OHIO SUPREME COURT Preliminary hearing idea causes outcry

The judge's opponent agrees that preliminary hearings are useless.
By DAVID SKOLNICK
VINDICATOR POLITICS WRITER
YOUNGSTOWN -- Saying preliminary hearings add nothing to criminal cases, Judge Janet R. Burnside, a Democratic candidate for the Ohio Supreme Court, wants to push for their extinction if she is elected to the high court.
"They serve no purpose," Burnside, a Cuyahoga County Common Pleas Court judge, said during a meeting with Vindicator writers. "It's more protection for the citizen than we need or can afford. It's a procedure that doesn't work anymore."
Judge Burnside's proposal is being met by near universal disapproval from Mahoning Valley members of the legal profession, even those who support her candidacy.
"Any judge who thinks the preliminary hearing is a waste of time is obviously someone who's been a judge too long and not a practicing attorney in the trenches," said David Betras, a Canfield defense attorney and a Judge Burnside supporter. "We don't need fewer rights for the accused. We need more rights for the accused."
"I can't believe she said that," added Mahoning County Prosecutor Paul J. Gains. "Boy, I hate criticizing her because I support her, but I disagree with her on this. They serve a purpose. I have a problem taking away constitutional rights for economic reasons."
Opponent likes idea
Justice Evelyn Lundberg Stratton, a Republican who is being challenged by Judge Burnside for a six-year term on the Supreme Court, says there is merit to the idea of eliminating preliminary hearings.
"I agree with her; it's a duplicate process," Justice Stratton told The Vindicator. "Nothing of real substance is accomplished at them. It doesn't afford anyone protection."
Preliminary hearings -- almost "mini-trials," which include the calling of witnesses and cross-examination -- are held in lower level courts, such as municipal and county courts, in felony cases after arraignments. Prosecutors only have to prove probable cause in the hearings, meaning there are reasonable grounds to believe the person charged committed the crime. That is a much lower threshold than proving their guilt.
If probable cause is proved, the lower-level judge then turns the case over to a grand jury to decide if the suspect should be indicted. The defendant has the option of waiving his right to a preliminary hearing and having a grand jury consider indictment.
Judge Burnside said if elected to the Supreme Court, she would urge the other justices to encourage the state Legislature to pass a law eliminating preliminary hearings, which she considers to be "more burdensome than beneficial."
Strongly disagrees
David P. Powers, a Columbiana defense attorney, said Judge Burnside's suggestion is ridiculous.
"You would have no right to confront your accusers for who knows how long without a preliminary hearing," he said. "Most people waive their right to a preliminary hearing, but a person should have the right to defend themselves at every opportunity. Preliminary hearings are the earliest opportunity for most people to defend themselves."
Judge Burnside, a common pleas judge for the past 11 years, said the cost and time wasted by judges, law enforcement, witnesses and attorneys during preliminary hearings make them useless. Also, the judge says prosecutors and police officers don't care about the hearings because it is pretty much a foregone conclusion that the accused will be indicted, even if charges are dismissed at preliminary hearings.
Attorneys in the Mahoning Valley say that is not what happens here.
'Important process'
Judge Joseph Houser of Mahoning County Court says at least 90 percent of cases in front of him involving felonies that are turned over to a grand jury get there after defendants waive their right to preliminary hearings.
"But when I hold preliminary hearings, there have been several occasions where I made findings that the evidence the state had did not support a felony charge, but may have supported a misdemeanor charge," he said. "I think preliminary hearings play a role in certain cases. For at least a handful of people, it's an important process."
In Trumbull County, Prosecutor Dennis Watkins says he chooses to bring the cases of defendants charged with serious crimes, such as murder, directly to the grand jury after an arrest is made, thus avoiding preliminary hearings in those matters.
Watkins says he sees the validity of both sides of the argument to eliminate preliminary hearings.
"I don't see a major problem with the present system," he said. "It seems to work. But if I was looking at streamlining, I'd look at it. Intellectually, [Burnside's] got a good point."
skolnick@vindy.com