True bias or tactic? Attorneys in Householder corruption trial argue judge doesn't like them

COLUMBUS, Ohio — The defense attorneys for former Ohio House Speaker Larry Householder have seemingly developed a new strategy in fighting the largest public corruption case in state history — taking aim at the federal judge over alleged bias and trying to set themselves up for an appeal.

Householder's trial began two years after his arrest. He, former GOP leader Matt Borges and three others were arrested in a federal racketeering conspiracy. The former lawmaker is accused of accepting a nearly $61 million bribe in exchange for legislation, House Bill 6, to provide a $1.3 billion bailout to FirstEnergy and other utility companies.

Householder and Borges have a combined trial and have both pleaded not guilty. House operative Jeff Longstreth and FirstEnergy Solutions lobbyist Juan Cespedes pleaded guilty. Longtime lobbyist Neil Clark died by suicide outside his Florida home after pleading not guilty to racketeering.

The chaotic first day of court set the stage for the rocky relationship.

U.S. District Judge Timothy S. Black, a Democrat nominated by former President Barack Obama in 2009, has been in the legal profession for more than four decades. He got his first spot on the bench in 1994, joining the Hamilton County Municipal Court. During his ten-year tenure on the trial court, he decided to run for a seat on the Ohio Supreme Court in 2000.

This campaign was brought up 22 or so years later by Householder’s attorney Mark Marein. Before the jury entered the courtroom on Tuesday, the Cleveland-based lawyer argued that the judge doesn’t like them.

“We all collectively believe that the court holds animosity toward us,” Marein said. “I question whether [Judge Black] should be presiding over this.”

The claim of bias hinges on an alleged longstanding grudge Black has against Householder. When Black ran against a Republican candidate for the Ohio Supreme Court, Householder allegedly fought against his candidacy and donated to a nonprofit that opposed his run, according to the defense attorney.

The judge ended up losing by a few points. Marein asked if Black had “personal animosity" against Householder because of this defeat.

“The answer to your question is no,” Black replied.

Householder’s team appears to be looking far ahead of his jury trial, and legal expert and Case Western Reserve University constitutional law professor Jonathan Entin said the attorneys seem to be setting up an argument to appeal a guilty conviction.

"It just doesn't make sense that Judge Black, more than 20 years later, would be so bitter about his almost victory in a race where nobody thought he had a chance to win in the first place," Entin said.

Black ran against incumbent Justice Deborah Cook, now a judge on the U.S. Court of Appeals for the Sixth Circuit.

"Justice Cook was elected in 1994 with almost 70% of the vote," the professor said, noting that he had written about this specific race at the time it was held. "She was regarded as safe."

Yes, the trial has shown that Householder has had extensive influence over state politics, but Entin doesn't believe his specific opposition to Black made a dent. There was major backlash from the aggressive campaign against Justice Alice Robie Resnick for her ruling in DeRolph v. State. She helped decide that Ohio's method for funding public education was unconstitutional (since that 1997 ruling, no permanent reform has been put into place).

Resnick's supporters headed to the polls to protect her seat, and in doing so, Black got significantly more than anyone predicted, Entin said.

Supposed evidence

This animosity started when Black scolded the defense when they made faces, talked and created distractions during Assistant U.S. Attorney Emily Glatfelter's opening statements.

RELATED: 'Unholy alliance' — Chaotic first day of Larry Householder corruption trial

Black was "appalled" by the behavior of the defense, he said.

"It’s unprofessional," the judge said. "It’s bush league."

The judge continued to scold, threatening to move all but one of the attorneys to the gallery.

During the opening statements for Householder’s team, Black commented numerous times for attorney Steven Bradley to get to the point.

"Are we going to get to the evidence?" Black asked, once Bradley spent 15 minutes talking about how Householder grew up on a farm and explained his young adult life.

Bradley seemingly ignored this request. About thirty minutes later, Black, who was already annoyed from earlier, told the defense he was not going to argue with them to move forward, and that he should just proceed.

The case of bias

These claims hold absolutely no water, according to Entin and criminal defense attorney Kevin O'Brien. O'Brien is a former Assistant U.S. Attorney but is now a trial lawyer and specializes in white-collar cases.

"These are loser arguments, Morgan," O'Brien responded to News 5 Statehouse reporter Morgan Trau. "These are desperate arguments."

When defending someone accused in a well-tried case, attorneys have to fight for every scrap they can sink their teeth into, the attorney said.

"If you wanted to go for an appeal, you wouldn’t go the bias route?" News 5 asked.

"I would raise it, you gotta raise it," O'Brien chuckled.

This is part of the process, he said, but the defense probably has a better reason for raising the issue of mistreatment.

"They're trying to create talking points that will somehow get back to the jury when they read their newspaper," O'Brien added. "You look for a couple things that could spark reasonable doubt."

Householder already has a mountain of evidence against him, but he only needs one juror to pause during deliberation.

While rare, bias has been used to sway juries and overturn convictions, but only when a judge acts overtly egregiously during the trial, Entin said.

"If at some point it looks like he might be unduly harsh, it's hard to believe that it's this 22-year-old election that's driving all of that," he added.

If the defense knew that Householder opposed Black's run, wouldn't they have noticed that and asked him to recuse himself before the trial? Almost certainly they would have, Entin responded, but that is complicated.

At that point though, the defense would face the challenge of proving the bias is more than speculation.

"It's not entirely surprising that they didn't make this argument ahead of time," he said. "But now they might be saying, 'we have tangible, concrete evidence that he is hostile to us.'"

Regardless, Entin doesn't think the argument is realistic.

The likelihood an appellate court, even a conservative one, would allow for an appeal on the basis of bias is slim, Entin said.

Instead of focusing on the perceived bias, the attorneys should focus more on the "business as usual" trope, O'Brien and Entin agreed.

"Their only argument has to be that this was ordinary business in Ohio and it's not a crime," O'Brien said.

Leave the bias arguments to the kitchen table, he added.

"I admire that, in a way, to be able to lay down your body for a defendant and take the blows," the attorney said. "Being embarrassed in front of a jury, being scolded, being criticized, having the press make fun of you... It's not easy.

"But if you're being paid a lot of money — and this is a high-profile case — you do it for the greater good."

Now what?

Coconspirator Juan Cespedes is set to testify next week in the trial. To learn how Attorney General Dave Yost is involved in the story, click or tap here.

News 5 Statehouse reporter Morgan Trau is in Cincinnati covering the trial with sister station partners Paula Christian of WCPOand Marty Schladen of Ohio Capital Journal.

Previous coverage by Morgan can be found below:

• COVID-19 delays Householder public corruption trial until Tuesday
• Ohioans continue paying for House Bill 6 scandal as Householder's corruption trial presses on
• 'The company was just bleeding cash': FirstEnergy testifies at Larry Householder public corruption trial
• 'Unholy alliance' — Chaotic first day of Larry Householder corruption trial
• 'Eyes of the country are on Ohio' — Jury selected in Larry Householder corruption trial
• Difficult to escape Larry Householder’s influence at Ohio Statehouse, even ahead of corruption trial
• Former Ohio speaker Larry Householder seeks to prevent recordings being played in corruption trial
• Dozens of companies, AG Yost, former lawmakers subpoenaed ahead of Householder corruption trial
• Ohio House Bill 6 scandal settlement payments coming soon, but isn’t over yet

Follow WEWS statehouse reporter Morgan Trau on Twitter and Facebook.