[Cite as In re Deters, 2020-Ohio-3518.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
IN RE: ERIC DETERS : APPEAL NO. C-190516 TRIAL NO. M-1900912
: O P I N I O N.
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 30, 2020
Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere and Katherine L. Barbiere, for Appellee Honorable Mark R. Schweikert,
Robert A. Winter, Jr., The Deters Law Firm Co. II, P.A., James F. Maus and Shawn Crawford, for Appellant Eric Deters. OHIO FIRST DISTRICT COURT OF APPEALS
C ROUSE , Judge.
{¶1} Defendant-appellant Eric Deters appeals the trial court’s judgment
finding him in contempt of court. For the reasons set forth below, we affirm the
judgment of the trial court.
Facts and Procedure
{¶2} In August 2017, the Ohio Supreme Court appointed appellee retired
Judge Mark Schweikert to preside over the multitude of medical-malpractice cases
involving Abubakar Atiq Durrani, M.D. The Deters Law Firm, with whom Deters is
employed, represents a large number of the plaintiffs in the Durrani cases.
{¶3} On April 27, 2018, all persons involved with the Durrani litigation agreed
to a gag order which generally prohibited public discussion of the Durrani cases and
their merits. The order came about as a means of settling a prior contempt motion filed
against Deters by the defendants in the Durrani cases. In January 2019, the defendants
again sought contempt charges against Deters for alleged violations of the April 2018
order. The trial court held a hearing on the motion on March 22, 2019. At the March 22
hearing, the court instructed Deters to come into compliance with the gag order
immediately and admonished him for his “foolish antics.” Deters assured the court that
he would follow the order. As a means of again settling the contempt allegations, all
parties and their agents entered into a second gag order.
{¶4} The second order specifically prohibited “discussing, or posting
information about, the cases and their merits with the general public through written or
electronic media, the Internet, including social media, blogs, and similar media formats
in any form.” The order also forbade “participat[ing] in interviews with the media
and/or from making public statements generally, including public demonstrations
regarding the pending cases.” It further ordered the removal of “content posted on any
2 OHIO FIRST DISTRICT COURT OF APPEALS
website and/or social media platform which is in violation of this Order[.]” By its terms,
the order applied to “all parties to the pending cases, their counsel, employees, agents,
and witnesses.”
{¶5} Following a case-management conference on August 6, 2019, the trial
court denied the Durrani plaintiffs’ request for group trials. In response to the August 6
order, Deters planned to issue a public comment to protest Judge Schweikert’s handling
of the Durrani cases. Upon learning of the planned comment, the court immediately
issued a notice to Deters, stating: “[T]o the extent that any such activity is a violation of
this Court’s previous orders to refrain from public comment regarding [the Durrani]
proceedings, and if the acts are observed by the Court, the Hamilton County Sheriff or
other officer of this Court, this Court will treat such act as a Direct Contempt subject to
possible incarceration[.]” The following day, Deters presented his public comment on
the Hamilton County Courthouse steps. Judge J. Howard Sundermann (acting on
behalf of Judge Schweikert), members of the Hamilton County Sheriff’s Office, some of
the plaintiffs in the Durrani cases, and local news reporters were present.
{¶6} A week later, the trial court issued a show-cause order. The order
instructed Deters to appear before the court on September 3, 2019, at 3:00 p.m. The
order further provided: “Said persons should bring their attorney and be prepared to
proceed. There will be no delay or continuance for counsel or otherwise.” The trial court
held the contempt hearing on September 3, 2019, at “approximately” 4:00 p.m.
Following the hearing, the court found Deters in contempt and sentenced him to 15 days
in jail. Deters filed this timely appeal.
Law and Analysis
{¶7} In one assignment of error, Deters challenges both the procedure and
merits of the contempt finding. Deters primarily argues that he was denied due
3 OHIO FIRST DISTRICT COURT OF APPEALS
process during the contempt hearing. First, Deters contends that he was denied the
right to counsel when the trial court conducted the hearing without obtaining a valid
waiver of counsel. Second, he claims that he was denied the right to a public trial
and the right to call witnesses when the court held the hearing after the courthouse’s
public hours. He also challenges the sufficiency of the evidence supporting the trial
court’s finding of contempt. Judge Schweikert defends the finding of contempt by
arguing that Deters’s conduct was in direct contempt of court, and thus, not subject
to due-process requirements.
