Prosecuting Attorney Jessica Little has asked the Ohio Supreme Court to replace Court of Common Pleas Judge Scott Gusweiler due to perceived bias against the prosecution.
The move has delayed further proceedings in the cases until the Chief Justice of the Supreme Court makes a determination on the prosecution's request. Jury selection in Tincher's trial had been scheduled to begin Dec. 6.
An Affidavit of Disqualification of Gusweiler was filed by Little on Dec. 1 outlining instances that the prosecutor argues are evidence of Gusweiler's alleged bias against her office in this case. The affidavit claims that Gusweiler has made repeated comments, both on and off the official court record, about the monetary cost of prosecuting a capital case, comments that the prosecution considered to be inappropriate urgings against pursuing the death penalty for financial reasons.
The affidavit additionally asserts that Gusweiler inappropriately intervened in a plea arrangement between the state and Hensley, attempting to prevent some elements of the complicated plea deal from being fulfilled and putting the testimony of a key witness and alleged conspirator in jeopardy.
The filing further claims that Gusweiler, a potential "trier of fact" in the trial, investigated aspects of the case that could establish an appearance of impropriety.
The Supreme Court notified Gusweiler of the affidavit in a letter from Master Commissioner James F. Bumbico dated Dec. 2. The letter indicates Gusweiler may submit a response within 15 days of being notified.
"Upon receipt of your response, the Chief Justice will review the matter and render a written decision on the merits of the affidavit," the letter states.
The notice also states that Gusweiler "should not make any further judicial rulings until the affidavit has been ruled upon by the Chief Justice" except for limited circumstances specifically detailed in the Ohio Revised Code section that lists actions permitted by a judge facing a disqualification affidavit.
The affidavit requests the Supreme Court of Ohio assign a visiting or retired judge from outside Brown County preside over the case of Hensley and Tincher.
So, basically, according to Little, Judge Gusweiler has prejudiced the case and has shown a bias against Little. The charges get more specific:
Sometime between April 30 and May 6, Little asserts in the affidavit that Gusweiler met with the prosecutor alone in her office and "he looked very agitated." Little claims that Gusweiler stressed the difficulty with prosecution and financial implications of proceeding with capital murder charges that would have allowed consideration of the death penalty if convicted.
"It was his clear desire that these individuals be indicted as non-capital cases," Little says in the affidavit.
The cases were presented to a grand jury panel on May 6 and aggravated murder indictments that included death penalty specifications were returned against Tincher and Hensley. Clemens was indicted for obstruction of justice, to which she later pled guilty after reaching a plea agreement.
"Over the next several weeks, both on and off the record, Judge Gusweiler made numerous comments about the cost of the death penalty cases and what a burden they were for the Court and the County," Little states in the filing. "I felt these comments were directed at me."
In the affidavit Little argues that "Gusweiler's admonition not to indict the Defendants with death (penalty) specifications is inappropriate."
She argues that it is the prosecution's duty and discretion to decide how to best prosecute a case, and that a grand jury is responsible for determining what charges and specifications are appropriate based on the facts presented.
"Judge Gusweiler's public unhappiness with the indictments has demonstrated a prejudice against affiant personally, and, in turn, the State of Ohio," Little states in the document.
She also claims that Gusweiler interfered with a plea agreement the prosecution had reached with Hensley' during a late October meeting with his defense counsel, Bruce Wallace. A discovery document provided to defense counsel by the prosecution indicates Hensley agreed to plead guilty to aggravated murder, accept a sentence of 15 years to life in prison and provide truthful testimony against Tincher. In exchange, the state agreed to dismiss a gun specification, arrange for visits at the Brown County Jail between Hensley and Clemens, and put $100 in the commissary account of Hensley, or divide the commissary equally between Hensley and Clemens.
Hensley had initially requested conjugal visits with Clemens, but the prosecution was informed by officials at the jail that conjugal visits were out of the question, although non-contact visits between glass in the jail's visiting room could be arranged.
After learning of the details of the plea agreement and hearing that Hensley had bragged about the terms of the deal, Little asserts in the affidavit that Gusweiler requested that she, an assistant prosecutor and defense attorneys meet with the judge in chambers before a scheduled Oct. 26 hearing.
During that meeting, Gusweiler "was very angry and said that by putting $100 on Hensley's commissary account, the State, looking at me, 'looked like a whore' because I was 'buying testimony,'" Little said in the affidavit.
Gusweiler also advised Little to disclose details of the plea arrangement to defense counsel, including the fact that a second commissary account had to be opened for Hensley due to a negative balance from prior incarceration, and to disclose jail records of visits between Hensley and Clemens.
When a question arose about providing the commissary money from the Prosecutor's Office's "Furtherance of Justice" fund, Little states that she asked the Brown County Commissioners to pay the $100, and a commissioner tentatively agreed. However, the affidavit claims that Gusweiler "on his own initiative had come to the Commissioner's Office and told them not to pay Hensley's commissary account." It further states that Gusweiler also contacted a jail official and told him not to permit any special visitations for Hensley, and that the judge had personally investigated the accounts of Hensley and Clemens.
Little states in the filing that her office received a letter from Hensley about the plea arrangement.
"He stated that we did not put money on his commissary account as p[promised and he wasn't getting all of the visitations with Clemens as promised," the affidavit claims.
The letter went on to say that, if the money was not put in his account as promised, he would not testify against Tincher, according to the document.
"Due to Judge Gusweiler's ex-parte contact with the Commissioners and the Sheriff's Office and his personal investigation into the commissary account matter, the State was not able to keep its agreement with Hensley," Little states in the document. "Hensley is an essential witness against Tincher."
