Mimesis Law
17 June 2019

Fault Lines Cross: Carol O’Brien, Because There Are Bad People Out There

September 28, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg Cross Delaware County, Ohio’s Prosecuting Attorney, Carol O’Brien.

Q. Your journey started at Northwestern, in Evanston, Illinois, where you majored in political science, but apparently planned to become a high school teacher. Was that the dream? Teaching is certainly a vital profession, but you chose not to pursue and to head off to law school instead. Did something put you off from teaching? What made you decide that, for a teacher, you would make a good lawyer? Was there some direction in law that drew you to law school?

A. Actually I started telling people in 5th grade – to be specific, the first time I mentioned it was in gym class… – that I wanted to be a lawyer. I wanted to be Perry Mason. Yes, all of you young folk need to look that name up. I took the education classes at Northwestern because they sounded fun – and as a back up. I am a bit of a worrier and I wanted to make sure I had something to fall back on in case I didn’t get into law school. Funny thing…I really enjoyed teaching.

By the way, I’ve never had my Perry Mason moment – you know the one where the witness on the stand breaks down under the masterful cross by Defense Attorney Mason and admits to the crime – totally exonerating the defendant. I’m still trying to get a defendant to break down on the stand during my masterful cross and admit to the crime….

Q. In 1980, you headed to Toledo for law school. Why Ohio, of all places? You excelled in school, winning the AmJur prize for torts. Did you have dreams of doing personal injury law? You also coordinated the Wagner Labor Law competition. Maybe labor law was going to be your thing? What you didn’t do was focus your energies on criminal law. Did it hold little interest at the time? What areas of law fascinated you at Toledo Law? What were your plans when you graduated in 1983?

A. Born in Toledo and raised in Maumee, Ohio. Toledo was the only law school I applied to. Figured if I didn’t get in, I would teach or stay at the full time job I had in my senior year at Northwestern. I chose Toledo because it was home. I loved Chicago but I wanted to see if it was better to be closer to home and family or to move back to Chicago – turns out I did neither!

My initial post-law school dream was to be in private practice – had no idea what that entailed! I had absolutely no inclination to practice criminal law, though one of my favorite classes was the required criminal law class. The professor was a practicing old school criminal defense lawyer who taught not only the law but the practice. I also loved the way he rushed through the discussion on sex crimes because he was embarrassed to be talking about sexual assaults in front of women. I really enjoyed my Labor Law classes and decided that was what I wanted to pursue – unfortunately (?) love got in the way and I married a fellow law student who was Naval JAG officer. He was stationed in Charleston, SC and there wasn’t a huge call for labor lawyers in Charleston.

Q. Your first job out of law school was with the Advocates for Basic Legal Equality, in appropriately-named Defiance, Ohio, handling civil litigation on behalf of low-income individuals and groups. Was this a cause to you, or was it just where you got a job? Representing the poor certainly offers a perspective that few learn in law school. Did this affect your perspective of how law impacts the poor? Did you gain an appreciation of the difficulties faced by the poor? What did you takeaway from this work?

A. I would like to say that I took the job with ABLE because I had a huge interest in the cause, but I took the job because they were as desperate to have someone with a law degree as I was to get a law job. I was living in Toledo while my husband was finishing up his training with the Navy, and we were transferring to South Carolina in April of 1984. I was barely in the office a month when the managing attorney left and I was the only attorney in the office. I tried a case (or should I say, I tried to try a case – sheesh I was bad) with no assistance against one of the most experienced attorneys in the area. It was horrible. I lost. I learned then that knowing what you don’t know and knowing when to ask for help are really important skills for a lawyer to have.

I didn’t really start practicing law until I moved to Charleston and was hired by Neighborhood Legal Assistance Program (NLAP). NLAP had a great mentoring program from which I learned what it means to be a lawyer and to represent someone. Because of the huge need for legal services for the poor in Charleston, we accepted only a small percentage of cases that walked in the door. Divorce cases with children and violence; social security disability cases, landlord tenant – where a need was immediate. The Charleston Bar was small, so all the attorneys and judges knew each other.

