Sheila McLaughlin

smclaughlin@enquirer.com

A practice of allowing the prosecutor to watch court proceedings in his office has targeted one Warren County judge in a state ethics investigation.

Documents obtained by The Enquirer indicate that Common Pleas Judge Donald Oda was served with a grievance from the Ohio Supreme Court Disciplinary Counsel last week.

Oda declined comment about the grievance, saying it was a confidential investigation.

The latest development comes after defense attorneys discovered and began complaining that County Prosecutor David Fornshell was watching proceedings from his office, a story first reported by The Enquirer in August.

Oda mentioned the state investigation in an Oct. 22 letter to Warren County Bar Association President David Ernst.

Oda was responding to a list of recommendations from the bar association on taking precautions with the court's audio-visual equipment to guard attorney-client privilege and to eliminate the live feed to Prosecutor David Fornshell's office.

In the letter, Oda told Ernst "it wasn't appropriate to discuss the matter or make any changes" while the state disciplinary counsel was investigating. He said the grievance involving the audio-visual system was "filed against me personally."

Ernst did not return calls from The Enquirer seeking comment. The state disciplinary counsel cannot discuss grievances while they are being investigated.

A firestorm of criticism erupted in August after defense lawyers discovered that Fornshell could secretly watch their hearings and trials. They expressed concern that Fornshell could hear privileged conversations between them and their clients.

The direct feed was in place since a high-profile trial in 2011 but defense attorneys said they were never told about it.

Several attorneys called for the three judges to stop the practice. The bar association set up a committee to study the issue and make recommendations, which association members approved last week.

The outcry led Judge Robert Peeler, the presiding judge, to disconnect the video feed from his courtroom to the prosecutor's office in September.

He said it gave an appearance of impropriety but that he would consider allowing Fornshell access on a case-by-case basis. Defense attorneys would be notified if that was going to happen, Peeler said.

Oda and Judge James Flannery, who retires on Friday, continued allowing the direct feed to Fornshell's office.

Attorneys since have been given access to an area to watch proceedings outside the courtroom in an area where court staff sit.

Fornshell said he had only watched proceedings from his office a handful of times and that he had never heard private attorney-client conversations. He said he would abide by any decision from the judges.

What happens with a grievance against a judge

If the disciplinary counsel finds enough evidence of wrongdoing, a formal complaint is filed against a lawyer or judge.

The Board of Commissioners on Grievances and Discipline, which is an independent board appointed by the Supreme Court of Ohio, will then hold a public hearing, sort of like a trial. If there is not enough evidence of misconduct after the hearing is held, the board will dismiss the charges. If enough evidence exists, the board will make recommendations to the Ohio Supreme Court on what disciplinary action to take. Discipline can include monitoring, suspensions or being banned from practicing law or sitting on the bench. The Ohio Supreme Court gets the final say.