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

  • May 25, 2017
    "Clarifying" post-release controls
    A look at the Supreme Court's decision in State v. Grimes
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 22, 2017
    Case Update
    Is SCOTUS looking for a forfeiture case? Plus, appellate decisions on expungement and restitution, plain error, and what a judge has to tell a defendant about sex registration
  • May 19, 2017
    What's Up in the 8th - Part II
    Decisions on lineups and prior calculation and design, and two out of eight (eight!) pro se defendants come up winners,
  • May 17, 2017
    What's Up in the 8th - Part I
    Taking a first look at some of the 8th District's decisions over the past two weeks
  • May 16, 2017
    Case Update
    Stock tips, Federal sentencing reform goes dormant, schoolbag searches, and the retroactivity of State v. Hand
  • May 8, 2017
    Case Update
    Death in Arkansas, a worrisome disciplinary decision, and appellate cases on speedy trial, arson registration, use of prior testimony, and the futility of post-conviction relief
  • May 2, 2017
    What's Up in the 8th
    Nothing but sex
  • May 1, 2017
    Case Update
    SCOTUS closes out oral argument for the Term, the Ohio Supreme Court has seven of them this week, and we report on a decision where you'll probably want to play Paul Simon's "Still Crazy After All These Years" in the background while you read about it