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Law of Criminal Defense - OH11: Brian Jones contempt case reversed

OH11: Brian Jones contempt case reversed

01/02/09

Permalink 11:27:53 am, by forhall, 695 words, 20422 views   English (US)
Categories: blog

OH11: Brian Jones contempt case reversed

Where the public defender was appointed the day before trial and requested a continuance to prepare, it was an abuse of discretion to deny a continuance and hold defense counsel in contempt for not proceeding to trial where he would have been ineffective per se. The administrative convenience of the court is an insufficient reason to go forward because ineffectiveness cannot be cured on direct appeal. State v. Jones, 2008-Ohio-6994 (11th Dist. December 31, 2008):

{¶24} “Where a trial court denies a continuance in a criminal trial and, as a consequence, defense counsel refuses to participate in the trial for fear that the defendant would receive ineffective assistance of counsel and that counsel would be in violation of DR 6-101(A)(2) and 7-101(A)(3), the court may commit error under the circumstances of the particular case in finding defense counsel in contempt and in imposing a fine.” In re Sherlock, supra, at paragraph two of the syllabus. “Defense counsel should not be required to violate his duty to his client as the price of avoiding punishment for contempt.” Id. at paragraph three of the syllabus.

{¶25} In the instant matter, the record reveals that appellant was appointed to represent defendant Scott the day before the case was set for trial. Appellant orally requested a continuance, which was denied by Judge Plough.

{¶26} “In evaluating a motion for a continuance, a court should note, inter alia:

the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case.” State v. Unger (1981), 67 Ohio St.2d 65, 67-68.

{¶27} Here, the facts demonstrate that a continuance was warranted. Although appellant did not request a specific length of time, the complete denial of any continuance by Judge Plough under the present circumstances was an abuse of discretion. Appellant had never requested and/or received any other meaningful continuances in this matter. Any inconvenience to the judicial system would have been minimal in comparison to Judge Plough’s proposal to have this court reverse him.

{¶28} In addition, the continuance requested by appellant was for legitimate reasons and his conduct did not give rise to the need for one. Again, appellant was permitted merely two hours to familiarize himself with the facts, the witnesses, and his client, before preparing and constructing a defense based upon his findings. The mere fact that defendant Scott was charged with misdemeanor assault does not render the matter simple or inconsequential. Based on the information available to appellant, there may have been any number of potential witnesses and defenses pertinent to the assault charge and it was his obligation to conduct a complete investigation.

{¶29} Under these circumstances, effective assistance and ethical compliance were impossible as appellant was not permitted sufficient time to conduct a satisfactory investigation as required by Disciplinary Rules 6-101 and 7-101 of the Code of Professional Responsibility, Rule 1.1 of the Ohio Rules of Professional Conduct, and the Sixth Amendment of the United States Constitution. It would have been unethical for appellant to proceed with trial as any attempt at rendering effective assistance would have been futile. Appellant properly refused to put his client’s constitutional rights at risk by proceeding to trial unprepared.

{¶30} “The rights of indigent defendants to appointment and effective assistance of counsel are neither lofty philosophical ideals nor rights that only function to give us all faith in the criminal justice system. *** The rights to appointment of counsel and to effective assistance ultimately impact not only whether people are convicted of crimes based on fair processes but moreover, whether innocent people are convicted of crimes they did not commit. These are both outcomes whose probabilities should be reduced whenever and however feasible.” Note, The Paper Tiger of Gideon v. Wainwright and the Evisceration of the Right to Appointment of Legal counsel for Indigent Defendants (2005), 3 Cardozo Pub.L., Policy & Ethics J. 495, 500. (Footnote omitted.)

Cleveland Plain-Dealer article here. The judge has been reversed twice in two weeks.

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