Judge Plough's comments lead to new DUI trial

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by Marci Piltz

Record-Courier Reporter

An Ohio appeals court recently issued a decision reversing in part the drunk driving conviction of a Chagrin Falls man, saying Portage County Municipal Judge John Plough's comments were not "fair and impartial" but rather a "heavy-handed, insulting and unnecessary display of authority."

Derek A. Smith, 38, appealed a September 2006 conviction on a charge of operating a vehicle under the influence.

Michael Partlow of Cleveland, who is Smith's new attorney, said the case now will return to the Ravenna Municipal Court for a re-trial.

Among arguments by his attorney was that Plough "committed judicial misconduct by statements made to defense counsel in the presence of the jury throughout the trial."

The ruling was written by Judge Cynthia Westcott-Rice and concurred by judges Mary Jane Trapp and Timothy Cannon. Smith had been represented by attorney Jack Bradley at the time of his original trial.

The statements in question were made while a trooper from the Ohio Highway Patrol was testifying about the field sobriety tests he administered on March 2, 2006, when Smith was pulled over for suspicion of OVI.

THE 11TH District Court of Appeals in Warren recently ruled that while the trooper was being questioned about the tests and how he administered them, Plough interrupted and said after prior testimony "we've determined that these tests were done in accordance with [National Highway Transportation Safety Administration] standards ..."

Bradley at that time asked Plough to instruct the jury to disregard that comment as fact, but rather what Plough believed the facts to be; Plough did not instruct the jury to disregard that statement until the end of the trial, the appellate court said.

The appellate court said Plough's comments during closing arguments by Bradley displayed "gratuitous vilification and general hostility directed at [Bradley]" and his "interruptions, remarks and rebukes during [Bradley's] closing, again all of which occurred in front of the jury, exhibit a fundamental lack of restraint and judicial temperament."

One of Plough's remarks during closing arguments by Bradley was, "You told [me] you've been practicing for 29 years. You obviously haven't practiced very well ..."

All of those incidents, the appellate court ruled, make it impossible for Plough's conduct to "be seen as fair and impartial" by the jury that convicted Smith.

Plough said July 23 he could not comment on the case because it will be returning to the municipal court.

E-mail: mpiltz@recordpub.com

Telephone: 330-296-9657