(12-24-20) Chief Justice Maureen O’Connor of the Ohio Supreme Court has removed Judge Mark Fleegle of the Muskingum County Court of Common Pleas who held in-person hearings throughout the pandemic without issuing written COVID-19 protocols from overseeing two planned trials.

Judge Fleegle

Fleegle insisted on conducting two scheduled criminal trials in person this month, according to the disqualification order from the Ohio Supreme Court , and has asserted that state safety mandates were “recommendations” rather than orders he was obliged to enforce in his court.

And while Judge Fleegle agreed to require masks in his courtroom after a recent challenge by a defense lawyer, he has never put in writing how he would help protect jurors and other trial participants from passing the virus.

Judge Fleegle, of Zanesville, Ohio, also failed to sufficiently explain the “urgency of going forward with the two jury trials at this particular time,” according to the decision.

Judge O’Connor

Justice O’Connor said –

“Even if Judge Fleegle is convinced that he can preside over a safe jury trial without any sort of written protocol, he should recognize that other people take public-health recommendations very seriously and that the health concerns of attorneys and parties should be an important factor in deciding whether to proceed with jury trials during this phase of the pandemic.”

Judge Fleegle was targeted with a removal affidavit in November from Columbus criminal defense attorney Harry R. Reinhart, who represents two criminal defendants with cases before the judge.

Reinhart said he previously objected to Judge Fleegle’s decision to hold pretrial hearings in person rather than on Zoom and described the judge’s decision allowing jurors, prosecutors and others in court to forgo masks as unreasonably risky. Reinhart told Law360 that Judge Fleegle himself only began wearing a mask in court after the state Supreme Court requested his response to the affidavit.

Supreme Court Action by Chief Justice O’Connor In re Disqualification of Fleegle,___ Ohio St.3d ___, 2020-Ohio-5636

Portion of O’Connor’s reasoning –

During this public-health emergency, a judge’s priority must be the health and safety of court employees, trial participants, jurors, and members of the public entering the courthouse. Attorneys and the public have a right to know what steps a court is taking to keep them safe while the court continues conducting essential business. If attorneys or litigants believe that judges are not taking seriously recommendations from this court, the governor, or other public-health officials, and that as a result the health of trial participants, jurors, or the public is at risk, the judge’s disqualification may be sought. If a judge cannot prove that he or she has taken steps to protect the safety of individuals in the courtroom, the judge may be disqualified, especially if the judge cannot also articulate the necessity of proceeding with jury trials during this dangerous stage of the pandemic. The consistent guidance from the Ohio Supreme Court has been to utilize technology to conduct the business of the court. Judges in the courts of Ohio have successfully employed technology as sophisticated as Zoom and as basic as a conference call to ensure the safety of litigants, attorneys, staff, and members of the public. There is no mention in Judge Fleegle’s response that the court has employed technology to reduce the flow of people through the courthouse. The guidance from this court has recognized that even during this pandemic there may be the need to schedule an in-person hearing for matters such as a civil protection order, etc. If, in what should be rare occasions, in-person hearings or trials cannot be avoided, judges must ensure that scrupulous safety practices are followed, and they must effectively communicate those practices to all participants. By failing to follow the Ohio Department of Health and Governor DeWine’s directives, a judge endangers the health of those who enter the courthouse and their families, etc. A judge’s noncompliance whittles away at the public’s trust and confidence in the judiciary.