Could there be broader implications to an appellate court's decision to toss out an Ottawa County homicide conviction because a woman on the jury is hearing impaired?
Ottawa County Prosecutor Mark Mulligan thinks so.
"My concern here is that we're on a slippery slope at this point," Mulligan said. "If the juror is hard of hearing, if the juror has back pain and isn't able to be attentive, if a juror has vision problems ... what does that mean?"
The Sixth District Court of Appeals, located in Toledo, decided unanimously this week to throw out Scott Speer's aggravated vehicular homicide and involuntary manslaughter conviction because a deaf juror could not hear a 911 tape that was used to convict the Fairlawn man.
Speer was charged with murder and aggravated murder after his friend, James Barnett, 39, fell from Speer's 24-foot power boat and drowned Aug. 6, 2002. The two men were returning from South Bass Island in bad weather.
The prosecution argued Speer had fought with Barnett about money before the incident, and he could have pushed Barnett off the boat. Prosecutors entered the 911 call made by Speer at the time of the incident as evidence of his demeanor at the time.
The jury convicted Speer of the lesser charges of involuntary manslaughter and aggravated vehicular homicide, and he was sentenced to four years in prison.
During jury selection, Speer's attorney, Bradley Davis Barbin, Columbus, asked visiting Judge Richard Markus to dismiss the deaf juror because of her impairment. The judge denied the request.
Barbin used his four allotted peremptory challenges on other jurors, so the woman was seated on the jury. The court put the woman at the front of the jury box so she could read the lips of the witnesses and attorneys. It did not provide a sign language interpreter because the woman does not use sign language.
The court concluded because there was no interpreter, it is not known whether the woman was able to pay attention every time someone was giving testimony. It also concluded she could not have interpreted the demeanor of Speer on the 911 tape from the transcript she was provided.
"If any doubt exists that a juror can adequately and completely perceive and evaluate all the evidence, whether because of a physical impairment, mental capabilities, or other reason that would interfere with the performance of a juror's duties, the trial court must excuse that juror for cause," the court said.
Mulligan said he respected the decision, but he will likely appeal the case to the Ohio Supreme Court. If the case is not appealed or if the Supreme Court declines to hear the case, it will go back to Ottawa County Common Pleas Court for a retrial. Mulligan will meet Monday morning with Barbin to discuss bond as the result of the decision. Speer is still in prison.
Barbin did not return calls seeking comment on the case.
"I do have broader concerns," Mulligan said. "Any attorney that has tried a good number of cases will have a case where a juror has fallen asleep. Which is worse?"
Mulligan said the juror in question was extremely attentive during the trial.
"She is adept at reading lips and speaking for herself," he said. "So her way of translating the world is to do just that."
Representatives from the National Association of the Deaf and the Ohio Association of the Deaf did not respond to requests for comment.