“Do you think if she (A.B.) had not been named a representative of the state and merely introduced as the victim it was permissible to sit at the counsel table?”
Chief Justice O’Connor, to counsel for Montgomery
“Who gets to decide if the victim can sit at the table? “
Justice Stewart, to the assistant county prosecutor
On January 27, 2021, the Supreme Court of Ohio heard oral argument in State of Ohio v. Theodis Montgomery, 2020-0312. At issue in this case is whether introducing the alleged victim as the state’s representative and allowing her to sit with the prosecutor at counsel table throughout the trial in front of the jury denies the defendant the right to a fair trial guaranteed by the Sixth and Fourteenth Amendments.
Case Background
Theodis Montgomery and A.B. had known each other for nearly a decade, and their families were connected. Montgomery’s sister was married to A.B.’s father. Montgomery became interested in a romantic relationship, but A.B. was not, as she was engaged to a man who was then in prison. After an incident in December of 2017 involving a fake Facebook page created by Montgomery, A.B. broke off contact with Montgomery.
The incidents leading to Montgomery’s arrest occurred on March 15, 2018. A.B. went over to her father’s house, where Montgomery was living. She ended up staying the night, and her father left for the airport early the next morning. A.B. alleged that, later that morning, Montgomery woke her up, yelled at her, and then punched her in the face. Montgomery then allegedly followed A.B. into the bathroom and blocked the doorway, before taking her into the basement and forcing her to clean a dog kennel. Afterwards, Montgomery forced A.B. to take a shower and forced her to engage in vaginal intercourse. He then carried her to the couch and forcibly engaged in vaginal intercourse with her again, until A.B. asked him to stop, and he did. After a short time, A.B. left the house and drove to her sister’s house and called 911. The police searched the house and collected DNA evidence. Ultimately, Montgomery was arrested and charged with one count of kidnapping with a sexual motivation specification and one count of rape. Both counts included a repeat violent offender specification.
Before Montgomery’s trial began, the trial court granted the State’s motion to designate A.B. as the State’s representative and to sit at counsel table throughout the trial. A.B. testified at trial, but Montgomery did not. Instead, Montgomery relied on the testimony of many of A.B.’s family members to show that A.B. and Montgomery were in a relationship, and the sex was consensual. The jury found Montgomery guilty of kidnapping and rape but acquitted him of the sexual motivation specification accompanying the kidnapping charge. The court found him guilty of the repeat violent offender specification and sentenced him to two concurrent sentences of ten years. Montgomery appealed.
The Appeal
In a unanimous decision, the Fifth District affirmed the judgment of the trial court. On the issue pertinent to this appeal, the court held that Montgomery, who had the burden of proving he was prejudiced by the victim’ presence, had made only a “vague, generalized assertion of prejudice,” and because A.B. was the first witness to testify, that Montgomery “has not demonstrated prejudice in her ability to hear the testimony of the other witnesses.” Because the victim’s presence is permitted both by Marsy’s Law in the Ohio Constitution and by statute, the trial court did not err in allowing A.B. to sit at counsel table with the prosecutor throughout the trial as the State’s representative.
Read the oral argument preview of the case here.
Key Precedent
U.S. Constitution, Sixth Amendment (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”)
U.S. Constitution, Fourteenth Amendment (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)
*Ohio Constitution, Art. I, Sec. 10a (“Marsy’s Law”) (A victim has the right, “upon request to reasonable and timely notice of all public proceedings involving the criminal offense or delinquent action against the victim, and to be present at all such proceedings.” A victim also has the right, “upon request to confer with the attorney for the government.”)
*Evid. R. 615 (Separation and Exclusion of Witnesses)(“[A]t the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. An order directing the “exclusion” or “separation” of witnesses or the like . . . is effective only to require the exclusion of witnesses from the hearing during the testimony of other witnesses.” In a criminal proceeding, this does not authorize the exclusion of “an alleged victim of the charged offense to the extent that the alleged victim’s presence is authorized by statute enacted by the General Assembly or by the Ohio Constitution.”)
*R.C. 2930.09 (Victim’s Presence at Trial)(A victim in a case may be present whenever the defendant . . . in the case is present during any stage of the case against the defendant . . . that is conducted on the record . . . unless the court determines that exclusion of the victim is necessary to protect the defendant’s . . . right to a fair trial . . .”)
