Case Information
*1
[Cite as
In re Disqualification of Mayberry
,
I N RE D ISQUALIFICATION OF M AYBERRY .
T HE TATE OF O HIO
v
. H OOK .
[Cite as
In re Disqualification of Mayberry,
(No. 09-AP-102 — Decided November 4, 2009.) N A FFIDAVIT OF D ISQUALIFICATION in Wood County Court of Common Pleas
Case No. 2009-CR-08-271.
__________________
M OYER C.J. Drew A. Hanna, counsel for the defendant, Denise Hook, has filed
an affidavit with the clerk of this court under R.C. 2701.03 seeking to disqualify Judge Alan R. Mayberry from further proceedings in case No. 2009-CR-271, a criminal matter in the Court of Common Pleas of Wood County. Hanna states that on August 28, 2009, Judge Mayberry showed
him a letter that the judge had received from a witness for the state. According to Hanna, the witness attacked the defendant in the letter and asserted facts as to her guilt. Hanna believes that Judge Mayberry should be disqualified because he may have been influenced by the letter, particularly because the defendant waived a jury trial and the judge would now be the trier of fact. Judge Mayberry has responded in writing to the concerns raised in
the affidavit. The judge admits that on August 18, 2009, he received a letter from Darrin Hook, who stated that he was the defendant’s husband. The judge explains that he disclosed his receipt of the letter at the next pretrial and allowed Hanna and the prosecutor to read the letter. The judge states that he did not know that Mr. Hook would be a witness in the case until after he received the letter. *2 UPREME C OURT OF HIO Moreover, the judge notes that no issues have been addressed regarding Mr. Hook’s ability to testify against his wife. The judge also notes that defendant decided to waive a jury trial and try the case to the court after having notice of the letter. Finally, Judge Mayberry maintains that he has not been influenced by the letter and will not consider any information contained therein in presiding over defendant’s case. For the following reasons, I find no basis for ordering the
disqualification of Judge Mayberry. First, it is well settled that an affidavit of
disqualification must be filed as soon as possible after the affiant becomes aware
of circumstances that support disqualification, and the failure to do so may result
in waiver of the objection.
In re Disqualification of Pepple
(1989), 47 Ohio St.3d
606,
disqualification. Judges often receive letters from interested nonparties
attempting to persuade the judge to their viewpoint or to bring information to the
court’s attention. See
State ex rel. Beacon Journal Pub. Co. v. Whitmore
(1998),
January Term, 2009
substance of the communication.
In re Disqualification of Pontious
(2001), 94
Ohio St.3d 1235,
promptly disclosed his receipt of the letter and allowed counsel to examine its
contents. Thus, I see no bias or prejudice to any of the parties flowing from the
judge’s receipt of the ex parte letter. See
In re Disqualification of Stucki
, No. 09-
AP-083 (rejecting a similar allegation where judge received an unsolicited letter
and no evidence existed that judge had considered the letter). On the record
before me, no reasonable and objective observer would harbor serious doubts
about Judge Mayberry’s impartiality.
In re Disqualification of Lewis
, 117 Ohio
St.3d 1227,
be biased, and the appearance of bias or prejudice must be compelling to
overcome these presumptions.”
In re Disqualification of George
100 Ohio St.3d
1241,
denied. The case may proceed before Judge Mayberry.
______________________