Monday, January 6, 2020

To Suspend Or Not

This Wednesday before the Ohio Supreme Court

Disciplinary Counsel v. Anthony P. Spinazze, Case No. 2019-1075
Lucas County

The Board of Professional Conduct proposes a six-month suspension for a former Sylvania assistant prosecutor who intentionally made false representations to a municipal court judge, then lied about his conduct to his superiors, when he agreed to reduce a drunken driving charge to a lesser sentence.

Anthony Spinazze argues that based on sanctions levied on other attorneys who committed similar misconduct, he should receive a fully stayed six-month suspension. He maintains the board didn’t adequately credit him for taking responsibility for his actions when it proposed the suspension.

Charge Reduced Without Officer’s Consent
Spinazze was in private practice and a part-time Sylvania assistant prosecutor, when in November 2017, two Lucas County sheriff’s deputies stopped Jeremiah Johnson. Deputy Jeff Bretzloff joined the two officers, and after administering a field sobriety test, arrested Johnson for operating a vehicle under the influence of alcohol (OVI). Bretzloff was wearing a body camera, and Johnson admitted to him that he had consumed alcohol and never denied driving the vehicle. The police report indicated the other two officers observed Johnson driving his truck.

Johnson, appeared before Sylvania Municipal Court Judge Michael Bonfiglio. Johnson’s lawyer filed motions to dismiss the case and suppress the evidence. The day of the April 2018 hearing to consider the suppression request, Spinazze, Johnson’s lawyer, and Breztloff watched the bodycam footage from the arrest. Johnson’s attorney requested a reduction of the OVI charge to loss of physical control. The deputy stated he would object to the proposed reduction, and the case was continued.

Later that month at a pretrial hearing, Spinazze agreed to recommend the reduced physical control charge. Johnson’s lawyer took the written recommendation to the court. Knowing Johnson had two previous alcohol-related driving convictions, Judge Bonfiglio asked Spinazze to appear in court and explain the reduction.

During an exchange with the judge, Spinazze said there was “a question as to the driving and the observation by the police” of Johnson driving. Judge Bonfiglio asked if Bretzloff and the other officers agreed with the reduction, and Spinazze said they did. The judge stated that in light of the Spinazze’s recommendation and the agreement of the arresting officers, he would amend the charge to physical control and accepted Johnson’s guilty plea to it.

Supervisor Questions Change
The city’s chief prosecutor, Christy Cole, who was Spinazze’s supervisor, heard about the plea and reviewed the case file. In the case file, Spinazze wrote “court was going to dismiss case,” even though the court never indicated it intended to dismiss the case. Cole asked Spinazze if he had the officers’ consent to reduce the charge, and he admitted he didn’t. But he didn’t tell her that he misrepresented to the judge that he had the officers’ consent. Cole later listened to the audio recording of the court proceeding and told Spinazze she was concerned that he may have misled the court.

Spinazze claimed he made a mistake and that he relied on Johnson’s attorney’s account of the information, without noting he met with the attorney and the officer to watch the video. Bretzloff later met with Cole on another case. He informed Cole that Spinazze’s version of the events wasn’t accurate and told her that he voiced his objection when the defense attorney suggested reducing the charge.

Spinazze met with Cole and the city prosecutor, and acknowledged the misstatement to the judge. The law director placed Spinazze on unpaid leave, and Spinazze wrote an apology letter to Judge Bonfiglio. He reported the incident to the Office of Disciplinary Counsel.

Costs Incurred Pursuing Sentence Change
Cole sought to vacate Johnson’s plea to the reduce charge and requested that a special prosecutor handle the case. Johnson’s attorney withdrew from the case, and a public defender was assigned. An acting judge presided over the hearing and vacated the plea. Later Johnson pled no contest to a third-offense OVI. He was sentenced to jail and fined.

Based on Spinazze’s behavior, the disciplinary counsel charged Spinazze with violating several rules governing the conduct of Ohio attorneys. After a hearing, the board found Spinazze knowingly made a false statement to the court; engaged in conduct that was prejudicial to the administration of justice; and engaged in conduct involving fraud, dishonesty, deceit, or misrepresentation. The board recommended the six-month suspension.

Attorney Objects to Board Claims
Spinazze concedes that the disciplinary counsel and the board correctly characterize the events of the matter, but that part of the reasoning for the actual suspension was that Spinazze didn’t take full responsibility for his misconduct. He maintains the record of the disciplinary hearing contains several references to him acknowledging wrongdoing and accepting responsibility for his actions.

Based on his self-disclosure of the rule violations, his cooperation with the investigation, his acknowledgement of wrongdoing and expressing remorse for his action, and other factors, Spinazze maintains he deserves a fully stayed suspension.

Disciplinary Counsel Supports Suspension
The disciplinary counsel maintains that Spinazze overstates the weight given to the board’s conclusion that he didn’t accept responsibility for his actions, and that the six-month suspension is warranted based on his behavior. The disciplinary counsel wrote that as an assistant prosecutor, Spinazze made 10 different misrepresentations when offering an “ill-advised” sentence reduction, including six to a judge. He also attempted to “cover his tracks” by falsifying his case notes and making three more misrepresentations to his supervisor, the disciplinary counsel adds.

The disciplinary counsel notes the prosecutor’s office had to apologize to the municipal court for Spinazze’s actions and the city incurred additional expenses to vacate the reduced charge and pursue the OVI conviction. That misconduct warrants an actual suspension, the disciplinary counsel concludes.

Dan Trevas

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/01/to-suspend-or-not-1.html

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Comments

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Posted by: Liz Ryan Cole | Jan 8, 2020 8:06:47 AM

Have no control over that.

Posted by: Michael Frisch | Jan 9, 2020 4:19:26 AM

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