Ethics v. Expediency: Public Defender Fined for Refusing to Try Case 2 1/2 Hours after Appointment
Washington, DC (August 27, 2007) – An Ohio public defender was fined $100 and given a three-day suspended sentence for refusing to go to trial unprepared in a multi-witness assault case the same day he was appointed. Portage County Municipal Court Judge John Plough imposed the sentence on Brian Jones after a three-hour hearing late Friday afternoon.
The sole witness at the contempt hearing was Arkansas lawyer and legal ethics expert John Wesley Hall, president-elect of the National Association of Criminal Defense Lawyers (NACDL). Jones was represented by NACDL member Ian Friedman of Cleveland, who questioned Hall for more than an hour about the ethics of the situation Jones was in. Hall was also questioned by the court.
The alleged contempt arose a week earlier on the day defendant Jordan Scott was scheduled to go to trial on the misdemeanor assault charge. The Portage County Public Defender’s Office was appointed to represent Scott on August 16. When Jones entered his appearance at 11:00 a.m. the next day, he learned that the case was set for trial that very day. The young attorney advised the court that he was unprepared for trial that day, but Judge Plough continued the case to 1:30 p.m., giving Jones 2-1/2 hours to prepare for trial. The public defender''s office has a policy against going to trial on a day’s notice, a common occurrence in Judge Plough''s court.
Jones tried to remind Judge Plough of his office’s policy, which he said the court had notice of, but the judge cut him off and ordered him arrested in open court. A deputy sheriff took the young lawyer into custody and confined him to an empty room in the courthouse where he was held for five hours before posting $100 bond. Plough continued the contempt hearing until August 24, and berated defendant Scott for not finding his own lawyer before trial.
The Ravenna Record-Courier reported that the incident was not the first time that the judge had threatened a public defender with contempt when appearing after being appointed with little time to prepare.
Ohio defense lawyers were outraged over Jones’ treatment and contacted NACDL. Portage County chief public defender Dennis Lager noted that defense lawyers have an ethical and legal duty to represent their clients competently and effectively, and not to go to trial unprepared.
After a number of phone consultations with Lager’s office and the Ohio Association of Criminal Defense Lawyers, NACDL President Carmen Hernandez, reaffirming the NACDL’s dedication to the right of indigent defendants to constitutionally-effective assistance of counsel, issued a statement condemning the Judge’s jailing of the public defender for standing up for his client’s Sixth Amendment rights. The NACDL press release was sent to news media and posted on the organization’s Web site.
“For the scales of justice to be balanced, both the prosecution and the defense must be prepared,” Hernandez said. “Asking a lawyer to go to trial without preparation is like asking a doctor to perform surgery before diagnosing the patient. Harm is inevitable”
NACDL President Hernandez joined Immediate Past President Martin S. Pinales of Cincinnati and NACDL’s Indigent Defense Counsel, Malia Brink on a conference call to discuss what the association could do to help. Friedman volunteered to represent Jones pro bono and Hall volunteered his services as an expert witness. Thanks in part to media coverage – Jones’ arrest was reported in the press from Cleveland to Pittsburgh and also on ABC News’ Web page – the courtroom was packed for Jones’ sentencing on August 24.
“Most of the lawyers in the area showed up,” Hall said. There were a lot of reporters in the courtroom also, from as far away as Pittsburgh, but Hall had to remain outside until he was called to the stand. Expert witnesses can be excluded from hearings in the discretion of the trial judge.
Hall testified that no one could prepare adequately for trial in 2 1/2 hours. “Nobody could. I couldn’t.”
During the sentencing hearing, the judge seemed to defend his action, stressing that he insisted that the defense go to trial as scheduled to avoid inconveniencing the prosecution’s witnesses. The witnesses had been under subpoena for two weeks, even though Scott had no lawyer until Jones was appointed. Plough also said that as a compromise, he would have granted Jones a continuance after the prosecutor had presented its case-in-chief. But, as Hall explained, without having spoken to the defendant’s witnesses cross-examination of the state’s witnesses would not have been meaningful at all because there would be no defense theory for cross-examination. The judge also noted in passing that most defendants plead guilty in his court anyway.
Jones was also assessed less than $50 restitution to compensate two of the state’s civilian witnesses who took a day off from work to attend the trial.
Friedman says that his client will appeal.