Ohio Criminal Appeals Lawyer Blog

Defendant/Appellant Geno Battaia asked for and was appointed a lawyer to represent him when he was charged with criminal damaging and disorderly conduct. Battaia proceeded to secretly record every conversation his appointed criminal defense lawyer had with him and then he filed a grievance against his lawyer before his trial date. On his trial date Battaia decided to represent himself. The trial judge had Battaia sign a waiver of counsel, refused Battaia's request for a continuance, and found him guilty after a bench trial. On appeal Battaia was represented by a lawyer who successfully argued that the trial judge failed to engage Battaia in any meaningful colloquy about the rights he was giving up by waiving counsel. The Court of Appeals said "a talismanic statement by the court that the waiver [of counsel] is valid does not make it so." Read the decision in City of Parma v. Geno Battaia, 2012-Ohio-173, here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

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The Sixth Amendment to the Constitution of the United States and Section 10, Article I of the Constitution of Ohio give criminal defendants the right to counsel in most situations in the trial court. And it is not easy to waive your right to an attorney. Apparently, properly accepting a waiver of counsel is not easy for trial judges because a significant number of convictions are reversed on appeal because trial judges allow defendants to proceed without a lawyer even without an adequate waiver.

The case of State v. Brock, 2009-Ohio-6182, is the most recent example. The Licking County man showed up to his trial without a lawyer. The trial judge basically asked him if Brock wanted to proceed without a lawyer and Brock said, "yes, sir."

Of course that does not amount to an adequate waiver of counsel. Check out the Licking County Court of Appeals decision by clicking here if you want to see what the trial judge should have done.

has peeled away an important protection enjoyed by those accused of crimes for years.    Michigan v. Jackson, 475 U.S. 625, protected defendants by holding that "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police interrogation is invalid" (page 636).  Basically, defendants were off limits - without the protection of their counsel -  after arraignment and the government's chance to get the isolated defendant to say things that would be used against them would end.

Not anymore.  In Montejo v. Louisiana, by a five to four vote, the Supreme Court overruled Michigan v. Jackson.  The majority complained that the rule of Michigan v. Jackson interfered with the State's efforts to "obtain voluntary confessions" which efforts the majority called an "unmitigated good."  The majority figures that police can be trusted to properly advise defendants of their Miranda rights and if the defendant waives those rights, including the right to counsel, then the cops are good to go.  Basically, the Montejo case takes the counsel out of the Sixth Amendment Right to Counsel.  The majority noted that "any suspect subject to custodial interrogation has the right to have a lawyer present if he so requests."  But the defendant will face that question without the assistance of counsel now and "if he so requests" is not so cut and dry as I wrote here.

You may be aware that the US and Ohio Constitutions bestow the right to counsel upon an accused (fn1). But do you know how to invoke your right to counsel? Imagine you are in custody and being interrogated by police after they gave you your Miranda Rights. The US Supreme Court has said that police cannot question you if you invoke your right to counsel unless a lawyer for you is present. But how do you invoke that right?

The US Supreme Court has said that "maybe I should talk to a lawyer" is not good enough (fn2).  Ohio's Second District Court of Appeals has said that asking "may I find representation?" is not good enough either (fn3).  And Ohio's Tenth District Court of Appeals has held that "where's my lawyer" was not enough to invoke the right to counsel (fn4). 

"I want a lawyer" seems to be required.  So the next time you are in custody and being interrogated by police, and if you want a lawyer present, you may want to tell them "I want a lawyer" and say nothing more.  Repeat it, if necessary.  "I want a lawyer."  "What?"  "I want a lawyer."  "Let me clarify what you are saying here because we need you to be honest with us and tell us your side of the story so we can help you out."  "I want a lawyer."

fn1
Constitution of the United States, Amendment VI, Constitution of Ohio, Article I, Section 10

fn2
Davis v. United States, 512 U.S. 452

fn3
State v. Knight, 2008-Ohio-4926, paragraph 112

fn4
State v. Williams, 2003-Ohio-7160, paragraph 50 (which includes a great collection of examples)

Watch Professor James Duane tell you why you should not.