The defense attorney for a Turlock man convicted of murder dropped a legal bombshell in court Tuesday morning when he declared himself not competent enough to continue representing his client during the sanity phase of the trial.
Steven O’Connor, who represented Nicholas Harris during the murder trial, told Stanislaus County Superior Court Judge Linda McFadden that he could no longer represent Harris because he was incompetent at defending Harris during the guilty phase of the trial.
“I am not going to proceed in this case,” O’Connor said. “You can find me in contempt. You can notify the Bar.”
O’Connor’s statement that he could not continue with the case sparked some legal fireworks between himself and the judge, who informed O’Connor it was ultimately the court’s decision to remove counsel and not his.
“Attorneys don’t get the choice of participating or not,” McFadden said. “You need the court’s permission to be relieved as counsel.”
McFadden informed O’Connor any issues of competence on his part could be raised during an appeal and decided at that point, but O’Connor continued to refuse to represent Harris.
“You are representing Mr. Harris now and will continue to represent Mr. Harris,” McFadden said.
“That will not happen. Period,” O’Connor replied.
Just a few weeks prior a Stanislaus County jury convicted Harris on the charges of murder in the second-degree and arson, along with the enhancement that he used a deadly weapon, for the death of Mark Henson on Aug. 12, 2008. Harris testified during the trial that he had planned on setting Henson’s car on fire because he believed Henson was harassing his girlfriend and wanted to send him a message.
Henson was asleep in his car when he was awoken by Harris. Henson was repeatedly stabbed by Harris until he was able to break away and run for help. He died sitting on the front porch of a nearby residence.
Harris testified that after stabbing Henson he set the car on fire.
O’Connor had asked the jury to find Harris guilty on a lesser charge of voluntary or involuntary manslaughter. The defense claimed Henson was armed with a butterfly knife at the time, which caused Harris to fear for his life. No butterfly knife was ever recovered from the crime scene.
Harris testified that he is bi-polar and was in a manic state during the attack and his subsequent videotaped confession. He also testified that repeated playing of “Grand Theft Auto” affected his reactions and judgment that night.
The jury deliberated for several days before rendering their verdict. The second phase of Harris’ trial was to determine if he was sane when he killed Henson and it was scheduled to start Tuesday.
Judge McFadden told O’Connor his refusal to continue representing Harris was “improper and untimely” and showed disrespect for the court and the jury. The judge advised O’Connor to consider his actions and to consult an attorney before returning to the courtroom after the lunch recess. She also warned him his actions could carry serious consequences for him professionally.
“Mr. O’Connor, I am warning you, don’t tempt this court,” McFadden said. “The court will not accept this disrespect. I will hold you in contempt and I will inform the State Bar.”
After returning from the lunch recess, O’Connor staunchly held his position that he could not provide Harris with adequate legal representation. McFadden ordered the courtroom closed to everyone expect O’Connor and Harris so she could hear specifically what O’Connor felt his legal failings were during the trial.
After about 30 minutes the courtroom was reopened and McFadden said she found no reason to relieve O'Connor as counsel and once again ordered him to continue representing Harris.
“As I have stated numerous times already, I cannot do that,” O’Connor replied.
“I don’t know how the State Bar Association will look upon that,” McFadden said. “Based on your refusal to participate in the sanity phase … you are relieved as counsel of record and I appoint the public defender’s office to represent Mr. Harris.”
McFadden told O’Connor she would be informing the State Bar Association of his actions and that they will decide if his behavior merits any reprimands or punishment. She also scheduled a contempt of court hearing for O’Connor for July 15.
“This is the first time in my 25 years on the bench that something like this has ever happened,” McFadden said.
McFadden wants the public defender’s office in court on July 15 to gauge if the new attorney is ready to proceed with the sanity phase. O’Connor said Harris would likely be hiring private counsel, which could push the sanity phase further out.
The jury that found Harris guilty was initially asked if they could serve in a six week trial, so any delays could cause issues with jury availability, which in turn could have other legal repercussions on the case.