COLUMBUS - In a case watched closely by advocacy groups for the disabled, the Ohio Supreme Court yesterday pondered whether a juror can be disqualified from a case because of a hearing impairment.
Scott A. Speer, of Fairlawn, was tried for murder in Ottawa County in the 2002 drowning of Jim Barnett, 40, of Barberton, who drowned after apparently falling from Mr. Speer's speedboat near Catawba Island on Lake Erie during a small-craft advisory. The evidence included an audio tape of an early morning 911 call made by Mr. Speer.
The defense tried to have Linda Leow-Johannsen disqualified from the jury. She told the court she has a hearing disability but could lip-read if a witness faced her. The judge refused to allow the defense to disqualify her "for cause'' because of the disability.
Ms. Leow-Johannsen was seated and voted with the rest of the jury to acquit Mr. Speer of murder and several other charges but to convict him of aggravated vehicular homicide. He was sentenced to four years in prison.
The Toledo-based 6th District Court of Appeals overturned the conviction and ordered a new trial. While Ms. Leow-Johannsen was permitted to read a transcript of the 911 call in the courtroom as its content was entered into the record by the court reporter, the appeals court found that her disability prevented her from discerning Mr. Speer's tone of voice, inflection, and demeanor.
"Doesn't it depend on the type of evidence that is expected?'' Justice Judith Lanzinger of Toledo asked. "In this particular case, I understand there was a tape recording that was going to be played for thejury. Doesn't that in and of itself make it difficult for the accommodation that is necessary for a juror on that particular case - not in all cases, but in that particular case?''
Mr. Speer's appellate attorney, Brad Barbin, and Ottawa County Prosecutor Mark Mulligan argued that Mr. Speer's demeanor, tone, and comportment on the 911 call were important to their positions as the state sought to prove Mr. Barnett's death was no accident.
"The single most powerful piece of evidence proving actual innocence was denied to the defendant in this case…,'' Mr. Barbin said. "When a juror says to a trial judge …, 'I will have a problem,' the trial court cannot put that hearing-impaired juror on a 911 case.''
Mr. Mulligan countered that such an argument could be extended beyond the hearing impaired.
"If affirmed, the practical effect of the 6th District's decision will be to bar people with disabilities from jury service,'' he said. "The core of the court's decision is that, if any doubt exists that a disabled juror can completely understand all of the evidence, then that juror must be excused for cause.''
Some justices questioned why Mr. Speer's trial attorney did not use one of his four discretionary challenges to remove Ms. Leow-Johannsen from the jury without having to state a reason or demand that she be replaced by an alternate who'd heard the same evidence just before the case went to deliberations.
Because of double jeopardy, Mr. Barbin contends Mr. Speer could not again face murder and other charges for which he'd previously been acquitted if the case is retried.
Contact Jim Provance at:
jprovance@theblade.com
or 614-221-0496.
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