In Painesville, Ohio, Municipal Court Judge Michael Cicconetti decreed that Diamond Gaston, tried for assault for pepper-spraying another woman in the face, had to choose between spending a month in jail or getting pepper-sprayed in her face by the victim. Judge Cicconetti—the sly fox—had secretly had the pepper-spray replaced with a saline solution without telling Gaston, who was his victim. In the same week, Cicconetti sentenced a woman who failed to pay a cab driver for a 30 mile trip to the choice of jail time or paying $100 restitution and walking the 30 miles she stole from the cabbie. This got him on all the cable news shows, so obviously it was a great idea.
Law Professor Jonathan Turley was so upset by these absurd sentences (and others he has condemned) that his blog post on the topic is (uncharacteristically) riddled with errors, as if he wrote it while screaming as tears blurred his eyes. Maybe he did. Unlike your host, Turley is usually reserved and understated, but this really got to him. Here: my view is substantially the same as his, so let’s give the professor his say (with a little editing):
“Cicconetti seems to think that his substitution of the water somehow moves this order into the realm of an appropriate action by a judge. It does not. Cicconetti is one of a growing number of judges who are converting our courts into theaters of the absurd for the enjoyment of the public and the vainglory of themselves. I am not even sure what this theatrics proved. ….These shaming punishments degrade our legal system and turn judges into little Caesars, meting out their own justice to the thrill of the public. We have seen judges force people to cut their hair in their courtroom or clean their court bench with a toothbrush. These sentences make justice a form of public entertainment and allow judges to turn their courtrooms into their own macabre productions. While judges talk a good game about their effort to be creative, they clearly enjoy this role and the publicity that comes from making people demean themselves. It appeals to the lowest common denominator of our society and unfortunately there are many who enjoy to see others degraded. Indeed, some [judges] appear to be working through their own serious issues or yielding to their own emotional impulses in punishments like forcing people to …wear signs that the judge herself creates over the weekend (as discuss[ed] in prior stories). I believe this trend is a direct result of faux court programs like Judge Judy and Judge Brown (who was recently arrested himself) where people are yelled at or taunted by the court. We are losing the distinction between entertainment and the law. The result is a loss of professionalism and consistency in sentencing. I have long advocated for bar associations to move against [such] judges …and consider removal over such abusive sentencing. Little has been done. Judges bask in national coverage and develop a taste for the attention and accolades. Absent an effort by the bar, this trend will grow and our court system will increasingly add these circus-like scenes for public enjoyment.”
Professor Turley doesn’t like these creative sentences, I guess.
He’s absolutely right.
To be fair to the judge, Ohio’s Judicial Code of Conduct is infuriatingly vague, and finding a provision that Cicconetti’s Mikado-like sentences clearly violate is difficult. I’d try Rule 1.2, which requires that
“A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety”
“The test for appearance of impropriety is an objective standard that focuses on whether the conduct would create, in reasonable minds, a perception that the judge violated this code, engaged in conduct that is prejudicial to public confidence in the judiciary, or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”
I’ll rest my case on “temperament” and “fitness to serve.”
Pointer: Tim LeVier