Imagine an attorney, fresh from law school, who seeks employment with his county public defender’s office in an effort to provide civil service to those whom he believes to be truly in need. Young, eager, and ready to begin practicing law, the lawyer spends his first weeks attending various proceedings under the supervision of more experienced litigators until becoming accustomed to the practice of criminal law. Four months later, he receives his own case load, undertaking primary responsibility for the management and resolution of various misdemeanor cases.
Per office policy, defendants charged with a crime in this particular county are instructed to schedule a meeting with the public defender’s office prior to appearing at their next court proceeding. Despite this clear instruction, one defendant does not speak with the public defender’s office until the day before his trial is scheduled to begin. He is charged with misdemeanor assault. After the routine intake, the matter is referred to the young public defender. Unfortunately, there is no indication to the intake staff or the lawyer that the proceeding the following day is actually a trial. As such, the defender travels to court with the intention of gathering evidence and discussing a potential resolution at a pre-trial. This belief was reasonable as he had never been to court on behalf of the defendant.
Attending to several other pre-trials that morning, the attorney appears in court, meets his client, consults with the prosecutor, and obtains known evidence pursuant to local discovery rules. Evidence reveals that, although involving a misdemeanor, this case is not necessarily a simple fact pattern. In a matter of moments, the attorney learns that there are several witnesses to the alleged assault. Moreover, he learns that the new client faces multiple felonies that may be affected by the outcome of the instant case. Based upon the new evidence and after conferring with his client, the prudent young lawyer determines that there is a need for further investigation and preparation including, but not limited to pertinent motion practice and interviewing potential witnesses. He begins to map out his preparation strategy which would begin once he returned to the office. While the preparation required is substantial, he believes this is a defensible case.
Preparing to return to the office, he abruptly stops after being informed by the trial judge that the case was scheduled to proceed to trial that morning. Worse, the court made its intention to proceed loud and clear. Unable to draw upon years of experience, counsel’s instinct told him that not only would he likely lose the case due to lack of preparation, but he would be in violation of the Code of Professional Responsibility if he even tried. In an attempt to preserve the new client’s right to effective legal representation, the attorney orally requested a reasonable continuance. After all, he had the case less than one day and was made aware of the evidence only moments earlier.
Concerned with the expeditious processing of the court docket, the trial judge indicated that the trial would proceed that day. In recognition of the accused’s right to a fair trial, the court permitted his lawyer two hours to begin and complete all necessary preparation. This would include all pre-trial motions, witness interviews, scene views, and whatever else was needed. A request for a jury trial would be out of the question, however, as he was very well outside of the applicable timing rules. A stern warning was then given to defense counsel: failure to proceed with trial as ordered will result in the imposition of Direct Criminal Contempt finding.
Facing options that a veteran criminal practitioner would rather run from, the green defender scrambled to find the best solution. On the one hand, he could proceed to trial as ordered. Regardless of outcome, he would be in violation of his ethical duties. If he did lose, chances are that he would be in need of counsel to craft his response to a disciplinary inquiry. More important to this ideological lawyer was the fact that his client was innocent until proven guilty. He strongly believed that his client’s right to a fair trial superseded all other considerations. If he were to start and lose the trial, there was no adequate remedy at law. An appeal would take months and his client might well be sitting in local jail. The other option was no more appealing. If he did not begin per the court’s order, he would be the one sitting in jail. Today, a criminal contempt determination is not a badge of courage without consequence. In addition to the immediate punishment, the subject of the contempt will face higher malpractice rates, will have difficulty with pro hac vice admissions, and will have a public citation on the world-wide-web for all prospective clients to view.
As stated, the trial was called two hours later. This “preparation” period did not allow for witness preparation or creation of necessary motions. This was just enough time to scour the law books in search of an answer to this predicament. Once in court, the scared young lawyer, pronounced his findings. For various long-standing reasons, he could not and would not proceed to trial. This decision was not intended to disrespect the court. It was made in honor of the criminal justice system and the legal system as a whole. His conviction might be embraced by some. Such was not the case this day. The sheriffs were ordered to take the new “defendant” into custody.
