7. On Injustice, with The Hon. Justice Michael P. Donnelly

The Hon. Justice Michael P. Donnelly is the 160th justice of the Supreme Court of Ohio. He’s the recipient of multiple awards, including the Public Service Award from the Ohio Association of Civil Trial Attorneys, and served as chair of the Ohio Supreme Court’s Commission on Professionalism. 

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Would you ever enter a contract in which you did not know whether you were receiving any benefit, you did not know what you were obligating yourself to, you would only find that out after you enter the contract 30 days down the road. I mean. The price. Right? The price. You're getting the car, but you don't know what you're paying for it. Exactly. Honest lawyers and judges typically know the so-called justice system is really a mixed bag in terms of actual justice. Now, on one hand, you've got thousands of lawyers and judges working hard every day to move legal cases and disputes forward. On the other hand, laypeople can forget that legal professionals are regular human beings, too. They've got the same biases and prejudices. They get tired and angry. They've got different world views and theories about the world. They pursue their self-interest and the next move in their career. They have cognitive biases. They develop friends and enemies along the way. If you look at all the injustices that shock us the most from people who've been wrongfully convicted and we know they exist in droves, mainly thanks to the development of DNA evidence technology. The people who get judge because of irrelevant factors like their race or gender. Again, the use of statistics shows us these kinds of biases in ways that are more and more clear. The cases were just bureaucratic mistakes along the chain, or just because maybe something is more expensive and somebody has the ability to pay for. The one thing these instances all have in common is that they all went through our so-called justice system. But that's not the whole story. There are also some incredibly lucid, honest, courageous individuals within it. People who take risks and fight to improve things from within. My guest in this podcast episode, Supreme Court of Ohio Justice Michael P Donnelly, is one of those people. Just as Donnelly reached out to me after he read my piece in The Atlantic on how Ira and I can help us improve fairness in the justice system. And immediately we started sharing and he started sharing his experiences about how this was a multi-year battle that he's been waging from deep within the judicial system and talking about how he's experienced a lot of pushback from within around this call for basically more transparency and accountability, just as Donnelly is at the very top of the legal profession. He's been a judge for many years now, and the insight and perspective that he brings on this topic are truly elite and comes from the very front lines. I think this conversation will surprise many people and hopefully contribute to the calls for more justice and the protection of innocence in the legal system. I hope you enjoy it. This is my conversation with The Honorable Michael B. Donnelly. So how are you doing today? I’m doing great. It’s great to be here. It’s great to meet you in person. Absolutely. And thanks for, thanks for doing this. I really appreciate it. My pleasure. Great. So we initially connected through an article that I wrote for The Atlantic where I basically argued that we need to use statistics and AI to scrutinize judges a little bit, maybe even rein in their discretion a little bit. And you know the statistics very well that the variability in judicial outcomes can sometimes be wildly inconsistent. It makes you wonder what’s the point of having democratic laws when the main factor in determining a judicial outcome becomes the identity of the individual judge? So in some cases, the odds of success can vary from single-digit percentages all the way up to 80%, depending on who the individual judge is.

