The Magazine of the Dayton Bar Association | NOVEMBER 2020 | Vol. 70, No. 3
Dayton
Bar Briefs
sue! his is t e d i nter Ins l/Wi nt l a F 2020 E & Eve CL DBA lendar Ca 1-26
pgs 2
Barrister of the Month The Honorable Jeffrey M. Welbaum pg 8
DBA RISING STAR Jamar T. King Esq. pg 16
Justice Ruth Bader Ginsburg Tribute Articles pg(s): 12, 20
CONTENTS
Dayton
Bar Briefs
November 2020 | Vol. 70, No. 3
Dayton Bar Association Board of Trustees 2020-2021
Fredric L. Young
Features 4
8
President
Merle F. Wilberding First Vice President
Denise L. Platfoot Lacey Secretary
Hon. E. Gerald Parker Jr. Treasurer
Rebecca M. Gentry Member–at–Large
Anne P. Keeton Member–at–Large
Justine Z. Larsen Member–at–Large
Sean P. McCormick Member–at–Large
Hon. Mary Wiseman
Immediate Past President
John M. Ruffolo, ex officio Bar Counsel
Jennifer Otchy, ex officio Chief Executive Officer
BAR BRIEFS is published by the Dayton Bar Association, 109 N. Main St., Ste 600, Dayton, OH 45402–1129, as its official publication for all members. Comments about this publication and editorial material can be directed to the Bar Association office by the first day of the month preceding the month of publication. The DAYTON BAR BRIEFS is published September through Summer. Paid subscription: $30 / year Library of Congress ISSN #0415–0945 Jennifer Otchy, Chief Executive Officer
Shayla M. Eggleton, Communications Manager Phone: 937.222.7902 www.daybar.org
Fax: 937.222.1308
The contents expressed in the publication of DAYTON BAR BRIEFS do not necessarily reflect the official position of the DBA.
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Dayton Bar Briefs November 2020
By Anne P. Keeton Esq.| Freund Freeze & Arnold, LLP
BARRISTER OF THE MONTH: THE HONORABLE JEFFREY M. WELBAUM By Thomas J. Intili Esq. | Intili Law Group
10 DIVERSITY ISSUES Healthcare
By Stanley A. Hirtle Esq. | Advocates for Basic Legal Equality
Caroline H. Gentry Second Vice President
TRUSTEES MESSAGE Eyes Wide Open
12 A TRIBUTE To Justice Ruth Bader Ginsburg
By The Honorable Mary L. Wiseman |Montgomery County Common Pleas Court
16 DBA RISING STAR: JAMAR T. KING ESQ. By Ebony D. Davenport Esq. | UDSL 18 FEDERAL PRACTICE Southern District of Ohio Court Operations During the COVID-19 Pandemic By Michael N. Rhinehart Esq. | US District Court, Southern District of Ohio 20 A TRIBUTE We Are Different. We Are One.
By Merle F. Wilberding Esq, | Coolidge Wall Co., LPA
27 FROM THE JUDGES DESK By The Honorable Steven K. Dankof Sr. | Montgomery County Common Pleas Court 28 50 YEAR HONOREES: JOHN H. RION & MARK SEGRETI By David C. Greer Esq. | Bieser Greer & Landis LLP 30 PARALEGAL Loeb and Leopold: Clarence Darrow’s Defense By Sharalie Albanese, Paralegal | The VanNoy Firm Departments 5
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DBA Annual Partners Sponsors of the DBA. Thank You 2020-2021 DBA Annual Partners to Date! Providing annual financial support and partnership in our mission to further the administration of justice, enhance the public’s respect for the law, and promote excellence & collegiality in the legal profession.
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November 2020 Dayton Bar Briefs
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Trustees Message
Eyes Wide Open
By Anne P. Keeton Esq. Member-at-Large Freund, Freeze & Arnold A Legal Professional Association akeeton@ffalaw.com | 937.222.2424
I
frankly struggled to write this article. As I put pen to paper, it is late September. As you read this, it will be mid-November, with all that an election year in this brave new world entails. Would that I had a crystal ball to know what will happen, what the future you will know that the current me does not. As I write, we sit solidly seven or so months into a pandemic that shows no sign of ending, a And, of course, it’s an election year. But not train on a track in a seemingly interminable tunnel. For many of us, our children are either learnjust any election year. An election year where, ing virtually or in some hybrid format, both of which boggle the mind. Some of us found release for the first time in conscious memory, people in a slowed world. Some of us struggle financially. Others have lost loved ones to COVID-19, are flying flags – actual, candidate flags – from knowing they died alone and in pain. Some believe it’s all a hoax, a gimmick, fake news. There their homes. Each camp so entrenched that are maskers and anti-maskers. And, there are those of us – perhaps all of us – who just want the we no longer see reason, much less hear and whole thing to be over. The pandemic alone was enough to open our eyes to the world around answer the call to love our neighbor no matter us and our house divided. how unlovable they may seem. But then Ananias reached out his hand, and scales fell, and those of us who were blind to I don’t have a crystal ball. But, if the next racial injustices could see. Like Saul, I am certainly guilty. I watched as the Klu Klux Klan, or month unfolds in the same way as the nine bewhatever white supremacists call themselves these days, marched down The Lawn at my beloved fore it, it will do so unpredictably and without University of Virginia, torches held high, fiery light cast over contorted faces. I watched. I felt precedent. If you’re like me, the uncertainty is righteous indignation. But I didn’t say anything. I didn’t do anything. Because, in my mind, I at times overwhelming. wasn’t the problem. After all, or so the argument goes, I wasn’t the little girl in my social studies All of which to say, 2020’s been a hell of a textbook, standing in her best white Sunday dress, beaming happily at the prospect of a commuyear. And not in a good way. I think it safe nity lynching, a man’s feet dangling near her face (the rest of his body blessedly edited from the to say the year 2020 has wounded us and reframe). I’m ashamed to say, it took watching a black man, dying face down in the asphalt, crying vealed chinks in the armor of our nation, our for his mother, for me to truly see. I mean, let’s face it. The chance of my sons being murdered community, and ourselves. Wounds that must in the street, crying for their mother, is slim to none. Because they are white. My eyes were be tended and healed, lest they fester. Chinks opened, and I realized that, though I did nothing to deserve it, the foundation of my suburban that must be mended and rewrought stronger two-stick-tree-six-ornamental-shrub life was built on the backs of my brothers on their knees. than before. And now we have neighborhoods divided with Black Lives Matter and SupAnd, that, my friends, is where we come in. We are the port Our Police signs, as though the two ideas are antithetical. (They are not.) next, right thing. As lawyers, we are uniquely positioned Then Ruth Bader Ginsburg, the Notorious RBG, laid her considerable burden to probe and tend these wounds. To identify injustice and down, and generations of women (and men) felt grief. Because, as with Scalia right it. To speak reason and truth to power, and to our before her, regardless of how folks feel about many of her political views, few neighbor. To sow understanding and accord where there can discredit her judicial scholarship or her passion for the law and justice. She is strife. If we will only pick up the burden. and her Italian-American bosom friend, counterweights to the same load, could teach us all a thing or two about discourse and integrity. As seems to happen these days, no sooner had RBG sought her eternal reward than the vultures At the Supreme Court’s private memorial circled and swooped in from both sides of the aisle. Turning what should have been a moment ceremony for Ruth Bader Ginsburg, Rabbi of reflection and honor and dignity and grief into a political feeding frenzy of hypocrisy. (Both Lauren Holtzblatt spoke of Justice Ginsberg as sides should be ashamed of themselves.) a prophet, who saw beyond the world she was Out of that feeding frenzy came the nomination to the United States Supreme Court of Amy in and imagined something different: “And Coney Barrett, whose resume, by all accounts, suggests her qualified for the job. But, she’s a mother! it is the rare prophet who not only imagines a How could she possibly do her job and be a mother? She’s Catholic! How can she possibly do her new world but also makes that new world a rejob and be a person of faith? (Because, you know, faithful women can’t possibly do their jobs.) But ality in her lifetime.” May it also be with us. she might be a deciding vote to reverse prior Supreme Court precedent! Yes, and what else is new? Isn’t that the way of it with Supreme Court appointments? 4
Dayton Bar Briefs November 2020
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Dayton Bar Briefs November 2020
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Barrister of the Month
The Honorable Jeffrey M. Welbaum Second District Court of Appeals Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue. ~ Francis Bacon, “Essay LVI: Of Judicature,” Essays (1625)
W
hen Bacon wrote that essay in the early seventeenth century, he must have imagined self-government, an independent judiciary, and judges like Jeffrey Welbaum. Born in Troy, Ohio, Judge Welbaum graduated from Troy High School in 1970. Four years later, he graduated with a bachelor’s degree cum laude from Defiance College. Onward he went to Ohio Northern University where he worked his way through the Pettit College of Law obtaining his juris doctor degree in 1977. From law school, Judge Welbaum began his legal career in public service, first as a Miami County assistant prosecuting attorney, then as a Miami County assistant public defender, all while maintaining a private practice in state and federal court with the Troy law firm of Miller, Schlemmer and Luring. In 1985, Judge Welbaum reverted from defending the accused to prosecuting them as the elected Miami County Prosecuting Attorney, a ten-year career pursuit interspersed with periodic appointments as a special assistant United States attorney. After fifteen years as a trial judge in the Miami County Court of Common Pleas, eight as its drug court jurist, Judge Welbaum stepped down from the bench to return, once again, to prosecuting as the Chief of Ohio Attorney General Mike DeWine’s Criminal Justice Section. Over his many years as a prosecutor, Judge Welbaum tried dozens of cases, and prosecuted hundreds more. As with every seasoned trial lawyer, a select few of those cases are cemented into Judge Welbaum’s memory. One such case was a death penalty murder-for-hire case that Judge Welbaum tried as the newly-elected Miami County Prosecuting Attorney. The case involved a hitman and middleman both of whom pled to reduced charges after agreeing to testify against a husband accused of contracting for the murder of his wife during their divorce. The husband was represented by well-known defense attorney, the late Howard Swinehart. With at least tacit encouragement from Swinehart, and with information fed to him by the hitman’s wife (who had visiting privileges with her husband in the jail), the hitman gave repeated and conflicting statements to law enforcement about the 8
Dayton Bar Briefs November 2020
Judge Welbaum & Wife Peg at Red Square, Moscow
husband’s involvement in the crime. It was reportedly the hitman’s view that there was no reason for all three defendants to go to prison, if one of them could skate. As was his duty, Judge Welbaum gave each witness statement to Swinehart as they became available. On the eve of trial, Judge Welbaum was preparing his opening statement when a red-faced homicide detective informed him that his hitman star witness had demanded to have sex with his wife, or he would not testify. Knowing that Judge Welbaum was preoccupied with his trial preparation, the detective tossed a mattress into the back of a Chevy van, drove the van to the rear jail house door, and aided the belly-chained hitman into the van. News of the rendezvous inspired revisions to Judge Welbaum’s opening statement. Neither the rendezvous, nor the opening statement surprised Swinehart. Rather, as Judge Welbaum recalls, Swinehart seemed oddly sympathetic. The hitman testified to the basics. He shot and killed the victim. The middleman had indeed hired him. Nevertheless, the hitman was a marvelous witness for the defense, agreeing to Swinehart’s every point, inference, or suggestion on cross-examination. Predictably, the husband was acquitted. Fittingly though, after serving his time on the reduced charge, it was reported in the news that the hitman was shot repeatedly in the back and killed in southeastern Ohio by an angry husband after a high-speed car chase. In a 1988 case, a woman was seen running down a Piqua street in broad daylight with a man following close behind shooting her in the back as she screamed for help. The victim fell on porch steps begging for the help of an elderly woman rocking in a chair. Looming behind the victim was a male holding a revolver clicking on empty and pointed at the victim’s back. The witness and the shooter made eye contact. The elderly woman was about six feet from the suspect before he fled in the direction of the police station. She was the only witness able to identify the suspect from photo lineups. After shooting the victim, the defendant ran directly to the police station and reported that he had witnessed the crime. continued on page 9
