COLUMBUS — The option to waive the right to a jury trial could be taken away from defendants under a bill pending in the state’s House of Representatives.

“It’s only fair that the prosecution, the state of Ohio and victims have a right to a jury trial,” said Rep. Lynn Slaby, a former Summit County Prosecutor and sponsor of House Bill 265.

The question is: whose right is it? Criminal defendants have a right to a trial before a jury of their peers, under the U.S. Constitution. In many states, however, defendants occasionally waive that right, allowing for a trial to the bench – meaning the judge would decide whether the defendant had been proven guilty beyond a reasonable doubt.

HB 265 would empower prosecutors to demand a jury trial, thus giving them veto power over any defendant’s attempt to waive the right.

It’s not out of the legal mainstream, as federal prosecutors and their counterparts in more than 20 other states already have that right. But defense attorneys and the Ohio Judicial Conference are against the move, which, they say has been tried several times in the past 20 years — and repeatedly failed.

“It’s an old battle,” said Barry Wilford, legislative director for the Ohio Association of Criminal Defense Lawyers. “We’ve been through this so many times.”

This time might be different. While similar bills never made it out of committee, Slaby chairs the House Criminal Justice Committee, giving him added leverage to steer the bill. He said he hopes to have proponent and opponent testimony on the bill in late January.

Yet even Slaby agrees that passing the bill will not end the debate, but will add other constitutional questions.

That’s because HB 265 would supersede the authority of the Supreme Court Commission on the Rules of Practice and Procedure, according to a judicial impact statement issued by the Ohio Judicial Conference.

Unless the committee agrees, the bill cannot be implemented, the statement says, because the Ohio Constitution expressly grants the authority to govern court process and trial procedure to the Ohio Supreme Court.

The statement also notes that the committee has recently, at the request of the Ohio Prosecuting Attorneys Association, considered allowing that change – and rejected it.

“For the General Assembly to act contrary in an attempt to coerce action by the commission after the commission fully considered the issue submitted by the Ohio Prosecuting Attorneys Association is unwise,” the statement warns. “To do by statute what has been rejected by the judicial branch by rule is an unwarranted interference with the Court’s authority.”

“They certainly see some constitutional problems,” Wilford said. “That goes pretty far for judges. This is about as out front as I’ve ever seen them get.”

There were nearly 83,000 felony case terminations across Ohio in 2010. Two thirds ended with a guilty or no contest plea.

Only 2,123 went to trial, with 1,455 going before a jury and 668 being tried to the bench, according to the Ohio Legislative Service Commission.

For misdemeanor criminal cases, nearly 7,000 went to a bench trial, while fewer than 700 went before a jury, according the Ohio Supreme Court.

It’s unclear how often prosecutors would veto defendants’ waivers. Wilford said the impact could be significant, particularly in municipal courts, giving prosecution more leverage in plea negotiations.

But Slaby said he thought it would be minimal. Because jury trials take more time and are more expensive, prosecutors would probably veto waivers sparingly, he said.

Slaby and John Murphy, executive director of the OPAA, both said allowing prosecutors the right to a jury trial would even the playing field.

“I don’t think it’s a major issue in the states that have it,” Murphy said. “The standard of justice in this country is trial by jury.”

But Wilford called it a “power play. They don’t want defendants to have control of anything.”

Wilford and Slaby agree on one thing: when defendants waive their right to a jury trial, they are doing so because, for whatever reason, they believe it is to their advantage.

That’s one reason why HB 265 should be supported, Slaby and Murphy said, because defendants may be steering cases towards judges with certain biases. That could be a judge that doesn’t handle expert testimony well, or is unfamiliar or uneasy with certain types of cases, they said.

The OJC statement says that concern would be covered by the Ohio Constitution which provides for the disqualification of judges. But Slaby and Murphy said that article wouldn’t cover what they’re talking about, which Slaby described as “not necessarily a bias, but a leaning.”

The OJC states that a bench trial is a legitimate option for defendants where “the nature of the crime creates some emotional bias that would interfere with the jury’s ability to be an impartial fact finder, the defendant may prefer to rely on the independent fairness and impartiality of the judge.”

While proponents claim HB 265 will even the playing field, Wilford said it would remove an option that defendants have had for decades, and that prosecutors were seeking to change the rules to their advantage.

“It’s a chess game,” Wilford said. “It removes an option you have in defending yourself.”

Contact this reporter at (937) 225-2057 or lgrieco@Dayton DailyNews.com.