FRED: 4:04

And in sentencing, you can get a couple of years or you can get a couple of decades or even more based on the very same facts or very similar facts, depending on who the judge is. And I was expecting a little bit of pushback and a little bit of support for this piece, which I got. What I was not expecting, was support or even encouragement from a judge, let alone a high-ranking judge such as yourself. I have a tremendous amount of respect for the work of judges, it’s extremely difficult. But I was surprised when you reached out to me. Then I got acquainted with your work, of course, and I quickly learned how passionate you are around the issue of judicial fairness, better transparency in the legal system. You’ve done a lot of public facing work in this area. Let’s start maybe with how we connected. What made you made you reach out to me and how strongly do you feel about these issues from as deep within the judiciary as you are? Sure. Well, first of all, thank you very much for having me as a guest. It’s an honor to be here. And I can say when I read your article in The Atlantic, it was startling because you so eloquently placed on the paper what I have been trying to articulate so well here in the state of Ohio for years. And it could have, I wish it was something that that I had written and I wanted to reach out and meet you as a like-minded person and just talk about these issues, because I’ve been talking to people throughout the state of Ohio on how to make the system more transparent and more data-driven. And that’s what made me, that’s what made me reach out. I’ve been on the Ohio Supreme Court since 2019. Prior to that, I served in Ohio’s largest trial court in Cleveland, Ohio, which has 34 elected, separately elected trial court judges that handle a criminal felony sentencing docket and as well as a- civil docket as well. And prior to that, I was in civil litigation for a number of years. I started my legal career way back in 1992 as an assistant county prosecutor. And it wasn’t ‘till I became a judge in our adversarial system and began to look at the system from a different perspective that I started thinking about issues like transparency and public confidence in the system, which I’ve come to believe is just the lifeblood of the justice system. The thought the public that we serve has to have confidence that if they become involved in a dispute, whether they are the accused, whether they are a victim, that that dispute will be resolved fairly according to the design of the system, according to the truth. And when I began to look at the system from a new perspective as a new trial court judge back in 2005, I saw that that wasn’t always the case. You know, I saw in my court, it’s typical that 97% of the cases are not resolved through trial. They’re resolved through negotiated plea bargains. And a lot of those plea bargains are formulated and forged in off-the-record discussions between the trial court judge and the attorneys without the accused being present, without a victim being present. And that forced me to change my way of doing things in Cuyahoga County. Hmm. Did you push back a little bit or did you scrutinize those plea bargain agreements a little bit more than you think the typical judge would? You know, I started seeing in other courtrooms some outcomes that I began to question the ethics of and particularly in sexual assault cases. I saw a lot of - in my colleagues’ rooms - cases coming into the system with charges of rape and other forms of sexual assault. But they were being allowed to go out of the system through a plea bargain, being pled to crimes that have nothing to do with sexual assault, completely, you know, factually baseless pleas. It’s almost like these agreements of convenience. It’s like we need to give you something lesser. So let’s come up with a count that would fit the kind of like the horse trading in terms of years and in terms of the sentencing. Right. Regardless with what the facts are. Well, a lot of times that’s exactly what’s happened in there, trying to circumvent parts of the law that they deem unfair. In Ohio, we have if you’re convicted of a sexual offense, there is registration requirements. And a lot of times they are trying to circumvent those particular laws by allowing defendants to plead to the crimes that they did not commit in order to resolve the case. And I had a problem with that. And I led an effort back in 2016 to try to change that, to have our rules kind of mimic what exists already in some states and the federal system, that every plea had to have a factual basis that if you’re going to plead something out that doesn’t even resemble what the original charges, the prosecutor needs to state facts on the record, that, if true, would support what the person is admitting to. And unbelievably, the Supreme Court in Ohio rejected that rule and it resulted in a headline that you can still Google in the Columbus Dispatch that the “Ohio Supreme Court rejects truth and sentencing rule.” And that pretty much convinced me that I was going to run for the .Ohio Supreme Court at that time. So we’re going to get back to that. I really want to get back to the issue of plea bargain agreements and the pushback that you receive from within the judiciary, that’s really it’s very interesting to me. Before we go there, I want to touch on a fundamental question with you, because it’s essentially a discussion about justice. And what you said now, like the type of reform that you’re advocating for is essentially trying to bring back a factual basis to these plea bargaining agreements, which very quickly can