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"Kentucky Supreme Court: Hearing on Defense Counsel’s Fitness Is Critical Stage at Which Defendant Has Right to Be Present With Conflict-Free Counsel"

Terrence Downs was tried on numerous felonies, including murder, for the shooting death of Ronnie Reed. Shortly before voir dire was scheduled to begin, the Commonwealth approached the bench and requested a hearing, so the trial court could hear from witnesses who would testify of their concerns regarding Downs’ privately retained attorney Brendan McLeod. At issue was McLeod’s fitness to try the case. Judge Angela Bisig, the Commonwealth, McLeod, and the witnesses retreated to chambers for a hearing while Downs remained in the courtroom.

Assistant Commonwealth Attorney Justin Janes testified that at a bond hearing that morning in Judge Chauvin’s court, he became concerned about McLeod’s ability to work and that Chauvin told Janes that McLeod “should not be operating heavy machinery.” Assistant Commonwealth Attorney Scott Drabenstadt then told Judge Bisig that he was friends with McLeod, knew McLeod for many years, and observed that morning that McLeod wasn’t walking or talking in his usual manner and wondered if McLeod suffered a stroke or other neurological impairment.

McLeod then informed Judge Bisig that he wasn’t under the influence of any medication and that he didn’t have any health issue or any personal situation that would affect his ability to try the case. McLeod told Judge Bisig that he was “naturally hyper” but had stopped taking Valium the previous month.

The Commonwealth requested that if Judge Bisig determined McLeod was fit to proceed then the court should advise Downs of the allegations raised so that he could be aware and make known any concerns he had with McLeod’s representation. McLeod objected, arguing that informing Downs of the allegations would prejudice the attorney-client relationship.

Judge Bisig stated she hadn’t seen McLeod do anything inappropriate, hadn’t had any report of any odor of alcohol, and hadn’t seen any physical manifestation to indicate McLeod was impaired. Because Downs had a right to counsel of his choice, Judge Bisig declined to remove McLeod and declined to inform Downs of the allegations.

Downs was ultimately convicted of manslaughter and other offenses. On appeal, Downs asserted that he had a right to be represented by conflict-free counsel and to have been present at the in-chambers hearing, or at the very least, he should’ve been informed of the nature of the inquiry and Judge Bisig’s findings. Downs argued that the hearing turned on contested facts, and since McLeod was acting as a fact witness and not as Downs’ attorney, Downs had no one representing him at the hearing. And McLeod’s objection to the court of informing Downs of the inquiry revealed the inherent conflict, i.e., McLeod was seeking to preserve his attorney-client relationship rather than serving as an advocate for Downs.

The Kentucky Supreme Court observed “Kentucky case law is settled 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). A defendant also has a right to be present at every critical stage. Kentucky Rules of Criminal Procedure, Rule 8.28(1). A critical stage includes circumstances in which “the accused must find himself confronted, just as at trial, by the procedural system, or by his expert adversary, or by both.” Cain v. Abramson, 220 S.W.3d 276 (Ky. 2007).

However, a defendant need not be present in situations involving only legal arguments (as opposed to contested facts) between the court and counsel or other minimal events where the defendant’s presence makes no difference. Tamme v. Commonwealth, 973 S.W.2d 13 (Ky. 1998). And in Zapata v. Commonwealth, 516 S.W.3d 799 (Ky. 2017), a conflict of interest arose when the defendant moved to withdraw his guilty plea based on his attorney’s alleged deception. The Zapata Court ruled that the defendant was deprived of his right to conflict-free representation because the attorney was forced to either: (1) advocate for her client and subject herself to ethical violations and sanctions or (2) protect herself and argue against her client’s motion.

In the instant case, the Court stated “the trial court’s in-chambers hearing failed to include the person most affected by the issues raised – Downs – who was on trial for murder.... While Downs himself was not placed in an adversarial situation without counsel, he was excluded from participating in the procedural system during a fact-based inquiry that bore directly on his counsel’s physical and mental ability to represent him competently and effectively. At the very least, Downs should have been informed of the allegations against McLeod and given the opportunity to retain independent counsel to advocate his interests.” The Court concluded that Downs’s right to conflict-free counsel outweighed McLeod’s desire to keep the attorney-client relationship intact.

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Related legal case

Downs v. Commonwealth



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