Thursday, July 16, 2020

Suspension; Reprimand

The Ohio Supreme Court announced a father-son bar discipline decision as summarized by Dan Trevas

The Ohio Supreme Court today suspended a Sandusky attorney for one year, with six months stayed, for refusing to participate in the trial of his client — charged with raping children — shortly after the trial started because he could not secure a continuance.

In a per curiam opinion, the Supreme Court unanimously decided to suspend Kenneth Ronald Bailey for this courtroom behavior, which initially resulted in a criminal conviction for his client and a  contempt-of-court conviction for Bailey. His son, Kenneth Richard Bailey, was publicly reprimanded by the Court for his posttrial Facebook posts falsely impugning the integrity of the trial-court judge.

Justices Sharon L. Kennedy, Judith L. French, R. Patrick DeWine, Michael P. Donnelly, and Melody J. Stewart joined the opinion.

Chief Justice Maureen O’Connor and Justice Patrick F. Fischer concurred in part, but stated they would suspend Kenneth Ronald Bailey for two years, with one year stayed.

Attorney Seeks Expert Witnesses
Richard Mick was indicted in May 2014 on two counts of rape of a child under age 13 and two counts of gross sexual imposition. He was declared indigent . The Erie County Common Pleas Court appointed a public defender to represent him and a psychologist to serve as a defense expert. In October 2015, Mick raised funds and hired Kenneth Ronald Bailey to represent him. The trial court continued the trial until May 2016 to allow Bailey time to prepare.

Bailey asked the court to appoint a new defense expert after the previous psychologist died. The court refused because Mick was no longer was indigent and was required to pay for his own defense expert.

Four days before the scheduled May trial date, Bailey sought a continuance on the grounds that his expert witness would not have sufficient time to complete a report and was unavailable to testify. The court rescheduled the trial for October 2016. Although Bailey asked to reschedule the trial again so he could attend a family wedding in Las Vegas, the trial judge refused to change the date.

Unable to move the date or get the court to pay for the new defense expert, Bailey decided on a new strategy — he would refuse to participate in the trial on the grounds that the court’s actions were of such magnitude that they prevented Mick from receiving a fair trial.

Attorney Argues with Judge
On the day of the trial Bailey appeared in court with Mick and was accompanied by his son, Kenneth Richard Bailey, who practiced with him, and another attorney. Bailey said nothing in advance to the court about his refusal to participate until the beginning of jury selection. He then announced “[I] cannot and will not be able nor willing to proceed today.”

During a conference at the judge’s bench, Bailey reiterated many of the reasons he sought a continuance and added that he was exhausted from traveling 4,000 miles in the four days preceding the trial.

After hearing from Bailey, the judge twice told him he “may step back.” Bailey refused and continued to argue his point. After the judge told him to step away from the bench for a third time, Bailey responded, “I may, but I won’t.”

The judge warned Bailey that he would be held in contempt of court if his behavior continued. Bailey continued to refuse to participate in the trial, and the judge held him in contempt. The judge proceeded with Mick’s trial.

Mick was convicted on all counts and sentenced to life in prison without the possibility of parole for the rapes and 60 months in prison for gross sexual imposition. For his contempt, Bailey was fined $250 and sentenced to 30 days in jail, which he served.

Convictions Challenged
Bailey appealed his contempt conviction and sanctions. The Sixth District Court of Appeals affirmed the trial court’s decision.

In March 2018, the Sixth District reversed Mick’s conviction, finding that Bailey’s refusal to participate in the trial deprived Mick of his constitutional right to the effective assistance of counsel. Mick remained in prison from the time of his 2016 conviction until September 2018. Mick was retried in 2019, which resulted in a mistrial, and a third trial is scheduled for August 2020.

Son Reprimanded for Social Media Comments
While his father was serving his jail sentence, Kenneth Richard Bailey began posting criticisms of the trial judge on Facebook.  In one post, he blamed the judge for the consequences of his father’s refusal to participate in the trial, stating that all the judge accomplished “was to make it a very long road to get the continuance we requested, make it cost the taxpayers an immense amount of money, and waste of week of 12 jurors[’] lives.”

The Sandusky Register wrote an article about the Facebook posts and about the father’s jail sentence. Shortly after, the son sent an email to the judge apologizing for his actions, and he removed his Facebook posts.

Bar Association Files Complaint
In January 2019, the Erie-Huron County Bar Association complained to the Board of Professional Conduct that the Baileys had violated several of the rules governing the conduct of Ohio attorneys. A three-member board panel heard the complaints and recommended a one-year suspension with six months stayed for Bailey and a public reprimand for his son.

The board recommended the public reprimand for the son, which the Court imposed, but it recommended that the father be suspended from the practice of law for two years with one year conditionally stayed.

Bailey objected to the board’s finding that he violated three rules by failing to refrain from conduct intended to disrupt a trial; engaging in conduct that was prejudicial to the administration of justice; and engaging in undignified or discourteous conduct that was degrading to a court. Bailey maintained that he justifiably disobeyed the court’s instructions because he interpreted “may step back” as permissive and not an order.

The Court, however, adopted the board’s findings that Bailey’s refusal to step back after three warnings, and his statement, “I may, but I won’t,” were undignified, discourteous, and degrading to the trial court.

Bailey also contended that his refusal to participate in the trial was justified and not prejudicial to the administration of justice because he did not have an expert witness or the means to obtain one. The Court rejected the argument, finding that Bailey had a psychologist available to testify. It also found Bailey could have asked the trial court to exclude the testimony of the one witness that his  expert had not had the opportunity to evaluate. Bailey could have raised objections to any unfavorable ruling and filed an appeal on that issue.

The Court also agreed with the board’s assessment that the trial court’s rulings did not make it impossible for Bailey to try Mick’s case, and that Bailey “embarked on a course to thwart justice rather than preserve it” by consciously deciding not to participate.

The Court also stated that Bailey’s conduct was extremely disruptive to the administration of justice.

“Not only did Bailey foreclose any possibility of Mick’s being acquitted of any charges at his 2016 trial, he ensured that Mick would spend time in prison and face at least one retrial. Nearly four years after Bailey took the administration of justice into his own hands, Mick, his accusers, and the public are still waiting for a final verdict in Mick’s case,” the opinion stated.

Recognizing that Bailey had already served a 30-day jail sentence for his contempt of court, the Court suspended him from the practice of law for one year with the final six months stayed on the condition that he commit no further misconduct. The Baileys also are required to pay the costs of the disciplinary proceedings.

2019-1363Erie-Huron Cty. Bar Assn. v. Bailey and BaileySlip Opinion No. 2020-Ohio-3701.

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The court on the son's Facebook posts

The board...found that Kenneth’s Facebook posts were understandably emotional. He was a relatively young lawyer working under the tutelage of his father, who had adopted a risky strategy in a high-profile case and wound up in jail for his contempt of court. The board credited Kenneth for taking his posts down after he learned that they had been published in a local newspaper and for his attempt to apologize to the judge. The board ultimately found that Kenneth had recognized his serious error in judgment, that he was appropriately contrite for his misconduct, and that it was a mistake that he would probably not repeat.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/07/the-ohio-supreme-court-the-ohio-supreme-court-today-suspended-a-sandusky-attorney-for-one-year-with-six-monthsstayed-for-r.html

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