Percy Brown has never indicated that he wants to represent himself, but a judge says that may happen because he can't find an attorney to take his case after he allegedly threatened to kill two previous lawyers.
LOUISVILLE, Ky. (WDRB) -- His murder case has been pending for nearly five years, in large part a judge and prosecutor have said, because Percy Brown has chased away multiple lawyers, firing some and threatening to kill others, repeatedly delaying the trial.
Now, apparently for the first time in Kentucky, a defendant may be forced to represent himself in a murder trial.
The situation puts at odds Brown's constitutional rights versus Jefferson Circuit Court Judge McKay Chauvin not allowing him to subvert justice by shuffling through attorneys and continuing to delay the case.
"It is a unique, peculiar situation," Chauvin said in court earlier this year, adding there was no Kentucky legal precedent to follow in ruling a defendant had forfeited his right to an attorney.
Attorney Matt Farra, who has been appointed to represent Brown at least on the issue of whether he will be given an attorney for trial, said in an interview that "the right to counsel is one of your most basic constitutional rights. To strip him of that, I believe, would lead to a reversal at trial if he was convicted."
The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense."
But Chauvin has said in court that Brown has been through numerous attorneys since his 2008 arrest in connection with a 2004 shooting that killed 19-year-old Jennifer Nicole French – threatening to kill two of them, refusing to work with others and delaying his trial repeatedly.
"I can't get a lawyer to represent you," he told Brown in August.
In total, Brown has gone through eight attorneys in the murder and other pending cases.
Assistant Commonwealth's Attorney Erin White said Brown is trying to delay the trial as long as he can, noting that the longer a case is postponed, the better it is for a defendant because witnesses are less likely to be found or may forget important details.
"We don't want constitutional rights to be violated, but at some point it comes time to move on (with) the case," White said in an interview.
French's mother, Patty Bishop, called the situation a "never-ending nightmare" and blames both prosecutors and Brown for the delay in the case.
"He's finding loopholes and playing the system and the system is allowing him to do so. I'm angry with him and the system," Bishop told WDRB News during a lengthy interview Sunday. "I need closure. I do."
Bishop says her daughter - who the family called "Nikki" - was caught up in drugs and perhaps other activities she didn't share with family members prior to her death. Bishop says she had a dream about her daughter's funeral before her murder and feared something might be wrong. Those feelings were confirmed in mid-September of 2004, when French was found fatally shot in West Market Street boardinghouse where she lived.
Authorities have said French was suppose to testify against Percy Brown in connection to fraud charges. He would be charged with her murder five years later.
Wiping away tears, Bishop said her emotions always resurface when French's case comes up in court or garners media attention.
"They referred to her when she died as victim - homicide victim 46 - and that really outraged me. She had a name. She meant something to all of us.
"I feel guilty that I see her kids and I watch them grow and I know they're never going to get to know her."
Little case history
Both White and Farra said they could not find any Kentucky cases that directly addressed the issue.
In another rarity, as part of the process in deciding the issue, Chauvin recently held hearings in which multiple attorneys who have represented Brown were called in to testify about the events that led them to withdraw from representing him.
"It is a novel situation that everybody is trying to get their head around," Chauvin said in early August regarding bringing Brown's attorneys in to testify.
Attorney Ted Shouse told Chauvin during that August hearing that because of attorney-client privilege, he had a duty not to testify as to any communication he had with Brown.
Chauvin said he was in an "interesting position" as to whether he would require the defense attorneys to testify over the circumstances as to why they withdrew from representing Brown.
It is unclear what happened in the hearings, which took place in late August and early September, as the judge closed them to the public and media and sealed the records.
Farra had asked Chauvin to seal the hearings as the testimony could include alleged "criminal acts by the defendant toward" previous attorneys that could potentially bias future jurors and had nothing to do with his murder case.
In an interview, Farra said he believes, from his review of similar national cases, that Chauvin is required to first warn Brown that he is jeopardizing his right to counsel if any other incidents occur and may be forced to represent himself.