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BARRISTER OF THE MONTH: The Honorable Jeffrey M. Welbaum continued from page 8 The elderly woman was understandably terrified to testify. She shook uncontrollably as Judge Wellbaum assisted her to the witness stand. Judge Welbaum stayed close to calm her nerves and narrow her focus. After her trembling testimony as to what she had witnessed, came the big moment to identify the murderer. Judge Welbaum stepped back, arms raised, and asked, “And is the man who you saw shoot that poor woman here in the courtroom today?” After a dramatic pause, she pointed to a man sitting in the last row by the door and said, “That’s him, back there!” After what seemed like an eternity, the elderly woman’s eyes fell upon the defendant; whereupon, she pointed and said, “No that’s him right there!” Then, she turned and pointed at Judge Welbaum and said, “You blocked my view!” The headline in the Troy Daily News the following day was “PROSECUTOR BLOCKS WITNESS’S VIEW.” Reeling, Judge Welbaum asked Judge John Kistler to verify for the record that the witness had identified the defendant. In turn, defense attorney (and former Miami County Prosecuting Attorney), Craig Hallows, asked that the record show that she had first identified the man in the back row as the murderer. Judge Kistler asked the man in the last row to stand and recite his name. The man responded, “Do I have to answer that? I only came to watch my son testify.” Kistler insisted that the man state his name. The man said his name, then asked if he could join his son in the lobby. The judge agreed and Hallows smiled as the man bolted out the door. After a recess, Judge Welbaum called his last witness, a woman washing dishes, who heard gunshots, then saw a man running toward the police station from her kitchen window. During her police interview, she could not identify the man from a photo array. Nevertheless, her mere observation of a man running toward the police station immediately after hearing gunshots was relevant and necessary evidence for the prosecution. After settling in on the witness stand, the woman looked around the courtroom. When she gazed upon the defendant, she proclaimed with certainty that he was the man she saw running. On cross-examination, Hallows whipped out the photo array, “Didn’t you tell the cops that you could not identify the man from this photo spread?” “Yes,” she said. “But, those photos are terrible, I am 100% sure that is the man.” Judge Welbaum sat down never more eager to attend church that Sunday. www.daybar.org
More recently, Judge Welbaum joined the Second District Court of Appeals in February, 2013. He was reelected to a second six-year term that commenced on February 9, 2019. Recognizing his knowledge, skill and experience, the Ohio Supreme Court has pressed Judge Welbaum into service as a visiting judge on that court and as a member of the Court’s Commission on Technology and the Courts. Respected by his colleagues, Judge Welbaum has twice been elected Administrative and Presiding Judge in the Second District. When not in or near the courtroom, Judge Welbaum enjoys scuba diving, fishing in the Florida Keys, bicycling, kayaking on local rivers, and riding his BMW motorcycle. His more memorable dives include exploration of the Caribsea, a Norfolk-bound Panamanian freighter submerged in 90 feet water, sunk with a cargo of manganese by a U-boat off the coast of Morehead City, North Carolina, on March 11, 1942. Adding to one’s diving pleasure, the Caribsea shipwreck is home to a school of 12-foot tiger sharks that enjoy getting up close and personal with divers. Judge Welbaum lives in Troy with is wife, Peg. They enjoy traveling abroad, trips made easier by Peg’s fluency in French and Spanish. Their two adult sons followed in Mom’s footsteps by becoming fluent in Spanish and
Russian. Amidst journeys to Mexico, Europe, and Russia, was a trip to Pamplona, Spain, where Judge Welbaum and son, Andy, ran with the bulls. Thinking he might be killed during that run, the lead bull ran mercifully past Judge Welbaum, not over him. More learned than witty, more reverend than plausible, and more advised than confident, Judge Welbaum’s integrity has distinguished him as a prosecutor, a trial judge, and as an appellate jurist. Once the President of the Miami County Bar Association, as a long term member of the Dayton, Ohio State and American Bar Associations, and as the recipient of numerous awards for charitable and public service, we add to those distinctions our recognition of him as Barrister of the Month.
By Tom J. Intili Esq. DBA Editorial Board Intili Law Office tom@igattorneys.com | 937.226.1770 November 2020 Dayton Bar Briefs
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Diversity Issues
Healthcare T he coronavirus pandemic has sickened and killed Americans of all races and ethnicities, but it has been felt more in African American and Latino communities. Center for Disease Control figures show that as of September 28, 2020, blacks are 18.3% of the reported cases and 20.9% of the deaths,1 even though they are only 13.4% of the US population. Hispanics are 29.2% of the reported cases and 16.6% of the deaths, although they are 18.4% of the population.2 In Ohio, Blacks are 20% of the cases and 18% of the deaths3 even though they are 14.1% of the population.4 Reasons given by the CDC for these disparities include5:
• More health conditions that render minorities vulnerable; • More vulnerable employment with more exposure to the virus, less protective equipment, and less ability to work from a safer home environment; • Less separation from others in their housing and neighborhoods; • Less access to the health care industry. Here facilities have been torn down in minority neighborhoods and new ones built in suburban areas; • And a major underlying reason is discrimination in health care, housing, education, criminal justice, and finance, with the associated trauma that results.6
Many have recognized that this health care disparity is not a peculiarity of the pandemic, but an aggravation of the inequality in health care throughout the society as a whole. As a result, Governors including Ohio’s Governor DeWine, as well as cities like Dayton and counties like Montgomery have declared racism to be a public health crisis.7 The Ohio COVID 19 Minority Health Strike Force Blueprint states “Research estimates that health is shaped by several modifiable factors, including health care or clinical care (20%); health behaviors (30%); and a person’s social, economic, and physical environment (50%). These factors are often referred to as the “social determinants” or “social drivers” of health. Differences in access to, and the allocation of, resources across the modifiable factors that shape health result in inequities, such as housing segregation, poverty, living in high-density neighborhoods, attending high-poverty schools, and incarceration. Health behaviors are also shaped by the environments in which a person lives, including the inequities they face. Racism, other forms of discrimination, and the inequities they create are well documented as drivers of health disparities and poor overall health and well-being in communities of color.”8 For example, medical personnel assume that blacks feel pain less than whites and are less likely to prescribe pain medication.9 Who gets health care depends on who can pay for it. America’s health care payment system differs from that of other industrialized countries, in ways that are more costly and less effective in outcomes.10 Much is a result of
history, and political differences over whether healthcare is a public concern or a personal responsibility. Employer based health insurance developed in the US during the wage controls of World War II. Later Blue Cross Blue Shield became the dominant private insurer but it was challenged by competing insurers whose business model was insuring the healthy, not insuring the sick, denying claims, and creating an expensive infrastructure to do this. continued on page 11
END NO TES: 1
https://covid.cdc.gov/covid-datatracker/#demographics
2
https://www.census.gov/quickfacts/fact/table/US/ PST045219
3
https://coronavirus.ohio.gov/wps/portal/gov/covid-19/ dashboards/key-metrics/cases
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Blacks are 13.1% of Ohio population, Hispanics are 4%.https://www.census.gov/quickfacts/OH
5
https://www.cdc.gov/coronavirus/2019-ncov/ community/health-equity/race-ethnicity.html
6
While some have suggested that participation in handwashing, masks and social distancing may be factors, this may more reflect biased expectations than actual data. Certainly the most publicized resistance to masks and social distancing have been among whites.
https://www.daytondailynews.com/local/coronavirus105426-total-cases-3755-deaths-reported-in-ohio/ KCWMSAKU5RBO5OP7WDTHQNTQDY/ ; https://www.greaterohio.org/blog/2020/7/16/ communities-across-the-state-declare-racism-as-apublic-health-crisis-the-state-considers-it
7
https://coronavirus.ohio.gov/static/MHSF/MHSFBlueprint.pdf at p. 6
8
https://slate.com/technology/2013/06/racial-empathygap-people-dont-perceive-pain-in-other-races.html
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The U.S. spends more on health care as a share of the economy — nearly twice as much as the average OECD country — yet has the lowest life expectancy among the 11 nations. The U.S. has the highest chronic disease burden and an obesity rate that is two times higher than the OECD average. Compared to peer nations, the U.S. has among the highest number of hospitalizations from preventable causes and the highest rate of avoidable deaths. https://www.commonwealthfund.org/publications/ issue-briefs/2020/jan/us-health-care-globalperspective-2019
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DIVERSITY ISSUES: Healthcare continued from page 10 On the government side Medicare for the elderly and disabled and Medicaid for the poor were created during the 1960s war on poverty. Medicare was originally opposed by the American Medical Association but became a major source of income to Health Care providers, and its payment standards are a major influence in health care pricing. Over time Medicaid changes included small expansions of coverage, and the introduction of “managed care” to control costs. Later, global competition and the weakening of labor union power lead to deindustrialization and the loss of high paying jobs with adequate health care benefits. Paying for care became more difficult, particularly for those like minorities who were mostly on the lower end of the income scale. As medical services expanded, pricing became more dependent on bargaining between big provider groups and big insurers, sometimes with lack of coverage while contracts were being renegotiated. This resulted in large gaps between what the uninsured were charged and what was provided through insurance. Those with “pre-existing conditions” would have their needs uncovered, and many were a health problem away from bankruptcy and financial ruin.
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This generated political pressure for health care reform, which tangled with increasing partisan differences and the realities of political campaign finance. The Affordable Care Act, enacted under President Obama, preserves the roles of insurers and market competition. Its main provisions preserved Medicare for the elderly and disabled, expanded Medicaid to much higher incomes than previously, and created a structure of “marketplaces” where subsidized and regulated insurance policies were to be affordable. Everyone was required to buy insurance, and most popularly, young adults were covered under their parents’ policies. There were also a large number of mandates and experiments. Court challenges allowed states to refuse to expand Medicaid, which a number did, but Chief Justice Robert’s deciding vote preserved the law as a whole. Opposition to the ACA intensified during President Trump’s administration, so the ACA has never really had a period of stability to test how it works. Complexities in the system create barriers for patients, providers, insurers and program administrators, and many people, including minorities, still are not covered. Recertifications, disputes over surprise “out of network” billings, changes in eligibility, complex dispute resolution systems and other issues cause difficulty. Financial incentives to serve those whose coverage pays the most show up in the minority health statistics.
Also disparities in the social determinants of health, rooted in historical discriminations of the past, continue to challenge us. Many of these result from ways that various laws are worded, interpreted and enforced. What changes will a recognition that America’s racial inequalities are a public health emergency mean? Whatever consequences there are in interpreting old laws, passing new ones and more funding for government programs may be less significant than America’s willingness to undo its past, give up its express and implicit biases, and recognize that health, like coronavirus, does not care about human race, ethnicity and historical differences. Can legal professionals who are experts in solving problems, work with doctors and legislators to help devise a less complex system that works for everyone? The pandemic proves that everyone is better off if everyone is healthy, and no one deserves to be denied health.
By Stanley A. Hirtle Esq. Advocates for Basic Legal Equality shirtle@ablelaw.org | 937. 228.8104
November 2020 Dayton Bar Briefs
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R.B.G.
