In re Disqualification of Krichbaum - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN RE DISQUALIFICATION OF KRICHBAUM.
THE STATE OF OHIO v. CORNWELL.
[Cite as In re Disqualification of Krichbaum (1997), ___ Ohio St.3d ___.]
Judges -- Affidavit of disqualification -- Judge's participation in plea bargain
agreement of a co-defendant does not mandate disqualification --
Participation in trial of a prior cause, during which judge acquired
knowledge of the facts of the underlying case, does not require
disqualification.
(No. 97-AP-028 -- Decided March 4, 1997.)
ON AFFIDAVIT OF DISQUALIFICATION in Mahoning County
Court of Common Pleas case No. 96-CR-525.

MOYER, C.J. This affidavit of disqualification was filed by James S.
Gentile and E. Winther McCroom, counsel for defendant, seeking the
disqualification of Judge R. Scott Krichbaum from further proceedings in the
above-captioned case.

Affiants contend that Judge Krichbaum is biased and prejudiced against
defendant Sydney Cornwell because the judge accepted guilty pleas from
defendants Williams, McGaha, and Bunkley, three accomplices of Cornwell. In
addition, affiants allege that Judge Krichbaum has "sanction[ed] and approved"
the prosecution's theory of the case because the pleas of Williams, McGaha, and
Bunkley were conditioned upon their agreement to provide sworn statements to
the prosecuting attorney and to testify against Cornwell. In further support of their
argument that Judge Krichbaum is biased and prejudiced against Cornwell,
affiants indicate that Judge Krichbaum presided over the jury trial of defendants
Johnson and Stoutmire, two additional accomplices of Cornwell, at which time
Judge Krichbaum heard the testimony of Williams, McGaha, and Bunkley.

A judge's involvement in a plea bargain agreement of a co-defendant does
not mandate disqualification. In re Disqualification of Corrigan (1996), 77 Ohio
St.3d 1243, 674 N.E.2d 355. Likewise, a judge's participation in the trial of a
prior cause, during which the judge acquired knowledge of the facts of the
underlying case, does not require disqualification. State v. D'Ambrosio (1993), 67
Ohio St.3d 185, 616 N.E.2d 909. Accordingly, the mere fact that Judge
Krichbaum accepted the guilty pleas of Williams, McGaha, and Bunkley and then
heard their testimony during the trial of Johnson and Stoutmire does not mandate
Judge Krichbaum's disqualification from the trial of Cornwell.

Affiants argue that the stricter disqualification standard that is referenced in
D'Ambrosio and has been adopted in several other state courts should apply in the
present case. Under that standard, recusal is required "if the record indicates that,
as a result of a prior proceeding, the judge formed an opinion as to facts at issue in
a subsequent proceeding." D'Ambrosio at 189, 616 N.E.2d at 913. Even applying
this stricter standard, however, the record fails to indicate that disqualification is
warranted. A review of the transcripts of the pleas of Williams, McGaha, and
Bunkley confirm that Judge Krichbaum has neither expressed his view of the
state's evidence against defendant Cornwell nor indicated a belief in the testimony
of Williams, McGaha, and Bunkley. Moreover, a jury, not Judge Krichbaum,
determined the credibility of Williams, McGaha, and Bunkley during the trial of
Johnson and Stoutmire, as will the jury in the trial of defendant Cornwell.

Further, it is noted that Judge Krichbaum accepted the pleas of Williams,
McGaha, and Bunkley on September 12, 1996 and that the trial of Johnson and
Stoutmire took place on September 16, 1996. Affiants waited until February 12,
1997 to file a motion to recuse, which Judge Krichbaum overruled on that date,
and did not file the affidavit of disqualification with the Clerk of this court until

2

February 25, 1997. An affidavit of disqualification must be filed as soon as
possible after the incident giving rise to the claim of bias or prejudice occurred or
affiant became aware of circumstances that support disqualification. A party may
be considered to have waived its objection to the judge when the objection is not
raised in a timely fashion and the facts underlying the objection have been known
to the party for some time. See In re Disqualification of Pepple (1989), 47 Ohio
St.2d 606, 546 N.E.2d 1298. Further, affidavits of disqualification are not to be
used as a tactic of delay. See In re Disqualification of Lorig (1996), 75 Ohio St.3d
1212, 664 N.E.2d 943.

For the foregoing reasons, the affidavit of disqualification is found not well
taken and is denied.

3