Defendant's Choice Of Counsel A Fundamental Right

Trial judges know that not every mistake they make in a criminal case will result in reversible error. An appellate court typically will forgive those legal errors that do not have an actual impact on a guilty verdict. The doctrine of harmless error is the trial judge's - and the state's attorney's - best friend. To paraphrase Alexander Pope, ''To err is human; to forgive suits Dick Devine.''

There is, however, a small number of trial errors that are not susceptible to harmless error review. These are known as ''structural defects.'' These are errors that so infect the entire trial process that they can never be deemed harmless. Examples of such structural defects are racial discrimination in the selection of the grand jury (Vasquez v. Hillery, 474 U.S. 254 (1986)); biased trial judges (Tumey v. Ohio, 273 U.S. 510 (1927)); and denials of public trials (Waller v. Georgia, 467 U.S. 39 (1984)).

Two years ago, the U.S. Supreme Court settled a circuit split and added another error that can never be harmless: the improper denial of a defendant's right to retained counsel of choice. U.S. v. Gonzalez-Lopez, 548 U.S. 140 (2006). (Note that an indigent who accepts appointed counsel does not have a similar right to counsel of choice; an indigent merely has the right to constitutionally effective counsel. Strickland v. Washington, 466 U.S. 668 (1984).) Such an error now requires an automatic reversal and remand for a new trial.

That this issue can be a land mine for trial judges is illustrated by the fact that, within eight days last May, the Illinois Appellate Court and the 7th U.S. Circuit Court of Appeals each reversed a criminal conviction on this issue. People v. Tucker, 2008 Ill.App. LEXIS 482 (1st Dist., May 27); Carlson v. Jess, 526 F.3d 1018 (7th Cir. 2008).

In the state court case, Larry Tucker was charged with two counts of sexual assault. The case had been pending for nine months. On the day scheduled for his jury trial, Tucker's privately retained attorney told the trial judge that he had ''lost contact'' with his client since the last court date three months before. He also told the judge that Tucker no longer wanted him as his attorney and that Tucker had hired new counsel.

The trial judge responded, ''No, you're going to trial today, sir.''

When the case was called later that day, the judge personally addressed the defendant. Tucker told him the name of his new attorney (Jerry R. Lipschultz); indicated that his family had helped retain him; and told the judge that he had personally spoken with Lipschultz over the phone. Tucker admitted that the attorney was not in court, but that Lipschultz had told him to call later that day. After noting that no other attorney was present on Tucker's behalf, the judge began trial with Tucker's original counsel. Tucker was subsequently found guilty on both counts.

The 1st District Appellate Court began by noting that a criminal defendant's constitutional right to retained trial counsel of choice was not absolute. For example, a defendant forfeits his right to counsel of choice if he manipulates it in an attempt either to delay trial or to interfere with the orderly process of judicial administration. Factors that a court should consider in determining whether to allow a defendant to replace retained counsel include: whether the defendant articulates an acceptable reason for desiring new counsel; whether he has been in continuous custody; whether he has informed the trial court of his efforts to retain new counsel; whether he has cooperated with current counsel; and the length of time defendant has been represented by current counsel. People v. Childress, 276 Ill.App.3d 402, 411 (1995).

In light of these factors, the state pointed out that Tucker made his request nine months after the case had been on the court's docket, and that during this time the case had at least twice been set for trial. Tucker's current attorney had represented him for eight months. Tucker never provided a reason why he wanted to replace him. And not only was the new attorney not present in court, but Tucker also conceded that he had never personally met with him.

On the other hand, Tucker emphasized this was the first time he had requested any trial continuances; on the two occasions the case was set for trial, the state requested continuances because of the unavailability of one of the witnesses. Moreover, he identified by name the attorney his family helped him retain.

The 1st District sympathized with the trial judge's concerns that the attorney was not present in court and had never filed an appearance. It also shared the trial judge's concern that this announcement of new counsel came the day of trial on a case that had been pending for nine months. Perhaps, the Appellate Court conceded, under the totality of circumstances, a judge could have even properly denied the motion to replace counsel.

But the problem was that the trial judge failed to make an adequate inquiry to determine exactly what the circumstances were. The trial judge failed on at least six levels. He failed to inquire why Tucker wanted another lawyer. He failed to inquire precisely what Tucker meant when he said he had ''hired'' Lipschultz as his new counsel. He failed to make any inquiries of Tucker's family members, who were present in court. He failed to contact Lipschultz's office to learn whether he was ready to represent Tucker. He failed to ask Tucker's current attorney what he meant when he said he had ''lost contact'' with Tucker during the previous three months.

Finally, the judge failed by simply denying Tucker's motion. This is insufficient. The judge had a constitutional duty to make a finding on the record why he believed that Tucker's request was merely a delaying tactic and not made in good faith.

Note that the Appellate Court did not rule that the trial judge's decision was necessarily wrong. And even if the trial judge had erred, there is no evidence that the decision resulted in any specific prejudice at trial. But because the judge failed to make the necessary inquiries concerning this issue of a defendant's choice of retained counsel, under Gonzalez-Lopez no showing of prejudice was necessary. The court reversed the judgment and remanded for a new trial.

Eight days before the Illinois Appellate Court decided Tucker, the 7th Circuit granted a habeas petitioner a new state trial in Wisconsin based on a similar scenario.

Matthew Carlson was charged with one count of sexual assault. He was arraigned in May 2002 and retained Randall Kaiser as counsel. A trial date was set for Aug. 27, 2002.

On Aug. 17, Carlson notified Kaiser that he was replacing him with attorney Robin Shellow. On Aug. 19, Kaiser moved to withdraw as counsel. On Aug. 23, Shellow filed a motion explaining why she needed a continuance to prepare for trial.

A hearing was held on Aug. 26, the day before trial was set. Kaiser represented that communication with Carlson had ''completely broken down.'' Shellow then represented that she needed more time to prepare because Kaiser had failed both to explore some factual issues and to research certain constitutional issues. The trial judge denied the motion, citing the fact that the trial had been scheduled for three months and citing problems of the ''administration of this court.''

When the case was called the next day, both Kaiser and Carlson implored the court to grant a continuance for Shellow to prepare the defense. Again the judge denied the motion. Carlson was then tried and convicted.

The 7th Circuit affirmed the District Court's decision to grant the habeas petition and order a new trial. Similar to the 1st District, the 7th Circuit criticized the trial judge for making ''no effort to ascertain the facts'' to determine whether Carlson was making a reasonable request. There is a presumption that a non-indigent criminal defendant should have retained counsel of choice. Wheat v. U.S., 486 U.S. 153 (1988). To defeat this presumption, a trial judge must examine the totality of circumstances of the particular case. Because the state trial judge failed to do this, the 7th Circuit granted the habeas petition and remanded for a new trial.

Note that in both cases the trial judges' ultimate decisions may actually have been correct. But both judges failed to hold the detailed hearings required before a decision can be made to deny a nonindigent criminal defendant his retained counsel of choice. Trial judges must be aware that this is an area where they have to tread carefully to avoid reversal on appeal.