Via Dr. Sunwolf (who wanders around the internet as @JuryTalk), the Ohio Supreme Court reversed a homicide conviction because the trial judge refused to dismiss a deaf juror from the panel for cause in State v. Speer.

During voir dire (pretrial examination of prospective jurors), prospective juror Linda Leow-Johannsen informed the court that she had a hearing disability that prevented her from understanding  spoken words unless she could read the lips of the speaker, and that she would be able to accurately perceive the questioning and testimony of witnesses if the person who was speaking faced her. Leow-Johannsen also indicated that she would “have a problem” understanding the content of an audio tape. Attorneys for Speer moved that Leow-Johannsen be disqualified from serving on the jury “for cause,” i.e. without using one of Speer’s peremptory challenges, because of her hearing impairment. The judge denied the motion to dismiss for cause and Leow-Johannsen was seated on the jury. During the trial, at the time the  audio tape was played for the other jurors, the court arranged for Leow-Johannsen to move to the court reporter’s table and view a real-time transcript of the call on a monitor as the reporter typed it.

Writing for the majority, Justice O’Donnell pointed out that the Supreme Court of Ohio has been a leader in efforts to improve the accessibility of  courts to persons with disabilities; has adopted specific language in its Rules of Superintendence stating that “[t]he opportunity for jury service should not be denied or limited on the basis of  … disability;” and since 2003 has implemented an aggressive statewide Interpreter Services Program that trains and equips local courts to accommodate the special needs of hearing-impaired litigants, witnesses and jurors.  

Nevertheless, in this case, Justice O’Donnell wrote: “Despite the efforts of the trial court to accommodate Leow-Johannsen, Speer did not receive a fair trial. Regrettably, the accommodation made by the trial court in this instance could not help Leow-Johannsen to effectively perceive or evaluate Speer’s demeanor, detect any slurred speech or the lack of it, or consider the loudness or softness of his voice, the patterns of his speech, his tone – whether excited, calm, or passive – or the inflections of the voices on the 9-1-1 tape.  … Here, both the state and the defense relied on the 9-1-1 tape as evidence relevant to whether Speer committed the charged offenses. The state suggested that Speer’s ‘calm tone’ and his ‘demeanor on the 9-1-1 tape’ provided evidence of his guilt.  Speer’s defense counsel denied the state’s contention that Speer had operated his craft under the influence of alcohol by pointing out that the 9-1-1 tape did not show Speer slurring his speech at the time of the call.” 

That the court recognized that the right of a defendant to a qualified jury trumps the theoretical right of a citizen to sit in judgment of another, is good, in the sense that it could easily have upheld the conviction with a few minor changes in the appearance of trial strategy.  And yet, the court’s need to appear politically correct, by touting its effort to be “a leader in efforts to improve the accessibility of  courts to persons with disabilities” when it comes to seating them as jurors demonstrates how this is a time bomb waiting to explode.

At the outset, let me be clear: I do not accept the premise of reverse Batson.  There is no “right” to be on a jury.  The Constitution is not a two way street, but protects the rights of the individual against the power of government.  The defendant is not the government, and has the right to toss anyone off a jury for any reason.  The defendant is entitled to a jury.  The potential juror is constitutionally entitled to nothing.  If a person lacks the capacity, in any way, shape or form, to serve as a juror, then the person should be dismissed for cause.  Political correctness has no place in the jury room.

During the course of trial, one can never be certain what cognitive “skills” will be required of the jury.  The ability to hear?  To sit still? To speak the language of the witnesses, lawyers, court, fluently?  What about the ability to comprehend rational thought and argument?  At what point during a trial does a cognitive deficit in a juror go from being a personal issue to a deprivation of the defendant’s constitutional rights?

This point hurts the feelings of many advocates, strenuously supporting opportunity for those who are challenged.  I agree with them completely, and fully support the need for accommodation of disabilities.  In almost every aspect of endeavor, except not jury service.  I’ve caught enormous grief for my position, from those who argue that people with disabilities (or challenges, or whatever word is used to characterize the condition) can do anything anyone else can do, and shouldn’t be denied their right to fulfill the same role in society as anyone else.  They similarly point out that everyone has some challenge, and it’s wrong to discriminate against those with more obvious or overt issues. 

I get it.  I really do.  And I agree with you. Except when it comes to jury duty.  And maybe ballet dancing, but this post isn’t about ballet.

The harsh reality is that something has to give.  Either an element of a trial is missed by a juror, to the defendant’s potential detriment, or a juror with a disability (though I note that Deaf people do not necessarily agree that they are disabled) is denied a seat on a jury.  In this case, the juror recognized that she might be unable to serve.  Of course, that may have been used as her ticket off the jury.  Oddly, some people would prefer not to sit as jurors.

Thus, it comes down to which interest prevails.  On the one side is a defendant’s right to a jury capable of performing every task that might be required.  On the other is the desire of an impaired person to be treated like anyone else, even if it requires us to pretend that the disability doesn’t exist. 

In this instance, the defendant’s right to a fair jury must prevail.  Qualifications to sit on a jury cannot take a back seat to any secondary societal concerns, no matter how righteous they may be under other circumstances,  The Ohio Supreme Court’s need to qualify its bona fides as a leader in accommodation reflects a wonderful concern for the rights of the disabled, and disturbing lack of recognition of the rights of defendants.  Both cannot be simultaneously accommodated, no matter how badly we wish it to be otherwise.