Here are some cases that seems parallel enough to this current situation to shed some light on the legal issues here.
scholar.google.com
"After appellant and Percy were indicted, Percy had several telephone conversations and at least two meetings with Ralph Gonzalez, appellant's attorney. During these encounters, it was agreed that appellant would pay Percy $10,000. The reason for the payment was in dispute. The transfer of the first payment of $3,000 was completed. Appellant was present during at least one of the meetings, and Marco Vargas, Percy's friend, was present during at least one meeting and was involved in the transfer of the $3,000. Appellant refused to pay the remaining $7,000.
The State moved to disqualify attorney Gonzalez as appellant's counsel under disciplinary rule 3.08[1], because he had personal knowledge bearing directly on the guilt or innocence of his client and the credibility of the State's key witness and was therefore a potential witness whose credibility would be at issue regardless of whether he took the stand."
The allegation was that the D helped to arrange the payment for favorable testimony by P.
In this case:
- State made a formal motion to DQ based in a specific disciplinary statute
- Court held a DQ hearing in which several witnesses were called and D was able to cross examine
- the Court decided, after the hearing, to grant motion to DQ.
- accused was convicted
- accused appealed conviction based on denial of counsel of choice
- case was taken to court of appeals and then court of criminal appeals
- conviction was upheld but several justices dissented, stating that the accused 6th amendment right were violated.
- notably, the DQ'd lawyers were retained not appointed.
BBM:
"As long as the basis for the disqualification is adequately shown by the record, the trial judge need not expressly state its consideration of less drastic alternatives in the record.[39] The court of appeals explained why the record showed appellant's first suggestion would not adequately protect the State's interest." (This is referencing Texas precedents)
"In moving to disqualify appellant's counsel of choice, the government bears a heavy burden of establishing that disqualification is justified.[11]"
11.
United States v. Washington, 797 F.2d 1461, 1465 (9th Cir.1986).
In United States V Washington, the state formally moved to DQ the accused's chosen attorneys, and the Court granted this and denied the D's request for an evidentiary hearing. The US court of appeals vacated the conviction.
"Because Judge Orrick applied the wrong legal standard in disqualifying Washington's chosen counsel without an evidentiary hearing, we vacate the conviction and remand the case to the district court. See Ogden v. United States, 303 F.2d 724, 737-38 (9th Cir.1962). If the district court determines that the disqualification of Hinckley and Kotoske was justified, the conviction may be reinstated. If, on the other hand, it is ultimately determined that the disqualification of either of his chosen counsel violated Washington's Sixth Amendment rights, he would be entitled to a new trial because denial of a criminal defendant's qualified right to retain counsel of his choice is reversible error regardless whether prejudice is shown."
Another interesting part of the dissent opinion in Gonzalez V State, it seems clear IMO that if RA insists on his attorneys he cannot claim ineffective assistance of counsel on appeal, I don't think there is really any danger of that at all. (BBM):
"Appellant, of course, waived his right to complain about any of this prejudice in either a motion for mistrial or in support of an ineffective assistance of counsel claim since appellant insisted on his retained lawyer representing him despite the potential for the lawyer's violation of the advocate/witness rule. If appellant wanted to hire a lawyer who would compromise appellant's case by testifying at trial, then that was appellant's choice, a choice backed up by the Sixth Amendment to the United States Constitution.[5]"
"
[5] It is, of course, well settled that a defendant who cannot afford to hire a lawyer does not have the "right to counsel of his own choosing." See Buntion v. Harmon, 827 S.W.2d 945, 949 (Tex.Cr.App.1992)."
Footnote 5 references a Write of Mandamus decision where a judge replaced appointed trial counsel in order to have a new attorney represent the defendant for an appeal, the defendant requested to have the appointed counsel reinstated. The court basically told the judge to present actual principled reasoning, rather than her preferences.
BBM
"Given the fundamental nature of an accused's right to counsel, we cannot agree that a trial judge's discretion to replace appointed trial counsel over the objection of both counsel and defendant extends to a situation where the only justification for such replacement is the trial judge's personal "feelings" and "preferences."[4] See Stearnes, supra. There must be some principled reason, apparent from the record, to justify a trial judge's sua sponte replacement of appointed counsel under these circumstances. Because no such principled reason is evident in the instant case, we find that relator has satisfied the second prerequisite to mandamus relief.[5]"
"
[4] According to the record, respondent's action in no way reflected a particularized belief that appointed counsel would be unable to adequately represent relator on appeal. Neither did the record reflect any evidence of a potential conflict of interest on the part of Kiernan or Scardino. Respondent's "practice," "experience," "feelings," and "preference" were the only explanations given."
