State v. Tucker (In re Gallagher)

• Docket Number: 24-AP-079
• Decision Date: 30 July 2024
• Citation: 177 Ohio St.3d 1223
• Parties: In re Disqualification of Gallagher. The State of Ohio v. Tucker.
• Court: Ohio Court of Common Pleas

177 Ohio St.3d 1223

In re Disqualification of Gallagher.

The State of Ohio v. Tucker.

[Cite as In re Disqualification of Gallagher, 2024-Ohio-6136.]

Judges—Affidavits of disqualification—R.C. 2701.03—Several paragraphs of affidavit of disqualification stricken because they are not based on affiant’s personal knowledge—Affiant showed that a reasonable and objective observer would harbor serious doubts about judge’s impartiality toward defendant in underlying case based on judge’s statement that defense counsel’s appellate-court filing included "blatant lies"—Disqualification granted.

(No. 24-AP-079—Decided July 30, 2024.)

On Affidavit of Disqualification in Cuyahoga County Court of Common Pleas, General Division, Case No. CR-23-684036-B.

Kennedy, C.J.

{¶ } Joseph C. Patituce, counsel for Matthew Tucker, the defendant in the underlying criminal case, has filed an affidavit of disqualification pursuant to R.C. 2701.03 seeking to disqualify Judge Kelly A. Gallagher of the Cuyahoga County Court of Common Pleas, General Division, from presiding over the case. Judge Gallagher filed a response to the affidavit of disqualification.

{¶ } As explained below, because a reasonable and objective observer would harbor serious doubts about Judge Gallagher’s impartiality toward Patituce, the affidavit of disqualification is granted. This matter is returned to the administrative judge of the Cuyahoga County Court of Common Pleas, General Division, for random reassignment to another judge of that division. See Sup.R. 36.011 and 36.019.

Trial-Court Proceedings

Proceedings between August 25, 2023, and May 23, 2024

{¶ } On August 25, 2023, Tucker was charged with aggravated murder and other offenses. The trial court’s August 30 arraignment entry indicates that Tucker had retained attorneys Rachelle M. Smith and Joseph C. Patituce to represent him. At that time, Smith was an associate attorney at Patituce’s law firm, Patituce & Associates.

{¶ } After arraignment, Judge Gallagher held 15 pretrial conferences. In 2023, the judge held pretrials on September 13 and 27, October 12 and 25, November 15, and December 13. In 2024, the judge held pretrials on January 10 and 22, February 26, March 12 and 20, April 17, and May 2, 13, and 21.

{¶ } The first scheduled trial date was January 22, 2024. At the request of the defendant, the trial was continued until March 20 and then again until June 3.

{¶ } In late April, Smith abruptly left Patituce & Associates. According to Catherine R. Meehan, a partner at the law firm, after Smith left the firm, Patituce met with Tucker to determine whether he wanted to continue to be represented by the Patituce law firm.

{¶ } Meehan and Patituce attended the May 2 pretrial before Judge Gallagher. At that time, Patituce noted that two of his cases were scheduled to be heard on June 3: State v. Streets, Cuyahoga C.P. No. CR-23-685323-A, and State v. Tucker, the underlying case. Patituce told the judge’s bailiff that he was ready to proceed in the Streets case but that because he was not sufficiently familiar with the Tucker case, he would need a continuance in that case. On May 8, Patituce filed a motion to continue in Tucker, asserting the same facts he stated on May 2.

{¶ } Meehan also attended the May 13 pretrial in the Tucker case. At that time, the bailiff informed her that Judge Gallagher had denied Patituce’s motion for a continuance of the June 3 trial in the Tucker case but then stated that there were three other homicide cases on the docket for that day. Meehan states that she took that to mean that "trial [in the Tucker case] was unlikely to proceed." On May 21, Meehan was in court for pretrials for both Streets and Tucker. Meehan states that she asked Judge Gallagher’s bailiff "which trial was up first" and the bailiff stated that "Streets was up first." Meehan then looked at the trial calendar and noticed "that there was a separate trial on the books, even before Streets." Meehan asserts that she took that to mean "that Street[s] was second on the list for trial, and above Tucker and three other homicide cases."

{¶ } On May 23, Patituce filed a motion to compel the collection of specific DNA evidence in Tucker.

June 3 Proceedings

{¶ } When counsel appeared in court on June 3, Judge Gallagher called the Tucker case for trial—not Streets or any of the other homicide cases that had been scheduled for that day. Patituce indicated to the judge that on March 11, 2024, the court scheduled the Streets trial for June 3 and that in accordance with the Rules of Superintendence, the Streets case should proceed because the trial in that case had been scheduled before the Tucker trial. Attorney Nicholas Froning, counsel in a civil action related to the Streets case, has provided an affidavit averring that he was present in the courtroom on June 3 and that he expected that the Streets criminal trial would go forward at that time.

