County prosecutors rate as the most powerful officials in the state. They can take away your liberty. Now they have asked Ohio lawmakers to increase their clout. They want the authority to say no when defendants opt to have their cases tried before a judge instead of a jury.
State Rep. Lynn Slaby, a former Summit County prosecutor, has introduced legislation to make the change. He and other proponents, including the Ohio Prosecuting Attorneys Association, have weighty allies on their side. Twenty-nine states and the federal courts require the consent of the prosecutor to waive a jury trial.
The U.S. Supreme Court took up the matter in 1965, ruling that criminal defendants have no constitutional or federally recognized right to a trial before a judge sitting alone. Writing for the court, Chief Justice Earl Warren argued that the jury trial has “such importance and such a place in our traditions” that it follows logically the consent of the prosecutor and the court should be gained before setting the jury aside.
Warren added that if a prosecutor rejects the request, “the result is that the defendant is subject to an impartial trial by jury — the very thing that the Constitution guarantees him.”
Fair enough?
The court noted that states “have adopted a variety of procedures” relating to the waiver of jury trials. Some require only the judge to consent. Others, including Ohio, leave the decision entirely with the defendant. The court looked at the matter from the federal perspective. It also appeared to leave the door ajar to assessing differently a case involving public passions and prejudices in which a prosecutor’s insistence on a jury trial would deny a defendant a fair and impartial proceeding.
Those weren’t the circumstances in the particular matter at hand.
This isn’t the first time prosecutors in Ohio have attempted to change the rule. They have taken the question to the Supreme Court of Ohio Commission on the Rules of Practice and Procedure. In 2010, the panel’s criminal rules committee examined the proposal and voted 10-3 against the change. Members argued, according to the meeting minutes, that “taking away the choice of how to be tried is patently unfair to defendants.”
In October, the Ohio Judicial Conference, an organization of Ohio judges, released a “judicial impact statement” on the legislation, stating its firm and comprehensive opposition to the change. It noted the state has a “long tradition” (affirmed by the Ohio Supreme Court) of leaving the choice to the defendant. It warned against “a significant shift in the balance of power between the prosecutor and the defense counsel.”
What, precisely, is the problem that prosecutors seek to solve?
The suggestion is that some judges may favor, wittingly or unwittingly, the defendant. These judges, in the language of campaigns, somehow are “soft” on crime, or criminals. Give prosecutors the authority to veto a bench trial, the argument goes, and the case would stay with a jury, avoiding the bias of one man or woman.
The challenge rests with supporters of the change, lawmakers and prosecutors, to be precise about the judges who fall into this category.
Why not name names? Their accusation is severe, that these judges are failing on the job.
Actually, in a state that elects judges, such incumbents should be ripe targets for political operatives. What could be more devastating at the ballot box than examples, aired widely, of a judge favoring a child molester or any other defendant?
As it is, a small fraction of criminal cases go to trial, on average 2.8 percent in common pleas courts from 2006-2010. Roughly one-third of those proceed to a bench trial. So the numbers suggest something less than a raging concern. More, if there are “soft” judges, it is likely there are “hard” ones, too, presumably inviting their own set of injustices.
Ask defense attorneys when a trial by judge is preferred, and they cite events that inflame emotions, such as sexual abuse, raising questions about whether a jury can stand at a necessary distance. That is when the option of a bench trial serves the criminal justice system as a whole.
Leaving the choice with the defendant, no matter how seemingly reprehensible, reflects the spirit and principles of the Bill of Rights. The Sixth Amendment guarantees “the right to a speedy and public trial, by an impartial jury.” The impartiality deserves emphasis. This amendment and others protect the individual by placing limits on the state.
The option of a bench trial adds a further measure of protection — without jeopardizing the public interest, the judge a reflection of the will of the people. Give prosecutors the chance to say no, and the complication arises: Is this a bid to play on the emotions of a jury, to steer clear of a judge less easily swayed?
A veto for prosecutors adds to their leverage in plea negotiations, and thus to the likelihood of flawed convictions. Put another way, they would gain more power yet risk an erosion of public confidence.
And if a prosecutor today sees the need to remove a judge? There already are procedures to seek disqualification. Just show true bias.
Douglas is the Beacon Journal editorial page editor. He can be reached at 330-996-3514, or emailed at mdouglas@thebeaconjournal.com.
