State v. Moore (In re Disqualification of Gall), 13–AP–004.
| Decision Date | 26 February 2013 |
| Docket Number | No. 13–AP–004.,13–AP–004. |
| Citation | 986 N.E.2d 1005,135 Ohio St.3d 1283 |
| Parties | In re DISQUALIFICATION OF GALL. The State of Ohio v. Moore. |
| Court | Ohio Supreme Court |
[Ohio St.3d 1284]{¶ 1} Jonathan N. Garver, counsel for defendant John Moore Jr. in the underlying case, has filed an affidavit with the clerk of this court under R.C. 2701.03 seeking to disqualify Judge Steven E. Gall from presiding over any further proceedings in case No. CR–00–392440–A, now pending for a resentencing hearing in the Court of Common Pleas of Cuyahoga County.
{¶ 2} Garver alleges that Judge Gall should be disqualified to avoid an appearance of impropriety. As background, Judge Timothy J. McGinty presided over Moore's case from 2000 until the judge's resignation in 2011. Effective October 1, 2012, McGinty was appointed Cuyahoga County Prosecuting Attorney, and he thereafter sought appointment of outside counsel to prosecute Moore's case, pursuant to Prof.Cond.R. 1.12. At the time of McGinty's appointment, Judge Gall was employed as an assistant county prosecutor in Cuyahoga County. Judge Gall subsequently won election to McGinty's former judicial seat at the November 6, 2012 general election and inherited McGinty's docket, including Moore's case. In Garver's affidavit of disqualification, he claims that as a consequence of having served as an assistant county prosecutor under McGinty, Judge Gall was one of the prosecutors disqualified from prosecuting Moore's case. Garver asks: “What could create more of an appearance of impropriety than to allow a person who was disqualified from acting as a prosecutor to preside over the entire case?”
{¶ 3} Judge Gall has responded in writing to the allegations raised in Garver's affidavit and states that there is nothing about his relationship to any of the parties that will affect his ability to rule fairly and impartially. Judge Gall further explains that during his employment with the prosecutor's office, he “had no knowledge of the Moore case and did not perform any work on the case.”
{¶ 4} For the following reasons, no basis has been established to order the disqualification of Judge Gall.
{¶ 5} First, it is well established that a “judge generally need not disqualify himself from presiding over a criminal matter that, although pending at the time he served as a prosecuting attorney, was one in which he had no direct involvement.” In re Disqualification of Rastatter, 117 Ohio St.3d 1231, 2005-Ohio-7147, 884 N.E.2d 1085, ¶ 3, citing Flamm, Judicial Disqualification, Section 11.5.2, 328 (1996); see also In re Disqualification of Cross, 74 Ohio St.3d 1228, 657 N.E.2d 1338 (1991) (). Instead, the issue is whether “the judge, while in government employment, himself served as counsel in the case.” Rastatter at ¶ 4. Judge Gall affirmatively states that he did not perform any work on Moore's case while he was employed as an assistant county prosecutor. Accordingly, Judge Gall will not be disqualified merely because Moore's case was pending while Judge Gall served as an assistant county prosecutor.
{¶ 6} Second, the fact that McGinty requested outside counsel to prosecute the state's case against Moore—while Judge Gall was employed as an assistant county prosecutor—does not create an appearance of impropriety warranting Judge Gall's disqualification. In re Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8. The reasonable observer is presumed to be fully informed of all the relevant facts in the record—not isolated facts divorced from their larger context. See In re Disqualification of Carr, 105 Ohio St.3d 1233, 2004-Ohio-7357, 826 N.E.2d 294, ¶ 17 (...
To continue reading
Request your trial
-
State v. Richards (In re Kerenyi)
...of all the relevant facts in the record—not isolated facts divorced from their larger context." In re Disqualification of Gall , 135 Ohio St.3d 1283, 2013-Ohio-1319, 986 N.E.2d 1005, ¶ 6. Finally, in considering a disqualification request, "[a] judge is presumed to follow the law and not to......
-
Marvar v. Premier Physicians Ctrs., Inc. (In re Sutula)
...of all the relevant facts in the record—not isolated facts divorced from their larger context." In re Disqualification of Gall , 135 Ohio St.3d 1283, 2013-Ohio-1319, 986 N.E.2d 1005, ¶ 6. In deciding a disqualification request, "[a] judge is presumed to follow the law and not to be biased, ......
-
State v. Farris (In re Binette)
...of all the relevant facts in the record—not isolated facts divorced from their larger context." In re Disqualification of Gall , 135 Ohio St.3d 1283, 2013-Ohio-1319, 986 N.E.2d 1005, ¶ 6. Each case must be determined on its own merit, weighing the nature and circumstances of the alleged thr......
-
State v. Kunzer (In re Leuthold), 18-AP-051
...of all the relevant facts in the record—not isolated facts divorced from their larger context." In re Disqualification of Gall , 135 Ohio St.3d 1283, 2013-Ohio-1319, 986 N.E.2d 1005, ¶ 6.{¶ 6} Although an appearance of bias could exist if a defendant appearing before a judge is charged in a......