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Ohio Supreme Court Justice Michael P. Donnelly has documented more than 600 court cases where a defendant pleaded guilty to a lesser crime that didn’t match up with the original charge.  

Donnelly calls these “factually baseless pleas” and he has recorded this happening specifically in Cuyahoga and Hamilton County courts from 2005 to 2022. 

“I’m against allowing factually baseless pleas where there’s no facts to support it,” he said. “So essentially, what they’re doing is pleading, allowing people to plead to crimes that they did not do in order to resolve the case. … I think it’s probably going on all over the state.”

These types of pleas happen most often in sex crimes and domestic violence cases, said Elizabeth Well, legal director of Ohio Crime Victim Justice Center.

An example of this is a rape charge getting pleaded down to aggravated assault. Or a rape where the victim is a minor being pleaded down to child endangerment charges. 

“What actually happened to the victim starts to become, at best, a footnote in the conversation, and at worst, completely ignored,” said Meg Garvin, executive director of the National Crime Victim Law Institute. 

This is happening across the country, not just in Ohio, and it can cause people to have a lack of faith in the judicial system, she said. 

“They won’t report crime,” Garvin said. “Then we have a completely dysfunctional system that’s adjudicating things in a way that didn’t actually happen.”

Donnelly agrees. 

“If you’re rich and powerful, you can circumvent these laws,” he said. “And how effective are these laws if potentially dangerous people are circumventing them, just because they have power to do so?”

Sex crimes that are pleaded down can be a way people can avoid registering as a sex offender, Donnelly and Well said. 

“With them escaping those types of consequences, it leaves them free to reoffend,” Well said. 

These charges that have been pleaded down can come back up again if the defendant commits a new crime or an employer does a background check. 

“If you see an aggravated assault from 10 years ago, that’s not going to raise an eyebrow, but if you knew it started as a rape, that might concern you a little bit more,” Donnelly said. “What’s bad about these is it puts bad information in the system.”

In 2017, 82% of Ohioans voted to pass Marsy’s Law, which is designed to protect crime victims.

Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association, objects to what Donnelly is talking about when it comes to plea deals that aren’t based in fact and called it “a classic example of a legal theory versus practical realities.”

“Just because some sort of a sexual assault offense might fit a certain fact pattern best, doesn’t mean that other charges don’t fit too, so it doesn’t mean that an assault charge doesn’t fit as well,” Tobin said. “A sexual assault can and often does result in physical harm or serious physical harm, so a plea from a sexual assault offense to an assault offense is based in fact.”

It might not be a perfect plea, but prosecutors have to deal with the realities of the case, he said. 

“A lot of these cases involve child victims who you don’t want to put on the stand and force them to relive this really traumatic event and force them to face the defendant, who might be a family member or a family friend,” Tobin said. 

There are good reasons why a prosecutor would agree to a plea to a lesser included offense, even if they believed a rape happened, Donnelly said.

“It might be too traumatic for (the victim) to testify,” he said. “They have a good faith belief in the guilt of the defendant, but they’re concerned about whether they can prove the case beyond a reasonable doubt. Those are all legitimate concerns to plea bargain to something that’s a lesser included offense, but that’s not what’s happening here. These are not lesser included offenses. These are totally different crimes that have nothing to do with rape.”   

Sometimes Well’s clients just want to be done with the legal process. 

“The person getting a felony is enough for them,” she said. 

Plea deals happen between the prosecutor and the defense attorney, and the judge ultimately has the power to accept or reject it. Donnelly refused to accept pleas that weren’t based in fact when he served as a judge on the Cuyahoga County Court of Common Pleas, a position he held from 2005 to 2018. 

“There have to be facts that, if true, support what the accused is admitting to resolve the case, so I would not accept these in my room, even though they happen all the time,” Donnelly said. 

Before being elected to the Ohio Supreme Court, Donnelly petitioned the Ohio Judicial Conference to require felony charges in plea bargains to be based on the facts of the crime. The Ohio Judicial Conference recommended it to the Ohio Supreme Court, but the state’s high court rejected the proposal in 2016 with a 4-2 vote. 

This was one of the reasons Donnelly decided to run for the Ohio Supreme Court in 2018 and he would like the Ohio Supreme Court to enforce stricter rules when it comes to pleas.

“If a judge was presented with a plea and the crime did not resemble, or was a lesser included form of what the offense charged in the process, the judge wouldn’t necessarily just say no, but they would have to ask the prosecutor on record what facts, if true, support what this person is about to admit to to resolve the case,” he said.

Donnelly sent a letter to the Ohio Judicial Conference in November 2021 asking to “revive its previous efforts regarding this issue” but he said that has gone nowhere. 

Donnelly lost his bid for re-election against Republican Hamilton County Court of Common Pleas Judge Megan Shanahan, meaning his term as an Ohio Supreme Court Justice will come to an end on Dec. 31.  

“Having lost the election, I don’t see how I can do anything other than raise awareness,” he said. “Hopefully, I’ll be speaking at law schools throughout the state of Ohio to inform them the reality of of this taking place. … I’m going to continue my advocacy against them.”

The Ohio Crime Victim Justice Center wants there to be a mandatory conversation between the victim and the prosecutor during plea proceedings so the victim can understand the change of plea, Well said. 

“That’s going to give the victim the opportunity to give informed input to the court about their feelings about the plea,” she said. “I think a lot of people, if they understood what it means for a sex crime to be pleaded down to an aggravated assault or for a child sexual abuse case to be pleaded down to something like endangering children or domestic violence, they would have some real concerns, and they should be able to voice those.”

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