Tuesday, April 7, 2020

Ohio Soldiers On

Dan Trevas previews an oral argument today before the Ohio Supreme Court

Erie-Huron County Bar Association v. Kenneth Ronald Bailey and Kenneth Richard Bailey, Case No. 2019-1028
(Huron County)

Father-son lawyers Kenneth Ronald (Ron) Bailey and Kenneth Richard (Ken) Bailey face disciplinary sanctions for their actions while representing a church pastor accused of raping two churchgoers under age 13.

The Board of Professional Conduct recommends that Ron Bailey be suspended for two years with one year stayed with conditions. The board recommends a public reprimand for his son based on disparaging posts about Erie County Common Pleas Court Judge Roger Binette on Facebook. Portions of those posts were reported by the Sandusky Register and Ken Bailey removed them.

Ken Bailey didn’t object to the board’s conclusion that he made a false statement regarding the qualification and integrity of Judge Binette and he isn’t participating in oral arguments. The Court is considering Ron Bailey’s objections to the board’s recommendations.

Attorney Seeks Time, Expert to Represent Client
The Erie-Huron County Bar Association charged Ron Bailey with several violations of the rules governing the conduct of Ohio lawyers based on his 2016 representation of Richard Mick. Mick was indicted in May 2014 on two counts of gross sexual imposition and two counts of rape stemming from alleged acts that took place 15 years earlier when the victims were younger than 13. Mick was first declared indigent and appointed a public defender.

The public defender represented him for the next 16 months, and the trial court agreed for the state to pay the cost to hire psychologist Terrence Campbell as an expert witness.

In 2015, Mick fired his public defender, and using funds donated by church members, hired Ron Bailey to represent him. He paid Bailey a $12,000 retainer agreed to pay $250 per hour for representation, and agreed to pay expenses associated with the cost of “investigators’ and “expert witness fees.”

In October 2015, Bailey took over the case and asked for several continuances. By that time, Campbell had died and Bailey requested he be replaced by Jolie Bram at the state’s expense. A third expert witness, Eric Ostrov was also expected to testify.

Dispute about Experts Arises
Prosecutors notified Bailey that Mick had previously been charged with sexual abuse in 2012 in a case involving his daughter. Ostov issued a report in the daughter’s case questioning the validity her testimony based on “repressed memory.” Bailey was provided the report and indicated that Ostrov asked Bailey to pay his travel expenses from Chicago to testify in the new Mick trial, as he shared the same view of repressed memory testimony as the deceased Campbell. Mick was acquitted in the 2012 case.

Prosecutors objected to Bailey’s request that the state pay for Bram, noting the presence of Ostrov and the fact that Mick shouldn’t be considered indigent because he was able to pay Bailey. The court denied the request to pay for Bram.

The trial was set for October 2016, and Bailey continued to insist that he was unable to prepare properly to represent Mick if he was denied the expertise of Bram.

Attorney Refuses to Participate in Trial
On the eve of the trial, Bailey, after consulting with his son, other lawyers, and Mick, developed the strategy that he wouldn’t participate in the trial and would force a mistrial. He would argue the denial of funds to hire Bram was of such constitutional magnitude that it would prevent a fair trial. He notified Ostrov not to travel to Ohio to testify.

When Judge Binette instructed the attorneys to begin jury selection, Bailey announced he “cannot and will not be able nor willing to proceed today.” Judge Binette called the lawyers to the bench and Bailey repeatedly requested that the judge continue the case and provide funding for Bram. The judge denied the motion and on three occasions requested that Bailey step back from the bench. Bailey refused and continued to argue his case. The judge notified Bailey he was going to cite him for contempt of court.

Bailey refused to participate in the trial and no witnesses were called on Mick’s behalf. Mick was convicted of the charges and sentenced to life in prison for the two rapes. Bailey was held in contempt, and ordered to pay a $250 fine and serve 30 days in jail.

The Sixth District Court of Appeals reversed Mick’s conviction based on ineffective counsel, and he was released from prison after 18 months. He was retried in 2019, which ended in a mistrial. A third judge was assigned in late 2019 to hear Mick’s case.

Board Finds Attorney Misconduct
While the bar association charged Bailey with several rule violations, a three-member hearing panel concluded that Bailey broke three rules. The panel found he disrupted a court case, acted in an undignified and discourteous manner toward the trial judge, and engaged in conduct that prejudiced the administration of justice.

The panel recommended a one-year suspension with six months stayed. The Board’s recommendation increased the sanction to a two-year suspension with one year stayed with the condition that he commit no further misconduct.

Attorney Denies Violations
Bailey objects to the recommended suspension, noting that he has no prior disciplinary violations in his more than 30 years as a practicing lawyer. He notes the 2019 mistrial of Mick’s second trial provides further evidence that he was correct in his position not to participate in a trial that would violate his client’s constitutional rights. Bailey acknowledges his actions disrupted the proceedings, but noted the panel found no evidence he acted in a dishonest manner and that his actions were sincere and in good faith.

Bailey notes that during his disciplinary hearing an expert witness supported his theory that he would have little success of winning an appeal had he allowed the trial to go forward then raised his objection to the lack of funding an expert witness.

He also notes that he didn’t intend to act discourteously toward the judge. He said he took the judge’s statements that he “may step back from the bench” to be advisory and not an order that he was disobeying. He asks the Court to find no violations of the rules.

Bar Association Support Sanction
The bar association maintains the board correctly found that Bailey’s fee agreement with Mick provided for funds to pay for the expert witnesses and he had no justification for disrupting after the trial court repeatedly denied his requests for funds. The association argues that Bailey engaged in a risky strategy to prevent his client from going to prison that backfired and his actions justify the suspension.

 Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Note from the court's web page: The Supreme Court of Ohio hears oral arguments in four cases on Tuesday and four cases on Wednesday. Oral arguments begin at 9 a.m. and will be conducted via videoconferencing. (Mike Frisch)

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