When indigent defendant Richard Mick fired his public defender and hired Kenneth Richard Bailey as defense counsel, he had no idea it would ultimately lead to his conviction on two counts of gross sexual imposition and two counts of rape resulting in a sentence of life without parole. The sentence was later reversed for Bailey’s ineffective assistance of legal counsel. A new trial resulted in a mistrial and Mick is currently awaiting his third trial on the charges.
How did this Happen?
When the defense’s expert psychologist died, the court denied Bailey’s petitioned for the appointment of a new defense psychologist. It reasoned that the defendant was no longer indigent as he had retained counsel. The court continued the trial to a date 3 days following Bailey’s son’s wedding in Las Vegas. Bailey’s repeated attempts to have the trial moved were denied. The court also denied a requested continuance when the defendant was hospitalized the weekend before trial and the defense had not had time to interview a prosecution witness identified late in the case.
Bailey refused to participate at trial. The court ordered him to participate and he declined on the basis that his client’s constitutional rights were so violated that he could not receive a fair trial.
At Bailey’s disciplinary hearing, he was found to have violated Prof.Cond.R. 3.5(a)(6) (engaging in undignified and discourteous conduct) when, at a bench conference, he responded, “I may but I won’t” to the judge’s instruction, “[Y]ou may move back.” Bailey was also found to have violated Prof.Cond.R. 8.4(d) (conduct prejudicial to the administration of justice) for refusing to participate in the trial. The court found Bailey to be in contempt and sentenced him to the maximum 30 days in jail and a $250 fine permitted under Ohio law for a first time offense.
The Supreme Court of Ohio suspended Bailey’s license for one year with 6 months stayed.
Meanwhile, Bailey’s son, Kenneth Richard Bailey, posted on Facebook:
“While I respect the Judge for his office and his faith, I’m probably the most upset. After witnessing the Judge condescendingly criticize prosecutors, probation officers, defense lawyers, and defendants—all in open court and in a rude manner— I think it’s time for the self-righteousness to stop. The fact it takes the Court years to rule on divorce cases after the trial is completed makes the need to keep the underlying case here moving is [sic] wholly dishonest. The fact the Judge’s treatment of other court employees has caused an unpublished rift in the courthouse, it is self-serving, and it adds nothing to jurisprudence. Someone needs to speak out against this, because it is not okay. Someone must run against him.”
He also responded to a comment that his father “was entitled to make a record, and he was denied that right. Just sad.”
In a later comment, he stated:
“All our 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 a week of 12 jurors[’] lives.”
The younger Bailey later removed the Facebook post and sent an apology letter to the judge.
The Supreme Court of Ohio issued a public reprimand to the younger Bailey for violation of Prof.Cond.R. 8.2(a) (making a false statement about the qualifications and integrity of a judicial officer). It reasoned that his Facebook comments, taken together were “specific remarks about judicial performance that, taken together, wrongly called into question [the trial judge’s] ability and integrity, . . . .”
The entirety of this opinion is can be obtained at 2020-Ohio-3701.
Eye on Ethics 