Wednesday, December 28, 2022

Hold The Humor But OK To Preside At Retrial

A prosecutor's motion to disqualify the judge from presiding in the retrial of a capital murder case has been denied by Ohio Supreme Court Chief Justice O'Connor

“Tension between a judge and a county prosecutor is bound to occur in our adversary system. Both sides seek to attain justice, but they do not always agree on what that means. However, principles of professionalism require judges and prosecutors to give proper respect to each other and to treat each other with the dignity and courtesy that each office deserves.”

Alleged bias

In October 2022, Judge Howard presided over a 12-day jury trial. After two days of deliberations, Judge Howard found that the jury was deadlocked and declared a mistrial. In his affidavit of disqualification, Mr. Gmoser avers that for three reasons, Judge Howard is biased against the state of Ohio and should not preside over the retrial. First, Mr. Gmoser alleges that Judge Howard “steer[ed] the jury into a deadlock” by, among other things, giving a Howard charge despite no indication of a deadlock, denying the jury’s request to review the transcript of a witness’s testimony, and failing to remove two jurors for misconduct. Second, Mr. Gmoser alleges that throughout the first trial, Judge Howard repeatedly held off-the-record conferences in his chambers about material issues. Third, Mr. Gmoser avers that Judge Howard displayed an offensive sign in his office, made crude and sexual jokes to counsel, and failed to conduct the first trial with the decorum required for a capital case.

Judge Howard submitted a response to the affidavit and denies any bias against Mr. Gmoser or the prosecution. The judge disputes that he “steer[ed]” the jury into a deadlock and explains why he declared a mistrial. Judge Howard further notes that the state never objected to holding unrecorded conferences in his chambers and never complained about the alleged lack of decorum in the courtroom. With respect to the other allegations, Judge Howard says that he removed the sign from his office and that he never intended to offend anyone with his comments or stories—although the judge denies making any “sexual jokes.” The judge says that in the future, he will refrain from any similar attempts at humor.

No joking matter

Although some types of humor may have a place in the courtroom, a judge’s use of undignified language degrades the decorum of the court and diminishes public confidence in the judiciary. Judge Howard has recognized that his attempts at humor, including his comments about other judges, were unnecessary or ill-advised. The issue in this disqualification matter, however, is not whether Judge Howard should be disciplined for making offensive comments or displaying inappropriate signage in the judge’s chambers. The issue is whether Judge Howard should be disqualified from the underlying case due to bias against Mr. Gmoser or his office.


Here, Judge Howard has apologized for his “comments or stories in chambers with counsel” and affirms that he will refrain from such comments in the future. Mr. Gmoser has not established that those comments—or any of the other behavior alleged in the affidavit—require the judge’s disqualification from presiding over the retrial.

WLWT 5 reported on the controversy (Mike Frisch)

Judicial Ethics and the Courts | Permalink


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