Tuesday, January 30, 2018

Lawyer As Witness Disqualification Did Not Deny Fair Trial

The Ohio Supreme Court decided a case summarized by Dan Trevas

The Ohio Supreme Court today decided two cases that were orally argued at an off-site court session last October at Marietta High School.

Justice R. Patrick DeWine wrote both majority opinions. The Court affirmed the conviction of Deandre Gordon in one of the cases, holding that the trial court did not commit “plain error” when it joined two indictments against Gordon for trial. Gordon had argued that the joinder had prevented him from retaining his counsel  of choice. In the other case, the Court denied a writ of mandamus to landowners disputing an Ohio Department of Natural Resources’ (ODNR) decision. (See Court to Mark 30th Anniversary of Off-Site Court Program in Marietta).

Gang Member Charged with Crimes
Gordon was a member of the Loyal Always gang. He robbed Tevaughn Darling of about $7,300, shot him in the foot, and stole his rental car. Darling and Gordon had been friends, and Darling was afraid of reporting Gordon to police because of his gang membership. Darling eventually reconsidered and provided a video-recorded statement to a detective.

Gordon was indicted for the robbery and other related charges, and met with his attorney, Aaron T. Baker, to discuss his case. The Cuyahoga County Prosecutor’s Office gave Baker a copy of Darling’s videotaped statement, which Baker showed only to Gordon. The next day, an edited copy of Darling’s statement appeared on Instagram in a way that made it seem Darling was voluntarily providing information about the Loyal Always gang.

Darling received multiple threats based on the video and alerted the prosecutor’s office. This led the state to indict Gordon for “intimidation of a crime victim,” and Gordon asked Baker to represent him on that charge too.

Court Joins Cases, Disqualifies Attorney 
The prosecutor’s office requested that the trial court join the two cases, arguing the crimes were connected or part of a continuing scheme, and that Baker be disqualified from representing Gordon because he was a “material witness” in the intimidation case. Baker, on Gordon’s behalf, did not object to the cases being joined, and requested that he be allowed to continue representing Gordon. He stated that he was not a necessary witness in the case because he was willing to stipulate that he showed Gordon the video.

The trial judge granted both of the prosecutor’s requests. Gordon, now represented by another attorney, was convicted of the robbery-related charges, but acquitted of the intimidation charge.

Gordon appealed his conviction to the Eighth District Court of Appeals, arguing that his constitutional right to his choice of attorney was violated by the consolidation of the charges. The Eighth District reversed the trial court’s decision. The court concluded that Baker was not a material witness in the robbery case, and found that the joining of the cases—which resulted in the denial of Gordon’s request to have Baker represent him on the robbery charge--violated Gordon’s right to counsel under the Sixth Amendment to the U.S. Constitution. The prosecutor’s office appealed the decision to the Supreme Court.

Verdict Not Impacted by Barring Attorney
Justice DeWine explained that because Gordon did not object to joining the cases, the Supreme Court must find the trial court committed “plain error” to overturn his conviction. To reverse the decision, Gordon had to prove there was an obvious defect in the trial proceedings and that the defect affected the trial’s outcome.

The Supreme Court ruled that the lower court failed to acknowledge that Gordon’s alleged attempt to intimidate Darling not only could be used for the intimidation charge, but also could be admitted in the robbery case. That is because an attempt to intimidate a witness from testifying can be used as evidence to prove a defendant’s “consciousness of guilt” of the underlying crime. Baker would be the key witness to testify that only Gordon had been shown the Darling video before it showed up on Instagram, and that fact could be used to show Gordon’s “consciousness of guilt” of the robbery charges. Because Baker could be a material witness in both cases, the trial court did not commit plain error and Gordon’s rights were not violated, the Court concluded.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, and Patrick F. Fischer joined the opinion.

Justice William M. O’Neill, who participated in this case before his Jan. 26 resignation, dissented without a written opinion.

2016-1462State v. GordonSlip Opinion No. 2018-Ohio-259.

Video camera icon View oral argument video of this case.

(Mike Frisch)


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