State v. Lanagan

Moyer, C.J. The affidavit of disqualification filed herein alleges a “dislike” of the defendant, Donald L. Lanagan, by Judge Robert D. Walker. This and the other vague, unsubstantiated allegations of the affidavit are insufficient on their face for a finding of bias or prejudice. During a trial of this case, No. 87-08981-CR in the Court of Common Pleas of Hancock County, beginning on January 14, 1988, a mistrial was declared; the trial was rescheduled for March 10, 1988. This affidavit was not filed until March 4, 1988, although there were no intervening circumstances. In the absence of extraordinary circumstances, an affidavit of disqualification should not be used to disqualify a judge after lengthy proceedings have transpired in a given case: “[A] party should not be permitted to participate in an action or proceedings to the extent that he is able to ascertain the attitude of the judge toward important aspects of his case and then avoid an adverse ruling by belatedly raising the issue of disqualification.” Annotation, Waiver or Loss of Right to Disqualify Judge by Participation in Proceedings — Modern State Criminal Cases (1984), 27 A.L.R. 4th 597, 605. For these reasons, the affidavit of disqualification is found not well-taken and is hereby dismissed.