Thursday, April 22, 2010

When Anonymous is Not So Anonymous

by Donna Pendergast

Cuyahoga County Common Pleas Judge Shirley Strickland Saffold has found herself in the eye of a storm. Currently presiding over the high-profile case of serial murderer Anthony Sowell, Saffold became the subject of a very public controversy after anonymous comments to the Cleveland Plain Dealer's website were traced to her personal AOL email account. Several of these comments involved the Sowell case. One post allegedly disparaged Rufus Sims, the attorney defending Sowell, who is accused of murdering 11 women and hiding their bodies around his Cleveland home.

In one anonymous posting, Sowell was compared with a man who recently killed his wife using cyanide. The post went on to insist all criminals committing crimes against women must stop, and that none of them should get out of prison, ever. Another post was critical of Sims, saying he was acting like a buffoon and referring to his "Amos and Andy style mouth." It continued with a remark that Sim's client "should have hired a lawyer with experience to truly handle her needs."

The comments were made under the pseudonym "lawmiss." That moniker was tied to Saffold after an online editor used software to look up lawmiss's email account after that name was used to post a comment that included personal medical information about the relative of a Plain Dealer reporter. It was determined that over 80 comments tied to "Lawmiss" were posted on the paper's affiliate web site In a story published March 26th in the Plain Dealer, reporter James McCarty identified Saffold's AOL e-mail account as the source of the online comments.

As noted in a sidebar to McCarty's story, publication of this information created something of an ethical dilemma for the newspaper. The sidebar reported that as noted by the newspaper's editor, the comments were not about "trifling matters." On the other hand, it recognized as problematic that people mistakenly believed they were posting anonymously. Reporters had access to the data people provided when they created their accounts. The company that runs the web site has since restricted access permissions to prevent reporters from accessing this data.

Saffold denies posting the online comments, although published reports indicate that three of the comments were posted while someone using Saffold's courthouse computer was visiting Saffold's 23-year-old daughter, Sydney, a one-time law student, has claimed responsibility for the inflammatory comments. Saffold's attorney Brian Spitz says the email account was a joint family account. He acknowledges Saffold has posted comments from that email address, but claims she has never posted anything about cases pending before her.

Now Saffold and her daughter have sued the Plain Dealer, its parent company Advance Publications Inc and the company that runs the newspaper website. The two claim the newspaper invaded their privacy by releasing confidential information in violation of the site's privacy policy. The lawsuit seeks $50 million in damages for fraud, defamation, tortous interference, invasion of privacy and breach of contracts. Plain Dealer Editor Susan Goldberg won't comment with a lawsuit pending. But to NPR before the suit was filed, she defended publication of Saffold's identity on grounds it was in the public interest.

A week after the story broke, Sims (right) filed a motion asking Saffold to recuse herself from one of his cases unrelated to the Sowell case. Sims later filed a second motion claiming bias against him and asking Saffold to withdraw from all of his cases because of questions about her impartiality. In a bizarre answer, prosecutors opposed Sims's request. The prosecutor argued that if Sims thinks Saffold is biased against him, then Sims is the one who should withdraw from the case.

I mean, come on. Really? Either the judge made disparaging comments or her daughter did after becoming familiar with inside facts about the case. And the prosecutor thinks that the appropriate remedy is for the defendant to start over with a new lawyer? I'm a hard-core prosecutor, but that line of thinking baffles me. I have no empathy for an alleged serial murderer, but he does have constitutional rights.

In a court session Friday, Saffold issued a two paragraph decision finding "no basis in fact or law" for her recusal. Still pending is yet a third motion asking Saffold to step down. Sims filed it last week after Saffold said in a court session that Sims "was the only person in this room calling me a liar." Sims responded that he'd never called Saffold a liar -- and then filed his third motion.

In my opinion, it's hard to believe that a 23-year-old would use the term an "Amos and Andy" mouth, a reference to a 1950's television show. It's also hard to believe that Saffold's daughter would be posting comments from her mother's courthouse computer. Even if true and the posts were written by Saffold's daughter, the contents of the offensive comments suggest Saffold was sharing more than an e-mail account with her daughter. The comments reveal an intimate familiarity with events taking place in Saffold's courtroom, including the performance of attorneys. Such disclosures are troublesome at best and may cross ethical lines.

Whether or not anything improper occurred, there's an appearance of impropriety. The harm is done, whether Saffold is responsible for the comments or not. Since all death penalty cases are automatically appealed, the potential for reversal is too dire of a consequence to risk.

Judge Strickland-Saffold would be well advised to follow the example that an unrelated Judge Strickland set earlier this week.

On Monday Judge Stan Strickland (left), who was presiding over the Casey Anthony case, recused himself at the defense's request. The motion for recusal was based on innocuous comments the judge made to a blogger after becoming familiar with a blogger. Strickland was searching the Blogosphere to explore general online discussions about the Casey Anthony matter. Those Internet discussions had become relevant to the defendant's motion for a change of venue. After his online search, he recognized the blogger in his courtroom, and in open court Judge Strickland thanked the blogger for being "fair and civilized."

As Judge Strickland noted in an order granting disqualification that speaks volumes about his integrity and class: "The Court takes heed of the defendant's present uneasiness. It is axiomatic that no judge owns a case. No defendant's rights should ever be subordinated to judicial ego ... The Court is now being accused of being biased in favor of the prosecution. While dozens of motions have been filed, many more wait in the wings. If the past is prologue, some defense motions may be denied. Since the undersigned has now been accused of bias and wrongdoing potentially each denial of a defense motion will generate renewed allegations of bias. The cumulative effect will be to elevate an otherwise meaningless situation into a genuine appellate issue."

So Judge Strickland-Saffold fights to stay while Judge Stan Strickland decides to go. "Indeed, the irony is rich."

Kudos Judge Stan Strickland --- you get it. Fair or not, you see the big picture and understand that it's not all about you. You have my utmost admiration for being a class act.

Statements made in this post are my own and are not intended to reflect the views, thoughts or position of the Michigan Attorney General or the Michigan Department of Attorney General.


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A work in progress said...

wow, I have a motion pending to recuse a judge, but I am doubting it will happen. And wow to at Saffold's suit. I am suing for much less than that for attempted murder! Rich man poor man, celebrity, unknown. Now I have been informed that it is pretty darn likely that the guy committed BIGAMY! And still no word from the prosecutor who has even pulled strings in the SPD to keep them from investigating leads which would show that they were lax in their duties to protect a victim! When a judge has the guts to step down that is a good thing, but I wonder if they would have even been able to ask him if it weren't a high profile case?

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