A Tribute to Justice Ruth Bader Ginsburg
W
e stand on the shoulders of giants. Although diminutive in stature and soft of voice, Justice Ruth Bader Ginsburg’s fierce intellect and devotion to justice made her a towering giant. She forged a personal and professional legacy of lasting societal impact. Since her passing on September 18, 2020, at the age of 87, she has been eulogized and lauded by innumerable dignitaries, scholars, judges, and lawyers. Hence, we are familiar with the broad points of her biography. She devoted her professional life to gender equality, for both men and women, as well as racial equality. As a lawyer, she participated in five landmark cases before the Supreme Court. During her tenure on the D.C. Circuit Court of Appeals, she forged an enduring friendship with her colleague, Justice Antonin Scalia, which surmounted their ideological differences. She achieved her success in law school under unimaginable strain, propelled by her loving devotion to her husband, Marty. She graciously and cheekily accepted her iconic nickname in popular culture, The Notorious RBG. She bravely fought multiple bouts of cancer with inspiring tenacity. In remembering and giving tribute to Justice Ginsburg, however, the full weight of her legacy cannot be measured merely by her impressive biography and legal accomplishments. Rather, her memory and impact must also account for how she made us feel. To quote another giant, poet Maya Angelou, “I’ve learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.” Across generations and areas of legal expertise, Justice Ginsburg made us all feel that equality was both our right and mantle, with her as our resilient champion and role model. A life and legacy so vibrant, vast, and dynamic as Justice Ginsburg’s requires the input of many perspectives, so I reached out to several prominent attorneys about Justice Ginsburg’s legacy and impact on them. In response, City of Dayton Law Director Barbara Doseck pointed out,
“You can’t dream to be what you don’t see. Justice Ginsburg provided hope to many women pursuing a career in law. She instilled necessary confidence in a judiciary that represented the people it serves. I will always admire her resilience, her intelligence, and devotion to the pursuit of justice.”
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Dayton Bar Briefs November 2020
By The Honorable Mary Wiseman DBA Immediate Past President Montgomery Cty Ct of Common Pleas mary.wiseman@montcourt.oh.gov | 937.225.4384 Similarly, attorney Tamara Sack, noting Justice Ginsburg’s majority opinion in United States v. Virginia, 518 U.S. 515 (1996) striking down VMI’s males-only admission policy, said of Justice Ginsburg, “For me, she epitomized what it means to have the courage of your convictions and the grace to state your position, free of emotion and bravado.”
Gretchen Treherne of Jackson Lewis also commented upon Justice Ginsburg as a multi-faceted role model,
“She demonstrated that one can succeed in the challenging role of an attorney while also enjoying a fulfilling family life. She was undeniably a trailblazer not just for women in the legal profession, but for women in general. I also know men who admired her. I have been inspired by her and have felt tremendous gratitude toward her.”
Justice Ginsburg’s vision, keen intellect, poise, humility, and humor are what resonated most with Erin Rhinehart of Faruki+. Erin summarized her thoughts this way:
“Justice Ginsburg’s ability to see beyond the case in front of her; to see beyond the immediate loss; to see what the future could look like—indeed, should look like; and, how to lead the country down the right path—not with bombastic speech or actions, but with grace, poise, and precision. These are her qualities, her strengths, that will linger with me. These are the qualities I most admire and work tirelessly to emulate—only to fall short most days. But, each day offers a new opportunity to do better, try harder, and, in her words, ‘be a little deaf.’ Therefore, to honor her life, her achievements, we should all endeavor to do better, try harder, and ‘be a little deaf.’”
continued on page 13
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Jane Lynch of Green & Green Lawyers reflected upon her experiences that at times mirrored those experienced, and fought against, by Justice Ginsburg:
“The year after I was born, RBG was one of eight women accepted to Harvard Law School. While there, she and the other women were chastised by the Dean for taking a man’s spot. After transferring to Columbia Law School and graduating first in her class, she had trouble landing a job commensurate with her qualifications, and when she did get a job, it was for less pay. In the late 70’s and early 80’s, I confronted these same issues, but her persistence and example gave me strength. RBG sought equal rights not just as a judge, but also as a practitioner. She firmly believed that legislative changes for equality were as important as judicial recognition of that change. As a practitioner and volunteer lawyer for the ACLU, RBG helped pass the Pregnancy Discrimination Act to protect women from being fired because they were pregnant, helped pave the way for the Equal Credit Opportunity Act, which allowed women to apply for a bank account, credit card or mortgage without a male co-signer, and in her last appearance before the Supreme Court as an ACLU lawyer, she argued against the systematic exclusion of women as jurors, paving the way for that change. It takes a long time for equality to actually take hold, and these small victories are often later taken for granted. Twenty years after RBG entered Harvard, I was told by a male student I shouldn’t be in law school ‘because I was already married.’ I also have experienced the pain of less pay for the same work, and years ago I had to have a male co-signer for a credit card. But because RBG fought these fights from the late 50’s to her death, women became more equal. Not yet fully equal. Attacks on women’s equality still persist, but we are more equal because of RBG.”
Cheryll Bennett, Federal Public Defender, with workplace experiences similar to Jane’s, added that Justice Ginsburg’s legacy includes advocating for racial, as well as gender, diversity:
“She was nothing short of an icon of women’s rights, but was also an advocate for racial minorities and immigrant groups. RBG did for women’s rights what Thurgood Marshall did for the African American community. Her message of perseverance against all odds have sustained many - including myself, at times when we have thought that our efforts have gone unnoticed or have had little impact on change. She began fighting for women and other disenfranchised groups from her earliest career (as in 1967, while teaching at Rutgers Law, she helped to integrate and establish a minority student program at what was then a primarily white, and all-male, school. Within a year, Rutgers began to develop a racially and gender diverse student body). As a woman and a racial minority, I have had to endure disparaging remarks about my qualification to be in law school, to hold my current employment and leadership positions within several organizations. I have been maligned for speaking out against verbally abusive and sexually offensive conduct by males in the workplace; threatened with discipline by male superiors for standing up against discriminatory workplace policies, and watched male employees receive perks denied to female counterparts – all within our esteemed legal profession. While some may have resigned in the face of such adversity, RGB inspired me to stay the course and keep fighting – despite the odds. I fought when I was the only fighter; not just for myself, but like RGB, for the many women in our organization. She inspired me to keep trudging, to never be afraid to be the lone dissenter, and that progress, no matter how small, is still progress.” www.daybar.org
A Tribute to Justice Ruth Bader Ginsburg continued from page 12
Montgomery County Public Defender Kristine Comunale echoed Cheryll’s observation about Justice Ginsburg’s persistence and disciplined focus on incremental change to effect greater long-term progress. Kristine noted that Justice Ginsburg “understood that her endeavor for equal rights for women would be a process that would come one little step at a time.”
As to the monumental progress made by that incremental, arduous process, retired University of Dayton School of Law Professor Susan Wawrose framed that approach best when she said, “An open door is no small matter.” As she explained,
“Even though there is still work to be done, I love that my daughter and young women of her generation were able to grow up with the expectation that they could follow their dreams, and that if they were qualified, they would have the right to participate. An open door is no small matter. I also love that studying, working, and playing side-by-side with equally qualified women is an expectation for my son. For many of these younger generations, the common images of what our world ‘should’ look like have changed as a result of her work.”
Professor Wawrose added,
“What really moves me most powerfully about Justice Ginsburg is the way she managed to combine extraordinary bravery with deep humanity. She took on powerful forces and did so with a quiet, matter-of-fact grace backed by steely fortitude. She modeled self-possession and respect for others. She spoke steadily, but firmly, and in a way that required others to slow down, to listen closely. Family and personal relationships seem to have been always a priority, even when her workload was, as it had to have been, crushing.”
Although we feel profound loss at the passing of Justice Ginsburg, we proudly stand on her shoulders to carry forth her vision of greater equality. Empowered by her victories, informed by her dissents, girded with her example of persistence, humility, poise, dignity, bravery, intellect, and human connection, thanks to her, we feel the most essential human emotion: hope, for a better, more just, future.
November 2020 Dayton Bar Briefs
13
DBA Annual Volunteer Day
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Dayton Bar Briefs November 2020
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November 2020 Dayton Bar Briefs
15
DBA Rising Star
Jamar T. King Esq. Thompson Hine LLP S
ince I have known him, Jamar King has consistently made room for others in our profession while also establishing himself as a skilled, competent attorney. Jamar currently focuses his practice on white-collar criminal defense, corporate internal investigations, and general commercial litigation. A native of Dayton, Ohio and graduate of Chaminade-Julienne High School, many don’t know that he started his career in the legal industry at Rion, Rion & Rion, LPA during an exploration year between his graduation from college at Bowling Green State University and starting law school at the University of Toledo College of Law. Jamar’s experience is a bit unique in that he has worked both in private practice and as an assistant Montgomery County public defender. His wide-breadth of experience allows him to assist his current clients—businesses, organizations, and individuals—involved both criminal and civil litigation at the state and federal levels. He credits his time at the public defender’s office with changing him both as lawyer and as a human being. It exposed him to the many ways that our society fails the underprivileged. No one could argue that Jamar was born with a silver spoon in his mouth, or even that there was one in his entire childhood neighborhood but, growing up, Jamar always held steadfastly to the hope that he could change his circumstances if he worked hard. So many of his clients faced problems that went well-beyond the courtroom and they had no such hope. That time also underscored his drive and taught him to be resourceful in the courtroom. He recalls the harsh realities of being a public defender: limited resources and the presumption of guilt typically placed on criminal defendants. This dynamic forced Jamar to be creative when crafting legal theories to assist his clients. His present-day clients benefit tremendously from his resource16
Dayton Bar Briefs November 2020
fulness, tenacity, and vigorous advocacy when navigating through contentious litigation. That time also renewed his commitment to the community. He spends much of his free time volunteering, and he sits on the board of the Wesley Community Center, a full-service community center in Dayton’s Westwood neighborhood. Jamar is highly regarded within the larger legal community. He is a graduate of the Dayton Bar Association’s Leadership Development Class (2014-2015), and he continues to serve the DBA as a member of the Bar Briefs editorial board. Jamar is also a vital member of the Greater Dayton Area Diversity and Inclusion Legal Roundtable. Jamar is also one of the thirteen appointed commissioners on the Board of the Unauthorized Practice of Law of the Supreme Court of Ohio, which hears and presides over cases involving allegations or unauthorized practice of law throughout Ohio. In 2019, Jamar was recognized by the Black Law Student’s Association at the University of Dayton at the Joseph Cinque Banquet for his contributions to improving diversity in the Dayton area. Most recently, he completed the Ohio State Bar Association’s Leadership Academy. Demonstrating his leadership ability, and his dedication to making our profession more inclusive and fueling the pipeline of diverse individuals entering the profession, Jamar along with Robert Gresham, co-founded the Diversity Summer Clerkship Program. Since the launch of the program in 2015, Jamar has worked diligently to increase employer participation thereby expanding the professional development opportunities available to law students and young attorneys. When I first met Jamar in 2016, I was rounding out my 1L year and participated in the inaugural class—an opportunity that continues to pay dividends years later. I now work with Jamar to coordinate the program, and his commitment to developing young legal talent is evident and unmatched. The clerkship program is especially near and dear to his heart because he remembers what it was like as young law student trying to land his first position. Although he always had plans to return home and work in the Dayton area, going to school in Toledo made it difficult to establish necessary connections making it next to impossible for Dayton or even Cincinnati employers to seriously consider him. Rather than turn away from that challenge, Jamar took matters into his own hands and found an innovative solution to his problem. He finished his final semester of law school in Cincinnati as a visiting student at UC where he attended every single CLE, legal event, cocktail party, and networking opportunity he could. He didn’t stop there though, Jamar followed up with the contacts he made at these events having lunch with as many of them as he could, and because of his tenacity and grit, one of those lunch dates ultimately led to his first offer from Thompson Hine. While Jamar’s journey is an inspiring tale of determination, “luck and the grace of God,” he does not want bright, upcoming students to have to face the same struggle to land a job and find their footing. Jamar works hard on initiatives like the clerkship program and mock interview program to minimize that struggle. continued on page 17
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DBA RISING STAR: Jamar T. King Esq. continued from page 16 He stated that “serendipity should not be the deciding factor in landing a job; merit and talent should.” His work with the mock interview program is an extension of that desire. He admits to “learning on the fly” when it came to interviewing with potential employers. His younger self would have benefited from the chance to practice and hone his skills while receiving meaningful feedback from area practitioners. When asked what piece of advice he would give to a new lawyer entering the profession, he would advise them that the practice of law is very fulfilling and rewarding, but “the lows are as low as the highs are high.” The difficulties inherent to our profession are precisely why it’s important to establish boundaries. He
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mentioned that “it is really easy to overextend yourself…[but]…you have to sit down and be still sometimes. As great as it is to help and do things for others, you have to be intentional about making time for yourself and your family.” Indeed, self-preservation is critical and allows us to be our best selves so that we can better help those in need. Before we ended our conversation, I asked Jamar what he would do for work if the concept of money did not exist. He said that perhaps he would launch a podcast and/ or blog discussing hip-hop music or Lakers basketball. Unsurprisingly, Jamar’s vision also contained remnants of his present, which is devoting time to young lawyers coming after him by sharing his experiences to assist
with their journeys. Jamar is proof of what it means to lift as you climb and I know that I am not alone when I say that I cannot wait to see what he does next.
