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Cleveland
Plain Dealer...
Ohio prosecutors want
veto power in having a judge decide a case
Ohio prosecutors want to change the law to give themselves veto power
when a criminal defendant chooses to have his case heard by a judge
instead of a jury.
The bill was introduced last month by former Summit County prosecutor
Lynn Slaby, who is now a state representative, at the urging of the
Ohio Prosecuting Attorneys Association. It’s not the first time
prosecutors have pushed for the change.
Slaby said the judiciary is overwhelmingly fair, but there are
instances when a judge might have intentional or unintentional bias in
favor of a defendant.
“The whole jurisprudence system is based on the jury system,” Slaby
said. “Until we do away with juries entirely, it’s more fair to have
both sides have a right to a jury trial.”
Ohio is one of 21 states that gives criminal defendants the right to
choose between a bench and a jury trial. The other 29 states and
federal courts give prosecutors that choice as well.
The decision by defendants and their attorneys to choose a judge or
jury is primarily viewed as tactical.
“With some judges, you would never think about waiving jury,” said
Barry Wilford, a Columbus attorney and public policy director for the
Ohio Association of Criminal Defense Attorneys. “But if you have a good
judge and have confidence in their integrity, you just might in such
cases.”
Since 2001, 44 percent of felony trials in Cuyahoga County Common Pleas
Court have been heard by judges instead of juries. Statewide, about
one-third of felony trials have been heard by judges in the last 10
years.
Edward LaRue, president-elect of the Cuyahoga Criminal Defense Lawyers
Association, said he has long been “mystified” why a prosecutor would
care if a defendant opted for a bench trial.
“If you bring a case in good faith, why should it concern you whether
it goes before a judge or a jury,” LaRue said. “After all, the facts
are the facts.”
Defense attorneys think it can be advantageous to have a judge try a
case if it involves, for example, child molestation. In those
instances, judges are better able to determine a victim’s credibility
and will be less affected emotionally by the accusations than a jury
might.
Cuyahoga County Prosecutor Bill Mason said he supports Slaby’s bill. In
a 2005 Plain Dealer article about the rising number of bench trials,
Mason labeled some judges as “soft” on crime. He was more circumspect
during an interview Wednesday.
“I think it’s fair to have both sides be able to request a jury,” Mason
said.
Wilford said this is the fifth time in the last 20 years that
prosecutors have pushed for veto power over bench trials. None of the
previous bills introduced in the legislature have made it out of
committee. The difference this time, he said, is that Slaby chairs the
House Criminal Justice Committee.
The Ohio Judicial Conference, an organization of Ohio judges, opposes
the bill. The OJC issued a statement last month that said the bill
seeks to “redefine the fundamental fairness provided by the criminal
justice system” to criminal defendants.
“If the General Assembly adopts this legislation, it will have
abandoned that tradition in favor of a more powerful prosecutorial
institution,” the statement said.
Mark Schweikert, a retired Hamilton County Common Pleas judge and
director of the conference, said the proposed law could also affect
municipal court cases, where most trials are heard by judges.
Prosecutors could use the threat of a jury trial to drive harder
bargains during plea negotiations, Schweikert said. A defendant would
likely face higher legal fees and court costs for a jury trial compared
with a bench trial, he said.
Prosecutors have always had the option of filing an affidavit of
prejudice if they believe a judge in a case is biased, Schweikert said.
“We really don’t need to have another tool for that,” he said.
Should the bill be approved and signed into law, it’s unclear it could
go into effect without a ruling by the Ohio Supreme Court, which under
the state Constitution, has the authority to set rules for court
procedures. The Ohio Prosecuting Attorneys Association believes the
legislation would trump that authority.
A Supreme Court spokesman declined to comment about the bill, citing
the possibility that justices might have to decide the issue.
Read this and other articles at the Cleveland Plain Dealer
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