Working with poorer clients required me to be creative. I couldn’t just give them an appointment and expect them to be there – we had to work out the logistics. If they were taking the bus we had to look at bus schedules. If they were working we might have to meet after 5:00 pm or before 9:00 am. Many times my clients didn’t get much schooling, so I would have to make sure I took the time to explain what was happening. I couldn’t just give them paperwork and say read it; they may not be able to read.

I believe that my work with ABLE and NLAP made me a better lawyer. It taught me how to listen, how to work with people and it made me realize that if I wanted to connect with people I had to do more than dictate to them, I had to talk to them. It taught me that lawyering is not a 9 to 5 job.

Q. Following your trip down to South Carolina, where you spent a couple of years working for the Neighborhood Legal Assistance Program, against representing low-income residents in civil matters, before returning to Ohio as a staff attorney for The Ohio State law school’s Civil Litigation Clinic. Were you returning to your teacher roots? Did you want to go academic? Had you considered going for a tenured teaching position? You also did volunteer work as a mediator, teaching a mediation seminar and serving as a hearing officer for landlord/tenant disputes. Having been a litigator in the trenches, did you become a mediation convert?

A. I found the clinic experience amazingly worthwhile – both for me and for the students. I think that the clinical programs are some of the most educational of any of the courses at the law schools. To give a student a look at real life, a chance to see what they face when they graduate and go out into the real world, is amazing.

When I took the position with OSU, I was informed that the position was at the most a three year position – with no chance of a tenure or longer track position. I was fine with that. However, after I was in the position for a year ,I started talking to the professors associated with the program and suggested that they look into making it into a different type of position – they agreed and the attorneys who came after me stayed for much longer periods of time. I think that change was beneficial for the program.

I think that experience did reignite my interest in teaching. I truly enjoyed working with the law students – they did amazing work on their cases and for their clients. The attorneys who were “on the other side” of the cases were truly amazed at the level of legal work they saw from the students. Of course the students were generally only working on one or two cases, but they worked them to death.

I have continued to mentor new attorneys and to teach to some degree since then. I have presented at a number of seminars for attorneys and law enforcement, I taught at Columbus State Community College and I speak to middle school and high school students on a regular basis. I would love to get back into teaching at the collegiate or law school level.

I believe that mediation is a viable alternative for the right type of cases in the system. I was fortunate enough to work with former Ohio State University College of Law Dean Nancy Rogers, who is a leader in the field of mediation. She is so knowledgeable and talented in the field that I learned a tremendous amount. I think mediation is appropriate for cases that are based on principle and where there is not a tremendous “power” difference between the parties. For some time, there was a push for mediation in domestic violence case – I do not believe that mediation is ever appropriate in those cases.

Q. In 1992, you left the warmth of academia for the cold of the Montgomery County prosecutor’s office as a special assistant. What gave rise to this paradigm shift in your practice? Had you considered being a prosecutor before that? What made you decide to leave the representation of the poor behind? Your first job dealt with nuisance abatement. Did that feel different that prosecuting individuals for crimes? Did you view yourself as a “real” prosecutor at the time? Did you see this as an extension of helping the same people you served before, but in a different capacity?

A. I actually left OSU in 1989 to take a position with the Civil Division of Franklin County Ohio Prosecutor’s Office. Toward the end of my three year commitment with OSU the chief of the civil division in Franklin County told me he’d rather have me working with him than against him and he offered me a job. We had an amazing group of folks in the civil division – it truly felt like I was home. I represented the Elected Officials and employees in the county when they were sued. I really had no intention of being a “prosecutor” (criminal) and most assistant prosecutors handling criminal cases have no idea what an assistant prosecutor in the civil division does – I believe they literally shudder just thinking about it.

During my time in the civil division we had an issue with Adult Bookstores allowing sexual acts to occur in their stores, and I was “drafted” to assist with nuisance abatement cases. We filed nuisance abatement cases against 9 bookstores. Though this was a civil enforcement issue against the book stores, it also involved the owners of the book stores and of all the civil cases I handled, these were probably most like criminal prosecutions. Though there was no jail/prison time involved, the cases were prosecuted against defendants and the penalties could be substantial.

