From courtroom to bathroom: When lawyers plead for relief

A public defender’s allegation that she had an accident after a DeKalb County judge denied her urgent requests to take a bathroom break has many area lawyers wondering: Would I stay or would I go?

Attorneys provided differing takes, with some saying they’d try to tough it out and others saying they’d bolt from the courtroom.

Lawyers are pondering such uncomfortable thoughts in light of court filings that allege Chief Judge Courtney Johnson denied public defender Jan Hankins’ repeated requests to use the restroom, resulting in Hankins having an accident at the defense table during a murder trial in June. Johnson has said it was the result of a miscommunication and questioned whether the accident really occurred.

A courtroom deputy’s account, written in an incident report, appears to back up Hankins’ version of what transpired. The state’s judicial watchdog agency is investigating the incident, which raises questions about civility and courtroom protocol.

Atlanta criminal defense attorney Bill Morrison, who’s been practicing more than 30 years, said he’s never seen a judge deny a lawyer’s request to use the bathroom.

As for what he’d have done, “I would have gotten up and left the courtroom before I urinated in my feet. I would have dealt with the fallout later.”

The fallout could include a contempt citation. Maximum punishment: a fine of $500 and 20 days in jail.

It’s a terrible dilemma, Morrison said. “Obviously, (Hankins) felt like she couldn’t get up and leave. You know, it’s hard enough to defend your client in a murder case up against the District Attorney’s Office. Then to have something like this happen? Fortunately, it’s very rare.”

Marietta criminal defense attorney Ashleigh Merchant said she wouldn’t have left the courtroom.

“You don’t leave your client alone in court without a lawyer,” she said. “A witness could say or do something and you wouldn’t be there to object or hear what the testimony was.”

In his report, the courtroom deputy said he saw Hankins try to get the judge’s attention as she squirmed in her chair. And after Hankins wrote in big letters, “Bathroom” on a legal pad, the deputy passed a note to Johnson telling her the lawyer needed a bathroom break. But the judge said Hankins could wait, the deputy wrote.

The jury had to have been distracted by what was going on, Merchant said. “There’s a reason why this shouldn’t be happening. Everyone is supposed to be focusing on the testimony and the evidence being presented in court.”

Page Pate, an Atlanta criminal defense lawyer, agreed with Merchant that any lawyer who bolted from court, absent permission from the judge, would be flirting with a contempt citation.

“It’s a terrible thought,” Pate said of such a predicament. “But I think if I really had to, I’d whisper to my client I had to use the bathroom and go outside, take care of business and deal with the repercussions later.”

But courts also have to deal with such repercussions later. “A lawyer could be found to have given ineffective assistance for leaving the courtroom,” Pate said. “There are also appellate court rulings that address cases when a lawyer or the client wasn’t in court when witnesses testified on the stand. Some ordered new trials.”

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