Prosecutors’ folly


Ohio prosecutors seek a new law that would allow them to demand that criminal defendants undergo trial by jury for more-serious crimes. Such bad policy would make the state’s criminal justice system less fair, more expensive, and increasingly vulnerable to constitutional challenges in capital cases.

Defendants in Ohio now can, without the approval of prosecutors, waive their right to a jury trial and demand that a judge hear the case instead. Prosecutors, arguing that a judge may not provide a fair hearing, want the ability to demand a jury trial. Last year, the Ohio House passed a bill that included the proposal by the Ohio Prosecuting Attorneys Association, but it died in the state Senate.

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Prosecutors argue that crime victims should have the same choices as criminal defendants. That argument is specious: A trial by jury is the constitutional right of the defendant, not the state.

The Ohio State Bar Association and Ohio Association of Criminal Defense Lawyers sensibly opposed the measure. Prosecutors already can ask that judges with a perceived bias be removed from a trial. The change also would cost taxpayers because of the expense of additional jury trials, and the costs of inevitable legal challenges and appeals.

Counties would bear much of the burden through their indigent defense systems. More than 70 percent of defendants in criminal cases are indigent, according to Ohio’s Office of the Public Defender.

State Public Defender Timothy Young testified against the proposal. He argued that it would lead to constitutional challenges, especially in death-penalty cases, where standards are most rigorous. In such cases, defendants may now waive their right to a jury trial in favor of a three-judge panel.

Such a panel may be better able to handle a complicated, emotional, horrific, and highly publicized case, especially when it includes technical legal matters or mitigating circumstances such as mental illness. Since 1999, Mr. Young said, 130 death penalty cases — 25 percent of such trials — have been handled by a three-judge panel instead of a jury.

Prosecutors can force jury trials in some other states, including Michigan, but that doesn’t make such a policy wise or sound. Michigan is not a death-penalty state.

Comparing the Ohio proposal to similar practices in federal courts is misleading. Federal judges have lifetime appointments that insulate them from public opinion. Removing them for bias is more difficult than at the state level.

Ohio’s criminal justice system needs improvement. But the proposal by Ohio prosecuting attorneys is not reform, even if it were applied selectively. It would shift power and control to prosecutors, and represent a step backward from the fair and efficient administration of justice.