R.C. 2945.03 (Control of Trial) (“The judge of the trial court shall control all proceedings during a criminal trial and shall limit the introduction of evidence and the argument of counsel to relevant and material matters with a view to expeditious and effective ascertainment of the truth regarding the matters in issue.”)
United States v. Lawn, 355 U.S. 339 (1958) (Vouching occurs when the prosecution places the prestige of the government behind the witness, or when it indicates that information not presented to the jury supports the witness’s testimony.)
Geders v. United States, 425 U.S. 80 (1976) (The purpose of the sequestration rule is to prevent witnesses from shaping their testimony to match that of another, and to discourage fabrication and collusion.)
Holbrook v. Flynn, 475 U.S. 560 (1986) (An arrangement or practice in a courtroom that creates a risk of “impermissible factors” coming into play is inherently prejudicial, regardless of actual prejudice.”)
Arizona v. Fulminante, 499 U.S. 279 (1991) (Structural errors are constitutional defects that affect the framework within which the trial proceeds, and therefore “defy analysis by harmless error standards.”)
Carey v. Musladin, 549 U.S. 70 (2006) (Certain courtroom practices are “so inherently prejudicial that they deprive the defendant of a fair trial.”)
Weaver v. Massachusetts, __ U.S. __, 137 S.Ct. 1899 (2017) (There are at least three instances of structural errors: (1) when the right at issue protects an interest other than erroneous conviction; (2) when the error’s effects are too hard to measure; and, (3) when the error always results in fundamental unfairness.)
State v. Bryant, 105 Ohio App. 452 (2d Dist. 1957) (The harmless error standard applies when the judge cautioned the jury about the presence of a victim’s wife at counsel table, and determined that she did not make emotional displays, demonstrations, or statements.)
State v. Browning, Muskingum No. CA-77-18 (5th Dist. 1977) (Permission to sit at counsel table pursuant to Evid.R. 615(B) does not constitute error unless obvious advantage accrues to the prosecution contrary to Evid.R. 615.)
State v. Davis, 2008-Ohio-2 (Vouching occurs when a prosecutor “implies knowledge of facts outside the record or places his personal credibility in issue.”)
State v. Riccio, 2009-Ohio-5894 (1st Dist.) (The defendant has the burden of showing that the presence of the alleged victim compromised the defendant’s right to a fair trial.)
State v. Klusty, 2015-Ohio-2843 (5th Dist.) (A decision to allow a victim to remain in the courtroom during a trial is left to the discretion of the trial court.)
State v. Maley, 2013-Ohio-3452 (1st Dist.) (A generalized claim that a defendant was prejudiced by a victim’s presence in the courtroom is insufficient to show violation of a right to fair trial. The defendant must present “particularized evidence that the victim’s testimony will be so affected by the victim’s presence during the testimony of other witnesses that [the defendant’s] right to a fair trial would be violated.”)
*Relied on by counsel at oral argument
Montgomery’s Proposition of Law Accepted for Review
An appellant is denied his right to a fair trial guaranteed by the 6th and 14th amendments to the United States Constitution when a trial court permits an alleged victim to be introduced to the jury during voir dire as representing the State of Ohio and permits them to sit with the Prosecutor at counsel table throughout the entire trial in front of the jury.
Arguing Counsel
Addison M. Spriggs, Assistant State Public Defender, Columbus, for Appellant Theodis Montgomery
Kristine W. Beard, Assistant Prosecuting Attorney, Stark County, for Appellee State of Ohio
Montgomery’s Argument
The line between the state and the alleged victim was impermissibly blurred in this case by allowing A.B. to sit at counsel table for the entire trial and introducing her to the jury as a representative of the state. This violated Mr. Montgomery’s right to a fair trial. This was particularly prejudicial to Mr. Montgomery because the case depended entirely on the credibility of A.B., and the prosecutor’s proximity to A.B. at counsel table vouched for her credibility. Being introduced as a representative of the state and then being seated next to the prosecutor reinforced for the jury that the alleged victim was part of the prosecution’s team. Seating her next to the prosecutor was equivalent to cloaking her with the state’s imprimatur. There are certain courtroom procedures and seating arrangements that can be inherently prejudicial and can misrepresent to the jury the parties to the case. That is exactly what happened here.
The court of appeals in this case said only that under Marsy’s Law the victim is allowed to be in the courtroom, but never addressed the actual issue of where in the courtroom the victim is allowed to be. Marsy’s Law has internal constraints built in that do not permit the victim an unlimited right to confer with the state, but may do so upon request. Here, the state never advanced the theory that A.B. was needed to assist the cross examination of her family members. While there may be circumstances where the presence of an alleged victim may be necessary, that is simply not the case here.
