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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. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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