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New Counsel, Continuances, and the Sixth Amendment — Lawyers Don’t Always Have to Take the Case as They Find It

Post author:Michael M. O'Hear
Post published:June 2, 2011
Post category:Criminal Law & Process Public Seventh Circuit

The Seventh Circuit had an interesting new decision a couple weeks ago on the Sixth Amendment right to choice of counsel, United States v. Sellers (No. 09-2516). Among other notable aspects of the case, former U.S. Supreme Court Justice Sandra Day O’Connor sat on the panel.

Here’s what happened:

Sellers initially retained attorney David Wiener to represent him against the drug and gun charges. Apparently, shortly after Sellers engaged Wiener, Wiener approached attorney Michael Oppenheimer and asked him to appear as secondary counsel. Oppenheimer, by all indications, was a stranger to Sellers, having never been hired by him. Nevertheless, Oppenheimer filed an appearance, Wiener did not. (3)

Trial was set for May 12, 2008. On May 7, Sellers requested a continuance so that he could proceed with counsel of his choice, David Weiner, who was scheduled to try another case in state court on May 12. The district judge ultimately moved the federal trial back to May 19, but that conflicted with yet another case Weiner was scheduled to try in state court.

On May 16, Sellers informed the court that he wished to fire Oppenheimer and retain new counsel. On May 19, the date trial was supposed to begin, Sellers informed the court that he had a new lawyer, but the new lawyer would only file an appearance if a continuance were granted so that he could adequately prepare for trial. The court denied this request, requiring Sellers either to proceed pro se or with Oppenheimer. Sellers chose Oppenheimer, and he was convicted and sentenced to fifteen years in prison.

The Seventh Circuit, however, held that the denial of a continuance violated Sellers’s right to counsel of his choice.

Welcome, June Bloggers

Post author:Michael M. O'Hear
Post published:June 1, 2011
Post category:Public

Thanks to our May bloggers, Julie O’Halloran ’89 and new graduate Gabe Johnson-Karp. Our June guests will be Greg Weyandt ’76 and 2L Garrett Soberalski.

Tony Evers: Trying to Throw High Heat at Voucher Schools

Post author:Alan J. Borsuk
Post published:May 24, 2011
Post category:Education & Law Milwaukee Milwaukee Public Schools Public

Tony Evers, the state superintendent of public instruction, has been making waves by going on the offensive against proposals to expand the use of private school vouchers in Wisconsin. In addition to what has been said in news stories such as this one in the Milwaukee Journal Sentinel, I’d offer three thoughts that struck me as I read the lengthy memo Evers offered to members of the legislature’s Joint Committee on Finance this week.

One: Legally and politically, this is almost surely idle thinking, but what if the private schools that are in Milwaukee’s voucher program had to face the same kind of consequences for getting weak results that charter schools and, of late, conventional public schools face?

Charter schools, which are independently operated, publicly funded schools, are generally given five-year contracts by a government body. (In Milwaukee, charter contracts are granted by the School Board, city government, or the University of Wisconsin-Milwaukee.) It is not unusual for a charter school to be closed if it is not getting good results at the end of five years, or sometimes sooner.

In the conventional Milwaukee Public Schools system, school closings are becoming common. Tightening finances and declining enrollments are key reasons, but getting bad results is also a factor. And a list of schools, including several major high schools, are under orders, based on federal policies, to take steps such as overhauling their programs and staffs and getting new principals because of low student success.