When I was in the civil division, my clients were statutory. I represented the elected officials, the county agencies and their employees, so the client base was totally different than when I worked with Legal Aid.

Q. In 1993, you served in the Franklin County, Ohio, prosecutor’s office as Deputy Chief of Economic Crimes, where you were involved in prosecutor more serious crimes, from public corruption to RICO. Did this reflect a shift to being a serious prosecutor? Was there a different sense of purpose then, of being integral to going after criminals? You later worked for a number of other prosecutors offices, doing all manner of criminal prosecution. At what point did you decide that your purpose was to be a serious prosecutor? Did you view yourself as serving the public good, or did you just like to put those bad dudes away?

A. I’m not sure I would view the prosecution of more serious crimes as a shift to being a serious prosecutor – it was a shift to becoming a criminal prosecutor. As a civil prosecutor, I handled multi-million dollar lawsuits against county elected officials, agencies and employees. I handled wrongful death litigation, civil rights litigation and any number of other types of cases that would be considered serious. The focus is different. As a civil prosecutor I was defending people who were accused of some sort of civil breach. As a criminal prosecutor I am accusing someone of committing a crime. In both civil and criminal roles, the basic role is to look at your evidence, to talk to everyone involved – parties, witnesses, victims, investigators and try to figure out what really happened.

The role of any prosecutor – be it the elected, appointed or assistant, is to do justice. That is our mandate. I take that seriously. I “go after” criminals and “bad dudes” because they have violated the law. While I worked at the prosecutor’s offices in Franklin and Delaware and when I was at the Ohio Attorney General’s office I was often asked to handle prosecutions in other jurisdictions. The prosecutions were generally high profile and involved complicated fact patterns. I appreciate being involved in those types of cases because they are challenging and require me to utilize all my skills as a lawyer.

Behind every “bad dude” is a victim. I was at my high school reunion last month and someone came up to me just to tell me that he is an empathic person and cares about people. He represents defendants who claim to have brain injuries and he feels the criminal justice system “is not fair” to these people. They can’t help themselves and they shouldn’t be imprisoned. I told him I’m an empathic person and I care about people too. What would he suggest we do with a “brain injured” person who breaks into a home and rapes a 90-year-old woman? Frankly, I’m going to side with the 90-year-old woman.

I have sat and held the hand of an 8-year-old girl as she sobbed while telling me her grandfather raped her. I listened to a young man as he described his horror when his car was rear ended by a drunk driver (who’d been convicted of OVI numerous times) and his wife was killed as she threw herself over the carseat of their not quite one-year-old daughter to save her.

I reviewed the audio interview by an Arizona Detective of a father admitting to raping his very young daughter while they lived in Ohio because he thought the Arizona detective could not charge him with the crimes in Ohio. And then when he made bail and fled to Germany for 12 years, I worked with the feds to get him back. I’ve reviewed autopsy photos of babies and child porn videos involving babies – I can never get those images out of my mind.

My job is to do justice, protect the citizens of my state and to make sure that these defendants cannot harm another person. These victims are the people who make it “easier” for me to go after the bad dude. If I can help these victims get some semblance of their lives back and if I can help them become surviviors and thrive, then I am serving the public good. If I can get the bad dudes off the street so they don’t harm another person, then I am serving the public good.

Q. While you had plenty of experience in civil litigation, you eventually reached you first felony jury trial as prosecutor. How did that go? Were you the trial lawyer you hoped to be? Any major gaffes or moments of brilliance? What was the difference in trying a criminal case as opposed to civil? Looking back now, would you have done anything differently?

A. While I absolutely sucked in my first civil trial – if only the floor had opened and swallowed me up – my first criminal trial went well. I had a significant number of civil trials both at the state and federal levels, so I was well-versed in trial procedure. I was nervous – there is so much more at stake in a criminal trial for both the prosecution and defense. There are more rules in trying a criminal case – the defendant has a number of procedural safeguards that are not available in civil cases.