go off the rails and start creating a parallel reality with very little connection with the facts. But fundamentally, I believe that this is also a discussion about the relative importance of innocence in our society. I mean, a lot of people, whenever we talk about justice, some people roll their eyes like it’s relative. And your concept of justice and my concept of justice, I would strongly disagree. I think that when, you know, under the same set of rules, you know, the outcome is two years versus twenty years, or when there’s a wrongful conviction or even when there’s a plea bargain with no factual basis at all. I think there’s an inherent concept of justice and fairness that’s violated. And the idea that I want to zoom in on with you is the idea of protecting innocence. And, you know, in the legal community, we’re very aware of this issue. And even the general public knows about the presumption of innocence, how effectively it plays out in real life situations when the facts get, you know, diced up and organized and sequenced in different ways. How does the presumption of innocence really play out? That’s up for debate. But it is another even more fundamental idea of the relative importance of innocence versus, you know, punishing guilt. So protecting innocence versus punishing guilt. And I believe it was first expressed by William Blackstone in the 1700s. It’s known as Blackstone’s ratio. It’s better that ten guilty persons escape than that one innocent person suffer. It’s also expressed by one of the founding fathers, John Adams, who wrote that it’s more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world, and I’m quoting that they can’t all be punished. But if innocence itself is condemned, then the citizen will say, whether I do good or whether I do evil is immaterial, for innocence itself has no protection and if such an idea would take hold, that would be the end of security whatsoever. You’re at the very forefront of the battle against wrongful convictions. Do you believe that the justice system and I’m asking you a tough question because I’m asking you for a generalization, but do you believe that the justice system today and perhaps the culture more generally takes innocence seriously enough? We seem to be very passionate about punishing guilt, but are we as passionate as we need to be about protecting innocence? And what are some of the patterns that you see around this issue of wrongful convictions? Sure. Well, I would answer that with a ‘definitely not.’ We are not passionate enough about protecting the innocent. You know, I saw a lot of injustice that took place over my 14 years as a trial court judge. And, you know, injustice can come in many forms that can that can come in the in the form of someone who most likely is guilty and not being held accountable for various reasons that the state may have not convinced the jury that a guilty person is guilty beyond a reasonable doubt, which is the standard that protects us all. Truly, in my opinion, the worst form of injustice that can occur in a democratic society is being convicted for something that you didn’t do. And having what we value the most, our freedom, taken away from us. But what I see in the culture that I observed for 14 years and that I continue to observe, is placing the importance of finality resolution of conflict over the truth. And you see in our adversarial system, in the post-conviction area where someone wants to come before a tribunal and demonstrate either through the discovery of new evidence, someone recanting, the fact that they were convicted by junk science. They want to demonstrate that to a tribunal, and they have to fight tooth and nail in this system to even sometimes get a hearing. In Ohio, you may claim to have this evidence, but you are not entitled to a hearing. You can put this in the form of a motion for a new trial. The state can oppose it and say whatever they want. And trial court judges do not are not required to have a hearing to air these claims out in open court. And sometimes they languish for years on judges docket. You know, they don’t have the protections that we have on the front end of the system like speedy trial rights and the right to counsel in post-conviction. So, you know, the stars really have to align for someone who claims that they’re innocent in order to get a second look at their case. And that is just a sad commentary when you see the human suffering and the fact that if you have the wrong person incarcerated that usually means that the person who perpetrated the crime is still at large and most likely victimizing someone else. So it’s I can’t understand why we can’t find more common ground on this issue of improving the system for innocent people. Sounds like, unfortunately, sometimes a cultural shift leads to a shift in the legal system, in the judicial system. It sounds like you are very much in agreement with the principles of the founding fathers and so forth, the importance of protecting innocence in a world like it’s better to let the occasional guilty person out, but let’s make sure we protect the innocent, it seems today. So you agree that there’s been a shift? And today, like, maybe we’re over overvaluing like the finality of the process and getting some kind of a guilty sort of outcome that’s become way more important than making sure that no innocent people get the wrath of the legal system. Right. But, you know, you bring up that that Blackstone quote and it’s interesting. I do recall a conducting a jury trial and the defense lawyer brought that quote up and asked each member of the jury what they thought of that