By: dmc-admin//February 9, 2009//
If you want to substitute for another attorney a week before trial, and get more time to prepare, you need a reason.
Otherwise, the court will ask how it can employ a balancing test, with nothing to balance on your side.
Facing trial in Walworth County for six counts of sexual assault, Anthony L. Prineas moved a week before trial to substitute newly retained counsel for his previously retained counsel. Prineas also requested a continuance.
At a hearing two days later, the state informed the circuit court that the complainant and her family did not want the trial delayed.
Circuit Court Judge Robert J. Kennedy said he would not grant the motion unless Prineas could “give [the court] some extraordinary reason other than just a simple desire to change [attorneys] at this late date.”
Because no reason was offered, and the new attorney could not be ready for trial as scheduled, the court denied the motion.
At trial, Prineas was convicted of two of the counts, and acquitted of four. He was sentenced to 10 years in prison and 10 years’ extended supervision on one count, and 30 years’ probation on the other.
After he appealed, the Seventh Circuit released Carlson v. Jess, 526 F.3d 1018 (7th Cir. 2008). In Carlson, the court held that a Wisconsin state court defendant’s right to his counsel of choice was denied, when the trial court refused to permit substitution of counsel and a continuance on the eve of trial.
The Wisconsin Court of Appeals directed the parties to address the significance of Carlson, but, in an opinion by Judge Harry G. Snyder, the court found Carlson distinguishable, and affirmed.
In Carlson, the defendant was facing sexual assault of a child charges in Ozaukee County, and sought to substitute counsel a few days before trial. In support of the motion, substitute counsel submitted “a detailed explanation of the additional investigation she wanted to conduct before trial.” Carlson, 526 F.3d at 1020.
The motion was denied, and after exhausting his relief in state courts, Carlson sought relief in federal court. The Seventh Circuit found the denial arbitrary and unreasonable, and ordered that Carlson be retried or released. Id. At 1027-28.
However, the Wisconsin Court of Appeals found several significant distinctions between Prineas’ case and Carlson’s.
As noted, Carlson gave a detailed explanation why he wanted new counsel, while Prineas gave none.
Second, Carlson informed the court that he had a complete breakdown of communication between himself and his attorney, and said that they disagreed about whether to call certain defense witnesses.
In Prineas’ case, however, the court found: “Prineas did not specify the length of delay that would be required; he did not dispute his current counsel’s ability to try the case; the court considered the inconvenience to the court and the concerns of the victim; and Prineas provided no reason for substitution and the accompanying delay.”
Prineas raised several other issues on appeal, all of which the court rejected: inadmissible expert testimony; ineffective assistance of counsel; impermissible use of acquitted conduct at sentencing; and imposition of an unduly harsh and excessive sentence.
Substitution
The lesson of the decision is that, if a defendant seeks to substitute counsel and delay trial on the eve of trial, he needs to present some evidence of a breakdown in communication between defendant and counsel and/or that substitute counsel intends to pursue a different trial strategy and needs to conduct additional investigation or research to do that.
Counsel should also be prepared to estimate how much time will be needed before he can be ready for trial.
Two other aspects of this issue, which the Court of Appeals made no specific mention of, are also noteworthy.
First, the circuit court, at the motion hearing asked counsel if there was any “extraordinary reason” for substitution, and counsel said there was “no extraordinary reason.”
This is not the correct question for a circuit court to ask. It is understandable here, because the trial occurred in 2004, prior to the decision in Carlson, and even prior to a significant U.S. Supreme Court decision on the right to counsel of choice in U.S. v. Gonzalez-Lopez, 548 U.S. 140 (2006).
Nevertheless, in future cases, circuit courts should not demand “extraordinary” reasons for substitution and a continuance, but simply ask what the reasons are, and balance them against the reasons for not granting substitution and a continuance.
Second is the court’s failure to discuss in any meaningful way whether a continuance would cause “inconvenience to the court.”
The Carlson opinion by the Seventh Circuit contains two rather odd footnotes, in which the court discusses the demographics of Ozaukee County, and suggests that it is no burden on the courts in that county to reschedule a trial. Carlson, 526 F.3d at 1020 n.2, 1026 n.5.
The court noted that in 2007, only 22 jury trials were held in Ozaukee County, and called that, “not a very heavy diet of cases.”
In the case at bar, inconvenience to the victim, rather than to the court, was the predominant consideration. If relying on Carlson to argue that the defendant has a right to choice of counsel, counsel should be aware of these footnotes, and, possibly even, how many jury trials occur in the county in any given year.