ATHENS, Ohio — Athens County Prosecutor Keller Blackburn filed an affidavit with the Ohio Supreme Court seeking to disqualify Judge George McCarthy from an already-resolved Athens County Court of Common Pleas case, claiming McCarthy is biased against the prosecutor’s office.
Blackburn filed an affidavit with the court Thursday, Oct. 1. Ohio Supreme Court Chief Justice Sharon Kennedy requested Oct. 2 that McCarthy respond to Blackburn’s affidavit. McCarthy has 21 days from the date of the Oct. 2 entry to do so, unless he requests an extension. The entry also said McCarthy cannot preside over proceedings in the underlying criminal case until Kennedy rules on Blackburn’s affidavit.
The affidavit cites McCarthy’s statements in court and in docket entries that criticized the general conduct of Blackburn’s office and speculated that Blackburn had motives beyond the pursuit of justice. McCarthy made those statements after the prosecutor’s office threatened to file for a writ of prohibition against McCarthy to block a hearing he had granted for an incarcerated man. Through a writ of prohibition, a higher court can block a lower court’s action.
In a Sept. 24 entry, McCarthy wrote that Blackburn’s office “perpetually acts with a ‘scorched earth’ mentality whenever any decision is not in their favor. In this Court’s opinion it often goes beyond zealous representation and occasionally borders on contempt.”
McCarthy added that Blackburn’s “threat was so unanticipated” that it led McCarthy to wonder if it related to whether McCarthy “would consider running for prosecutor after retiring from being a judge.” He added that he has “no desire to take on that role at this stage.”
Blackburn said in his affidavit that McCarthy’s generalized statements about the prosecutor’s office and discussion of the pair’s political futures demonstrates McCarthy is biased against Blackburn’s office and that “the State can no longer receive a fair trial.”
“The State is entitled to preserve legal objections and pursue lawful appellate and extraordinary remedies without those actions being characterized as intimidation, bullying, or evidence of an improper motive,” Blackburn’s affidavit states.
McCarthy and Blackburn’s dispute stems from the case of Mark Butcher, a man approaching the end of a years-long prison sentence for multiple criminal charges. Butcher was most recently convicted of aggravated burglary in 2015, and his sentencing included time for community control violations.
Butcher is set to be released in May 2027, according to court records.
In June, McCarthy granted Butcher additional time to make his case for judicial release, an early release from prison. McCarthy had previously denied Butcher’s request for judicial release after a 2023 hearing.
The Athens County Prosecutor’s Office argued in a Sept. 17 filing that McCarthy’s decision to grant the man additional time to argue for judicial release was “strictly forbidden by the law.”
As the prosecutor’s office pointed out in its filing, Ohio law states that once a court has held a hearing on a judicial release motion and denied that motion, the court shall not consider a subsequent motion for judicial release.
The office said it may file for a writ of prohibition against McCarthy if he moved forward with the hearing.
A writ of prohibition is commonly viewed as a “drastic remedy,” according to Cornell Law School. Higher courts considering a writ of prohibition weigh not only whether a lower court abused its discretion, but also the gravity of the harm done.
McCarthy’s Sept. 24 filing says that he denied Butcher’s request for judicial release prematurely in 2023. Granting the defendant additional time to make his case for judicial release, the judge said, was the only way to guarantee the defendant had due process. McCarthy said this would not constitute an entirely new hearing, but a reopening of the record from the first hearing.
On the morning of Sept. 24, the day of Butcher’s hearing, Blackburn’s office requested a stay of the hearing to file the writ of prohibition. McCarthy denied the stay request that afternoon.
McCarthy said in the denial that Assistant Prosecutor T.L. Warren had visited his office in person on the day of the scheduled hearing to reiterate the prosecutor’s “threat” to file for a writ of prohibition.
McCarthy said he invited the prosecutor’s office to file because the court “will not be bullied by the State into dismissing the hearing it has previously arranged with the prison for Defendant to be made available.”
