Friday, March 14, 2003

Top Ohio court considers harm questions from jurors could do

By Andrew Welsh-Huggins
The Associated Press

COLUMBUS - When Michael Fisher was on trial in 2001 for shooting a man during a fight, jurors were allowed to submit questions to witnesses through the judge.

In one case, the judge split a question involving the time lapse between the fight and the shooting into two parts. The result, Fisher's attorney said, was the judge asked a slightly different question than the juror meant to pose.

Fisher appealed his case to the Ohio Supreme Court, which is debating whether allowing jurors to ask questions during a trial hurts the rights of defendants.

Prosecutors say the practice doesn't infringe on those rights as long as a question is properly screened by a judge.

Defense attorneys say the practice upsets the traditional balance in a trial between prosecutors and defense lawyers by making jurors advocates of a particular position.

"Let the two parties who know their case best present it, and fight it out," said Donald Schumacher, a Columbus lawyer representing Fisher. "That's the best chance we have that the truth will out."

Fisher, 23, is serving a seven-year sentence at Ross Correctional Institution in Chillicothe. His victim survived and testified against him.

Franklin County Prosecutor Ron O'Brien said he has some concerns about the practice but doesn't believe it automatically harms a defendant.

"If it's important for the juror to ask, and if it's something that can be answered, it certainly doesn't impair the defendant's rights," O'Brien said.

The state Supreme Court is expected to rule by summer on conflicting rulings by three lower courts.

In Fisher's case, the 10th Ohio District Court of Appeals in Columbus ruled in December 2001 that the questions didn't hurt his case.

In similar cases before appeals courts in Lima and Cincinnati, however, judges said the practice could harm a person on trial.

The Cincinnati court ruled in 2001, for example, that too "much danger exists in the distortion of the juror's vote when an individual juror can, under the guise of neutrality, become an advocate in the process."

Schumacher said a juror could misinterpret an answer or not understand why a judge rejected a question.

"They might think, `Who's hiding something from me? Why isn't my question answered?'" Schumacher said. "If they aren't even given the opportunity, they don't have to speculate on why the question wasn't answered."

A juror might also ask a question that helps a prosecutor who hadn't fully met the burden of proof, he said.

That problem hasn't come up in the three years that Toledo Judge James Jensen has allowed the practice. For the most part, jurors follow the direction of the lawyers' questions, he said.

"I instruct them not to be advocates for either party, that the purpose of the practice is to clarify information that has come to them," said Jensen, of the Lucas County Common Pleas Court.

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