The Assumption of Truth, The Appearance of Impropriety

Let's just assume she's telling the truth.

After all, it takes a certain dangerous chutzpah to accuse a judge of flat-out lying when all you have is gut feeling and what seems self-evident to the sentient.  And when the judge is prone to suing for $50 million when she feels dissed.  Besides, there's the Mark Gardner rule still for Ohio lawyers (you can't accuse a judge of dishonesty or misconduct even if it's true because the test is whether it's true and the way we decide if it's true is to examine what reasonable lawyers believe, and reasonable lawyers believe that judges are incapable of dishonesty or misconduct - don't confuse truth objective reality).

So let's assume she's telling the truth.

I'm talking, of course, about Shirley Strickland Saffold, the Honorable.  Judge of the Cuyahoga County Court of Common Pleas.  Judge Assigned the case of State of Ohio v. Anthony Sowell (alleged rapist and serial killer of at least 11 women whose bodies, it's said, were found in his home).  Judge from whose registered account with the Cleveland Plain Dealer on line, comments from one "lawmiss" concerned some of Saffold's cases (including Sowell) and were extremely derisive about one of Sowell's lawyers (Rufus Sims).  Judge who refused to recuse herself from Sims' cases because she sure didn't make those comments; her daughter did.

And we have to assume she's telling the truth.

Still, Sims and his co-counsel John Parker still thought she should get off the case.  There was the lawmiss business, but there was also her ex parte communication about the case with Judge McGinty.  And there is that $50 million dollar law suit.

Of course, we're assuming she told the truth.  But Parker and Sims filed what's called an "affidavit of disqualification" anyway.  It's what kicks off a special procedure, established by Section 2701.03 of the Revised Code which entrusts the decision about whether to remove the allegedly disqualified judge from a case entirely to the discretion of the Chief Justice of the Ohio Supreme Court.

Parker and Sims argued that regardless of the truth (and of course we have to assume she was telling the truth), there was an appearance of impropriety from all of this.  Saffold denied that.  Since she was innocent of all wrongdoing, there could be no appearance of impropriety, she said (apparently assuming that if someone is innocent, it's impossible for anyone to imagine otherwise - which perhaps bodes ill for anyone in her courtroom who's accused of wrongdoing, but I digress).

Thursday, Justice Pfeifer, acting as Chief Justice in place of the late Tom Moyer and despite the appointment of Eric Brown, removed Saffold from the case.  There's no indication, he said, that she did anything wrong.  (After all, we assume that she told the truth.)  But some misguided souls might imagine otherwise.  The appearance of impropriety, after all (which he, at least, recognizes can exist in the absence of impropriety itself). 

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 parties, their counsel, and the public the unquestioned neutrality of an impartial judge."

I'm leaving out the citation.

There's a basic rule that someone brings up when anyone asks if there's a conflict of interest requiring one to get off a case:  If you have to ask, get off.  So here.  Pfeifer quotes "the venerable Judge John V. Corrigan."

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.

Yep.  Even assuming she's telling the truth.