Rank Injustice?
The Kentucky Supreme Court has affirmed the order of its Court of Appeals granting an evidentiary hearing on claims of ineffective assistance of counsel.
The case
Rank was a practicing psychiatrist who developed a romantic relationship with a former patient named Misty Luke, who would become the victim of his assault. The couple lived together at Rank’s residence located in the same building as his professional office. After a heated argument with Rank, and apparently believing that he had left the building, Luke texted a message to Rank telling him that she was ending their relationship and leaving. Rank, still on the premises, reacted immediately by returning with a sword and attacking Luke. He stabbed her four times. Other residents in the building heard the commotion and intervened. They overpowered Rank, took the sword, and removed Luke from the scene.
Rank was arrested; his bail was set at $50,000.00 cash. Through the advice of an attorney-friend, Patrick Hickey, Rank hired Gettys for his criminal defense. Rank claims that Gettys and Hickey advised him not to post bond. Gettys obtained Rank’s power-of-attorney so that he would have control , over Rank’s assets, ostensibly to protect them from a possible civil suit by Luke.
The issues
Rank’s RCr 11.42 motion alleged several specific deficiencies in Gettys’ representation. Rank claims that Gettys failed to explore the possibility of an [extreme emotional disturbance] defense and that he failed to explain to him the legal concept of EED. He also claims that the effectiveness of Gettys’ representation was compromised by the conflicts of interest inherent in Gettys’ fee arrangement. Rank also claimed that Gettys failed to file a formal discovery motion, failed to follow criminal practice and procedure, failed to assist him in posting bond, and failed to adequately counsel him in making a knowing and intelligent decision to plead guilty. He also claimed that Gettys failed to present effective mitigating evidence at the sentencing hearing…
Rank’s motion raised a material question as to the reasonableness of Gettys’ investigation of the potential for an EED defense or, framed differently, whether it was reasonable for Gettys not to pursue an EED defense.. See Hodge v. Commonwealth, 68 S.W.3d 338 (Ky. 2001) (an evidentiary hearing is required to determine whether counsel’s decision was “trial strategy or an abdication of advocacy”). Gettys’ knowledge and understanding of the relevant facts relating to a potential EED defense are not evident on the face of the record. An evidentiary hearing on Rank’s RCr 11.42 motion was required to ascertain those facts.
But no hearing on conflicts claims
Rank alleges that his acquaintance and personal attorney, Patrick Hickey, not only recommended that he hire Gettys, but also acted as Gettys’ co-counsel. As described by Rank, Hickey’s role as co-counsel’ is demonstrated by Hickey visiting him in jail, advising him (in conjunction with Gettys) not to post bond and to liquidate his assets, counseling him about whether or not to plead guilty, providing materials to the expert witness, and sitting at counsel table during sentencing. Hickey had previously represented Luke in an eviction case and Rank contends that that representation created a conflict of interest for Hickey.
The court rejected a hearing on this and other claims of deficient performance of counsel.
AZCentral.com reported on the criminal case.
A psychiatrist was sentenced Tuesday to 15 years in prison for using a sword to stab a patient he had sex with and plied with narcotics.
Dr. Douglas Rank was sentenced after pleading guilty in October to first-degree assault. Rank, 52, will not be eligible for parole until he serves 85 percent of his sentence.
The charge was punishable by 10 years to 20 years in prison. Commonwealth’s Attorney Rob Sanders had recommended 15 years.
“She has some residual physical effects from the attack, but now most of the lasting effects are mental anguish – difficulty from being attacked by someone she cared about,” Sanders said after the hearing.
Rank’s lawyer, Robert Gettys, argued for the minimum sentence.
Gettys also called his client’s rabbi and former dance partner to testify on Rank’s behalf.
“Not one person mentioned he did a terrible thing,” Judge Gregory Bartlett said. “Why is that? Why is (it) all the people come and talk about what a great ballroom dancer he is and how passionate he is? They didn’t mention he did a terrible thing.
“He could have killed somebody.”
Rank did not speak during the 90-minute hearing.
Rank attacked Luke on Feb. 21 in an apartment above his one-room medical office after she broke off their relationship, Sanders said.
He used a Civil War-era sword with a two-foot-long blade taken from a military memorabilia shop and museum located in the same building as Rank’s apartment and medical office. Rank’s license to practice medicine in Kentucky is currently suspended.
(Mike Frisch)