{¶ } Patituce then addressed the judge and provided several reasons why the Tucker case could not go forward, including but not limited to (1) he did not have the file with him, because the bailiff had assured him that the Streets case would be heard first, (2) he had childcare responsibilities later that week, and (3) Tucker’s rights under the Sixth Amendment to the United States Constitution would be violated if the case proceeded to trial on June 3 because the State had recently released a "phone dump" of records and Patituce had not yet had an opportunity to review them, he had recently received the name of a new potential exculpatory witness and needed additional time to investigate, and he had not yet received the evidence he had requested for DNA testing.

{¶ } In response, Judge Gallagher noted that Patituce was identified on the arraignment entry as counsel of record. Patituce responded that Smith had represented Tucker and that he had not filed a notice of appearance in the case. In response, Judge Gallagher stated that the Tucker case had been on the court’s over-age case list for a long time and that the Streets case was not yet beyond the time guidelines. The judge added that she could call a recess and continue the Tucker trial until the next week to accommodate Tucker’s childcare obligations. The following exchange then occurred:

THE COURT: With regard to additional discovery, there has been ample time. I am not sure exactly at what point this Court is not supposed to be handcuffed by what counsel chooses to do and not to do. So if the Court of Appeals is to reverse me on the fact that I have to draw the line somewhere, then so b[e] it. I can try the case again. That’s fine with me.

So we will begin.

MR. PATITUCE: Your Honor, as I have no notice of appearance, I can’t go forward. I don’t believe Attorney Meehan has a notice of appearance either. Mr. Tucker would be going forward without counsel?

THE COURT: Then why are you here?

MR. PATITUCE: As a courtesy to the Court, Your Honor. We understood that, based on the conversations outside, that Mr. Tucker would have adequate time to be able to place together his defense. Attorney Smith is his attorney of record. She has never withdrawn from the case. We were here because we believe he has a valid, viable defense. He has exculpatory evidence that we just learned about, and if we give him time, he can put together a valid, viable defense. Without notices in, neither Attorney Meehan or I, he would be going forward without counsel. I don’t think that’s appropriate.

THE COURT: Have you accepted any funds in this case?

MR. PATITUCE: Attorney Smith had an agreement with Mr. Tucker.

THE COURT: Does that go in where you benefited from that fee agreement?

MR. PATITUCE: I’m sure it did.

Your Honor, without a notice of appearance, we can’t go forward. I understand the Court’s ruling on this, but the Sixth Amendment requires that he have adequate time with his attorney. I only had three weeks to prepare for this case. That’s not enough time to get ready. We probably won’t have the file printed out until Monday, at best. It’s a massive file. We’re talking about videos and witnesses. We aren’t asking for a long continuance. We can try this case this month. We’re only asking for a brief continuance.

{¶ } Judge Gallagher called a recess to consider Patituce’s request. The judge’s bailiff then informed counsel that Patituce’s motion to continue was denied and that the Tucker case would proceed to trial that day. Judge Gallagher issued an entry denying the motion to compel the collection of DNA evidence, and the parties commenced jury selection.

{¶ } Patituce claims that after breaking for lunch, Judge Gallagher did not return to the courtroom for the remainder of the day and that her bailiff informed counsel that they should use their time to review the new discovery. Patituce further asserts that when he asked for permission to return to his office to obtain the Tucker file, the bailiff forbade him from leaving the courthouse floor. At approximately 4:15 p.m., the bailiff informed counsel that the parties could leave for the day.

{¶ } At some point on June 3, Patituce appealed Judge Gallagher’s decision denying the motion to compel the collection of DNA evidence to the Eighth District Court of Appeals. Patituce filed a memorandum in support of appellate jurisdiction in which he stated that Judge Gallagher’s bailiff had repeatedly assured Meehan and himself that the Tucker case would not go forward on June 3 and that the Streets case would be heard first. In support of the memorandum, Patituce submitted his own affidavit, an affidavit from Meehan, and an affidavit from Froning. Also on June 3, Patituce, on behalf of Tucker, filed a complaint for a writ of prohibition against Judge Gallagher in the court of appeals, challenging her denial of Patituce’s oral request for a continuance.

June 4 Proceedings

{¶ } On June 4, Tucker refused to change out of his jail uniform before appearing in court. Judge Gallagher asked him on the record why he had...