“What’s a jury to think if the judge is acting in this way and there’s no objection?”

Chief Justice O’Connor, to counsel for West

“You’re not saying that we can never notice structural error without an objection, are you?”

Justice Brunner, to the assistant county prosecutor

On June 30, 2021, the Supreme Court of Ohio heard 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, the trial judge interjected multiple times. While on direct, the judge 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, the judge corrected West’s testimony that Akers was going to rob West. The judge 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?”  The defense did not object to any of the judge’s questions at trial.

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.” The judge 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 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 in prison. 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, 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 dissenting judge reluctantly disagreed with the majority’s finding on the issue of bias and would find structural error in the case. The dissent 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. The dissenting judge 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.

Read the oral argument preview here.

Key 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.)

State 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.”)

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.

At Oral Argument

Arguing Counsel

Joseph R. Landusky II, Columbus, for Appellant James R. West

Michael P. Walton, Assistant Prosecuting Attorney, Franklin County, for Appellee State of Ohio

West’s Argument

Every person is guaranteed the right to a trial by jury and the right to due process and fundamental fairness. The most important figure in the administration of justice in a criminal trial is the judge. It is well established that his or her role as a neutral detached observer is an essential requirement of the administration of justice. Of all the participants in a jury trial the judge is by far the most important individual figure. This case was presided over by a judge who was very antagonistic toward the defendant, and an objection to his questioning would probably not have had any effect. Whether or not an objection was made, it cannot un-ring the bell of a judge who calls the defendant a liar. A lawyer is placed in a very difficult situation in a trial about whether to object or not. Raising an objection runs the risk of getting on the wrong side of the most powerful person in the trial. What must a juror be thinking when a person in a black robe sitting above everybody starts questioning the credibility of a witness in a jury trial?

The jury looks at this judge who is the key professional in the room and they are certainly very easily going to adopt his point of view regardless of whether there was an objection or not. So, the question becomes was this a structural type of error and the defense argues that it was. The judge in this case was so involved with the cross examination, with teaming up with the prosecutor, that Mr. West did not get his due process rights to a fair trial. Even with a plain error analysis he did not receive due process. The defense cannot help but think that the judge’s questioning played a role in the jury’s decision when they deliberated.

State’s Argument

Finding that plain error analysis does not apply in this circumstance would create a perverse incentive for a defendant to refrain from objecting to what he believes to be fundamental serious error.  Existing precedent requires the opposite. Litigants must be required to seek a fair trial the first time around instead of sitting on their hands in the hope of gaining a tactical advantage later on. Even claims of structural error must be preserved for direct appellate review in order to entitle a defendant to automatic reversal.

The trial judge gave a curative instruction in this case which the jury is presumed to follow. The instruction went above and beyond the standard instruction. What the judge did was attempt to short circuit the cross examination.  The trial court was simply trying to bring everything to a swift conclusion. And it is consequential that neither the prosecutor nor defense counsel objected to the judge’s questions at the time.

Ultimately the burden of proving plain error is on the appealing party. Certainly, an objection could have and probably should have been raised—that’s part of the issue here. The contemporaneous objection requirement is extremely important in our legal system.

There are four reasons why it is important to raise an objection. It prevents a defendant from gaming the system, it allows the trial court to adjudicate the claim and create a factual record that facilitates appellate review, it allows for some errors to be corrected immediately through curative instructions, and if an error is so serious it can’t be cured, the trial court can grant an immediate remedy such as a mistrial.

There is no standard of review known as the structural error standard of review. There are errors that are so serious that they constitute what the U.S. Supreme Court has called structural errors, but there is no standard of review known as structural error review. So, you don’t simply get to say I have a biased trial judge and have an appellate court presume that the trial court was biased and automatically reverse the case.  A party must object and preserve the error for review, otherwise that party is stuck with the plain error standard because otherwise it creates the incentive not to object when the error could possibly be corrected.

The defendant failed to object in this case. As this court has held, that means the plain error standard of review applies. Counsel has a duty to raise an objection to what counsel believes is objectionable behavior or be stuck with plain error review and must show either clear outcome determination or reasonable probability of a different outcome, depending on which standard of plain error this court is going to apply.

