installing a digital recording system for the courtroom. Phase 1 of the installation has been completed and the final phase is scheduled for Nov. 14. This will allow us to copy requested information to CDs. This should reduce the need for transcriptionists.

Also, we look forward to becoming part of the Ohio Courts Network. This is a project the Supreme Court of Ohio is piloting. The actual phase of testing is in operation now. When completed, our court, as well as others in Ohio, will be able to communicate with each other regardless of the software used. This will enable us to check for pending cases, convictions, outstanding warrants, etc. throughout Ohio. It is hoped that this network will be expanded throughout the United States and eventually all over the world.

Carman:

Computer technology began booming in the late '80s and early '90s, yet it has taken 12 years for this court to establish its own Web site. This court has no new technology to keep up with the changing times. Even we as individual attorneys are required to take continuing legal education courses to keep up with changes in the law. Also at one point back in 1973, Sandusky was on the cutting edge of modernization when the Erie County Common Pleas Court under Judge McCrystal held the first videotaped trial in the nation. And now look how much we've digressed. There is no reason the Sandusky Municipal Court should be computer-deficient. Instead of a court with modern technology, the present judge states that when it rains, the water comes into the courtroom. I would start by making sure that the leaky roof gets fixed. Then once I secured a dry courtroom, I would purchase computers and printers for the staff with the $128,000 that's already available and earmarked for that purpose and expand the court's Web site by setting up a system where attorneys could file pleadings and documents via the Internet as it is done in federal court. Furthermore, I would set up a Webcam so the attorneys and their clients could have pre-trials via the Webcam. This would alleviate "waiting in court." The attorney could be in his or her office doing other work while waiting to be heard instead of charging a client for sitting around. I would also have a Webcam at my home so that I would be available for face to face meetings with victims, the defendant, their families or police officers.

Kaufman:

No. In my initial announcement to run in this race, I mentioned that I would create a court Web site. Shortly thereafter, one was created for the court. The current Web site is inadequate, needs to be improved and has been "under construction" for over eight months. Sandusky Municipal Court has antiquated equipment and procedures. For example the court has 17 employees but only five personal computers. The judge himself does not have a computer on his desk. The fact that thousands of criminal cases a year are processed on a typewriter makes it clear the court has not kept up with modern technology. What is even less excusable is the fact the court has a computer fund, raised from court costs, with over $128,000 in it, sitting unused. The only excuse I have heard the current judge give was he needs a new and larger court. Technology can be relocated.

Does a communication problem exist between the court and city officials? What steps would you take to address this problem if it does exist?

O'Brien:

My door is always open.

Ethical considerations prevent me from discussing most pending legal cases, but each year I personally deliver our annual report to the City Commission. I am always available for any meetings or discussions concerning the court and the City of Sandusky.

My primary duty is to safeguard the interests of the court. Though the city of Sandusky is the court's funding authority, I am fully aware the court also serves the citizens of Perkins Township and the villages of Bay View and Castalia.

Carman:

Frankly, I would be more worried if the court and city officials always agreed. There will always be issues between the legislative, judicial and executive branches of government. Our democratic system was set up to have checks and balances. Healthy disagreements are good. They help the branches to come to resolutions that are usually good for society. If elected judge, I can and must be fair and impartial. And if I would err, I would hope that the error would be on the constitutional side.

Kaufman:

Yes, to some extent. My observation is that there is somewhat of a problem that should be resolved. The law provides for the independent operation of the court from the administrative and legislative branches of government. In some cases this leads to a perceived communication problem with the other branches of government. I believe my experience as assistant law director for the city of Sandusky and as village solicitor for Bay View give me an inside track at openly and effectively working with the other branches of government to resolve any communication problems, while maintaining the independence of the judicial system. I certainly recognize that any funds raised by the court or spent by the court are not the judge's. As a public servant I will always remember the limitations of the position and the need to respect your tax dollars. All the money the court has belongs to the taxpayers.