The Court ruled a man’s constitutional rights to a fair trial were violated when his alleged victim was permitted to sit at the prosecutor’s table during the trial.

The Court ruled a man’s constitutional rights to a fair trial were violated when his alleged victim was permitted to sit at the prosecutor’s table during the trial.

A Stark County man’s constitutional rights to a fair trial were violated when the alleged victim of a rape was permitted to sit at the prosecutor’s table during the trial, the Supreme Court of Ohio ruled today.

In a 4-3 decision, the Supreme Court ordered a new trial for Theodis Montgomery, who was convicted of kidnapping and rape and sentenced to 10 years in prison. When the prosecutor introduced the victim as the “state’s representative” who would join him at the table, Montgomery’s attorney objected. The trial judge expressed some concern, but allowed the woman to remain at the prosecutor’s table for the proceedings.

Writing for the Court majority, Justice Melody Stewart explained that sitting the victim at the prosecutor’s table with the designation as the state’s representative was “structural error” that permeated the entirety of the trial. It risked misleading the jury into believing that the prosecutor was counsel for the alleged victim. In doing so, the “unconventional act” eroded Montgomery’s “presumption of innocence” and violated his fundamental rights to a fair trial.

Chief Justice Maureen O’Connor and Justices Michael P. Donnelly and Jennifer Brunner joined Justice Stewart’s opinion.

In a dissenting opinion, Justice Sharon L. Kennedy agreed with the majority that the trial court incorrectly allowed the victim to be designated as the state’s representative and should not have been allowed to remain at the table for the entire proceedings. However, she wrote, the majority failed to explain how seating the victim at the table improperly influenced the jury in light of all the testimony and evidence in the trial indicating Montgomery’s guilt. She concluded the errors were harmless and that the verdict should stand.

Justice R. Patrick DeWine joined Justice Kennedy’s opinion.

In a separate dissent, Justice Patrick F. Fischer wrote the Court majority wrongly interpreted court rules to conclude that only an officer or employee of the state can be the state’s representative in a trial. He stated the prosecutor had the ability to request that the victim sit at the table and the trial court had discretion to grant that request. Even if seating the victim at the table violated the rules, he agreed with Justice Kennedy that the error was harmless.

Victim Asserts Acquaintance Raped Her
Montgomery had known a woman identified in court records as “A.B.” for about 10 years. In March 2018, Montgomery lived in the home of A.B.’s parents in Canton. A.B. slept at her parents’ house on the night before her parents were leaving on a trip to Florida. The next morning, after her parents left, A.B. and Montgomery were in the home alone. A.B. stated that Montgomery punched her, raped her, and kept her in the house against her will for most of the day.

After A.B. was allowed to leave, she called her sister and reported the incident to the police. She went to a local hospital where a sexual-assault nurse conducted an examination, and A.B. was interviewed by two Canton police officers. DNA from the nurse’s examination confirmed Montgomery and A.B. had sex.

Montgomery did not deny the two had sex, but argued it was consensual and that he did not rape A.B. He was indicted on kidnapping and rape charges. He pleaded not guilty.

Jurors Find Victim Seated at Prosecutor’s Table
At the beginning of the trial, prospective jurors were seated in the courtroom. The state moved the court to allow A.B. to sit at counsel’s table with the assistant prosecutor. Before jury selection started, the prosecutor stated that he intended to designate A.B. as the state’s representative, which would allow her to remain seated at counsel’s table with the assistant prosecutor throughout the trial.

Montgomery’s attorney objected, arguing that allowing A.B. to sit at the table would be prejudicial. The trial judge allowed A.B. to sit at the table. The judge stated she intended to research the issue more so that she would not “create prejudice on either side.” The trial judge did not revisit the seating objection during the trial.

Following the three-day trial, the jury convicted Montgomery. He was sentenced to two concurrent  10-year prison terms.

Montgomery appealed to the Fifth District Court of Appeals, which affirmed the trial court’s decision. Montgomery appealed the Fifth District’s decision to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Right to Sit at Table
Justice Stewart explained the Sixth Amendment to the U.S. Constitution provides a criminal defendant the right to a fair trial, and that right is applicable to state criminal cases through the Fourteenth Amendment.

