from the Franklin County Court of Common Pleas C.P.C. No.
O'Brien, Prosecuting Attorney, and Kimberly M. Bond, for
R. Venters, Public Defender, and Ian J. Jones, for appellant.
Kimberly M. Bond.
1} What judges say to jurors matters. And when a
judge tells a juror at the outset of a criminal case that the
defendant does not contest that the crime alleged was in fact
committed by someone with that defendant's own name, the
juror can be expected to take note. Such a circumstance would
narrow down any pool of potential wrongdoers, to say the
least, and the concession would substantially alter the
burden of proof.
2} Here the judge, through different formulations,
conveyed that unusual and unusually potent message more than
once, and to more than one prospective and eventual juror.
When the defense at last balked, the judge responded that the
lawyer could straighten things out. The process moved
forward, with no judicial correction requested or made.
3} The prosecution called police officer witnesses
to identify defendant Timothy D. Davis as the man who had
struggled with police in a night-time incident on Kelton
Street and who had injured one officer before fleeing. The
defense called its own witnesses, seeking to show that Mr.
Davis had not been the culprit but that the struggle had been
with an unidentified man who may have been at the scene for
the "soup kitchen"-type offerings provided to the
homeless by Mr. Davis's mother. The jury then convicted
Mr. Davis of assault and of obstructing official business,
while acquitting him of felonious assault with a repeat
violent offender specification; the judge sentenced him to
two and a half years in prison.
4} On appeal, Mr. Davis mounts five assignments of
error. The first, which determines the outcome here, recites
that: "Defense counsel's performance was deficient
by allowing five of the jurors who voted to convict to hear
the trial judge's repeated mischaracterizations of the
defense's theory of the case, an error so serious as to
deprive appellant of a fair trial and to undermine confidence
in the trial's result."
5} The judicial commentary that the defense now
protests, but that went unchallenged at the time of the
remarks, came during the jury selection process. The judge,
quite prudently, had decided that voir dire would be
conducted in small groups so as to avoid wider possible
contamination of the jury pool when the court sought to
ascertain whether any potential juror had heard of another,
apparently widely publicized matter involving Mr. Davis and
police officers. But the trial court's inquiries ranged
beyond that other episode.
6} So, for example, in addressing three potential
jurors one of whom (designated for voir dire as juror 7) made