The new attorney for Brandi Giannunzio has filed a motion asking that Hamilton County Criminal Court Judge Barry Steelman recuse himself from her case.
Giannunzio and her fiance, Benjamin Brown, were arrested in connection with the 2018 death of toddler Annie Burkett Shell. At the time of his arrest, Brown was charged with felony murder after the Hamilton County Sheriff's Office determined he inflicted mortal injuries on the child. Giannunzio was charged with making a false report and accessory after the fact.
Earlier this year, Brown was found guilty of the lesser charge of criminally negligent homicide after a six-day trial that culminated with more than 10 hours of jury deliberations. He was sentenced to serve two years in prison, followed by 11 months and 29 days in a workhouse.
Giannunzio was to enter a guilty plea during a May 27 hearing. Instead she chose to not enter a plea and sought another lawyer. On June 20, Brandy Spurgin-Floyd filed a motion to substitute counsel/notice of intent to plead not guilty, to replace Hilary Hodgkins, who had represented Giannunzio for three years.
Had the guilty plea been entered as scheduled, Giannunzio would have served 11 months and 29 days in a workhouse.
On July 12, Spurgin-Floyd filed the motion asking Steelman to recuse himself.
"In support of this motion, defense would submit that this honorable judge's impartiality might reasonably be questioned in this case," Spurgin-Floyd said in the motion, which the judge denied.
"The court will not recuse itself from this case," Steelman said during Monday morning's hearing, which was meant to be the start of Giannunzio's trial. "There is a 21-day period that the defendant would have to file an appeal," Steelman said, adding, "It would be wise to continue to prepare for trial."
In the motion to recuse, Spurgin-Floyd cited declarations made by Steelman during Brown's sentencing hearing. Brown was caring for the toddler for a few hours while Giannunzio visited a hair salon in Soddy-Daisy.
"During Brown's sentencing, this court commented: 'While I respect the jury's verdict, and the verdict is for negligent homicide, the court, having heard the evidence in the case, has difficulty reconciling that verdict with the facts that the court has heard,'" the motion said.
The motion also emphasized another comment made by Steelman at the sentencing hearing: "The jury made its decision, and I don't disrespect the decision, but with regard to what the court heard in the case, the facts were so much more egregious than just probably what most criminally negligent homicides are in the state."
Spurgin-Floyd also represents Brown in an unrelated civil matter concerning child support and testified on behalf of the defense as a character witness.
While in the care of Brown, Annie allegedly began suffering from a seizure. Brown further told investigators, during a video interrogation shown in court, that the toddler then began pulling her hair and later claimed she had possibly hit her head as he was carrying her to the bathroom.
During a text exchange presented at court, Giannunzio, who was at Erlanger hospital with Shell's family, messaged Brown that Shell "fell in the bathroom and hit her head." To which Brown responded, "OK." Both Brown and Giannunzio told responding emergency medical workers and investigating officers that Giannunzio was at the home during the time of the alleged seizure.
Annie's cause of death was ruled to be blunt force trauma to the chest and head, according to Hamilton County Medical Examiner James Metcalfe. Metcalfe testified during Brown's trial and demonstrated to the jury, using a life-size doll, how she could have sustained such injures.
Appearing for the defense, forensic pathologist Dr. Michael Baden, of HBO's "Autopsy" and former medical examiner for the New York City, testified Shell could have sustained the injuries from a fall.
Steelman set the next court appearance for Aug. 19, with a deadline to file an appeal for Aug. 17.
Giannunzio is charged with false reporting - a misdemeanor - which carries a sentence of up to one month in jail and $2,500 in fines should she be found guilty at trial. She is also charged with accessory after the fact - a felony - which carries a sentence of one to six years in prison and up to $3,000 in fines should she be found guilty at trial.
Giannunzio is free on $15,000 bond, pending trial.
Contact La Shawn Pagán at lpagan@timesfreepress.com or 423-757-6476. Follow her on Twitter @LaShawnPagan.