quote. And I been such a firm believer in the presumption of innocence, thought that it would elicit a uniform response. But believe it or not, there were people that said, I don’t agree with that. I don’t agree that I think I don’t agree that any guilty person should go free. So they didn’t equate with that ratio. That and it’s interesting that that that perspective exists out there. And so I think that adds to some of the resistance to some of the reforms that we’ve been trying to advocate, bringing transparency to the post-conviction process. You know, I see some other injustices in the post-conviction process that I’ve put in some of my writings where someone is advocating for a hearing. The judge has yet to give the person a hearing, but the prosecution takes a look at the motion. And for some reason, in my opinion, it suggests that if they go to a hearing that the state is going to lose. And so what they’ll do is offer the prisoner a - what I think is an conscionable or unconscionably coercive plea bargain -we’ll let you out. We’ll let you out of jail if you plead to what we already convicted you of, which isn’t a form of plea I’ve tried to label it. I’ve given it the label, the dark plea, because you’re offering this plea to someone who is not shrouded under the presumption of innocence. They are convicted. And it’s to me, the legal equivalent of putting a gun to someone’s head and forcing them to plead to something that they perhaps maintained from day one that they did not do. So these are the kind of things that go on in a nontransparent system that the public may not be aware of. And if they were, they’d take a second look at how the innocence claims are being processed. And you’ve written about this, about how much more complicated than it is than what we think like we think a plea bargain agreement is okay, the convicted person will get a lesser sentence or crime than what they’ve been charged with. You write about how this it’s actually much more complicated because the accused also loses a bunch of constitutional rights and the state also gets to a much more speedy and much more expedient outcome. So there’s benefits to the state and there may be other factors, financial factors, you know, can the accused even afford to go prove their innocence? I’ve seen situations in my career where people were completely innocent. Fast forward seven years later, hundreds of thousands of dollars, if not millions of dollars in legal fees. They get a judgment saying they’re innocent. But I mean, the machinations of the legal system created that. And it’s a form of violation of this principle, of presumption of innocence. When you effectively treat a person as though they’re guilty throughout the entire process, but specifically in it with respect to plea bargain agreements, it’s this kind of behind closed doors, negotiations between attorneys, Right. Where sometimes the accused doesn’t even know the sentence that they’re ultimately agreeing to. Right. Talk to us a little bit about this issue and what do you think can be done to remedy it in the real world? Well, in addition to the lack of data that we have as state court judges here in Ohio, that’s one major systemic flaw that that leads to disparity of outcomes. But the fact that the judges here in this state get involved, unlike in the federal system, where judges are prohibited from getting involved in the plea negotiations between the government and the accused. Here in Ohio, the judges to various degrees from courtroom to courtroom, get involved. And there’s really no objective criteria to guide them in deciding whether to accept a plea or not. So what do you get as a result? You would get nearly 400 judges statewide who operate with these different philosophies as to their discretionary power. Some of them, like me, I always viewed myself as the neutral in the system. So if the adversaries negotiated a plea agreement through arm’s length negotiations and they presented me with an agreed sentence, I always accepted those pleas. But some of my counterparts disagreed with that. They said, you know, sentencing is my realm. You can come up with whatever you want in terms of your plea agreement. I’ll hear your recommendations, but I’m not going to be bound by them. And then there are some judges who don’t even will not discuss the topic of sentencing at all. And we look at plea bargains as a form of contract. And, you know, your listeners, you could asked the question, would you ever enter a contract in which you did not know whether you were receiving any benefit, you did not know what you were obligating yourself to, You would only find that out after you entered the contract 30 days down the road. I mean. The price. Right? The price. You're getting the car, but you don't know what you're paying for it. Exactly. And that is what’s happening in a lot of plea bargains. And I call this sentencing by ambush. You show up and you think that you’ve negotiated some form of benefit. And let’s face it, what are the accused looking for? They’re looking for some sort of certainty in the outcome. They’re looking for some degree of leniency in the outcome because the state exercises all the leverage behind the seats they have the ability to charge. There’s no question that the most powerful player in the criminal justice system in the United States is not the judges. They are very powerful. But it is the prosecutor. The prosecutor who charges you has the ability, the discretionary power to decide which charges. You know, it hits different when you say it, because a lot of us can say these things and we observe these