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Jurors with disabilities

As the court of last resort on state law questions, the Ohio Supreme Court is asked to hear thousands of cases a year; it agrees to hear only a few hundred, and issues opinions in even fewer.  With that kind of workload, the court tries to get the maximum bang for the buck; opinions should resolve broad issues of law in a clearly settled fashion.  Last week the court accomplished just that in State v. Speer, a case pitting the right of a disabled person to sit on a jury against the right of a defendant to a fair trial.

The facts in Speer were relatively simple.  Scott Speer and Jim Barnett were co-employees and friends, who also had disagreements about money.  One evening in August of 2002 the pair set out in Speer's boat to Put-in-Bay on South Bass Island.  Speer was the only one to come back, and the circumstances surrounding Barnett's failure to make the return trip served as the basis of Speer's indictment for aggravated murder, murder, aggravated vehicular manslaughter, and involuntary manslaughter, the state alleging that either Speer pushed Barnett off the boat, or that Speer's drunken operation of the craft caused Barnett to fall overboard.

Central to the case were the 9-1-1 calls Speer had placed during the night in question, with the state arguing that the "calm tone" of Speer's voice was evidence of his guilt, and the defense arguing that the fact Speer didn't slur his speech on the tape was evidence he wasn't drunk.

All that was lost, though, on one of the jurors, Linda Leow-Johannsen.  During voir dire, she'd indicated she had a hearing impairment, and needed to be able to read the lips of any speaker in order to know what was being said.  The judge rejected the defense's challenge to the juror for cause, and tried to make accomodations for her by moving her to the first row, and directing counsel and witnesses to face her when they spoke so she could read their lips.

The 6th District decided this wasn't enough, because while Leow-Johannsen was given transcripts of the 9-1-1 calls, that wouldn't help her in determining Speer's "calm tone" or the absence of slurred speech, critical factors in the trial. 

The Supreme Court agreed.  The Rules of Superintendence mandate that "the opportunity for jury service should not be denied or limited on the basis of disability," and the court noted that the trial judge's attempts to accomodate Leow-Johannsen served that function.  But it was not enough in this case: 

[The juror's] impairment directly prevented her from completely evaluating the specific evidence from the 9-1-1 recording presented in this case and relied on by both the state and the defense. Although promoting access to the courts is and should be a primary concern for the judiciary, the trial court's paramount duty is to ensure that the accused is afforded a fair trial.

The court parted ways with the 6th District's pronouncement that a disabled juror must be removed for cause if "any doubt exists that a juror can adequately and completely perceive and evaluate all the evidence."  But the court's own syllabus is quite sweeping: 

1. In deciding a challenge for cause to a prospective juror on the basis of a physical impairment, the court must determine, in light of the specific evidence to be presented, whether any reasonable and effective accommodation can be made to enable the juror to serve. In making that determination, the court must balance the public interest in equal access to jury service against the right of the accused to a fair trial, the latter being the predominant concern of the court.

2. The right to a fair trial requires that all members of the jury have the ability to understand all of the evidence presented, to evaluate that evidence in a rational manner, to communicate effectively with other jurors during deliberations, and to comprehend the applicable legal principles as instructed by the court. An accommodation made to enable a physically impaired individual to serve as a juror must afford the accused a fair trial.

3. A hearing impairment by itself does not render a prospective juror incompetent to serve on a jury, but when the accommodation afforded by the court fails to enable the juror  to perceive and evaluate the evidence, the accused is deprived of a fair trial. To avoid such situations, a trial court must determine whether reasonable accommodations will enable an impaired juror to perceive and evaluate all relevant and material evidence, and when no such accommodation exists, the court must excuse the juror for cause.

While this is certainly specific enough to provide guidance to the lower courts, it's broad enough to provide some basis for the assertion in Lanzinger's dissent (joined by Cupp) that it comes "dangerously close to encouraging trial courts to dismiss disabled jurors outright rather than risk reversal on appeal."  What, for example, of a blind juror?  How many appellate courts have sloughed off arguments about the credibility of witnesses by saying that it was up to the jury to resolve those issues, since they had the ability to view the witnesses and observe them while they were testifying, and thus were able to perceive the physical cues most of regard as key to determining whether someone's telling the truth?  In a case which turned on the credibility of witnesses -- and which ones don't? -- would a blind juror be less capable of evaluating all the evidence?

Possibly, but that's probably too broad a reading of SpeersSpeers was an unusual situation, where it was clear that a juror was unable to evaluate the key piece of evidence at trial.  (Lanzinger comes close to conceding the point; while making a passing reference to "the record" being contrary to that, she never attempts to explain why, and instead focuses on the failure of the defense to request an alternate juror take Leow-Johannsen's place when it became obvious that the tape was crucial.)  The better reading of Speers is probably as a reaffirmation of the defendant's fundamental right to a fair trial.

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