Little cites the fact that judges do have the authority to approve and/or deny plea arrangements, but she asserts that "it is improper for a sitting judge to directly involve himself in the plea bargain by actively trying to derail the plea bargain."
OK, this is getting ridiculous with these two. Some sources (neither of the principals involved) are telling me this is sour grapes that Little wasn't more supportive of Gusweiler during the Meranda mess. Other sources are simply saying Gusweiler has a history of being this bullying with women. Others are saying Little is blowing things out of proportion and that Gusweiler was just trying to help a first term County Prosecutor out.
To me, some of this sounds indeed like Gusweiler did overstep his bounds. It is up to the prosecutor to charge and present the evidence, and the grand jury to indict and/or recommend charges. The judge can only step in for constitutional or procedural issues, not just for "cost."
Gusweiler should have let it go and his statements over and over about the cost make one wonder if he is concerned with justice or just the bottom line. To the outside observer, his behavior and actions do look like more than just a simple investigatory attitude, and more toward trying to undercut the prosecutor.
Well, Gusweiler must have read some tea leaves or decided to save the taxpayers some money and wasted time, because he has removed himself from the case. From the Brown County Press:
Common Pleas Judge Scott Gusweiler has voluntarily withdrawn from the Joseph Hensley and Dallas Tincher murder cases.
Gusweiler made that decision in an answer he filed Dec. 16 with the Supreme Court of Ohio to Prosecuting Attorney Jessica Little's Affidavit of Disqualification asking that Gusweiler be removed from the cases.
In her affidavit, Little alleged that Gusweiler was biased against the State.
Retired Hamilton County Judge Thomas Nurre has been assigned to the cases as of Dec. 16 by Ohio Supreme Court Chief Justice Eric Brown.
Gusweiler's response begins "In order to correct the record, I will respond herein to the allegations contained in Jessica Little's Affidavit of Disqualification. While I deny any bias or prejudice to Jessica Little...I will request that another judge be appointed to preside over the trial of this case."
Gusweiler then begins a response that runs for seven pages.
It begins with him rebutting the argument Little made in her filing that he was "agitated" when he visited her office to discuss the expense surrounding capital murder cases.
"I contacted a fellow judge and asked if he thought it would be appropriate for me to talk to the prosecutor about the cost of capital cases", the response reads.
"The judge told me he thought that discussion would be appropriate, given the financial straights the county was in", it continued.
The response then describes a meeting with Gusweiler and Little in her office, and Gusweiler's response reads "...I ended the conversation by telling Ms. Little that she was the charging official of the county and she needed to do what she thought was appropriate. I did not instruct her not to bring capital murder charges."
Gusweiler then moves on to the allegations in Little's affidavit that he "direct(ly) involved himself in the plea bargain by actively trying to derail the plea bargain."
Gusweiler describes how he reacted after learning of the elements of the Hensley plea bargain that included money being put on the jail commissary accounts of Hensley and his girlfriend Sarah Clemens and jail visits between the two.
"I was concerned about the appearance of impropriety involved with both of these elements of the proposed plea deal", his response reads.
Gusweiler describes a meeting between himself, Little and Hensley attorney Bruce Wallace where he told Little "I did not like the way payment to Mr. Hensley looked, but said I could not stop it. I did not tell or order Ms. Little not to fund Mr. Hensley's jail commissary account. I told Ms. Little that the plea deal, included money and visits, was evidence favorable to Mr. Tincher and must be disclosed in his case."Little's affidavit says that Gusweiler then went to the Brown County Commissioners and told them not to put any money on Hensley's account after Little determined that it would be improper for her to use money from the Prosecuting Attorney's office for that purpose.
Little's affidavit reads that his "admonition to the Commissioners not to put any money into Hensley's commissary account was improper".
Gusweiler's response reads "I spoke with two of the commissioners and told them that I did not think it looked right for the commissioners to use taxpayer dollars to fund the commissary account of Mr. Hensley (who was charged with murdering a Brown County citizen). I did not instruct the commissioners not to fund the account, nor could I. I indicated they should know I did not condone the practice and thought it reprehensible to give public funds to a capital defendant for his testimony."
Little further alleges that Gusweiler "improperly investigated aspects and facts of this case by himself" referring to Gusweiler gathering the records of Hensley's and Clemens' jail commissary accounts.
Gusweiler responds "I have not investigated any aspect of Mr. Tincher's alleged crime. I did take steps necessary to ensure Ms. Little was complying with my order that she fully disclose to Mr. Tincher's counsel the terms of the plea deal with Ms. Clemens and the proposed plea deal with Mr. Hensley."
Gusweiler closes with "I have no bias or prejudice against Ms. Little...and I have no doubt that I could fairly and impartially act as the judge on this case. Nevertheless, in order to remove any doubt about my impartiality, and in an abundance of caution with an eye toward ensuring justice is provided to the defendant and the victim's family, I request that another judge be appointed to preside over the trial of this case."
So, who knows the real story? But what I do know is that both Ms. Little and Judge Gusweiler ran on getting justice done for the people of Brown County, swift justice. These types of spats on the part of two elected officials are not bringing anything but consternation to the citizens of Brown County and making the county look like a joke.
Look, I voted for and worked to get elected both of these people. I considered them to both be of high quality and qualified for the job. I still think both are qualified. However, given the temperment of Gusweiler in the Meranda case, in addition to the charges in Little's affadavit, some sources are wondering to me if Gusweiler has the temperment to be judge of Brown County. I have no answer for that and can only look forward to seeing more results of justice served and less headlines of squabbling litigators.