Wednesday, February 6, 2019

The Quiet Lawyer

The Ohio Board of Professional Conduct has posted a complaint alleging that an attorney engaged in misconduct by, among other things, refusing to participate in his client's criminal  trial.

The allegations of the Erie County Bar Association include a number of continuances sought for a variety of reasons.

One motion contended that Ohio Bike Week would complicate parking near the courthouse; another involved his son's Las Vegas wedding. 

The Sandusky Register reported on the reversal of the ensuing conviction

An Ohio appeals court said a Sandusky pastor previously sentenced to life in prison for child rape must receive a new trial.

Richard Mick, 56, who was sentenced in Erie County Common Pleas Court in 2016, had his conviction overturned Friday by the Sixth District Court of Appeals. A jury originally found Mick guilty of four felony charges of rape and gross sexual imposition.

Mick, formerly a pastor at Lighthouse Baptist Church, appealed his conviction after his trial was notably marked by his then-attorney K. Ronald Bailey refusing to participate in the trial.

Bailey, in 2016, argued the trial should have been delayed, and Judge Roger Binette held him in contempt of court after Bailey told Binette he was “not participating” in the trial. Bailey eventually served a 30-day sentence in the Erie County jail for the contempt charge.

Bailey did not respond to requests for comment Friday afternoon.

Mick’s appeal, filed by his new Cleveland-based attorney, Russell Bensing, alleged Bailey’s refusal to participate in the trial violated his right to effective counsel, according to the appeal.

The appeals court agreed with Mick, according to a court opinion written by Judge Thomas Osowik.

“Although Mick could have waived his constitutional right to counsel, the record shows he did not,” Osowik said.

There are not any court dates set following the overturned conviction Friday.

Mick has another pending court case in Erie County Common Pleas Court, where he faces more counts of gross sexual imposition, according to court records. He has a pretrial in that case set for May 16.

From the Ohio Court of Appeals for the Sixth Appellate District

On the morning of trial, as voir dire was set to begin, Mick’s attorney announced that he “cannot and will not be able nor willing to proceed today.” He cited five reasons: (1) his own failure to secure his private investigator to testify at trial; (2) his client’s poor health; (3) inadequate time (five days) to review the jury questionnaires, (4) his own mental and physical fatigue due to “travelling approximately 4,000 miles in four days” before trial; and (5) the trial court’s denial of additional funding for an expert witness. Mick’s attorney suggested that the trial court declare a mistrial, based on his own refusal to participate in the proceedings...

In this case, the state argues that the decision by Mick’s attorneys not to participate at trial was a deliberate attempt to cause the court to declare a mistrial. Indeed, the transcript leaves no room for doubt that this was indeed their motive. Moreover, counsel actively defended Mick prior to, and even during the trial, albeit outside the presence of the jury. Thus, while we agree with the state, even deliberate trial tactics may constitute ineffective assistance of counsel if they fall “outside the wide range of professionally competent assistance.” Strickland at 689. A trial strategy consisting of a refusal to participate has been found to be objectively unreasonable. Martin v. Rose,
744 F.2d 1245, 1250 (6th Cir.1984), citing Strickland.

Ineffective assistance

We agree with Mick that the cumulative effect of his counsel’s decision not to conduct voir dire, to make an opening statement or closing argument, to cross examine any of the state’s witnesses, to call any witnesses or offer any evidence on behalf of Mick, or to proffer jury instructions amounts to a complete failure to test the prosecution’s case. Therefore, the narrow exception set forth in Cronic applies. Counsel’s abandonment of their client throughout the most critical phase of the government’s case against Mick deprived him of his constitutionally protected right to counsel. Mick need not show that he was prejudiced by his counsel’s representation...

Though the record discloses no discord between Mick and his counsel over their decision to abandon him during trial, there is no evidence of waiver. In fact, the trial court expressed its reluctance to question Mick directly on the subject, for fear of violating his attorney-client privilege and/or risking another motion to recuse. As explained above, however, the court could, and should, have questioned Mick to ascertain whether he understood the implications and consequences of his attorneys’ strategy to cause a mistrial. Any concern that counsel might seek to have the judge recuse himself must be secondary to Mick’s constitutional right to counsel. We find that Mick did not waive that right.

(Mike Frisch)

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