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Government can disqualify counsel of choice

The government can deny a defendant his counsel of choice, merely by asserting its intent to call his attorney as a witness.

The government maintained that, because the defendant had no lawful source of income, therefore his attorney’s retainer must be the proceeds of criminal activity, and it needed to call him as a witness.

On Monday, the 7th Circuit agreed.

Matthew Turner was indicted in federal court, along with four co-defendants, with drug trafficking offenses. Turner retained private counsel by paying an attorney $25,000 in cash, delivered by Turner’s girlfriend.

The government then filed a “Notice of Potential Conflict of Interest.” The government said it intended to call the attorney as a witness, and the district court disqualified the attorney. Neither Turner nor his attorney objected.

Another attorney was appointed by the court, and Turner was found guilty.

On appeal, he argued for the first time that he was denied the Sixth Amendment right to counsel of his choice. In an opinion by Judge David Hamilton, the 7th Circuit affirmed.

Although a decision to disqualify counsel is generally reviewed for abuse of discretion, the court reviewed for plain error instead, because Turner failed to object at trial.

On review for plain error, a convicted defendant must show: (1) the error complained of actually occurred; (2) the error was clear or obvious; (3) the error affected his substantial rights (i.e., he probably would not have been convicted absent the error); and (4) the error seriously impugned the judicial proceeding’s fairness, integrity, or public reputation.

The court assumed, without deciding, that, when the claim is deprivation of the right to counsel of choice, if the first two elements are met, the third and fourth need not be.

In U.S. v. Gonzalez-Lopez, 548 U.S. 140 (2006), the U.S. Supreme Court held that the erroneous deprivation of the right to counsel is a structural error, entitling a defendant to reversal without a showing of prejudice.
But the court declined to reach the issue, because it concluded that Turner failed to meet the second prong — clear error.

Turner argued that his attorney could not have been called as a witness, citing U.S. v. Britton, 289 F.3d 976, 982 (7th Cir. 2002), in which the court said, “where evidence is easily available from other sources and absent extraordinary circumstances or compelling reasons, an attorney who participates in the case should not be called as a witness (cite omitted).”

Turner argued it was not necessary to call his attorney, because the government could have called his girlfriend, who delivered the money, as a witness instead.

But the court found that the government could have reasonably feared that Turner’s girlfriend would refuse to testify against him.

Turner also argued that the fact that his attorney was not ultimately called as a witness demonstrates that his testimony was not necessary.

But the court found that, at the time of the hearing, none of the co-defendants had pleaded guilty (three of four later testified against him).

The court explained, “While the government’s case against Turner at trial turned out to be very strong, it was based in large part on cooperative testimony from Turner’s co-defendants who pled guilty. As of the August 13, 2008 hearing when (the attorney) was disqualified, they had not yet pled guilty. At that time, all evidence of unexplained wealth may well have seemed necessary to the government’s case.”

Before concluding, the court acknowledged the potential for abuse in allowing the government to disqualify a defendant’s chosen attorney, and said the case would be closer had Turner made a timely objection. But because the review was for pain error, the court affirmed.

Analysis

While the court cites numerous cases concerning attorney disqualification, none gives the government nearly as expansive power as does this opinion.

The original source of the court’s language regarding “extraordinary circumstances, is U.S. v. Dack, 747 F.2d 1172 (7th Cir. 1984). In Dack, however, it was the defendant who sought to disqualify the prosecutor by calling him as a witness. Thus, the Sixth Amendment right to counsel of choice was not even at issue in the case.

In U.S. v. Britton, the government did nothing to create the conflict of interest that did not even require disqualification. While preparing for trial, the defendant’s attorney discovered that he was in possession of information that would rebut the testimony of a government witness, and moved to withdraw as counsel.

But the 7th Circuit found that the information could easily be presented without the attorney’s testimony and therefore, there was no need for the attorney to withdraw.

Finally, U.S. v. Gearhart, 576 F.3d 459 (7th Cir. 2009), was a garden-variety conflict of interest case in which the defendant’s attorney also represented a government witness.

None of the cases involves anything remotely similar to the facts in Turner’s case, in which the government sought to disqualify an attorney by calling him as a witness against the defendant.

Making the opinion more extraordinary is that the testimony the government sought to elicit concerns something that occurs in every criminal case in which private counsel is retained.

In any case involving theft or the sale of contraband, the government will always be able to argue that the attorney’s retainer may have been paid with the fruits of the crime itself, and seek to disqualify counsel on that ground.

Arguably, therefore, this case should not be viewed through the prism of the Sixth Amendment right to counsel of choice, but the Sixth Amendment right to counsel generally.

No matter who a defendant retains as counsel, the government can seek to disqualify him by calling him as witness, based on the court’s reasoning.

Permitting the government to do so arguably violates the right to counsel, because it makes it impossible for a defendant to retain any attorney without incriminating himself.

What makes the opinion even more troubling is that, under the analysis employed, the weaker the case against the defendant, the greater the government’s ability to deny his right to counsel.

The thrust of the court’s analysis was that, on the date of the hearing, the government’s case was not very strong, and therefore, it needed to call his attorney as a witness. Where the government’s evidence of guilt is overwhelming, a defendant could argue that this case is distinguishable.

Regardless of the constitutional implications, any rule that makes it easier for the government to disqualify a defendant’s attorney is inherently bad policy.

Case:    U.S. v. Turner, No. 09-2592.

Issue: Does it violate the right to counsel of choice for the government to call the defendant’s attorney as a witness?

Holding: No, the government had a compelling need to call the attorney as a witness.

Full text available at www.wislawjournal.com

David Ziemer can be reached at david.ziemer@wislawjournal.com


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