[Cite as In re Disqualification of Synenberg, 127 Ohio St.3d 1220, 2009-Ohio-7206.]




                      IN RE DISQUALIFICATION OF SYNENBERG.
                        THE STATE OF OHIO v. D’AMBROSIO.
                    [Cite as In re Disqualification of Synenberg,
                       127 Ohio St.3d 1220, 2009-Ohio-7206.]
Judges — Affidavit of disqualification — Disqualification denied.
                     (No. 09-AP-033 — Decided June 10, 2009.)
   ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga County Court of Common
                             Pleas Case No. CR-232189-B.
                                  __________________
        MOYER, C.J.
        {¶ 1} William D. Mason, Cuyahoga County Prosecuting Attorney, and
Assistant Prosecutors Lisa Reitz Williamson and Matthew E. Meyer have filed an
affidavit with the clerk of this court under R.C. 2701.03 seeking the
disqualification of Judge Joan Synenberg from acting on any further proceedings
in case No. CR-232189-B, the death-penalty case of defendant Joe D’Ambrosio in
the Court of Common Pleas of Cuyahoga County.
        {¶ 2} Affiants allege that Judge Synenberg has acted in a manner causing
the state to reasonably question her impartiality and fairness.              According to
affiants, the judge (1) failed to disclose her role several years ago as a defense
attorney for Thomas Keenan, D’Ambrosio’s codefendant, (2) treated prosecutors
with hostility and thereby deprived the state of a meaningful opportunity to
participate in two hearings, and (3) inappropriately provided a journalist with a
journal entry and other information that caused an inaccurate and inflammatory
newspaper story, prejudicing the state’s ability to obtain a fair trial.
        {¶ 3} Judge Synenberg has responded in writing to the concerns raised in
the affidavit. The judge expressly denies ever representing Keenan. She further
maintains that the record in the underlying case reflects that she has been fair,
impartial, and respectful to all participants. In regard to the third allegation, Judge
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Synenberg concedes that she provided an order to a newspaper columnist, but she
denies any impropriety because that order had been rendered in open court and on
the record one day earlier.
       {¶ 4} Robert L. Tobik, counsel for D’Ambrosio, has also filed an
affidavit in response.        Tobik maintains that Judge Synenberg has been
consistently polite and fair to all counsel throughout these proceedings.
Moreover, he disputes the state’s assertion that the judge has treated prosecutors
with hostility or disrespect. Rather, Tobik states that Judge Synenberg has shown
great restraint despite the fact that prosecutors have acted at times in a
confrontational and abrupt manner.
                                    Background
       {¶ 5} In 1988, the state charged D’Ambrosio, Keenan, and Edward
Espinoza with the aggravated murder of Anthony Klann.               Keenan and
D’Ambrosio were tried separately.        Keenan was tried twice, convicted, and
sentenced to death. See State v. Keenan (1998), 81 Ohio St.3d 133, 689 N.E.2d
929. D’Ambrosio was tried, convicted, and also sentenced to death. See State v.
D’Ambrosio (1995), 73 Ohio St.3d 141, 652 N.E.2d 710.
       {¶ 6} On March 24, 2006, the United States District Court, Northern
District of Ohio, Eastern Division, found that the state had failed to disclose
exculpatory evidence prior to trial and granted D’Ambrosio a conditional writ of
habeas corpus. The Sixth Circuit affirmed. D’Ambrosio v. Bagley (C.A.6, 2008),
527 F.3d 489. Accordingly, on September 11, 2008, the district court issued an
order instructing the state to set aside D’Ambrosio’s aggravated-murder
conviction and death sentence or retry him within 180 days.
       {¶ 7} In September 2008, the state sought a retrial, which is the subject
of the instant affidavit of disqualification. D’Ambrosio’s retrial was assigned to
Judge Synenberg, who set the matter for trial on March 2, 2009, eight days before
the expiration of the federal court’s conditional writ.




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                                January Term, 2009