things. But I mean, coming from you, I’m very happy that you’re making it very clear because it’s exceedingly obvious to a lot of us that are kind of like doing the play by play and involved in files and advising people. But I don’t think the general public quite understands the extent to which that’s true. Oh, you know, I wish the public and I wish the press would cover this for the benefit of the public. I used to observe this culture in my courthouse when I was a trial court judge that I labeled the culture of plea and release. And you’d have defendants who were sometimes we overcharge based on the facts that, you know, they arguably the facts could support a charge. But in reality, if you looked at the facts seriously, there’s no way that they supported the most serious charge they started out with and for instance, let’s say someone is homeless, goes into a grocery store, is hungry, decides to steal a steak and is spotted by the security staff, and there’s a tussle and hopefully no one gets hurt. And you could charge a set of facts like that as a robbery in the state of Ohio, which is a felony of the second degree, which carries with it, you know, nearly eight years in prison. So that person’s going to most likely get a high bond based on that charge. And they’re going to sit there in county jail until the prosecutor and that person’s lawyer exchange the information about the case. And then it might take weeks and weeks. And during that time, the person, if they had a job, they’ve lost it. If they have a place to live, they’ve fallen behind in their rent. Reputational, reputational harm is done and innocence never seems to be as big of a story as you’ve been charged with something. Right. And you know, a lot of times by the time the facts are exchanged and the prosecutor says, you know, this is really not worth my time trying to prosecute this case as a robbery, I’m going to reduce this toa misdemeanor or something like that. You know, they go the defense lawyer goes in and what choice does the defendant have? He presented with a plea bargain and the promise of getting out that day or, you know, waiting a month for a trial date that may or may not go forward. And, you know, they’re obviously going to take the plea, whether they think they’re guilty or not. And there might be cases where they are completely innocent. You’re charged with felonious assault when you were actually acting in self-defense. And if the prosecutor thinks that they have a good chance of losing that, they might reduce that to a disorderly conduct. And the defendant, you can imagine the exchange between the lawyer and the accused. You know, great news. I got you a plea today. You’re going to, you know, get on probation, You’re going to get released today. And the defendant might say, well, I’m innocent. I want to go to trial. Well, okay, you can have your trial date, but you’re not getting out today or you can walk into that courtroom and you will get out today. That’s how it works. I don’t think the public realizes those kind of power dynamics are taking place every single day in the American justice system. It’s like the practical weight that the state can impose on an individual is so overwhelming and the disparity in resources and in capabilities. And you have essentially the bottomless pit of resources on one side and the whole machinery and power of the state and just an extra file for them against an individual.With one life. It’s like if you’ve been accused of one thing, you may lose your best friend, you may lose the only job you have, you may lose the only reputation you have. And it’s funny because I didn’t come into this interview with that idea in mind, but it’s true that we have the prosecutorial zeal and power of the state when a situation emerges. It doesn’t always happen with everybody, of course. But when that situation occurs, you have that that lays on top of the sort of cultural dynamics around, you know, finding the guilty, prosecuting and finding and, you know, making sure the guilty pay and then, by the way, you know, with cancel culture and so forth, it’s like when people do end up being innocent. It is not a media story. It’s a media story when you get accused, it’s not really a media story when the facts come out and after scrutiny, it turns out that you weren’t guilty after all, that’s a lot less sexy as a media story than, Oh my God, look at what such and such did.You know? And so it’s like you’ve got this political dynamic. You’ve got the unbelievable disparity in resources between the state and the individual. And you’ve got this cultural dynamic all going on one side, and then you’ve got the meek, you know, reminders of some attorneys, some people, some civil rights activists, some judges around the concept of innocence and how important and how important it is to protect innocence in a society where, you know, when a legal claim is made against an individual, there’s a lot of uncertainty. We know there’s wrongful convictions. We know there’s wrong accusations. We know these things exist. And the legal system is there for a reason. The presumption of innocence is there for a reason, because upon further scrutiny, a lot of times it’s wrong, you know, and without getting into percentages or anything like that. But one thing I’m very surprised about, and I guess I underestimated it before we started interacting, is the pushback that you receive from inside the judiciary against this sort of trying to make it more fair, trying to argue, for instance, for more data and more statistics, a little bit more transparency. That’s something I was I was very surprised