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

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[Cite as In re Disqualification of Niehaus, 94 Ohio St.3d 1232, 2001-Ohio-4107.]

IN RE DISQUALIFICATION OF NIEHAUS.
THE STATE OF OHIO v. RINGER.
[Cite as In re Disqualification of Niehaus (2001), 94 Ohio St.3d 1232.]
Judges -- Affidavit of disqualification -- Judge's receipt of anonymous letter that
defendant wants admitted at trial is not reason for disqualifying judge,
when.
(No. 01-AP-069 -- Decided August 21, 2001.)
ON AFFIDAVIT OF DISQUALIFICATION in Hamilton County Court of Common Pleas
case No. B0010086.
__________________

MOYER, C.J. This affidavit of disqualification was filed by Kenneth
Lawson, counsel for defendant, seeking the disqualification of Judge Richard
Niehaus from further proceedings in the above-captioned case, State v. Tony
Ringer.

This affidavit of disqualification arises from Judge Niehaus's receipt of an
anonymous letter in March 2001 purporting to exonerate the defendant.
According to Judge Niehaus, counsel were advised that the judge received this
letter, and the original was provided to police and prosecutors for investigation.

Prior to the scheduled trial date, affiant included Judge Niehaus on his
witness list and issued a subpoena to the judge regarding his receipt of the
anonymous letter. After conducting a hearing on July 31, 2001, Judge Niehaus
quashed the subpoena on the ground that he has no material evidence to provide
relative to the authenticity or admissibility of the anonymous letter. Affiant
contends that the judge should be disqualified for several reasons, most notably
because he has testimony to offer regarding receipt of the letter and, in quashing
the subpoena, has prejudged the letter's admissibility.

SUPREME COURT OF OHIO

Having reviewed the record before me, which includes a transcript of the
July 31, 2001 hearing, I cannot conclude that it is necessary to disqualify Judge
Niehaus from further proceedings in this case. The record contains the basic facts
that affiant hopes to elicit from Judge Niehaus's testimony regarding his receipt
and subsequent handling of the anonymous letter. Since there appears to be no
disagreement regarding this matter, these facts could be made part of the record
by stipulation of the parties or other means without requiring the judge's
testimony and attendant disqualification. Moreover, the judge's ruling to quash
the subpoena was not a ruling on the admissibility of the letter. Rather, Judge
Niehaus simply stated that, should affiant attempt to introduce the letter at trial as
exculpatory evidence, affiant would still have to address issues of authentication
and admissibility under the Rules of Evidence. Contrary to affiant's claim, these
comments cannot reasonably be construed as either an express or implied ruling
on admissibility of the letter in question.

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