By Ebony D. Davenport Esq. Chair DBA Editorial Board UDSL davenporte1@udayton.edu | 937.229.3555
November 2020 Dayton Bar Briefs
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Federal Practice
Southern District of Ohio Court Operations During the COVID-19 Pandemic By Michael N. Rhinehart Esq. DBA Editorial Board US District Court, Southern District of Ohio michael_rhinehart@ohsd.uscourts.gov 937.512.1643
L
ike the rest of the world, day-to-day operations in the United States District Court for the Southern District of Ohio -- and federal courts throughout the United States -- have been altered by the COVID-19 pandemic. In an effort to prevent delays in the administration of justice, the Court has issued a number of General Orders regarding Court operations since the pandemic was declared a national emergency in mid-March 2020. Initially, the three federal courthouses in the Southern District of Ohio -- the Potter Stewart U.S. Courthouse in Cincinnati, the Joseph P. Kinneary U.S. Courthouse in Columbus, and the Walter H. Rice Federal Building & U.S. Courthouse in Dayton -- closed effective March 23, 2020 by order issued from Chief District Judge Algenon L. Marbley.i While the courthouses were first closed for a period of fourteen days,ii by early April 2020, Chief Judge Marbley extended the closures through June 1, 2020, and all trials scheduled prior to that date were continued.iii Shortly after closure of the courthouses in mid-March, Congress passed the Coronavirus Aid, Relief, and Economic Security (“CARES”) Activ which, among other things, permitted the use of telephone and videoconferencing to conduct pretrial criminal hearings. Following passage of the CARES Act, Chief Judge Marbley promptly implemented the CARES Act in the Southern District of Ohio and authorized the use of video conferencing throughout the district to conduct, among other proceedings, initial appearances, detention hearings, and arraignments. v Felony plea hearings can also be held via video conferencing in certain circumstances.vi Notably, proceedings conducted by telephone or video remain open to the public and media -- although the strict prohibitions on photographing or broadcasting federal proceedings, such as those set forth in Fed. R. Crim. P. 53, remain in effect.vii All three courthouses reopened to the public on June 1st subject to a Reconstitution Plan adopted by the Court.viii Pursuant to the Court’s Reconstitution Plan, everyone entering the courthouses in Cincinnati, Columbus and Dayton are required to, among other things, be subject to temperature screening upon entry; wear masks upon entry and while in common areas of the building; and maintain a social distance of at least 18
Dayton Bar Briefs November 2020
six feet from all other persons.ix Despite reopening of the buildings, the Court noted that it would “continue to make efforts to minimize the number of on-site court proceedings to protect the health and safety of staff and visitors” and gave each judge discretion as to whether to hold proceedings in-person or by video conferencing. While the Court was hopeful that jury trials could resume shortly after reopening of the courthouses in June, by the end of July, an increase in COVID-19 cases in Ohio resulted in the further continuance of all jury trials.x In addition, the Court ordered that proceedings typically held in open court should be conducted in-person only if “the interests of justice” required.xi continued on page 19 END NO TES: In re: Court Operations Under the Exigent Circumstances Created by COVID-19, General Order No. 20-05 (S.D. Ohio Mar. 20, 2020). ii Id. iii In re: Further Order Regarding Court Operations Under the Ongoing Circumstances Created by COVID-19, General Order No. 20-08 (S.D. Ohio Apr. 3. 2020). iv CORONAVIRUS AID, RELIEF, AND ECONOMIC SECURITY ACT, PL 116-136, § 15002(b), March 27, 2020, 134 Stat 281 v In re: Court Operations Under the Exigent Circumstances Created by COVID-19 with Respect to Video Teleconferencing for Criminal Proceedings, General Order No. 20-07 (S.D. Ohio Mar. 30, 2020). vi Id. vii See In re: Court Operations Under the Exigent Circumstances Created by COVID-19 with Respect to Video Teleconferencing for Criminal Proceedings, General Order No. 20-07A (S.D. Ohio Apr. 3, 2020). viii In re: Further Order Regarding Court Operations Under the Ongoing Exigent Circumstances Created by COVID-19, General Order No. 20-17 (S.D. Ohio May 29, 2020). ix Id. x In re: Further Order Regarding Court Operations Under the Ongoing Exigent Circumstances Created by COVID-19, General Order No. 20-23 (S.D. Ohio July 23, 2020). xi Id. i
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FEDERAL PRACTICE Southern Sitrict of Ohio Ct Operations During COVID-19 Pandemic continued from page 18 Most recently, the continuance of criminal jury trials was extended through the end of September, although all other in-court criminal proceedings continue to proceed via video conference unless the interests of justice otherwise require or the defendant in a particular criminal case declines to consent to a hearing by video.xii Where proceedings are to take place in-court, they will occur in a courtroom equipped with plexiglass (there are two courtrooms per court location that have been so equipped).xiii Civil jury trials are now continued through the beginning of November and all other inperson civil proceedings will continue to be held by either video or telephone conference unless the presiding judge determines that the interest of justice require an in-person proceeding. While civil trials may be on hold for the time being, magistrate judges throughout the district continue mediating cases via electronic means. Of course, the pandemic has altered court procedures and general civil and criminal practice in many more ways than mentioned above. In fact, in addition to the foregoing, the Court has issued General Orders suspending personal service by the United States Marshal,xiv altered the Local Rules governing applications for admission pro hac vice,xv and extended deadlines for forfeiture proceedings,xvi among other orders. A full list of General Orders and updates for the Southern District of Ohio can be found on the Court’s website at ohsd.uscourts.gov. COVID-19 related orders issued by other federal jurisdictions, as well as updates regarding other federal courts, can be found at uscourts.govxvii
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END NO TES: In re: Further Order Regarding Court Operations Under the Ongoing Exigent Circumstances Created by COVID-19, General Order No. 20-27 (S.D. Ohio Sept. 29, 2020). xiii Id. xiv In re: Court Operations Under the Exigent Circumstances Created by COVID-19 Regarding U.S. Marshal Service of Process, General Order No. 20-09 (S.D. Ohio Apr. 6, 2020). xv In re: Court Operations Under the Exigent Circumstances Created by COVID-19 Regarding Pro Hac Vice Applications, General Order No. 20-10 (S.D. Ohio Apr. 6, 2020); In re: Court Operations Under the Exigent Circumstances Created by COVID-19 Regarding Pro Hac Vice Applications, Amended General Order No. 20-10 (S.D. Ohio Jun. 11, 2020). xvi In re: Order Extending Certain Statutory Deadlines for Administrative and Civil Judicial Asset Forfeiture Proceedings and Actions, General Order No. 20-15 (S.D. Ohio May 8, 2020). xvii Court Orders and Updates During COVID-19 Pandemic, United States Courts (Oct. 1, 2020, 3:10 PM), https:// www.uscourts.gov/about-federal-courts/court-websitelinks/court-orders-and-updates-during-covid19pandemic. xii
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November 2020 Dayton Bar Briefs
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R.B.G.
We are Different. We are One.
“W
e are different. We are one.” With that duet, the
remarkable friendship of Justice Antonin Scalia and Justice Ruth Bader Ginsburg, the Supreme Court’s original Odd Couple, was brought to life in the comic opera “Scalia/ Ginsburg” that played to sold-out performances in 2017 and continues to be much in demand. As is well known, Justice Scalia was a staunch conservative and Justice Ginsburg was a staunch liberal. They disagreed all the time in their legal opinions, but they agreed all the time on the importance of the Constitution and the Rule of Law and especially on their friendship. Sadly, they are now both gone. Justice Scalia died on February 13, 2016, and, now, Justice Ginsburg is gone. But their relationship will live on. In a tribute to Justice Scalia after his death, Justice Ginsburg explained the meaning of that operatic duet. “We were different in our interpretation of written texts, (but) one in our reverence for the Constitution and the institution we serve. From our years together . . . we were best buddies.” Many people were perplexed by their relationship, for Scalia and Ginsburg fought bitterly over the words, phrases, and meaning of virtually every controversial decision rendered by the United States Supreme Court. Yet, they remained agreeable with each other as they socialized together, savoring the opera, fine food and fine wine. And that’s not surprising for litigators are often great performers at heart and live larger than life. (My former law partner, Roger Makley, now deceased, use to regale me with stories of when he and Antonin Scalia were competing for the leading roles in the drama classes they attended together at Georgetown University.) Perhaps the best illustration of their friendship was told by Jeffrey Sutton, formerly a law clerk to Justice Scalia and now a judge on the Sixth Circuit Court of Appeals. In recounting his last in chambers meeting with Justice Scalia, he noticed a big vase containing two dozen red roses. Asked about them, Justice Scalia said they were for “Ruth.” Judge Sutton teased Scalia, saying, “What good has that done you? When was the last time . . . that Justice Ginsburg voted with you in a major case?” To which, Justice Scalia smiled and said, “Some things are more important than votes.” And, isn’t that the message we should all take away from the death of The Notorious RBG, as Justice Ginsburg is known to her legions of admirers and fans. Somethings really are more important than votes. Votes are important, as they certainly will be as the nomination 20
Dayton Bar Briefs November 2020
for RBG’s replacement is announced, processed and fought in the Senate and in our hearts. But I am not talking about that ugly political fight. I am talking about how we all live our lives and pursue our goals. There are so many issues for which we all have strong and passionate views, whether the issue is police brutality, racial equality, protests, abortion, or a host of other hot issues. But, even with all those hot issues, like Ginsburg and Scalia, we all can and should agree on due process and the rule of law. Certainly, we have all seen the political messages painted in bigger and bigger letters and we have all heard the decibels of the political messages becoming louder and louder. Oh my, the rhetoric seems to be going over the top. This is when we should stop and smell the roses. Better yet, we should stop and send two dozen roses to Ruth because, in the end, we are different. We are one.
