Judge admits method wrong; others question if it’s fair to let Miami students off the hook
Sheila McLaughlin reports:
A few thousand people – many of them students at Miami University – have committed crimes in Butler County in the past 14 years that are kept secret. Their conviction records have been sealed.
It’s a routine practice in the Butler County courtroom of Judge Rob Lyons. His use of the practice came to light after he granted secrecy to a former Miami student who admitted to creating a flier about how to get away with rape.
Lyons, a part-time judge whose private law practice helps clients seal their criminal records, admitted in a sworn deposition that he’s been sealing cases improperly for the 14 years he’s been on the bench. Lyons has sealed 2,945 cases – more than a third of the new misdemeanor cases filed – in the past five years, an Enquirer analysis shows, using data from area court officials and the Ohio Supreme Court.
“This is a college town,” Lyons said in the recent deposition. Lyons, a Miami University graduate, testified that he didn’t want convictions to hurt students’ chances to graduate or get a job after college.
It is impossible to tell exactly what the charges were in the sealed cases, but they are thought to be misdemeanors, which could include crimes ranging from underage possession of alcohol or disorderly conduct to minor theft or domestic violence. It also is impossible to know who has been granted secrecy and whether those people were originally charged with more serious crimes.
Butler County officials denied The Enquirer’s request for an accounting of cases Lyons has sealed. The Enquirer then filed a lawsuit Friday in the Ohio Supreme Court seeking to get the cases opened.
“Are students getting special treatment, special handling that other young adults don’t get?” asked Carolyn Washburn, editor of The Enquirer. “Are people being investigated thoroughly? Are they being punished properly? Does the elected prosecutor do a good job? Does the judge do a good job? The public can’t know if records are sealed.”
First Enquirer suit over rape flier case
It’s the second time since November that The Enquirer has sued Lyons over sealed records in his court. The first lawsuit stemmed from Lyons’ sealing records in the case stemming from the rape flier, the content of which sparked national outrage. After the now-former Miami University student pleaded guilty to disorderly conduct in the case, Lyons sealed all court documents, keeping the student’s name secret.
Kendall Fisher, executive director of Women Helping Women, which offers rape crisis services in Butler County, was angered by the incident as well as what she sees as special treatment for the student who posted the flier.
“How anybody could see that and think that’s even remotely funny and think it’s appropriate in any setting is beyond my comprehension,” Fisher said. “We spend so much time working to try to protect the privacy of victims. But when you are charged with a crime, that’s typically a public record, and this person is not a minor.”
The Enquirer challenged the judge’s move to seal records in the case, contending Lyons had sealed it under a law that addressed defendants who were acquitted or had a charge dismissed. The problem: The rape flier defendant was convicted.
The law in question, Ohio Revised Code 2953.52, was cited on a preprinted legal form that Lyons said dated to before he was elected 14 years ago. Lyons said he has always used the wrong form to seal cases involving convictions.
“This form was used for this type of situation for, sorry to say, I do not know how long, but probably quite awhile,” Lyons said in a deposition involving The Enquirer’s initial filing in the Ohio Supreme Court.
Lyons said he wasn’t aware until The Enquirer sued that he had been using a form that cited the wrong law. He corrected his mistake in December by allowing the student to withdraw his guilty plea. Lyons also said that Butler County Area I prosecutor Jennifer Rodkey had struck a deal with the student’s attorney, Dennis Deters, not to pursue the minor misdemeanor charge any further.
Lyons sealed the case again at Deters’ request during a hearing.
Lyons testified he routinely seals cases for MU students.
Sealing records of students charged with a first misdemeanor offense is common practice in Ohio college towns, according to court officials in Athens, the home of Ohio University, and Bowling Green, where Bowling Green State University sits. For instance, Bowling Green Municipal Court seals an average 500-plus misdemeanor cases a year in a court that sees about 3,000 new misdemeanor cases annually.
Lyons’ admission that he had been using an improper form to seal similar cases over more than a decade led to The Enquirer’s second lawsuit.
The Enquirer asked Lyons under the Ohio Public Records Act to review or copy the last five years of cases involving convictions that were incorrectly sealed under Ohio Revised Code 2953.52.
Lyons denied the request, and his decision was backed by Butler County Prosecutor Michael Gmoser, whose office represents Lyons as a public official.
‘The statute has to be followed to the letter’
The Enquirer’s suit filed Friday alleges that Lyons’ sworn statements during his deposition provide reason to believe Lyons “unlawfully” sealed conviction records of numerous people. The Enquirer’s attorney, Jack Greiner, maintained that the cases were not exempt from disclosure under the Ohio Public Records Act because they were improperly sealed. The Enquirer wants the Ohio Supreme Court to order Lyons to open the records.
“If a statute permits closing proceedings or sealing the record, the statute has to be followed to the letter. It wasn’t here, by the judge’s own admission,” Greiner said. “The records should be made open to the public because there was no legal basis for them to be sealed.”
Area I Court is one of three part-time county courts in Butler County that preside primarily over misdemeanor cases and lower-dollar civil cases. Area I covers the City of Oxford and all of Hanover, Milford, Morgan, Oxford, Reily and Wayne townships.
Area I has the smallest caseload among the other county courts, in Hamilton and West Chester Township. In 2011, 4,712 new cases were filed in Lyons’ court, including 1,492 misdemeanors. He sealed 550 cases.
As a part-time judge with a criminal defense practice, Lyons said he spends between 10 and 30 hours a week on the bench or performing administrative duties at court. His state-set judicial salary is $65,650 a year.
Ohio Rules of Judicial Conduct allow Lyons to practice any kind of law he wants on the side so long as his name doesn’t appear on cases in his own court. He’s also supposed to avoid any appearance of impropriety, according to the state rules.
Sealing cases can hurt impartiality perception
Stephen Gillers, a professor at New York University School of Law who has written and lectured extensively on legal and judicial ethics, said he believes the practice of sealing cases is abused on a national scale. However, he said, no rules forbid judges from sitting in cases that raise the same issues as those they address in private practice, such as sealing cases.
“The problem with sealing cases as a judge is that doing so may be seen to promote the judge’s availability to work as a lawyer in cases where the client is eager to have the file sealed. That creates the risk to the appearance of impartiality,” he said.
As for helping clients seal conviction records, Lyons said he has handled fewer than 10 of those cases in the past two years and fewer in prior years. The website for Lyons’ law practice, Lyons & Lyons, provides a link to another website, www.SealMyRecordOhio.com, which Lyons said is affiliated with his law practice.
Lyons’ law practice has a reputation for handling drunken driving cases, a fact that led to his being removed from 10 such cases being argued in his court.
A Butler County Common Pleas judge took the cases away from Lyons in May and assigned another judge because of a conflict of interests. Lyons had challenged the same issue – the accuracy of the Intoxilizer 8000 breath test machine and whether the evidence could be used.
Gmoser had asked for Lyons to be taken off the cases. He later sent a letter to the Ohio Supreme Court with 200 pages of documentation asking justices to create new rules prohibiting part-time judges from practicing law or any type of law in any court that involves the same type of cases presented to him as a judge.
Gmoser said he hasn’t heard back from the court.