Continuances

United States v. Sellers, 645 F.3d 830 (7th Cir. 2011)

The defendant hired one attorney to represent him at trial. Another attorney, at the request of the retained attorney, made the first appearance and attended various preliminary hearings and ultimately filed motions. As the trial date neared, however, the retained attorney had still not filed his appearance and the defendant complained that he wanted the retained attorney to represent him. Ultimately, the retained attorney had a conflict and could not appear on the scheduled trial date and the defendant insisted that a newly-retained attorney be substituted as his attorney, but that this would require a continuance, since this new attorney was not prepared. The trial court erred in denying the defendant’s request for a continuance to enable his newly-retained attorney to prepare. The attorney who had been representing the defendant up until that point had never been retained by the defendant and was only filling in for the initially retained attorney. That attorney as required to proceed to trial. Though the continuance would cause inconvenience to the court and other litigants, the defendant’s right to counsel was not adequately considered by the trial court. The conviction was reversed.

United States v. Kloehn, 620 F.3d 1122 (9th Cir. 2010)

Shortly before the defendant was scheduled to testify in his criminal trial, his son was suddenly stricken ill and was expected to die imminently. The defense requested a continuance. The trial court denied the motion and required the defendant to testify on schedule, but excused the defendant thereafter. The Ninth Circuit reversed. Forcing the defendant to prepare for his testimony while his son was about to die was unreasonable and a continuance should have been granted mid-trial.

United States v. Williams, 576 F.3d 385 (7th Cir. 2009)

Denying the defendants’ motion for a continuance of trial was an abuse of discretion. Five days prior to trial, the AUSA announced that he had an additional witness in this armed robbery case: the getaway driver. In addition, the government revealed that it had released from subpoena another witness (whose testimony would have been inconsistent with the getaway driver’s testimony). The defendants were not able to locate the witness and secure his testimony. The Seventh Circuit held that denying a continuance was an abuse of discretion. The Seventh Circuit also held that the defendants are not required to prove actual prejudice in arguing prejudice post-trial. In other words, the defendants are not required to do the investigative work that they could have done pretrial (if given enough time) in order to show that denying the continuance resulted in actual prejudice.

United States v. Heron, 564 F.3d 879 (7th Cir. 2009)

The trial court erred in denying the defendant’s motion for a continuance. One key witness for the government (defendant’s erstwhile co-defendant) had provided a statement to the DEA that the defendant was a reluctant participant in one drug transaction. The night before trial, however, the witness changed his story and revealed that the defendant had participated in prior drug transactions with the witness. The trial court erred in denying defendant’s motion to grant a continuance so the new allegations could be investigated.

Carlson v. Jess, 526 F.3d 1018 (7th Cir. 2008)

Shortly before trial, the defendant requested a continuance in order to switch from one retained counsel to another, revealing that there was a breakdown in communication with his current lawyer and a failure to prepare the case as needed. Both attorneys appeared and urged the court to grant the continuance in order to facilitate the change of counsel. The trial court refused, noting that the administration of justice required that the case proceed to trial. The Seventh Circuit concludes that the state court acted arbitrarily in denying the request for a continuance in this situation. “In sum, the trial judge ignored the presumption in favor of Carlson’s counsel of choice and insisted upon expeditiousness for its own sake.” The court finally concluded that the denial of his right to retain his chosen counsel had an adverse effect on the presentation of his case.

United States v. Garner, 507 F.3d 399 (6th Cir. 2007)

Just as the trial was beginning, the government furnished to the defense cell phone records that were obtained by the government several days earlier. The cell phone records belonged to the victim of the carjacking. The cell phone was stolen along with the car and the records apparently disclosed the identity of people that the perpetrator called. Failing to turn the records over to the defense violated Brady. Alternatively, the trial court should have granted a continuance to enable the defense to investigate the numbers called by the perpetrator.

United States v. Rivera-Guerrero, 426 F.3d 1130 (9th Cir. 2005)

The trial court erred in denying the defendant a continuance after the government experts testified about the types of drugs they intended to use to medicate the defendant “back into competency.” The attorney could have hired an expert prior to the hearing, but the expert would have needed more time after the government witnesses testified to prepare a response to their planned treatment protocol. The other factors governing whether a denial of a continuance was an abuse of discretion also counseled in favor of reversing the decision of the lower court.

Pazden v. Maurer, 424 F.3d 303 (3d Cir. 2005)

In a complicated white collar prosecution, counsel requested a continuance in order to prepare. This request was denied and the defendant then announced that he would represent himself, because the attorney could not be ready. The defendant did, in fact, proceed pro se and the Third Circuit held that this amounted to a violation of his sixth amendment right to counsel. The defendant’s waiver of his right to counsel was not the product of a free and meaningful choice.

United States v. Verderame, 51 F.3d 249 (11th Cir. 1995)

The trial court, in its haste to dispose of cases on its docket, denied the defendant his Sixth Amendment right to assistance of counsel. Here, there were 34 days between the arraignment and the trial. The case involved two drug conspiracies and massive criminal forfeitures which were predicated on a net worth theory. The trial court should have granted the defendant’s motion for a continuance to prepare his defense. Additionally, the government did not comply with a request for a bill of particulars until shortly before trial, and was also late in disclosing certain Rule 16 material. See generally Ungar v. Sarafite, 376 U.S. 575 (1964); Avery v. Alabama, 308 U.S. 444 (1940).

Bennett v. Scroggy, 793 F.2d 772 (6th Cir. 1986)

It was reversible error to fail to give the defendant an overnight continuance to secure the attendance of a subpoenaed witness who would have testified favorably to him.

United States v. Mejia, 69 F.3d 309 (9th Cir. 1995)

At the defendant’s suppression hearing, the defense requested a one-day continuance in order to secure the attendance of the two investigating officers, the credibility of whom was critical to the findings of the judge conducting the hearing. The judge denied the motion, holding instead that he would read the transcript of the officers’ testimony at an earlier suppression hearing which was held before a different judge who could not conclude the hearing and who then became ill. Even though the defense attorney had cross-examined the two witnesses at the earlier aborted hearing, this was an abuse of discretion. The initial judge had made no findings of fact regarding the testimony of the officers. When the credibility of a witness’s testimony is essential to the trier of fact, the fact-finder must observe the demeanor of the witness before deciding whether the witness is credible.

Manlove v. Tansy, 981 F.2d 473 (10th Cir. 1992)

The state trial court denied petitioner’s right to due process by denying his motion for a continuance in order to have a witness in court. The defendant was being tried for rape. The prosecutrix’s roommate indicated to defense counsel that the prosecutrix had made up these “fantasies” before – similar to her description of this alleged occurrence. The witness, however, successfully evaded service of a subpoena in fear for her safety.

United States v. West, 828 F.2d 1468 (10th Cir. 1987)

The defendant was entitled to a continuance to obtain a defense witness who would have testified that a third person involved in a fight between the defendant and the victim had struck the fatal blow to the back of the victim’s head. The defendant’s murder conviction was reversed.