By Merle F. Wilberding Esq. DBA First Vice President Coolidge Wall Co., LPA wilberding@coollaw.com | 937.449.5772
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DBA Fall/Winter
CLE & Event Planning Guide
November - December
2020 www.daybar.org
To Register For DBA Seminars & Events Visit: daybar.org November 2020 Dayton Bar Briefs
21
2020 DBA BENCH BAR CONFERENCE
DAYTON
Thursday, November 12th & Friday November 13th Various Speakers & Court Breakout Sessions!
Bar Association
www.daybar.org 937.222.7902
November 2020
MONDAY
TUESDAY
2
WEDNESDAY
THURSDAY Year
4 4pm-5pm | 1.0 Gen Hr
Estate Planning Trust & Probate:
DNRs, Health Care POAs, and Other Advance Directives Speakers Nancy Roberson and Judy LaMusga.
Neil F. Freund
John H. Rion
Lawrence Henke III.
A. M. Segreti Jr.
Jonas J. Gruenberg
David A. Saphire
FRIDAY
6
Virtual Chancery Club Lunch
Noon-12:45pm The DBA celebrates our 50yr Honorees!
Hon. Michael Merz
10 3pm-5pm | 1.5 Gen Hrs + 0.5 Prof. Conduct 11 Hr Special OMBAC CLE!
Law, Justice, and the Holocaust How the Courts Failed Germany This thought-provoking program will challenge participants to examine the pressures facing judges, prosecutors, defenders, and police – those who are charged with the duty not only to uphold the justice system but also to protect individual liberty. Participants will hopefully come away with a renewed commitment to ensuring that the rule of law in not used as a tool of oppression.
16 3pm-4pm | 1.0 PC Self-Study Hr 17 Diversity Issues Self-Study Video Replay(s)
23
4pm-5pm | 1.0 PC Self-Study Hr Sentencing Disparities & Dangerous Perpetuation of Racial Bias Video Speaker: Prof. Jelani Jefferson Exum Detroit Mercy Law
2020 Annual Domestic Relations Institute pt. 1
Did I Say That? Recognizing & Combating Microaggressions in Legal Profession Video Speaker: Sheila Eason Elevate People Solutions, LLC
18 9am-12:15pm | 3.0 Gen Hrs
Noon-1:30pm | 1.5 Gen Hrs
24
Covid-19: A Labyrinth of Leave – What Law Applies and When? Speaker Caroline Gentry provides a comprehensive overview of the following Acts: Families First Coronavirus Response; Emergency Family and Medical Leave Expansion; and Emergency Paid Sick Leave.
1 | 1:45pm-5:15pm 12 DAY 3.0 Gen Hrs
2 | 9am-12:15pm 13 DAY 2.0 Prof. Conduct Hrs + 1.0 Gen Hr
2020 Bench Bar Conference
Let’s Get it Right. It Could Be Life. It Could Be Death.
• Plenary 1 Picking Cotton: Our Memoir of Injustice and Redemption With Best Selling Author, Jennifer Thompson Cannino and Mark Godsey of the Innocence Project. • Court Breakout Sessions!
• Plenary 2 Ohio Rules of Professionalism &Ethics RULE 1.1: COMPETENCE [8] as it relates to technology, cases brought under review by the Board. Virtual trials, software, tips, tricks & other tech during COVID and beyond. • Court Breakout Sessions!
19 9am-12:15pm 3.0 Prof Conduct Hrs 2020 Annual Ethics Update:
Practical and Ethical Aspects of Managing Your Legal Practice Speakers John Ruffolo, Mark Tuss, Tabitha Justice, Jeff Hazlett provide an update on ethical issues attorneys face.
26
27
DBA OFFICES CLOSED Happy Thanksgiving!
30 Noon-1pm | 1.0 Gen Self-Study Hr Self-Study Video Replay!
Virtual Oral Arguments with Justice French Justice Judith French shares pointers on how to make your virtual oral argument stand out. From courtroom protocol to argument dos and don’ts, you will learn how to best present your case.
For a complete list of seminar details and to register: daybar.org
@Dayton_Bar
@DaytonBarAssociation
NOVEMBER 2020 CLE November 2020 Wed. November 4 | 4pm-5pm | 1.0 Gen Hr OR 1.0 OSBA Cert Speciality Hr Estate Planning Trust & Probate presents:
DNRs, Health Care POAs, and Other Advance Directives
M $35 | New Lawyer <2yrs & Paralegal $15 | Passport & Law Students $0 Speakers: Nancy Roberson, Roberson Law and Judy LaMusga, LaMusga Law Office, LLC Panel discussion of differing perspectives on the preparation and execution of Do Not Resuscitate Orders (DNR), Health Care Powers of Attorney, and other advance directives. The two attorney panelists will offer their knowledge about using the standards forms versus modifying them and the extent to which they modify them, when a DNR is appropriate, and how the other advance directives should be used to supplement the documents to establish the client’s intentions. The healthcare provider panelist will offer the health care fields perspective about the use modified documents and the other advance directives, whether or not they will be honored, and some of the benefits and burdens these documents present to the health care field. In addition, the health care provider will weigh in on the use of DNRs.
Tues. November 10 | 3pm-5pm | 1.5 Gen Hrs + 0.5 Prof Conduct Hr Special OMBAC CLE!
Law, Justice & the Holocaust: How the Courts Failed Germany M $70 | NM $90 | Paralegal $35 | Passport & Law Students $0 Speakers: William F. Meinecke Jr., Ph.D., Historian and Ann O’Rourke, Program Coordinator
This thought-provoking program will challenge participants to examine the pressures facing judges, prosecutors, defenders, and police – those who are charged with the duty not only to uphold the justice system but also to protect individual liberty. Participants will hopefully come away with a renewed commitment to ensuring that the rule of law in not used as a tool of oppression.
Thurs. November 12 | 1:45pm-5:15pm | 3.0 Gen Hrs Fri. November 13 | 9am-Noon | 2.0 Prof Conduct Hrs + 1.0 Gen Hr Both Days | 4.0 Gen Hrs + 2.0 Prof Conduct Hrs
2020 DBA Bench Bar Conference: Let’s Get it Right. It Could Be Life. It Could Be Death.
Two-Day Pricing: M $200 | New Lawyer <2yrs & Paralegal $200 | Passport & Law Students $0 One-Day Pricing: M $115 | New Lawyer <2yrs & Paralegal $100 | Passport & Law Students $0 Various Speakers & Breakout Sessions with the Courts 2020 Bench Bar Co-Chairs: Tom Green, President, Green & Green Lawyers and Hon. Steven K. Dankof, Montgomery Cty Common Pleas Court Mon. November 16 | 3pm-4pm | 1.0 Prof Conduct Self-Study Hr Diversity Issues Series Self-Study Video Replay
Wed. November 18 | 9am-12:15pm | 3.0 Gen Hrs incl. 2.0 Prof Conduct Hrs
2020 Annual Domestic Relations Institute Pt. 1
M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0 Speakers: Gary Gottfried and Diane Kappeler DePascale, DePascale Law Offices The DBA’s Annual Domestic Relations Institute is usually a 6-hour program held all day in April. However, the Institute was postponed due to COVID and with no end in sight, the Institute will now be broken up over two days, one in November and one in December. Timed Agenda: • 9-10am
Annual case law update for family law matters
• 10-11am
Break
• 10:15-12:15pm Ethics/professionalism (2.0 Prof Conduct Hrs)
Wed. November 18 | Noon-1:30pm | 1.5 Gen Hrs
Covid-19: A Labyrinth of Leave - What Law Applies and When? M $50 | New Lawyer <2yrs & Paralegal $25 | Passport & Law Students $0 Speaker: Caroline Gentry, Porter Wright Morris & Arthur, LLP
A comprehensive overview of the following Acts: Families First Coronavirus Response; Emergency Family and Medical Leave Expansion; and Emergency Paid Sick Leave.
Thurs. November 19 | 9am-12:15pm | 3.0 Prof Conduct Hrs
2020 Annual Ethics Update:
Practical and Ethical Aspects of Managing Your Legal Practice
M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0 Speakers: John Ruffolo, Ruffolo Stone & Stone; Mark Tuss, Tabitha Justice, Subashi Wildermuth & Justice and Jeff Hazlett This program is our annual Ethics Update headed by the DBA’s Bar Counsel John Ruffolo. Panelists will provide an update on ethical issues attorneys face. Specific caselaw can be supplemented if needed, all advisory opinions will be of those released by the Ohio Board of Professional Conduct from 2020. Timed Agenda: • 9-10:30am
Case Law Updates
• 10:30-10:45am
Break
• 10:45-12:15pm
2020 Advisory Opinion Updates
Mon. November 30 | Noon-1pm | 1.0 Gen Hr Self-Study Video Replay
Did I Say That? Recognizing & Combating Microaggressions in Legal Profession
Virtual Oral Arguments with Justice French
Mon. November 16 | 4pm-5pm | 1.0 Prof Conduct Self-Study Hr
Self-Study Video Replays
M $35 | New Lawyer <2yrs & Paralegal $15 | Passport & Law Students $0 Video Speaker: Sheila Eason, Elevate People Solutions, LLC
Diversity Issues Series Self-Study Video Replay
Sentencing Disparities & Dangerous Perpetuation of Racial Bias M $35 | New Lawyer <2yrs & Paralegal $15 | Passport & Law Students $0 Video Speaker: Prof. Jelani Jefferson Exum, Detroit Mercy Law
M $35 | New Lawyer <2yrs & Paralegal $15 | Passport & Law Students $0 Video Speaker: Justice Judith French, Ohio Supreme Court
Helping you meet those end year requirements! • Mon. Nov. 16 Did I Say That? Recognizing & Combating Microaggressions in Legal Profession • Mon. Nov. 16
Sentencing Disparities & Dangerous Perpetuation of Racial Bias
• Mon. Nov. 30
Virtual Oral Arguments with Justice French
O u t o f T im e ? G o O n lin e !
DAYTON
D id Yo u K n o w ...
Bar Association
J u d g e s , M a g is t r a t e s a n d A t t o r n e y s la s t n a m e s M -Z c a n c o m p le t e A L L C L E C r e d its O N L IN E ! D u e t o C O V ID -1 9 , t h e O h io S u p re m e C o u r t h a s w a iv e d t h e c a p o n s e lf-s t u d y c o u r s e s + w e b in a r s .
www.daybar.org 937.222.7902
F o r M o r e I n f o : s u p re m e c o u r t .o h io .g o v /A t t y S v c s /C L E /
December 2020
T o R e g i s t e r : d a y b a r.c e 2 1 .c o m
MONDAY
TUESDAY
11pm-4:15pm | 3.0 Gen Hrs The Worker's Comp’ Practitioner as a Jack of All Trades
Speaker Joe Gibson provides Caselaw updates including COVID concerns & H.B. 81.
WEDNESDAY
2 9am-12:15pm | 3.0 Gen Hrs
3 9am-12:15pm | 3.0 Gen Hrs
Juvenile GAL Seminar
Appellate Practice Update
1pm-4:15pm | 3.0 Gen Hrs
Self-Study Video Replay!
2019 Well-Being Skills for the Effective Lawyer
Judge Dankof’s Criminal Law Update
Speaker Judge Steven K. Dankof Sr.
Noon-1pm | 3.0 Gen Hrs Smacked: A Story of Corporate Fiduciary Services— White-Collar Ambition, Partnering with Attorneys, Addiction & Tragedy
15 9am-12:15pm | 3.0 Gen Hrs Labor and Employment:
Worker’s Comp, FMLA, ADA & Discrimination During COVID
Employee & employer’s rights under Ohio’s workers comp’ laws. - Requests for medical leave - State & federal anti-discrimination laws, retaliation and procedural issues.
21 1pm-4pm | 2.75 Gen Self-Study Hrs Self-Study Video Replay!
