By Andrew Strickler

Law360 (December 14, 2020, 5:46 PM EST ) The chief justice of the Ohio high court has removed a county judge who held in-person hearings throughout the pandemic without issuing written COVID-19 protocols from overseeing two planned trials.

The judge, Mark Fleegle of the Muskingum County Court of Common Pleas, insisted on conducting two scheduled criminal trials in person this month, according to the disqualification order from the Ohio Supreme Court's Chief Justice Maureen O'Connor, and has asserted that state safety mandates were "recommendations" rather than orders he was obliged to enforce in his court.

And while Judge Fleegle agreed to require masks in his courtroom after a recent challenge by a defense lawyer, he has never put in writing how he would help protect jurors and other trial participants from passing the virus.

Judge Fleegle, of Zanesville, Ohio, also failed to sufficiently explain the "urgency of going forward with the two jury trials at this particular time," according to the decision.

"Even if Judge Fleegle is convinced that he can preside over a safe jury trial without any sort of written protocol, he should recognize that other people take public-health recommendations very seriously and that the health concerns of attorneys and parties should be an important factor in deciding whether to proceed with jury trials during this phase of the pandemic," Justice O'Connor said.

Judge Fleegle was targeted with a removal affidavit in November from Columbus criminal defense attorney Harry R. Reinhart, who represents two criminal defendants with cases before the judge.

Reinhart said he previously objected to Judge Fleegle's decision to hold pretrial hearings in person rather than on Zoom and described the judge's decision allowing jurors, prosecutors and others in court to forgo masks as unreasonably risky. Reinhart told Law360 that Judge Fleegle himself only began wearing a mask in court after the state Supreme Court requested his response to the affidavit.

In a November "affidavit of disqualification," the 69-year-old Reinhart told the court that because of his own age, he was at a higher risk for COVID-19 complications and that his clients were worried he'd "become distracted with his own health concerns" during trial, according to the decision.

Judge Fleegle "has said nobody in his courtroom has caught the disease, and I'm sure he believes that, but there is no way he could know because there is no testing or contact tracing," Reinhart told Law360. "He is blissful in his ignorance."

In response to Reinhart's challenge, Judge Fleegle told the high court in recent weeks that he believes he and jurors are essential employees, and that in-person court hearings must continue "to keep our system of government intact."

Judge Fleegle also stated that his own health risks were so severe that "I do not believe I would survive the virus if I got it."

But while Judge Fleegle said in response to the original affidavit that he would start requiring masks, he didn't issue written procedures to protect the safety of trial participants and jurors, Justice O'Connor said.

In her Thursday decision, Justice O'Connor noted that the current challenge was being raised amid a serious spike in COVID-19 infections, a state-wide curfew and a "level 3" public health emergency warning in Muskingum County.

As such, the circumstances are different than in June of this year, when the high court declined a similar request to remove a judge. In that case, the judge challenged by a pair of attorneys over similar trial concerns consulted with state health officials, issued written safety instructions, installed germ barriers in her courtroom and took other steps before allowing a halted trial to resume.

In contrast, Judge Fleegle argued that he would enforce social distancing but had no plans for sanitizing his courtroom, minimizing contact between jurors or maintaining a six-foot distance between others during the proceedings.

By failing to follow state health directives, "a judge endangers the health of those who enter the courthouse and their families, etc. A judge's noncompliance whittles away at the public's trust and confidence in the judiciary," Justice O'Connor said.

Both felony criminal cases at issue in the order are indefinitely stayed pending reassignment to another judge. A clerk in Judge Fleegle's office said the judge would not comment.

Fleegle was re-elected to a seat on the court's general division in 2014. His current term is set to expire at the end of this month.

The case In re: Disqualification of Fleegle, State v. Lynum and State v. Gillard, case number 20-AP-099, in the Ohio Supreme Court.

--Editing by Ellen Johnson.

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