[Cite as In re Disqualification of Mayberry, 127 Ohio St.3d 1238, 2009-Ohio-7198.]




                      IN RE DISQUALIFICATION OF MAYBERRY.
                             THE STATE OF OHIO v. HOOK.
                     [Cite as In re Disqualification of Mayberry,
                       127 Ohio St.3d 1238, 2009-Ohio-7198.]
Judges — Affidavit of disqualification — Disqualification denied.
                   (No. 09-AP-102 — Decided November 4, 2009.)
 ON AFFIDAVIT OF DISQUALIFICATION in Wood County Court of Common Pleas
                               Case No. 2009-CR-08-271.
                                  __________________
        MOYER, C.J.
        {¶ 1} 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.
        {¶ 2} 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.
        {¶ 3} 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.
                             SUPREME COURT OF OHIO




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.
       {¶ 4} 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, 546 N.E.2d 1298. Attorney Hanna has known about the letter since August
28, 2009. Yet Hanna waited nearly two months, until October 21, 2009, before
filing the affidavit of disqualification with this court. If Hanna believed that the
letter warranted the judge’s disqualification, he should have filed the affidavit in a
more timely fashion. Moreover, the fact that Hanna decided – after becoming
aware of the letter – to try defendant’s case to the bench undercuts his claim that
Judge Mayberry has been improperly influenced by the letter.              See In re
Disqualification of Glickman, 100 Ohio St.3d 1217, 2002-Ohio-7471, 798 N.E.2d
5.
       {¶ 5} Second, Judge Mayberry’s receipt of the letter does not compel his
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),
83 Ohio St.3d 61, 63, 697 N.E.2d 640. Because it is not reasonable to expect a
trial judge to control all correspondence that is sent to the judge by persons
interested in a pending case, I have previously advised judges to promptly notify
the parties upon receipt of any ex parte communication and inform them of the




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                                January Term, 2009




substance of the communication. In re Disqualification of Pontious (2001), 94
Ohio St.3d 1235, 763 N.E.2d 603. Notification affords the parties an opportunity
to respond to the ex parte communication and place any objections on the record.
See generally Rule 2.9(B) of the Code of Judicial Conduct.
       {¶ 6} Judge Mayberry followed this practice to the letter in this case. He
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, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8 (setting forth the proper test
for disqualifying a judge).
       {¶ 7} As I have said, “[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.
       {¶ 8} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Mayberry.
                              ______________________




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