[Cite as In re Disqualification of Callahan, ___ Ohio St.3d ___, 2014-Ohio-3175.]




                      IN RE DISQUALIFICATION OF CALLAHAN.
                                   STATE v. BEASLEY.
         [Cite as In re Disqualification of Callahan, ___ Ohio St.3d ___,
                                    2014-Ohio-3175.]
Judges—Affidavit of disqualification—R.C. 2701.03—Disqualification denied.
                      (No. 14-AP-032—Decided May 20, 2014.)
ON AFFIDAVIT OF DISQUALIFICATION in Summit County Court of Common Pleas
                            Case No. CR-2012-01-0169(A).
                                ____________________
        O’CONNOR, C.J.
        {¶ 1} Daniel P. Jones, counsel for the defendant in the underlying case,
has filed an affidavit with the clerk of this court under R.C. 2701.03 seeking to
disqualify Judge Lynne S. Callahan from presiding over any further proceedings
in case No. CR-2012-01-0169(A), a capital case pending on a petition for
postconviction relief in the Court of Common Pleas of Summit County.
        {¶ 2} Jones claims that Judge Callahan should be disqualified from
hearing the petition because the judge presided over Beasley’s jury trial and the
earlier trial of a codefendant, Brogan Rafferty.             According to Jones, Judge
Callahan was “exposed to an overwhelming amount of prejudicial evidence” in
those two prior proceedings, and a reasonable observer would conclude that Judge
Callahan possesses a fixed anticipatory judgment against Beasley. Jones asserts
that at the very least, an appearance of bias exists warranting Judge Callahan’s
removal from the postconviction proceeding.
        {¶ 3} Judge Callahan has responded in writing to the affidavit, averring
that she has no bias against Beasley and affirming that she will preside over any
future proceedings in a fair and impartial manner.
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        {¶ 4} For the reasons explained below, no basis has been established to
order the disqualification of Judge Callahan.
        {¶ 5} “It is well settled that a judge who presided at trial will not be
disqualified from hearing a petition for postconviction relief in the absence of
evidence of bias, prejudice, or a disqualifying interest.” In re Disqualification of
Nastoff, 134 Ohio St.3d 1232, 2012-Ohio-6339, 983 N.E.2d 354, ¶ 9. See also
Flamm, Judicial Disqualification, Section 31.4, 949 (2d Ed.2007) (“it has
generally been considered that, in the absence of a statute that mandates
otherwise, a convicted defendant has no absolute right to a substitution of judge in
post-conviction proceedings”). Here, Jones has not set forth any compelling
evidence indicating that Judge Callahan has a bias or prejudice against Beasley or
that an appearance of bias exists.
        {¶ 6} Jones first claims that Judge Callahan was exposed to “prejudicial
evidence” at codefendant Rafferty’s trial. But Jones fails to identify this alleged
evidence. Instead, Jones points to comments made by counsel in their opening
and closing statements.     Specifically, Rafferty’s defense counsel referred to
Beasley as an “absolute monster,” among similar comments, and the prosecutor
referred to Beasley as a “liar,” “thief,” and “murderer.” A judge, however, “is
presumed to be capable of separating what may properly be considered from what
may not be considered,” In re Disqualification of Basinger, 135 Ohio St.3d 1293,
2013-Ohio-1613, 987 N.E.2d 687, ¶ 5, and nothing in the record here suggests
that Judge Callahan was unduly influenced by counsel’s comments during
Rafferty’s trial.
        {¶ 7} Jones next argues that Judge Callahan characterized Beasley as
“evil” during Rafferty’s sentencing, which he claims shows that the judge had
presumed Beasley’s guilt before his trial commenced.          But Judge Callahan
clarifies that at Rafferty’s sentencing, she stated that Rafferty had “embraced the
evil.” According to Judge Callahan, she was referring to the multiple murders




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and to the course of conduct that took place between the murders—not to Beasley
or any other human. Judge Callahan further states that she based her comment on
evidence introduced at Rafferty’s trial. “ ‘What a judge learns in his [or her]
judicial capacity—whether by way of guilty pleas of codefendants or alleged
coconspirators, or by way of pretrial proceedings, or both—is a proper basis for
judicial observations, and the use of such information is not the kind of matter
that results in disqualification.’ ” State v. D’Ambrosio, 67 Ohio St.3d 185, 188,
616 N.E.2d 909 (1993), quoting United States v. Bernstein, 533 F.2d 775, 785 (2d
Cir.1976); see also id., quoting State v. Smith, 242 N.W.2d 320, 324 (Iowa 1976)
(“Since ‘evidence presented in the trial of a prior cause * * * do[es] not stem from
an extrajudicial source,’ it creates no personal bias requiring recusal”). Given
Judge Callahan’s response to the affidavit, Jones has failed to establish that the
judge’s comments during Rafferty’s sentencing show that she has a personal bias
against Beasley or a fixed anticipatory judgment against him.
       {¶ 8} Finally, Jones claims that when Judge Callahan presided over
Beasley’s trial, she could not “divorce notions of Beasley she had developed
while presiding over the Rafferty trial” and that she “admitted” to confusing
evidence from the two trials when ruling on Beasley’s Crim.R. 29 motion. Judge
Callahan disputes that she was confused about any of the evidence. According to
the transcript, when analyzing one of Beasley’s Crim.R. 29 motions, Judge
Callahan stated the following: “Count 25 is the grand theft * * *. The Court
needs to keep it separate because I clearly remember [evidence] * * * that was in
the last trial. I don’t believe there is testimony of that in this trial. The Court is
going to grant your rule 29 with regard to count 25.” Thus, the judge granted
Beasley’s motion to dismiss a count against him because the state had not
presented evidence on that count during Beasley’s trial. It is unclear how the
judge’s ruling in Beasley’s favor shows bias against him. And contrary to Jones’s




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allegation, the judge’s comments do not prove that she was confused about the
evidence.
       {¶ 9} “The statutory right to seek disqualification of a judge is an
extraordinary remedy. * * * 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.
       {¶ 10} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Callahan.
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