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Court must inquire when defendant complains

Whenever a defendant expresses dissatisfaction with his attorney, the court has an obligation to inquire why.

That Aug. 5 holding from the Seventh Circuit expands the duties of district courts, which, until now, only had such a duty if the defendant expressly requested new counsel.

The opinion also opens the door for nonviolent felons to argue that disarmament violates their Second Amendment rights.

Adam Williams was charged in Indiana federal court with various drug offenses, and being a felon in possession of a firearm. His underlying felony conviction was for robbery.

On the second day of trial, Williams complained to the court that his attorney had not previously shown him a video recording that had been put into evidence by the government the day before.

“I feel like my lawyer has failed me,” Williams said.

The district court responded, “Too late. We’re in the middle of a trial. We are going to go forward. I don’t care — at this stage, I really don’t care what you think. You got it?”

The jury acquitted Williams of two counts, but convicted him of the rest, including possession of a firearm as a felon.

Williams appealed, but the Seventh Circuit affirmed in an opinion written by Judge Michael S. Kanne, and joined by retired Justice Sandra Day O’Connor, sitting by designation.

The court agreed with Williams that the district court abused its discretion by not inquiring further into his concerns over his attorney’s performance, but held that the error was harmless.

In U.S. v. Zillges, 978 F.2d 369 (7th Cir. 1992), the court said that when a defendant complains about his attorney, the court has a duty to inquire into the basis for the complaint.

Zillges, however, involved a defendant’s express request for appointment of new counsel, and since then, the court has never held that it applies outside of that context.

“Today, we do,” the court wrote. “We think that the reasoning in Zillges applies with equal force regardless of whether a complaint is phrased in terms of an express motion for a new attorney or simply in terms of dissatisfaction with one’s current attorney.”

The court added, “The district court’s dismissal of Williams’s concerns was an abuse of discretion, and served to stifle what may have been legitimate concerns that Williams had about his attorney’s performance.”

Turning to the remedy, the court held that such an abuse of discretion requires a new trial only if the defendant can show prejudice. Finding that the record shows that Williams’ counsel was well-prepared, and that the evidence against Williams was strong, the court held that Williams could not meet that burden.

Williams also argued that the felon-in-possession statute is unconstitutional as applied to him, but the court disagreed.

Williams had relied on the court’s opinion in U.S. v. Skoien, 587 F.3d 803 (7th Cir. 2009), in which the court struck down a conviction for a domestic violence misdemeanant in possession of a firearm on Second Amendment grounds. But the panel decision in Skoien was vacated by the court en banc on July 13.

In the en banc opinion, the court accepted that some categorical exclusions of firearm possession are constitutional, and the court in the case at bar iterated that position.

Nevertheless, the court cautioned, “the government does not get a free pass simply because Congress has established a ‘categorical ban.’”

The court explained, “[D.C. v. Heller, 128 S.Ct. 2783 (2008)] referred to felon disarmament bans only as ‘presumptively lawful,’ which, by implication, means that there must exist the possibility that the ban could be unconstitutional in the face of an as-applied challenge.”

Applying intermediate scrutiny, the court found that the government’s interest in keeping firearms out of the hands of violent felons was served by the statute.

The court noted that Williams’ underlying felony conviction was for robbery, and that the victim was beaten so badly he required 65 stitches.

But the court left the door open for nonviolent felons to raise an as-applied challenge: “[A]lthough we recognize that sec. 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams. Even if the government may face a difficult burden of proving sec. 922(g)(1)’s ‘strong showing’ in future cases, it certainly satisfies its burden in this case.”

The court concluded, “Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of sec. 922(g)(1).”

David Ziemer can be reached at

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