Right to counsel of choice violated

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Courts cannot adopt a rule that “new counsel take the case as they find it.”

The 7th Circuit on May 19 vacated a defendant’s drug convictions, because the district judge arbitrarily gave the defendant a choice of proceeding pro se, or proceeding with counsel who was indisputably unprepared for trial.

Charged in Indiana federal court with drug charges, Sidney O. Sellers retained Illinois attorney David Wiener to represent him. Wiener, however, never entered an appearance, and Sellers was represented at all his court appearances by attorney Michael Oppenheimer, whom Wiener engaged to appear as secondary counsel.

The case was set for trial on May 12, 2008. On May 7 of that year, Sellers requested a continuance, but the district court denied the motion.

In denying the motion, the court noted the trial was just three business days away, Wiener had yet to file an appearance, Oppenheimer had missed several filing deadlines, and “it is typically this Court’s rule that new counsel take the case as they find it.”

Ultimately, the court granted a one-week continuance. On the day of trial, Oppenheimer said he had been fired; Sellers said he was unable to proceed pro se; and a newly-retained attorney, Santo Volpe, said he was unprepared and would need time to prepare for trial.

The judge denied the motion, and Sellers was convicted. Sellers appealed, and the 7th Circuit vacated the conviction in an opinion by Judge Ilana Diamond Rovner.

The court first observed that counsel’s failure to comply with deadlines was not a legitimate reason to deny the continuance. The court observed, “Under this reasoning, a defendant whose lawyer fails to comply with the court’s deadlines will be saddled with his ineffective counsel precisely because the lawyer is ineffective.”

Second, the court called the district court’s rule that new counsel must take the case as he finds it, “exactly the type of arbitrary rule that the Sixth Amendment prohibits.”

Third, the court found the case similar to Carlson v. Jess, 526 F.3d 1018 (7th Cir. 2008), in which the court also held that a defendant was denied his right to counsel of choice. In both cases, the motion for a continuance was made less than a week before trial was scheduled. In addition, only a short time had passed since arraignment (three months in Carlson; two months in Sellers). Further, there was no evidence that either Carlson or Sellers was “gaming the system” by asking for a delay.

The court also noted that Oppenheimer had expected from the beginning that Wiener, rather than he, would be the one trying the case.

Finally, the court found it unreasonable for the district court to deny the continuance based on what it found was a practice of attorneys seeking 11th hour continuances.

“There can be no more arbitrary and unreasonable application of a rule than as punishment for the missteps of another lawyer in an unrelated case,” Rovner wrote for the court.

Analysis

Given the similarities between the case at bar and Carlson, it could be said that the opinion is not particularly significant.

But it is significant in that it eliminates a possible basis for distinguishing Carlson.

The Carlson case was not tried in federal court, but in Wisconsin state court, in Ozaukee County, and the opinion contained two footnotes discussing Ozaukee County and its court system.

In one, the court noted that Ozaukee County has a small population, and a high median household income. Carlson, 526 F.3d at 1020, n.2.

In another, the court wrote, “We also note that Ozaukee County, perhaps because it’s fairly affluent, does not appear to be a hotbed of criminal activity. According to the Wisconsin courts Web site, www. wicourts.gov, the judges in Ozaukee conducted a total of only 22 jury trials in all classes of criminal cases — felony, misdemeanor, and criminal traffic — in 2007. That’s not a very heavy diet of cases compared to its neighboring county to the south (Milwaukee) where 389 such jury trials were conducted in 2007.” Id., at 1026, n. 5.

The footnotes seem to portray Ozaukee County as a sleepy bedroom community in which courts can easily accommodate any request for a continuance without disturbing their schedules.

Arguably, prosecutors and courts could use these footnotes to argue that their communities are distinguishable, and therefore, courts are allowed to be stricter about enforcing their calendars.

The opinion in the case at bar, however, does not contain any such language. It thus eliminates distinction of Carlson based on the characteristics of the jurisdiction.

What the Court Held

Case: U.S. v. Sellers, No. 09-2516

Issue: Did it deny a defendant the right to counsel of his choice by refusing a continuance to accommodate new counsel?

Holding: Yes. Where the trial court arbitrarily denied a continuance, the defendant’s right to counsel of choice was violated.

David Ziemer can be reached at [email protected].