       {¶ 8} On February 25, 2009, Judge Synenberg sanctioned the state for
failing to comply with Crim.R. 16.        Specifically, on February 20, the state
discovered the existence of four items of physical evidence that had been
recovered during the murder investigation but had not been provided to
D’Ambrosio. The judge accepted the state’s proposal that she impose the least
restrictive sanction available and continue the trial to allow for forensic testing of
the newly discovered evidence.          Judge Synenberg thereafter rescheduled
D’Ambrosio’s trial for May 4, 2009.
       {¶ 9} Because the judge’s order extended the trial beyond the district
court’s 180-day deadline for retrying D’Ambrosio, the state returned to federal
district court on March 4, 2009, to request an extension of time within which it
could retry its case. On March 26, 2009, the state filed the instant affidavit of
disqualification against Judge Synenberg. The state filed a copy of the affidavit
of disqualification with the district court as a “supplemental authority.” On April
24, 2009, the district court denied the state’s motion to extend the deadline for
retrying D’Ambrosio.       Instead, the district court ordered that D’Ambrosio’s
conviction and death sentence be expunged as a remedy for the state’s failure to
engage in a good-faith effort to comply with the 180-day mandate. The district
court, however, did not bar the state from retrying D’Ambrosio on the charges in
the original indictment.
             Judge Synenberg’s Alleged Representation of Keenan
       {¶ 10} Affiants first allege that Judge Synenberg previously acted as
defense counsel to Thomas Keenan, D’Ambrosio’s codefendant in the murder of
Klann. According to affiants, in 1993, then attorney Synenberg served as co-
counsel to Keenan during his second trial. Because Keenan and D’Ambrosio
were both accused of murdering Klann, affiants argue that Judge Synenberg’s
representation of Keenan has given her personal knowledge of disputed facts in




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D’Ambrosio’s case. Thus, affiants seek the judge’s disqualification to avoid any
conflict of interest.
        {¶ 11} Affiants discovered this information on February 25, 2009, when a
member of the public (who requested anonymity) alerted the lead prosecutor that
Judge Synenberg was listed as an attorney of record for Keenan on the on-line
docket of the Cuyahoga County clerk of courts. Prosecutors broached this subject
with Judge Synenberg during a hearing on March 2, 2009, and asked the judge to
formally disclose what role she had in Keenan’s case and to recuse herself from
D’Ambrosio’s case.       According to affiants, Judge Synenberg refused to
acknowledge or otherwise disclose her prior representation of Keenan. Thus,
affiants contend that Judge Synenberg’s refusal to disclose her involvement in
Keenan’s trial – either before it came to the prosecutor’s attention or after –
constitutes a violation of the Code of Judicial Conduct.
        {¶ 12} Affiants rely foremost on the clerk of courts’ website, which
contains on-line case and docketing information. Affiants cite specifically the
attorney-information page in Keenan’s case listing “Joan C. Synenberg” as an
attorney of record in that case.      See case No. CR-88-232189-A, 2007 WL
5581004. Affiants aver that the clerk’s website “is an official record relied on by
the Court in the ordinary course of its business.”
        {¶ 13} Affiants have also submitted affidavits of Frank C. Gasper and
Mark J. Mahoney, the assistant prosecutors in Keenan’s second trial. According
to Gasper’s affidavit, in October 1993 Joan Synenberg – then known as Joan
Lehmann – appeared as co-counsel for Keenan in place of attorney Rocco Russo.
Gasper recalls that he attended pretrials with attorney Lehmann in the Keenan
case and also provided her with discovery materials. As for Mahoney, he states
that during Keenan’s second trial, defense counsel James Kersey told him that “an
attractive new female lawyer would be assisting [Kersey] with the trial, and




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[Kersey] mentioned the woman as being named ‘Joanie.’ ” Mahoney also recalls
seeing Judge Synenberg on at least one occasion present in the courtroom of
Judge Calabrese during pretrial proceedings in Keenan’s case, “sitting in front of
the bar and directly behind defense counsel’s trial table.” Mahoney, who is the
lead prosecutor in D’Ambrosio’s case, explains that he did not recall until
recently Judge Synenberg’s involvement in Keenan’s second trial due to the
length of time that had elapsed since that time.
       {¶ 14} Despite the judge’s name appearing in Keenan’s case on the
clerk’s website and the affidavits of Gasper and Mahoney, I cannot conclude on
the record before me that Judge Synenberg acted as defense counsel in Keenan’s
retrial. First, the attorney-information page listing Judge Synenberg as counsel in
Keenan’s case contradicts affiants’ assertion that the clerk’s website is an official
court record. The attorney page includes a disclaimer stating that “[o]nly the
official court record available from the Cuyahoga County Clerk of Courts,
available in person, should be relied upon as accurate and current.” Moreover,
users of the clerk’s website also “are cautioned to verify independently any
information or data obtained from this Website with the official court record
information maintained by the office of the Cuyahoga County Clerk of Courts.”
       {¶ 15} Second, Judge Synenberg’s name does not appear in any official
court record. That is, there is no existing docket entry, hearing transcript, trial
transcript, or any other court document that lists the judge as having represented
Keenan. Indeed, affiants concede that they have thoroughly read through the
transcript from Keenan’s retrial and confirmed that Judge Synenberg is not named
or mentioned as an attorney during any on-the-record hearing.
       {¶ 16} Third, according to Prosecutor Mason, neither Judge Anthony
Calabrese, who presided over Keenan’s retrial, nor his bailiff could recall whether
Judge Synenberg appeared as counsel in Keenan’s case.             Likewise, Sandra
McPherson, Keenan’s mitigation specialist, could not recall whether Judge



