In November 2017, Ohio voters overwhelmingly approved Marsy’s Law, which enhanced the rights of crime victims, including securing the right of victims to be present in the courtroom during the trial of the accused perpetrator.

The law, which is Article I, Section 10(a) of the Ohio Constitution, took effect in February 2018. Shortly after, Ohio courts began grappling with how to implement its requirements. In November 2018, a seasoned defense attorney was shocked to find that at the trial of a Stark County man accused of rape and kidnapping, the woman accusing him of the crimes was seated next to the assistant county prosecutor at the table during jury selection.

The defense lawyer objected, stating that such a move was unprecedented and would prevent Theodis Montgomery from receiving a fair trial. For the trial judge, the seating arrangement was new, too.

“I think it’s, you know, we have a new era under Marsy’s Law and under [Ohio Revised Code Chapter] 2930 and the amendment to the Constitution. I think it’s different because I will agree with you that I have never had this particular situation arise either,” the trial judge said.

Both sides agree that under Marsy’s Law, the victim, a woman identified as A.B., had the right to be present for the entire trial, but disagree on whether that right extends to allowing the victim to sit with the prosecutor. While other state and federal courts have confronted the issues, the parties indicate this is the first time the Ohio Supreme Court will consider whether an accused’s constitutional rights to a fair trial are violated when the alleged victim sits at the prosecutor’s table during the trial.

Victim Accused Long-Time Acquaintance of Attacking Her
A.B. had known Montgomery for about 10 years. Their families became intertwined when A.B.’s father married Montgomery’s sister. Montgomery and A.B.’s father became friends, and Montgomery lived in the basement of A.B.’s father’s house in Canton. Montgomery expressed interest in having a romantic relationship with A.B., but A.B. indicated she only wanted to remain friends.

A.B.’s father called her late one evening to come to his home, telling her he and his family were leaving early the next morning for Florida. After arriving at the home, A.B. decided to spend the night and set up a space on a floor in a back room to sleep. The family left for vacation the next morning. A few hours later, Montgomery came up from the basement and discovered A.B. He yelled at her and punched her in the face. He later forced her to have sex.

Later, A.B. called the police and went to a local hospital where she received a sexual assault examination. A Canton Police Department detective received permission from A.B.’s father to search his home. Police discovered a blood-covered tissue in a waste basket that A.B. had said she used to wipe the blood from her nose after Montgomery punched her.

Judge Permits Accuser to Sit at Prosecutor’s Table

Montgomery was indicted on one count of kidnapping and one count of rape. At his trial, his defense attorney objected when A.B. was introduced as the state’s representative in the case and seated at the table. Typically, if any nonlawyer is seated at the table with the prosecutor during a criminal trial as the state’s representative, it is a member of the law enforcement agency investigating the crime. The trial judge permitted A.B. to sit at the table for the entire trial.

A jury convicted Montgomery on both counts, and he was sentenced to 10 years in prison on both charges, which were to run concurrently. Montgomery appealed his sentence to the Fifth District Court of Appeals, arguing, among other things, that he was denied a fair trial under the Sixth and Fourteenth Amendments to the U.S. Constitution because A.B. sat at the prosecutor’s table. The Fifth District affirmed the trial court’s decision.

Defenses Attorneys Claim Seating Arrangement Compromised Trial
State v. Montgomery has drawn the attention of the Ohio Association of Criminal Defense Lawyers, which has an filed amicus brief in support of Montgomery. The group argues that the presence of the victim at the prosecutor’s table is so prejudicial that the accused cannot receive a fair trial. The association maintains the appellate courts and the Supreme Court will never learn from the trial transcript the true effect of the seating arrangement on the jury’s perception.

“The mission of the jury is to determine the credibility of the witnesses, and if the credibility of a witness is impermissibly enhanced, that mission is fatally compromised,” the criminal defense lawyers argue.

The Ohio Supreme Court will hear oral arguments in this case and six others next week.

Oral Argument Details
The Supreme Court will consider three cases on Jan. 26 and four more, including Montgomery, on Jan. 27. Oral arguments begin each day at 9 a.m.

