Belmont County Judges Weigh In on Mich. Rhetoric Case

Some Question What Judges Should Say When Handing Down Sentences

Photo by Robert A. DeFrank Belmont County Common Pleas Judge Frank Fregiato and other current and former judges respond to a Michigan justice’s opinion that judges should refrain from harsh rhetoric during sentencings.

ST. CLAIRSVILLE — A Michigan court case recently raised a question about how judges speak from the bench, and several local adjudicators weighed in on the topic.

Those local jurists said a judge’s role in the justice system calls for a balance between the requirements of impartial application of the law and the human emotions that arise during prosecution of a criminal case. The case in Michigan made headlines when the defendant challenged the sentence, questioning the judge’s impartiality due to harsh words issued from the bench. While the sentence was upheld, a dissenting justice opined that judges should refrain from heated rhetoric on the bench.

Belmont County Common Pleas Judge Frank Fregiato has a reputation for a passionate style on the bench, often delivering harsh words to serious offenders during sentencing hearings. He said, however, that his words are carefully chosen to fit the circumstance.

“A judge in Belmont County cannot be blind to the facts in the case or the defendant’s prior records. These are taken into consideration,” he said.

“During the course of sentencing, we are very blunt and to the point, and we simply lay it out exactly what happened and the defendant’s prior records. … That is not crossing a line, that’s addressing that which in fact occurred. That is not only legitimate — that is quite proper.”

Fregiato also noted the many cases in which serious harm had occurred or could have occurred in the course of the crime.

“I think it is very legitimate to point out to the defendant and to the public what in fact has occurred and what occurred during an assault, a chase, a whatever where the defendant puts the public at risk or causes the officers to be at risk. I think those are all legitimate factors to be considered,” he said. “I think it is very effective when I talk with their language in the facts that have occurred. I think the defendant knows exactly what’s going on, and I think the public knows what’s going on also.”

Retired Belmont County Common Pleas judge John Sullivan said he was always meticulous during his cases.

“Every one I did, I reviewed the entire file. I prepared comments that I expected to make to the defendant prior to even hearing the comments I might receive from legal counsel (and others) before I would make any kind of statement on the record in the case. I believe that is, at least for me, the appropriate procedure. I did not want to make off-the-cuff comments to a defendant on something I might have heard during the sentencing hearing, or a comment that might not have properly reflected what my true belief was as to the facts of the case,” he said. “I believe it’s incumbent upon the judge to have a full appreciation of the issues before they go into court to sentence.”

Belmont County Western Division Court Judge Eric Costine pointed out the importance of a judge’s independence, adding that this includes avoiding being swayed by outside forces and by the behavior of a defendant.

“I do think judges have great latitude in how they talk to individuals in their courtroom. I think that they should … maintain decorum and decency in the courtroom, but there are occasions where all of us are pushed, not only by people’s actions in the courtroom, but also by their actions outside of the courtroom. Of course we need to temper ourselves at all times,” Costine said. “The judges create their own atmosphere in a courtroom because they are choosing specifically to do that because they feel that’s what works best for them. I would certainly never fault another judge for not doing it the way I do it.”

He also spoke about judges’ responsibility to choose their words to avoid a challenge to their sentences.

“I try to tailor my comments to the benefit of the particular defendant depending on the facts of the case,” Belmont County Common Pleas Judge John Vavra said, adding that he tries to maintain a calm atmosphere in court. “I try to treat everybody with the respect and dignity they deserve. I think it has a positive effect.”

Retired Belmont County judge Harry White served on the Ohio Board of Professional Conduct from 1988 to the early 2000s and brings a broad perspective to the question.

“Those issues came up at times. Whether or not the judge … crossed the line about impartiality and whether or not the rhetoric used was inappropriate judicial temperament, it comes up,” he said.

In his experience, White said, evaluating the effectiveness and sometimes appropriateness of rhetoric comes down to the individual case and the individual judge.

“Every judge has his or her style in addressing parties from the bench and conducting a trial. I can’t say that one is better than the other. It has to be one that fits the judge’s personal temperament, as long as the lines of impartiality are not crossed or the judge doesn’t cross the line,” he said.

“Some judges, particularly in criminal cases, seek to lecture the defendant. Some judges find that treating the defendant with indifference and cold, calculated punishment can serve a purpose. Very often it depends on the individual circumstance of the defendant and of the crime,” he said. “It’s not a clear, bright line. It has to be viewed in individual circumstances.”

White added that often the judge is not speaking just to the defendant, but to the public at large.

“It does some good for the public to know that the judges are not taking such conduct lightly,” he said.

White added that the board can unofficially reprimand a judge for conduct that comes close to crossing a line but does not rise to the level of an official reprimand.

“They’re rare. Most judges exhibit appropriate judicial temperament, but at times — judges are human beings, too, and sometimes they can let the passion of the crime or the victim or the defendant’s lack of remorse get to them and they go a little further than they should in that particular incident,” White said.