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Kentucky Supreme Court: Criminal Defendant Has Right to Independent Counsel During In-Chambers Hearing on Fitness of Defense Counsel

Terrence Downs was on trial for a murder when, just before voir dire was to begin, the prosecutor approached the bench and informed the judge that there was an issue with the fitness and ability of defense counsel Brendan McLeod to try the case. At the bench conference, an appellate prosecutor told the court that another judge had approached her to tell her that McLeod’s thinking sounded “circular or disjointed” during a bond hearing in another case held earlier that day. Without informing Downs of why or inviting him along, the court moved into chambers where two other prosecutors testified that McLeod “did not seem himself” that day and was not “walking or speaking in his usual manner,” causing them concerns that he might have suffered a stroke or have some other neurological issue.

The trial court noted it had not seen anything wrong with McLeod. It questioned McLeod, who denied being on drugs or medication or having any personal problems or health issues that would affect his ability to try the case. He did note that he had been stressed by the prosecutor’s aggressive attitude in the case. The court ruled he was fit to proceed.

The prosecutor requested that Downs be told about the subject of the hearing. McLeod objected, saying it would corrode his relationship with Downs. The court decided not to inform Downs of the issues raised or the court’s ruling. When they returned to the courtroom, the court merely asked Downs if he was satisfied with McLeod’s representation, and Downs said he was.

Downs was convicted and sentenced to 25 years in prison. On appeal, Assistant Public Advocate Molly Mattingly argued Downs had the right to conflict-free counsel during the in-chambers hearing and to have been present for the in-chamber hearing or, at a minimum, the right to be informed about the issues raised in the hearing and the court’s rulings. She noted that the hearing turned on issues of fact, not issues of law, which might not have required the presence of the defendant. Further, she argued that no one in chambers represented the defendant’s interests.

McLeod was acting as a fact witness, not as Downs’ attorney, and his objection to Downs being informed of the hearing’s issues and ruling emphasized the fact that he was seeking to preserve the attorney-client relationship rather than being an advocate for Downs’ interests. The Kentucky Supreme Court agreed.

The Court explained that “a complete absence of counsel at a critical stage of a criminal proceeding is a per se Sixth Amendment violation warranting reversal of a conviction, a sentence, or both, as applicable, without analysis for prejudice or harmless error.” Allen v. Commonwealth, 410 S.W.3d 125 (Ky. 2013). The Court stated that the in-chambers hearing “failed to include the person most affected by the issues raised – Downs – who was on trial for murder. Whether Downs had a fit attorney representing him at trial is of utmost importance to the fairness of his trial.” Although Downs was not placed in an adversarial situation with McLeod, he was excluded from a fact-based inquiry into McLeod’s physical and mental ability to competently and effectively represent him, the Court noted. Downs should have at least been advised of the allegations against McLeod so that he could decide whether to retain independent counsel to advocate for his interests, the Court advised.

Thus, the Court ruled that the trial “court’s decision not to inform Downs of the Commonwealth’s allegations against McLeod and not offer him the opportunity to retain independent counsel to represent his interests was error of constitutional magnitude and mandates reversal.” 

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Related legal case

Downs v. Commonwealth



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