In this case, there wasn’t just a single instance of informing jurors that A.B. was the representative of the state. The state brought the issue up pretrial. When the court did individual voir dire with juror 135, the court also stated to that juror that A.B. was the representative of the state. A.B. sat at counsel table during voir dire, opening, direct and cross, and during closing. So, this was a pervasive error.
Nothing in the law allows a jury to be misled into thinking the alleged victim represents the state of Ohio. It is a factual misrepresentation to claim A.B. is a representative of the state. Their interests are divergent; they are not consistent with each other. The prosecution is required to consider not just the victim’s rights, but also those of the public and the defendant. By stating that the alleged victim is a representative of the state, the prosecution vouches for the victim’s credibility and conflates the interest of the two parties. It amounts to sharing the credibility of the state with the victim. Additionally, the trial court never instructed the jury on how to consider the statement that A.B. was a representative of the state or the fact that she sat at counsel table. There was never a change in the lens with which to view her.
In this situation, this Court could find either structural error or harmless error. Mr. Montgomery wins either way. Even under harmless error, Mr. Montgomery still wins because it is the state’s burden to prove beyond a reasonable doubt that the error did not affect the trial. Here the state simply cannot do that when the key question is the credibility of the alleged victim. And Mr. Montgomery did timely and properly object.
Specifically, the Court could make one of two rulings in this case. One would just be to say that nothing in Marsy’s Law or the state constitution requires the trial court to let the alleged victim sit at counsel table. The second, more sweeping ruling would be that permitting an alleged victim to sit at counsel table and be introduced to the jury as a representative of the state violates the defendant’s right to a fair trial under the 6th and 14th Amendments.
State’s Argument
In this case the trial court made the decision to introduce A.B. as representative of the state. But A.B. was also there as a victim under Evid. R. 615(B)(4), which permits her to be there. There was no intent to mislead anyone here. The intention was to figure out how to introduce the victim without being prejudicial.
Before the voir dire portion of the case, the state moved the court to allow A.B. to sit at counsel table, and there was a conversation about how this would work. The state argued that Marsy’s Law and Evid.R. 615(B) permitted A.B. to be present. There was also a discussion about her being the representative of the state, but there was no specific request that A.B. be portrayed as someone who was teaming up with the state.
The state called A.B. as the first witness so the problems involving Evid. R. 615(A) were taken care of; her testimony wasn’t influenced by other people. And there was never any intention to mislead the jury. The state took the least prejudicial option of saying A.B. was the representative of the state because she was sitting at counsel table. The prosecutor in this case discussed this with the jury. The prosecutor told the jury that he did not represent the victim and was not there to tell them how to judge her credibility; that was up to them.
A.B. was not introduced to the jury as the as the victim. That’s the problem the trial court found itself in—how to introduce someone properly to the jury who is sitting at counsel table with the prosecutor. Typically, the people who sit there are introduced as either a party or as the state’s representative. The trial court just did what was traditionally done.
The victim can’t decide she wants to sit at counsel table. The victim, if asked, is permitted to sit at counsel table. The state can advise the court that the state would like the victim to sit a counsel table. The victim can sit there not only as a victim but also to help in the presentation of the prosecution if necessary. Then it is up to the court to decide whether there is any potential prejudice in that happening. While the defense objected at the beginning of the trial to A.B. being present at counsel table, if anything prejudicial had happened during the course of the trial, the defense certainly would have objected.
There is nothing in this case to suggest that the seating arrangement in this case was fundamentally unfair. The jury’s verdict indicates that they considered the credibility of the witnesses and made their decision based on the evidence that was presented at trial. And the jury was given the standard instruction to use their own reasoning and common sense to judge the credibility of every witness who testifies. They were told they were the sole judge of the credibility of the witnesses–not just of the victim, but of everybody that took the stand. The jury in this case deliberated for 4 hours before reaching a verdict.
The victim in this case was not supported by her family. They supported the defendant and maintained a relationship with him. So, when family members took the stand, the state had an opportunity to speak with the victim to cross examine these family members in terms of their biases, and how they felt about Mr. Montgomery so that the jury could reach a conclusion about the truth.