1:15pm-4:30pm | 3.0 Gen Hrs Federal Practice:
4 1pm-4:15pm | 3.0 PC Self-Study Hrs Self-Study Video Replay!
Practical and Ethical Aspects of Managing Your Law Practice
9 9am-12:15pm | 3.0 Gen Hrs 2020 Annual Domestic Relations Institute pt. 2
Registration $50 - Includes Book!
10 Save the Date! DBA
Holiday Event
1pm-4:15pm | 3.0 Gen Hrs or 3.0 NLT Hrs
12.10.20
YLD NLT: Core Components
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FRIDAY
Estate Planning, Trust and Probate:
Clients, and Other Advisors
7 1pm-4pm | 2.75 Gen Self-Study Hrs 8 1pm-4:15pm | 3.0 Gen Hrs
THURSDAY
16 9am-12:15pm | 3.0 Gen Hrs Real Property Update
17 5pm-6pm | 1.0 Gen Hr
Corporate Counsel Update
11 9am-12:15pm 3.0 Gen Hrs incl. 1.0 Prof Conduct Hr Civil Trial:
Discovery, Dispute Resolution, the Supreme Court, and Ethics Effective, efficient discovery practices, dispute resolution in a COVID-19 world, Supreme Ct Update (U.S. & Ohio) & ethics update for Ohio litigators.
18 9am-12:15pm | 3.0 Gen Hrs DBA Annual CLE Favorite!
Intellectual Property for General and Corporate Practitioners Organized by: Matthew Jenkins
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24
2019 Business Law Basics: Demystifying the Process: Practicing in Federal Court Forming Limited Liability Speakers Hon. Michael Newman, Companies and Preparing Glen McMurry & Daniel Gentry, will introduce the nuts and bolts of Common Business federal civil practice, while walking Contracts attendees through federal civil
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DBA OFFICES CLOSED Happy Holidays!
procedures, sharing strategies and sharing their own experiences in court.
28 1pm-2pm
29 9am-10am | 1.0 Gen Self-Study Hr 30 9am-12:15pm
Self-Study Video Replay!
Self-Study Video Replay!
1.0 NLT or Gen Self-Study Hrs
Managing a Law Practice from a Managing Partner's Perspective
3.0 Gen Self-Study Hrs (incl. 2.0 PC)
2019 Mitigating Compassion Fatigue
Self-Study Video Replay!
2020 Annual Domestic Relations Institute Pt. 1
3pm-4pm | 1.0 Gen Self-Study Hr Self-Study Video Replay!
319am-10:30am | 1.5 Gen Self-Study Hrs Self-Study Video Replay!
Covid-19: A Labyrinth of Leave – What Law Applies and When?
1pm-4:15pm | 3.0 Prof Conduct Self-Study Hrs
Self-Study Video Replay!
Healthcare POAs and 2019 Ethics Caselaw Other Advanced Directives Review
For a complete list of seminar details and to register: daybar.org
@Dayton_Bar
@DaytonBarAssociation
DECEMBER 2020 CLE December 2020 Tues. December 1 | 1pm-4:15pm | 3.0 Gen Hrs
The Workers' Comp Practitioner as a Jack of All Trades
M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0 Speaker: Joe Gibson, Gibson Law Office Wed. December 2 | 9am-12:15pm | 3.0 Gen Hrs
Juvenile GAL Seminar
M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0
Tues. December 15 | 1:15pm-4:30pm | 3.0 Gen Hrs
Demystifying the Process: Practicing in Federal Court
M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0 Speakers Hon. Michael Newman, U S District Court, Southern District of Ohio; Glen McMurry, Dinsmore & Shohl, LLP and Daniel Gentry, Coolidge Wall Co., LPA This program is designed to introduce attorneys to the nuts and bolts of federal civil practice. The panelists, including both practicing attorneys and members of the judiciary, will tell how rules are going to evolve (i.e. initial disclosure, export report requirements, etc.) and they will walk attendees through federal civil procedures while discussing strategies and sharing their own experiences in court.
Wed. December 2 | 1pm-4:15pm | 3.0 Gen Hrs
Corporate Fiduciary Services Partnering with Attorneys, Clients, and Other Advisors
Timed Agenda: • 1:15-3:15pm
Demystifying the Process: Practicing in Federal Court
M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0 • 3:15-3:30pm
Break
• 3:30-4:30pm
Ohio Rules of Civil Procedure Changes: Evaluation of State Court Practice
Thurs. December 3 | 9am-12:15pm | 3.0 Gen Hrs
Appellate Practice Update
M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0 Thurs. December 3 | Noon-1pm | 1.0 Gen Hrs Special OMBAC CLE! $50 - Includes Book!
Smacked: A Story of White-Collar Ambition, Addiction & Tragedy Fri. December 4 | 1pm-4:15pm | 3.0 Prof Conduct Self-Study Hrs
Wed. December 16 | 9am-12:15pm | 3.0 Gen Hrs
2020 Real Property Update
M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0
Self-Study Video Replay!
Thurs. December 17 | 5pm-6pm | 1.0 Gen Hr
M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0
M $35 | New Lawyer <2yrs & Paralegal $15 | Passport & Law Students $0
Practical and Ethical Aspects of Managing Your Law Practice Mon. December 7 | 1pm-4pm | 3.0 Gen Self-Study Hrs Self-Study Video Replay!
2019 Well-Being Skills for the Effective Lawyer
2020 Corporate Counsel Update
Fri. December 18 | 9am-12:15pm | 3.0 Gen Hrs
2020 Intellectual Property for General and Corporate Practitioners
M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0
M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0 Speaker & Organizer: Matthew Jenkins, Jacox Meckstroth & Jenkins
Tues. December 8 | 1pm-4:15pm | 3.0 Gen Hrs
Mon. December 21 | 1pm-4pm | 3.0 Gen Self-Study Hrs
Judge Dankof's Criminal Law Update
M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0 Speaker: Hon. Steven K. Dankof, Montgomery Cty Common Pleas Court Wed. December 9 | 9am-12:15pm | 3.0 Gen Hrs of 3.0 NLT Hrs
YLD NLT - Core Components
Self-Study Video Replay!
2019 Business Law Basics: Forming Limited Liability Companies and Preparing Common Business Contracts M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0 Mon. December 28 | 1pm-2pm | 1.0 NLT or Gen Self-Study Hr
M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0
Self-Study Video Replay!
Wed. December 9 | 9am-12:15pm | 3.0 Gen Hrs
M $35 | New Lawyer <2yrs & Paralegal $15 | Passport & Law Students $0
2020 Annual Domestic Relations Institute Pt. 2
M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0
Managing a Law Practice from a Managing Partner's Perspective Tues. December 29 | 9am-10am | 1.0 Gen Self-Study Hr Self-Study Video Replay!
Fri. December 11 | 9am-12:15pm | 1.0 Gen Hrs, incl. 1.0 Prof Conduct Hr
Discovery, Dispute Resolution, the Supreme Court, and Ethics
M $35 | New Lawyer <2yrs & Paralegal $15 | Passport & Law Students $0
2019 Mitigating Compassion Fatigue
M $35 | New Lawyer <2yrs & Paralegal $15 | Passport & Law Students $0 Wed. December 30 | 9am-12:15pm | 3.0 Gen Self-Study Hrs
Tues. December 15 | 9am-12:15pm | 3.0 Gen Hrs
Self-Study Video Replay!
M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0
M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0
Workers' Comp, FMLA, ADA & Discrimination During COVID
Self-Study Video Replays
Helping you meet those end year requirements! • Fri. Dec. 4
Practical and Ethical Aspects of Managing Your Law Practice
• Mon. Dec. 7 • Mon. Dec. 21
2019 Well-Being Skills for the Effective Lawyer 2019 Business Law Basics: Forming Limited Liability Companies and Preparing Common Business Contracts
• Mon. Dec. 28
Managing a Law Practice from a Managing Partner's Perspective
• Tues. Dec. 29
2019 Mitigating Compassion Fatigue
• Wed. Dec. 30
2020 Annual Domestic Relations Institute Pt. 1
• Wed. Dec. 30
Healthcare POAs and Other Advanced Directives
• Thurs. Dec. 31 Covid-19: A Labyrinth of Leave – What Law Applies and When? • Thurs. Dec. 31 2019 Ethics Caselaw Review
2020 Annual Domestic Relations Institute Pt. 1 Wed. December 30 | 3pm-4pm | 1.0 Gen Self-Study Hr Self-Study Video Replay!
Healthcare POAs and Other Advanced Directives
M $35 | New Lawyer <2yrs & Paralegal $15 | Passport & Law Students $0 Thurs. December 31 | 9am-10:30am | 1.5 Gen Self-Study Hrs Self-Study Video Replay!
Covid-19: A Labyrinth of Leave – What Law Applies and When? M $50 | New Lawyer <2yrs & Paralegal $25 | Passport & Law Students $0 Thurs. December 31 | 9am-10:30am | 3.0 Prof Conduct Self-Study Hrs Self-Study Video Replay!
2019 Ethics Caselaw Review
M $105 | New Lawyer <2yrs & Paralegal $50 | Passport & Law Students $0
2020 DBA BENCH BAR CONFERENCE Thursday, November 12th and Friday, November 13th Various Speakers & Court Breakout Sessions!
Let’s Get it Right. It Could Be Life. It Could Be Death.
Agenda Day 1 - Thursday, November 12th 1:45-5:15pm | 3.0 General Hrs 1:45-2:00pm | Welcome and Introductions DBA President Fred L. Young Shareholder, Green & Green, Lawyers 2:00-4:00pm | PLENARY 1 (2.0 Gen Hrs) Picking Cotton: Our Memoir of Injustice and Redemption The New York Times best-selling author will tell the true story of an unlikely friendship forged between a woman and the man she incorrectly identified as her rapist and sent to prison for 11 years. This will explore the challenges of our ideas of memory and judgment while demonstrating the profound nature of human grace and the healing power of forgiveness.
November 12th | 1:45pm-5:15pm | CLE#2021019 November 13th | 9:00am-12:15pm | CLE#2021020 Both Days | CLE#2021021 Two-Day Event Pricing: Member $200 <2-year New Lawyers & Paralegals $200 FREE for Law Students
Speakers: Jennifer Thompson Cannino, Best Selling Author and Mark Godsey, Director of the Ohio Innocence Project 4:00-4:15pm | BREAK 4:15-5:15pm | Court Breakout Session (1.0 Gen Hr) • Common Pleas Ct Gen Div Crim/Civil | Hon. Steven Dankof • Domestic Relations Court | Hon. Tim Wood • Probate Court
One-Day Only Pricing: Member $115 <2-year New Lawyers & Paralegals $100 FREE for Law Students
5:15pm Adjourn Day 1
Thank You Co-Chairs! Thomas M. Green Esq.
President, Green & Green, Lawyers
Agenda Day 2 - Friday, November 13th 9:00-12:15pm| 2.0 Prof Conduct Hrs + 1.0 Gen Hrs
The Honorable Steven K. Dankof Sr.
Montgomery County Court of Common Pleas
9:00-10:00am | PLENARY 1 (1.0 Prof Conduct Hr) Professionalism and Ethics Speaker: Allan Ashbury Director, Board of Professional Conduct, Ohio Supreme Court
Thank You Sponsors! SUPREME SPONSORS:
Discuss Ohio Rules of Professional Conduct RULE 1.1: COMPETENCE [8] as it relates to technology, cases brought under review by the Board
10:00-11:00AM | PLENARY 2 (1.0 Prof Conduct Hr) Speakers: Thomas M. Green, President, Green & Green, Lawyers Terry Posey Jr., Gottschlich & Portune, LLP
DISTRICT SPONSORS:
DAILY COURT REPORTER
Lexis Nexis OBLIC Proteus
Discuss attorneys being technologically proficient during COVID and beyond, tips and tricks for virtual trials, new software for virtual meetings, etc.
