On June 30, 2021, the Supreme Court of Ohio will hear oral argument in State of Ohio v. James R. West, 2020-0978. At issue in this case is whether a trial judge’s line of allegedly biased questioning constitutes structural error requiring automatic reversal.

Case Background

On October 2, 2017, James West was in a convenience store in Columbus. After a perceived slight while in the store, West threatened Patrick Akers, the victim, to a fight in the store parking lot. While it is unclear who started the fight, West and Akers brawled. When separated, one of West’s friends handed West a gun. West fired the gun and shot Akers in the leg twice. West fled the scene in a car. An investigation of witnesses and video evidence led the police to West. When arrested, West waived his Miranda rights and denied being the shooter, but security camera footage showed West as the shooter. On November 6, 2017, West was indicted by the Franklin County Grand Jury on two counts of felonious assault and one count of having weapons under disability.

At trial, West took the stand against the advice of his attorney. West testified that he was shooting at the ground and that his actions were in self-defense. During West’s testimony, Franklin County Common Pleas Court Judge Mark Serrott interjected multiple times. While on direct, Judge Serrott asked West, “[i]s that you with the gun, shooting?” For the first time in his testimony, West admitted to firing a gun. Again, during the direct examination, Judge Serrott corrected West’s testimony that Akers was going to rob West. Judge Serrott asked, “He didn’t say he was going to rob you. You thought that’s what he was implying by saying the ‘N’ word, and I’m going to take your money?”

The judge again interjected during the cross-examination and asked West, “[y]ou lied to the police, didn’t you?” and “[y]ou didn’t tell them it was self-defense at that time. It’s just that simple, right?”  

During the jury instructions, the judge instructed the jury to disregard any bias they might have perceived from his questioning: “The next part is important. Sometimes I ask questions. However, any question that I ask or any tone in my voice, because I can get aggravated, don’t take that as any indication of how I think the case should come out.” Judge Serrott went on to say, “[h]ow I think a case should come out has no bearing on anything. Don’t place any emphasis on any questions I asked, and don’t put any emphasis on why I asked a question. It doesn’t matter. What matters is your evaluation. If I did anything, disregard it.” The defense did not object to any of the judge’s questions at trial.

The jury found West guilty on both counts of felonious assault with gun specifications. The court issued a bench verdict finding West guilty of having weapons under disability. The following day at sentencing, the judge stated the following:

THE COURT: “And I think you lied on the stand. I do, sir, I’m sorry. I think you absolutely lied and changed your story. I get it, nobody wants to do 12 or 13 years. People do lie when they’re facing heavy time. You’re out there thugging. Maybe you’re not a thug. I don’t know.

“I know you have been in front of me before, and you only got a year. Maybe if I had given you more time, this young man wouldn’t have been shot. You know, I give people breaks, and you’ve had a break in front of me.

***

“You went to fight. I think you lied on the witness stand. You’re carrying a gun, and you have a prior gun case.”

The trial court sentenced West to 12 years’ incarceration. West appealed.

The Appeal

Pertinent to his Supreme Court appeal, West argued that the trial court’s questions during his testimony demonstrated bias and constituted structural error requiring automatic reversal.

In a 2-1 decision authored by Judge Laurel Beatty Blunt and joined by Judge Susan Brown, the Tenth District Court of Appeals held that, even if the trial court’s questioning was intemperate, the trial court did not demonstrate sufficient bias to constitute plain error, which is the appropriate standard of review. The appellate court also stated that the trial court’s questioning was appropriately limited, and any showing of bias was fixed by the curative jury instruction, which jurors are presumed to follow. Additionally, the majority stated that the judge need only exhibit acceptable, not model behavior.

The dissent, authored by Judge Frederick Nelson, reluctantly disagreed with the majority’s finding on the issue of bias, and would find structural error in the case. Judge Nelson stated that the judge is supposed to be a neutral arbiter of the trial, not take on the role of an assistant prosecutor. In this case, the trial court asked West approximately 15-17 questions. Judge Nelson stated that the trial court’s questions were not scrupulously limited and caused bias which was not remedied with the curative instruction. Regardless of the amount of evidence against him, West is entitled to a fair jury.

