Columbus Monthly / September 2010 / Rating the Judges: Inside courtroom 9D (2010)

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Rating the Judges: Inside courtroom 9D (2010)

For two days, Columbus Monthly followed Dan Hogan, who was named in a lawyers' poll as the top judge in the criminal and civil division of Common Pleas court.

It’s a typical Monday morning for Judge Dan Hogan, whose daily docket includes 19 cases: a hodgepodge of theft, robbery, burglary, weapons and drug cases. Hogan is scheduled to call his kingdom—courtroom 9D of the Franklin County Common Pleas court—into session at 9 am. It’s a few minutes from the appointed hour and it doesn’t look as if the “all rise” command will be given anytime soon . . . or that the judge is overly concerned about a tardy start to the week’s work.

“Some judges walk out to the bench at 9 am and if the attorneys aren’t there and ready to go they’ll yell and scream,” says Hogan, who rarely raises his voice. “I assume the lawyers are someplace doing something important and will get here as soon as they can.”

As Hogan talks, an ever-changing scrum of prosecutors and defenders meets in his conference room. It’s located a short putt from his chambers, which is a glorified term for Hogan’s small, nondescript office filled with golf photos. The attorneys are trying to hammer out the plea agreements that will avoid trials for the 19 cases, which in turn keeps the system from grinding to a halt and the 17 Common Pleas court judges happy.

“We’re seventh in line for a jury,” bailiff Martha “Marty” Lighttiser tells Hogan of the first-come, first-serve pool of jurors. A lack of jurors is a constant problem and on this day there aren’t enough for seven trials . . . and one of the cases on his docket is ready to go to court.

For an instant, a look of annoyance crosses his face—and then it disappears. As his grandfather used to say: “Don’t bother to push the river, you can’t speed it up or slow it down.”

And the river of justice runs slowly, very slowly.

If patience is a virtue in general, it must be doubly so for a judge—and is one of the attributes that has served Hogan well since he took the bench on Jan. 1, 1997. It also is one of the traits—along with consistency and fairness—that has made him the highest-rated judge in the criminal and civil division of Common Pleas court, according to the 2010 poll by the Columbus Bar Association. Hogan was No. 1 in 2008, too, the previous time the poll was conducted.

“The qualities I always liked in a judge were consistency and predictability,” says Hogan, who was a prosecutor for 18 years before heading to the bench. “That way we knew how to prepare.”

Columbus Monthly recently spent parts of two days (one devoted to criminal trials and the other to sentencing) with Hogan, and when you spend time with Hogan, you also get to know Lighttiser, who has been with him since day one, keeping the 1,900 cases a year they handle flowing downstream.

Hogan prides himself on letting the lawyers run the show, both behind the scenes when they work on plea agreements and in his courtroom during a proceeding or trial. “For me, a big part of it is watching the lawyers work,” Hogan says. “Are they dumb or dumb like a fox?”

‘This is something new . . . someone has puked in the hallway,” Lighttiser says.

“Who?” Hogan asks.

“No one has fessed up,” she answers.

Before maintenance arrives to tend to the mess, the two chuckle, shrug and move on to a much more important topic, golf, while the lawyers continue their very audible debates in the background.

“Did you break 80 this weekend?” Lighttiser asks.

“Not at Scioto, but I did at Hickory; I shot 78,” Hogan says. “That’s the first time I broke 80 there.”

This is the start of a lengthy golf discussion, including a recap of the British Open, which concluded the day before, and Lighttiser’s recent hole in one.

Attorney Larry Thomas pokes his head in the door and Hogan waves him in. He asks the judge about his golf game and Hogan tells him about the 78 at Hickory Hills Golf Club.

“Oh, you’re hot,” Thomas says.

A few minutes later, veteran assistant county prosecutor Tim Mitchell stops in to chat. He holds a unique place in Hogan’s judicial history. Only once has he said no to a plea agreement worked out by a prosecutor and defense attorney. It was for a man charged with robbing a convenience store and shooting an employee.

Mitchell agreed to a guilty plea for a misdemeanor offense, and Hogan didn’t think it was appropriate for such a serious crime. The case went to trial and the defendant walked. “I realized later you didn’t have much of a case,” Hogan says to Mitchell. “When I heard your witnesses, I realized why you offered what you offered.”

“They were pretty bad,” Mitchell says of his witnesses. “There was a language barrier; I think they were from Jordan. And they didn’t have a phone, so every time I wanted to talk to them, I had to go to them. Then, during the trial, they all had cellphones. I was going to kill them.”

When asked about his response to Hogan’s apology after the verdict for not accepting the deal, Mitchell shrugs, as if to say: “Stuff happens, you move on.”

