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.