[Cite as In re Disqualification of Huffman, 135 Ohio St.3d 1296, 2013-Ohio-1615.]




                       IN RE DISQUALIFICATION OF HUFFMAN.
                             THE STATE OF OHIO v. LEET.
        [Cite as In re Disqualification of Huffman, 135 Ohio St.3d 1296,
                                    2013-Ohio-1615.]
Judges—Affidavit of disqualification—R.C. 2701.03—Judge’s comments at
        affiant’s sentencing hearing did not demonstrate the appearance of bias or
        prejudice—No reasonable and well-informed observer would harbor
        serious doubts about judge’s impartiality or question judge’s ability to
        preside fairly over the new trial—Affidavit denied.
                      (No. 13-AP-024—Decided April 2, 2013.)
            ON AFFIDAVIT OF DISQUALIFICATION in Montgomery County
                 Court of Common Pleas Case No. 2010-CR-00635.
                                 __________________
        O’CONNOR, C.J.
        {¶ 1} Gregory Leet, the defendant in the underlying proceeding, has filed
an affidavit with the clerk of this court under R.C. 2701.03 seeking to disqualify
Judge Mary Katherine Huffman from presiding over any further proceedings in
case No. 2010-CR-00635, now pending for a new trial in the Court of Common
Pleas of Montgomery County.
        {¶ 2} Leet alleges that during his first trial, Judge Huffman exhibited
bias against him in “the manner in which she treated the State’s witnesses as
opposed to the way she treated [Leet’s] witnesses.” Leet also asserts that Judge
Huffman’s comments at his initial sentencing hearing show her belief that he is
“racist” and “clearly guilty of the charges.” Based on these comments, Leet does
not believe that Judge Huffman can set aside her feelings against him and preside
fairly and impartially over his new trial.
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       {¶ 3} Judge Huffman has responded in writing to the allegations in
Leet’s affidavit and has submitted a video of the initial sentencing hearing. Judge
Huffman disclaims any bias against Leet and further explains that her comments
at the initial sentencing hearing were made after the jury found Leet guilty and
while she was considering the seriousness of his conduct and the likelihood of
recidivism, as required by R.C. 2929.12.
       {¶ 4} For the following reasons, no basis has been established to order
the disqualification of Judge Huffman.
       {¶ 5} First, Leet has failed to substantiate his claim that Judge Huffman
treated his witnesses differently from the way she treated the state’s witnesses. In
affidavit-of-disqualification proceedings, the burden falls on the affiant to submit
sufficient evidence and argument demonstrating that disqualification is warranted.
See R.C. 2701.03(B)(1). Here, Leet has not identified these alleged witnesses or
explained how Judge Huffman treated them differently. Vague or unsubstantiated
allegations—such as those here—are insufficient to establish bias or prejudice. In
re Disqualification of Walker, 36 Ohio St.3d 606, 522 N.E.2d 460 (1988). See
also In re Disqualification of Mitrovich, 101 Ohio St.3d 1214, 2003-Ohio-7358,
803 N.E.2d 816, ¶ 4 (“An affidavit must describe with specificity and particularity
those facts alleged to support the claim of bias or prejudice”).
       {¶ 6} Second,      Judge    Huffman’s     sentencing    comments    do   not
demonstrate a bias or prejudice mandating disqualification. Because a sentencing
judge must ordinarily explain the reasons for imposing a sentence, judicial
comments during sentencing, even if disapproving, critical, or heavy-handed, do
not typically give rise to a cognizable basis for disqualification. See Flamm,
Judicial Disqualification, Section 16.4, 450-463 (2d Ed.2007). As other courts
have explained, “ ‘[i]t is the court’s prerogative, if not its duty, to assess the
defendant’s character and crimes at sentencing, after * * * guilt has been
decided.’ ” Connecticut v. Rizzo, 303 Conn. 71, 128-129, 31 A.3d 1094 (2011),




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                                 January Term, 2013




quoting United States v. Pearson, 203 F.3d 1243, 1278 (10th Cir.2000), cert.
denied, 530 U.S. 1268, 120 S.Ct. 2734, 147 L.Ed.2d 995 (2000). “Furthermore,
‘[t]o a considerable extent a sentencing judge is the embodiment of public
condemnation and * * * [a]s the community’s spokesperson * * * can lecture a
defendant as a lesson to that defendant and as a deterrent to others.’ ” Id., quoting
United States v. Bakker, 925 F.2d 728, 740 (4th Cir.1991). As the United States
Supreme Court has explained:


                 The judge who presides at trial may, upon completion of
          the evidence, be exceedingly ill disposed towards the defendant,
          who has been shown to be a thoroughly reprehensible person. But
          the judge is not thereby recusable for bias or prejudice, since his
          knowledge and opinion it produced were properly and necessarily
          acquired in the course of the proceedings, and are indeed
          sometimes (as in a bench trial) necessary to completion of the
          judge’s task.


Liteky v. United States, 510 U.S. 540, 550-551, 114 S.Ct. 1147, 127 L.Ed.2d 474
(1994).     Accordingly, a trial judge’s harsh comments to a defendant during
sentencing will not ordinarily lead to disqualification.
          {¶ 7} On the other hand, there are circumstances in which a judge’s
disqualification is necessary to avoid an appearance of impropriety. See In re
Disqualification of Winkler, 135 Ohio St.3d 1271, 2013-Ohio-890, __ N.E.2d __,
¶ 11-14 (appearance of impropriety created by judge’s sentencing comments).
Leet has not established that Judge Huffman’s comments create an appearance of
partiality. During the initial sentencing hearing, Judge Huffman stated that Leet’s
conduct was “racially motivated” and that Leet has “disdain for people who have
a skin color different” from his. She also commented on Leet’s lack of remorse,



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saying “You absolutely take no responsibility for your behavior” and “[Y]ou
don’t seem to care about any human life but your own.” Judge Huffman explains
that she made these comments based on testimony she heard during the trial, after
the jury found Leet guilty, and in consideration of the seriousness and recidivism
factors listed in R.C. 2929.12. See also R.C. 2929.12(B)(8) (sentencing court
shall consider whether offender was motivated by prejudice based on race) and
2929.12(D)(5) (sentencing court shall consider whether offender shows genuine
remorse for offense). Judge Huffman also avers that she understands that Leet is
“entitled to a new trial and that he is clothed in the presumption of innocence.”
Based on this record, no reasonable and well-informed observer would harbor
serious doubts about Judge Huffman’s impartiality or question her ability to put
aside her previous opinions and preside fairly over the new trial. See In re
Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d
1082, ¶ 8.
       {¶ 8} In conclusion, “[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. Leet’s speculation about Judge
Huffman’s prejudice is insufficient to overcome these presumptions.
       {¶ 9} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Huffman.
                           ______________________




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