Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Lomax and jury waivers

The Supreme Court handed down a rare unanimous decision in a criminal case a couple of weeks back in State v. Lomax.  A quick-and-dirty read on the case:

What's the issue?

Jury waivers, specifically, how far a trial court has to go in satisfying the requirement under RC 2945.05 that the waiver be made "in open court." 

What are the arguments?  The dispute centered on whether the "open court" requirement mandated a colloquy between the judge and the defendant.  The courts have consistently rejected the contention that there has to be a full colloquy, along the lines mandated by Crim. Rule 11, to ensure that a waiver is "knowing, intelligent, and voluntary." 

So the defendant lost, right?  Wrong.  In Lomax, the defendant had signed a waiver prior to the trial date.  The only mention of it by the trial judge in open court was the statement, "I understand we are finally ready on the Lomax case.  Since there's going to be a jury waiver, does the State care to make an opening statement at this time?"  The Supremes held that the open court requirement meant that "there must be some evidence in the record of the proceedings that the defendant acknowledged the waiver to the trial court," and simply having the trial court mention on the record that there was a waiver doesn't cut it.

So how far does the trial judge have to go?  Not very; while the Court has stated in other cases that "it may be better practice for the trial judge to enumerate all the possible implications of a waiver of a jury," it's not error for the trial judge not to do it.  Basically, a simple inquiry about the written form, "Is this your signature on the jury waiver?  Did you read this and understand it before you signed it?" is probably enough to get by.

Now, whether this is good practice or good law is another story entirely.  It's not clear why a waiver of one's constitutional right to a jury should be treated any differently from the waiver of one's constitutional rights in a plea.  (And, of course, one of those rights you're waiving in a plea hearing is the right to a jury trial.)  It might be a different story if the written waiver went into any kind of detail about what the right to jury trial entails, but, as you can see, the form prescribed by the statute says nothing more than that you're giving up the right.  It doesn't even mention how many jurors you're entitled to, that it's to be a jury of your peers, or that there's a requirement that they unanimously find you guilty.

Of course, limiting the colloquy to a mere ritual incantation has the advantages of simplicity and expediency.  Sadly, that seems to count for an awful lot in the criminal law.

Search

Recent Entries

  • July 26, 2017
    Supreme Court Recap - 2016 Term
    My annual review of the Supreme Court decisions from the past term
  • July 24, 2017
    What's Up in the 8th
    Some things we knew, some things we didn't
  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture
  • July 20, 2017
    Case Update
    A look at the Ohio Supreme Court's decision in State v. Oles, and did you know that Justice Ginsburg has a .311 batting average with runners in scoring position? Oh, wait...
  • July 18, 2017
    What's Up in the 8th
    Judicial bias, RVO specs, 26(B) stuff, waivers of counsel... And more!
  • July 17, 2017
    No more Anders Briefs?
    I have a case now in the 8th District where I came close to filing an Anders brief the other week. It's an appeal from a plea and sentence. The plea hearing was flawless. The judge imposed consecutive sentences, and...
  • July 13, 2017
    Sex offenders and the First Amendment
    Analysis of the Supreme Court's decision in Packingham v. North Carolina
  • July 12, 2017
    Removing a retained attorney
    What does a judge do if he thinks a retained attorney in a criminal case isn't competent?
  • July 11, 2017
    What's Up in the 8th
    The court does good work on a juvenile bindover case, and the State finally figures out that it should have indicted someone in the first place
  • July 10, 2017
    Case Update
    SCOTUS ends its term; the Ohio Supreme Court issues another opinion, and likely the last one, on the trial tax