Stayed Suspension For Harassing Judge

The Ohio Supreme Court ordered a stayed suspension with conditions of a judge who sexually harassed a court employee

In August 2019, Jane Doe working as a court reporter for the Hamilton County Municipal Court. Sometime thereafter, Berry sent her a friend request on Facebook. At the time Doe accepted the request, she and Berry did not know each other, as she was not a court reporter assigned to his courtroom. In October 2019, Doe “liked” some pictures that Berry had posted on Facebook relating to the courthouse, and he sent her a private message asking about her connection to the courthouse. They exchanged messages, and Berry invited her to stop by his chambers to meet in person.

About a week later, Berry sent Doe a Facebook message wishing her a good weekend and stating, “You’re ‘Lurking’ and didn’t come down to my Chambers to visit.” Doe responded that she would stop by soon. After Doe and Berry exchanged several more messages—on various topics, including their respective divorces—he asked for her cell-phone number and suggested that they talk over the weekend. The parties stipulated that if Doe had been called to testify at Berry’s disciplinary hearing, she would have stated that she gave the judge her phone number because she felt like she could not refuse, considering his status as a judge.

Berry called Doe on a Saturday. According to Doe, Berry sounded intoxicated and used profanity, although Berry denied that he was drunk and had no specific recollection of using profanity. Also during the call, Berry asked Doe out to lunch but she declined.

 A few days later, Berry sent Doe a Facebook message asking her to stop by his office and stating that he had “an ‘Offer you can’t Refuse’!!” Doe did not stop by and later advised him in a message that she had gotten busy with work. At his disciplinary hearing, Berry testified that he had intended to offer Doe tickets to an event for her and her children.

A couple days after asking Doe to stop by his office, Berry sent her a Facebook message stating that he was on a “Staycation” and asking her out for lunch or drinks. Specifically, his message stated:

I’d like to invite you to accompany me for lunch or for drinks after work. I Hope I’m not being too forward or pushy in inviting to do something. So, simply le[t] me know if you’d like to meet for lunch or drinks this coming week or otherwise. I’m a “Big boy” so I know how to accept and respect the word, “NO”. So please be Honest in your response. Again, I hope you’re not offended because this is not my intent whatsoever. So, kindly RSVP either way. TY!!

Doe did not respond to the message, and their Facebook communications thereafter became increasingly one-sided. After sending the message quoted above, Berry sent Doe 72 messages; she replied to only 15.

 A majority of the 72 messages were images, memes, or links to videos that Berry had forwarded from the Internet. Many of those messages were overtly partisan and vulgar. For example, Berry sent Doe a video showing smoke and then flames emanating from the body of former President Donald J. Trump while he attended a prayer session. Berry also sent Doe a profane cartoon image of Santa Claus appearing to defecate down a chimney of United States Senator Mitch McConnell’s house. With the cartoon image, the judge sent a message stating, “A Special Delivery to ‘Moscow Mitch’ for Christmas, and for his upcoming, predetermined ‘Shit Show’ in the Complicit, pre-determined, pre-Judged, Senate Impeachment ‘Trial’!!” In addition, Berry forwarded Doe a video from a comedian playing a character known as the “Liberal Redneck,” who used profanity while insulting supporters of former President Trump.

Some of Berry’s messages contained links to videos containing offensive and sexually suggestive content—though Berry did not personally create the content. For example, he sent Doe a link to a video entitled “How to Build a Resume for a Hoe,” in which a well-known actress used crude language while joking about assisting female prostitutes with building a resume. Berry also sent Doe a link to a viral video entitled “How To End A First Date,” in which a woman and a man used sexually explicit language while purporting to be honest with each other at the end of their first date. For example, the woman agreed to engage in certain sex acts, and in exchange, the man agreed to buy her gifts.

Doe complained to her boss.

Sanction

Theodore Newton Berry is hereby suspended from the practice of law in Ohio for six months, with the entire suspension stayed on the conditions that he (1) complete a minimum of eight hours of continuing judicial education on the subject of sexual harassment within 90 days of our disciplinary order and (2) refrain from committing any further misconduct. If Berry fails to comply with either condition of the stay, the stay will be lifted and he will serve the entire six-month suspension.

(Mike Frisch)