Another Texas Writ of Mandamus decision requested the judge vacate order removing appointed counsel of the defendant's preference:
Read In re Fletcher, 584 S.W.3d 584, see flags on bad law, and search Casetext’s comprehensive legal database
casetext.com
BBM
"Fletcher informed the court that he prefers to continue to be represented by Willey, his counsel of over one year. The complaint about the general conditions of working as court-appointed counsel, without inquiry about how those conditions would create a conflict here, cannot override Fletcher's Sixth Amendment right to be "defended by the counsel he believes to be best." See Gonzalez-Lopez , 548 U.S. at 146, 126 S.Ct. 2557. And, even if the trial judge thought the course of events reflected on Willey's competency, as shown above, those concerns did not authorize Willey's removal over his and Fletcher's objections. See Harling , 387 A.2d at 1106.
The issue must be case-specific and appear in the record. Cf. United States v. Smith , 895 F.3d 410, 421 (5th Cir.), cert. denied , ––– U.S. ––––, 139 S. Ct. 495, 202 L.Ed.2d 387 (2018)."
Another US appeal court decision regarding right to appointed counsel:
In this one, the appeals court upheld decision to DQ counsel at the very beginning of pre-trial, which was done due to potential for the attorney to testify in the trial for the prosecution. They outline factors relating to someone's appointed right to counsel:
"In Daniels, the Sixth Circuit addressed a similar argument and concluded that no Sixth Amendment violation occurred when, over objection, the trial judge removed a defendant’s appointed counsel. The court surmised, "[t]he replacement of court-appointed counsel might violate a defendant’s Sixth Amendment right to adequate representation . . . if the replacement prejudices the defendant-e.g., if a court replaced a defendant’s lawyer hours before trial or arbitrarily removed a skilled lawyer and replaced him with an unskilled one. "Daniels, 501 F.3d at 740.
In this case, Littlejohn and Monckton were removed during the "infancy" of the proceeding (J.A. at 3403)—there were another sixteen months until jury selection began—and Basham’s replacement counsel was Jack Swerling and Gregory Harris, two extremely experienced members of the South Carolina defense bar. Swerling, in particular, is well-known for his representation in homicide and death penalty cases. See, e.g., Sims v. Brown, 425 F.3d 560, 582 n. 14 (9th Cir. 2005) (noting Swerling’s experience at the time included 100 homicide cases, four of which involved the death penalty). Basham does little to argue that this substitution was prejudicial, merely noting that Littlejohn and Monckton had filed a competency motion, which Swerling later withdrew, indicating that those attorneys were pursuing a different strategy than the one Swerling and Harris ultimately implemented. This sort of speculation, we believe, cannot meet the burden of showing prejudice.
In sum, Basham, as an indigent defendant, had the right to effective assistance of counsel, but not to counsel of his own choosing. He thus must point to some type of prejudice suffered because of the removal of Littlejohn and Monckton which, given the time of their removal and the replacement counsel Basham received, we do not believe he can do. Accordingly, the district court did not commit reversible error in disqualifying Littlejohn and Monckton prior to trial."
Here's Daniels v Lafler described above:
Read Daniels v. Lafler, 501 F.3d 735, see flags on bad law, and search Casetext’s comprehensive legal database
casetext.com
Harling v. United States, District of Columbia Court of Appeals, relating to appointed counsel
Read Harling v. United States, 387 A.2d 1101, see flags on bad law, and search Casetext’s comprehensive legal database
casetext.com
"We conclude, however, that once an attorney is serving under a valid appointment by the court and an attorney-client relationship has been established, the court may not arbitrarily remove the attorney, over the objections of both the defendant and his counsel. "[O]nce counsel has been chosen, whether by the court or the accused, the accused is entitled to the assistance of that counsel at trial." English v. State,"
Here's some cases sited by the 2nd Writ of Mandamus:
Read U.S. v. Gearhart, 576 F.3d 459, see flags on bad law, and search Casetext’s comprehensive legal database
casetext.com
US v Gearhardt, 7th circuit US appeals, regarding appointed counsel
BBM
"The Sixth Amendment protects a criminal defendant's right to a fair opportunity to secure the counsel of his choice. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932); United States v. O'Malley, 786 F.2d 786, 789 (7th Cir. 1986). This right to choose one's counsel, in turn, implies the right to continuous representation by the counsel of one's choice. See Anne Bowen Poulin, Strengthening the Criminal Defendant's Right to Counsel, 28 Cardozo L. Rev. 1213, 1249 (2006). Thus, disqualification of defense counsel should be a measure of last resort, and "the government bears a heavy burden of establishing that disqualification is justified." United States v. Diozzi, 807 F.2d 10, 12 (1st Cir. 1986).
