Ohio public defender’s contempt case reversed

In August ’07 public defender Brian Jones was held in contempt of court for refusing to proceed with a trial 2 hours after he was appointed to a case. This week the Court of Appeals overruled the contempt, holding that the municipal judge abused his discretion in not granting a continuance so that the attorney could prepare for trial. (H/T Law of Criminal Defense)

{¶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.

Brian Jones is a hero, for standing up for his client and not giving in to the pressures of a system geared to strip our client’s rights from them. Even though his case was a simple assault in a municipal court (note – in South Carolina we don’t even provide attorneys for defendants charged in the municipal or magistrate courts), he refused to allow the court to brush aside the Constitution in favor of judicial economy.

{¶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 & EthicsJ. 495, 500. (Footnote omitted.)
{¶31} The rights guaranteed to citizens under the Constitution are clearly
defined and include the right to effective and competent assistance of counsel, the right to subpoena witnesses, the right to confront one’s accusers and above all a right to a fair trial. Counsel must be given ample opportunity to prepare, investigate and discover the facts of the accusation. Furthermore, counsel must have time to investigate witness testimony, the nature of the allegations, and develop possible defenses in order to
properly represent his or her client and provide effective assistance. The right to a
speedy trial is a right both constitutional and statutory which inures to the defendant not the court.
{¶32} By denying appellant’s motion for a continuance, Judge Plough improperly
placed an administrative objective of controlling the court’s docket above its supervisory imperative of facilitating effective, prepared representation and a fair trial.

The Court in this opinion has also laid out the reasons why public defenders everywhere need to insist on the funding necessary to provide an effective defense to their indigent clients, and stop making excuses and making do with what they are given by their legislatures.

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