ILNews

Local counsel rule found unconstitutional

Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

Any trial lawyer knows that litigation can be complicated and multiple issues may surface that can lead to a different result on appeal.

But the 7th Circuit Court of Appeals recently ruled that the Northern District of Indiana was essentially creating a built-in appeal issue on ineffective assistance of counsel, and it called out the senior judge for violating a man’s Sixth Amendment right to choose his own lawyer.

lozano-rudy-judge-mug.jpg Lozano

A three-judge appellate panel determined May 19 that U.S. Judge Rudy Lozano 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.

More significantly for trial lawyers, the appellate panel voiced its disapproval of a local court rule that instructs new counsel to “take a case as they find it.” The ruling sends a message to judges concerning tactics they can take to warn lawyers about general continuances or calendar issues.

“We reiterate that a court certainly may consider how last-minute continuances and missed deadlines tread upon the rights of parties and the demands of a court’s calendar,” 7th Circuit Judge Ilana Diamond Rovner wrote in U.S. v. Sidney O. Sellers, No. 09-2516. “The key, however, is that these legitimate considerations must be balanced against the reasons in support of the motion for a continuance to accommodate new counsel.”

The appellate panel also included 7th Circuit Judge Michael Kanne and former U.S. Supreme Court Justice Sandra Day O’Conner, who sat by designation. The drug trafficking case came from Judge Lozano, who took senior status after his retirement in 2007.

As part of a sting operation in early 2008, authorities staked out Sellers’ car and later pulled him over in Lake County for traffic violations, finding a loaded handgun registered in Illinois and 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 as lead counsel appointed a secondary counsel who ended up representing Sellers through trial in May 2008.

The lead counsel, David Weiner, was expected to take over, but scheduling conflicts prevented him from stepping in. The secondary attorney, Michael Oppenheimer of Illinois, remained on the case. The lawyers missed various pre-trial motion deadlines and asked for a continuance three days before the trial was scheduled to begin because that date conflicted with other cases Weiner was handling.

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 hadn’t even filed an appearance during that time. The judge postponed the trial for a week, but Weiner still had conflicts due to another murder trial.

Oppenheimer renewed his continuance requests on grounds he wasn’t prepared as lead counsel. Sellers indicated he wanted to dismiss Oppenheimer as counsel because he had wanted Weiner all along, but 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, the panel decided the District judge’s refusal to grant Sellers a continuance deprived him of his Sixth Amendment right to choice of counsel, and that Sellers deserved a new trial. They took issue with Judge Lozano’s statements about pre-trial motions being late and within only 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 he 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 he was using this case to respond to the propensity of other Illinois counsel to request last-minute continuances – as factors that show the judge’s decision-making on the continuance request was “arbitrary and unreasonable.”

“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 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 appeals court also noted that Judge Lozano’s opinion and oral ruling are “riddled with indications of generalized annoyance with defendant’s counsel that smack of an arbitrary application of the rule as retribution for both counsel’s own errors, and the errors of others.”

“There can be no more arbitrary and unreasonable application of a rule as punishment for the missteps of another lawyer in an unrelated case,” Judge Rovner wrote.

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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Building social-media presence is inevitable for Law Firms. These tips are very useful to strengthen social media presence. Thank you for sharing this. NirwanLawCorp.com.

  2. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  3. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

  4. We are a Finance Industry Company professionals with over 15 Years Experience and a focus on providing Bank Guarantee and Standby Letter of Credit from some of the World Top 25 Prime Banks primarily from Barclays, Deutsche Bank, HSBC,Credit Suisse e.t.c. FEATURES: Amounts from $1 million to 5 Billion+ Euro’s or US Dollars Great Attorney Trust Account Protection Delivered via MT760, MT799 and MT103 Swift with Full Bank Responsibility Brokers Always Protected Purchase Instrument of BG/SBLC : 32%+2% Min Face Value cut = EUR/USD 1M-5B Lease Instrument of BG/SBLC : 4%+2% Min Face Value cut = EUR/USD 1M-5B Interested Agents/Brokers, Investors and Individual proposing international project funding should contact us for directives.We will be glad to share our working procedures with you upon request. We Facilitate Bank instruments SBLC for Lease and Purchase. Whether you are a new startup, medium or large establishment that needs a financial solution to fund/get your project off the ground or business looking for extra capital to expand your operation,our company renders credible and trusted bank guarantee provider who are willing to fund and give financing solutions that suits your specific business needs. We help you secure and issue sblc and bank guarantee for your trade, projects and investment from top AA rated world Banks like HSBC, Barclays, Dutch Ing Bank, Llyods e.t.c because that’s the best and safest strategy for our clients.e.t.c DESCRIPTION OF INSTRUMENTS 1. Instrument: Funds backed Bank Guarantee(BG) ICC-600 2. Currency : USD/EURO 3. Age of Issue: Fresh Cut 4. Term: One year and One day 5. Contract Amount: United State Dollars/Euros (Buyers Face Value) 6. Price : Buy:32%+1, Lease: 4%+2 7. Subsequent tranches: To be mutually agreed between both parties 8. Issuing Bank: Top RATED world banks like HSBC, Barclays, ING Dutch Bank, Llyods e.t.c 9. Delivery Term: Pre advise MT199 or MT799 first. Followed By SWIFT MT760 10. Payment Term: MT799 & Settlement via MT103 11. Hard Copy: By Bank Bonded Courier Interested Agents,Brokers, Investors and Individual proposing international project funding should contact us for directives.We will be glad to share our working procedures with you upon request. Name:Richardson McAnthony Contact Mail : intertekfinance@gmail.com

  5. Affordable Loan Offer (ericloanfinance@hotmail.com) NEED A LOAN?Sometime i really wanna help those in a financial problems.i was wondering why some people talks about inability to get a loan from a bank/company. have you guys ever try Eric Benson lending service.it cost dollars to loan from their company. my aunty from USA,just got a home loan from Eric Benson Lending banking card service.and they gave her a loan of 8,000,000 USD. they give out loan from 100,000 USD - 100,000,000 USD. try it yourself and testimony. have a great day as you try.Kiss & Hug. Contact E-mail: ericloanfinance@hotmail.com

ADVERTISEMENT