No Judicial Co-Counsel: Does Allegedly Biased Judicial Questioning Constitute Structural Error and Automatic Reversal?

“Legal Gavel & Closed Law Book” by Visual Content is licensed under CC BY 2.0

Sara Leonhartsberger, Associate Member, University of Cincinnati Law Review

I. Introduction

In a jury trial, the judge is a neutral party, acting as an arbitrator to ensure both sides present their case lawfully and properly before the jury.[1] The jury serves as the fact-finder at trial. The judge must be impartial; any sign of bias against one party may affect the jury’s verdict.[2] In criminal cases, a judge’s impartiality is crucial, as the defendant’s life or liberty interest is determined in the proceedings. If a judge is partial to the prosecution, the trial and the defendant’s right to due process of law is implicated.[3]

State v. West demonstrates this need for judicial impartiality through an Ohio trial judge’s allegedly biased questions toward the defendant in a criminal case. Part II of this article will provide background and discuss State v. West. Part III of this article will contend that the Ohio Supreme Court will side with the dissent in State v. West and find structural error in the trial judge’s questioning of the defendant. Part III will discuss the contending issues of impartial judges and attentive lawyers that affects whether the Ohio Supreme Court automatically reverses West’s conviction and remands for a new trial. Part IV will conclude with an emphasis on the guidance State v. West offers, regardless of how the Ohio Supreme Court rules.

II. Background

A. State v. West’s Procedural Posture 

In State v. West, an Ohio trial judge directed allegedly biased questioning toward a defendant who was later convicted by the jury and sentenced to twelve years’ imprisonment.[4] While the Tenth Appellate District Court held that 1) no structural error occurred, 2) the defendant failed to demonstrate that the questions constituted plain error, and 3) any arguable problem was cured by the trial court’s curative instruction,[5] Judge Nelson dissented, opining that the judge’s questioning constituted structural error requiring automatic reversal.[6] The Ohio Supreme Court accepted discretionary appeal on November 12, 2020[7] and heard oral arguments on June 30, 2021,[8] but the Court has not released its opinion on the matter.

B. Precedent

If a trial judge’s questioning of a witness shows bias, the structure of the trial is compromised by improper influence on the jury’s verdict. Three Ohio Supreme Court cases cited in State v. West inform the issue of whether a trial judge’s questioning constitutes structural error requiring automatic reversal: State ex. rel. Wise v. Chand, State v. Baston, and State v. Cepec. While the West court accorded the highest weight to Baston and Cepec in their analysis, Judge Nelson’s West dissent incorporated all three.

In State ex. rel. Wise v. Chand, the Ohio Supreme Court held that a trial judge’s questioning of the defendant’s expert witness impermissibly undermined the credibility of that witness before the jury.[9] The case involved a paternity action, and the judge questioned the expert twelve times.[10] One question included the phrase, “…you could not say with reasonable probability that the individual was or was not the father of that child…” which directly undercut the validity of the defendant’s witness.[11] The Ohio Supreme Court found that this questioning improperly influenced the jury’s verdict, reversing the Court of Appeals and remanding for a new trial.[12]

In contrast, in State v. Baston, the Ohio Supreme Court held that the trial judges’ questioning in a three-panel bench trial did not constitute harmful error.[13] Noting that Baston’s counsel had not objected to the questioning at trial and therefore had waived all but plain error,[14] the Court reasoned that trial judges under Evid.R. 614(B) are permitted to question witnesses impartially either by their own or the parties’ discretion.[15] The Court further reasoned that “while it is possible to cross the line from helpful clarification to unwarranted intervention, that did not happen here. The questioning here was limited and consisted mostly of attempts to clarify the witnesses’ testimony, as is contemplated by the rule.”[16]

Finally, in State v. Cepec, the Ohio Supreme Court held that a trial judge’s questioning and interjections were unbiased and did not constitute structural error or plain error.[17] The Court held that both the trial judge’s clarifying questions about complex DNA issues “phrased in a professional and unbiased manner,”[18] and the trial judge’s question about prior mental state that led to prior offense testimony from a witness were not indicative of bias and therefore did not constitute structural error.[19] Additionally, the Court noted that since the judge properly instructed the jurors to ignore any such indication from the prior mental state question, the instruction cured any potential defect in the jury verdict and “failed to support Cepec’s claim of bias in the judge’s questioning.”[20]

