[Cite as In re Disqualification of Rastatter, 127 Ohio St.3d 1215, 2009-Ohio-7205.]




                      IN RE DISQUALIFICATION OF RASTATTER.
                        THE STATE OF OHIO v. CUNNINGHAM.
                      [Cite as In re Disqualification of Rastatter,
                       127 Ohio St.3d 1215, 2009-Ohio-7205.]
Judges — Affidavit of disqualification — Disqualification ordered.
                     (No. 09-AP-028 — Decided April 16, 2009.)
  ON AFFIDAVIT OF DISQUALIFICATION in Clark County Court of Common Pleas
                                  Case No. 08-CR-0879.
                                  __________________
        MOYER, C.J.
        {¶ 1} William N. Merrell and David E. Smith, co-counsel for defendant,
Charles Cunningham, have filed an affidavit with the clerk of this court under
R.C. 2701.03 seeking the disqualification of Judge Douglas M. Rastatter from
acting on any further proceedings in case No. 08-CR-0879, a death-penalty case
in the Court of Common Pleas of Clark County.
        {¶ 2} Affiants allege that Judge Rastatter has a prior personal association
with the defendant that requires his disqualification. Because this is a capital case
requiring the trial court to independently weigh the evidence, affiants contend that
the judge’s friendship with defendant creates a specter of bias or partiality that
could operate to defendant’s prejudice. Affiants further claim that the judge has
gained personal knowledge pertaining to disputed facts.
        {¶ 3} Judge Rastatter has responded in writing to the concerns raised in
the affidavit.     The judge has admitted to a friendship with the defendant.
Nevertheless, the judge states that he is willing and able to fairly and impartially
preside over this case. According to the judge, when he was assigned to this case,
his relationship with the defendant “ceased to exist.” Judge Rastatter avers that he
                              SUPREME COURT OF OHIO




is fully prepared to abide by his oath and make decisions in this case based solely
on the evidence, arguments of counsel, and the law.
        {¶ 4} On April 13, 2009, Judge Rastatter submitted a supplemental
response in which he again expresses confidence in his ability to preside fairly
and impartially over the underlying case. The judge also specifically denies
having personal knowledge of any disputed facts.
        {¶ 5} After careful review of the affidavit and the judge’s responses, I
conclude that affiants have met their burden of proving that an appearance of bias
or prejudice exists in this case.
        {¶ 6} “Generally, the more intimate the relationship between a judge and
a person who is involved in a pending proceeding, the more acute is the concern
that the judge may be tempted to depart from the expected judicial detachment or
to reasonably appear to have done so.” In re Disqualification of Shuff, 117 Ohio
St.3d 1230, 2004-Ohio-7355, 884 N.E.2d 1084, ¶ 6. Judge Rastatter states that he
has known the defendant for four or five years and that he considers the defendant
a friend. During an 18-month period from 2005 to 2007, the judge and defendant
lifted weights together at the Springfield YMCA “probably on a daily basis.”
During this time, the judge and the defendant had many conversations and
became well acquainted.
        {¶ 7} While the evidence before me may not lead to a finding of actual
bias or prejudice, I find that Judge Rastatter’s relationship with the defendant
could cause a reasonable and objective observer to harbor serious doubts about
the judge’s impartiality. 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). I reached a similar conclusion in In re Disqualification of
Nadel (1989), 47 Ohio St.3d 604, 546 N.E.2d 926. In that case, the defendant was
charged with aggravated robbery, felonious assault, and kidnapping, and the
victims were the wife and daughter of a common pleas court judge. I ordered the




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                                January Term, 2009




disqualification of all judges in the common pleas court because the relationships
within the judicial system of that county could suggest to a reasonable person the
appearance of prejudice or impropriety if the case were decided by a judge from
that court. Id. at 605.
        {¶ 8} “The law requires not only an impartial judge but also one who
appears to the parties and the public to be impartial.” In re Disqualification of
Corrigan, 110 Ohio St.3d 1217, 2005-Ohio-7153, 850 N.E.2d 720, ¶ 11.
Therefore, to allay any concerns on that issue, it is ordered that Judge Rastatter
participate no further in these proceedings. The Clark County Common Pleas
Court shall assign another judge of that court to the case.
                            ______________________




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