Key Statutes and Precedent

Evid.R. 611(A) (“The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.”)

Crim.R. 52(B) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”)

Quercia v. United States, 289 U.S. 466 (1933) (“In commenting upon testimony [the trial court] may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it. His privilege of comment in order to give appropriate assistance to the jury is too important to be left without safeguards against abuses. The influence of the trial judge on the jury is necessarily and properly of great weight and his lightest word or intimation is received with deference, and may prove controlling.”)

State ex rel. Wise v. Chand, 21 Ohio St.2d 113 (1970) (“In a jury trial, where the intensity, tenor, range and persistence of the court’s interrogation of a witness can reasonably indicate to the jury the court’s opinion as to the credibility of the witness or the weight to be given to his testimony, the interrogation is prejudicially erroneous.” Additionally, the court’s questioning should be “scrupulously limited” to prevent the jury from ascertaining the court’s opinion.)

United States v. Young, 470 U.S. 1 (1985) (Under Rule 52(b), an appeals court must use the plain error standard of review where a prosecutor makes statements encouraging the jury to “do its job” and the defense fails to make a timely objection.) 

Arizona v. Fulminante, 499 U.S. 279 (1991) (There are two types of errors: trial errors and structural errors. A structural error is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.”)

Johnson v. United States, 520 U.S. 461 (1997) (The Supreme Court held that the court’s action does not constitute plain error where the petitioner failed to timely object to the trial court’s mistake concerning whether the materiality of a false statement must be decided by a jury or a judge. The Court stated that “the seriousness of the error claimed does not remove consideration of it from the ambit of the Federal Rules of Criminal Procedure.”)

State v. Baston, 1999-Ohio-280 (“In absence of any showing of bias, prejudice, or prodding of a witness to elicit partisan testimony, it will be presumed that the trial court acted with impartiality.”)

State v. Barnes, 94 Ohio St.3d 21 (2002) (Plain error will justify reversal only if: (1) there was error; (2) the error was plain at the time the error was committed; and (3) the error affected substantial rights.)

State v. Fisher, 2003-Ohio-2761 (Structural errors are “per se cause for reversal.”)

State v. Perry, 2004-Ohio-297 (The Supreme Court of Ohio declined to find structural error where the trial court failed to maintain written jury instructions with the “papers of the case” and the defense failed to object at trial. The Court stated: “This caution is born of sound policy. For to hold that an error is structural even when the defendant does not bring the error to the attention of the trial court would be to encourage defendants to remain silent at trial only later to raise the error on appeal where the conviction would be automatically reversed.”)

State v. Wamsley, 2008-Ohio-1195 (“We believe that our holdings should foster rather than thwart judicial economy by providing incentives (and not disincentives) for the defendant to raise all errors in the trial court—where, in many cases, such errors can be easily corrected.”)

Puckett v. United States, 556 U.S. 129 (2009) (Structural errors do not automatically satisfy the plain error standard.)

Sate v. Davis, 2010-Ohio-5706 (Structural errors cannot be analyzed with a harmless error standard of review.)

State v. Rogers, 2015-Ohio-2459 (“[W]e rejected the notion that there is any category of forfeited error that is not subject to the plain error rule’s requirement of prejudicial effect on the outcome.”)

State v. Cepec, 2016-Ohio-8076 (“[T]he threshold inquiry is whether, with reference to a range of acceptable, though not necessarily model, judicial behavior, the [trial] court’s conduct falls demonstrably outside this range so as to constitute hostility or bias.”)

Weaver v. Massachusetts, 137 S.Ct. 1899 (2017) (“Thus, in the case of a structural error where there is an objection at trial and the issue is raised on direct appeal, the defendant is generally entitled to ‘automatic reversal’ regardless of the error’s actual ‘effect on the outcome.’”)

State v. Skerkavich, 2019-Ohio-4973 (The trial court exhibited bias when it asked a defendant-witness 85 questions during cross-examination compared to the prosecutor’s 22 questions.) 

State v. Jones, 2019-Ohio-2134 (“A jury is presumed to follow a trial court’s instructions.”)

