The State does not have rights, it just has limited powers.  Those who give their consent to be governed, individuals, have rights under our constitutional republic system of government.  I would think most people understand that fundamental concept.  I would especially expect a criminal law and current chair of the Ohio House Criminal Justice Committee to understand that.  I was wrong.

From this weekend’s Cleveland Plain Dealer, we see that Criminal Justice Committee Chair and former Summit County Prosecutor Lynn Slaby is continuing what has been the twenty-year quest of the Ohio Prosecuting Attorneys Association to allow the State to “veto” any criminal defendant who choses to waive his right to have the case heard by a jury and instead be heard by the bench.  The Sixth Amendment of the United States Constitution and the jurisprudence and history of the right of criminal defendants to have a jury trial rests as a the right of the accused.    The right of the accused to have a jury trial was never intended or envisioned by the Framers to be a co-right held by the State.

And yet, that’s exactly how Slaby sees the Sixth Amendment should work in justifying his odious HB 265:

“The whole jurisprudence system is based on the jury system,” Slaby said. “Until we do away with juries entirely, it’s more fair to have both sides have a right to a jury trial.”

While it is true that the federal courts and other systems give the government a similar veto power, that is largely based on the unanimous U.S. Supreme Court case of Singer v. United States (1965), 380 U.S. 24, which does not address the necessity of the government’s consent to a jury trial waiver under the Federal Rules of Criminal Procedure as the State holding a “right” to a jury trial, as much as it holds that the Warren Court refused to read an implied right to a bench trial by the defendant co-equal to the right of a jury trial.  In fact, Singer was largely grounded on the concept that the jury trial was only constitutionally permissive method of trial for all but petty offenses.

But Singer‘s holding is based almost entirely on the Court finding that the Sixth Amendment does not confer the right of a bench trial co-equal to the right of a jury trial.   At the time of Singer, only three States permitted the prosecution to have a voice in the discussion of a jury waiver by a defendant: Indiana, California, and Virginia.  The Court upheld it based on nothing more than its institutional trust that federal prosecutors would be fair and reasonable.  Nothing in the Singer decision suggests that the prosecution has a recognized right to a jury trial similar to that of the accused.  So Slaby can’t rely on the existence of the federal court rules permitting the government to have some say in a jury waiver to support his bill.  Besides this bill goes beyond it, and allows the government to insist on a jury when one is not automatically presumed, such as in misdemeanor offenses.  And, I’m sorry to say, there is a vastly different culture and consistency of professionalism found in the U.S. Department of Justice versus the County and local prosecutor’s office.

Furthermore, the Singer Court also acknowledged “there migh arise situations  where ‘passion, prejudice . . . public feeling’ or some other factor may render impossible or unlikely an impartial trial by jury” in which it would be improper to allow the prosecution to have a veto power over jury waivers.  I think we can all think of certain crimes that a person can be merely accused of that inflames the passions of otherwise reasonable people who seek retribution with little or no evidence.  HB 265 does not even address such a scenerio.

The other constitutional problem with HB 265 is that it seems to infringe on the exclusive jurisdiction of the judiciary conferred to it under Article IV of the Ohio Constitution to regulate all procedural rules of the Court.  In addition, in the municipal court/county court level where misdemeanors are tried, a defendant is presumed to have waived his jury trial right unless he expressly demands one in writing within a certain time period of the criminal proceedings.  This bill would allow the State to increase the number of jury trials, which could make trials more expensive and lengthy.

Like much what we’ve seen so far from this legislature.  This is a heavy-handed solution being pushed by a special interest group that is searching for a problem it claims to solve.  In criminal prosecutions in Ohio, the State has all the powers it already needs.  To permit HB 265 to become law requires the further erosion of our constitutional rights at the expense of the State.  This bill should continue the trend of the same legislative death its prior versions have seen in the past twenty years in the State legislature, I hope.

  • Juries are socialist. Judges can be bought and paid for.

  • Anonymous

    The oppressor uses many tools to oppress including using the “law” to steal peoples rights. But then the R’s hate people and love money. This is another misguided attempt to control people’s lives.

    This is what happens when we don’t vote. We get raped robbed and pillaged.

  • Anonymous

    Justice is supposed to be blind, but it would seem that the intent of this HB is to take off the blindfold and poke out her eyes.  This seems to me to be a decision that should be made exclusively by the defense since the prosecution is responsible for the burden of proof.  This legislature has certainly used their session as a feeding frenzy for right wing ideologies. 

  • Natasha

    I’m gonna guess that most politicians in Ohio are already bought and paid for, or for sale.  They have become much like store-bought silicon tits and must be repurchased every few years to keep up appearances.

    If Judges – in Ohio, are politicians too. So judges are bought and paid for too

    Justice like legislation goes to the highest bidder

  • Anonymous

    Either I’m dense, you weren’t clear, or both, or neither… but you’re saying the state wants the right to “veto” someone’s decision to have a judge hear their case and the state would be forcing a jury trial. I don’t know if people are catching that or not. It’s not the state taking away the right of trial by jury but the state taking away the right to give up that right. 

    What are instances where they, the State, would want to do not allow a case to be decided by judge? You don’t say what is behind this. 

  • Anonymous

    The right to have a case heard by the jury or the bench, in my opinion, should be the decision left to the defendant as he or she is the one facing potential imprisonment from the outcome of a case.

    The sponsor of this legislation views it as creating a “right” of the State to have a jury trial.  That is an encroachment on the accused rights as an individual.  The State has no “rights,” only powers.  Therefore, by creating the co-right, the State is creating the power to veto a defendant’s choice of trial.

    Well, I can imagine any child-sex abuse case being one or any other crime where the mere allegation of wrongdoing invokes community outrage.  Cases where there is a legal argument that a judge would more like understand and comprehend and find as grounds for acquittal where a jury may not.

    Again, I reject the holding of Singer and believe that inherent in the right of a jury trial is the right of the defendant to waive a jury trial and have a bench trial.  Those are the choices we have in this system.  Yet Singer looks at the history of trial by ordeal and trial by battle and suggests that the Sixth creates an exclusive method of jury trials under the Constitution–jury only.

    Name me any other right afforded by the constitution in which the prosecution has the power to force its way?  What’s next?  The State has the right to veto a defendant’s assertion of the right of self-incrimination?

  • Anonymous

    I’m trying to imagine more motivations by the State to do this than just the occasional high profile child sex abuse case where it would even be arguable whether the defendant would be better of in front of a judge. I’m admittedly not great at such imaginings but wonder what else they could be up to. 

    I agree with you that the State should not be able to choose for someone but wonder why prosecutors would invest so much political capital in trying to get it. 

    Or, is a case of them not really investing so much political capital, thinking that with conservative control of the legislature and State House they can pile on things that would not be doable otherwise. In other words, this is just another example of them trying to throw things at us faster than we can bat them away even if their benefit is only small. 

    And what ever happened to conservatives being concerned about the cost of the whole process and being worried about the cost of too many jury trials? Jury trials are even more expensive in high profile cases. Another case of trying argue out of both sides of their mouth, previously trying to limit the right to a jury trial, and now arguing they should be able to choose them? 

  • Fotogirlcb2002

    just one more right these people want to take from others….
    If we let them just once change something as important as this then next what will it be.

  • Anonymous

    I sincerely hope a public employee runs against Slaby. This is not a dark red district. It’s pretty purple.

  • Fred

     Not approving my posts again?  My sarcasm too much for you?

  • interesting thoughts

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