STATEWIDE GRIEVANCE COMMITTEE
Darius Miller, Complainant vs. Jerald Scott Barber, Respondent
Grievance Complaint #00-0383
DECISION
Pursuant to Practice Book §2-35, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted a hearing at the Superior Court, 95 Washington Street, Hartford, Connecticut, on October 4, 2001. The hearing addressed the record of the complaint filed on November 6, 2000, and the probable cause determination rendered by a reviewing committee of the Statewide Grievance Committee on June 25, 2001, finding that there existed probable cause that the Respondent violated Rules 1.1, 1.2 and 1.3 of the Rules of Professional Conduct. The reviewing committee's probable cause determination was contrary to the determination of no probable cause filed by the New Haven Judicial District, Geographical Area 6 Grievance Panel on May 4, 2001.
Notice of the hearing was mailed to the Complainant and to the Respondent on August 30, 2001. The Complainant and the Respondent appeared and gave testimony. An exhibit was received into evidence.
This reviewing committee finds the following facts by clear and convincing evidence:
The Complainant retained the Respondent in or around December of 1998 to appeal a criminal conviction. The Complainant had been represented at the trial by the Public Defender's Office. The Complainant asked the Respondent to raise numerous issues on appeal, including the issue of juror misconduct.
On or about August 3, 1999, the Respondent filed a brief on behalf of the Complainant in the Appellate Court. The issue regarding juror misconduct was not raised by the Respondent on appeal. The Respondent, however, did claim in the statement of issues that the trial court erred in restricting the defendant's cross-examination of a witness. This claim had not been preserved by trial counsel. The Respondent argued in the brief that although the claim had not been preserved at trial, review was available under the doctrine set forth in State v. Golding, 231 Conn. 823 (1989).
With respect to the argument regarding review under the Golding doctrine, the Respondent stated the following in his brief:
To prevail under Golding, a
party must show that: (1) the record is
adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the
violation of a fundamental right; (3) the alleged constitutional violation
clearly exists and clearly deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation beyond a reasonable
doubt. Golding, supra, 235
The Respondent's brief did not provide any further analysis under Golding.
On or about August 15, 2000, the Appellate Court issued its decision in connection with the Complainant's appeal. With respect to the issue regarding the restriction of the Complainant's right to cross examine a witness, the court declined to review the claim because the Complainant had not presented the court with an adequate record to review the claim, nor had he provided any analysis of the claim in his brief. In a footnote, the court articulated its finding by stating the following: "The defendant has not presented us with the relevant portions of the transcript, and the only analysis he provides is to state that ‘[t]he defendant has satisfied all prongs of [the Golding] test.’"
This reviewing committee also considered the following evidence:
The Respondent maintained that he did not claim the juror misconduct issue on appeal because after reviewing the record, he made a legal determination that such a claim lacked merit. The Respondent testified that he advised the Complainant of his decision not to pursue this claim on appeal.
The Respondent denied failing to present the court with an adequate record to review the cross-examination claim or that he inadequately briefed the claim. The Respondent argued that the Complainant's trial counsel failed to preserve the issue at trial, therefore review was only available under the Golding doctrine or the plain error test. The Respondent maintained that his brief requested review under Golding and that the claim was adequately briefed. The Respondent contended that the Appellate Court did not find that the Respondent had inadequately briefed the issue, but that the case did not meet the four prongs to obtain Golding review. The Respondent maintained that the court found that Golding review was not available because the record below was inadequate.
The Respondent testified that even if his brief was deemed to be inadequate on the Golding issue, an adequate brief would not have changed the outcome since the "Golding review was just not there." Lastly, the Respondent maintained that the Complainant's grievance lacked merit because the cross-examination issue and the juror misconduct issue were rejected by the Appellate Court in the Complainant's co-defendant's appeal.
This reviewing committee concludes by clear and convincing evidence that the Respondent engaged in ethical misconduct. The decision of the Appellate Court clearly reflects that the Respondent failed to present the court with the necessary transcripts from the trial in order for the court to review the cross-examination claim presented by the Respondent on appeal. The decision clearly indicates that the court did not review the cross-examination claim under the Golding doctrine because of the inadequate record provided to the court on appeal. Contrary to the Respondent's contention, the court did not review the claim on its merits and conclude that the prongs of Golding had not been met because the record below was inadequate.
Furthermore, the decision of the Appellate Court unequivocally states that the Respondent failed to adequately brief the Golding claim and therefore the claim was deemed abandoned. There is no evidence in the record, including the Respondent's brief, that would support a finding that the Respondent adequately briefed the Golding claim on behalf of the Complainant. We are not persuaded by the Respondent's argument that the court would have denied the claim even it had been adequately briefed because the record below did not support a review under Golding. Such statement contradicts the Respondent's brief which clearly argued to the court that all prongs of the Golding test had been satisfied. Once the Respondent made the claim, he had a duty to support it. This reviewing committee concludes that the Respondent's failure to provide the Appellate Court with an adequate record to review the cross-examination claim and his failure to adequately brief this claim, beyond a mere conclusory statement, constitutes incompetence, in violation of Rule 1.1 of the Rules of Professional Conduct and a lack of diligence, in violation of Rule 1.3 of the Rules of Professional Conduct.
This reviewing committee could not conclude by clear and
convincing evidence that the Respondent's failure to raise the claim of juror
misconduct in the appeal constituted a violation of the Rules of Professional
Conduct. The Respondent testified that after
reviewing the record, he made a legal determination that such a claim lacked
merit and so advised the Complainant.
Accordingly, we cannot conclude that the Respondent violated Rule 1.1,
1.2 or 1.3 of the Rules of Professional Conduct in connection with this
issue.
This reviewing committee concludes that the Respondent's violation of Rules 1.1 and 1.3 of the Rules of Professional Conduct warrants the imposition of a reprimand. Accordingly, we reprimand the Respondent and order the Respondent to attend four hours of a continuing legal education course in appellate court procedures, at his own expense, within six months of the issuance of this decision. The Respondent is further ordered to provide the Statewide Grievance Committee with written confirmation of his compliance with this condition within thirty days of completion of the continuing legal education course.
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Attorney Robert J. Kor
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Attorney Kathleen D. Stingle
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Mr. Edward J. Sodlosky