In criminal cases you have to be able to think on your feet and respond quickly to ever-shifting issues. Civil cases are more scripted out because in most civil cases you have deposed (or should have) every witness and you know exactly what they are going to say – and if they don’t follow the script, you have prior testimony with which to cross them. You do not have that in a criminal case.

Q. You were a felony staff trial prosecutor in Delaware County, when you were appointed Prosecuting Attorney in 2011. How did that happen? Did you want the big job at the time? You were elected to the position in 2012, so by then you demonstrated that you earned the position. What did it mean to hold the top job? The responsibility of locking human beings up, perhaps even taking their lives, is enormous. What was your perspective toward the awesome given prosecutors? Did you see yourself as avenging the victims of crime? Could you still remember those low income people you represented years before? Did you appreciate that you were holding a huge bludgeon?

A. Absolutely never thought I would be an elected anything….wasn’t my cup of tea. I have a tendency to speak my mind – without a lot of filters – which generally isn’t a great way to win friends and influence people. When I took the position as an assistant in Delaware County, I didn’t even live in the county.

In 2010, my mother-in-law was in need of more care and moved in with my husband and me. It took about a week to realize we needed a different home – no steps. We started looking and since both of us worked in Delaware we figured we would look for a home there. Our boss, David Yost, was running for State Auditor. At the time we purchased the home – a beautiful 1920 Craftsman home – we did not think Dave would be successful in his bid. A few months later, he was leading in the polls and on November 2, 2010 he was elected Auditor.

My husband decided to move to the Auditor’s office with Dave – though he was the appointed Prosecutor for 10 days – just ask him, he’ll tell you, he was Prosecutor first – and I had the most experience in the office. I went through the process and was appointed. I stood for election in 2012 and was fortunate enough to not have an opponent. I am on the ballot this year and again do not have an opponent.

There are many nights I don’t sleep – being the elected Prosecutor is a huge responsibility and there are hundreds of moving parts. It is not my job to avenge the victims of crime, but it is my job to make sure those who commit felony crimes in Delaware County are held responsible – to their victims, to the community. Sometimes that requires they work their way through the justice system and sometimes they take alternative routes. The Court has a program for offenders who are addicted or mentally ill and those challenges contributed to the crime – it’s called Intervention in Lieu of Conviction – if the defendant completes the terms of that program all charges are dismissed and the records can be sealed. I also have a Diversion program for first time felony offenders. Defendants are admitted to the program with the permission of the law enforcement officer, the victim and the assistant prosecutor on the case. They are supervised for a year, required to make restitution and to work community service hours. If they complete the program their charges are dismissed and records sealed. It is giving people a second chance and most folks on the program are successful.

As prosecutor you look at all the circumstances relating to the crime committed – while it may tug at my heart strings that a defendant had a hard life growing up, or is currently living in a difficult situation I really cannot take that into account in my charging decision. I have a responsibility to the citizens of Delaware County to hold defendants responsible for their actions – Lady Liberty wears a blindfold for a reason.

I do not look at defendants during court proceedings. As a mother of three sons, my heart breaks when I see a young man or woman walk into the courtroom wearing shackles – there but for the Grace of God….As prosecutors we have to focus on the facts, all the facts of a case and not let our innate biases influence our decisions. There are some words I never want to hear from a defense attorney or defendant – do not ever tell me that what I am doing is going to a) ruin your family’s life b) embarrass your mother, sister, wife, children etc., or c) make you lose your job. Why should I care if you didn’t? I always feel for the family of the defendant – they pay a huge price for the actions of a family member – but I did not cause the defendant to take the actions he /she did.

Q. Ohio has experienced some huge issues in the past few years, from the killing of Tamir Rice, which likely cost Cuyahoga County prosecutor Tim McGinty his job, to Michael Brelo’s acquittal for killing Timothy Russell and his passenger, Malissa Williams, both black. How does this affect what you do? Is racism, explicit or implicit, a concern in how police perform their function? Would you hesitate to prosecute a cop if you believed the evidence was there? What can a prosecutor do to change the perception of an untrustworthy system that favors the life of a police officer? Is the First Rule of Policing, make it home for dinner, real? Should it be? Are cop lives more valued than others?