“I don’t think people realize how chancy this place can be,” Mitchell says. “You can win or lose on the turn of a phrase. There’s no such thing as a slam-dunk case.”

“That’s the genius of the system,” Hogan adds.

‘Can we chat?” assistant county prosecutor Nancy Moore asks, and she and Frederick Benton, a defense attorney, enter Hogan’s office. Lawyers often come to his chambers to provide updates, ask for more time or run a plea agreement by him for approval. (The bowl of candy on Lighttiser’s desk also seems to attract them.)

“Most of it is cookie cutter, but if they have concerns they come in and see me,” says Hogan, adding about 98 or 99 percent of all criminal and civil cases are resolved before trial, either by a plea agreement or settlement.

In this instance, Moore and Benton want to talk about defendant Ivan Lacking, who is charged with a lengthy list of felonies, including aggravated robbery and kidnapping. His trial is supposed to start today, but they are having problems lining up witnesses and arranging their own schedules. The attorneys want to postpone.

“We need to try this case, we need to pick a date,” Hogan tells the attorneys. “Let’s get some of the motion work done today and pick a real trial date and, short of a sucking chest wound, do it.”

What Moore and Benton may not know, depending on how quickly word of the jury situation has spread through the courthouse, is that it’s doubtful Hogan could dig up a jury if they were ready go to trial today.

“We need the ability to go to trial or the appearance of it; it helps get cases solved,” Hogan later says, adding the imminent threat of a trial seems to magically lead to plea agreements.

Moore and Benton have appeared before Hogan many times. “He’s very professional, very knowledgeable of the law,” Moore later says. “He’s absolutely one of the better judges, one prosecutors and the defense all say you’ll get a fair shake with.”

Benton says Hogan “has a demeanor most counsel finds comfortable.” Initially, he worried the former prosecutor would be overly tough on the defense. “But I no longer have that, which is not to say he isn’t a tough judge.”

‘Suit up,” Lighttiser tells Hogan a little before 10 am. He dons his black robe and walks through the back entrance of courtroom 9D. In rapid order, three defendants plead guilty to drug possession, receiving stolen property and a weapons charge in exchange for the dismissal of more serious charges. In each case, Hogan makes sure the defendants know what their guilty plea means, the sentencing consequences and then sets a sentencing date. He speaks to each in a respectful, calm tone.

“I treat people politely,” he says. “They’re human beings and they screwed up and it serves no purpose to treat them with anything but respect.”

Later, Lacking is brought in for his suppression hearing. Benton calls into question a witness’s identification of Lacking, which came after police showed him what’s known as a photo array. Columbus detective Brad Thomas explains to the court that photo arrays are a series of six photographs of men or women accused of or convicted of similar crimes who also look similar to the defendant. In Lacking’s case, two photo arrays were used, and twice the witness pointed the finger at him. Benton argues the other five men do not look like Lacking and the police “were leading the witness.”

After a recess, Hogan announces his ruling. “I believe the test is, did the police do something suggestive to create the likelihood of misidentification? In my mind, they did nothing to make the defendant stick out.”

Hogan then schedules Lacking’s trial to start the following Monday. “We’ll ask for a jury early Monday and cross our fingers,” he says.

Hogan isn’t exactly sure what it means to have been ranked so favorably in the bar association survey of the lawyers who appear in his court. “If you’re rated highly, you’d probably be more likely to think it’s important,” he says. “If you’re rated lower, you’d think it was more of a popularity contest and that if you’re running your courtroom the right way, you shouldn’t be popular.”

Hogan ran for judge in 1996, soon after he successfully prosecuted George Skatzes and Jason Robb, two of the inmates charged with murder in the aftermath of the notorious Lucasville prison riots in 1993. Skatzes and Robb received life sentences.

“They killed a corrections officer, that’s why it was so important to me,” Hogan says. When the high-profile case was over, he says returning to his job as a county prosecutor “was like going from playing in the Super Bowl to a sandlot game.”

He credits name recognition for his victory. Not his name, but rather that of his wife, Gail Hogan, a longtime local television newscaster. (The couple has three children: Conor, 23, Kelly, 21, and Meggie, 18.)

While he was still a prosecutor, a friend who was clerking for a judge told Hogan the keys to being a good jurist: Treat everyone the way you’d like to be treated and try not to be stupid.

It’s Friday morning and 13 defendants are scheduled for sentencing. “I’m not perceived as a tough sentencer,” says Hogan, who thinks he knows why. During his final few years as an assistant county prosecutor, he handled murder and major felony cases. “I was dealing with pretty serious stuff,” he says. “I was shocked at first here by how little serious stuff I saw. I could go months without a homicide. It’s hard to get excited about someone passing bad checks when you’re used to dealing with baby rapists.”