11:00-11:15AM | BREAK 11:15-12:15PM | Court Breakout Session (1.0 Gen Hr) • US District Ct. Southern District of Ohio | Hon. Michael Newman • Juvenile Court | Hon. Anthony Capizzi • Ohio Second District Court of Appeal | Hon. Michael L. Tucker 12:15PM Adjourn Day 2
The Dayton Foundation Daily Court Reporter NFP *Formerly Rogers McNay Insurance Co.
From the Judges Desk By The Honorable Steven K. Dankof Sr. Montgomery County Court of Common Pleas steven.dankof@montcourt.oh.gov | 937. 225.4409
G
reetings, Sisters and Brothers of the Bar. It’s been quite some time since we communed on these pages. I am a “Military Brat”, the son of Col. Karl E. Dankof who died in May, 2009 and lies at Arlington, the plantation wrested from Bobby Lee, that traitor defeated by Ohio’s favorite son and Savior of the Union, U.S. Grant, of Pt. Pleasant, Ohio. As opposed to the mutable and multiple versions1 of certain commandments in a Bronze Age compilation of writings known variously as The Torah or The Bible, the Colonel imparted to his young son commandments more succinct and certainly more valuable: don’t lie and keep your word, no matter the cost; don’t unnecessarily harm any living thing; and stand for something. Simple enough, right? Not necessarily within the halls of the Justice Complex where I gladly toil for the people. But what of the oath of office that every Ohio judge takes upon assuming office:
“I do solemnly swear that I will support the Constitution of the United States and the Constitution of Ohio, will administer justice without respect to persons, and will faithfully and impartially discharge and perform all the duties incumbent upon me as (judge) according to the best of my ability.”2
Simply put, every Ohio judge solemnly promises to provide actual, authentic, real due process to the people appearing before them. Do we? www.daybar.org
A pack of lies told by a 12 year old boy, pressured by Cleveland Police, sent my friend Ricky Jackson to Ohio’s Death Row and prison for 39 years, 5 months and 27 days for a murder he didn’t commit. In a case arising out of Huber Heights and Montgomery County, Ohio in 1984, two Defendants were wrongfully convicted and served more than 11 years in prison based on police and State misconduct. Of the first 325 DNA exonerations3, 235 or 72% involved mistaken eyewitness identification testimony. Several of those exonerations involved bogus and debunked forensic “evidence”4. In 88 of the exonerations, a demonstrably false confession was offered and 48 of the cases involved snitches and informants. We needn’t Sherlock Holmes to find the culprit in these wrongful convictions: it’s the trial judges who, for one reason or another, haven’t done their job with the rigor demanded by our lofty oaths. As but another example and as so eloquently detailed by Justice Stewart in Mohamed V. Eckelberry, Slip Opinion 2020Ohio-4585, it is the trial judges who misuse bond and bail to illegally detain, pretrial, citizens presumed innocent. The point is this: do your job and make the trial judges do ours. Hold us to task, collegiality and congeniality be damned. And as you journey forth, keep your word and tell the truth, no matter the cost. And stand for something. You’ll be well on your way to a satisfied mind and a principled life. Until we meet again on these pages….
END NO TES: 1 Exodus 20:2-17, 34:10-26; Deut. 5:6-21; Leviticus 19 (verses 3-4, 11-13, 15-16, 30, 32. 2 ORC 3.23. 3 Which is to say innocent people definitively proven by DNA evidence to have been wrongfully convicted of crimes they could not possibly have committed. 4 Arm yourselves with the 2016 Report to the President – Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, the so-called PCAST Report, and employ legitimate forensic experts in sifting and winnowing in a search for the truth.
Ad Index Daily Court Reporter...................20 Eikenbary Trust............................7 Ferneding Insurance....................5 LCNB Bank.................................11 NFP/Rogers McNay Insurance......17 OBLIC............................back cover R.L. Emmons & Associates............5 Security National Bank................9 Trisha M. Duff - Mediations.........17 November 2020 Dayton Bar Briefs
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50Year Honorees
2020 Class of DBA Fifty-Year Honorees Year
Neil F. Freund
Lawrence W. Henke III.
Jonas J. Gruenberg
John H. Rion
A. M. Segreti Jr.
David A. Saphire
Freund, Freeze & Arnold A Legal Professional Association
Judge Michael R. Merz US District Court
H
Rion Rion & Rion, LPA, Inc.
Montgomery County Common Pleas Court
ere is the second of the Bar Briefs three-part tribute to those members of the Class of 1970 who have served their first half century as practitioners of our profession.
John H. Rion, Criminal Defense Attorney Rion Rion & Rion, LPA, Inc.
In 2019 John Rion was characterized by the Dayton Daily News as “the Dean of Dayton’s Criminal Defense Bar.” That sums up the lost list of accolades he has earned and the long list of professional associations and committees on which he has served in his field of board-certified legal specialization. He has served as President of the American Board of Criminal Lawyers, and in the oral history he provided to the Dayton 28
Dayton Bar Briefs November 2020
Coolidge Wall Co., LPA
The DBA will also be Celebrating the 50 Year Honorees during the November 6th Virtual Chancery Club Luncheon! RSVP to Chris: calbrektson@daybar.org
Bar Association, he characterized himself and the others who practice criminal defense law as follows: “If I were a fish, I would be a salmon because they are always swimming upstream, and they don’t require a lot of public acceptance because, in their mind, they are sticking up for somebody against a bully. And if the crowd doesn’t like it, then the crowd is wrong.” Here are his thoughts on reaching the fiftieth year of his colorful practice: One would think that being in the practice for fifty years, that a multitude of good and bad experiences would have presented themselves. I have either internalized both or managed to maintain a balance. This has been done through decades of training associated with maintaining confidential relationships. Therefore, I don’t have much to add on those suggested topics. Of course my greatest mentor was my father, Paul W. Rion. My father started our practice less than a decade after the Great Depression and worked hard every day to raise and support his family. He gave good advice, was a great example, and his word was his bond. Among the lessons that I was taught by my mentors, including my father, was to let your opponent walk away with something so that both sides felt like they had been treated fairly. Of course, my wife, Barbara, of fifty-four years, was the consummate mentor. In addition to giving me good advice, she never flinched when someone asked how I could represent someone accused of going astray. Among my mentors were the clerks and the bailiffs. I found them to be very generous with advice and recommendations. Our system could not function without the hard work of the clerks, the bailiffs and the staff of the judges. continued on page 29
937.222.7902
Mark Segreti Montgomery County Common Pleas Court Mark is presently engaged as staff attorney to Judge Richard S. Skelton. He has had the good fortune of a variety of roles in his fifty years as a lawyer. Here is his account of those years which he describes as “Fortunate, Indeed.” To some extent we are in a “Groundhog Day” repeat of the last quarter of law school in 1970. The quarter was suspended after protesters walked through demanding “Shut it Down” which occurred after the killings at Kent State: “Four Dead in Ohio.” Nevertheless, graduation occurred at Ohio Stadium where my law degree was accompanied by a commission in the United States Army as a second lieutenant assigned to armor. I had been fortunate to qualify for a special program created in late 1968 for graduate students to become R.O.T.C. students during law school, as opposed to being drafted to serve, most likely, in the infantry in “Nam.” This fortunate circumstance continued as I was assigned to Fort Knox to train draftees heading to Vietnam. I was further fortunate to become a “90-Day Wonder” when active duty changed to only three months of duty and a commitment to the reserves (meetings and summer camps) in the good old USA. Thereafter, I found law practice interesting and challenging, but preferred civil trial work to my initial assignments in real estate and finance law assisting developers construct apartment complexes throughout suburbia in the early 1970’s. Trial practice led me to the Ohio Attorney General’s office and the newly created Environmental Law Section, to hone litigation skills to accomplish the goal of saving the world from the control of “profit is not a dirty word in Ohio.” This was exciting work, but frustrating, calling into question whether the judicial system was really designed to accomplish what law school professors told us was possible. I still remember one of my first cases where I was assigned to an appeal filed in the Fifth District Court of Appeals by a real estate developer, represented by a former Supreme Court justice. After carefully studying and analyzing the agency records and potential legal sink holes, as well as all the case law I could find without electronic research, I was prepared for oral argument. I addressed the Court of Appeals panel, like (or as), “Mark Segreti, for the People.” One unnamed member of the appellate panel sent out the opening salvo: “Mr. Segreti, who empowered you to get on your bicycle in Columbus and ride out here to Licking County?” My preparation did not cover this inquiry. Years later I ran into another former Supreme Court justice who had not been re-elected, so he joined a large law firm as a trial attorney. He was defending the manufacturer and retailer of a paint-thinner that some young teens had used in “huffing” to get a high, and one had died. The former justice was viciously attacking a restraining order that I had the audacity to seek and secure from a visiting judge, to stop www.daybar.org
sales until warnings could be put in place. The trial judge, later to be a Supreme Court justice, heard the former justice’s persuasive (and successful) argument: “Why Judge Wright, this paint-thinner is not at all harmful. I’ll show you by drinking a can of it right now to show you this restraining order must be vacated.” Again, my preparation did not include that type of advocacy. Seemingly centuries later, I was one of the trial attorneys representing CSX Transportation (formerly B&O Railroad) in the great Miamisburg Train Derailment class action lawsuit; a beautiful combination of civil procedure, federal preemption, railroad safety, and environmental safety – right up my alley. An issue in the case was whether airborne phosphorus gas in the form of a smoke cloud, increased by the addition of water from fire hoses, and dispersed throughout the area, was toxic to any residents or workers subjected to the cloud. The local television stations repeatedly played a video of the huge white, phosphorus cloud and reported a myriad of opinions about its suspected highly flammable and toxic nature. After the jury was seated, opposing counsel informed us and the Court that he was going to play the television videos during opening statement, but assured all that the sound would not be audible so the Court allowed it over objection. Of course, the class action guru from Cincinnati “mistakenly” played the video with the audio barking out the “expert” opinions from the television newsroom about all the possibilities of toxicity and injury. After calling on all my knowledge (scant) of the grounds for a mistrial and recollection of every potential prejudice, and articulating it all in rapid fire sequence with full confidence that no potential prejudice was left to the imagination, the trial continued with the quick response, “Overruled.” I have been fortunate to enjoy the challenges of the practice and the competitiveness of trial work and the belief that what I was doing was, indeed, a significant role in our society and our system of government; much in danger at this time. I have been fortunate that Peggy is an understanding wife, hearing previews of arguments, gripes, and criticisms, as well as joyful occasions, over the years practicing to be “more perfect” at this mostly honorable profession. We are fortunate to have had three healthy children and now seven healthy grandchildren. In intersecting with both the children and grandchildren, I am still confronted with the reality that no matter how “studied up” and logical, rational and compelling my advice is, sometimes they take the role of the wrong judges and succinctly decline to follow the sage and indisputably correct recommendations offered from their most elder relative. Again and again I will focus on being grateful and fortunate to have the opportunity to work and serve clients and the community, often in difficult times; and joyful effort seeking justice, loving mercy, and humbly trying to contribute a small token for the good of the order; to be faithful to the honorable intention to help bend that proverbial arc toward justice, truth and fairness. High-sounding ideals can still be part of law practice. Justice is an elusive goal. To be continued . . . . .