I. Direct or Indirect Contempt
{¶8} Contempt may be either direct or indirect. In re Estate of Carrier, 1st
Dist. Hamilton No. C-030249, 2003-Ohio-6919, ¶ 13. The decisive determination is
whether the misconduct occurred in the presence of the court. Where the court lacks
personal knowledge of the conduct, and has to rely on information from witnesses to
establish contempt, the conduct is indirect contempt. State v. Stegall, 1st Dist.
Hamilton Nos. C-110767, C-120112 and C-120113, 2012-Ohio-3792, ¶ 39. The judge’s
reliance on witness testimony requires the trial court to afford the alleged contemnor
a certain level of due process. Id.; In re Chambers, 2019-Ohio-3596, 142 N.E.3d
1243, ¶ 32 (1st Dist.). “These rights include reasonable notice before the hearing, the
right to reasonable time to prepare a defense, the right to counsel, the right to
subpoena and call witnesses, the right to invoke the privilege against self-
incrimination (although the contemnor may be called as a witness), the right to an
impartial judge, and proof of guilt beyond a reasonable doubt.” In re Estate of
Carrier at ¶ 15.
{¶9} On the other hand, where the court has personal knowledge of the
conduct, the conduct is direct contempt. In re Thomas, 1st Dist. Hamilton No. C-
4 OHIO FIRST DISTRICT COURT OF APPEALS
030429, 2004-Ohio-373. Direct contempt may be found and punished summarily
pursuant to R.C. 2705.01. However, “[c]ourts must closely scrutinize proceedings in
which there is a departure from due-process guarantees out of concern for
potentially ‘grave abuses.’ ” Id. at ¶ 13. Accordingly, R.C. 2705.01 limits the court’s
power to summarily punish a contemnor in two ways: (1) the acts must be known to
the court personally such that no fact-finding determination is required; and (2) the
nature or quality of the acts must be such that the orderly and effective conduct of
the court’s business requires immediate suppression and punishment. Id.
{¶10} In this case, the trial court loosely followed the procedure for indirect
criminal contempt. The court provided Deters with written notice of the contempt
proceedings, acknowledged Deters’s right to retain counsel, allowed Deters the
opportunity to present a defense, and informed Deters about his right against self-
incrimination before he took the stand. Most importantly, the court held a hearing
and took evidence before rendering a decision. At the hearing, the court introduced
nine of its own exhibits, including a video recording of Deters’s public comment and
a screenshot of Deters’s Facebook posts. However, the court also relied on the
testimony of two sheriff’s deputies to verify Deters’s presence at the courthouse and
to authenticate the video recording of Deters’s public comment.
{¶11} Furthermore, the nature of Deters’s acts did not require immediate
suppression and punishment. Here, Judge Schweikert was concerned with
preserving the impartiality of the jury pool. However, Deters presented his public
comment on August 22, 2019, and the court successfully impaneled a jury five days
later on August 27, 2019. The court then issued the show-cause order on August 29,
2019, and held a contempt hearing on September 3, 2019. At that time, the jury trial
was well underway.
5 OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} Under these circumstances, we hold that Deters’s conduct warranted
an indirect contempt hearing with due-process protections.
II. Waiver of Counsel
{¶13} First, Deters contends that he was denied the right to counsel when the
trial court conducted the contempt hearing without obtaining a valid waiver of
counsel.
{¶14} A defendant may waive his right to counsel so long as the waiver is
made voluntarily, knowingly, and intelligently. State v. Nelson, 2016-Ohio-8064, 75
N.E.3d 785, ¶ 18 (1st Dist.). The record must show “that an accused was offered
counsel but intelligently and understandingly rejected the offer. Anything less is not
a waiver.” Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962).
{¶15} A review of the record demonstrates that Deters wanted to exercise his
right to counsel. At multiple points in the record, Deters told the court, “I don’t want
to proceed today without an attorney.” Deters also stated, “I will proceed pro se only
if the Court is forcing me to go forward at this hearing today.” When the court asked
Deters to sign a written waiver of counsel, Deters stated, “Please note whatever I sign
is going to be subject to my already on the record objection.” Deters then signed the
waiver and wrote “over objection” under his signature. Before the presentation of
evidence, the court recognized that Deters would “proceed under protest” and
“signed a waiver under protest.” Accordingly, we cannot find that Deters expressly
waived his right to counsel.
