brokeninoz
05-06-2005, 04:03 PM
Posted on Fri, May. 06, 2005 Wichita, Kansas
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Lawyer fails drug test; judge declares mistrial
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Defense lawyer Michael Lehr insists he was never impaired during the murder trial of Joseph Sutton.
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BY HURST LAVIANA
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The Wichita Eagle
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A murder trial was abruptly halted Thursday, a day after a judge ordered a defense lawyer to take a urine test and it showed he had been using marijuana and cocaine.
District Judge Ben Burgess ordered lawyer Michael Lehr to provide the sample late Wednesday afternoon in a restroom near his courtroom. Burgess was later told by the probation officer who administered the test that it had yielded a positive result.
Burgess said he ordered the test after hearing three reports that suggested Lehr could be under the influence of alcohol or drugs. One of those reports was an inquiry e-mailed from an Eagle reporter to Chief Judge Richard Ballinger after Lehr was observed in court this week.
The e-mail asked whether a lawyer who is impaired can continue with a trial.
The unusual actions came during the third and fourth days of the jury trial of Joseph Sutton, who is charged with second-degree murder in the Dec. 5 shooting death of Tyrone "Anthony" Lewis. Lehr contended during the trial that the shots were fired in self-defense.
Before ordering the urine test, Burgess told the lawyers that his aide had informed him that Lehr had been the butt of a joke by a juror. When the aide told the jury Wednesday that they could go home for the rest of the afternoon because there were some issues the judge had to resolve, a juror asked, "What are they doing, taking Mr. Lehr to jail?" prompting chuckles from other jurors.
Burgess said during a Wednesday afternoon hearing that he had suspicions about Lehr's behavior.
"The impression that I was left with was that he was very deliberate in enunciating words," he said, according to a court transcript. "His tongue seemed to be swollen. And that type of speech pattern I've observed when people are under the influence of drugs or alcohol, or perhaps sometimes both."
After declaring the mistrial Thursday, Burgess appointed lawyer Roger Falk to represent Sutton. He said the case would be placed back on the Sedgwick County District Court docket for a new trial.
After Thursday's hearing, Lehr declined to comment about the drug allegations but insisted to an Eagle reporter that "I have never been impaired inside a courtroom."
The office that disciplines lawyers in Kansas said Lehr received informal admonishments in May 1999 and June 2000 for engaging in activities such as "conduct that is prejudicial to the administration justice."
Deputy disciplinary administrator Janith Davis said there was no indication that either case involved drug use.
Lehr's actions in court this week will automatically be reported to the same office.
Although it is illegal to possess drugs, failing a drug test is not considered a crime in Kansas.
Throughout the trial, Lehr frequently asked questions that Burgess ruled were improper, and Lehr complained often about the number of times prosecutors objected to those questions. At times, Lehr appeared to be arguing with prosecutors and the judge.
For example, at one point, in front of the jury, Lehr told prosecutor Kevin O'Connor, "Well, since all you've done is try to hide everything.... "
The events that led to the mistrial began Wednesday afternoon when Burgess sent the jury home and convened a hearing in his office.
According to a transcript of the hearing:
Burgess announced that he was ordering Lehr to take the test. Lehr, at first, balked.
"I'm going to refuse to take the test until I consult with an attorney concerning my rights," he said.
Eventually, lawyer Lee McMaster was brought in to represent Lehr. McMaster asked that Lehr be allowed to quit the case, refrain from practicing law for two or three months, undergo a drug evaluation and enter treatment. But McMaster, in the end, agreed that Burgess had the authority to order the test.
"This is your courtroom," he said. "This is your case, and you have the inherent power to order virtually anything you wish. On the other hand, if he refuses, he's subject to contempt. And I'm sure, quite sure, he doesn't want to go to jail."
Under Kansas law, judges have broad powers when dealing with matters involving their courtrooms.
At the end of the hearing, McMaster made one last appeal that Lehr be allowed to forgo the drug test and instead be evaluated by a drug counselor.
"Would you like to reconsider that?" McMaster asked.
"And I've reconsidered that," Burgess said, indicating that he wanted the test.
The trial resumed Wednesday after the test was taken. Sutton was told about the situation and asked how he wanted to proceed. Burgess eventually decided to let him think about it overnight.
When the case resumed Thursday morning, Sutton said he wanted to proceed. O'Connor, however, said he thought there was no way the trial could continue.
He said it would be "impossible for another lawyer to step in the middle of a murder trial involving issues of self-defense, with statements to consider and coroner's reports and firearms experts to deal with."
At the end of the hearing, Lehr made his own motion for a mistrial.
"And the basis for that motion for a mistrial is that the court has... become an advocate for the state of Kansas. And I will rely on the record as to the basis for that. Beyond that, we'd ask this court to recuse itself from further hearings in this case.
"I would, for the record, state that at no time during my appearance in this courtroom have I been impaired.... This trial has been tried to the very best of my ability, and I've given everything I can to the effective assistance of Mr. Sutton. And I believe the record will bear that out," he said.
"I will also believe that the record will bear out the prejudice that the court has shown against the defense and in favor of the prosecution. And I believe those are grounds for mistrial."
