Chambliss and the right to counsel
The outcome of State v. Chambliss wasn't in doubt. Its impact on some other questions remains up in the air.
To refresh your recollection, as we say in the law biz, Chambliss arose from a rather bizarre set of events. Chambliss and several cohorts were charged with various drug counts, and rather than give up the name of the informant, the state gave the defendants a very favorable plea deal. The plea was taken before a visiting judge, but come time for sentencing, the assigned judge refused to accept the pleas, and set the case for trial. On the morning of trial, defense counsel informed the judge that they still hadn't seen the search warrant and affidavit, which had been sealed to protect the informant's identity, and expressed the view that they couldn't effectively assist their clients without that information. There were several remedies for this problem -- unsealing the affidavit is the one that most readily occurs to me -- but the judge instead resorted to a "Three R's" remedy: he removed the attorneys from the case, revoked the defendants' bail, and remanded them to jail.
The defendants appealed, and the 8th District had no problem reversing the remand (which it did peremptorily, just days later). The removal of the attorneys was another matter, though. Twenty years earlier, in State ex rel. Keenan v. Calabrese, the Supreme Court had held that removal wasn't a final appealable order: to press the issue, the defendant would have to go through the trial with his new attorneys, then appeal.
When I'd blogged about the 8th District's decision, and about the oral argument before the Supreme Court, I'd indicated that this position was doomed by the US Supreme Court's 2006 decision in US v. Gonzalez-Lopez. In that case (discussed here), Scalia had sided with the liberal wing in holding that refusal to allow the defendant counsel of his choice (in that case, via denial of post hac vice status) was structural error. As the 8th noted, this created a "win-win" situation for the defendant: if his new lawyers won the case, he'd get off, while conviction would result in near-automatic reversal. The Supreme Court in Chambliss unanimously agrees, quoting from Gonzalez to demonstrate the futility of a harmless-error test in such cases:
It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings. Many counseled decisions, including those involving plea bargains and cooperation with the government, do not even concern the conduct of the trial at all. Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternative universe.
Well, that was easy enough. But while the court's ruling is simple enough -- the syllabus provides, "A pretrial ruling removing a criminal defendant's retained counsel of choice is a final order subject to immediate appeal" -- some questions linger. To-wit, as we also say in the law biz...
What about appointed counsel? The court takes pains to indicate that it isn't addressing the question of the removal of appointed counsel. While it's certainly appropriate to abstain from deciding an issue that isn't presented, it's hard to see how the removal of appointed counsel could be affected by Chambliss. There are innumerable cases holding that one doesn't have the right to appointed counsel of his choice. If you don't have the right to insist that Joe Blow be your attorney at the outset of the case, you're not going to have the right to object if the judge decides to remove Joe Blow. One caveat to that: if the removal creates an issue of ineffective assistance. One might make the argument that removing Chambliss' counsel on the eve of trial created just such a situation, regardless of whether that counsel was appointed or retained.
Can Chambliss be extended to double jeopardy? The Ohio courts have long held that denial of a motion to dismiss on double jeopardy grounds isn't a final appealable order, on the same basis as Keenan: appeal after trial affords an adequate remedy. To a certain extent, Chambliss calls that into question. It's unlikely that Chambliss would have come out the same way had it not been for Gonzalez's holding on structural error, but the court still noted the inadequacy of the remedy of delayed appeal in removal cases:
A criminal defendant might exhaust his or her resources during the first trial, thereby denying that defendant the counsel of his or her choice. Further, if counsel of choice were later deemed to have been erroneously removed, the subject matter of the first trial, including the strategy employed, witnesses cross-examined, etc., would be stale and likely weakened.
It's tempting to think much of that would apply to double jeopardy. After all, there's certainly the judicial economy aspect: if an interlocutory appeal is successful everyone avoids an unnecessary trial. Still, I think there are problems in extending Chambliss here. One of the key reasons a post-trial appeal isn't adequate in Chambliss is because even if the defendant is successful, he's put through the ordeal of a second trial. That's not true in double jeopardy situations: true, he has to go through a trial, but if he's successful in asserting double jeopardy on appeal, that's the end of the matter.
How much discretion does a judge have to remove retained counsel? Again, the opinion takes pains to note that it's only addressing the issue of whether the decision to remove counsel is immediately appealable, not whether removal was appropriate. But given Chambliss and more particularly Gonzalez, a judge considering removal of retained counsel had best tread very lightly; while such decisions are supposedly reviewable for "abuse of discretion," this might be one of those rare situations where the standard doesn't essentially innoculate the judge's decision from meaningful review.
But what happens when a judge is confronted with the situation presented by State v. Dobson, which I discussed here? In a My Cousin Vinnie scenario gone horribly wrong, the defendant hired his sister, three weeks out of law school, and a friend with barely more experience, to represent him, with predictably disastrous results. (The State had signaled the outcome by filing a motion prior to trial seeking to disqualify the attorneys on the grounds that they essentially represented an IAC claim waiting to happen.) In reversing the convictions, the court noted that the trial judge had various weapons at its disposal to prevent such a travesty, such as removing the attorneys if their incompetence became apparent. Unmentioned in Dobson how that might be impacted by the great degree of deference accorded the defendant in his choice of counsel.