when you brought it to my attention. Where does this pushback come from, in your opinion, for trying to if we’re trying to steel man it a little bit, what kind of concerns is it trying to - Is it just that people, you know, human nature people enjoy not having that level of scrutiny? A combination of bureaucratic inertia and human nature is my sort of hunch. But where do you think it comes from? And can you please talk about that a little bit? Yeah. I found in the justice system, change is very difficult. It’s very difficult to convince the powers that be that that we need to move in a different direction. I found that as a young prosecutor, we used it, you know, in the state of Ohio. We did not have open discovery in the state. And therefore I did not have to disclose to the lawyer for the accused copies of police reports, witness statements. So they would actually come to pretrial and I would read them the information that was in my file. They would take copious notes and they would have to trust that I was telling them everything that they needed to adequately represent their client. And it was crazy. You know, people were at when I became a judge, early in 2005, it was not uncommon in every trial for someone to claim I am getting new information that was not provided to me until last night or, you know, mid-trial, and we’d have to send the jury out of the room. And finally, the defense bar in the States stood up and said, This is crazy. And we changed the rules. And there was a lot of pushback and there was a lot of fear that victims would be victimized. And we passed a rule and advanced the system. And those claims about being ambushed at trial, you know, virtually disappeared. And that taught me a big lesson. And now I see the same fears being expressed about data. And, you know, data is simply relevant information that can better inform your decision making. I use this analogy that perhaps your listeners have seen the movie Moneyball, and it’s a great analogy because it focuses on baseball and who the decision makers were in when it came to terms to hire in which players they were going to hire. And they used to rely most heavily on the scouts who had a lot of institutional knowledge and they would act on hunches. And sometimes they were right and sometimes they were really wrong. Also egos and reputations. Yeah, and using your gut, quite frankly. And, you know, it’s when they went to a more data-driven evaluation, they changed the game of baseball altogether. And so that’s an example of how powerful data is. It also is examples how our society is moving in general and what I say to judges who are wary of this, look, the genie’s out of the bottle. This is coming. Whether you like it or not. Your decisions on sentencing are going to be scrutinized at a level that you never, ever anticipated. So if you want to be able to defend yourself against possibly unfair characterizations, of data analysis, you best get on board the data train and have the data yourself so that you can put your record and context and judges are coming around to that fact. You know the fear kind of reminds me of remember a couple of years back when the music industry changed because people can all of a sudden record thousands of you didn’t have to buy CDs anymore. You could record. And everybody was like, this is terrible. They’re stealing our you know, let’s prosecuted all these college students who have all this music on their files and then they finally came around to, the world is changed. And the company and the music company said, we’re going to find a way to monetize this and we’re going to act accordingly. Ultimately led to a growth of the music industry and created revenues for them down the line. It was it was a difficult moment to kind of switch the business model, but ultimately it ended up being a good thing, although maybe not for the artist. But this is very interesting and so I love it that how much you know, you’re talking about this with other judges and I’ve thought about this a lot. I’m involved in a venture, a legal A.I. venture where essentially exactly like you say. So decisions are public up to a certain point, right? There’s a lot of, you know, settlement discussions and settlements that are not public. But to the extent that we have access to a lot of high-quality public information in the legal system, which is supposed to be, you know, what the legal system is about. Transparency, disclosure of treating like cases of similarly, that’s sort of the heart of the legal system in a democracy that respects the rule of law and so forth. But in thinking of the role of A.I. in this, I’m kind of coming to a very similar realization that you are is that I believe the best version of this is one where we have the data and the statistics are informing us about the potential biases that exist in a particular case and informs the judge. And then I believe that the judges - now people might say, well, if you tell the judges, then they’ll just hide their bias. Great. I would rather they hide their bias right that express their bias or maybe if you just make them aware, I believe most judges are extremely hard working. There for the right reasons. They don’t want to contribute to any kind of injustice. Some of them perhaps are extremely ideological. But in my experience, that’s the minority. Judges tend to be quite conservative intellectually. They want to make the right decision. They’re exposed to all kinds of bureaucratic forces, all kinds of constraints in sort of their work modalities. If you gave them access to better information, better statistics. Okay. In this