Applying these principles, we have held that the disqualification of a defendant's counsel of choice can in principle pose a Sixth Amendment problem. O'Malley, 786 F.2d at 789; cf. Diozzi, 807 F.2d at 11 (finding a Sixth Amendment violation in attorney's disqualification where the defendant was willing to stipulate to the evidence giving rise to the conflict); United States v. Cunningham, 672 F.2d 1064, 1073 (2d Cir. 1982) (finding a Sixth Amendment violation in attorney's disqualification because the defendant agreed to limit his attorney's cross-examination of the witness whose testimony gave rise to the conflict)."
Despite outlining the right to continued counsel, this court found that
"the government's interest in proving its case beyond a reasonable doubt outweighed Gearhart's interest in continuity of counsel in this case."
Stearnes v. Clinton, Court of Criminal Appeals of Texas, Writ of Mandamus relating to court appointed counsel
Read Stearnes v. Clinton, 780 S.W.2d 216, see flags on bad law, and search Casetext’s comprehensive legal database
casetext.com
BBM
"The judge also suggests that McLarty may have engaged in unlawful conduct while interviewing Hanson. If that occurred McLarty should be prosecuted under the appropriate penal code provision. On the other hand, Judge Clinton's apparently unfounded speculation cannot be deemed as a valid basis for counsel's removal."
"While we acknowledge that an indigent defendant has no right under the Federal or State Constitutions to have counsel of his choosing, the right-to-counsel provisions of the respective constitutions prevents the trial court from unreasonably interfering with the counsel duly appointed. Once a valid appointment has been made, the trial court cannot arbitrarily remove him as attorney of record over the objections of the defendant and counsel."
Lane v. State, Court of Criminal Appeals of Alabama, relating to appointed counsel (DQed because counsel may need to be called as state's witness)
Read Lane v. State, 80 So. 3d 280, see flags on bad law, and search Casetext’s comprehensive legal database
casetext.com
"With respect to continued representation, however, there is no distinction between indigent defendants and nonindigent defendants. See, e.g., State v. Huskey, 82 S.W.3d 297, 305 (Tenn.Crim.App.2002) (" [A]ny meaningful distinction between indigent and non-indigent defendants' right to representation by counsel ends once a valid appointment of counsel has been made." ). See also Morris v. Slappy, 461 U.S. 1, 23 n. 5, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983)"
"Although Gonzalez-Lopez involved retained counsel, as noted above there is no difference between retained counsel and appointed counsel when it comes to the right to continued representation by counsel of choice. Therefore, we believe the analysis in Gonzalez-Lopez is applicable in this case. Because Lane was wrongly denied his right to counsel of choice under the Sixth Amendment, we must reverse his convictions and his sentence of death and remand this case for a new trial."
Finkelstein v. State, District Court of Appeal of Florida, Fourth District, regarding appointed counsel
Read Finkelstein v. State, 574 So. 2d 1164, see flags on bad law, and search Casetext’s comprehensive legal database
casetext.com
BBM "We conclude that the trial court departed from the essential requirements of law when it removed Howard Finkelstein as public defender representing petitioner John Fogelman. The court could have ordered Finkelstein to proceed, and suggested the possibility of contempt proceedings against him if he were to fail to do so. However, it did not entertain that option. Removal of counsel without even allowing an opportunity for objection and argument is and should be perceived as a threat to the independence of the bar as well as an abuse of discretion."
It seems that the question of prejudice and principled evidentiary/reasoning basis will come into play in the SC, with factors such as:
- no evidentiary hearing was held
- no formal motions were filed
- whether the reasons given for gross negligence were sufficient for removal
- content of the Oct 19th in-chambers discussion and whether it indicates prejudice or demonstrates reasonableness of the DQ
- JG appointing an attorney she knows rather than following the established process for finding a public defender, and whether that indicates prejudice
- whether the offer of pro-bono representation overrides lack of protection for appointed counsel of choice
- whether DQing the attorneys who have been working on the case for 11.5 months and have pending motions is seen as causing harm to RA's defense
The more of these cases I read, the more it seems straightforward to me that the SC will at the very least order an evidentiary hearing to be held prior to dismissal of B&R.
In addition, IMO even if you are disgusted by B&R you should want this hearing to happen because the last thing you want to see is this putting a conviction of RA in danger on appeal, as did happen in multiple cases above.
IANAL this is JMHO