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Synenberg appeared.              Additionally, James Kersey, Keenan’s co-counsel,
submitted an affidavit stating that he has no recollection of Judge Synenberg
appearing in Keenan’s case as counsel or as a stand-in for attorney Russo.1
Moreover, Kersey specifically denies making the statements attributed to him in
Mahoney’s affidavit.
        {¶ 17} Fourth, Judge Synenberg has expressly denied that she represented
Keenan or appeared at any proceeding during Keenan’s retrial or otherwise. She
further notes that she was not qualified for death-penalty cases at the time of
Keenan’s retrial in 1993 and 1994. Moreover, she maintains that she never shared
discovery documents with Gasper or any other assistant prosecutor in Keenan’s
case.
        {¶ 18} To prevail on an affidavit of disqualification, an affiant must
demonstrate clearly the existence of bias, prejudice, or other disqualifying interest
that requires a judge’s removal. See In re Disqualification of Crow (2000), 91
Ohio St.3d 1209, 741 N.E.2d 137. Affiants, however, have not offered the type of
compelling evidence necessary to order disqualification of a judge. Based on the
evidence presented by affiants, no reasonable and objective observer would
harbor serious doubts about the judge’s ability to preside over the case in a fair
and impartial manner. See In re Disqualification of Lewis, 117 Ohio St.3d 1227,
2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8 (setting forth the proper test for
disqualifying a judge).
                   Judge Synenberg’s Treatment of Prosecutors
        {¶ 19} Affiants allege that Judge Synenberg’s hostile treatment of the
prosecutors handling this case demonstrates her inability to serve as a fair and
impartial jurist. Affiants first claim that the judge denied their request for time to
prepare a written response to defense counsel’s motion to dismiss or for


1. Attorney Russo is deceased.




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                                January Term, 2009




alternative sanctions stemming from the state’s failure to provide discovery.
Affiants complain because the judge ordered the hearing on the motion to go
forward on February 24, 2009, despite knowing that Mahoney was already
engaged in another capital murder trial before a different judge and had expected
to appear only for a bond hearing rather than a hearing regarding the alleged
discovery violations.
       {¶ 20} An affidavit of disqualification addresses the narrow issue of
possible bias or prejudice of a judge; it is not a vehicle to contest matters of
substantive or procedural law. In re Disqualification of Solovan, 100 Ohio St.3d
1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4. Judge Synenberg’s alleged failure to
grant the prosecutors time to respond to a motion is a matter within the judge’s
sound discretion and is not, by itself, evidence of bias or prejudice. See In re
Disqualification of Eyster, 105 Ohio St.3d 1246, 2004-Ohio-7350, 826 N.E.2d
304, ¶ 4. Indeed, trial judges are entitled to exercise their discretion in ruling on
many matters, and it is not my role in deciding an affidavit of disqualification to
second-guess each ruling. In re Disqualification of Russo, 110 Ohio St.3d 1208,
2005-Ohio-7146, 850 N.E.2d 713, ¶ 6.
       {¶ 21} Moreover, vague or unsubstantiated allegations are insufficient to
establish bias or prejudice. In re Disqualification of Walker (1988), 36 Ohio St.3d
606, 522 N.E.2d 460. Contrary to affiants’ assertions, Judge Synenberg informed
all counsel on February 23 that she would hold a hearing the next day on the
recently discovered evidence in the state’s possession. Thus, affiants’ claim that
they had expected to appear only for a bond hearing is not supported by the
record. There is also no evidence that the judge denied any request for time to
respond to defendant’s motion to dismiss. No written request for time was filed,
and no objection was made to the judge’s decision to go forward with the
February 24 hearing.     In fact, Mahoney urged Judge Synenberg to proceed
immediately with the hearing on the motion.



