Proposal would limit options of defendants








Conviction rates in southwestern Ohio are almost 80 percent and judges appear to be harsher than juries.

A proposed law could limit a criminal defendant’s right to choose who decides their fate, some experts say it is unfair because there are certain types of cases where a defendant would want a bench rather than jury trial.

House Bill 265 is set for another hearing Jan. 25 in the House Criminal Justice Committee. Its sponsor, Rep. Lynn Slaby, a Republican and former Summit County prosecutor, said he introduced the bill, which would require prosecutors to approve bench trials, in part because it follows federal law and mirrors laws in at least 26 others states. Slaby also said he is always suspicious when a defendant chooses to waive their constitutional rights, perhaps in order to get a judge who might look favorably on their case.

“It allows for the state of Ohio, the victim as well as the defendant to get a fair and impartial trial and that’s what the jury trial is all about,” he said.

Butler County Common Pleas Judge Michael Sage, who was recently named chair of the Supreme Court’s Practice and Procedure Commission, said prosecuting attorneys asked that body to consider changing the rules in 2008. He said some prosecutors in the state are on the “outs” with their judges and felt they were being treated unfairly, because judges were recommending defendants waive their right to a jury.

“We felt if there was some abuse of power by a judge, there were more appropriate means of dealing with that than changing the entire rule,” he said.

The commission debated the idea and decided the rules in Ohio are working fine and the change would probably be substantive rather than procedural, so the decision properly lies with the legislature.

If the law passes, Sage said the courts will have to decide whether the rule change was merely procedural, so his commission might have to revisit the issue.

So what types of cases are better heard by judges? Sage said death penalty defendants often opt for a three-judge panel rather than take their chances with a jury.

“Judges have seen and are trained to look at horrendous sets of facts and realize when you weigh the death penalty, what can be weighed and what cannot be weighed…,” he said. “And he will hopefully be able to set emotion aside.”

Cases involving sex, ones with affirmative defenses like self defense and insanity pleas and “hyper-technical” cases like embezzlement are others Sage are best left to a jurist rather than a jury.

A Journal-News survey of trials in Butler, Montgomery and Warren counties show, however, that juries are picked more often than judges to decide cases. In Butler County, since 2005 there have been 540 criminal trials and only 60 were heard by judges. Warren County had 242 trial over the same time period and there were 48 bench trials. In Montgomery County there were 384 trials between 2008 and 2010 and 93 were decided by a judge.

Montgomery and Warren counties were also able to provide a break down of conviction rates of judges and juries. Montgomery County judges found defendants guilty in 80 trials, or 86 percent, and acquitted 13 people. Juries there found 227 defendants guilty between 2008 and 2010 for an 80 percent conviction rate. Warren County judges found 35 defendants guilty for a conviction rate of 73 percent. Juries rendered guilty verdicts 124 times for a 63 percent conviction rate, from 2005 to date.

Recently, Stacy Schueler, the ex-Mason teacher who was convicted by Warren County Judge Robert Peeler for having sex with students, opted for the bench trial because she was claiming insanity, according to one of her attorneys Charlie M. Rittgers. He said juries don’t like insanity pleas and basically feel someone should not be entitled to claim it. He said if this bill passes it flies in the face of the fundamental right everyone has to a trial.

“The framers of the Constitution envisioned through the Sixth Amendment the right of the accused to have a jury trial. It’s not necessarily the attorney’s decision, it’s the client. Some people want a jury of their peers to decide their case” he said. “I don’t think the framers ever envisioned the right to be held by the government.”

Warren County Prosecutor David Fornshell said he doesn’t feel strongly one way or another about the bill, but said it is about fairness, to both sides of the issue. He said it would reduce the “gamesmanship” by some defense attorneys who search for the most favorable venue for their client.

“I think it levels the playing field to where the prosecutor has some say in the process,” he said. “We are the ones who carry the burden of proof.”

Butler County Prosecutor Mike Gmoser said he didn’t want to comment on a bill that hasn’t passed yet, unless Slaby’s committee asks for his opinion.

Thaddeus Hoffmeister, a University of Dayton Law School professor and jury expert, said if the bill becomes law he doesn’t envision prosecutors from around the state invoking their right to object to a bench trial very often.

“I think prosecutors for the most part prefer a judge over a jury trial, there is less risk,” he said. “There is always risk with a jury trial. I think what they’ll use it for is a leverage tool… I think it’s a bad law but I think it would be rare that a prosecutor would use it.”


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