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00-2803 U.S. v. Morris

By: dmc-admin//August 20, 2001//

00-2803 U.S. v. Morris

By: dmc-admin//August 20, 2001//

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“Morris has shown that an actual conflict of interest existed under the second test. Wasserman would seem to have a self-interest in protecting himself from a malpractice claim. However, Morris’s argument was predicated on Wasserman’s purportedly false advice. The judge was aware of this potential conflict… However, the judge did not inquire into or remedy the conflict. At the hearing, Morris requested different counsel, but the judge refused to appoint one or to allow Morris time to find a new lawyer. Morris was forced against his wishes to choose between allowing Wasserman to speak for him or arguing the motion pro se. In situations such as Morris’s, courts have presumed prejudice. See United States v. Ellison, 798 F.2d 1102, 1107-08 (7th Cir. 1986) (finding prejudice due to an actual conflict of interest that occurred when counsel was not able to pursue his client’s best interest free from concern about potential self-incrimination); Lopez v. Scully, 58 F.3d 38, 41 (2d Cir. 1995) (presuming prejudice when arguing in favor of his client’s motion to withdraw his guilty plea would force the attorney to admit a serious ethical breach and subject him to liability for malpractice). We hold that Morris has demonstrated a possible denial of effective assistance of counsel, and we therefore remand this case for a hearing to establish whether Morris should be allowed to withdraw his guilty plea on the basis that Wasserman falsely led him to believe that the plea would not waive his ability to appeal the admissibility of evidence issue.

“The defendant was adjudicated guilty without a trial, so his victim did not testify. Nevertheless, because Morris is endeavoring to withdraw his guilty plea, a future trial is possible and the victim would be a most important witness for the prosecution. Morris has perpetuated his harmful influence in the victim’s life by persistently contacting her indirectly by relaying messages through his friends, and directly bytelephone and a letter. The purpose of all Morris’s communications has been to prolong his presence in the victim’s life and to insistently communicate his desire to have an intimate relationship with her in the future, the very type of contact for which he was incarcerated. The victim is particularly vulnerable because she is a child. The purpose of the no-contact restriction is not to punish Morris, but to protect his victim and her family from further harassment, and reduce the possibility of creating a reluctant witness. We emphasize that the use of no- contact orders must be reserved for rare and compelling circumstances, and we find such circumstances in this case. The district judge properly exercised his power to protect the administration of justice in granting a no-contact order.”

Remanded in part, and affirmed in part.

Appeal from the United States District Court for the Eastern District of Wisconsin, Clevert, J., Bauer, J.

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