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

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.

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Sentencing Commission Seems Likely to Make Crack Amendment Retroactive, But Who Will Benefit?

I testified earlier today before the U.S. Sentencing Commission on retroactivity for the new crack amendment.  Here are a few off-the-cuff impressions.  (Warning: this post will probably seem like a lot of inside baseball to anyone who does not practice federal criminal law.)

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Fowler, Federalization, and Statutory Interpretation

Brown v. Plata grabbed the headlines last week, but the Supreme Court’s decision in Fowler v. United States (No. 10-5443) also merits attention for what it has to say about the federalization of criminal law and the interpretation of criminal statutes.  The case also nicely illustrates the way that the Court’s stereotypical ideological divisions (so starkly manifest in Brown) break down when the Court moves out of politically charged areas of constitutional law (e.g., the Fourth and Eighth Amendments) and into the interpretation of federal criminal statutes.

Here’s what happened.  While preparing to rob a bank, Fowler and some confederates were discovered by a local police officer, whom Fowler then killed.  Fowler was later convicted in federal court under the witness tampering statute, which makes it a crime “to kill another person, with intent to . . . prevent the communication by any person to a [federal] law enforcement officer” of “information relating to the . . . possible commission of a Federal offense,” 18 U.S.C. § 1512(a)(1)(C).

Fowler’s intended bank robbery counts as a federal offense, and Fowler clearly killed the police officer in order to prevent him from communicating information relating to this offense.  The only question in the case was whether Fowler had the intent to prevent communication to a federal law enforcement officer.  There was no evidence that Fowler actually contemplated that his victim might report the crime to federal authorities, as opposed simply to calling in additional local cops.  But does the statute really require the defendant to be thinking about federal involvement?

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