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       {¶ 22} Affiants next maintain that the judge berated and screamed at
prosecutors during an off-the-record meeting on March 2, 2009, after they had
asked the judge to recuse herself.            According to Assistant Prosecutors
Zimmerman and Meyer, Judge Synenberg accused them of “sandbagging” her
and grandstanding for the media.
       {¶ 23} Defense counsel Tobik and J. Michael Goldberg, the judge’s staff
attorney, dispute affiants’ version of events, and they indicate that the judge was
respectful and fair at all times. As for Judge Synenberg, she admits to being
surprised and upset that the state had chosen to request her recusal in open court
without having investigated the matter or first discussing it with her in chambers.
She denies, however, that she treated the state’s attorneys disrespectfully.
       {¶ 24} If a judge’s words or actions convey the impression that the judge
has developed a “hostile feeling or spirit of ill will” or reached a “fixed
anticipatory judgment” that will prevent the judge from presiding over the case
with “an open state of mind * * * governed by the law and the facts,” State ex rel.
Pratt v. Weygandt (1956), 164 Ohio St. 463, 469, 58 O.O. 315, 132 N.E.2d 191,
then the judge should not remain on the case. Judges are, however, entitled to
express dissatisfaction about attorneys’ conduct and tactics inside and outside the
courtroom, as long as the judge’s dissatisfaction is “expressed in a way that
promotes public confidence in the integrity, dignity, and impartiality of the
judiciary.” In re Disqualification of Corrigan, 105 Ohio St.3d 1243, 2004-Ohio-
7354, 826 N.E.2d 302, ¶ 10. As Jud.Cond.R. 2.8(B) directs, judges should be
“patient, dignified, and courteous” to parties and their lawyers, even in the most
difficult of circumstances.
       {¶ 25} Judge Synenberg was clearly taken aback by the manner in which
the state sought her recusal. But those who were present during the March 2
meeting between the judge and counsel remember the conversation quite
differently. On the record before me, I am unable to establish whether Judge




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Synenberg actually made the alleged comments, let alone determine whether the
comments reflect bias or prejudice. Thus, in the wake of the conflicting stories
presented here, I cannot conclude that the judge should be removed from
presiding over further proceedings. See, e.g., In re Disqualification of Corrigan,
105 Ohio St.3d 1243, 2004-Ohio-7354, 826 N.E.2d 302, ¶ 8.
       {¶ 26} Affiants’ third claim here is that during the March 2 hearing, the
judge allowed defense counsel to make extended remarks about the state’s alleged
failure to disclose evidence and then consistently interrupted, cut off, and argued
with prosecutors when they attempted to explain why defense counsel’s
arguments were factually and legally incorrect.
       {¶ 27} I have rejected in other cases the type of concerns voiced by
affiants in this case. In re Disqualification of Solovan, 100 Ohio St.3d 1214,
2003-Ohio-5484, 798 N.E.2d 3, ¶ 4 (an affidavit of disqualification “is not a
vehicle to contest matters of substantive or procedural law”). Moreover, after
review of the March 2 hearing transcript, I am convinced that the judge conducted
herself in a manner consistent with Jud.Cond.R. 2.8(B), which requires judges to
be “patient, dignified, and courteous” when speaking to litigants, lawyers, and
others in an official capacity. The hearing was primarily devoted to resolving
discovery issues arising out of the state’s belated disclosure of additional
evidence.   Although the judge did prevent the state from making certain
arguments, this was done only as to matters that the court had previously
addressed. Certainly, judges have wide discretion in how they conduct courtroom
proceedings, and nothing about Judge Synenberg’s conduct raises serious
questions for me about her ability to set aside any frustration with the state’s
attorneys and preside fairly over further proceedings.
                         Cleveland Plain Dealer Article
       {¶ 28} Finally, affiants allege that Judge Synenberg was a source for an
extremely inaccurate and scathing February 27, 2009 newspaper column that



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accused prosecutors of hiding evidence and called for ending the “charade called
justice.” According to affiants, the judge inappropriately provided a journal entry
to a columnist for the Cleveland Plain Dealer before the entry was filed with the
clerk of courts. In addition to the entry, affiants claim that Judge Synenberg made
direct comments to the columnist about the substance of the case in violation of
the Code of Judicial Conduct.
       {¶ 29} Judge Synenberg admits that she provided a newspaper columnist
with a journal entry before the entry was filed with the clerk. The subject of this
entry was the judge’s decision to continue the trial as a sanction for the state’s
discovery violations. The judge’s decision to provide the media with a copy of
her entry before counsel had received the entry was ill-advised. Nevertheless, I
do not find that the judge’s action requires her disqualification. Judge Synenberg
informed both parties in open court on February 25, 2009, of her decision to
continue the trial. Moreover, contrary to affiants’ claims, there is no compelling
evidence that the judge made any direct comment about the substance of the case
to the columnist. Judge Synenberg avers that she referred the columnist to the
transcripts, journal entries, and orders, but did not otherwise discuss the case, and
I see nothing before me that would lead me to question the judge on this matter.
                                    Conclusion
       {¶ 30} As I have stated, “[a] judge is presumed to follow the law and not
to 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, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. Those presumptions have not been
overcome in this case.
       {¶ 31} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Synenberg.
                            ______________________




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