Alternate juror error, reversed and remanded, State v. Downour, 2010-Ohio-4503
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.
