A judge is accused of more than 100 serious incidents of misconduct, and her team went before the Ohio Supreme Court Tuesday morning. Her defense for her misbehavior? Menopause and sleep apnea caused a generalized anxiety disorder.
Cleveland Municipal Court Judge Pinkey Susan Carr is accused of these incidents from the end 2017 to 2020. Most notable among them is her issuing of arrest warrants for defendants who didn't appear for court during the government-issued stay-at-home order during the pandemic. She also allegedly jailed defendants without "suitable" reason, according to a 58-page report filed with the Supreme Court of Ohio by the Board of Professional Conduct.
"There is no question that the conduct engaged in by Judge Pinkey Carr was egregious and it lasted for a period of approximately two years," Cleveland attorney Nicholas Froning said.
It may seem Froning is arguing on behalf of the Office of Disciplinary Counsel in its case against Carr, but you would be wrong. She has admitted to many of her wrongdoings so the argument is no longer "did she commit the allegations" but rather, "why did she do it?"
The court has established three offices— Office of Disciplinary Counsel, Board of Professional Conduct, and the Lawyers' Fund for Client Protection. Each of these has its own role under the Disciplinary System for the Supreme Court of Ohio and the Ohio Judicial System. The Disciplinary Counsel investigates allegations and initiates complaints concerning ethical misconduct and/or mental illness of judges or attorneys.
Carr is accused of dozens of instances of misconduct over two years that fall into five broad categories and counts:
- Issuance Capiases and False Statements
- Ex Parte Communications, Improper Plea Bargaining, Arbitrary Dispositions
- Improper use of Capiases and Bond to Compel Payment of Fines and Court Costs
- Public Confidence, Lack of Decorum and Dignity Consistent with Judicial Office
- Abuse of Contempt Power and Failure to Recuse
Read about the allegations below.
The main argument that Froning made was that the board didn't follow the law in the application of the "contribution standard." The lawyer argued about the wording of the board's analysis, citing that the board didn't apply the legal standard required in determining if Judge Carr's disorders contributed to cause the misconduct. The board used words such as "attribution" or "causal link."
"Causation defined is 'expresses or implies a cause,'" Froning said, explaining the difference to the justices when one asked. "It's a cause and effect relationship, whereas a contribution — contribute is defined as tending to bring a result."
The back-and-forth continued between the court and the attorney on the rhetoric.
"It's written 'the determination that, the, that the disorders contributed to cause the misconduct," he said. "And in so, in its, in the panel report, in its 58 page report, the panel discusses attribute, discusses a causal link, but does not utilize the word contribution in its analysis."
After the fourth question trying to figure out why contribution isn't a subset of causation, the justices seemed frustrated. For clarity, the disorders Froning is referring to are menopause and sleep apnea.
"How did this contribution cause five people to spend 28 days in jail?" asked Patrick Fischer, one of the court justices.
"The issue here is that her treaters were mis— essentially mistreating the conditions, causing there to be counteracting issues," the attorney responded. "So when it comes to sleep apnea, she was unable to get the sleep necessary. When it comes to the menopause, she was dealing with issues wherein she wasn't able to function to 100%."
Fischer didn't seem to buy it.
"How does sleep apnea or menopause contribute to lying?" he asked.
"Well, it it affects her, her, her, her mood; it affects her ability to think," Froning said. "Clearly, it affected numerous areas of her life....Everyone reacts differently. One of the arguments of the panel and the board is that thousands of lawyers have suffered from sleep apnea and/or menopause and not engaged in misconduct. I would agree with that. The issue is that everyone reacts differently if we think about."
She was already being treated at this point, so Carr misled her lawyer, her character witnesses and her therapists to make her misconduct appear less serious, Fischer said. It was considered with her lies to the judge and the media early on. These lies, to the lawyer and therapist, demonstrated disturbing dishonesty that pervades response behavior in this case, he added while reading from the board's report.
"Connect, please, the sleep apnea or menopause to those actions," Fischer said, digging his heels in.
It's their expert in this matter that shared those disorders contributed to cause misconduct, Froning said. The rule calls for a qualified health care professional to to make these opinions, and this expert, Dr. Jason R. Riebe, Psy.D., was given great credibility by the Panel and board, he claimed.