The fact that there wasn’t an objection from either side cuts against the fact that the judge’s intervention was egregious.  If there is bias, it should be jumping off the page. It should not require interpretation. The state cannot say whether this was standard operating procedure for this particular judge. Some judges take a more active role than others. Some sit back more than others. This court has held that a trial judge is presumed to follow the law and not be biased. So, the appearance of bias or prejudice must be compelling to overcome those presumptions.

The biggest problem for the defendant in this case is the two key questions that were asked by the trial court were essentially statements of undisputed fact. First, the defendant was caught on surveillance video shooting at the victim in this case and second the defendant did lie to investigating law enforcement officers. Simply because the judge asked the particular questions that he did does not reasonably indicate to the jury the judge’s opinion of the defendant’s credibility or the weight to be given to his testimony. It was simply clarifying two issues of fact. There was also no dispute here that Mr. West did lie to the police, so the judge’s question on that was simply factual.

The state does not believe this court should create a bright line rule saying the judge cannot ask any questions at all.

What Was On Their Minds

The Judge’s Questioning

Were there any objections to any of the judge’s questions, asked Justice Fischer? Can’t the attorney make an objection at the next opportunity outside the presence of the jury? Did the judge cross the line when he called the witness a liar?

Wasn’t some of the more damaging testimony elicited from the trial court judge’s questioning, asked Justice Stewart?  Wasn’t the most incriminating testimony what was given in responses to the judge’s cross examination of the defendant while he was on direct examination?

Wasn’t the judge trying the case for the prosecutor, asked Chief Justice O’Connor? Is this standard operating procedure for this judge? If we are comparing the performance of the judges, would he be at the top of the list as far as taking an active role? Didn’t he make a statement as to the defendant’s credibility?

Can’t we look at the questions the trial judge asked and determine for ourselves whether this defendant was getting a fair trial with an impartial judge, asked Justice Brunner? What if the judge is so bad that the concern is that if you say anything it is only going to make the situation worse? Why does the judge have to cross examine someone on the record, especially in front of the jury? Why can’t the judge put that on the record outside the hearing of the jury?

Assume hypothetically, that the judge did not ask any of the questions he asked in this case and right before the instructions he said, “you are about to go back and make your decision, and as an aside I believe the state proved its case, but don’t take that as my opinion.” Would that be structural error, asked Justice Donnelly? Would that require an objection to preserve it? Wouldn’t it be a valuable rule coming from this court that told trial court judges throughout the state that during jury trials, substantive questions of cross examinations of either side are off limits?

Failure to Object

if you don’t object and there is structural error, can’t the defense lawyer or any lawyer just hide in the weeds and not bring it to the court’s attention, asked Justice Fischer?

We all know if you don’t establish a record and you don’t protect your client with objections when appropriate you are tying our hands on appeal, commented Chief Justice O’Connor. What’s a jury to think if the judge is acting in this way and there’s no objection to it?

Isn’t simply focusing on the lack of an objection denying the realities of what defense lawyers have to do when dealing with a judge in this case who appears to have gone out of his role as a neutral and started cross examining a defendant before the prosecutor did, asked Justice Donnelly? Every defense lawyer has the right to file an affidavit of disqualification, but a lot of them don’t because it just isn’t practical to do that to a judge you practice in front of, he added.

Hypothetically let’s assume there was an objection that the trial judge would then have to rule on regarding his own questions, said Justice Stewart, and let’s say the judge said, as he did at the end with curative instructions, you’re right, I sustain that objection, I overstepped, I should not have asked these things.  Then is there a problem here? Why didn’t the prosecutor object? She added that the jurors can’t start asking questions themselves from the jury box. Objecting by the lawyers would mean they would both have to do something contrary to the one person in the room who rules the roost, namely the judge, she noted.

Is it ok for the prosecutor who is also an officer of the court to just sit on his hands, asked Justice Brunner?

The Defendant’s Testimony and the Evidence Against Him

It seems to me the issue was self-defense and didn’t the defendant’s testimony on the stand disprove that theory, asked Justice DeWine?

