{"id":13591,"date":"2011-06-02T15:23:24","date_gmt":"2011-06-02T20:23:24","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=13591"},"modified":"2011-06-02T15:25:10","modified_gmt":"2011-06-02T20:25:10","slug":"new-counsel-continuances-and-the-sixth-amendment-%e2%80%94-lawyers-don%e2%80%99t-always-have-to-take-the-case-as-they-find-it","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/06\/new-counsel-continuances-and-the-sixth-amendment-%e2%80%94-lawyers-don%e2%80%99t-always-have-to-take-the-case-as-they-find-it\/","title":{"rendered":"New Counsel, Continuances, and the Sixth Amendment \u2014 Lawyers Don\u2019t Always Have to Take the Case as They Find It"},"content":{"rendered":"

The Seventh Circuit had an interesting new decision a couple weeks ago on the Sixth Amendment right to choice of counsel,\u00a0United States v. Sellers<\/a><\/em> (No. 09-2516). \u00a0Among other notable aspects of the case, former U.S. Supreme Court Justice Sandra Day O’Connor sat on the panel.<\/p>\n

Here\u2019s what happened:<\/p>\n

Sellers initially retained attorney David Wiener to represent him against the drug and gun charges.\u00a0 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)<\/p><\/blockquote>\n

Trial was set for May 12, 2008.\u00a0 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.\u00a0 The\u00a0district judge\u00a0ultimately moved the federal trial back to May 19, but that conflicted with yet another case Weiner was scheduled to try in state court.<\/p>\n

On May 16, Sellers informed the court that he wished to fire Oppenheimer and retain new counsel.\u00a0 On May 19, the date trial was supposed to begin, Sellers informed the court that he had a\u00a0new lawyer, but the new lawyer would only file an appearance if a continuance were granted so that he could adequately prepare for trial.\u00a0 The court denied this request, requiring Sellers either to proceed pro se or with Oppenheimer.\u00a0 Sellers chose Oppenheimer, and he was convicted and sentenced to fifteen years in prison.<\/p>\n

The Seventh Circuit, however,\u00a0held that the denial of a continuance violated Sellers\u2019s right to counsel of his choice.<\/p>\n

<\/p>\n

Here\u2019s how the court articulated the legal standard:<\/p>\n

The right to counsel and the right to engage counsel of one\u2019s choosing, however, are not absolute. A court retains wide latitude to balance the right to choice of counsel against the needs of fairness to the litigants and against the demands of its calendar.\u00a0Gonzalez\u2010Lopez<\/em>, 548 U.S. at 152;\u00a0United States v. Smith<\/em>, 618 F.3d 657, 666 (7th Cir. 2010);\u00a0United States v. Carrera<\/em>, 259 F.3d 818, 824\u201025 (7th Cir. 2001). This means, of course, that trial courts have broad discretion to grant or deny a request for a continuance to substitute new counsel.\u00a0Carlson<\/em>, 526 F.3d at 1025. \u201cOnly an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay\u201d violates the Sixth Amendment right.\u00a0Carrera<\/em>, 259 F. 3d at 825. In determining whether the decision was arbitrary, we consider both the circumstances of the ruling and the reasons given by the judge.\u00a0United States v. Santos<\/em>, 201 F. 3d 953, 958 (7th Cir. 2000). \u00a0(9)<\/p><\/blockquote>\n

As might be expected with a \u201creasonableness\u201d sort of test, the court\u2019s holding\u00a0in\u00a0Sellers <\/em>was based on a variety of case-specific facts, which makes it hard to gauge its importance for future cases.\u00a0 The court\u2019s analysis, however, does suggest a number of red flags that might be raised by a district judge\u2019s explanation for a denial of a continuance.<\/p>\n

For instance, it is pretty clear that the Seventh Circuit was particularly troubled by one statement that was repeated several times by the district judge:<\/p>\n