A. Most certainly Tim McGinty lost his job because of the grand jury’s decision in the Tamir Rice shooting. I know Tim. I know that he would handle the situation the same way, even knowing he would lose the election, because he thought what he did was the right way to handle the situation. I don’t know Judge O’Donnell, but he had an extreme amount of pressure to convict Michael Brelo and he found the evidence insufficient. Tough call.

I think that racism is always a concern for law enforcement agencies. Most people have innate biases and prejudices that have to be overcome – sometimes this is easy and other times not so much. I’m going to give a shout out to the law enforcement agencies in Delaware County because all of the agencies have significant outreach programs that help address the perception of an untrustworthy system. Each public school district in Delaware County partners with law enforcement and there is a School Resource Officer (SRO) in every school. Unlike the Chicago statistics, there has not been an increase in arrests or expulsions as a result of the presence of the SROs. Many times the SROs have been there to assist students with the difficult realities of their lives – bullying, domestic violence, no food, and any other number of situations.

Westerville PD has a Cops and Kids day where local law enforcement and community groups get together to host a day of fun for the children – the chief in the dunk tank is a huge draw. Powell PD sponsors Candy by the Carload – a Halloween event, and Mystery Night. Delaware Police Department and the Delaware County Sheriff’s Office host Picnic with the Cops in August, and they sponsor basketball and baseball leagues for children who are in the less affluent areas of the city.

At least in Delaware County there is an effort to open the lines of communication, an effort to address the innate bias and prejudices that exist and to help people understand the system. As prosecutor, I participate in a lot of public events. Besides the events with law enforcement (yes, I was in the dunk tank), I speak to school age children, I attend events at the schools and in the community. I will speak to any group that contacts me even if there are only 2 to three people attending the event. When I speak to groups, I invite students to spend a day, a week, a month shadowing in my office. We have a booth at the fair and I write a monthly article for the local newspaper.

I just recently indicted the Sheriff of Sandusky County, Ohio – so, no I do not hesitate to prosecute law enforcement. If a police officer commits a crime he gets indicted. End of story. Generally, if the officer or deputy is someone that I or my staff have a lot of involvement with, I will have a Special Prosecutor appointed because the appearance of a conflict might make my decision to indict or not indict subject to question. I do not hesitate to request the appointment of a special prosecutor in those situations.

I have only had one lethal police shooting in Delaware County – white officer, black man stopped for a traffic violation. The encounter was captured on cruiser video, the suspect was under the influence of drugs and earlier in the evening had waved a gun around, telling people that he wasn’t going back to prison. When stopped, he had the gun on his lap and was waiting for the officer to come to the driver side window. Instead the officer went to the passenger side window, saw the gun, told the driver put his hands up, the driver picked up the gun, pointed it at the officer and the officer shot him. Had the officer gone to the driver’s window, the officer would have been dead. An outside agency investigated the shooting and the case was presented to grand jury. There was no indictment.

The first rule of any job should be to make it home for dinner. Period. If you are a truck driver, a teacher, a prosecutor, a police officer, a garbage man or if you work at the makeup counter at Macy’s, you should always get to go home to your family. I don’t think that the system favors the life of a police officer. I think that the system recognizes that police officers face dangers that non-police officers don’t. The Powell Police Department invited citizens to attend a training, where they were placed into scenarios where a suspect may have a gun – or may have a phone or some other object – and the participants were given the opportunity to shoot or not shoot – every single person pulled that trigger. Granted those folks do not have the training that police officers have but the scenario gives folks an idea of what law enforcement faces.

I teach the legal aspect of the Concealed Carry Class in Ohio. Two of my three sons are concealed carry permit holders – the third is military. I drill into them – if you are stopped by police – hands remain on the wheel, you say officer, let me interrupt, I am a concealed carry holder – I do (or do not) have my gun. And if they have their gun, tell the officer where it is. Not only is this the law but, more importantly, it lets the officer know what he/she is facing. Do not argue with a police officer – you know the officer has a gun, if he says lift your hands into the air – do it. Do not argue. It should be your goal to go home for dinner.