Better suited for a question on a bar examination, the above scenario is sadly real and true. In August of 2007, Portage County Public Defender Brian Jones found himself in this most unenviable position. A mere four months out of law school, Brian’s legal career and reputation had already been tarnished. This was not exactly the way that he had envisioned his legal career beginning. The next question dealt with where he was to go from there. Thankfully, veteran lawyers appreciated the unfairness of the situation and, just as important, the chilling precedent this would set in other cases. Both defense lawyers and prosecutors should have been concerned with the ruling. After all, our system was not designed to compel defendants to proceed to trial with unprepared lawyers. Similarly, the community would not want an unprepared prosecutor to be compelled to trial at the risk of freeing a truly guilty defendant. It is important to note that both scenarios contemplate a lawyer who is unprepared through no fault of their own. The Jones case supports the contention that circumstances do occasionally arise out of the lawyer’s control. It is these times that the trial court can exercise its discretion to avoid miscarriages of justice.
What started in a small courtroom in an otherwise insignificant case (not to the defendant) garnered attention across the United States. After the national media learned of the debacle, word spread like wild fire. Almost one hundred lawyers came to the young man’s aide. On a late Friday afternoon, a legal jousting that spanned almost four hours took place in the courtroom between the same trial judge and the lawyer’s lead counsel. Behind counsel sat criminal lawyers from across Ohio who travelled to this small courthouse to show their support for the public defender. The hearing included the testimony of expert witness John Wesley Hall, who is now the President of the National Association of Criminal Defense Lawyers. Countless issues and hypothetical fact patters were raised during the course of the hearing. At its conclusion, Mr. Jones contempt conviction was affirmed and a fine was imposed. Expecting the case to be appealed, the fine was stayed.
In late December of 2008, the Eleventh District Court of Appeals reversed the contempt conviction. The Court reasoned that effective representation required ample preparation and, intuitively, a sufficient period of time to prepare. Accordingly, the trial court’s denial of the continuance request was determined to be an improper exercise of judicial discretion. Moreover, the Eleventh District opined that trial courts should not rely upon the appellate process to correct the deprivation of a defendant’s constitutional rights, especially where said errors could have been prevented at inception.
While recognizing the significance of the Jones decision, we must not lose sight of the rationale and purpose underlying the Court’s opinion. In the midst of the decision, the fear harbored by some in the legal community as to the potential for abuse and/or the usurpation of judicial authority has been sufficiently documented. In this regard, one can certainly imagine a scenario where an attorney may attempt to utilize the Jones opinion where he or she is unprepared for trial as a result of inexcusable negligence or neglect. Consequently, judges could conceivably find themselves in the precarious situation of having to choose between maintaining control over their docket and assuring that criminal defendants are afforded Due Process and a fair trial.
Importantly, the Eleventh District’s decision merely recognizes legal principles adopted from the common law and codified in the Ohio Revised Code: namely, that a trial court has discretion to hold a lawyer in contempt of court where such action is warranted, and that said action is subject to appellate review under an abuse of discretion standard. A more thorough reading of the Jones opinion reveals that the intended beneficiary of the Court’s decision is not defense counsel, nor is it attorneys in general; rather, the impetus underlying the Eleventh District’s decision is to ensure that citizens’ constitutional rights are adequately protected and that justice is duly administered. The decision incorporated very pointed and admirable principles which include in pertinent part:
The rights of indigent defendants to appointment of 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).
Despite the legal implications affecting both sides of the aisle in the criminal justice system, the Portage County Prosecutor’s office has opted to seek certiori in the Supreme Court of Ohio. A stay of the appellate decision was sought by the State but was subsequently denied by the high Court. Mr. Jones and those who recognize the importance of a citizen’s right to a fair trial now await word on whether the case will once again be reviewed.
Ian Friedman is the principal of Ian N. Friedman & Associates, L.L.C., a Cleveland based criminal defense firm. He is an adjunct Professor at the Cleveland-Marshall College of Law where he teaches Computers & Criminal Law. He is also the current President of the Ohio Association of Criminal Defense Lawyers. He can be reached at 216.928.7700 or via email at .
Eric Nemecek is an attorney at Ian N. Friedman & Associates, L.L.C. His practice focuses on complex criminal matters including post-conviction relief. He can be reached at 216.928.7700 or via email at