kind of case in your state in the last five years, these are the trends. This is the statistics. Now, you take that into consideration. You take that into consideration in making your decision, but you’re still going to be making your decision. But ultimately you can sort of self-scrutinize, right? And eventually, if it goes on appeal, the appellate judges can also take a look at the statistics and say, well, you know, you’re playing into one of the biases. Now, it doesn’t mean your decision was wrong, but maybe I’m going to take a little bit of a closer look here. Is this not an example of a sort of an unexpressed bias or one of these trends that we’re seeing? I just see it as additional information for judges. That’s I think, the best way that we can use the system if and when it emerges. I cannot agree more, you know, built into the cornerstone of our current sentencing scheme here in Ohio is the tenet of justice that we all know about that you should treat similarly situated defendants with similar sentences regardless of the color of their skin or their socioeconomic place in society. And I always had that laminated on my desk. And I you know, when I was sentencing people every single day, you know, I didn’t have any tools or information. I just had to simply try to do my best. And there’s a great anecdote that comes came from an attorney of the criminal defense attorney I know from Columbus. And her name is Diane Bonacci. And she’s a very good defense attorney. And she was representing a defendant who was charged with involuntary manslaughter. She was a heroin addict, and she had supplied another heroin addict with a unfortunately, tragically, a lethal dose of heroin. And so the prosecutor and Diane, could not come to any type of agreement with regards to sentence. But they were before a judge that they believed was very fair and would listen to both sides. So they pled the case out and in Ohio, judges can have tremendous ranges available to them at any given plea. It could range from probation to, like you said, at the beginning, decades in prison. And they just thought they would take their chances. Diane, fortunately for her, client heard through word of mouth that the state was going to ask for 13 years, and she intuitively knew that that was way out of range from other cases she had represented that she was aware of. She invested about 50 hours of time combing through the county public records to get similarly situated cases to put together a sentencing memorandum. Took her hours and hours that no defense attorney usually has as she put together this sentencing memorandum. And sure enough, at the sentencing hearing, which you could imagine was very emotional. The state was demanding 13 years imprisonment. And Diane very calmly said, Judge, I like to remind you of your duty under the law to treat similarly situated defendants with similar sentences. Here are the cases, some of which are your cases, Judge some that you sentenced, and they’re virtually indistinguishable on paper from the case at hand. And the judge, like you just said, judges want to be fair. And if you’re going to treat someone differently, you better be able to articulate a good reason why. And if you can’t, then that’s the power of data. And Diane was able to get the sentence way within the range that other people had been treated. And that’s just a perfect example. It points to the solution. It also points to the problem that we don’t have access, at least here in Ohio, in the state courts, to that kind of data. The federal system is far above us in terms of the amount of data that they have. Would that be a good first step? So I’m hearing like there’s the use of technology, there is sometimes tweaking the rules. We’ve talked about a couple of ways in which the system could improve the federal system seems to be really leaps and bounds ahead of state systems. Would that be like a good sort of step to kind of start modeling how the process is designed at the state level based on the federal level is some people will push back against that for whatever political reasons, ideological reasons. I’m not getting into that. Are you hopeful from inside from how deeply sort of you see this from the inside? Are you hopeful that something like that can happen? Or is the pushback just simply going to make it, you know, very slow, if not ultimately inevitable? It’s inevitable that the technologies will be developed. It’s inevitable that but when it comes to the injustices, we know from history how slowly the legal and judicial system can change. Do you get a sense that there’s enough of a push from the inside to make this happen? I’m hopeful there is, like you said so eloquently in your article in The Atlantic, I mean, judicial discretion is something to be valued. It is a good thing as long as it’s exercised within reasonable boundaries. And that’s that we don’t have those reasonable boundaries here in the state of Ohio right now. And so when you have when you give a judge the power to sentence someone on that given case to a sentence of probation all the way up to 100 years, I mean, that is the fertile ground for a bias, implicit bias, explicit bias. And, you know. When the range is too large, when the discretion is too large, and then you’ve got all this pressure and you’ve got, you know, limited time to make a decision, that’s when the sort of there’s the public scrutiny. Yeah, right. And it was a high profile case that could all these factors can play in like you referenced in your article. But the noise in the decision-making process is that it could produce a result that you would give on