Because of the coronavirus health crisis, the Court will hold its session by videoconference. The arguments will be streamed live online at sc.ohio.gov and broadcast live, and archived, on The Ohio Channel.

In addition to these highlights, the Court’s Office of Public Information released preview articles today about each case, available through the case-name links.

Tuesday, Jan. 26
In 580,000 vehicles sold in the United States from 2009 to 2015, auto manufacturer Volkswagen installed emission “defeat devices,” designed to cause its vehicles to release fewer pollutants in environmental tests than on the road. The actions led to significant penalties under the federal Clean Air Act. In State ex rel. Ohio Attorney General v. Volkswagen Aktiengesellschaft, Ohio has sued the automaker over software updates it made during a recall that were supposed to fix the emission controls but instead still automatically lowered pollutant emissions when its vehicles were in a test environment. Volkswagen argues the federal government has exclusive power to regulate manufacturer emission standards. The state attorney general counters that the lawsuit is permissible because Volkswagen tampered with the emission control systems after the vehicles were sold.

The Ohio Public Works Commission awarded a Clean Ohio green space conservation grant to a Guernsey County development group for the purchase of property along Leatherwood Creek. The grant supported restoration of the corridor, which had been strip-mined, and its transformation into a public park. The development group subsequently leased the land’s oil and gas rights to several companies. The commission argues in Siltstone Resources v. Public Works Commission that those transfers violated the deed, which includes restrictions on how grant recipients can use property and prohibiting its sale or transfer without commission consent. The companies maintain the deed restrictions are illegal and contrary to public policy, and the development group contends drilling doesn’t interfere with the corridor’s use as a park.

In 2015, the builders of a 713-mile interstate natural gas pipelines applied for a federal permit. The pipeline owner was required to obtain a water pollution permit, and sought one from the Ohio Environmental Protection Agency. Federal rules required the state to certify its water pollution requirements in one year, but the state delivered its certification about 15 months after the initial request. In April 2017, the pipeline builders spilled millions of gallons of diesel-fuel-laced drilling fluid into a what the state categorized as high-quality wetlands. The Ohio attorney general filed a lawsuit to fine the builders for the spill. In State ex rel. Ohio Attorney General v. Rover Pipeline, the builders argue that only the federal government can enforce pollution violations because the state didn’t submit its certification within the one-year deadline.

Wednesday, Jan. 27
In State v. Azeen, a Cleveland man who in 1987 shot two people, injuring one and paralyzing the other, was charged with aggravated murder when the paralyzed victim died 27 years later. At his first trial, the man pled no contest and served prison[deleted underscore] time for attempted murder and felonious assault. With the later aggravated murder charge, the trial court dismissed the case, concluding the county prosecutor in the initial case didn’t reserve the right to file more charges in the future. The current prosecutor contends a 1993 Ohio Supreme Court decision requiring prosecutors to reserve the right to refile doesn’t apply and the man’s plea wasn’t negotiated with the state.

A consortium of 27 companies and individuals own a large commercial facility in Massillon. One owner was named property manager. After issues arose about the property’s use, the other owners initiated arbitration proceedings against the manager. The arbitrator found ousting the manager was warranted, and the companies filed an application in a Cuyahoga County court to have the court confirm the arbitration award. The ousted manager sought a continuance or a stay of the case, stating his intention to have the arbitration award vacated. Weeks later, the trial court affirmed the award. In BST Ohio v. Wolgang, the manager argues Ohio law gives him three months to seek to have the award vacated and that once he informed the trial court of his intentions, the trial court was obligated to stay the confirmation proceedings.

A Cuyahoga County lawyer whose office assistant stole cash from him and his clients faces a proposed one-year suspension with six months stayed based on the harm he and the assistant inflicted on a client. The lawyer contests the proposed sanctions, noting he didn’t knowingly harm his client, but rather was duped by his office assistant, who stole from him and made errors that led to the client’s failed bankruptcy petition. In Cleveland Metropolitan Bar Association v. Heller, the lawyer admits that lax bookkeeping and employee oversight led to problems for his office, but argues his actions don’t warrant a suspension.