"The reality of it is, is that while the board treated Dr. Riebe with the respect that he deserved, they completely eviscerated his credibility based upon several factors," said Joseph Caligiuri, the attorney representing the Office of Disciplinary Counsel. "There was a pervasive pattern of dishonesty in this case; the board found that his opinions were of limited utility in this particular case."
There was a conflict of interest because of the dual roles the psychologist undertook in this case, Caligiuri said. He started out as an objective forensic psychologist who was there to give advice and testimony, and within a month of authoring his report, he transitioned to be Carr's treating clinician in which he was obligated to do his client no harm, the attorney added.
Chief Justice Maureen O'Connor brought up that Riebe didn't read the record, who admitted to only glancing at the reports and the seven hours of video.
"When he responded to the amount of video that he watched, I believe it's in the record, it says somewhere between 15 and 30 minutes," Froning said. "But when when questioned further on that, he said it might have been longer."
O'Connor then asked if it was 31 minutes, instead.
"Relator [the Board of Professional Conduct] provided him well in advance of seven hours and 38 minutes of video, and there was simply no reason for him not to have viewed the entirety of those videos," Caligiuri said.
During the testimony, Riebe had no idea about the issues involving Carr and a 20-year-old-woman, name A.B. in court documents, who was held in contempt of court and thrown in jail for 15 days, the attorney said.
A.B. was arguably the most extreme example of misconduct, referenced in the Board's document as Count V, Abuse of Contempt Power and Failure to Recuse. A.B. was charged with assault, a first-degree misdemeanor, and disorderly conduct, a fourth-degree misdemeanor, for allegedly assaulting a 16-year-old girl.
"For reasons that are not clear from the video record of the arraignment, Respondent [Carr] took an immediate dislike to A.B."
Carr admitted that she charged A.B. with the first contempt citation for "rolling her eyes and her comments in the lockup," she said during an August 2021 disciplinary hearing. The judge "admitted to antagonizing A.B. from the bench, acting in a rude and discourteous manner, and instigating the incident that led to A.B.'s second contempt citation."
Read the relevant section on pages 26-37 of the complaint filed against Carr below:
Caligiuri then brought back up the whole causation—contribution issue.
"He says, 'well, you can't just mix these words together, causation and contribution,'" the attorney said. "But that overlooks an obvious fact, and that is that the rule itself contains both of those words — it contributes to cause the misconduct.
"And that's exactly the standard that the board applied in evaluating Dr. Riebe's diagnosis and the misconduct," Caligiuri said. "And of course, again, even if you were to accept that argument, Dr. Riebe himself admitted that there was no contribution or causation or however you want to describe it with regard to the lying and the lying was such a huge portion of this case, so it cannot be overlooked."
He also cited numerous other cases in which this court used those terms interchangeably.
"There is absolutely no reason to remand this case," Caligiuri said. "First of all, even if this court were to entertain respondent's argument, the record is completely developed. There's no reason to send it back. The respondent presented her complete picture of mitigation to the board. So if this court wanted to adopt this argument in its de novo review, you can simply apply the facts that have already been developed in the record. Of course, I would suggest that there's no reason to accept respondent's argument, but there's definitely no reason for a remand counsel."
That being said, Carr did cooperate in the sense that she entered into complete stipulations during her examination, he added. She admitted to all the factual allegations and all of the 25 different rule violations and did seem to express genuine remorse, he said.
"When you look at the volume of misconduct, we feel that given the fact that she is addressing her mental health issues and she ultimately did stipulate and come around on the misconduct here, that two years would be a sufficient sanction that would not only recognize her misconduct, but also just deter other members of our judiciary from engaging in a similar type of misconduct," he added. "But there's no question that the recommendation between two years and indefinite was very thin."
In an interview after the hearing, Froning said he is confident that the court will take the appropriate amount of time to review and hopes that they ultimately remand the matter, give Judge Carr the full mitigate of credit for her mental health disorder or suspend her for 24 months with 18 months stayed on the conditions outlined throughout this case.
The decision is in the Supreme Court's hands now.
Good morning!— Morgan Trau (@MorganTrau) April 12, 2022
I’m at the OH Supreme Court hearing for Cleveland Municipal Judge Pinkey Carr.
She is accused of 100+ instances of misconduct, including issuing warrants for those who didn’t appear for court during the government-issued stay-at-home order in the pandemic.@WEWS pic.twitter.com/OtXWDovCB1
This story was originally published by Morgan Trau of WEWS in Cleveland, Ohio.