Ohio Criminal Appeals Lawyer Blog

Alternate jurors sit during the trial in case there is a problem with one of the sitting jurors. But pursuant to Ohio Revised Code Section 2313.37(C) and Ohio Criminal Rule 24(G)(1), alternate jurors are generally not permitted to be present with the sitting jury as the sitting jury deliberates.

In State v. Downour, an Oregon, Ohio, Municipal Court Judge allowed an alternate juror to be with the sitting jury - over objection - while it deliberated. The Sixth District Court of Appeals affirmed the conviction because "there is not one scintilla of evidence in the record showing that the alternate juror actively participated, in any way, during those deliberations."

But today the Ohio Supreme Court decided that once the criminal defense lawyer objected to the presence of the alternate juror during deliberations, it was incumbent upon the State to show that the presence of the alternate juror during deliberations did not prejudice the defendant. And it found "[n]othing in the record indicates that the state established the absence of prejudice."

The Ohio Supreme Court reversed Downour's conviction and remanded the case for a new trial. Read the Sixth District Court of Appeals opinion here. Watch the oral argument before the Ohio Supreme Court here. Read the Ohio Supreme Court decision here.

[Please note Downour was spelled Dounour for oral argument.]

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private attorney. Otherwise, contact your county or state public defender to see if they can help.

A Cuyahoga County defendant will get another bite at the apple because someone failed to file the jury waiver she signed with the trial court and failed to make sure it was made part of the record. R.C. 2945.05 specifically states that the jury waiver must be filed and made part of the record, and the Ohio Supreme Court has stated that strict compliance with R.C. 2945.05 is required. State v. Pless, 1996-Ohio-102. So even though the record shows the defendant waived her right to a jury trial in this case, no waiver was filed and the Eighth District Court of Appeals determined that the trial court lacked jurisdiction to try the defendant without a jury. Read the decision in State v. Butler, 2010-Ohio-3414, here.

Today the Second District Court of Appeals reversed a conviction for felonious assault because the defendant waived his right to a jury trial in the judge's chambers and not in open court. Jury waivers are addressed by Criminal Rule 23(A), Revised Code Section 2945.05, and the Ohio Supreme Court decision in State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277.

Everything about the waiver was valid in this case except it was not done "in open court." Today's Second District decision in State v. Burnside, 2010-Ohio-1235, indicates that all the trial judge had to do was have the defendant acknowledge the jury waiver in open court before conducting the bench trial. But no acknowledgment was sought by the trial court and so Burnside's conviction was reversed and he gets another bite at the apple (although whether this is a good thing for Burnside remains to be seen since he received probation (community control sanctions) after his bench trial conviction for felonious assault - a second degree felony that could result in a prison term of up to eight years).

Read the decision here. Check out my warnings about winning your appeal here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private attorney. Otherwise, contact your county or state public defender to see if they can help.

That is not what the Ohio Supreme Court said. In State v. Speer, 2010-Ohio-649, the OSC said "[a] hearing impairment by itself does not render a prospective juror incompetent to serve on a jury" (¶ 26). But the OSC also said that "the trial court's paramount duty is to ensure that the accused is afforded a fair trial" (¶ 29).

I would argue that a person with a hearing impairment such that they cannot perceive voice inflections cannot be jurors in criminal trials where any witnesses will testify. The OSC stated in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, that "[t]he underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony" (emphasis added).

It would follow that jurors must also be able to observe voice inflections in determining the credibility of each witness. In State v. Speer, a hearing impaired juror had to read lips and read a transcript when a recording was played. Therefore, the OSC determined that Speers did not receive a fair trial.

Since observing voice inflections plays into the assessment of a witnesses' credibility, how could a person who cannot observe voice inflections sit as a juror in a case where the most important consideration is that the accused gets a fair trial?

Read the Ohio Supreme Court's decision in State v. Speer here and watch the oral argument here.

So said a Cuyahoga County Common Pleas Judge to the lawyers in a murder trial as you can read by clicking here. The Eighth District Court of Appeals reversed the convictions of Arif Majid and remanded the case for a new trial because the trial record showed that a juror was clearly sleeping a number of times during trial. The Court of Appeals said the sleeping juror violated Majid's right to due process.

The Ohio Supreme Court reversed the second conviction of David B. Clinkscale because a juror was replaced during the deliberations of the guilt phase as you can read here. The OSC's opinion is significant for all capital defendants because, as the dissent complains, it "charts a new course for this court in capital cases." Capital cases have always received special treatment, but this decision errs on the side of the defendant instead of the usual other way around. The defense in Clinkscale did not object to the replacement of the juror for three weeks, the defense did not follow through with the requirements of Appellate Rule 9(C) by creating a statement to fill in what happened when the judge replaced the juror off the record, and lastly the defense only expressed speculation that the replaced juror would have hung the jury. Nevertheless, the OSC by a 4 to 3 vote reversed because capital cases must be conducted with a "strict level of care." Watch the oral argument held on March 10, 2009, by clicking here.