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No Easy Tasks Before Us, But United We Stand

Jul 14, 2020


July 6, 2020 

By Chris Wagner


Colleagues.

In the days before I wrote this article, George Floyd, an unarmed American citizen, was taken into police custody and died by asphyxiation on a Minneapolis public street. His unnecessary death was observed by countless onlookers and, most sadly by three police officers, who failed to act. The painful images of Floyd’s death have reverberated throughout our nation, throughout the world, in our community, and now into our psyche. Though much is not clear, one thing surely is: for a nation ruled by law, the legal system must function, regardless of the circumstances.

George Floyd’s death by the hands of police was the proverbial straw that broke the camel’s back. Peaceful protests ensued, as did instances of riots, across the entire country. Individuals, organizations, businesses and professional groups, including the Cincinnati Bar Association, reacted as can be imagined: with horror, with grief, and with intent to change.

Change is not easy, and dismantling systemic racism for our society is not an easy task. When I worked with the CBA’s executive committee to issue our statement, which can be found on our website at cincybar.org/protests, I knew it was most important to work collectively and stand in support of the Black Lawyers Association of Cincinnati.

Days before this magazine went to print, I joined over 30 local legal professionals and administrators, led by the efforts of Wednesday Shipp, president of BLAC and CBA board member, on a call to examine what we can help our profession do. 

Our collective goals are many. We are starting with a legal professional forum to educate ourselves and move the discussion forward in our community. Knowledge is power. We want to examine and more deeply understand the complexity of police relations. We are gathering a variety of resources for our members – from reading lists to online presentations from speakers and judges across the state, including a presentation on criminal sentencing by Ohio Supreme Court Justice Michael Donnelly.

The CBA will keep you updated as the details fall into place.

In this issue, you’ll find an article addressing systemic racism, written by two of our Diversity & Inclusion Communications Committee members. An article detailing the legal history of protest as a form of protected free speech is included as well. The cover of this issue itself speaks to our grief, anger but also to our hope that our community will enact meaningful reform. 

 

   
Photos by LaDonna Wallace Smith, taken at the Cincinnati protests in response to the murder of George Floyd.

Criminal justice reform cannot happen in the absence of jury trials. Juries are a core foundation to protect our civil liberties and have been since the issuance of the Magna Carta. As the health restrictions slowly lift, and our economy begins to re-open, questions arise regarding the new form of legal practice in our community. From conference call pretrials to Zoom depositions and virtual mediation (as another article in this issue covers,) the practice of law continues. We are confronted with this question: how can the courts and the profession conduct a jury trial in the era of social distancing? As legal professionals, the responsibility for reopening will fall to us.

In May, I served on a task force to make recommendations to Chief Justice Maureen O’Connor on how the court should conduct jury trials in this state. The task force had only ten days to produce this report. Chaired by my counterpart from the Cleveland Metropolitan Bar, Ian Friedman, we gathered lawyers from all practices from all parts of the state. Also serving in the endeavor were court reporters, bailiffs, sheriffs, and clerks of courts. Other local representatives included Hamilton County Public Defender Ray Faller and attorneys Samantha Silverstein, Martin Pinales, and John Holschuh, Jr.

The input we received from so many people was highly constructive. Key takeaways: persons should be masked, stand six feet or further apart, and, most discouraging, the effectiveness of these preventive measures declines after a half an hour.

With these limitations, it is going to be quite difficult to resume jury trials as we did in the past. Are our courtrooms large enough? Can everyone hear a witness or an attorney wearing a mask? How is the court reporter going to understand with voices muffled?

This is very complicated. What gives me comfort is the thought that if emergency room doctors and nurses can operate lifesaving procedures wearing masks, gloves and more, then surely lawyers can figure something out as well.

There will be no more witnesses and jurors waiting around idly. The strategic use of a jury marching into the courtroom to spur a settlement is a thing of the past. The crowded morning rush of a busy metro courthouse also must change. In fact, jury trials may be much slower in the future.

The justice system’s fair and just operation is our collective responsibility. Though this a profoundly difficult exercise, it is worth it, because enshrined in the Ohio Constitution is the right of everyone to a fair and public jury trial. “All courts shall be open, and every person, for an injury done … shall have remedy by due course of law, and shall have justice administered without denial or delay” and “The right of trial by jury shall be inviolatei.”

We will all need to do our part to get the apex of our profession – the jury trialii – back in operation in our state. Our civil rights depend on it and our community is counting on us.

 

Wagner is the chief of compliance with the Hamilton County Clerk of Courts and the 2020-2021 CBA president. 

i Ohio Constitution of 1851, Article 1, Sections 16 & 5

ii Read the full report by the Ohio Jury Trial Advisory Group here. 

 

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