Members of Sutton's family, who declined to give their names, were angered by Thursday's actions and said they thought Lehr had been doing a good job on the case.
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Lawyer fails drug test; judge declares mistrial
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Defense lawyer Michael Lehr insists he was never impaired during the murder trial of Joseph Sutton.
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BY HURST LAVIANA
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The Wichita Eagle
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A murder trial was abruptly halted Thursday, a day after a judge ordered a defense lawyer to take a urine test and it showed he had been using marijuana and cocaine.
District Judge Ben Burgess ordered lawyer Michael Lehr to provide the sample late Wednesday afternoon in a restroom near his courtroom. Burgess was later told by the probation officer who administered the test that it had yielded a positive result.
Burgess said he ordered the test after hearing three reports that suggested Lehr could be under the influence of alcohol or drugs. One of those reports was an inquiry e-mailed from an Eagle reporter to Chief Judge Richard Ballinger after Lehr was observed in court this week.
The e-mail asked whether a lawyer who is impaired can continue with a trial.
The unusual actions came during the third and fourth days of the jury trial of Joseph Sutton, who is charged with second-degree murder in the Dec. 5 shooting death of Tyrone "Anthony" Lewis. Lehr contended during the trial that the shots were fired in self-defense.
Before ordering the urine test, Burgess told the lawyers that his aide had informed him that Lehr had been the butt of a joke by a juror. When the aide told the jury Wednesday that they could go home for the rest of the afternoon because there were some issues the judge had to resolve, a juror asked, "What are they doing, taking Mr. Lehr to jail?" prompting chuckles from other jurors.
Burgess said during a Wednesday afternoon hearing that he had suspicions about Lehr's behavior.
"The impression that I was left with was that he was very deliberate in enunciating words," he said, according to a court transcript. "His tongue seemed to be swollen. And that type of speech pattern I've observed when people are under the influence of drugs or alcohol, or perhaps sometimes both."
After declaring the mistrial Thursday, Burgess appointed lawyer Roger Falk to represent Sutton. He said the case would be placed back on the Sedgwick County District Court docket for a new trial.
After Thursday's hearing, Lehr declined to comment about the drug allegations but insisted to an Eagle reporter that "I have never been impaired inside a courtroom."
The office that disciplines lawyers in Kansas said Lehr received informal admonishments in May 1999 and June 2000 for engaging in activities such as "conduct that is prejudicial to the administration justice."
Deputy disciplinary administrator Janith Davis said there was no indication that either case involved drug use.
Lehr's actions in court this week will automatically be reported to the same office.
Although it is illegal to possess drugs, failing a drug test is not considered a crime in Kansas.
Throughout the trial, Lehr frequently asked questions that Burgess ruled were improper, and Lehr complained often about the number of times prosecutors objected to those questions. At times, Lehr appeared to be arguing with prosecutors and the judge.
For example, at one point, in front of the jury, Lehr told prosecutor Kevin O'Connor, "Well, since all you've done is try to hide everything.... "
The events that led to the mistrial began Wednesday afternoon when Burgess sent the jury home and convened a hearing in his office.
According to a transcript of the hearing:
Burgess announced that he was ordering Lehr to take the test. Lehr, at first, balked.
"I'm going to refuse to take the test until I consult with an attorney concerning my rights," he said.
Eventually, lawyer Lee McMaster was brought in to represent Lehr. McMaster asked that Lehr be allowed to quit the case, refrain from practicing law for two or three months, undergo a drug evaluation and enter treatment. But McMaster, in the end, agreed that Burgess had the authority to order the test.
"This is your courtroom," he said. "This is your case, and you have the inherent power to order virtually anything you wish. On the other hand, if he refuses, he's subject to contempt. And I'm sure, quite sure, he doesn't want to go to jail."
Under Kansas law, judges have broad powers when dealing with matters involving their courtrooms.
At the end of the hearing, McMaster made one last appeal that Lehr be allowed to forgo the drug test and instead be evaluated by a drug counselor.
"Would you like to reconsider that?" McMaster asked.
"And I've reconsidered that," Burgess said, indicating that he wanted the test.
The trial resumed Wednesday after the test was taken. Sutton was told about the situation and asked how he wanted to proceed. Burgess eventually decided to let him think about it overnight.
When the case resumed Thursday morning, Sutton said he wanted to proceed. O'Connor, however, said he thought there was no way the trial could continue.
He said it would be "impossible for another lawyer to step in the middle of a murder trial involving issues of self-defense, with statements to consider and coroner's reports and firearms experts to deal with."
At the end of the hearing, Lehr made his own motion for a mistrial.
"And the basis for that motion for a mistrial is that the court has... become an advocate for the state of Kansas. And I will rely on the record as to the basis for that. Beyond that, we'd ask this court to recuse itself from further hearings in this case.
"I would, for the record, state that at no time during my appearance in this courtroom have I been impaired.... This trial has been tried to the very best of my ability, and I've given everything I can to the effective assistance of Mr. Sutton. And I believe the record will bear that out," he said.
"I will also believe that the record will bear out the prejudice that the court has shown against the defense and in favor of the prosecution. And I believe those are grounds for mistrial."
Members of Sutton's family, who declined to give their names, were angered by Thursday's actions and said they thought Lehr had been doing a good job on the case.