C. State v. West Majority

West appealed his conviction of two counts of felonious assault with firearm specifications, count of having weapons while under disability, and his sentencing of 12 years, arguing that the trial judge’s questioning improperly influenced the jury’s verdict.[21] Heavily relying on Baston and Cepec, the court found that the trial judge’s questioning did not constitute unwarranted intervention, overruling West’s assignment of error that the “trial judge’s bias affected his entire trial and constitutes structural error that is not susceptible to a harmless error analysis.”[22] Although the judge asked such questions as “You lied to the police, didn’t you?”[23] and “Is that you with the gun, shooting?”,[24] and “Akers didn’t say he was going to rob you. You thought that’s what he was implying by saying the ‘N’ word, and I’m going to take your money?”[25], the court stated that the trial judge’s questions were limited in the context of the entire record and only came after warnings against the defendant testifying.[26] The court also reasoned that because West’s counsel had not objected to the questioning, under Baston, only plain error would apply that West had not proved.[27] Additionally, the court held that the curative instruction given by the judge to the jury before their verdict deliberation[28] was also sufficient to cure any “arguable problem.”[29]

D. State v. West Dissent

In contrast, Judge Nelson’s dissent in West opined that the trial judge’s questioning resulted in structural error that required automatic reversal and remand back to the trial level under both Baston and Cepec.[30] Judge Nelson reiterated the citations in Cepec that directed automatic reversal if a biased judge oversaw a trial, emphasizing that bias entailed “a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney” that was exemplified in this case through the judge’s antagonistic questioning.[31] Furthermore, Judge Nelson noted that the prosecutor adopted the judge’s line of questioning and language,[32] further evidence that the questioning was not limited and impartial.[33] Additionally, Judge Nelson asserted that the West case was not analogous to Baston, as this judge’s questioning did not helpfully clarify a witness’s statement; instead, the questions intervened into the prosecution’s case.[34] Finally, Judge Nelson emphasized that a curative instruction expressing aggravation should not be indicative of curing the issue,[35] distinguishing between a judge’s and prosecutor’s role, urging that they cannot merge.[36]

III. Discussion

A. Structural Error in West under Chand, Baston and Cepec

Under Chand, Baston, and Cepec, the Ohio Supreme Court will likely find that there was structural error in the trial judge’s questioning. Applying Chand’s directive that “a judge may not interrogate a witness in such a manner that the jury’s conclusions as to the credibility of the witness may thereby be influenced,”[37] any of the West’s trial judge’s questions quoted in the appellate record would violate that directive. The judge’s questions conveyed skepticism of the witness’s testimony as well as aggravation with the defendant’s defense (that he shot at the ground instead of at the defendant), eliciting facts in a manner that detrimentally undercut the defendant’s testimony. Like in Chand, where the court determined that the trial judge’s questioning of the expert witness impermissibly undercut the witnesses’ credibility, the judge’s questioning in this case should be held to the same standard.

Applying Baston’s logic that the appellate court presumes the trial judge to act impartially unless there is a showing of bias,[38] the curative instruction and sentencing comments both show bias, or at the very least, partiality. In the curative instruction, the trial judge admits aggravation, that the judge’s tone of voice in asking questions should not be taken as indicative of bias, yet an impartial judge would not be aggravated with a defendant’s testimony in the first place. This aggravation starkly contrasts with Cepec’s professional and unbiased questions.[39] Additionally, the judge’s comments at sentencing that the defendant is “out there thugging. Maybe you’re not a thug. I don’t know…I know you have been in front of me before, and you only got a year. Maybe if I had given you more time, this young man wouldn’t have been shot.”[40] indicates a predisposition toward West as a “thug,” as someone not to be trusted, and whose credibility must be flawed because of a prior appearance before the judge. How can such a “blatant hostile feeling or spirit of ill will forming a fixed anticipatory judgment”[41] not constitute impermissible bias that permeated the preceding trial?

B. Contending Issues for Automatic Reversal

While the Ohio Supreme Court will likely find structural error in West, two contending issues affect whether West is entitled to automatic reversal and remand for a new trial.

The first issue is the necessity of impartial judges. In Arizona v. Fulminate, the Supreme Court held that trying a defendant before a biased judge was not harmless error.[42] Furthermore, public policy and the legal field requires impartial judges. Biased judges deteriorate the very notion of justice. If a judge serves as co-counsel to one of the parties, particularly the prosecution in criminal cases, what would prevent the erosion of life and liberty interests, determined by biased whims instead of legal principles? Judges have vast discretion because of their assumed neutrality. To affirm the trial judge’s conduct in West sets a dangerous precedent. The Ohio Supreme Court should reverse West to assure all Ohio trial judges do not abuse their discretion.

However, the second issue is the necessity of attentive lawyers to prevent structural error. In Weaver v. Massachusetts, the Supreme Court noted that structural error generally entitles a defendant to automatic reversal when trial counsel objects to the issue and raises the issue on direct appeal.[43] In West, West’s counsel did not object to the trial judge’s questioning. Even if the Ohio Supreme Court were to find that the trial judge’s questioning showed impermissible bias that constituted a structural error, the Court may decide not to grant automatic reversal for counsel’s failure to object. The Ohio Supreme Court could decide not to grant automatic reversal in this case to assure lawyers are attentive to their clients and object to preserve issues for appeal.