We begin with the court\u2019s repeated statement \u2014 reiterated four times \u2014 that the continuance would be denied, in part, because \u201cit is typically this Court\u2019s rule that new counsel take the case as they find it.\u201d This is not, however, the rule in this Circuit. Quite the opposite. The Sixth Amendment demands that a district court may not arbitrarily and unreasonably deny a continuance to provide for choice of counsel.\u00a0Carlson<\/em>, 526 F.3d at 1024. Adhering to a rigid rule that \u201ca lawyer must take the case as he finds it\u201d is exactly the type of arbitrary rule that the Sixth Amendment prohibits.\u00a0See id<\/em>. at 1026. Thus a myopic insistence on proceeding with a scheduled trial date in the face of a valid request for a continuance is arbitrary and unreasonable.\u00a0United States v. Miller<\/em>, 327 F.3d 598, 601 (7th Cir. 2003). \u00a0(11)<\/p><\/blockquote>\n

The Seventh Circuit was also concerned about the district judge\u2019s emphasis on scheduling convenience without any apparent recognition of legitimate countervailing interests:<\/p>\n

The district court spoke generically of how continuances burden other litigants and the court\u2019s calendar. But the fact that the district court failed to inquire of either Oppenheimer, or later Volpe, how long substitute counsel would need to prepare adequately for trial evidences a failure to actually balance the right to choice of counsel against the needs of fairness, and suggests that the district court unreasonably viewed any delay as unacceptable.\u00a0See United States v. Williams<\/em>, 576 F.3d 385, 390 (7th Cir. 2009)\u00a0(\u201cThe failure to inquire how long the defense needs to prepare suggests that the district court unreasonably considered any delay unacceptable: That sort of rigidity can only be characterized as arbitrary.\u201d);\u00a0see also Carlson<\/em>, 526 F.3d at 1026. A district court\u2019s schedule, although a significant consideration, does not automatically trump all other interests.\u00a0Smith<\/em>, 618 F.3d at 666. As this court has noted, trial dates frequently open when cases settle and defendants plead.\u00a0Carlson<\/em>, 526 F.3d at 1026. Although the district court had a two\u2010to\u2010three week political corruption trial set to begin May 26 (i.e. a week after Sellers\u2019s trial began), even the inconvenience of pushing a trial back a month or so can easily be outweighed by a defendant\u2019s interest in having counsel of choice.\u00a0See Carlson<\/em>, 526 F.3d at 1026.<\/p><\/blockquote>\n

The record provides no evidence that the court balanced any of these circumstances against the needs of fairness and the demands of its calendar.\u00a0See Gonzalez\u2010Lopez<\/em>, 548 U.S. at 152. It seems instead that the court stood on unyielding principle \u2014 the principle that new counsel must \u201ctake the case as he finds it;\u201d the principle that continuances will not be granted for those who request them at the eleventh\u2010hour and miss other deadlines; and the principle that delay of one case will unfairly backlog other cases. \u00a0(16-17)<\/p><\/blockquote>\n

I am particularly struck by the strong endorsement of the value of the underlying Sixth Amendment right in the court\u2019s statement that \u201ceven the inconvenience of pushing a trial back a month or so can easily be outweighed by a defendant\u2019s interest in having counsel of choice.\u201d<\/p>\n

Finally, the (Indiana) district judge\u2019s generally negative views of the (Illinois) lawyer also raised a red flag:<\/p>\n

[The judge’s] opinion and oral rulings are riddled with indications of generalized annoyance with defendant\u2019s counsel that smack of an arbitrary application of the rule as retribution for both counsel\u2019s own errors, and the errors of others. Most strikingly, the district court confessed:<\/p>\n

\u201cI also ran into the problem where there were other cases with Illinois counsel, who just happened some were Illinois counsel, and they were counsel that were appearing at the 11th hour and asking for continuances because of new counsel. So if I got excited with you, that was one of the reasons you caught my wrath because of the dilemma that was being caused by that.\u201d<\/p>\n

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. \u00a0(18)<\/p><\/blockquote>\n

Cross posted at Life Sentences Blog.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Seventh Circuit had an interesting new decision a couple weeks ago on the Sixth Amendment right to choice of counsel,\u00a0United States v. Sellers (No. 09-2516). \u00a0Among other notable aspects of the case, former U.S. Supreme Court Justice Sandra Day O’Connor sat on the panel. Here\u2019s what happened: Sellers initially retained attorney David Wiener to […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,122,23],"tags":[],"class_list":["post-13591","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-public","category-seventh-circuit","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/13591","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=13591"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/13591\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=13591"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=13591"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=13591"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}