Thomas v. Mills

Decision Date15 June 1927
Docket Number20412
Citation157 N.E. 488,117 Ohio St. 114
PartiesThomas, Warden, v. Mills.
CourtOhio Supreme Court

Criminal law -Constitutional right of prisoner to confer with attorney concerning error proceedings - Exercise subject to reasonable rules and regulations of penitentiary - Warden's refusal to permit private interview abuse of discretion, when.

1. Under Article 1, Section 16, of the Ohio constitution, a prisoner confined in the Ohio Penitentiary after conviction for felony, has a constitutional right to confer with his attorney with regard to an error proceeding pending in the said felony prosecution.

2. Such right must be exercised in conformity with reasonable rules and regulations of the penitentiary.

3. In a case where a convict in the Ohio Penitentiary, who has been convicted of the offense of first degree murder and sentenced to the Ohio Penitentiary for life, has prosecuted error proceedings in the Court of Appeals seeking to set aside his conviction, and where the attorney of such convict in the error proceedings in question has applied for a private interview with his client, and where the convict has been confined in the Ohio Penitentiary for a period of over two months and during such time his attorney has not been permitted to see or confer with such client on account of the refusal of the warden of the penitentiary to permit such interview, it is unreasonable and constitutes an abuse of official discretion on the part of the warden of the penitentiary to deny to the attorney the right to privately confer and consult with his client.

The facts are stated in the opinion.

Mr Edward C. Turner, attorney general, and Mr. J. A. Godown, for plaintiff in error.

Mr. E L. Mills, Messrs. Knepper & Wilcox, Mr. P. E. Dempsey, and Mr. Brooklyn B. Bridge, for defendant in error.


This is an error proceeding prosecuted to a judgment of the Court of Appeals of Franklin county, which granted a mandatory injunction ordering the defendant, Preston E. Thomas, as warden of the Ohio penitentiary, to permit one Everett L Mills, attorney, to privately consult and privately converse with one Patrick Eugene McDermott, who was then and is now confined in the Ohio penitentiary under a conviction and sentence of murder in the first degree from the court of common pleas of Stark county, Ohio. In January and in February, 1927, Mills, the attorney for McDermott, came to the penitentiary at Columbus, Ohio, and demanded that the warden permit him to hold a private interview with McDermott with regard to certain error proceedings then and now pending for review of the murder trial in which McDermott was convicted. The warden refused to grant this interview and thereupon Mills filed a petition in the court of common pleas of Franklin county, praying for a mandatory injunction commanding Warden Thomas to permit him to hold the interview. The court of common pleas refused to grant the order prayed for and dismissed the plaintiff's petition.

Mills then appealed the action to the Court of Appeals of Franklin county, and later filed an amended petition setting up facts which had occurred subsequent to his first application to interview his client. The warden filed an answer which in general admitted the allegations of the petition and stated that he was willing to permit Mills to interview McDermott in his presence, or in the presence of an officer, but not in private. The Court of Appeals held two hearings on the case. Upon the first hearing it denied the peremptory writ, but after the second hearing, which took place subsequently to the filing of the amended petition, it entered an order directing the warden to allow the plaintiff to have a private interview with his client. At the same time the Court of Appeals made the following findings of fact and conclusions of law:

"The court further finds that the plaintiff, Everett L. Mills, is an attorney at law, entitled to practice in all of the courts of record of this state, and is now the attorney of record of one Patrick Eugene McDermott, who is now incarcerated in the Ohio penitentiary, at Columbus, Ohio, in the custody of the defendant, Preston E. Thomas, as warden of such penitentiary.

"That the said Patrick Eugene McDermott was heretofore convicted of the offense of first degree murder in the court of common pleas of Stark county, Ohio, and there is now pending in the court of appeals of Stark county, Ohio, error proceedings entitled: Patrick Eugene McDermott, plaintiff in error, v. State of Ohio, defendant in error, whereby the said Patrick Eugene McDermott is seeking to set aside the said conviction and to regain his liberty and his release from said Ohio penitentiary.

"The court further finds that the said Patrick Eugene McDermott has been confined in said peni- tentiary for a period of over two months, and that during that time the said Everett L. Mills, as such attorney, has not been permitted to see or confer with his said client, on account of the refusal of said defendant as such warden to permit the same.

"The court further finds that for said defendant as such warden to further deny to the plaintiff the right to privately confer and consult with the said Patrick Eugene McDermott with reference to the prosecution of said error proceedings would be unreasonable and would constitute an abuse of the official discretion of said defendant as such warden, which this court has heretofore held to be vested in him as such warden.

"It is further ordered and decreed that a mandatory injunction herein issue, requiring that the defendant, Preston E. Thomas, as warden of the Ohio penitentiary, permit the said Everett L. Mills to privately see, privately consult, and privately converse with the said Patrick Eugene McDermott, and restraining him as such warden from interfering in any manner with the right of said attorney to confer with said client, as heretofore found by this court."

A motion to certify the record having been refused in this case, the Attorney General of the state of Ohio filed a petition in error as of right, up on the ground that a constitutional question was involved.

The constitutional provisions applicable are found in Article I, Sections 10 and 16, of the Ohio Constitution, which read as follows:

"Section 10. * * * In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witness face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed * * *."

"Section 16. All courts shall be open and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay."

Is the constitutional right of McDermott infringed under Article I, Section 10, by the refusal of the warden to permit him to see his attorney?

Counsel for the warden contend that no such constitutional right is infringed in this instance, upon the ground that it is only the attorney who is seeking a conference with his client, and that the client does not desire a conference with his attorney. However, the record discloses that the warden states that McDermott, the prisoner, "did not want to talk because his attorney, Mills, was to see him today (March 16th)." A fair inference from this statement is that the client, at least upon that particular day, was not only willing to see, but desirous of seeing his lawyer. In our judgment, however, it is immaterial whether the client seeks his attorney or the attorney seeks the client. If the relationship of client and attorney actually exists, it is the duty of diligent counsel to seek a conference in order to consult as to steps to be taken in the proceedings. Surely an attorney is unfaithful to his trust if he does not, when in his judgment the occasion requires it, endeavor to confer with his client for the purpose of planning his case. Surely, also, the right to consult with one's attorney includes the right to have a conference, which is sought, not by the client, but by the attorney himself. Hence this objection on behalf of the warden is overruled.

It may be conceded that consultation with counsel is a necessary part of every defense, and such consultation rightly should take place not merely during the actual stages of the trial, but at every point in the proceedings. Moreover, such consultations should in all fairness be held in private. But does the specific provision of Article I, Section 10, guarantee the right privately to consult with an attorney except before and during the actual trial of the case in the trial court?

In its strict definition, the word "trial" in criminal procedure means the proceedings in open court After the pleadings are finished and the prosecution is otherwise ready, down to and including the rendition of the verdict; and the term "trial" does not extend to such preliminary steps as the arraignment and giving of the pleas, nor does it comprehend a hearing in error.

In Thompson v. Denton, 95 Ohio St. 116 N. E., 452, it was stated that the term "trial" in Article IV, Section 6 of the Ohio Constitution, is broad enough to include any judgment, finding, order, or decree, not interlocutory in its nature, affecting the substantial rights of a party to a...

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