July 23, 2007

Judicial and Media ‘Brinkman-ship’ — And Looking Ahead

Filed under: MSM Biz/Other Bias,Taxes & Government — Tom @ 2:33 pm

Last week, Tom Brinkman was not indicted.

You have to go to Paragraph 22 from Sharon Coolidge’s Cincinnati Enquirer report last Thursday to learn that quite-relevant fact. You have to get to the paragraph before that to learn that Hamilton County Prosecutor Joe Deters said that Brinkman’s conduct in the Equal Rights Not Special Rights petition-gathering process “fell in a gray area and was ‘not a clear-cut violation.’”

A reporter has to try very, very hard to insert these most pertinent facts so late in an “objective” news report, but Coolidge was up to the challenge. In fact, before Paragraph 21, the reader previously unfamiliar with the matter could be excused for thinking that the story was about Brinkman’s impending sentencing for lesser related crimes. The late placement of important facts is also “convenient,” because outlets that abbreviate the story often end up omitting them, as is the case with this report from WLW-T.

So we really should start at trying to figure out why Brinkman was not indicted. From much earlier in the article:

(Hamilton County Common Pleas Judge Robert) Ruehlman’s rebuke came after Assistant Hamilton County Prosecutor David Stevenson told him that Brinkman admitted he changed more than 1,000 addresses on the petitions to make them valid.

Brinkman, R-Mount Lookout, was a leader of Equal Rights Not Special Rights.

Brinkman Thursday denied making any changes on the petitions and said Ruehlman is mistaken about what happened: “I personally did not touch a single address or date or signature or name or anything.”

If I were Sharon Coolidge, I’d like to know if Stevenson “told” Ruehlman about this “admission” in the grand jury proceedings (if not, why not?) or over a beer. I’d also like to know what Stevenson’s response to Brinkman’s denial is. Sharon apparently has no such curiosity.

And there’s this “small” matter of whether name changes are involved (forgery), or address changes (not forgery):

In several instances, the names and addresses of the signer were crossed out and replaced with the addresses of registered voters in order to make them appear valid.

Nice use of the passive voice, Sharon. WHO crossed them out?

….. A lawyer wrongly advised Brinkman that the addresses could be altered, Stevenson explained to Ruehlman.

That’s not a good enough excuse, Ruehlman said. He added that even his grade school-age granddaughters know not to sign somebody else’s name.

Judge Ruehlman is off on a tangent, as Brinkman, from all appearances, wasn’t even accused of “signing someone else’s name.” Even the usually estimable Bill Sloat got this wrong, saying that “Brinkman reportedly changed 1,000 signatures.” Uh, no: Life experience ranging from writing personal letters to working with databases has taught me that an “address” is not a “name,” nor is it a “signature.”

As to the judge’s conduct from the bench, let’s start with two incredibly contradictory statements he made:

“Under the complicity statute it could be complicity,” he said.

“He’s the real criminal. What he did is terrible, almost defrauding. A layer of foundation of our democracy is voting and free elections. To cheat the voting system … he’s a state rep on top of that….”

I think the judge knows darn well that it’s a long way from “could be complicity” to “the real criminal” — or he should. But apparently he wouldn’t let the facts and circumstances get in the way of a cathartic personal rant.

(Now I’m trying to imagine how a Sharon Coolidge might write up a report if a judge took similar shots at an alleged drug dealer, bank robber, or similar criminal who had just avoided indictment. Would she portray the judge in a similarly heroic manner? What would the chatterers ready to pronounce Brinkman’s political obituary be saying about a judge telling an unindicted defendant, “You really did do those drug deals” or “You really did rob that bank”?)

If Judge Ruehlman is soooo convinced that Brinkman is “the real criminal,” why didn’t he direct his wrath at Deters & Co. for not convincing the grand jury to hand down such an “obvious” indictment? Alternatively, why didn’t he call out the grand jurors for not indicting “the real criminal”? (see below; I believe he effectively did that anyway)

Most importantly, Ohio’s Judicial Code of Conduct (link is to Google cache of a PDF version with pagination; a one-page HTML of the Code is here) would seem to call Judge Ruehlman’s conduct into serious question (bolds added by me):

(Page 11 at link)

(B) Adjudicative Responsibilities.

(4) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials, and others subject to the judge’s direction and control.

With Ruehlman in this case, that would be a big “I don’t think so.” And I wouldn’t think there’s an exception (see UPDATE below) if a party is not actually in the courtroom at the time.

(5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, and shall not permit staff, court officials, and others subject to the judge’s direction and control to do so.

The “but not limited to” opens up any number of potential prejudices Ruehlman may have against Brinkman. If Ruehlman holds such prejudices, whatever they may be, and knew he couldn’t handle a possible Brinkman non-indictment, he should not have taken the case.