{¶16} In the absence of an express waiver, the trial court may infer a waiver
of the right to counsel when the defendant fails to obtain counsel in an attempt to
delay the hearing. State v. Fahey, 1st Dist. Hamilton No. C-880331, 1989 WL 45261,
*2 (May 3, 1989); State v. Boone, 108 Ohio App.3d 233, 670 N.E.2d 527 (1st
6 OHIO FIRST DISTRICT COURT OF APPEALS
Dist.1995). A defendant may not take advantage of the trial court by claiming his
right to counsel in order to frustrate or delay the judicial process. State v. Hook, 33
Ohio App.3d 101, 103, 514 N.E.2d 721 (10th Dist.1986), citing State v. Wellman, 37
Ohio St.2d 162, 309 N.E.2d 915 (1974). “Thus, when a defendant refuses to take
effective action to obtain counsel, and on the day of trial requests a continuance in
order to delay the trial, the court may, under the proper circumstances, be permitted
to infer a waiver of the right to counsel.” Id.
{¶17} We consider Deters’s failure to obtain counsel under the totality of the
circumstances. Boone at 238 (“[T]he court must consider the total circumstances of
the case, including the background, experience, and conduct of the accused
person.”). We first note that Deters is no stranger to the law. Once a practicing
attorney, and currently a law-firm employee, Deters has both legal knowledge and
direct access to the legal community.
{¶18} With respect to this particular case, Deters has a lengthy history of
contempt allegations. Prior to April 2018, the defendants in the Durrani cases filed a
motion for contempt against Deters for alleged violations of a previous court order.
On July 27, 2018, the court entered an agreed gag order to settle the contempt
charges. In January 2019, the defendants again filed a motion for contempt against
Deters for alleged violations of the July 2018 order. Deters appeared for a show-
cause hearing on March 22, 2019. When the court asked if he was represented by
counsel, Deters stated, “I’m going to always represent myself.” On July 31, 2019, the
court entered a second agreed gag order to again settle the contempt charges.
{¶19} With respect to this particular contempt charge, the trial court issued a
show-cause order on August 29, 2019, which provided: “Said persons should bring
their attorney and be prepared to proceed. There will be no delay or continuance for
7 OHIO FIRST DISTRICT COURT OF APPEALS
counsel or otherwise.” The following day, Deters responded to the order by way of a
157-page filing. The hearing was held four days later on September 3, 2019. Deters
did not move for a continuance until the beginning of the hearing.
{¶20} In light of the circumstances, we find that Deters, by inference, waived
his right to counsel and the trial court did not err in requiring him to proceed pro se.
III. Right to a Public Trial
{¶21} Second, Deters argues that the trial court’s decision to hold the contempt
hearing after the courthouse’s public hours violated his right to a public trial.
{¶22} An accused contemnor has the due-process right to a public trial. Ohio
Constitution, Article I, Section 10; State ex rel. Scripps Howard Broadcasting Co. v.
Cuyahoga Cty. Court of Common Pleas, Juvenile Div., 73 Ohio St.3d 19, 652 N.E.2d 179
(1995) (extending the right of public access to general contempt proceedings).
{¶23} Ohio courts provide little guidance on this issue, so we turn to the federal
courts for guidance. In United States v. Anderson, 881 F.3d 568, 573 (7th Cir.2018), the
Seventh Circuit recognized that certain courtroom closures do not rise to the level of a
violation of the right to a public trial. Whether a closure rises to the level of a
constitutional violation depends on the extent to which it implicates the values
underlying the public-trial right—to ensure a fair trial, to encourage witnesses to testify,
and to discourage perjury. Id. Thus, trivial exclusions that are limited in duration and
scope do not violate the defendant’s right to a public trial. Id. at 573-574.
{¶24} In this case, the closure was minimal. As a preliminary matter, the
closure was inadvertent rather than deliberate. The trial court originally scheduled the
contempt hearing for 3:00 p.m. Due to a Durrani jury trial in progress, however, the
hearing commenced at “approximately” 4:00 p.m. As part of their routine security
measures, court security locked the courthouse entrance at 4:00 p.m. Nonetheless, the
8 OHIO FIRST DISTRICT COURT OF APPEALS
doors to the courtroom remained open, and any spectators in the building prior to 4:00
p.m. could attend the hearing in its entirety. Indeed, several members of the press and
other interested spectators were in attendance.
