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

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[Cite as In re Disqualification of O'Farrell, 94 Ohio St.3d 1225, 2001-Ohio-4099.]

IN RE DISQUALIFICATION OF O'FARRELL.
THE STATE OF OHIO v. ARNDER.
[Cite as In re Disqualification of O'Farrell (2001), 94 Ohio St.3d 1225.]
Judges -- Affidavit of disqualification -- Judge who presides over pretrial bail
hearing pursuant to R.C. 2937.222 is not disqualified from presiding at
trial, when.
(No. 01-AP-017 -- Decided March 7, 2001.)
ON AFFIDAVIT OF DISQUALIFICATION in Tuscarawas County Court of Common
Pleas case No. 2001CR020053.
__________________

MOYER, C.J. This affidavit of disqualification filed by Gerald Latanich,
counsel for defendant, seeks the disqualification of Judge Edward O'Farrell from
further proceedings regarding the above-captioned case, State v. Robert C.
Arnder, Sr.

Affiant asserts that Judge O'Farrell should be disqualified from further
proceedings in the underlying case because he presided over a pretrial bail hearing
pursuant to R.C. 2937.222. In support of this assertion, affiant relies on the case
of State v. Gillard (1988), 40 Ohio St.3d 226, 533 N.E.2d 272, in which the
Supreme Court held that a trial judge who presides over a Crim.R. 16(B)(1)(e)
motion hearing cannot preside over a subsequent trial in the same case. Affiant
claims that the testimony presented at the bail hearing in the underlying case was
similar to the type of evidence at issue in Gillard and that Judge O'Farrell's
consideration of that testimony jeopardizes the appearance of impartiality in
subsequent proceedings.

The record before me contains no evidence to support affiant's claim that
the testimony heard by Judge O'Farrell will adversely affect the perception of the

SUPREME COURT OF OHIO
judge's fairness and impartiality. Without a transcript of the bail hearing that
includes the testimony considered by Judge O'Farrell, I cannot conclude that the
holding in Gillard should be applied to this proceeding or to R.C. 2937.222 bail
hearings in general. Moreover, affiant's claims that the judge's consideration of
this evidence will impair his ability to remain fair and impartial are speculative
and more appropriately addressed on appeal of any conviction that may result
from the impending trial.

For these reasons, the affidavit of disqualification is found not well taken
and is denied. The case shall proceed before Judge O'Farrell.
__________________
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