IV. Conclusion

Regardless of the ultimate determination of State v. West by the Ohio Supreme Court, West’s facts and appellate history provide valuable guidance to the legal profession. At a minimum, the trial judge’s questioning is partial in a system where neutral arbitrators are essential components of comporting with true notions of fair play and substantial justice. Judges should leave their aggravations in chambers instead of relying on a curative instruction to a criminal trial’s jury. Furthermore, State v. West highlights the importance of lawyers objecting to questioning or evidence that hurts their clients. If counsel fails to object, the client may lose the appeal even with meritorious claims as the standard of review heightens against them. A client’s interest—in some cases, their life or liberty—supersedes a lawyer’s perception of futile objections. 

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[1] State v. West, 2020-Ohio-3434 (10th Dist. Franklin, No. 19AP-90), ¶ 27 (Nelson, dissenting).

[2] Id. at ¶ 26 (Nelson, dissenting).

[3] Id.

[4] Id. at ¶¶ 8-9.

[5] Id. at ¶¶ 16-17.

[6] Id. at ¶ 25 (Nelson, dissenting).

[7] State v. West, 2020 Ohio 5166 (Nov. 12, 2020).

[8] Supreme Court of Ohio – Case No. 2020-0978 State v. West, The Ohio Channel, https://ohiochannel.org/video/supreme-court-of-ohio-case-no-2020-0978-state-v-west (last visited Sept. 13, 2021), https://perma.cc/P9X6-8JTX.

[9] State ex rel. Wise v. Chand, 21 Ohio St. 2d 113, 119-20 (1970).

[10] Id.

[11] Id.

[12] Id. at 120, 617-18.

[13] State v. Baston, 1999-Ohio-280, 85 Ohio St. 3d 418, 426, 709 N.E.2d 128, 135.

[14] Id. at 425, 135.

[15] Id. at 425-26, 135.

[16] Id.

[17] State v. Cepec, 2016-Ohio-8076, ¶ 74-75, 149 Ohio St. 3d 438, 451, 75 N.E.3d 1185, 1204.

[18] Id.

[19] Id. at ¶¶ 80, 452, 1205.

[20] State v. Cepec, 2016-Ohio-8076, ¶ 77, 149 Ohio St. 3d 438, 451, 75 N.E.3d 1185, 1204-05 (citing State v. Garner, 74 Ohio St.3d 49, 59, 1995 Ohio 168, 656 N.E.2d 623 (1995) (“A jury is presumed to follow the instructions, including curative instructions, given it by a trial judge.”)).

[21] State v. West, 2020-Ohio-3434 (10th Dist. Franklin, No. 19AP-90), ¶ 1.

[22] Id. at ¶¶ 13, 17.

[23] Id. at ¶ 5.

[24] Id.

[25] Id.

[26] Id. at ¶ 17.

[27] Id.

[28] State v. West, 2020-Ohio-3434 at ¶ 7 (“The next part is important. Sometimes I ask questions. However, any question that I ask of any tone in my voice, because I can get aggravated, don’t take that as any indication of how I think the case should come out. How I think a case should come out has no bearing on anything. Don’t place any emphasis on any questions I asked, and don’t put any emphasis on why I asked a question. It doesn’t matter. What matters is your evaluation. If I did anything, disregard it.”).

[29] Id. at ¶ 17.

[30] State v. West, 2020-Ohio-3434 (10th Dist. Franklin, No. 19AP-90), ¶ 25, 32 (Nelson, dissenting).

[31] Id. at ¶ 26 (Nelson, dissenting).

[32] Id. at ¶ 28 (Nelson, dissenting).

[33] Id. at ¶ 29 (Nelson, dissenting).

[34] Id.

[35] Id.

[36] State v. West, 2020-Ohio-3434, at ¶ 30 (Nelson, dissenting).

[37] State ex rel. Wise v. Chand, 21 Ohio St. 2d 113, 119, 256 N.E.2d 613, 617 (1970).

[38] State v. Baston, 1999-Ohio-280, 85 Ohio St. 3d 418, 425-426, 709 N.E.2d 128, 135.

[39] State v. Cepec, 2016-Ohio-8076, ¶ 74-75, 149 Ohio St. 3d 438, 450, 75 N.E.3d 1185, 1204.

[40] State v. West, 2020-Ohio-3434 (10th Dist. Franklin, No. 19AP-90), ¶ 9.

[41] State v. Cepec, 2016-Ohio-8076, ¶ 73, 149 Ohio St. 3d 438, 451, 75 N.E.3d 1185, 1204 (citing State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956).

[42] Arizona v. Fulminante, 499 U.S. 279, 290, 111 S. Ct. 1246, 1254 (1991).

[43] Weaver v. Massachusetts, 137 S. Ct. 1899, 1910 (2017).