{¶25} Further, it is unclear whether any effective closure existed at all in this
case. Deters makes no claim that anyone tried to attend after 4:00 p.m. but could not
get inside the courthouse. In fact, the record indicates the contrary. Sometime prior to
4:00 p.m., Deters left the courthouse. However, upon the court’s order, Deters
reentered the building and returned to the courtroom. Presumably, court security was
present and able to allow Deters access to the courthouse after hours.
{¶26} Under these circumstances, we cannot conclude that the partial closure of
only the courthouse entrance violated Deters’s right to a public trial.
IV. Denial of Continuance
{¶27} Third, Deters contends that the trial court’s denial of his motions for a
continuance violated his due-process right of compulsory process.
{¶28} The denial of a continuance is within the sound discretion of the trial
judge. State v. Ungar, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). An appellate
court must not reverse the denial of a continuance absent an abuse of discretion. Id.
{¶29} There are no mechanical tests for deciding when a denial of a
continuance violates due process. Id. Rather, “[t]he answer must be found in the
circumstances present in every case, particularly in the reasons presented to the trial
judge at the time the request is denied.” Ungar v. Sarafite, 376 U.S. 575, 589, 84
S.Ct. 841, 11 L.Ed.2d 921 (1964). On review, “we must look at the facts of each case
and the defendant must show how he was prejudiced by the denial of the
continuance before there can be a finding of prejudicial error.” State v. Broom, 40
Ohio St.3d 277, 288, 533 N.E.2d 682 (1988).
9 OHIO FIRST DISTRICT COURT OF APPEALS
{¶30} During his testimony, Deters moved for a continuance to secure the
presence of “witnesses who attended the event.” However, Deters failed to proffer
the desired testimony and how it would have been material to his defense. Deters
stated only that, “I had Sarah York here. I was going to call as a witness to some
notifications. And she had to leave. I got a text message here that she had to leave to
pick up her boys.” Therefore, Deters failed to demonstrate how he was prejudiced by
the court’s denial of his continuance.
{¶31} In closing his testimony, Deters also moved for a continuance to secure
the presence of Judge Sundermann. Specifically, Deters stated, “I mean Judge
Sundermann is a critical witness to me. That’s another thing you could do. You can
continue this. You can continue this to allow me to have Judge Sundermann.”
Deters had testified that he spoke to Judge Sundermann prior to the public
comment. According to Deters, he informed Judge Sundermann that he was
protesting Judge Schweikert and Chief Justice O’Connor’s refusal to grant group
trials for the plaintiffs in the Durrani litigation. Judge Sundermann allegedly told
Deters that he was allowed to criticize the courts.
{¶32} The trial court denied Deters’s request for a continuance because it
determined that Judge Sundermann’s testimony was inconsequential to the finding
of contempt. The court was solely concerned with the fact that it had previously
informed Deters what it considered to be a violation of the order and that Deters
intentionally disregarded those instructions. Notably, Deters testified that Judge
Sundermann told him not to mention Durrani’s name. Deters then admitted that “I
think I mentioned his name one time.” This admission is corroborated by court’s
exhibit six, video footage of the public comment, which showed that Deters twice
mentioned Durrani’s name.
10 OHIO FIRST DISTRICT COURT OF APPEALS
{¶33} Furthermore, Deters made no reasonable efforts to secure the presence of
Judge Sundermann. Deters did not attempt to subpoena Judge Sundermann prior to
the hearing, his reasoning being: “[W]e’re mulling over what we should do. Are you
really going to have the hearing? What’s going on? Let’s try to file the writ.” Deters
also waited until after the presentation of the court’s evidence, and towards the end
of his testimony (which spanned 42 pages of the transcript), to suggest a continuance
to secure Judge Sundermann’s presence.
{¶34} Under these circumstances, the court did not abuse its discretion in
denying Deters’s motions for a continuance.
V. Sufficiency of the Evidence
{¶35} Fourth, Deters challenges the sufficiency of the evidence supporting the
trial court’s finding of contempt.
{¶36} As a preliminary matter, Deters contends that insufficient evidence
supports his conviction because the court’s exhibits were never formally admitted
into evidence. The exhibits include a transcript of the March 22 hearing, the second
gag order, the August 22 notice, a video recording from the courthouse security
camera, a news article reporting on Deters’s public comment, prior court orders
sealing the Durrani verdicts, and a screenshot of Deters’s Facebook page listing the
redacted verdicts.