(Page 12)

(9) While a proceeding is pending or impending in any court, a judge shall not make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing. The judge shall require similar abstention on the part of court personnel subject to the judge’s direction and control. Division (B)(9) of this canon does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. Division (B)(9) of this canon does not apply to proceedings in which the judge is a litigant in a personal capacity.

You can argue that the grand jury “proceeding” is over, but the entire matter most certainly isn’t. The two signature gatherers who were indicted have pleaded guilty to election falsification, but they have not been sentenced. If sentencing negotiations between the prosecutor and the defendants were indeed not concluded by the time of the judge’s rant, the defendants’ bargaining position has improved solely because of that rant. And in fact, Assistant Prosecutor Stevenson is quoted as saying they will “probably” get probation, meaning that their sentencing has not been resolved.

(10) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding.

By calling Brinkman “the real criminal,” Ruehlman has in effect criticized the jurors for not indicting “the real criminal.”

(Page 16 — Related “Commentary”)

B(5). A judge must refrain from speech, gestures or other conduct that could reasonably be perceived as bias or prejudice (including sexual harassment) and must require the same standard of conduct of others subject to the judge’s direction and control.

B(9). The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition.

B(10). Commending or criticizing jurors for their verdict may imply a judicial expectation in future cases and may impair a juror’s ability to be fair and impartial in a subsequent case.

These three “Commentary” items further support the points made above.

So who will explore filing a judicial complaint against Robert Ruehlman?

As to Tom Brinkman — Having voted for him for Congress in June 2005′s special GOP primary election, I’m left asking myself if I would vote for him if a similar scenario had played out in 2004 instead of 2006. Absent a more satisfactory explanation than I’ve heard so far, I don’t think so.

But that’s the hangup — We don’t, and won’t, have all of the facts until Brinkman substantively comments. For the time being, he’s constrained in doing so. That’s because Brinkman is showing more respect (better “judgment,” if you will) for the not-yet-over judicial process than Robert Ruehlman by not commenting beyond this statement he issued earlier:

Cincinnati, OH – State Representative Tom Brinkman today responded to comments from Judge Robert Ruehlman after the judge implied in open court that Brinkman violated state law, and Brinkman fired back by saying the judge obviously doesn’t understand how the American justice system works.

“Even the judge’s grade school-age granddaughters are smart enough to know that in America, there is a presumption of innocence,” Brinkman said. “Judge Ruehlman could use a refresher course in basic legal theory.”

When told there were legal problems with a petition drive led by Brinkman, the four-term state representative immediately cooperated with investigators, the prosecutor’s office, and the grand jury.

Brinkman was cleared of any wrongdoing.

“It’s pathetic when a judge, who claims to be conservative, thinks he can trample the rights of innocent Americans who have never done anything wrong,” Brinkman said.

The two convicted women will not be sentenced until August 20. Until those sentences are meted out, I believe Tom Brinkman has done all he can prudently do. But when the legal process has fully played out, at least if he wants to continue his career in politics, he almost certainly will need to do more to defend his conduct during the petition drive. Until then, he is a non-criminal like the rest of us, and anyone rendering an opportunistic Ruehlman-like rant or crowing over a out-of-control judge’s almost certainly unethical conduct is every bit as out of bounds as the judge.

________________________________________

Others Covering: Weapons of Mass Discussion, Citizens for a Better Norwood. To be clear, there are several others commenting on the situation, but as far as I’m concerned, if they don’t mention the non-indictment, or if they speculate on whether he should go to jail (that argument’s over, remember?), they’re demagoguing, not covering.

________________________________________

UPDATE: Another inconvenient fact — I’m given to understand (link to a site that has over time deteriorated from R to NC-17 is here; go to the 11th item at the link) that Brinkman was not present for Ruehlman’s rant. Why would Sharon Coolidge not consider that relevant?
Sharon: Learn it, love it — who, what, where, when, why.

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10 Comments

  1. Tom – I don’t have any issue with you parsing the MSM treatment of the situation with Brinkman. HOWEVER – and I ask this based on how much I respect your work here, if you and I were talking about this case over coffee, and I said to you, Tom, I just cannot see YOU ever behaving the way Brinkman has – whether or not he actually has done anything criminal, would you think I was wrong about you? Because really, that’s part of what I see as the real issue though of course I understand how infuriating it can be when the reports of a situation just don’t do it justice (which is to pose for the reader the question: is Brinkman’s conduct okay? the standard you want? regardless of whether criminal or not).

    Do you know what I mean?

    Comment by Jill — July 23, 2007 @ 2:51 pm

  2. #1 Jill, I don’t think we have the facts out there for a coffee klatch yet.

    Your points are why, as noted in the post, I’m in the “I don’t think so” category on voting for him at the moment, because the standards for earning a vote are/should be higher than they are for walking around as a free person. But there is, or should be, more to come after the sentencing takes place.