Votes to Accept the Case

Yes: Chief Justice O’Connor, Justices Fischer, Stewart, Donnelly, and French

No: Justices Kennedy and DeWine

West’s Proposition of Law Accepted for Review

A criminal defendant’s Due Process right to a fair trial under the United States and Ohio Constitutions is violated when the trial court engages in questioning that shows bias against the defendant. Such error is subject to a structural error analysis and is grounds for automatic reversal.

State’s Proposed Counter-Proposition of Law

A claim of structural error is reviewed under the plain error standard when the asserting party failed to object to the claimed error in the trial court.

West’s Argument

In general, there are two types of constitutional errors: trial errors, which are reviewed under a harmless error standard, and structural errors, which are granted automatic reversal. This case constituted a structural error where the trial court completely failed in its role as the neutral arbiter of this case. The trial court violated its duty of impartiality in its questioning of West during his testimony.

Admittedly, trial judges are not held to a model standard when interjecting questions. However, defendants are entitled to a fundamentally fair trial, and a biased judge violates a defendant’s constitutional right to due process. This fundamental error constitutes a structural error and requires reversal. According to State v. Cepec, the threshold inquiry is whether the “court’s conduct falls demonstrably outside this range so as to constitute hostility or bias.” This case is easily distinguishable from the facts of Cepec, where the trial court was restrained and balanced in its interjections. In Cepec, the trial judge questioned both sides equally and thus did not risk a showing of bias. That was not the case here, where the trial court’s conduct was clearly biased.

According to State v. Baston, “[i]n absence of any showing of bias, prejudice, or prodding of a witness to elicit partisan testimony, it will be presumed that the trial court acted with impartiality.” That is not the situation presented by this case. Here, the trial court’s statements were of the “biased or unprofessional” nature contemplated by Cepec. The trial judge admitted during the jury instruction that he was “aggravated” during the testimony. Merely stating that the jury should disregard his questions does not change the inherent bias the questions introduced into the courtroom. Therefore, it cannot be presumed that the trial court acted with impartiality because the bias was obvious.

Structural error requires automatic reversal without an inquiry into prejudice. The errors presented by the trial court’s biased questioning fundamentally impacted the functionality of this trial. It is the jury’s responsibility to determine the credibility of a witness and the weight that should be given to his testimony. When the trial court’s interjections are intense and persistent, the jury is absorbing the perspective of the judge rather than deciding the facts for itself. A court’s questioning must be “scrupulously limited” and must be conducted in an “impartial manner” so as to avoid improperly influencing the jury.  

In this case, the trial court’s questioning of West revealed to the jury the trial court’s opinion as to West’s credibility. The trial court impeached West concerning several of his statements, including whether he was the person shooting and whether he reasonably believed he was being robbed. West’s belief that he was being robbed was central to his defense and this partisan questioning unfairly cast doubt on that testimony. Regardless of the amount of evidence mounted against West the trial court should not have interjected so many questions as to obviously lend its opinion to the jury. According to Quercia v. United States, judges’ statements can easily influence juries, and the slightest show of an opinion in the case could “prove controlling.” The judge in this case was not a neutral arbiter but an assistant to the prosecutor in its case against West.

Defendants are entitled to a new trial where judges prejudicially influence the trial with unfair questioning. The judge’s partisanship in this case affected the very framework of the trial and was thus a structural error. Structural errors are entitled to automatic reversal, regardless of whether the error impacted the trial’s outcome.

State’s Argument

West argues that structural errors somehow evade both harmless error review and plain error review and should not be subject to appellate review apart from automatic reversal. Structural errors are never reviewed under the harmless error standard. If the appellant objects to structural error at trial, the error is subject to automatic reversal on appeal. However, where the appellant fails to object to the error at trial, the appellant does not properly preserve the error. The failure to object makes the structural error subject to plain error review. Though West fails to mention it in his brief, his defense counsel failed to make an objection at trial to the trial court’s supposedly biased questioning. As a result, West bears the burden to prove that the trial court committed plain error. West has failed to do this.

To reverse a trial court’s ruling based on plain error, West must prove the following: (1) there was an error; (2) the error was plain at the time the error was committed; and (3) the error affected his substantial rights. The plain error standard requires a showing of a clear outcome determination. Additionally, structural errors do not automatically satisfy the plain error standard.

