| On October 6, 2015, Michael Bailey was shot four times during an attempted robbery by two men in Cleveland, Ohio.
Bailey was taken to the hospital. His girlfriend, Victoria Lyle, went to visit Bailey, and he told her he could identify the shooter. Lyle went on Instagram and pulled up several photos of the person Bailey believed was the shooter. She showed him the pictures, and Bailey identified 24-year-old Carlton Heard as the assailant.
Cleveland police arrested Heard on December 3, 2015, and he was charged with attempted murder, two counts of felonious assaults, two counts of aggravated robbery, robbery, and unlawful possession of a weapon.
A trial date was initially set for May 18, 2016, but it was pushed back several times, once at the state’s request and twice by Heard’s attorney, Michael Cheselka. Judge Daniel Gaul of the Cuyahoga County Court of Common Pleas granted these motions for continuance and set the trial for August 15, 2016.
In court that day, Cheselka sought another continuance. He told Judge Gaul that Heard “denied responsibility and claimed his innocence to this since the time I met him.” Cheselka said that Heard had told him just before the hearing that he was “covering up for the real shooter” and had given Cheselka that man’s name. Cheselka said he gave that information to prosecutors but needed more time to investigate.
The state opposed a continuance. It said a delay might allow the state’s witnesses to be intimidated, and told Judge Gaul that Heard had pled guilty in 2011 to witness intimidation.
Judge Gaul said that it made no sense that Heard would wait so long to provide this new information, adding that it appeared to be a ploy to delay the trial. “If we don’t plead the case, we’re going to trial right now,” he said.
“What I’m suggesting is that you can plead no contest to the indictment and the court will sentence you. My only promise is I won’t consecutively sentence you. If you no contest the indictment, I will sentence you on a
concurrent period of incarceration, but you’re looking at approximately 14 years in the state penal institution, three for the gun and 11 years on the underlying offense, and I would run the other time concurrent. If you take the case to trial and are convicted, you will do multiples of 14 years, because if you’re convicted of these charges, that’s what you deserve. You deserve to spend what could be the rest of your life in the state penal institution.”
Judge Gaul asked Heard what he wanted to do, reminding him again that without a plea, the trial would start “right now.”
Heard hesitated. Judge Gaul told him about two other defendants who had turned down a plea deal he suggested and received sentences of 78 years in prison.
“What is it you would like to do?” Judge Gaul asked.
“I didn’t do it,” Heard answered.
Judge Gaul said, “You have a beautiful suit on, you can sit there and maybe the jury will think you’re a great guy and you’re not guilty. [But] we’re either going to bring a jury up now and try this case or you’re going to enter a plea.”
Judge Gaul paused, then said, “All right, let’s bring the jury up.” He told Heard the jury was on its way, and once they entered the courtroom, the plea deal was off.
Heard accepted the offer. He pled no contest to attempted murder, felonious assault, and aggravated robbery. Judge Gaul sentenced him to 14 years in prison.
Heard appealed, arguing that Judge Gaul had coerced his plea, making it involuntary, and that the judge had failed to adequately explain to Heard what the no contest plea meant in terms of his rights. He also said that Cheselka was ineffective because he didn’t challenge Judge Gaul’s coercive actions.
On October 26, 2017, Ohio’s Eighth District Court of Appeals threw out Heard’s conviction, granted him a new trial, and assigned the case to another judge. “Our review of the entire record leads to the inescapable conclusion that because of the trial judge’s active and inappropriate efforts to secure Heard’s plea, the plea was not made voluntarily,” the court wrote. It also agreed that Judge Gaul had not adequately explained the meaning of a no contest plea. The court did not rule on Heard’s claim of ineffective assistance of counsel.
Heard was returned from state prison to Cuyahoga County, and then released on bond on April 16, 2018.
Heard’s case went to trial on July 18, 2018 before Judge John Russo. Heard was now represented by Joseph O’Malley, who developed the eyewitness evidence discussed prior to Heard’s 2016 plea that the shooter was much shorter than Bailey’s original description. (Judge Gaul had told Heard that he doubted Heard’s belated identification of the shooter, both because it came so late and because the man Heard named was 5’6”. Heard, whom Bailey had identified as the shooter, was 6’5”.) The jury acquitted Heard of all charges on July 20, 2018.
Judge Gaul’s actions in Heard’s case were reported in the third season of the podcast Serial, which ran in 2018 and investigated the Cuyahoga County courts.
Reporter Sarah Koenig said: “As of right now, I’ve not heard that anyone has filed a complaint with the Supreme Court against Judge Gaul because of Carlton Heard’s case. Nothing about the case has been reported in the local newspaper or on TV. No one's picketing outside his courtroom. So Judge Gaul’s not too worried. He’s been on the bench for 27 plus years.”
In early 2021, a complaint was filed against Judge Gaul with the Ohio Board of Professional Conduct, which hears complaints regarding misconduct by lawyers and judges and makes recommendations to the Ohio Supreme Court.
On December 9, 2022, the board recommended to the court that Judge Gaul have his law license suspended for a year and be removed from the bench during the period of his suspension, based on his misconduct in Heard’s case and others during a five-year period from 2016-2021. It said that Judge Gaul had been disciplined before and shown a “refusal to acknowledge the wrongfulness of his conduct and lack of remorse.”
The Ohio Supreme Court had not made a recommendation as of February 2023. Judge Gaul’s attorneys have asked that the suspension be stayed, allowing him to continue in the courtroom.
– Ken Otterbourg
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