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Removing a retained attorney

Charles is on trial for aggravated robbery, with gun specs.  He's had two appointed attorneys already, and he fires the second one and hires his sister.  She was admitted to the bar just three weeks earlier, and has never tried a case.  The State files a motion to disqualify the attorney on the grounds that her inexperience will inevitably result in reversal for ineffective assistance of counsel.  The judge denies the motion, and the trial proceeds.

James is on trial for aggravated robbery, with gun specs.  He had an assigned lawyer, but then retained one.  The lawyer he hired was in his 80's, and had never tried a criminal case before.  Two days before trial, and over six months after the lawyer had been retained, he filed a motion to suppress evidence.  The motion made no mention of the facts, and only law cited was that informing the judge that there was indeed a Fourth Amendment. 

On the day of trial, the judge discovered that the lawyer still hadn't gone over the discovery he'd been provided months earlier, and intended to present witnesses despite not having provided their names in response to the State's discovery request.  The judge removed the lawyer, and assigned another attorney to the case.

Cierra is on trial for aggravated murder.  A few days before trial, the court puts on a journal entry stating that it has just learned that the attorney "has not been certified to handle homicide cases in this court," meaning that the attorney isn't on the assigned counsel list for homicide cases.  In an "abundance of caution," she appoints the Public Defender as co-counsel.

Did the judges make the right call? 

The first one arguably didn't; in State v. Dobson, the 8th District reversed Charles' conviction and 60-year sentence, choosing to address only the "most egregious" of the twenty cited instances of ineffective assistance.  (Among them:  not bifurcating the gun specifications and trying them to the bench, with the result that defendant's prior convictions came in, and not cross-examining the victim as to her four felony convictions and her prior testimony that she was a PCP addict who frequently hallucinated.)

For the second case, we don't know yet:  it's scheduled for trial, and if it goes and the defendant is convicted, you can bet that the removal of counsel is going be raised on appeal.

In the third case, the judge vacated her order after a hearing in which she was assured that defense counsel had the qualifications to get on the homicide list if she'd applied for it. 

The commonality in all these cases is that we're talking about retained counsel.  In fact, if we weren't, we wouldn't be talking about this at all; the case law is abundantly clear that a defendant has no right to the assigned counsel of his choosing.

But the defendant does have the right to retained counsel of his choosing, as SCOTUS clearly established in United States v. Gonzalez-LopezThe defendant had hired an attorney from California to represent him in a drug-trafficking case in Missouri.  The court refused pro hac vice status, so Gonzalez-Lopez hired a local attorney, went to trial, and was convicted.  On appeal, the 8th Circuit reversed, holding that the trial court erred in denying permission to appear by the California attorney. 

The government appealed to the Supreme Court, arguing that any error was harmless, because the attorney Gonzalez-Lopez did eventually hire performed competently.  In a 5-4 decision, the Court rejected that, holding that denial of retained counsel of choice was structural error, and didn't require harmless error analysis. 

That doesn't' mean the defendant's right to retained counsel of his choice is absolute; there are numerous decisions holding that a trial court may refuse an attorney's entrance into the case on the eve of trial, for example.  But beyond that, things get dicey.

Take Cierra's example.  There is no "certification" that a person is qualified to handle homicide cases.  You have to meet certain qualifications to get appointments to handle homicide cases, but whether you do that is your choice.  Technically, anyone who's licensed to practice law is deemed competent to handle any case.  That's why I said that the first judge's decision to let the trial proceed was only "arguably" incorrect, despite the subsequent reversal:  the fact that the attorney had been a lawyer for less than a month didn't disqualify her from representing Charles.

The judge is on more solid ground in James' case, because there's a record showing the lawyer's incompetence.  But what if that had happened during the course of the trial, and the judge declared a mistrial?  That gets problematic, because if an appellate court decides that a mistrial shouldn't have been declared, not only is the case reversed, but double jeopardy bars a retrial.

What about the method used by Ciera's judge:  appointing someone as "co-counsel"?  We all know that one of the most difficult things to do in representing defendants is gaining their trust, and having the judge essentially state that she doesn't believe the lawyer is qualified to handle the case doesn't help.  Plus, how the shotgun marriage of the client and the lawyer to the newly-appointed counsel is supposed to work isn't at all clear.  Who makes the decisions at trial?

And it presents the potential for judicial interference in the attorney-client relationship.  What if the judge decides that the lawyer isn't "effective" in working out a plea deal, and so appoints another attorney to "help" in that regard?

Still, I have some appreciation for the judge's position in that case and the others:  their primary concern is ensuring that the defendant is represented competently.  Gonzalez-Lopez, though, makes it almost impossible for a judge to be pro-active in that regard.  Still, there's a good argument to be made that that's the way it should be:  if the attorney screws up, that's to be remedied by the appellate court, not pre-emptively by the trial court.


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