The Court noted the Fifth District permitted A.B. to sit at the table citing a provision of the Ohio Constitution known as “Marsy’s Law,” and under Rule 615(B) of the Ohio Rules of Evidence. The opinion stated that Marsy’s Law entitles crime victims to be present “at all public criminal proceedings of the accused.” However, that right does not entitle the victim to sit at the prosecutor’s table.

Evid.R. 615 governs when witnesses must be separated or excluded during trials. The rule allows an alleged victim to be present in the courtroom, but the opinion noted that does not entitle the victim to be at the table. However, the state, as a non-natural person, is allowed to choose an officer or an employee, who may be a witness, to be a “personal representative” to assist the prosecution in the trial and be seated at counsel’s table. The Court said A.B. was not an officer or employee of the state and does not qualify to be the state’s representative under Evid.R. 615.

Impact of Seating Assessed
The Court explained the role of a prosecutor in a case is to represent the state and to advance its argument that Montgomery committed the crime. The prosecutor is not the attorney for the victim, the opinion noted. Seating the victim at the table gives the jury the impression that Montgomery is sitting with an attorney who is representing him and A.B. is sitting with the prosecutor who is representing her. That has the potential to erode the presumption of Montgomery’s innocence, the Court stated.

The Court found the error was a structural error, which resulted in a trial that was fundamentally unfair. The opinion noted there was no way to gauge the impact the errors had on the fairness of Montgomery’s trial. The Court vacated his conviction and remanded the case to the trial court for a new trial.

Dissent Found Presence at Table Did Not Impact Verdict
In her dissent, Justice Kennedy emphasized that structural error is “highly exceptional.”

“Structural error has been recognized only in limited circumstances involving fundamental constitutional rights, including the denial of counsel to an indigent defendant, the denial of counsel of choice, the denial of self-representation at trial, the denial of a public trial, and the failure to instruct the jury that the accused’s guilt must be proved beyond a reasonable doubt,” she wrote.
  
Justice Kennedy noted the majority determined there was a structural error because it was too difficult to gauge the impact of A.B.’s introduction as the state’s representative and sitting at the table for the whole trial. But Justice Kennedy wrote that to be a structural error, the activity has to be categorically prejudicial, that is, prejudicial in every instance. She wrote that “[i]t is not difficult to imagine circumstances in which the evidence of guilt could be so overwhelming that the state could prove this type of error harmless, such as when the accused confesses to the offense or there is additional evidence of guilt such as a video recording.”

Justice Kennedy reviewed the evidence presented at the trial and concluded that given A.B.’s testimony and other corroborating evidence, the error of introducing A.B. as the state’s representative was harmless beyond a reasonable doubt. Because Montgomery never objected to A.B. being at counsel’s table during the trial once the trial started, Justice Kennedy evaluated the error under the plain-error standard, under which reversal is appropriate only if the accused demonstrates that but for the error, the outcome of the trial would have been otherwise.

“Seating A.B. at the counsel table is a nonfactor, when compared with the importance of the consistency of her testimony, her response to ineffectual cross-examination, and the presence of witnesses who supported A.B.’s version of events by describing their perceptions of her emotional state and physical injuries immediately after the crime,” she concluded. 

Trial Court Authorized to Place Victim at Table, Dissent Maintained
In his dissent, Justice Fischer maintained Evid.R. 615 is limited to determining which witnesses must be out of the courtroom when other witnesses are testifying. He wrote that under common law, trial courts have the discretion to allow the prosecutor to select someone other than a state employee or officer to serve as the state’s representative, a person who remains in the courtroom to help the state with its case.

Similar to Justice Kennedy, Justice Fischer also argued that the majority only offers “broad generalizations” about how seating A.B. with the prosecutor violated Montgomery’s fair trial rights. He wrote the majority makes a “sweeping conclusion” that placing the victim at the table transformed the prosecutor into A.B.’s private lawyer, which he characterized as “speculative and is without support.”

2020-0312. State v. Montgomery, Slip Opinion No. 2022-Ohio-2211.

View oral argument video of this case.

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