Judge faces six counts

Attorney: Complaint not accurate view of Rastatter’s tenure.

But together, the six-count complaint shows a “troublesome” pattern and if found to be true, could result in sanctions. “While some of the conduct standing alone is not so troublesome, the totality is,” said Arthur F. Greenbaum, a professor at the Moritz College of Law at Ohio State University.

Rastatter will appear Monday and Tuesday before a panel of the Board of Commissioners on Grievances and Discipline of the Ohio Supreme Court to face allegations of wrongdoing in six cases.

The cases stem from his actions on the bench since he was elected judge Nov. 2, 2004.

After the hearing, the panel can dismiss the case or write a recommendation to the full 17-member board who would issue a report to the Ohio Supreme Court, which could determine whether Rastatter faces sanctions.

The 13-page complaint by the Ohio State Bar Association accuses Rastatter of failing to follow the law, failing to uphold the integrity of the judiciary, engaging in conduct prejudicial to the administration of justice, lacking decorum and acting in a manner that does not promote confidence in the judiciary.

Most troubling in the complaint, Greenbaum said, is the allegation that Rastatter failed to carry out mandates by higher courts.

“One instance would be one too many, but here that is alleged in three separate cases,” Greenbaum said.

Rastatter, who was re-elected judge in 2010, is now in his second term and faces disciplinary action for the first time.

The allegations, if upheld, could result in a range of sanctions that include a public reprimand, suspension (six months to two years), probations, indefinite suspension or permanent disbarment, Ohio Supreme Court officials have said.

Court officials said no Clark County judge has been disciplined for misconduct since the 1990, based on a review of the state’s online court records.

Rastatter has denied wrongdoing in a response to the complaint, according to court documents obtained by the Springfield News-Sun. He did not respond to requests for an interview on the complaint.

Rastatter’s attorney, George Jonson, said the complaint does not provide an accurate view of Rastatter’s tenure on the bench.

“This guy has been a judge quite a while. The complaint takes issue with six cases ... It’s important to remember that he’s handled thousands of cases,” Jonson said.

Jonson said Rastatter is supported by a number of area attorneys, judges and community members.

Witnesses Jonson may call include Clark County Prosecutor Andy Wilson and assistant prosecutors Brian Driscoll and Andrew Picek, according to court documents.

Stephen Schumaker, the deputy attorney general and former Clark County Prosecutor, is also expected to testify, according to court documents.

Clark County Judges Thomas J. Capper, Joseph N. Monnin and Richard J. O’Neill may submit character letters, court documents said.

Clark County Clerk of Courts Ron Vincent, Wilson, Picek, Schumaker and other area attorneys are on the list of witnesses for the Ohio State Bar Association.

Legal experts who reviewed the complaint said most of the problems stem from cases, particularly murder cases, in which Rastatter was found by higher courts to have shown bias, refused to listen to objections from attorneys and follow mandates by higher courts.

In one case that was reversed, Rastatter told an appeals court he couldn’t follow the mandate because he didn’t think it was right.

In a 2006 case involving Frank Davis, an appeals court held that a motion to suppress evidence in the case should have been granted and reversed Rastatter’s decision in the case. But Rastatter disregarded the mandate and sentenced Davis to continue to serve two of the three sentences on convictions that had been reversed, according to the complaint.

In 2005, Rastatter sentenced Charles E. Davis to 13 years in prison on charges of vehicular homicide, voluntary manslaughter and other charges.

After the sentence was successfully appealed, Rastatter re-sentenced Davis to 14 years and left the bench during an objection by the defense, according to the complaint.

The complaint further states that the Court of Appeals reversed the increased sentence in March 2007, but Rastatter refused to resentence Davis until after additional court filings by the defense, according to the complaint.

Rastatter re-sentenced Davis on May 28, 2008, to 13 years in prison.

“The United States Supreme Court has previously held that when a trial court judge resentences a defendant to a harsher sentence after remand, there is a presumption of vindictiveness,” the complaint says.

When asked about allegations that Rastatter ignored mandates by higher courts Jonson said: “When an objective reader reads the complaint those are some of the more interesting allegations. But the testimony is different from the allegations.”

Rastatter is also accused of failing to follow the law and showing bias against defense counsel and defendants, which resulted in reversals of his decisions by the 2nd District Court of Appeals.

In a 2006 capital murder case involving convicted killer Jason Dean, Rastatter held Dean’s attorneys John Butz and Richard Mayhall in contempt and fined each $2,000.

Both of those attorneys are expected to testify for the state bar association.

During Dean’s first trial — he was retired and sentenced to death by a retired judge — Dean’s attorneys asked that Rastatter remove himself from the case. He refused and is accused of approaching the attorneys red-faced afterward and advising: “He had serious concerns about their motivations.”

The Supreme Court overturned the case in 2010, saying “the trial judge harbored a bias against defense counsel that was manifested through comments and ruling during the trial.”

Greenbaum said the finding of bias by the Supreme Court and repeated allegations of Rastatter “leaving the bench” instead of dealing with objections by attorneys was also troubling.

“If true, (they) show a substantial disregard for the judicial process and those participating in it,” Greenbaum said.

Greenbaum continued: “An isolated finding that a judge should have disqualified himself and did not is troubling (no one wants bias in the system), but often is not worthy of discipline. We all miss a judgment call on occasion. As to this charge, the compounding problem, in my mind, is the judge’s alleged lack of acceptance of the Supreme Court’s finding of bias.”

University of Dayton School of Law Professor James Durham agreed with Greenbaum and said if allegations against Rastatter are found to be true he would likely face sanctions.

Durham added that Rastatter’s own words could harm his defense.

In 2008, Rastatter sentenced Jon A. Watkins to 10 years for robbery and eight years for kidnapping and ordering that the terms be served consecutively.

The 2nd District Court of Appeals reversed and remanded the sentence on Feb. 26, 2010, saying the facts did not support a maximum sentence, according to the complaint.

Rastatter responded to the appeals court mandate: “I can’t just do something that I don’t think is right; and if I think the facts in the record do justify maximum consecutive sentences, I think that’s not just within my discretion but it’s my duty to impose sentences that I see fit,” according to the complaint.

Ohio Supreme Court officials have said disciplinary action against judges are rare and that disbarment typically involves a felony conviction, significant theft from clients or multiple disciplinary violations over several years.

But Durham said what Rastatter is accused of is worse than that of a “crooked” judge because his actions, if true, erode faith in the judicial system.

Durham said judges hear hundreds of cases and can lose perspective and make mistakes. But he said multiple findings of bias and refusing to accept mandates of courts with authority over him is problematic.

“Because what we expect from a judge and what the Ohio Supreme Court wants is that when people go to court ... . What we want are people saying this is fair. This is a fair process because that upholds the validity of the law.”

Durham continued: “A justice system that is biased, a judge who can’t keep their emotions out of the way is even worse because it goes beyond the one case or the cases he has an interest in, it permeates all cases.”

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