"It's my position that the judge hasn't done that," Farra said.
A 2009 Kentucky Supreme Court ruling found that a defendant may only represent himself at trial after being warned "specifically of the hazards ahead." The ruling did not directly address Brown's issue – a defendant who wants an attorney but may not be given one.
The court in that case, out of Jefferson County, said that prosecutors had argued the defendant had forfeited his right to an attorney – a first of its kind in Kentucky - because of his conduct, but that defendant wanted to represent himself so the argument was moot.
Farra pointed to a 1995 case in which the United States Court of Appeals overturned a judge's decision in Philadelphia to force a client to stand trial without an attorney – in part because he had threatened to kill his attorney. The appeals court ruled the trial judge failed to warn the defendant of the risks of self-representation.
White said she is unsure whether Chauvin has warned Brown, noting that the prosecution has not been privy to all of the discussions between the judge and the defendant.
She said her understanding from cases in other states is that there are three ways in which Brown can represent himself. He can waive his right to an attorney, which Brown says he has not done.
Or Chauvin can find that he has waived his right to an attorney either implicitly, which requires a warning, or by forfeiture, an extreme sanction based on the defendant's actions.
A different Court of Appeals case outside of Kentucky concluded that "a defendant who is abusive toward his attorney may forfeit his right to counsel."
Chauvin has said Brown threatened to kill two attorneys, accused one of working with prosecutors and the judge to ensure he was convicted, refused to cooperate and changed his mind repeatedly as to whether he even wants an attorney.
Farra, however, said Brown has "never once indicated he wants to represent himself."
Brown denied that he threatened his attorneys, claiming Chauvin was "biased, unprofessional and reckless," according to court records. Shouse, one of Brown's attorneys, said he could not comment on the sealed hearings or any communication he has had with Brown but said there have are no public records of threats made.
Chauvin and Brown have repeatedly sparred in the courtroom, with Brown led out of the court in February while he was telling the judge he was biased and should be removed from the case.
"You may run your lawyers off but you are not going to run the judge off. I'm here to stay," Chauvin responded.
"Well, I don't know about that," Brown said, adding that he was asking Kentucky Chief Justice John Minton to remove Chauvin.
Last year, because of Brown's "consistently irrational behavior," Chauvin ordered he be examined to see if he was competent to stand trial, according to court records.
He was found competent.
Chauvin can choose to provide Brown with yet another attorney or make the lawyer co-counsel, give him a "shadow" attorney that could help Brown out if necessary or force Brown to defend himself.
Lewis Katz, a law professor at Case Western Reserve University in Cleveland, said that while he was at first "taken aback" by the potential of a defendant being ordered to represent himself in a murder trial, "at a certain point, a defendant's conduct makes it impossible to fulfill that constitutional right... A judge has to be able to keep control of his courtroom."
Katz said he had not seen any similar cases but that ruling Brown must represent himself would bring up "all sorts of questions" about what happens if Brown refuses to behave himself during trial.
Would the judge shackle him in front of jurors? Make him leave the courtroom and cross-examine witnesses via a feed from elsewhere? And what about cross-examining witnesses of the victim?
White said that could certainly be a possibility and French's family is aware of what is going on.
Brown's sister, Vanessa Kelly, has said her brother is not guilty and has been locked up for more than four years awaiting trial while prosecutors and defense attorneys conspired against him.
"I know he is not guilty," she said in August. "He is not capable" of murder.
Asked about the claim that he had threatened to kill two of his lawyers, Kelly said, "That's nonsense... Where's the evidence?"
Keith Kamenish, one of Brown's former attorneys, said Brown never threatened him, that they had a good relationship and he only left the case for financial reasons.
"I think the man should be given a lawyer," Kamenish said in an interview. "There will come a time when you have to draw the line but I know that the time is now."
WDRB's Bennett Haeberle contributed to this report.