For the first time in its 220-year history, the state’s highest court was asked to consider whether a defendant was denied a fair trial because the crime victim was introduced as the prosecutors’ “representative” and then was allowed to sit at the prosecution table throughout the 2018 acquaintance-rape trial of Theodis Montgomery.
Montgomery’s trial lawyer Dennis Lager, based in Canton, Ohio, told The Epoch Times: “This was a case of first impression with the court; they’ve never seen something like this ... where the state attempted to use the victim as the state’s representative.”
Courtesy of Ohio Department of Rehabilitation and Correction
Lager who has practiced law for 45 years—including a stint as a chief assistant prosecutor—said he has been involved in 102 felony jury trials in 10 Ohio counties and “I had never seen where the state would even attempt something like that, and then have a judge allow it.”
He said he was “amazed and kind of shocked” during Montgomery’s trial when it became clear that prosecutors were going to allow the victim to occupy a seat at their table—a spot usually reserved for someone acting in an official capacity, such as a police officer or a coroner’s investigator.
Lager said that when he objected to the victim’s seating arrangement that preserved the “error” for the record and helped lead to the Supreme Court’s June 30 decision.
Asked to comment, Stark County Prosecutor Kyle Stone said in an email: “We respect the ruling of Ohio Supreme Court. This case was tried under the prior administration. However, we will evaluate and try it accordingly as we would any other case.”
An advocate told The Epoch Times that the victim did not wish to comment on the matter.
Now 36, Montgomery had been sentenced to serve 10 years in prison after his conviction in 2018. He is still being held in a state prison awaiting an Aug. 17 initial hearing for his retrial in Stark County.
Justice Melody Stewart, writing an opinion for the majority, said the victim’s designation and position in the courtroom created a “dual role” for her, produced a “structural error” that warped the framework of the trial and violated Montgomery’s right to the presumption of innocence.
“The victim of an alleged crime is not a party to the criminal proceedings against the defendant ... [and] is not a surrogate of the state,” Stewart wrote.
“It is therefore incongruous that a victim could be designated as the representative for the state during the prosecution of the defendant.”
Further, Stewart wrote, the situation “risked misleading the jury into thinking that just as defense counsel represents the defendant, the prosecuting attorney represents the alleged victim, or even more harmful, that the alleged victim as the complaining witness and the prosecution are one and the same.”
The scenario in Montgomery’s case “undermines the fairness of the fact-finding process and erodes the presumption of innocence accorded a criminal defendant,” Stewart wrote in her 17-page decision.
Justices Michael Donnelly and Jennifer Brunner concurred, along with Chief Justice Maureen O’Connor.
Justice Sharon Kennedy called the errors in Montgomery’s case “harmless.”
She said Montgomery was “entitled to a fair trial but not a perfect one,” and there was no indication that the victim-related errors affected the outcome of his trial.
Kennedy pointed out that other witnesses’ testimony supported the victim’s contentions that Montgomery forced sexual advances on her in March 2018 after a decade-long acquaintanceship.
The victim suffered facial injuries and shared her account with other witnesses, who testified she was upset.
Montgomery chose not to testify, leaving jurors without his side of the story, Kennedy said.
Montgomery’s lawyer argued that the sex act between his client and the victim was consensual; Lager disputed parts of the victim’s testimony.
Justice Patrick DeWine joined in Kennedy’s dissent.
In a separate dissenting opinion, Justice Patrick Fischer declared: “I believe that there was no error, let alone structural error.”
Fischer said he doubted that Montgomery’s jury would have interpreted the victim’s credibility any differently “than if she had merely sat right behind the prosecutor’s table instead of beside the prosecutor.”
The dissenting opinions pointed to rulings in other U.S. states, where convictions survived legal challenges despite victims or their relatives being seated next to prosecutors, and noted that the Ohio Constitution gives alleged crime victims the right to be present during courtroom proceedings against the accused.
Further, the state’s court rules allow prosecutors to choose a representative.
But, Stewart said, current laws and rules do not specifically give victims the right to sit alongside prosecutors as the state’s representatives, and it is not the judiciary’s role to expand the victims’ privileges and authorize such an arrangement.
Fischer said he was concerned that “the majority opinion wields Lady Justice’s sword to cut away the state’s right to select a representative to aid it throughout criminal proceedings.”
Fischer said that it should be up to Ohio lawmakers to decide whether to impose limits on who may be designated as the state’s representative in trials, and “this court should be hesitant to expand constitutional rights in such a manner.”
