State v. John Grant Gillard
| Decision Date | 21 January 1987 |
| Docket Number | 87-LW-0920,CA-6701 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. John Grant GILLARD, Defendant-Appellant. |
| Court | United States Court of Appeals (Ohio) |
Criminal Appeal from the Court of Common Pleas, Case No 85-5023.
Robert Horowitz, Stark County Prosecutor, Canton, for plaintiff-appellee.
Jack A Blakeslee, Canton, for defendant-appellant.
Due process of law requires not only the fact of fairness and impartiality, but also the appearance of each of them. Trials must not only be fair, they must appear to be fair. Judges must not only be impartial, they must appear to be impartial. The objective events in this case destroy the appearance of impartiality. The claim that everyone acted in good faith misses the point. Neither the fact that everyone acted in good faith, nor our willingness to believe that they did so weigh in the balance. What is critical is the potential for prejudice.
This death-penalty case got off to a bad start and steadily went downhill. There were several hundred Ohio trial judges eligible to preside over it. The record does not explain why the original trial assignment fell to the Honorable James R Unger who had been prosecuting attorney of the county at the time of the savage, brutal, execution style killings involved in the indictment. There were three other general division judges in Stark County who could have been originally assigned.
Given the fact of that improvident original assignment, it was inescapable that any competent defense lawyer would feel obligated to challenge the eligibility of Judge Unger to sit unless he voluntarily stepped aside. Notwithstanding the manifest awkwardness of this unfortunate original assignment, Judge Unger elected not to voluntarily stand aside (recuse himself). This obligated the defense lawyer to challenge Judge Unger's status eligibility to preside.
Procedurally, this necessitated the filing of what is called "An Affidavit of Prejudice" against Judge Unger by defense counsel with the Chief Justice of Ohio. To have failed to so do, surely would have cast defense counsel in the posture of less than zealous, if not "ineffective" in the constitutional sense, a fact obvious to all experienced practitioners. In the face of this obligatory pro forma challenge, Judge Unger persevered in his refusal to recuse himself voluntarily. Instead, he apparently enlisted the support of assistant prosecuting attorney Ms. Alicia Wyler, who for years had been an assistant appointed by James R. Unger when he was the prosecuting attorney. Ms. Wyler was already actively engaged in the prosecution of the instant case.
Ms. Wyler filed an affidavit (see photocopy attached) in support of her former boss, now Judge Unger, with the Chief Justice of Ohio, who, under the Ohio Constitution, decides the issue of whether a particular judge, when challenged, may sit in a specific case. Ms. Wyler swore, inter alia, that to the best of her recollection, James R. Unger, as prosecutor, never talked to her, his assistant, about the case at bar and that he took no part in the investigation of the crimes charged in the indictment.
Unfortunately, at the outset, this created at the least an appearance of a community of interest between the trial judge and the assistant prosecutor who was engaged in the trial of the case. Defense counsel found himself doing battle against the trial judge and prosecution counsel "lined up" together against him on the opposite side of the issue. The trial judge appeared to be fighting to stay in the case and being given aid by his former associate, the assistant prosecutor, who would try the case against the defense counsel should he, Judge Unger, win his point. Judge Unger still elected not to recuse himself. Accordingly, the issue of whether Judge Unger should preside went to the Chief Justice of Ohio for determination upon Ms. Wyler's affidavit. The Chief Justice overruled the challenge and Judge Unger presided.
Thereafter, during voir dire, the preliminary examination of prospective jurors, and over strenuous objection by defense counsel, Judge Unger excluded the defendant, his counsel, the public and press when he heard from Ms. Wyler ex parte five pages of unsubstantiated, severely damaging representations about the accused. These included, but were not limited to, threats to a State's witness linked to the accused and his associates. For the remainder of the trial, this placed Assistant Prosecutor Alicia Wyler and the trial judge together in an apparent lineup against the defense lawyer in what might reasonably be described as a "we know something that you don't know" situation because the record of these ex parte representations were "sealed only to be opened upon appellate review."