one day, that you might give the total opposite result on the next day. And, you know, public confidence is threatened when it when they both when you when people believe that your outcomes are not based so much on the rule of law, which requires fairness and proportionality and consistency and they’re really on the judge or the mood of the judge at the particular type of sentencing. And I’m fearful for what I believe will be the next viral story that comes out of Ohio. Someone’s going to find on a judge’s docket and maybe a judge who has a reputation for fairness. But they’re going to be able to find two different cases that are virtually indistinguishable on paper, maybe, but perhaps for the color of the defendant’s skin. And you’re going to see two vast different outcomes. And the judge is not going to be able to articulate why they did this in this case and why they did not. And therein lies the problem. Yeah. It’s very scary. And I think it’s like where the consistency stage, right? Because think that there was so much emphasis on protecting judicial discretion very jealously because the initial concern when it came to the rule of law was making sure that it’s separated from executive meddling. Right. We want to make sure that it’s not that the judiciary is independent. Well, now the judiciary is independent. Okay but it’s become part of this big bureaucratic machine. And a judge is still just a sole human being right at the end of the day. And they’re being presented with a lot of stuff and they’re being subjected to a lot of different pressures. And they are just a human being. I mean, they’ll admit itthemselves. But you’re not conscious of what you’re not conscious of, right? And then we combine that with the skill set that we have as lawyers, which can make us very skilled at justifying any hunch or conclusion or intuition that we have. We were very, very good at connecting the dots and creating a nice justificatory narrative around that. And then in a complex world of thousands of cases, the risk factor I love how you sort of identify the high-risk factor of you know, when you combine pressure with, you know, the case with a lot of facts, right? When you when you start combining all of these different factors, these practical factors, you enter a high-risk zone of these unconscious biases, prejudices and so forth. And then we start sort of playing with the law in a very unconstrained manner. And then it’s like, what’s the point of the law? Right? If we could just reorder it and we’ve got all these principles in the law that we can use to justify really any outcome. So we’re very, very proud of our democratic system of lawmaking, but ultimately it’s only as good as the reasonably narrow corridor within which we’re exercising this judicial discretion. Right? That’s the idea I was trying to get through in the article. I’m so happy that you got it. Oh, yeah, it’s spot on. And, you know, the pressure that exists in the system really is counter to all those ideals that we like to speak of, that the defendant is presumed innocent. The defendant cannot constitutionally be punished by exercising their right to go to trial. Well, anybody that works in the system knows that that is just not true, that there exists the trial penalty or the trial tax, as they call it. If you go to trial and you lose, your outcome may be exponentially more severe than what the government offered you on a plea bargain. There’s a book out there called Punishment Without Trial by Professor Carissa Hessick. She interviewed me for the book. It’s a great book. If you’re interested in this topic about that exact type of pressure that really flies in the face of the ideals that we like to speak of. I always said the judge’s role is to make sure that the defendant’s entry in a plea bargain, if they chose, choose to do so knowingly and voluntarily. Well, how voluntarily is someone entering a plea if they’re being told that if they go to trial and lose, rather than take the five years, they’re going to get 100 years in prison? I mean, that’s the kind of leverage that’s being exercised behind closed doors that people need to know about. Not really a great environment to exercise your constitutional rights it would seem. Well, Justice Donnelly, I want to thank you, really. I mean, it’s refreshing to have a conversation like this with you with such a high-ranking and qualified member of the judiciary. It gives one hope that change is possible, even though it won’t be easy, as I think we’re facing with, you know, there’s a political factors, cultural factors, there’s institutional inertia, and then the people who benefit from all of the above. But I would love to continue this conversation one day. I’m sure this is going to be an ongoing topic that’s going to keep evolving as technology evolves, as the political climate and as, you know, hopefully the work and the pressure of people like you from inside the judiciary also keeps sort of trending in the right direction and pushing these standards up. I think it’s going to be an evolving storyline that I would love to talk to you again in the future. Oh, you can count on it. Thank you for inviting me and thank you so much for writing the article in The Atlantic. I’ve been distributing it far and wide and I think you hit the nail on the head and said it much more eloquently than I could ever have done. And I thank you for writing it, and I’m going to continue to use it as I continue to advocate here in the state of Ohio. Thank you so much. I really appreciate those words. It means a lot. Okay. So we’ll talk soon. Definitely. Have a great day. Okay.