The state’s highest court will hear oral arguments in a case in which a man convicted of kidnapping and rape and sentenced to 10 years in prison said his right to a fair trial was violated when the victim was allowed to sit next to the assistant county prosecutor during jury selection.
Theodis Montgomery appealed his conviction to the Fifth District Court of Appeals, who affirmed the ruling of the trial court.
Marsy’s Law was passed in Ohio in 2017 as a constitutional amendment, and expanded the definition of a victim, to include adult parents of a child victim, for example. This allowed for an expansion of victims rights protections.
Those rights include a requirement that law enforcement, prosecutors and courts inform victims of their rights, just as they do those accused of a crime.
They also include the right for a victim to be told of and be present at public proceedings related to their case.
Montgomery’s attorney agreed that the victim had a right to be at the trial proceedings, however they argued that Marsy’s Law did not extend the right to sit next to the prosecutor during jury selection to the woman.
“These logistical arrangement (sic) and practices by a trial judge of sitting an alleged victim a counsel table with the state and introducing them as state representatives will impair this presumption of innocence guaranteed by the due process clause of the 14th Amendment and destroy criminal defendant’s rights to a fair trial,” Montgomery argued in his appeal to the Ohio Supreme Court.
Montgomery’s arguments against the placement of the victim with the prosecutors were supported by the Ohio Association of Criminal Defense Lawyers, who called for the reversal of Montgomery’s conviction and a new trial.
The OACDL filed a brief with the Supreme Court saying the practice of placing the victim on the prosecutor’s table “served to enhance the (victim’s) credibility in a case in which her credibility was decisive.”
The association said the entire case made by the prosecutor was dependent on the victim, and placing her at their table was not just an exercising of rights.
“The state’s shifting justifications for seating the complainant at the trial table serves only to obscure the real one: to enhance the credibility of the (victim),” wrote attorney Russell S. Bensing, on behalf of the association.
With this case, the OACDL said the state Supreme Court can clarify Marsy’s Law by “instructing the lower courts that whatever enhanced rights Marsy’s law deservedly extends to victims of crime, it does not include the ability of the prosecutor to present the (victim) as being part of the prosecution team.”
The Ohio Supreme Court is scheduled to hear oral arguments on the case on Jan. 27.