Q. You gave the approval to an assistant prosecuting attorney, Andrew King, to do what many other prosecutors are scared to death to allow. You let him write for Fault Lines. What makes a prosecutor afraid to allow their staff to express their views? Are these concerns real, or more CYA in the sense of why take a chance? Many prosecutors find themselves wishing their perspective was out there, in an honest and forthright discussion, but they refuse to let their people take the chance. Why did you? Is there any sound reason why prosecutors, as well as anyone else, shouldn’t be able to express their views? Does this add to transparency and help people to better understand the system? Would we all be better off if we appreciated all points of view, rather than echos of our own? Are you as proud of Andrew as I am?

A. Andrew does a great job with his posts – I read most of them and I am pleased to see the time and effort he puts into the analysis of every article he writes. Andrew is actually in our civil division, but is currently second chair on a criminal case with me – after this experience he may want to stay in the civil division.

I have a staff of 31 – 16 lawyers (15 ½ – one waiting for bar results), victim advocates and support staff. At any given time I can have anywhere from 1 to 6 legal and non-legal interns. I am responsible for what each of them say and do on any given day. I can also tell you that we do not always agree on how every case should be handled. Because my name is on the door, the final say is mine but I generally only overrule the decision of an assistant prosecutor if I believe they need to do more work on the case. If they have done their leg work and can give me a legitimate reason, other than we might not win at trial, why they case should be pleaded down or dismissed, I usually agree.

Can anyone think of anytime a prosecutor put their perspective out there in an honest and forthright way where he/she wasn’t vilified? Cuyahoga County Prosecutor McGinty? Baltimore City State’s Attorney Marilyn Mosby? The prosecutor in the Michael Brown case? And many others? As you mentioned being a prosecutor is an awesome responsibility – and it is a complex position. Most citizens do not understand how the criminal justice system works in their state– and once you add in the federal system it becomes even more confusing. There are so many intricacies to the system that we as prosecutors live with but are difficult to explain to the public.

While I cannot speak for any other prosecutor, I think that there are a few generalizations that apply to all of us. Prosecutors are subject to a different set of standards/rules/ethical concerns than other attorneys. We have restrictions that a defense attorney does not have. We are not supposed to discuss a case other than what is public record or procedure. If we do, and the case results in an acquittal, we can get sued. Try getting a home loan when you have a pending lawsuit for a couple of million dollars! We need to be able to pick an unbiased jury – we have to be very careful to not prejudice the jury pool.

I’m not sure that Prosecutors are afraid to allow their staffs to express their views – the problem arises when something an assistant says is attributed to the elected Prosecutor and deemed to be the position of the Office. The headline is not going to read, Assistant Prosecutor says ….it will read Prosecutor’s office says….and then the following article will – maybe – attribute the source.

And then something is taken out of context from the article and then, 50,000 shares later, the Prosecutor is trying to dig themselves out of a hole. I am responsible for what my assistants say and do – always. When an assistant gets into trouble – say gets a DUI, it makes headline news, and will be used against you in the next election. I cannot say, that isn’t what I said because someone from my staff made the statement. I have to explain that what was said is not the position of the office (me) and then I have to do something about it (discipline a staff member). Frankly, my assistants would much rather not talk to the media – and most of them do not have much free time to write articles – that’s one of the things that is so impressive about Andrew’s writings – I know how busy he is and I know how much time is invested in writing an article – I’m not sure he sleeps!

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  • Richard G. Kopf
    30 September 2016 at 6:21 pm - Reply

    Scott and David,

    Wonderful interview.

    Anybody who grew up in Maumee, Ohio is practical, lacks a filter and is a good boss. Andrew can attest to the truth of that statement. So can I.

    All the best.

    RGK (formerly of 224 East Harrison, Maumee, Ohio).

    PS to Carol O’Brien: At 16, I bet I could drink more 3.2 beer than you while playing pool!