Columbus Bar Lawyers Quarterly

Fall 2011

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The Bad Idea That Won't Go Away - H.B. 265

~ written by Jessica G. Fallon

On April 14, 1930, United States Supreme Court Justice Sutherland opined, “The record of English and colonial jurisprudence antedating the Constitution will be searched in vain for evidence that trial by jury in criminal cases was regarded as a part of the structure of government, as distinguished from a right or privilege of the accused... we conclude that Article III, Section 2, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. To deny his power to do so, is to convert a privilege into an imperative requirement.”

Patton et al. v. U.S. (1930), 281 U.S. 276, 296-298. The Patton court voted 4-3 to explicitly give defendants in federal criminal cases the power to waive their right to a trial by jury.

On June 14, 2011, H.B. 265 was introduced to the Ohio House of Representatives. The Bill states, in pertinent part:

The prosecuting attorney, a village solicitor, a city director of law, or a similar chief legal officer for a municipal corporation responsible for prosecuting a criminal case before a municipal court may demand a jury trial in any criminal case in which a defendant may demand a jury trial. The prosecuting attorney, village solicitor, city director of law, or similar chief legal officer may demand a jury trial notwithstanding a defendant’s failure to demand a jury trial and over the objection of the defendant. (Emphasis added.)

Currently, the code sections to which this addition will be made permit a defendant to waive a trial by jury, and contain no reference to the ability of a prosecuting attorney to demand a jury trial when a defendant exercises his right of waiver. In fact, in 2000, jury trial was waived in over 750 cases in Common Pleas Court and over 10,000 cases in municipal and county courts.

To the layperson, or even to an attorney practicing in areas besides criminal law, the language of H.B. 265 may be innocuous. After all, both the U.S. Constitution and the Ohio Constitution provide the right to a trial by jury. But, to those of us who practice in the criminal arena, H.B. 265 is far from innocuous.

You see, there are many reasons why a defendant would choose to have a bench trial rather than a jury trial.

First, criminal defense attorneys are often charged with providing a defense to individuals who may be viewed negatively by a jury, regardless of whether or not they committed the crime with which they are being tried. Perhaps they have a lengthy criminal history which the prosecution wants to use against them or their alleged crime is particularly offensive; not to mention just plain old racial or ethnic prejudice. If the potential prejudice is so great that it could cloud a jury’s decision making process, trying the case to a judge is a safeguard that a criminal defense attorney can use to protect the defendant.

A bench trial can also be a good recommendation when the issues involved in a case are complex, technical, or just generally confusing, or when there are multiple charges, specifications and/or potential lesser included offenses. Rather than bogging a jury down with more information than they could possibly process, defense attorneys may try some charges to the jury, but waive jury trial on others to the make the case more manageable for the jurors. H.B. 265 would give the government the ability to force a defendant to have these types of cases handed to an often ill-equipped jury.

Finally, for many defendants who retain private counsel in criminal matters, jury trials are cost prohibitive. During a bench trial, much formality is waived, voire dire is not conducted, there is no need for jury instructions, and often times, opening and closing statements are either brief or are waived altogether. This means that a bench trial could take two to three hours, rather than two to three days. While some defendants are able to afford the attorneys fees that accompany a three-day trial, most are not. Permitting these defendants to have their case heard by a judge provides them an opportunity for full and fair adjudication they otherwise could not afford.

H.B. 265 will not only be costly to defendants. It will be costly for the government, and in turn, the taxpayers. Jury trials require the time of not only the defendant and his counsel, but of a prosecutor (or two), a judge, a court reporter, other court staff, potential witnesses, and of course, jurors. Moreover, the more jury trials a given county has, the fewer plea bargains are entered into, and the more jail space will be taken up by low level offenders who otherwise may have been sentenced to less jail time, or even placed on community control.

This is the second time in nine years that the legislature has attempted to take away a defendant’s right to waive a jury trial; a right that simply levels the playing field for defendants in a game where the prosecution enjoys exclusive control over the nature of the charges filed, the number of charges brought, and execution of the charges through warrant and arrest. The last time, in 2002, the measure (H.B. 541) was squashed through the hard work of attorneys and judges who saw the danger in such legislation. Now it is time for us to defend that victory.

jfallon@splaws.com

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