Blackburn told the Independent in an Oct. 6 email that because the hearing took place, “a writ of prohibition became moot.” He then noted he had filed the affidavit with the Ohio Supreme Court and declined to comment further.
The hearing in Butcher’s case ultimately did not change the outcome for the incarcerated man. McCarthy denied the defendants’ judicial release motion in an Oct. 1 order.
McCarthy declined to comment for this story, citing ongoing litigation. A media representative from the Ohio Public Defender’s Office also declined to comment.
McCarthy said he prioritized due process rights
Butcher wrote a letter to the court in 2023 asking that he be released to a halfway house, recovery house, or reentry program that would better prepare him to reenter society upon his release from prison.
Butcher initially filed for judicial release in 2023, saying he had “grown up over the years” and “would like to get out to be a father” to his then 7-year-old son, whom he said was born just two days before he went to trial. Butcher separately said he had cancer, according to court filings.
The court held a hearing about the issue on May 3, 2023. McCarthy ultimately denied Butcher’s request for judicial release in an order on May 24, for reasons set out by the prosecutor’s office. The prosecutor’s office had opposed judicial release based on what it described as Butcher’s “violent past, criminal history and behavior while incarcerated.” Butcher’s ongoing prison term is his fourth.
Butcher submitted three additional motions for judicial release in 2025. McCarthy denied the first two because he had already held a hearing on the issue. But in the third, Butcher said he had not had a “full hearing” on his motion. That compelled McCarthy.
Granting Butcher’s request for a hearing in a June 11 order, McCarthy wrote, “The Court finds Defendant was not heard on his motion for judicial release before denying said motion.”
The prosecutor’s office then filed a motion asking the state to reconsider. The office wrote that Butcher’s claim he had not received a full hearing was “patently false.”
The court did not directly reply, but scheduled a hearing for Butcher’s motion. That prompted the state’s Sept. 17 filing, wherein the prosecutor’s office threatened to pursue a writ of prohibition.
The Sept. 17 filing argued that Butcher had already been afforded ample opportunity to make his argument for judicial release. The prosecutor’s office noted that, at the 2023 hearing, Butcher had debated his criminal record and “talked about his mental health, programs he completed and the treatment he sought.”
“He spoke to the Court for 6 minutes and 26 seconds,” the prosecutor’s office wrote. “For the next five minutes, he responded to the Court’s questions. Then his attorney was given another opportunity to speak on his behalf.”
McCarthy said in his Sept. 24 response that wasn’t enough.
“The Court is of the opinion that Defendant was not given adequate opportunity to speak on his own behalf,” McCarthy wrote. “Although he made some statements Defendant asserts he was not given adequate opportunity to speak on his own behalf and not just respond to the State’s argument.”
McCarthy added that “due process does not have a time threshold, it is a matter of looking at the context of the statements, and how they were made in response to argument by the State and on behalf of himself.”
If he had previously acted prematurely, McCarthy said it was incumbent upon him to correct the situation.
“The Court finds it would be more reasonable and just plain fair to allow Defendant to make his
statement rather than have this matter sent to the court of appeals for review by either side,” McCarthy said. “The Court strives to give due process when it is due. Even if inconvenient for the State, the Defendant, the victim and/or the Court.”
He added that the state may “interfere with what the Court considers to be a due process requirement” if it chooses.
“The Court refuses to be intimidated by the State’s attempts to thwart due process regardless of the insinuated embarrassment the State alleges that will follow when it carries out its threat to appeal or obtain a writ,” McCarthy wrote.
McCarthy ultimately denied Butcher’s request for judicial release because he found, in part, that Butcher would likely become subject to an additional five-year community control period. McCarthy said he would be inclined to suspect Butcher may violate community control requirements because of his history.
“The Court concludes that Defendant should serve out the short amount of time he has on his sentence so he can begin serving his post release control period of supervision,” McCarthy wrote.
Judge criticizes prosecutor’s conduct
McCarthy made several generalized critiques of the prosecutor’s office in his Sept. 24 filing in Butcher’s case. According to Blackburn’s affidavit, he continued those critiques from the bench during the hearing that day.