Jurors don’t operate in a vacuum. They understand there is going to be a victim in a case and that the victim is going to testify as a witness for the state. They already understand that the victim is part of the state’s case. Seating the victim next to the prosecutor doesn’t bolster her credibility any more than putting on her testimony on behalf of the state; or any more than letting her sit in the back of the courtroom or behind the defendant. Jurors already know there are adverse positions between the defendant and the victim.
What Was On Their Minds
Roles
If A.B. had not been named a representative of the state and merely introduced as the victim was it permissible for her to sit at the counsel table, asked Chief Justice O’Connor? Later, she commented that the problem was not the adverse relationship between the defendant and the victim, but rather the verification of the victim by the state, as evidenced by the proximity of sitting at the counsel table. Seeing the victim sitting there throughout the trial is very different than the victim sitting behind the rail or in the back of the courtroom or if she only comes in for testimony, she observed.
Even if A.B. had not been named as a representative of the state what was the significance of her being the first witness and then sitting at counsel table for the rest of the trial, asked Justice Brunner? What about her right to confer with the prosecution and to assist the prosecution in prosecuting the case? Since she testifies first, the jury knows exactly who she is. Then she returns to counsel table and she’s not given any title other than representative. But during the trial the jury would be able to observe that the prosecutor could ask her questions. Is that a problem? Doesn’t the state have to prove that any representative is the victim? Is it even fair to introduce such person as the victim? Isn’t it the alleged victim? Didn’t the state request on the record both that A.B. be named as a representative of the state, and that she sit at counsel table?
Isn’t it a common misperception among people who are unfamiliar with the intricacies of the criminal justice system that sometimes they believe that the prosecutor represents the victim, asked Justice Donnelly? He asked the assistant prosecutor if she ever had to explain that the prosecution doesn’t represent the victim but represents the state of Ohio.
Don’t roles become even more confusing when the victim is sitting with trial counsel at the table, asked Justice Stewart? Who gets to decide if the victim can sit at the table? Who gets to initiate the ask? As between the state and the alleged victim or victims, could the victim say I want to sit at the counsel table? What’s the reason for an alleged victim to be sitting at counsel table? To manipulate the system or to further confuse lay people who might be confused about representation? To bolster the victim’s testimony? Or to present some optics that might be beneficial to the state? Since there is an alleged victim sitting at counsel table with the prosecutor the whole time, and the defendant has the right not to testify, isn’t there a bolstering of credibility? At least in appearance?
Justice Kennedy read from the record that in response to a question from the court, the state specifically expressed its intent to designate A.B. as the state’s representative pursuant to E.R. 615(B)(3) and (4), noting that she was a victim in this matter, and that the Ohio Constitution and R.C. 2930.09 gave her the right to be present any time the defendant was present.
State’s Representative
How many times did the prosecutor designate the victim as the state’s representative, and who heard, asked Chief Justice O’Connor? What is a representative of the state of Ohio? What does that mean? Who put that label on the victim?
Could a S.A.N.E. nurse ever be the representative of the state, asked Justice Brunner? Didn’t the state designate for the record that A.B. was the representative of the state?
How does introducing A.B. as the state’s representative vouch for credibility, asked Justice Fischer? Is it the combination of sitting at counsel table and being introduced as the state’s representative?
Being Seated at Counsel Table
Does the record show that the state requested that A.B. be at the counsel table, asked Justice Brunner? Later she noted that a written transcript can’t capture the rolling of eyes or the shaking of a head, so there was no way of knowing how A.B. comported herself while sitting at the table, or whether she did anything untoward. Is it a fair burden on a defendant and his or her counsel to have to patrol the courtroom to watch what someone who’s not typically deemed to be the state’s representative is doing at counsel table?
Does the defendant’s argument fail if the Court were to find that the seating is not improper, asked Justice Fischer?
Being Misleading
When the assistant prosecutor suggested there was never any intent to mislead the jury about A.B.’s role, the Chief responded that intent was not relevant here or necessary to show a party intentionally tried to mislead the jury. Only resulting prejudice need be shown.
Forfeiture/Harmless Error/Structural Error
Justice DeWine noted that Montgomey’s assignment of error in the appeals court was that he was denied his right to a fair trial as guaranteed by the 6th and 14th amendments to the U.S. Constitution when the trial court allowed the alleged victim to remain in the courtroom as the state’s designated representative, noting that nothing was said about being at the counsel table. Was that argument raised in the court of appeals? DeWine went on to say he had looked at the record and saw that defense counsel objected to the prosecutor saying he intended to have A.B. as the state’s witness and to have her sit at counsel table. The trial judge said something like A.B. could sit there for voir dire since there was no other place for her to sit during voir dire and didn’t add anything about the rest of the trial. Was there any other objection? If there is an objection, isn’t it defense counsel’s obligation to make sure it is on the record? Doesn’t the harmless error standard depend on whether or not there was a proper objection?
