Judge called 'biased' in filing to remove him from Columbus officer's misconduct trial

COLUMBUS, Ohio (WCMH) - An officer's trial over false claims about protesters made to arrest them is back on the docket, after prosecutors tried to remove the judge from the case.

Sergeant Holly Kanode is the first of three officers from the Columbus Division of Police to go to trial for charges stemming from the May 30, 2020 protests over the death of George Floyd. She was last in court on May 12 before the judge moved to pause proceedings for the rest of the week. That delay then carried through the month of June.

A Franklin County Municipal Court official said Kanode's trial was delayed as the Ohio Supreme Court reviewed a request to remove Judge James P. O'Grady from the case. The court denied the request on Monday, meaning O'Grady will still preside over the case and the trial got its green light to proceed. Because Kanode waived her right to a jury, her attorneys are making their case directly to that judge.

The filing documents NBC4 obtained from the Ohio Supreme Court shed light on a rift between the judge and prosecutors in Kanode's trial. Special Prosecutor Kathleen Garber filed to remove O'Grady, claiming he admitted bias for Kanode, CPD and the Fraternal Order of Police.

"During the off-the-record discussions, held in chambers, Judge O'Grady asked whether anyone was going to ask him to recuse himself from the case," Garber wrote. "He then proceeded to list his potential conflicts of interest."

That list, according to Garber, included plans to attend an FOP raffle, having a relative retired from CDP, and a "concern that if he didn't sentence the defendant to jail 'people' were going to be upset." However, O'Grady's response letter to the court called Gerber mistaken about what happened.

"I am confident that I am not biased, interested, or prejudiced regarding the Kanode case, and I will continue to be appropriately neutral, impartial and fair ... As to the Special Prosecutor Garber's narration of the pre-trial proceedings, I respectfully disagree with her characterizations of those events and interactions," O'Grady wrote in response. "I never made any comments regarding support for the FOP."

The Ohio Supreme Court asked O'Grady to be more specific, according to a second response letter that he wrote to them. He went on to say while Garber claimed he let the defense attorney "scream, rant and belittle the prosecutor," both attorneys have "argued their respective points passionately" and he told them both to calm down.

The Ohio Supreme Court ultimately ruled to keep O'Grady on the case, citing her timing as a reason. The judges wrote that Garber failed to explain "why she waited six months to seek Judge O'Grady's disqualification." The court then tackled the comments Garber said O'Grady made, saying they didn't prove he couldn't judge in Kanode's case impartially.

Prosecutors charged Kanode with nonviolent misdemeanors, including falsification and dereliction of duty. Body camera footage showed Kanode arrest protestor Nadia Lynch while telling a second officer that Lynch grabbed a third officer and jerked him to the ground. Prosecutors showed other video evidence in court which they argue showed Lynch didn’t do what Kanode claimed she did.

Kanode's attorneys aren't disputing what happened on the day in question, but they are arguing that what the sergeant did is not criminal. Their case argues there’s no way to prove what Kanode thought she saw amid the chaos of the protests.

While special prosecutors looked into multiple officers while reviewing footage from five other incidents, no other members of CPD were charged besides Kanode, Traci Shaw and Phillip Walls. Prosecutor Brad Nicodemus said this was for a variety of reasons, including being unable to identify an officer in footage who pepper-sprayed student journalists at the scene, and also being unsure if he had enough evidence to win the case.

Shaw, who is facing charges in two separate cases including assault, interfering with civil rights, and dereliction of duty, has a trial set for July 18. Walls, who is facing the same charges in one case, has a jury trial set for Aug. 16.