Take the judge’s questioning out of the analysis, said Chief Justice O’Connor.  The other evidence that was presented against the defendant was a video which showed him shooting a gun. Was he the only one with a gun? Is there a link between the defendant’s gun and the bullets that ended up in the victim’s leg? The jury had the whole video to look at to see the interaction between the victim and the defendant. Was the video supportive of self-defense or not?

Curative Instructions

How did the curative instruction occur in this case, asked Justice Donnelly?  Didn’t the trial judge go beyond the general instruction and specifically reference his own questioning? Why did the judge do that if he didn’t feel like he’d stepped over the line?

Structural Error

If this was structural error, does it really matter whether the state had a decent case or not, asked Justice Donnelly?

Had the objection been raised would there be structural error and automatic reversal asked Justice Stewart?

Can we notice structural error without an objection asked Justice Brunner? Did the judge prod the witness in this case? Is prodding a witness being impartial?

Plain Error

Even if it is a structural error don’t we still have to apply plain error review, asked Justice DeWine? The U.S. Supreme Court has held that for an unobjected to structural error you still have to apply plain error review.  If we do plain error review in this case, how is there plain error?

How it Looks from the Bleachers

To Professor Emerita Bettman

Like a win for West despite the fact that the assistant prosecutor gave the more polished argument. The bench was very hot on this one and really zeroed in on the trial judge’s questions, expressing their concerns about him seeming to be assisting the prosecutor. Defense counsel would certainly have made his life easier had he objected to the court’s questions, and he never really offered a satisfactory reason for why he didn’t. While it is undeniably stressful and unpleasant to object to a judge’s questions when appropriate, which it was here, trial counsel must do so in the best interest of his client. Failure to object puts us in the land of plain error, but I think West will be able to show his substantial rights were affected here.  And having a biased trial judge is one of the grounds for structural error. Chief Justice O’Connor really got on the assistant prosecutor when he said the judge was just trying to short circuit the process and bring the trial to a swift conclusion. She rather caustically asked what else the judge had to do except try this case, which was his job. Also, I don’t think the curative instruction cured the problem in this one.  

To Student Contributor Susana Tolentino

Justice Fischer and Chief Justice O’Conner started by asking the appellant’s counsel, Joseph R. Landusky II, about the fact that no objections had been raised at the trial level and then commented that without an objection the error had not been preserved; thus, the courts hands were now tied on appellate review to the plain error standard. This line of questioning would portend a loss for the appellant, West. However, the tone of the Justices took a turn and in the end points to a win for West.

 Justice Fischer, changing tone, asked Michael Walton, who represented the state, whether he believed the trial judge crossed the line when he called the witness a liar. Walton responded that the trial judge did not directly call him a liar and that the questioning was born from a desire to “short circuit” the examination to jump to a swift conclusion. Interrupting Walton, Chief Justice O’Conner said, “so in other words he [the trial judge] is trying the case for the prosecutor.” As O’Conner made this remark Justices Kennedy and Stewart nodded in unison.

Following this exchange Walton reasoned the two attorneys present at the trial must have decided the questioning was not objectionable because neither objected. Justice Stewart countered this argument by supplying potential reasons why the attorneys may have hesitated to make objections during the trial – a topic also broached by Justice Donnelly – and said that to make an objection would have been to go directly against the person who “ruled the roost” and potentially against a judge who the attorney may be in front of in the future. Justice Brunner joined in and pointed to State v. Baston to say that when a judge is not impartial you do not have a fair trial and that is a given.

After an impassioned discussion on the proper role of a trial judge, Landusky began his rebuttal only to be interrupted by Justice DeWine, who pointed out that the precedent set by the U.S. Supreme Court and the Supreme Court of Ohio requires that the reviewing court apply the plain error standard to find a structural error grounds for a reversal when an objection was not raised at the trial level. I believe the court will follow precedent and apply the plain error standard. However, contrary to the state’s argument that plain error is not met, this Court will use State v. Baston and State ex. rel Wise v. Chand to find the three prong standard is met: the questioning exhibited by the trial judge was biased and amounted to an obvious error whose effect on the jury was prejudicial to the substantial rights of the defendant.