Were there specific objections made at trial about A.B.’s role asked Justice Brunner? Was the prosecution’s response specific? To invalidate what happened is there any remedy other than structural error? She added that one of her concerns was if the Court were to reverse, should the holding be tailored to this particular he said/she said kind of situation, where credibility is crucial to the state’s case? She asked defense counsel to elaborate on the harmless error/structural error standards. Later she noted there was no curative instruction given to the jury about what A.B.’s role was.
Was there an objection to the title “a representative of the state,” asked Chief Justice O’Connor? Wasn’t the jury instructed that nothing the prosecutor says is evidence?
How it Looks from the Bleachers
To Professor Emerita Bettman
Like a win for Montgomery, although I’m not sure whether it will be via harmless or structural error. Either way, the defense wins. It’s also not entirely clear whether the error as Justice Fischer tried to pinpoint during rebuttal was just introducing A.B. as the state’s representative, just permitting A.B. to sit at counsel table, or the unique combination of the two in this case, especially given the importance of credibility to the state’s case. As the Chief pointed out, the optics were bad, and the relationship just looked too cozy. This was another very intense oral argument, in which the Chief, and Justices Stewart and Brunner, and to a lesser extent Donnelly, seemed most skeptical of the prosecutor’s position. My student contributor Liam McMillan has a much more fulsome analysis.
To Student Contributor Liam McMillin
I went back and forth on which side the Court will end up on. The two parties seemed to be talking past each other, both focused on slightly different questions, and while the justices alluded to the two aspects throughout, it was not until the dying seconds where Justice Fischer laid out what I think will be the key question: in this case, does the fact that the victim was introduced as the State’s representative and was allowed sit at the table with the prosecutors yield the error, or can they be analyzed separately? I think the Court will split the questions in its decision, holding that a (1) victim is not a proper representative of the state, and (2) having the victim sit at counsel table does not necessarily vouch for the credibility of the witness, but does create confusion. (Justice DeWine will likely argue that the only question actually on appeal is (1), and the court should not decide (2) in this case.) In the end, I warily predict a retrial for Montgomery.
Montgomery’s attorney, Addison Spriggs, insisted that these two parts be thought of in concert. Her argument seemed to be that the combination of the victim being the State’s named representative and being allowed to sit with the prosecutor prejudiced the jury, but, I found, was unable to support this combination-theory adequately. Ms. Spriggs was able to convince the Court that it was improper for the trial court to allow the victim to be the State’s representative but seemed too tied to her initial argument to recognize this victory. Justice Brunner and Chief Justice O’Connor both, at times, seemed to extend a hand to Ms. Spriggs, opening the door for her to treat the issues separately, but each time, Ms. Spriggs refused to do so. In refusing to separate the designation from the seating arrangement, I think Ms. Spriggs worsened her chances, but potentially not enough so to lose the appeal entirely.
For the State, Kristine Beard conceded, before saying another word (with prompting from Chief Justice O’Connor), that a victim is not a proper state representative but pushed blame on to the trial court judge for allowing the victim to be designated as such, rather than letting it fall on the prosecutors for initiating the designation. As Chief Justice O’Connor would remark later in Ms. Beard’s argument, it does not matter if the prosecution “intentionally misled” the jury, the question is whether the jury was prejudiced, intentionally or not. Justices Donnelly, Stewart, and Brunner, and Chief Justice O’Connor, all seem to agree that allowing the victim to sit at counsel table furthers the already confusing relationship between victim and State, and could prejudice the jury. Justice Stewart had no patience for Ms. Beard’s implication that the prosecutors did not initiate having the victim join them.
I do think the Court will find in favor of Montgomery in this case, but I am curious to see what standard the Court will apply, and whether the nature of this case—where the case is based primarily on the testimony of the victim, and therefore on the victim’s credibility—will yield a more pointed or specific conclusion. From the bleachers, I think the Court will hold, definitively, that a victim cannot be a representative of the state. This alone will likely be enough for Montgomery to be given a new trial. I am less sure that the Court will rule specifically on whether Marsy’s Law permits a victim to sit with, and confer with, the prosecution throughout trial.