{¶37} Several courts have held that exhibits are deemed admitted where they
“were treated below, without objection, as if they were admitted into evidence.” United
States v. Barrett, 111 F.3d 947, 951 (D.C.Cir.1997). See, e.g., United States v.
Stapleton, 494 F.2d 1269, 1270 (9th Cir.1974) (seven exhibits marked for
identification but not formally received into evidence deemed admitted where
“[t]here was extensive testimony about each of them,” “both parties, and the judge,
11 OHIO FIRST DISTRICT COURT OF APPEALS
acted as if they were in evidence,” and “defense counsel raised no question about
the exhibits not being in evidence”); State v. Brown, 307 Kan. 641, 413 P.3d 783
(2018) (eight exhibits marked for identification but not formally received into
evidence regarded as admitted where the state’s witness provided extensive
testimony regarding the exhibits while they were displayed to the jury, the judge and
both counsel considered them to be admitted, and the defense made no issue of the
exhibits until his appeal).
{¶38} Here, the court marked the exhibits for identification and introduced
them. The court’s witnesses provided testimony regarding at least two of the
exhibits. Deters did not object at the hearing. In fact, Deters cross-examined the
court’s witnesses as if the exhibits were admitted. On appeal, Deters does not
suggest that the exhibits were inadmissible or should otherwise not have been
admitted into evidence. Therefore, the court’s exhibits are deemed admitted.
{¶39} Having concluded that the court’s exhibits were received into evidence,
we now turn to the sufficiency of the evidence. At the contempt hearing and on
appeal, Deters raised issue with the contents of the gag order and the court’s broad
interpretation of the order. However, Deters never appealed the gag order. In fact,
Deters agreed to follow the order as the court interpreted it to settle prior contempt
allegations. Therefore, the constitutionality of the gag order is not before us. Instead,
we are asked to decide whether, when viewing the case “in the light most favorable to the
trial court[,] * * * the facts would convince the average person beyond a reasonable
doubt that [Deters] intend[ed] to violate the court’s order[.]” Rohr Corp. v. Wendt &
Sons, Inc., 1st Dist. Hamilton No. C-961051, 1997 WL 770161 (Dec. 12, 1997).
{¶40} By its written terms, the gag order prohibited Deters “from making public
statements generally, including public demonstrations regarding the pending cases.” At
12 OHIO FIRST DISTRICT COURT OF APPEALS
the March 22 hearing, the court informed Deters of its interpretation of the order—that
“any comment that was reasonably expected to draw attention to [the Durrani litigation]
and that might impact on the jury pool would be a violation.” At the contempt hearing,
Deters acknowledged the court’s belief that “anything that brings light upon the Durrani
litigation * * * is a violation of that gag order.” Nonetheless, Deters admitted that he
wanted to bring public attention to the plaintiffs of the Durrani trials. In fact, Deters
invited local news channels to cover the public comment where he was “protesting with
great vigor Judge Mark Schweikert and Chief Justice O’Connor’s failure, failure,
disgraceful to not give these Durrani victims their trials[.]”
{¶41} Deters’s admission is supported by court’s exhibit six, live-stream video
footage of the public comment. During the comment, Deters detailed the procedures
implemented for “these cases” and “these plaintiffs.” Deters also stated: “These cases
have great, great merit.” Notably, Deters twice mentioned Durrani’s name and named
all of the Durrani plaintiffs in attendance at the comment. As reflected by court’s exhibit
seven, a local news channel subsequently reported on Durrani and the Durrani
litigation.
{¶42} The gag order also required the removal of “content posted on any
website and/or social media platform” which disseminated information about the
Durrani cases and their merits. At the contempt hearing, Deters testified, “I posted on
social media Deters Law Firm verdicts. I took out the name of every verdict. It doesn’t
mention Dr. Durrani at all. And I put the amounts on those verdicts totaling $89 million
in 14 months.” Court’s exhibit nine, a screenshot of Deters’s Facebook page, supports
Deters’s admission that he posted a chart of redacted Durrani verdicts.
13 OHIO FIRST DISTRICT COURT OF APPEALS
{¶43} When viewing this evidence in the light most favorable to the trial court,
the facts could convince the average person beyond a reasonable doubt that Deters
intended to violate the court’s order.
Summary
{¶44} For the foregoing reasons, Deters’s assignment of error is overruled and
the judgment of the trial court is affirmed.
Judgment affirmed.
M OCK , P.J., and W INKLER , J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.