Prep 1, Admin Convenience 0, For The Moment

When John Wesley Hall first pointed toward Ohio public defender Brian Jones being held in contempt for his refusal to go to trial on one day notice, it seemed beyond absurd.  It was therefore shocking to learn via Skelly that an Ohio appeals court agreed.  How often does that happen?


“Where a trial court denies a continuance in a criminal trial and, as a consequence, defense counsel refuses to participate in the trial for fear that the defendant would receive ineffective assistance of counsel and that counsel would be in violation of DR 6-101(A)(2) and 7-101(A)(3), the court may commit error under the circumstances of the particular case in finding defense counsel in contempt and in imposing a fine.” In re Sherlock, supra, at paragraph two of the syllabus. “Defense counsel should not be required to violate his duty to his client as the price of avoiding punishment for contempt.”

While this appeal might well have been decided in far fewer words, in my view, the fact that the court actually arrived at the conclusion that a court actually held that a lawyer is empowered to refuse to engage in ineffective representation without fear of contempt is heartwarming to say the least.

Of course, the right result doesn’t mean that the court demonstrated a complete grasp of the problem.


“The rights of indigent defendants to appointment and effective assistance of counsel are neither lofty philosophical ideals nor rights that only function to give us all faith in the criminal justice system. *** The rights to appointment of counsel and to effective assistance ultimately impact not only whether people are convicted of crimes based on fair processes but moreover, whether innocent people are convicted of crimes they did not commit. These are both outcomes whose probabilities should be reduced whenever and however feasible.”

Just to be clear, the probability of the conviction of innocent people should be “reduced whenever and however feasible?”  And when is it not feasible?  And does that mean that convicting innocent people is hunky-dory if it would really, really inconvenience the judge?

Perhaps I’m being a little too picky, expecting an appellate court to use language that expresses concepts that are consistent with the Constitution and the fundamental concepts of justice the provide any semblence of legitimacy to the criminal justice system.  Let’s not get crazy, right?  I mean, just between us, it’s not like we can completely stop innocent people from being convicted, and it would just gum up the works if judges couldn’t railroad an unprepared lawyer to trial when he had a totally open slot in his calendar and nothing else to do, right?  And really, isn’t this what people expect from our court system?

Rather than castigate an appellate decision for suggesting that this is all a big joke between friends, it’s far less skeptical to show appreciation for the court having at least gotten the holding right.  And they did.  Brian Jones did the right thing by his refusal to go to trial, “under the circumstances,” and all is well with the world.

And for those of you who are more cynical than I, and thus don’t find sufficient comfort in a correct outcome, bear in mind that this is Ohio, where the Lima police are heroes.

2 comments on “Prep 1, Admin Convenience 0, For The Moment

  1. David Giacalone

    I say give the court a break, Scott. They are, as you note, in Ohio (where the lawyer ethics rules declare that advertising a discount fee is “misleading”). Perhaps “whenever and however feasible” is merely meant to acknowledge that there is no way to totally eliminate unfair process, erroneous outcomes, or ineffective counsel.

  2. Pingback: Too Great Expectations | Simple Justice

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