ILNews

7th Circuit: Indiana judge violated man's Sixth Amendment right to counsel

Back to TopCommentsE-mailPrintBookmark and Share

An appellate court has ruled that a senior judge in the Northern District of Indiana violated a man’s Sixth Amendment rights by not allowing him to proceed to trial with the lawyer of his choosing.

That decision came from a three-judge panel on the 7th Circuit Court of Appeals, which included former U.S. Supreme Court Justice Sandra Day O’Connor, who was sitting by designation at the Circuit level.

The decision came Friday in the case of U.S. v. Sidney O. Sellers , No. 09-2516, a drug trafficking case from U.S. Judge Rudy Lozano who became a senior judge in the Northern District of Indiana after his retirement in 2007.

As part of a sting operation in early 2008, police and Drug Enforcement Administration officers staked out Sidney Sellers’ car and later pulled him over in Lake County for traffic violations. They found a fully loaded handgun registered in Illinois as well as several bags of crack cocaine. Police charged him with possession with intent to sell crack cocaine and possession of a firearm used in drug trafficking, and he received a 180-month sentence.

Sellers’ attorney representation became the pivotal issue in this case. The Illinois attorney he hired to represent him appointed a secondary counsel who ended up being the person representing Sellers through trial in May 2008. The lead counsel, David Weiner, was expected to begin shortly, but scheduling conflicts detailed in the record prevented him from stepping in, so the secondary attorney, Michael Oppenheimer from Illinois, remained on the case. He missed various pre-trial motion deadlines and ultimately filed a motion for a continuance three days before the trial was to begin because that date conflicted with other cases the other attorney was handling.

Senior Judge Lozano denied the motion and a request to suppress the evidence, explaining that the trial had been set for nearly two months and that Weiner, who was supposed to be lead counsel, hadn’t even filed an appearance at that time. The judge postponed the trial for a week, but that didn’t help Weiner who was still going to be handling another murder trial.

 Oppenheimer renewed his requests for a continuance on grounds he wasn’t prepared as lead counsel, and Sellers indicated he wanted to dismiss Oppenheimer as counsel because he’d wanted Weiner all along, but Senior Judge Lozano declined to postpone the trial. Oppenheimer and a new attorney represented Sellers at trial, again reiterating the need to postpone. Ultimately, Sellers was convicted and sentenced.

On appeal, Judge Michael Kanne sat with authoring Judge Ilana Diamond Rovner and former Justice O’Connor in deciding that the District judge’s refusal to grant Sellers a continuance deprived him of his Sixth Amendment right to choice of counsel and he deserved a new trial.

Analyzing the District judge’s reasons for denying the continuance, the appellate panel noted that the pre-trial motions had been late and within a few days before trial, that Sellers’ preferred counsel had not yet filed an appearance, and that the court itself had a practice of requiring any new counsel to “take the case as they find it.”

In a footnote, the panel pointed out that the court’s reliance on missed deadlines as a reason against new counsel or a continuance would, in effect, create a built-in appeal issue for ineffective assistance of counsel. “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.”

The panel also pointed to Judge Lozano’s statements that he’d already accommodated the defendant by moving the trial back one week, that the government had timely turned over discovery, that the case wasn’t complex, that the judge had cancelled his attendance at the 7th Circuit judicial conference in Chicago, that the delay would affect other cases in need of trial dates, and that Judge Lozano was using this case to respond to the propensity of other Illinois counsel to request last-minute continuances.

All of these factors show that Judge Lozano’s decision-making on the continuance request was arbitrary and unreasonable,” the panel found.

“The record provides no evidence that the court balanced any of these circumstances against the needs of fairness and the demands of the calendar,” Judge Rovner wrote, citing the landmark Sixth Amendment precedent of U.S. v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). “It seems instead that the court stood on unyielding principle – the principle that new counsel must ‘take the case as he finds it;’ the principle that continuances will not be granted for those who request them at the eleventh-hour and miss other deadlines; and the principle that delay of one case will unfairly backlog other cases.”

The 7th Circuit vacated the judgment and sentence and remanded for a new trial and pre-trial proceedings.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  2. It's a capital offense...one for you Latin scholars..

  3. I would like to suggest that you train those who search and help others, to be a Confidential Intermediary. Original Birth Certificates should not be handed out "willie nillie". There are many Birth Parents that have never told any of their families about, much less their Husband and Children about a baby born prior to their Mother's marriage. You can't go directly to her house, knock on her door and say I am the baby that you had years ago. This is what an Intermediary does as well as the search. They are appointed by by the Court after going through training and being Certified. If you would like, I can make a copy of my Certificate to give you an idea. you will need to attend classes and be certified then sworn in to follow the laws. I still am active and working on 5 cases at this time. Considering the fact that I am listed as a Senior Citizen, that's not at all bad. Being Certified is a protection for you as well as the Birth Mother. I have worked with many adoptees as well as the Birth Parents. They will also need understanding, guidance, and emotional help to deal with their own lost child and the love and fear that they have had locked up for all these years. If I could talk with those involved with the legal end, as well as those who do the searches and the Birth Mothers that lost their child, we JUST might find an answer that helps all of those involved. I hope that this will help you and others in the future. If you need to talk, I am listed with the Adoption Agencies here in Michigan. They can give you my phone number. My email address is as follows jatoz8@yahoo.com. Make sure that you use the word ADOPTION as the subject. Thank you for reading my message. Jeanette Abronowitz.

  4. The promise of "Not to Tell" is the biggest lie ever given to a Birth Mother. THERE WERE NEVER ANY PROMISES GIVEN TO ANY OF US. One of the lies used to entice us to give up our Babies. There were many tactics used to try to convince us that it was best for Mother and Baby to cut the cord at birth. They have no idea of the pain and heartache that was caused by their attitude. The only thing that mattered was how great and wonderful they appeared to the prospective parents and their community. I completed my search, but that didn't stop the pain, heartbreak and the tears of the last 62 Years. I keep track and do know that he is alive, well educated and a musician. That little knowledge in itself is a Godsend to me. I pray that other Mothers also know that much and more to help heal their pain and open wounds. open wounds.

  5. please do your firm handles cases on breach of contract? please advise...

ADVERTISEMENT