West fails to establish any of the criteria. First, courts are permitted to question witnesses. Trial courts must be cautious in their questioning, and the questioning should not indicate the trial court’s opinion as to the credibility of the witness. The trial court’s questions should be reviewed under an abuse of discretion standard. According to the rules of evidence, trial courts can reasonably control the mode of interrogating witnesses so as to make the interrogation effective, avoid needless consumption of time, and protect witnesses from harassment or undue embarrassment.

West did not object to either of the questions he takes issue with on appeal. Even the Rules of Evidence acknowledge the issue of counsel objecting to a court’s questioning in front of the jury and state that the objection may be made at the next opportunity when the jury is not present. Again, West completely failed to object, either in front of the jury or not.

West only takes issue with two of the 16 questions the court asked of him. First, West argues that the trial court was biased in asking him to state that he was the person in the video shooting the gun. It’s unclear why West places so much importance on this. The surveillance video and other evidence offered by the prosecution made it obvious that he was holding the gun. The fact that this was his first time stating that fact aloud to the court made no difference. Rather, this fact was essential to his affirmative defense: self-defense. West’s own case relied on this statement and the trial court’s elucidation of his testimony did not impact his credibility and was not prejudicially erroneous.

Second, West argues that the trial court’s statement of, “[y]ou lied to the police, didn’t you?” demonstrated bias. West takes this statement out of context. The trial court’s question did not draw anything from West that wasn’t already made obvious by the evidence presented. Additionally, the trial court was likely trying to save time by preempting the question the prosecution was going to ask. Other evidence in the record indicates that the trial court was clearly concerned with keeping the trial running efficiently. This question was merely the trial court abbreviating an otherwise longer cross-examination. Further, West’s counsel conducted voir dire on the jurors regarding their attitudes on lies. West lying to the police was not new information to the jury. The evidence presented to the jury prior to West taking the stand made it abundantly clear that West had lied to the officers.

Under a plain error analysis, West cannot establish that the trial’s outcome would have been different but for the trial court’s questions. The two questions that the trial court asked, and West’s corresponding answers, do not establish facts that were not already clear to the jury. The evidence overwhelmingly indicates that West was the shooter and that he lied to the police. The trial court’s questions to that effect made no obvious difference in this case. Thus West cannot establish plain error.

Even if there was prejudicial questioning by the trial court, the court’s instructions to the jury were curative. A jury is presumed to follow the court’s instructions. West argues that the trial court’s statements during the instruction (“because I can get aggravated, don’t take that as any indication of how I think the case should come out”) underscores the court’s bias. This isn’t the case. At the end of the instructions, the trial court said, “[i]f I did anything, disregard it.” The trial court’s statement was conditional and did not indicate bias.

Finally, even if this Court holds that the plain error standard of review does not apply in this case, the complete record does not support a finding of bias by the trial court. West points out only a few instances of judicial intemperance, which should not be confused with bias. However, there are many other times throughout the record where the trial court intervened on West’s behalf. This was evident during voir dire and cross examination. There were at least three instances during cross examination where the court asked the prosecution to move on to protect West’s credibility and avoid embarrassment. The trial court’s questioning of West was fair and balanced. Judges are not expected to exhibit model conduct throughout the trial. When viewed in its entirety, the record is clear that the trial court did not act unfairly towards West.

Amicus in Support of West

Ohio Association of Criminal Defense Lawyers

The Ohio Association of Criminal Defense Lawyers (“OACDL”) seeks to educate the public as to the role of the criminal defense lawyer in the justice system, as it relates to the protection of the Bill of Rights and individual liberties. OACDL argues that while courts have the authority to intervene sparingly during a trial, the role of the trial court is to act in an unbiased manner. When a judge fails to remain neutral, the fairness of the trial is compromised. In this case the trial judge acted in a biased manner, depriving the defendant of a fair trial. The jury instructions could not cure the structural error in the trial. As a result, this Court should reverse West’s conviction and remand the case for a new trial.

Student Contributor: Maggie Pollitt