Local counsel rule found unconstitutional

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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.•


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  1. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  2. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  3. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  4. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...

  5. Its a valid lawsuit. Since the civil war, States have no rights anyways. Get over it, people! You are all subjects now and merely "citizens of the world" anyways, with human rights and all that. Gov'nor knows that. This is just grandstanding to try and appease the red state troops still smarting over the "Gay rights" shoved down their unwilling throats. Gotta keep them "voting" in the kayfabe elections! After all, since nobody cares about the tens of millions of Mexicans here, what's a few Syrians going to do, anyways? Guess we'll find out! LOL