State v. Johnson
197 Ohio App. 3d 631
| Ohio Ct. App. | 2011Background
- Johnson was indicted on three counts of sexual battery in the third degree in Wood County; he was represented by Gerken, whose disqualification was sought by the State under Prof.Cond.R. 3.7 because Gerken might be a trial witness.
- The State alleged Gerken obtained a written statement from the child victim at Burger King that contradicted prior statements and would render him an essential witness.
- Gerken argued that other witnesses (victim mother, the victim herself) could testify, that the central issue was evidence admissibility, that the Sixth Amendment affords choice of counsel, and that the prosecutor must commit to calling Gerken as a witness.
- The trial court held that Gerken’s potential status as a trial witness required disqualification, notwithstanding that he was only a potential witness.
- Johnson appealed, challenging the trial court’s failure to require a finding that Gerken was a necessary witness before disqualifying him; the issue was deemed dispositive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel’s testimony about authenticity makes him a necessary witness | State argues Gerken is a necessary witness on victim credibility | Johnson argues representations show Gerken not necessary; other witnesses exist | Disqualification improper; Gerken not shown to be a necessary witness |
| Whether disqualification was proper based on Gerken as a necessary fact witness | State contends Gerken’s testimony is essential | Johnson argues necessity not shown; resort to other witnesses possible | Abuse of discretion; failure to prove necessity invalidates disqualification |
| Whether the court erred by not applying Ohio case-law considerations for disqualification | State relies on established tests for necessary witness | Johnson argues court ignored required analysis under Ohio law | Disqualification reversed; remanded for proper analysis under Prof.Cond.R. 3.7(a) |
Key Cases Cited
- Clucas v. Vojtech, 119 Ohio App.3d 475 (1997) (abuse-of-discretion standard in attorney disqualification)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (disqualification as an extreme measure; strict scrutiny required)
- Akron v. Carter, 190 Ohio App.3d 420 (2010-Ohio-5462) (abuse of discretion and necessity in attorney disqualification)