Ohio Supreme Court Justice Michael P. Donnelly has documented more than 600 court cases in which a defendant pleaded guilty to a lesser crime that was inconsistent with the original charge.
Donnelly calls these allegations “factually baseless allegations” and noted such incidents specifically in Cuyahoga and Hamilton County courthouses between 2005 and 2022.
“I am against allowing baseless allegations if there are no facts to support them,” he said. “So they’re basically in the business of pleading, allowing people to plead crimes they didn’t commit in order to resolve the case. …I think it’s probably happening across the state.”
These types of charges are most common in sex crimes and domestic violence cases, said Elizabeth Well, legal director of the Ohio Crime Victims Justice Center.
An example of this is a rape accusation he begged until a severe attack. Or rape in which the victim is a minor he begged up to charges of child endangerment.
“What actually happened to the victim begins to become, at best, a footnote in the conversation, and at worst, completely ignored,” said Meg Garvin, executive director National Crime Victims Law Institute.
This is happening across the country, not just in Ohio, and can cause people to lack faith in the court system, she added.
“They won’t report the crime,” Garvin said. “Then we have a completely dysfunctional system that adjudicates cases in a way that didn’t actually happen.”
Donnelly agrees.
“If you are rich and powerful, you can get around these laws,” he said. “And how effective are these laws if potentially dangerous people circumvent them just because they have the power to do so?”
These are sex crimes he begged down may be a way to avoid registering as a sex offender, Donnelly and Well say.
“Because they avoid these types of consequences, it leaves them free to reoffend,” Well said.
The allegations may resurface if the defendant commits a up-to-date crime or the employer conducts a background check.
“If you saw an armed robbery from 10 years ago, it wouldn’t surprise you, but if you knew it started with a rape, it might worry you a little more,” Donnelly said. “The disadvantage of these solutions is that they introduce bad information into the system.”
In 2017 82% of Ohioans voted in favor Marsy’s Law, i.e designed to protect victims of crime.
Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association, argues against what Donnelly is saying about plea agreements not based on facts, calling it “a classic example of legal theory versus practical reality.”
“Just because a certain type of sexual assault offense may best fit a particular fact pattern doesn’t mean the other charges don’t fit as well, so it doesn’t mean the assault charge doesn’t fit either,” Tobin said. “Sexual assault can and often does result in physical harm or serious physical harm, so the charge of moving from a sexual assault offense to an assault offense is fact-based.”
This may not be a perfect charge, but prosecutors must face the realities of the case, he said.
“A lot of these cases involve child victims who you don’t want to bring to court and have them relive this really traumatic event and have them face a defendant who could be a family member or a family friend.” Tobin he said.
There are good reasons why a prosecutor would agree to a plea to a lesser crime, even if they believed rape had occurred, Donnelly said.
“It may be too traumatic for (the victim) to give a statement,” he said. “They believe in good faith that the defendant is guilty, but they are concerned about whether they will be able to prove the case beyond a reasonable doubt. These are all valid concerns about pleading guilty to something that constitutes a lesser crime, but that is not what happens in this case. These are not minor crimes. These are completely different crimes that have nothing to do with rape.”
Sometimes Well’s clients simply want to end the legal process.
“It is enough for them that someone committed a crime,” she said.
Plea transactions take place in between prosecutor and defense attorney, and ultimately the judge has the power to accept or reject it. Donnelly refused to accept allegations that were not based on facts when he served as a Cuyahoga County Common Pleas Court judge, a position he held from 2005 to 2018.
“There have to be facts that, if true, support what the defendant is admitting to in order to resolve the case, so I wouldn’t accept them in my room, even if they happen all the time,” Donnelly said.
Before being elected to the Ohio Supreme Court, Donnelly asked the Ohio Conference of Courts to issue such a decision require that criminal charges in a plea agreement be based on facts relating to the crime. The Ohio Judicial Conference recommended the proposal to the Ohio Supreme Court, but the state’s highest court rejected the proposal in 2016 by a 4-2 vote.
This was one of the reasons Donnelly decided to run for the Ohio Supreme Court in 2018 and wanted the Ohio Supreme Court to enforce stricter plea rules.
“If a judge is charged and the offense is not similar to or lesser than the offense charged at trial, the judge would not necessarily simply decline but would have to ask the prosecutor to record what facts, if true, support what the defendant alleged. the person is going to confess to solve the case,” he said.
Donnelly sent a letter to the Ohio Judicial Conference in November 2021 asking for it to “renew its prior efforts on this issue” but said it had yielded no results.
Donnelly lost his re-election bid against Republicans Hamilton County Court of Common Pleas Judge Megan Shanahan means her term as an Ohio Supreme Court justice will end on December 31.
“After losing the election, I don’t see how I can do anything other than raise awareness,” he said. “I hope to speak at law schools across the state of Ohio to inform them of this situation.[…]I intend to continue to speak out against them.”
The Ohio Crime Victims Justice Center wants there to be a mandatory conversation between the victim and the prosecutor during plea proceedings so the victim can understand the plea change, “Oh well.”
“This will give the victim the opportunity to provide the court with informed information about his or her feelings about the allegation,” she said. “I think a lot of people would if they understood what a sex crime was he begged up to an aggravated assault or child sexual abuse case he begged to child endangerment or domestic violence, they would have real concerns and should be able to express them.”
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