[Cite as In re Disqualification of Saffold, 134 Ohio St.3d 1204, 2010-Ohio-6723.]




                        IN RE DISQUALIFICATION OF SAFFOLD.
                            THE STATE OF OHIO v. SOWELL.
         [Cite as In re Disqualification of Saffold, 134 Ohio St.3d 1204,
                                    2010-Ohio-6723.]
Judges—Affidavit of disqualification—Disqualification ordered.
                      (No. 10-AP-036—Decided April 22, 2010.)
   ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga County Court of Common
                               Pleas, Case No. CR-530885.
                                  __________________
        PFEIFER, ACTING C.J.
        {¶ 1} The defendant in the underlying case, Anthony E. Sowell, has been
charged with the aggravated murders of 11 women in an 85-count indictment.
Sowell faces the possible imposition of the death penalty, and the case has drawn
extensive media coverage.
        {¶ 2} The issue in this affidavit-of-disqualification proceeding is whether
the trial judge presiding over Sowell’s case, Judge Shirley Strickland Saffold,
should be disqualified from further proceedings based on an appearance of
impropriety.     During his lengthy tenure on the Cuyahoga County Court of
Common Pleas and the Eighth District Court of Appeals, the venerable Judge
John V. Corrigan frequently shared the following advice with his judicial
colleagues: When the case becomes about the judge rather than the facts of the
case and the law, it is time for the judge to step aside. For the reasons that follow,
I conclude that Judge Saffold should be removed from the underlying case to
avoid any appearance of impropriety.
        {¶ 3} John P. Parker and Rufus Sims, co-counsel for defendant, have
filed an affidavit with the clerk of this court under R.C. 2701.03 seeking the
                            SUPREME COURT OF OHIO




disqualification of Judge Saffold from acting on any further proceedings in
Sowell’s case, No. CR-530885. Affiants allege that Judge Saffold should be
disqualified to avoid the appearance of impropriety and to ensure the public’s
confidence in the integrity of the judicial system. They assert three grounds for
disqualifying Judge Saffold. First, affiants allege that Judge Saffold has engaged
in improper ex parte communications with Judge Timothy McGinty, a reporter for
the Cleveland Plain Dealer, and the reporter’s attorney. Second, they allege that
the judge’s personal and office e-mail accounts were the sources of a newspaper
article published in the Plain Dealer on March 26, 2010. According to affiants,
someone using the moniker “lawmiss” posted derogatory comments on the Plain
Dealer’s website about attorney Sims and defendant Sowell. Third, affiants allege
that the judge has a financial interest in the underlying case because the judge and
her daughter have sued the Plain Dealer over the disclosure of the judge’s e-mail
account as the alleged sources for the March 26 article.
       {¶ 4} Judge Saffold has promptly responded in writing to the concerns
raised in the affidavit of disqualification.   The judge has offered a detailed
account of her handling of the underlying case, and she expressly denies
harboring any bias or prejudice against any party or counsel. As to the specific
allegations against her, she denies engaging in any improper ex parte
communications with Judge McGinty or the Plain Dealer. She also denies that
her court computer was used to make any online comments as alleged by affiants.
Although Judge Saffold does not dispute that comments about attorney Sims and
the defendant were linked to the judge’s personal online account, she maintains
that she did not post those comments and that they do not reflect her views. The
judge states that her adult daughter, who shares the online account in question,
has admitted to posting the comments. The judge contends that no appearance of
impropriety exists in this case because she did not make any of the online
comments. In regard to the allegation that she has a financial interest in the




                                         2
                                January Term, 2010




defendant’s case based on her civil suit against the Plain Dealer, Judge Saffold
avers that her civil case has nothing to do with the defendant, his counsel, or any
of the issues being litigated in the underlying capital case. After careful review of
the affidavit and the judge’s response, I conclude that the affiants have met their
burden of establishing that an appearance of bias or prejudice exists in this case.
       {¶ 5} Of primary concern here is the affiants’ allegation that Judge
Saffold’s personal e-mail or online account was used to post public comments
critical of attorney Sims and defendant Sowell. Although Judge Saffold denies
that she was the source of these online comments, she has admitted that the
comments originated from the online account shared by her and members of her
family and that the comments were posted by her daughter. I find that these
unfortunate postings have created a situation that “poses an impediment to the
judge’s ability to resolve any remaining legal and factual issues in a way that will
appear to the parties and the public to be objective and fair.”                In re
Disqualification of Squire, 110 Ohio St.3d 1202, 2005-Ohio-7157, 850 N.E.2d
709, ¶ 10. Although this record does not cause me to question Judge Saffold’s
ability to be fair and impartial in the underlying matter, the nature of these
comments and their widespread dissemination might well 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 based on an
appearance of impropriety).
       {¶ 6} Judge Saffold has steadfastly denied making any of the comments
at issue, and there is no evidence before me that suggests otherwise.
Nevertheless, even in cases when no evidence of actual bias or prejudice is
apparent, disqualification is appropriate when the public’s confidence in the
integrity of the judicial system is at stake. See In re Disqualification of Corrigan,
110 Ohio St.3d 1217, 2005-Ohio-7153, 850 N.E.2d 720; see also In re



                                          3
                             SUPREME COURT OF OHIO




Disqualification of Murphy, 110 Ohio St.3d 1206, 2005-Ohio-7148, 850 N.E.2d
712, ¶ 6 (“Preservation of public confidence in the integrity of the judicial system
is vitally important, and judicial decisions must be rendered in a manner that does
not create a perception of partiality.    An appearance of bias can be just as
damaging to public confidence as actual bias”).
       {¶ 7} It is also “of vital importance that the litigant should believe that he
will have a fair trial.” State ex rel. Turner v. Marshall, 123 Ohio St. 586, 587,
176 N.E. 454 (1931). In this case, it seems fair to say that defense counsel and
their client no longer hold that belief. An objective observer who has read the
online postings might reasonably question why comments about a defendant and
defense counsel appearing before the judge were posted on the judge’s personal
online account, even if the judge did not make the comments herself.
       {¶ 8} As to the remaining allegations in the affidavit of disqualification,
based on the record before me, I find that affiants have not met their burden of
proving the existence of bias, prejudice, or other disqualifying interest as to these
other claims. Specifically, affiants have not offered sufficient probative evidence
that Judge Saffold engaged in any improper ex parte communications concerning
the underlying capital case. In regard to affiants’ claim that Judge McGinty’s
personal note to Judge Saffold constitutes an improper ex parte communication,
Judge Saffold has offered to produce the note for an in camera inspection. I see
no reason for such an inspection here. Moreover, I agree that personal notes
between judicial colleagues should not be subject to scrutiny. Finally, I see
nothing that indicates that Judge Saffold has any financial stake in the issues
pending before her stemming from her civil suit against the Plain Dealer.
                                    Conclusion
       {¶ 9} The record before me does not support a finding of actual bias or
prejudice on Judge Saffold’s part. Nevertheless, her removal is necessary “to
avoid even an appearance of bias, prejudice, or impropriety, and to ensure the




                                         4
                                January Term, 2010




parties, their counsel, and the public the unquestioned neutrality of an impartial
judge.” In re Disqualification of Floyd, 101 Ohio St.3d 1215, 2003-Ohio-7354,
803 N.E.2d 816, ¶ 10. Therefore, to allay any concerns regarding the fairness and
integrity of the proceedings, it is ordered that Judge Saffold participate no further
in the underlying case. The case is returned to the Cuyahoga County Common
Pleas Court for reassignment to another judge of that court.
                            ______________________




                                         5
