Visiting Judge Thomas Lipps on Friday scheduled two Steubenville High School students' trial for three days in February, but that may change after he rules on a defense attorney's motion to have separate trials for the defendants.
Lipps set the 16-year-olds' trial for Feb. 13-15. Both defendants have been charged with rape, while one of the boys also faces a charge of illegal use of a minor in nudity-oriented material.
"I know that this has been going on for some time," Lipps said of the case, "and I want to get to it as soon as possible, but all of the dates the court was able to put out could not be met by one or another attorneys for the juveniles."
Walter Madison, representing the boy charged only with rape, filed a motion to sever the charges between the defendants and conduct a separate trial for his client.
Madison said the co-defendant sent his client multiple digital messages following the alleged crime. Some of the messages were sent "in jest," he said, but may still unfairly be perceived as incriminating against his client. "Some of it is just boy talk - locker room boy talk. Sometimes young men embellish situations. Nonetheless, some of the statements ... unfairly put a shadow over (my client) and he has said nothing or made none of these statements."
Additionally, those statements may compel the boy to forfeit his right to silence and take the stand in an effort to explain or put the statements into context, Madison said.
Assistant Ohio Attorney General Jennifer Brumby objected to the motion, saying the prosecution trusts Lipps to discern which statements reflect upon which defendant during a single trial. Ohio does not convene juries in juvenile court trials.
"The state feels that the court, as the trier of fact, is in the position to make an educated determination based on the law of what potential incriminating statements apply to which defendant and to not let those statements prejudice the court's judgment on the other defendant," Brumby said. "We feel confident that the court would be able to make those distinctions."
Lipps will wait for the prosecution to submit their objection in writing prior to ruling on Madison's motion. He did not set a return date, leaving the possibility that the next time parties convene will be on the first day of a trial.
"The court wants to be certain that there is a just determination in this matter - that there's a fair hearing for both the state and the defendants," the judge commented.
The defendants are accused of performing sex acts on a then-15-year-old girl in August while she was reportedly intoxicated to the point of unconsciousness. One of the defendants also allegedly used his cell phone to capture a photo of the girl naked, then sent to photo to others.
The boys remain on home confinement and continue to attend the Jefferson County Juvenile Court alternative school while awaiting trial. They were present in the courtroom Friday wearing collared shirts and ties, a change from the court-issued sweat pants and sweat shirts they wore while being held in the juvenile detention center.