    When the time comes, I think he would be well-served to post something complete and thorough at his web site, call everyone’s attention to it, and basically say “here it is.” If an opponent tries to pounce on it (assuming of course that the explanations are objectively satisfactory), it becomes “asked and answered.” If reporters ask, he should just repeat material from the statement, again assuming it’s satisfactory.

    Comment by TBlumer — July 23, 2007 @ 3:50 pm

  3. The good ole boys club is the good ole boys club and trust me, what Deter’s REALLY knows, Ruehlman REALLY knows. Sadly, we’ll never know what is discussed at the Queen City Club. Is that an excuse for irresponsible journalism? Of course not, but I honestly don’t think Ruehlman makes a statement like that w/o knowing what really went down.

    We all know Brinkman’s tactics…ergo I’d be looking at Deters & Co. before the judge.

    Food for thought.

    Comment by Rose — July 23, 2007 @ 4:00 pm

  4. #3, if that’s indeed the case, subsequent attempts by Brinkman to explain himself about what really went down will be unsatisfactory.

    I don’t expect Ruehlman to go after Deters & Co. He has his pound of flesh; I think he was out of bounds to extract it. Whether he had legitimate foundational grounds for engaging in what was nonetheless from all appearances unethical conduct is what Tom Brinkman needs to clear up when the time comes.

    Comment by TBlumer — July 23, 2007 @ 4:11 pm

  5. Hmm. Okay. Well – what would satisfy you? :) I know – you want to wait. So…I’m a patient person. I can wait. But then, I would like to hear your thoughts on what Brinkman could say that is satisfactory because really, will there be such a thing? And, again, I say this because I believe that you and I both, among others I’m sure we know, do act on a higher level, or try to. So that’s the minimum we should expect of an elected official, yes?

    Comment by Jill — July 23, 2007 @ 4:42 pm

  6. Tom:

    I’m not so sure that Judge Ruehlman broke a judicial canon. Judges appear to have quite a bit of latitude to speak freely from the bench about the matters that are before them.

    A signature is the act of signing a document — at least that is how I’ve heard it described regarding election law issues. For example, it includes a name and an address and a date. A package, so to speak. For example, it is improper, I believe for Joe Blow of Denver to sign as Joe Blow of Cincinnati. That is a fraudulent signature — because Joe Blow would have falsified his place of residence on the document’s signature line. Another way of saying it: Joe Blow of Cincinnati is a non-existent person, so his signature is fake. Other problems that can crop up with signatures (and I’m not saying Brinkman did any of this) are bogus dates. So you can find (A) fake names (B) fake addresses (C) fake dates. Any of them can be interpreted –and seems to have been interpreted over the years — as fake signatures, or non-legitimate signatures, because they are part of the act of signing.

    I do admire your defense of Tom Brinkman, Jr. I have known him for years, and while he and I do not share many of the same political viewpoints, I would never, ever characterize him as evil or purposefully corrupt. He is opinionated, and tries to represent the people who vote for him and their point of view.

    Comment by bill sloat — July 23, 2007 @ 5:15 pm

  7. #4, I would never expect an attempt by one good old boy to go after another. IMO, Deters decided that having Tommy Boy expose the ins/outs of his Columbus dealings to SW Ohio is worse and less manageable than finding a “gray area” in this case (but venting to his peers knowing they won’t break “code.”

    While I disagree with Deters on that point, I do agree with you that we don’t know the whole story. I am guessing however, that [at least] one “Paul (or Paulette) Harvey” out there does and is now overtly or not, gleefully monitoring every political move Tommy Boy makes.

    It’s going to be an interesting couple of years.

    Comment by Rose — July 23, 2007 @ 7:40 pm

  8. #5, I agree that the bar is higher, which is why, for example, the Sherrod Brown Dealbreakers in 2006 like the 12 years of back taxes and the DV should have been relevant, but somehow weren’t. But I’ll bet you voted for him, no? I’m suggesting the bar for Brinkman is where it should be, but the bar for others is three inches off the floor. But as you noted re Brinkman, we just have to wait.

    #6 Bill, I thought you would go there with the signature as a unit thing. In my view, properly expressed, there is the signature and there is the data associated with it. Signatures are often DQ’d because something in the data associated with it (i.e., address) is not correct. Brinkman is alleged upon advice of counsel to have changed the data associated with 1,000 signatures. Brinkman is denying even having done that. I think your expressing it as “changed 1,000 signatures” makes it look like forgery, which I believe no one has accused Brinkman of.

    #7, here’s a Q — How tight are the judge and the Schnozz? Can you say “ulterior motive”?

    Comment by TBlumer — July 23, 2007 @ 10:13 pm

  9. Yes, Tom, I did vote for Sherrod. But what I consider a dealbreaker v. what you might consider a dealbreaker – well, that would be a whole nother coffee talk session.

    Comment by Jill — July 23, 2007 @ 10:52 pm

  10. #7, that my dear is why you make the “big bucks!” >;o)

    Comment by Rose — July 24, 2007 @ 10:47 am

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