Jury convicts after trial with no defendant, no lawyer

A jury in Rochester this week got to see just how blind justice can be: So blind that the jury had to ignore that there was no criminal defendant or defense lawyer in the courtroom.

The jury rendered a guilty verdict Wednesday after a two-day trial that was so unusual even prosecutors opposed going forward, thinking a guilty verdict would be ripe for appeal. But state Supreme Court Justice Francis Affronti insisted on the trial and forged ahead.

On trial was Kody McKee, accused of threatening text messages and phone calls to a former girlfriend — threats so menacing they included murder. McKee allegedly threatened others, including the roommate of his past girlfriend.

He was scheduled for trial this week. He earlier had dropped an attorney, and Affronti ordered him to show up for trial with new counsel.

McKee did not show up. Nor did a lawyer show up.

The District Attorney's Office did not want the trial to go forward. Assistant District Attorney Leslie Schildt presented Affronti with past cases showing a trial verdict could be successfully appealed.

"The office vehemently opposed it," said District Attorney Sandra Doorley. "We presented case law which supported our position. It created an appealable issue."

Affronti could have issued a warrant for McKee's arrest, then assigned him a new lawyer once he was arrested and brought back to court. Instead he held the trial.

Affronti did dismiss some of the charges against McKee at the trial's outset. The judge on Thursday declined to comment, saying he could not do so because the case is still pending.

A judge, when setting a trial date, typically warns a defendant that he or she could still be tried even if not present. But those warnings apply to defendants, and trials have gone forward — some in this county — without the accused present.

But holding a trial without a defense lawyer is a different matter.

"You can be tried in absentia," said Jonathan Gradess, the executive director of the New York State Defenders Association, which provides resources for indigent defense. "I've never heard of a case where you're tried without your own lawyer. This is like an inquisitorial court carried out by a judge in another country,"

Oddly, there is a slightly similar case from Monroe County — the 2009 trial of Isiah Williams on forgery and grand larceny charges. Williams defended himself, then became so disruptive that he had to be removed. Part of the trial went ahead without him.

His guilty verdict was successfully appealed, but on the grounds that the County Court judge — the late John Connell — did not take the proper steps before deciding Williams could represent himself.

A bench warrant has now been issued for McKee, who, once apprehended, will be brought back to court for sentencing.

For now, he has no lawyer to represent him when that day comes.

GCRAIG@DemocratandChronicle.com

Twitter.com/gcraig1