Impairment of juror leads to new trial
3/4/2010COLUMBUS - A hearing-impaired juror should not have served on a homicide trial in which an audio recording of a 911 call was presented as evidence, the Ohio Supreme Court said yesterday.
By a vote of 5-2, the court agreed that Scott A. Speer, 44, of Fairlawn, Ohio, was denied a fair trial in the Aug. 6, 2002, death of his friend, Jim Barnett, 40, of Barberton. Mr. Barnett drowned in Lake Erie near Catawba Island after they set out on Speer's speedboat during a small-craft advisory and high winds and waves. His body was found the next day.
Speer told authorities he and his friend were returning from Put-in-Bay when Mr. Barnett fell overboard. Speer said he searched for Mr. Barnett until about 2 a.m. and then called 911.
The prosecutor contended Mr. Barnett had been pushed or fallen overboard.
Speer was convicted in Ottawa County on charges of aggravated vehicular homicide and involuntary manslaughter after the jury rejected other charges, including murder. His trial lawyer had asked the jury to closely study an audio recording of Speer's 911 call for evidence that he was not intoxicated, which was part of the prosecution's case.
Juror Linda Leow-Johannsen had told the Ottawa court she could lip-read if a witness faced her, but she would have problems with an audio recording. The judge placed her at the front of the jury box and arranged for her to read a transcript of the recording. That wasn't enough for the juror to fully appreciate Speer's tone of voice, inflection, and demeanor, the Supreme Court found.
"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 the accused is afforded a fair trial," Justice Terrence O'Donnell wrote or the majority. The ruling upheld a 6th District Court of Appeals decision ordering a new trial.
"We'll have to … discuss with the prosecutor what the proper charge should be," said Brad Barbin, Speer's appellate attorney. "In the first jury decision, the jury decided [Mr. Barnett] was not pushed from the boat. That charge was declined. There was the argument that alcohol caused Barnett to fall off the boat. There was a little box [from the jury] that said no to that. The only issue left is reckless homicide."
Ottawa County Prosecutor Mark Mulligan could not be reached for comment.
Justice O'Donnell was joined in the majority by Chief Justice Thomas Moyer and Justices Evelyn Lundberg Stratton, Paul Pfeifer, and Maureen O'Connor.
Justices Judith Lanzinger and Robert Cupp dissented. Justice Lanzinger of Toledo noted the defense didn't object during the trial to the accommodations made by the judge for the juror. "Although the majority is correct in stating that a court's primary concern is ensuring that an accused has a fair trial, we cannot require trial courts to be clairvoyant," she wrote.
The case was followed closely by advocates for the disabled, several of whom filed a brief that opined the deaf can serve as jurors as long as appropriate accommodations are made.
Contact Jim Provance at:
jprovance@theblade.com
or 614-221-0496.