State v. Foust, 2017 Ohio 5718

Defendant Kelly Foust was convicted and sentenced to death by a three-judge panel; this court affirmed in 2004.
Sixth Circuit granted habeas relief in 2011 for ineffective assistance at penalty phase and ordered a new mitigation hearing unless state acted, prompting a retrial of sentencing issues.
A new mitigation hearing was granted in 2012 but has been delayed for years; Judge Cassandra Collier-Williams has presided over the case since January 2013.
Four Cuyahoga County assistant prosecutors filed affidavits under R.C. 2701.03 seeking the judge’s disqualification, alleging unreasonable delay, bias against the state, a predetermined preference for life over death, and an improper jury assignment.
Judge Collier-Williams responded with an affidavit and explanations for delays, denied bias or a fixed decision, and explained her ruling on empaneling a jury.
The Ohio Supreme Court reviewed the affidavits, the judge’s responses, transcripts, and the case history and denied disqualification.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Unreasonable delay	Judge Collier-Williams caused excessive delay and should be removed	Delays were explained: regular conferences, continuances for counsel/expert unavailability, and other causes	Denied — delays not so egregious or neglectful to warrant disqualification
Judicial bias / predetermination	Judge made comments showing hostility to the state and a fixed view favoring life sentence	Judge denies many quoted remarks and says any views were conditional or conversational	Denied — comments were at most preliminary conditional opinions, insufficient to show bias
Adverse ruling (jury for mitigation under Hurst)	Judge improperly empaneled a jury contrary to Ohio law	Judge’s interpretation of precedent and ruling cannot be resolved via disqualification affidavit	Denied — adverse/erroneous rulings are not proof of bias
Continued case to await next prosecutor	Judge continued to January 2017 to let incoming prosecutor decide, infringing incumbent’s prerogative	Judge also cited other valid reasons (expert/counsel unavailability) and acted from judicial-efficiency concerns	Denied — remark was improper but not proof of bias; prosecutors’ delay in filing undermines claim

State v. Foust, 105 Ohio St.3d 137 (affirming convictions and death sentence)
Foust v. Houk, 655 F.3d 524 (6th Cir. 2011) (habeas relief for inadequate mitigation presentation)
Hurst v. Florida, 136 S.Ct. 616 (U.S. 2016) (sendsuring jury finding requirement for death penalty procedures)
In re Disqualification of Horvath, 105 Ohio St.3d 1247 (2004) (conditional judicial opinions usually insufficient to show disqualification)
In re Disqualification of O'Neill, 100 Ohio St.3d 1232 (2002) (definition of bias/prejudice requires fixed anticipatory judgment)
In re Disqualification of Burge, 136 Ohio St.3d 1205 (2013) (conflicting affidavit evidence insufficient to overcome impartiality presumption)
In re Disqualification of Synenberg, 127 Ohio St.3d 1220 (2009) (conflicting stories generally do not warrant removal)
In re Disqualification of Fuerst, 134 Ohio St.3d 1267 (2012) (adverse rulings, even erroneous, are not evidence of bias)
In re Disqualification of O'Grady, 77 Ohio St.3d 1240 (1996) (affidavit must be filed as soon as possible after the incident)
In re Disqualification of Celebrezze, 94 Ohio St.3d 1228 (2001) (long presiding involvement requires extraordinary circumstances for disqualification)