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Removing a lawyer

The judge was concerned from the outset of the trial.  The prosecutor had spent close to an hour in voir dire, doing what lawyers are supposed to do:  making a favorable impression, convincing the jurors of his sincerity, and subtly inculcating them in various principles of law that would be helpful to the prosecution.  Yes, we have the burden of proving cases beyond a reasonable doubt, he told them; but that doesn't mean beyond a shadow of a doubt, you understand.  And it's not an impossible burden; every day, jurors in courtrooms just like this one are finding that the state did indeed satisfy that burden of proof.  The defense lawyer, on the other hand, spent no more than a few minutes, mumbling something about being "fair and impartial" before quickly sitting down.

Her concerns deepened as the trial progressed.  The defense lawyer's cross-examinations were meandering and pointless, but the case quickly went off the rails when it came time for the defense to present its case.  The defendant had been in jail the entire time the case was pending, but the jury wouldn't know that; he was nicely attired in a clean dark suit and white shirt and tie.  So why was the first question to the defendant's wife, "Where did you and your husband live before he was incarcerated?"  If the prosecutor had asked that, it might've been grounds for a mistrial.  True, some defense lawyers tried to milk pretrial incarceration for sympathy, asking questions about the hardship separation has caused and so forth, but this lawyer didn't.  Besides, if you were going to do that, why have the client dressed up?

And this wasn't some crackpipe case; the defendant was charged with molesting a 12-year-old, and the kidnapping with the sexual motivation spec carried a mandatory sentence of 15 to life.  So when the lawyer's missteps continued, and it became clear that he wasn't providing effective assistance of counsel, the judge did what she had to do:  she declared a mistrial and removed him from the case.

As if.

That might have been a viable option except for one thing:  the lawyer was retained.  Five years ago, in US v. Gonzalez-Lopez, the Supreme Court confronted a situation where the defendant's retained lawyer had been denied pro hac vice status, and he was forced to retain different counsel.  The appellate court found that the trial court had erred in denying pro hac vice status, but nonetheless upheld his conviction, concluding that he hadn't shown he was actually prejudiced by having a different lawyer.  Four justices bought that, but Scalia and the four liberals didn't, Scalia authoring an opinion which held that not only did a defendant have a right to the lawyer of his choice, but that denial of the right constituted "structural error," requiring reversal.  That was the basis for the Ohio Supreme Court's decision this year in State v. Chambliss, where it reversed a 20-year-old precedent and held that a defendant could immediately appeal the removal of his retained lawyer, rather than waiting until after retrial to raise the question.  (Chambliss is discussed here.) 

But what if the defense lawyer is a complete goof?  The 8th District confronted that situation last this year in a case that could have served as the concept pitch for My Cousin Vinnie.  Charles Dobson decided to hire his sister, who'd been a lawyer for all of three weeks, and her friend, whose prior experience consisted of "assisting" an attorney in two felony trials, to represent him in an aggravated robbery case.  In State v. Dobson, the 8th District reversed his conviction and 60-year-prison sentence, limiting itself only to the "most egregious" of the twenty claimed instances of ineffective assistance.  The concurring opinion argued that the right to counsel comprised "only a right to professionally competent, effective representation," and that "when it becomes apparent that counsel is so lacking in competence that inadequate representation is being provided, a trial court sua sponte may correct it so as to prevent a mockery of justice."  The problem is that all of the opinions cited for that view pre-date Gonzalez-Lopez.  Courts have consistently held that a defendant does not have a right to appointed counsel of his choice, so mid-trial removal of appointed counsel may not raise a problem (at least not that problem; more in a minute).  But there's a real question now of whether there's a higher bar for removal of retained counsel.  There are several district court decisions since then where the judge has indicated that while he might have previously removed retained counsel for a conflict of interest, he wouldn't do so in light of Gonzalez-Lopez. 

And those decisions, of course, involve pretrial removal.  The issue of mid-trial removal of retained counsel -- or of appointed counsel, for that matter -- for ineffective assistance poses another problem.  If the appeals court determines that the trial court got it wrong, the remedy isn't reversal and retrial; the defendant walks.  That's because a judge can declare a mistrial over defense objection only if there's a "manifest necessity" to do so; if the appellate court decides that such a necessity didn't exist, retrial is barred by double jeopardy.  (There's a nice opinion out of the 8th explaining all this, which I discussed in this post four years ago.)  .

So a judge confronted with a bumbling attorney has limited options.  Even if the trial hasn't started, removal is difficult if the attorney is retained, simply by virtue of the heightened regard for counsel of one's choice that flows from Gonzalez-Lopez.  (In Dobson, the State had actually filed a pretrial motion to disqualify the attorneys, arguing presciently that any conviction would be reversed for ineffective assistance.)  Once the trial starts, you have not only the Gonzalez-Lopez problem of removing retained counsel, but the double jeopardy problem if a reviewing court subsequently decides you made the wrong call.

The fact scenario I started this post with isn't hypothetical; it's from a case that I recently handled.  Last week, the judge granted a petition for post-conviction relief and awarded the defendant a new trial.  I think she would've much preferred to remove the lawyer during trial, and save the defendant almost a year of prison time, but I don't think she felt that she had that option.  And I think she very well might be right.


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