For this reason, Hogan says he is tougher on the more violent, despicable criminals and easier on the less serious offenders. “There’s a limited amount of space in our prisons and they should be filled with the people we’re afraid of,” he says. “And we need to differentiate between the people we’re afraid of and the people we’re displeased with.”

Brent Fullmer seems to fit Hogan’s description of someone society should fear. “His criminal record is rather striking,” says assistant county prosecutor John Gripshover. “He has traveled across the country committing these offenses.”

Fullmer is about to be sentenced for three separate charges that total 16 counts of identity theft, forgery, theft and unlawful use of a vehicle. He has been convicted of similar charges and served jail time in Washington, Nebraska, Wyoming, Arizona, Tennessee and Pennsylvania.

Despite his lengthy record, he landed a job as a manager at a local chain restaurant. He then stole private information from job applications to “open lines of credit and buy things,” Gripshover says. The maximum penalty is 26 years and the prosecutor asks for at least 10.

“The one constant is he hasn’t received the drug and alcohol treatment he needs,” public defender Kelly Jines says of Fullmer. “A lot of his problems stem from abuse and when he falls off that wagon he makes bad decisions.”

Hogan asks Fullmer if he cares to make a statement. He takes off his glasses and wipes his eyes. “I just want to say I’m sorry. I don’t want to hurt people anymore,” he says. “I need help.”

It’s time for Hogan to determine how long Fullmer will spend in prison. “I’ve heard of people who want to run a marathon in every state or play golf in every state,” he says. “It’s almost like you’re trying to go to jail in every state and you’ll certainly get one more. And it will be a long time before you get a chance to go to prison in another state.”

Hogan sentences him to one year in prison for two of the charges, and five for the most serious. Because the sentences are consecutive, rather than concurrent, it adds up to seven years.

‘Mr. Byers, listen to me,” Hogan says to Richard Byers, whom he has just sentenced to five years of probation contingent upon his successful completion of a 180-day stay at the Franklin County Community Based Correctional Facility. This minimum-security institution, Hogan says, provides drug and alcohol counseling, employment training and classes that lead to a GED.

“I will hold you in jail until a bed opens up at CBCF. I send people there all the time and many send me letters after two weeks saying this place is awful, why did you send me here? Then, after two months, they send me another letter and say it’s the best program they’ve ever been in, thank you, you saved my life. I’ve never been there and don’t know why it works this way, but you need to get your mind right and do what you’re told there. If not for this program, I’d be sending you to prison.”

“Thank you,” says Byers, who is guilty of receiving stolen property.

“The best way you can thank me is if I never see you here again.”

Drugs are the thread that connects many of the defendants who appear before Hogan. Randall Bagley was strung out on cocaine and could barely keep his eyes open the last time he appeared in Hogan’s court for a minor weapons charge. “You seem like a different person today,” the judge tells Bagley. “The person I saw before was falling asleep and got into a row with the deputy and was mildly disrespectful of me.”

Hogan sentences him to five years probation, if he completes the 180-day stint at CBCF. If he doesn’t, he’s going to prison. “Please don’t put me into that position and don’t put yourself into that position,” Hogan says.

Richard Corley got the same chance as Bagley several months ago after he was convicted of drug trafficking charges. He was terminated from CBCF before 180 days.

“I did used to sell drugs,” Corley tells Hogan. “But I learned a lot in CBCF. I used to have anger issues and I was defiant, but I learned a lot.”

“What was I thinking when I put you on probation in the first place?” the judge responds. “I’m at the end of my rope with you and as I told you I would do: I’m giving you 12 months in jail. It breaks my heart that I’m punishing your children more than I’m punishing you. I’m sorry for them, but I can’t think about that or I’d go crazy.”

In the courtroom are Corley’s wife and mother—and in Corley’s file are photos of their young children. Hogan returns the photographs to the mother.

Hogan has a knack for explaining his decisions, says Mitch Williams, the public defender who represented Corley. “I tell clients that the way he explains things, the sentencing, makes it hard to disagree,” he says. “And most clients when they hear his explanation, they can’t argue, even when they’re going to prison.”

Hogan sees the worst of humanity: murderers, rapists, drug dealers and career criminals who prey on the weak. And yet, he has managed to hold onto his belief in the inherent good of people. “This is only a tiny percentage of the world,” he says of courtroom 9D. “This is not representative of what’s going on overall. This is not reality. I have to keep that in mind.”

The end of all this is in sight, as Hogan, 58, doesn’t plan to run for reelection in 2014 after serving his latest six-year term. “Never say never, but I plan on retiring,” he says, adding retirement means even more golf, as well as plenty of gardening and reading. And, maybe, more law.

“I think I can see myself being a visiting judge or training prosecutors,” he says. “I think I’d like to do that.”

Steve Wartenberg is a freelance writer.