By David C. Greer Esq. DBA Editorial Board Bieser Greer & Landis LLP dcg@biesergreer.com | 937.250.7773 November 2020 Dayton Bar Briefs
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Paralegal
Loeb and Leopold: Clarence Darrow’s Defense
H
ow insane he is I care not, whether medically or legally. They did not reason; they could not reason; they committed the foolishest, most unprovoked, most purposeless, most causeless act that any two boys ever committed, and they put themselves where the rope is dangling above their heads, by their act.1 Attorney Clarence Darrow, in his twelve-hour summation, acknowledged his clients, Richard Loeb and Nathan Leopold, had committed an atrocious crime.2 However, in doing so, he also asserted such behavior demonstrated the diseased minds of the two because it “was a truly motiveless act, without the slightest feeling of hatred or revenge.”3 This lack of hatred and revenge stemmed from their fascination with Fredrich Nietzsche’s philosophy, which purported “supermen like qualities lie not in their genius, but in their freedom from scruple” providing that these “supermen” were “above the law.”4 “What they thought was right, not because sanctioned by any law beyond themselves, but because they did it… from the will of superabundant power within themselves.”5 The two believed “the laws for evil did not apply to anybody who approached the superman.”6 It was such a belief of superpower that prompted their endeavor to commit the perfect crime. After many months of planning the murder and ransom demand, on May 21, 1924, Nathan Leopold and Richard Loeb kidnapped and murdered fourteen-year-old Robert “Bobby” Franks as he walked home from school.7 After killing Franks, the two used hydrochloric acid to attempt to destroy any identifying features; however, upon their placing the body in a drain filled with water, a great deal of the acid washed away allowing the body to easily be identified.8 In addition to their failure to insure it impossible to identify Franks, Nathan Leopold dropped his glasses, which could easily be traced to him.9 Within days of killing Franks, Loeb and Leopold had confessed and the prosecution began making their case for the death penalty.10 Initially, the two defendants plead not guilty, but on July 21, 1924, they both withdrew
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Dayton Bar Briefs November 2020
By Sharalie Albanese Chair Paralegal Section The VanNoy Firm salbanese@thevannoyfirm.com 937.952.5043
their previous not guilty pleas and both entered guilty pleas.11 Darrow also asked for a bench trial rather than a jury trial. He hoped one judge would be easier to persuade than twelve jurors. In doing so, Darrow’s strategy was to prove both to be not guilty by reason of insanity. During the trial, Darrow argued his clients were but boys with the “burden of adolescence, of puberty” plagued by fantastical thoughts.12 These fantastical thoughts embraced Nietzsche’s philosophy as truth, which Darrow asserted the two “could not have believed it excepting that it either caused a diseased mind or was the result of a diseased mind.”13 continued on page 31 END NO TES: Clarence Darrow’s Plea for Mercy and Prosecutor Crowe’s Demand for Death Penalty, “Attorney Clarence Darrow's Plea for Mercy in The Franks Case”, (1924) Wilson Publishing Company, 2 South Morgan St., Chicago,Ill., P. 20. http://moses.law. umn.edu/darrow/documents/Leopold_Loeb_Darrow_Crowe_arguments.pdf 2 People of the State of Illinois v. Nathan F. Leopold, Jr. and Richard Loeb 3 Id at 18. 4 Id at 59 5 Id 6 Id at 57 7 People of the State of Illinois v. Nathan F. Leopold, Jr. and Richard Loeb, Transcript of Court Proceedings July 23 to July 25, 1924, p. 36. http://moses.law.umn.edu/ darrow/documents/Leopold_Loeb_Transcript_July23_July_25_pp_1_508.pdf 8 Id at 39 9 Id at 54 10 Id at 61-63 11 People of the State of Illinois v. Nathan F. Leopold, Jr. and Richard Loeb, Transcript of Court Proceedings July 23 to July 25, 1924, p. 7. http://moses.law.umn.edu/darrow/ documents/Leopold_Loeb_Transcript_July23_July_25_pp_1_508.pdf 12 Clarence Darrow’s Plea for Mercy and Prosecutor Crowe’s Demand for Death Penalty at 57. 13 Id at 59 1
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PARALEGAL: Loed and Leopold: Clarence Darrow's Defense continued from page 30 In addition to such adverse influences as Nietzsche’s philosophy, Darrow also asserted the lasting effects of World War I go beyond the fighting on the battlefields but reach society as a whole causing an influx of violence. In asserting so, Darrow stated: For four long years the civilized world was engaged in killing men. Christian against Christian, barbarians uniting with Christians to kill Christians; anything to kill. It was taught in every school, aye in the Sunday school. The little children played at war. The toddling children on the street.14 In emphasizing these environmental influences on the defendants, Darrow stated plainly, “I know these boys are not fit to be at large” acknowledging the necessity for the two to go to prison away from society, but held they should not receive death for their crimes due to their age and mental state.15 On September 1, 1924, Loeb and Leopold were sentenced to prison; Loeb received ninety-nine years for kidnapping and ransom while Leopold received ninety-nine years for kidnapping and ransom and life for the murder of Robert Franks.16 Darrow’s strategy succeeded in persuading the judge to sentence the two to prison rather than condemn them to death due to their young ages. The United States Supreme Court concurred in Roper v. Simmons, 543 U.S. 551 (2005) ruling it unconstitutional to put to death anyone under the age of eighteen as “when a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.”17 In line with the
Supreme Court, Ohio law prevents the execution of anyone under the age of eighteen years of age.18 On the question of the death penalty, Ohio maintains capital punishment for cases with specific circumstances.19 Almost one hundred years later, this case, referred to as the “Crime of the Century,” remains relevant and the dire questions raised continue to spark fierce debate. Many believe the mercy shown by the court was just and justified. Although Richard Loeb was murdered in prison in 1936, Leopold proved to be a contributing member of his prison community and his community in Puerto Rico after his release from prison in 1958. Many others believe the court’s mercy was not just or justified as they were allowed to live while Bobby Franks was given no such mercy and the senseless nature of the murder compounded the crime. Moreover, they argue Leopold’s ability to become a contributing member of society proved he did not have a “diseased mind” and his actions were that of an adult nature, therefore, so should his punishment have been. As a society, we each hold our own views on the age of accountability and the death penalty. These differing views stem largely from experience and deep seeded beliefs regarding right and wrong. Never will there be full agreement on when a person is fully accountable for their actions nor will there ever be agreement regarding the use of the death penalty. Nevertheless, we each should never stop listening to opposing views. END NO TES: Clarence Darrow’s Plea for Mercy and Prosecutor Crowe’s Demand for Death Penalty, “Attorney Clarence Darrow's Plea for Mercy in The Franks Case”, (1924) Wilson Publishing Company, 2 South Morgan St., Chicago, Ill., P. 81. http://moses.law. umn.edu/darrow/documents/Leopold_Loeb_Darrow_Crowe_arguments.pdf 15 Id at 82 16 Sentencing Documents of Nathan Leopold and Richard Loeb http://moses.law.umn. edu/darrow/documents/Leopold_Loeb_Sentencing.pdf 17 https://deathpenaltyinfo.org/u-s-supreme-court-roper-v-simmons-no-03633#consensus 18 R.C. 2929.02(A) 19 R.C. 2929.04 14
Did You Know? You can read the past 6 years of Bar Briefs online on our archives page Just Visit: daybar.org/barbriefs www.daybar.org
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Dayton Bar Briefs November 2020
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M embers O n T he M ove The Intili Group law firm is pleased to announce that its founder, Thomas Intili, has been recognized by Best Lawyers in America®. Mr. Intili is an AV-rated 5.0/5.0 trial attorney with more than thirty years of courtroom experience. He has received national and international recognition in cases involving medical INTILI negligence and trademark infringement. He has appeared on The Today Show and has been interviewed by various broadcast and print media in the United States, South America, Asia and Europe, including Der Spiegel.
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November Classifieds AUMAN, MAHAN, AND FURRY IS HIRING ATTORNEYS. Auman, Mahan & Furry represents large and small businesses in transactions and contracts, employer’s side labor and employment, employer’s side workers’ compensation, OSHA defense construction law, litigation, and other matters. AM&F seeks to hire full and / or part-time Associate Attorneys to support all practice groups. Duties may include legal research and drafting of pleadings and motions, drafting and review of contracts and business transaction documents, attending hearings before the Ohio Industrial Commission, advising and representing clients in business transactions and in all phases of litigation, attending trade association meetings, and public speaking to industry groups. The ideal candidates will have at least 2-5 years of experience, but more experienced attorneys with their own book of business and even new attorneys will be considered. Compensation will be commensurate with experience and benefits are available. Flexible hours are available for part-time candidates. Please submit resume to Michael W. Conrad, Office Administrator, at mwc@amfdayton.com.
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BEAUTIFUL OFFICE SPACE AVAILABLE DOWNTOWN DAYTON Local law firm looking to share existing office space in Performance Place, next to Schuster Center. Class A, up to 4 offices. Access to 2 conference rooms, file space, kitchen, copier/scanner. Parking under building included. Receptionist included. Cleaning included. Contact Amy Suber 937-913-0200 CROSS TRAINED FORENSIC PSYCHOLOGIST For expert opinion on guardianship, custody/parenting time, or emotional damage issues by Ph.D. psychologist with earned ABA approved J.D. degree jamesdanielbarna.com CLIP THIS AD + SAVE LOCAL COURT RULES Dayton Municipal Court has proposed changes to the Local Court Rules. Please visit the Dayton Municipal Court at: daytonmunicipalcourt.org for notice of and an opportunity to view and comment on proposed local court rules.
MEDIATION.ARBITRATION Dennis J. Langer Retired Common Pleas Judge LangerMediation.com (937) 367-4776 MEDIATION/ARBITRATION William H. Wolff, Jr., LLC Retired Trial and Appellate Judge Phone: (937) 293-5295 (937) 572-3185 judgewolff@woh.rr.com MEDIATIONS Jeffrey A. Hazlett Esq. 5276 Burning Bush Lane Kettering, Ohio 45429-5842 (937) 689-3193 hazlettjeffrey@gmail.com nadn.org/jeffrey-hazlett NEED A MEDIATOR/ARBITRATOR? JOHN M. MEAGHER, Judge (Retired) Adjustable fees 25 Years Resulting in 2,100+ Mediations 50+ Arbitrations Call (937) 604-4840 Jmeagher2@gmail.com
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GLreater D aytonOV olunteer L awyers aw -R elated rganizations Greater Dayton Volunteer Lawyers Project
O
ctober was Celebrate Pro Bono Month! We are grateful for all the amazing attorneys who volunteer their time, talent and treasure to provide pro bono services to low-income individuals in need in our community. It’s hard to pick just one volunteer to highlight – so we picked two! Wayne Novick and Elizabeth (Liz) Chinault make up a stellar tag team bankruptcy firm in Dayton. Wayne and Liz have been consistent rock star volunteers for the Greater Dayton Volunteer Lawyers Project for more than fifteen years. GDVLP clinics set three to four clients with one volunteer attorney who will represent them through the whole Chapter 7 process. Wayne and Liz generously take on one Chapter 7 bankruptcy clinic after another and never say no. On top of their clinic participation, they are always available to answer staff questions about any bankruptcy related issue. Recently they shared their expertise in a CLE event to train new bankruptcy volunteers. We salute their hard work, dedication, and belief in the GDVLP’s mission!
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L aw -R elated O rganizations Dayton Bar Foundation
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he Dayton Bar Foundation (DBF) is the charitable giving arm of the Greater Dayton Legal Community. Your contribution will enable the DBF to continue to fulfill its mission of funding innovative local organizations in their quest to improve our community by promoting equal access to justice and respect for the law. In the past few years your contributions helped to fund grants to:
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