In the Sept. 24 filing, McCarthy wrote, “The State will posture that what they are doing are in support of the victim. However, in their zealousness to do so the State has become manic and threatened the Court what it will do if it does not dismiss the hearing this day.”
McCarthy’s critiques against Blackburn’s office went beyond the scope of Butcher’s case.
“The Court usually chalks the State’s over the top actions as posturing for the victim and/or media. Normally the Court treats it as such,” McCarthy said in his filing. He went on to reference a common refrain among lawyers: “You can indict a ham sandwich.”
“An indictment will certainly get you in the papers but lends little, if any substance, to the actual facts. The prosecutor has broad powers and exercises every bit of it,” McCarthy wrote. He added: “The Court often hears complaints that the State overcharges to help ensure a conviction on something.”
Blackburn noted in his affidavit that, in Ohio, “the grand jury and prosecutor hold the sole constitutional authority to determine what charges are brought.”
The affidavit reads, “By stating that the State will ‘over-indict,’ Judge McCarthy is admitting a pre-set, generalized belief that the State brings excessive charges,” the affidavit states. This demonstrates McCarthy has a “pre-determined bias against the validity of the indictment itself.”
McCarthy, in his Sept. 24 filing, contrasted Blackburn’s approach to prosecution with his own.
“When the undersigned was an assistant prosecutor the ethical consideration of the prosecutor’s duty was to seek justice, not merely convict,” McCarthy said. Blackburn said in his affidavit that McCarthy introduced this statement to “demean the current Athens County Prosecutor and his assistant prosecutors.”
McCarthy went on to criticize Blackburn’s approach to plea agreements, and the way in which the prosecutor’s office frames those agreements to the media.
“If the State believes what they worked out was a heavy sentence they take credit for it. If it appears on its face to be a light sentence, they attribute it to the judge – even though it is part of their plea agreement,” McCarthy wrote (emphasis in original).
Blackburn said in his affidavit, “The Court’s reference to unrelated plea agreements and plea practices as a whole shows a continued animosity towards the State.”
McCarthy also criticized Blackburn’s approach to superseding indictments, echoing criticism levelled by the Ohio Public Defender’s Office earlier this year in the case of Jennifer Sweat.
Sweat argued that the prosecutor’s office presented harsher charges against her because she wanted to pursue her constitutional right to a jury trial rather than enter into a plea agreement. Sweat and her attorneys with the Ohio Public Defender’s Office argued that the harsher charges were brought in retaliation, compromising her right to due process.
Sweat’s appeal on those grounds is currently pending before the Ohio Fourth District Court of Appeals.
In McCarthy’s filing, he said the state does have the authority to bring a superseding indictment. However, he added, “the Court questions whether that interferes with a Defendant’s right to due process when defending on one charge that is suddenly expanded to four charges.”
Blackburn said in his affidavit that McCarthy contradicted himself by saying that the prosecutor has the authority to bring a superseding indictment, but that such indictments may violate due process rights. He also criticized McCarthy for mentioning in Butcher’s case “an issue raised in another case that has nothing to do with the proceedings related to Defendant.”
Blackburn’s affidavit said that McCarthy made further critiques of Blackburn’s office during the Sept. 24 hearing, further demonstrating “a generalized bias with regard to the State.” It quotes McCarthy as having said, “It is systematic of the prosecutor’s office that if they don’t get their way on any particular decision that they badger the court for a reversal of the court’s position no matter what the topic is, no matter who the person is and no matter what is going on.”
The affidavit also said McCarthy had “readily agreed” with assertions by the defendant regarding what happened at the May 2023 hearing that Blackburn claimed were verifiably false.
Kennedy, the Ohio Supreme Court Chief Justice, did not have to request a response from McCarthy to Blackburn’s affidavit, per court rules.
According to Kennedy’s entry, McCarthy’s response “shall specifically and fully address, in detail each factual allegation” in Blackburn’s affidavit.
Kennedy will rule on Blackburn’s affidavit after McCarthy files his response.