Using these ex parte representations as a basis for his decision, Judge Unger then made an official order excluding the public and press from a perpetuation of testimony proceeding over which he personally presided, with the defendant and his counsel present. Once again, Judge Unger and Assistant Prosecutor Alicia Wyler appeared to be united in interest. This time to exclude the public and the press. The exclusion of the press from the judge's proceedings led to a highly publicized lawsuit in which the Stark County Prosecutor's office participated representing Judge Unger, and the unsequestered prospective jurors were exposed to the public accounts thereof. With no jury yet having been impaneled and sworn, meaning that the accused was not yet in jeopardy, Judge Unger elected neither voluntarily to stand aside, nor to inform the Chief Justice of Ohio about the nature of the ex parte representations that had been made to him by Ms. Wyler. Defense counsel could not tell the Chief Justice about them via a renewed challenge of Judge Unger, because Judge Unger had excluded the defendant and his counsel and sealed the record.
Against this background, it came to pass thereafter that a jury was empaneled and sworn. Judge Unger presided over the hotly contested trial making the many difficult, highly discretionary evidentiary and procedural decisions in the guilt phase of the trial. Included therein was Ms. Wyler's point-by-point cross-examination of the accused, over objection, about many of the unproved assertions she had communicated to Judge Unger ex parte. Each drew a categorical denial. Then both the defense and the prosecution promptly rested. The prosecution made no attempt to show good faith in the asking of the questions by any record demonstration that any evidentiary basis for them had existed. The renewed mistrial motion was overruled. Volume One-Sixth Week of Trial, p. 4, 11.7-12.
The cold record affirmatively shows that:
first, it required the conscious combined efforts of both Judge Unger and Assistant Prosecutor Alicia Wyler to keep Judge Unger in the case over the defendant's objection;
secondly, the same conscious combined efforts to exclude both the accused and his counsel over their objection from an important part of the pre-trial proceedings (the five pages of ex parte unproved damaging assertions about the accused and his associates made by Ms. Wyler to Judge Unger;
thirdly, the same conscious combined efforts, over express defense objection, to exclude the public and the press from the separate testimony perpetuation portion of the pre-trial proceedings presided over by Judge Unger;
and fourthly, the same conscious combined efforts to permit, over defense objection, the placing of unproved damaging assertions before the trial jury by Ms. Wyler in the form of her prosecution cross-examination questions to the testifying defendant as to facts not in evidence and never thereafter demonstrated to have had any evidentiary basis.
If the trial court was, as suggested, "placed squarely on the horns of a dilemma" (respecting that part of the procedure that took place before the jury was finally selected, impaneled and sworn), he was placed there intentionally by the prosecution whose motivations, "sinister" or otherwise, did not stop them when it suited their purpose from going to Judge Morris on April 22, 1985, and securing an order compelling the accused to give blood and saliva samples to be used to help send him to his death.
Judge Unger easily could have "sidestepped the horns" by sending Ms. Wyler to Judge Morris when she first announced that what she intended to say would require a "sealed record."
Nothing appears that would have prevented the prosecution from selecting Judge Morris or some other judge to make their so-called "certification" record except their apparent desire to influence the trial judge with these "sealed" revelations. The rule neither requires, nor expressly authorizes, the actual trial judge to hear pre-trial ex parte representations. In our opinion, they were totally unwarranted because of the defense withdrawal of the discovery motion.
The claim that the prosecution, in good faith, understood the Supreme Court rules to require them to "make a record," does not respond to the evil inherent in going to Judge Unger rather than to Judge Morris to make it. Their so-called "certification hearing" representations could have been made to Judge Morris, or some other judge. The same is true of the perpetuation of testimony. The record makes it appear that concern for their own convenience was of sufficient value to steer the prosecution to Judge Morris for a pre-trial order, but concern for the constitutional rights of the accused was not.
No amount of labored apologia can obscure that fact. It shines through this record as the proverbial "new silver dollar in a mud puddle." Failure to go back again to Judge...
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