It all began January 18, 2011 at Justice Paul Pfeifer’s swearing-in ceremony for his current (and now last) term.  In his remarks, which he stated might make everyone in the room uncomfortable, he talked about Ohio’s death penalty.  He said that he had concluded  “that it is exceedingly difficult for this statute to be administered in a fair and just way”.  He urged the legislature to seriously consider whether Ohio continues to be well-served by having a death penalty statute, and urged the governor to consider commuting all death penalty sentences to life without the possibility of parole. He commented further that the Court is seeing far fewer death sentences now that juries have the choice of life without the possibility of parole.

 The next day in an article in the Cleveland Plain Dealer, Pfeifer is quoted as saying that safeguards put in place to prevent inequities in death penalty sentencing had not worked, and that the use of capital punishment was a “lottery.” Pfeifer repeated the remark from his swearing in that he thought the governor should commute all death sentences to life without the possibility of parole, and to do what Illinois has done “and say we don’t need the death penalty in Ohio any longer.”

 Finally, on January 26 Pfeifer wrote a letter to the editor of the Cleveland Plain Dealer, in which he wrote that from his perspective, first as a legislator who had helped draft the law, and now as a judge, “I have come to the conclusion that we are not well-served by our ongoing attachment to capital punishment.” He expressed his unease at the unfair application of the death penalty, and ended the letter saying, “I believe the time has come to abolish the death penalty in Ohio.”

On November 19 the Supreme Court of Ohio is hearing a death penalty appeal,  State v. White, 2009-1661. Nothing unusual there—the Ohio high court hears lots of those.  What is unusual is the fact that the Ashland County prosecutor filed a motion to recuse Justice Pfeifer from the case. She was joined in this position by the Ohio Prosecuting Attorneys’ Association as amicus curiae. Under the rules, an amicus curiae cannot file a recusal request, so the Association filed a memorandum in support of the local prosecutor’s motion.

In 1996, Maxwell White was convicted of aggravated murder, and the trial court imposed the death penalty upon a jury’s recommendation. In a 2005 habeas appeal, the U.S.Court of Appeals for the Sixth Circuit reversed and remanded the sentence based on error in jury selection. In 2007, White’s counsel filed motions seeking to prohibit the state from seeking the death penalty again upon remand. The trial court found R.C. 2929.06 unconstitutional as applied retroactively to White. The court of appeals reversed.  The issue before the Supreme Court of Ohio is whether retroactive application of Ohio’s resentencing statute, R.C. 2929.06, is unconstitutional as applied, by allowing the State to seek the death penalty in offender resentencing proceedings, when that option was not available to the state under a previous version of the statute.  Read the oral argument preview of this case here.

 The state’s recusal motion against Justice Pfeifer is based on Pfeifer’s public comments about the death penalty.  In an affidavit filed with the motion, the Ashland County prosecuting attorney wrote that “based on Justice Pfeifer’s comments and the similarity of one of his voiced opinions to one of the appellant’s (Smith’s) contentions in this case, the State believes that Justice Pfeifer would arrive at deliberations with a preconceived opinion regarding appellant’s argument.”

In seeking recusal, the state and its amicus cited a number of provisions of the Ohio Code of Judicial Conduct. (Unlike U.S. Supreme Court justices, who are not bound by the Federal Code of Judicial Conduct, Ohio Supreme Court Justices are bound by the state’s code of judical conduct.)

Under Rule 2.11 (A), “a judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” Under paragraph 5 of that section, disqualification is required when the judge (or justice) “has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.”

Under Rule 2.10(A) “a judge is not to make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.” Under Rule 2.10(B), “a judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.”  

 When a recusal motion is made against a supreme court justice, it is up to that justice to decide whether or not to step aside. The procedure for recusal of a justice is relatively new.  It’s been in effect since April 1, 2011. Under S.Ct.Pract. R. 14.6, a party seeking the recusal of a Justice on a case must  file the request in letter form with the Clerk of the Supreme Court and include an affidavit with the specific basis and facts to support the request. The justice must then respond to the clerk in writing indicating whether the justice will will recuse from the case. In the required filing, Justice Pfeifer found the recusal motion to be without merit, and will hear the case. While he did not say this in his filing, in the Plain Dealer article Pfeifer did say that even though he is advocating for a change in the law, he can still vote to uphold the death penalty.

There are twin themes here that are very much debated currently.  One is the right of judges to speak out on issues that may come before the court.  Since the 2002 U.S. Supreme Court decision in Republican Party of Minnesota v. White, judges are allowed to speak out about issues far more than they used to be. Justice Scalia, author of that opinion, does so more than most.  And while recusal standards are being debated at a national and state level, most of those issues deal with when campaign contributions require a judge to step aside from a case.