Each day courts are told by Defendants that often there court appointed attorney has failed them in some aspect, or simply doesn't want litigate the case consistent with Defendant's desires. Although an ineffective assistance of counsel claim may not be of concern to the court.
What is often overlooked is the fact that although tactical decisions are not usually grounds for ineffective assistance of counsel claims on appeal, issues the Defendant raises to the trial court may bring up issues concerning a conflict requiring new counsel. Often times a Defendant bringing his attorneys substandard performance to the attention of the court is made in open court, and other time in writing. See, U.S. v. Mays, Slip Copy, 2007 WL 869509, S.D.Tex., Mar 20, 2007 "Mays wrote a letter to this Court on September 28, 2004, expressing dissatisfaction with his court-appointed counsel…"
Despite his thoughts, the standard the Defendant must strive for is an objective standard. Namely, that the subjective opinion of his attorneys performance may be deemed objectively lacking to the point of threatening the right of the Defendant.
In short, a Defendant's subjective evaluation of his counsel's performance, or subjective belief in the existence of a conflict with his counsel, do not create an "irreconcilable conflict." See Cronic, 466 U.S. at 657, 104 S.Ct. 2039; Wheat, 486 U.S. at 159, 108 S.Ct. 1692.
Instead, an "irreconcilable conflict" requires specific objective evidence of a significant internal conflict between the defendant and counsel that rises to such a level that counsel could not or would not act as an effective advocate account the conflict. See Cronic, 466 U.S. at 659 n. 21, 104 S.Ct. 2039. In Mickens v. Taylor, 535 U.S. 162 (2002) 240 F.3d 348 Justice Scalia, delivering the opinion of the court, sets out two important principles, the underpinnings of which should be applied to petitioner in the case at bar. First, Justice Scalia cites Cuyler v. Sullivan, 446 U.S. 335, at 347-348, for the notion that the trial court's duty to inquire into the propriety of a potential conflict is required only when "the trial court knows or reasonably should know that a particular conflict exists." Mickens at 1242 (emphasis added).
Justice Scalia adds, importantly, that this situation is not to be confused with the "vague, unspecified possibility of conflict, such as that which 'inheres in almost every instance of multiple representation.' "Id. ("knows or reasonably should know that a particular conflict exists" it must initiate an inquiry about that conflict. [Cuyler ], 446 U.S. at 347, 100 S.Ct. 1708 and there must be a "knowingly and intelligently waived his right to conflict-free counsel, Maiden, 35 F.3d at 481 n. 5 (citing Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938))
The Court Must Act on Potential Conflict. There is little doubt once a court knows or should have known of a potential conflict, inquiry is mandated.
Every circuit of the United States Court of Appeals has reached the same conclusion: A trial court should conduct an inquiry into the basis for a Defendant's colorable motion to appoint substitute counsel. United States v. Morrison, 946 F.2d 484, 499 (7th Cir. 1991) ("the courts of appeals have held that 'the district court must engage in at least some inquiry as to the reasons for the defendant's dissatisfaction with his existing attorney'") (citing McMahon v. Fulcomer, 821 F.2d 934, 942 (3d Cir. 1987)) (internal quotation omitted).
Before a Defendant can knowingly and intelligently waive a conflict, the court must: (1) advise the defendant about potential conflicts; (2) determine whether the defendant understands the risks of those conflicts; and (3) give the defendant time to digest and contemplate the risks, with the aid of independent counsel if desired. U.S. v. Kliti 156 F.3d 150.
Reversal is Automatic Under Federal Law.
In order to ensure that a criminal defendant's right to conflict-free counsel is not abridged, a district court must "initiate an inquiry when it knows or reasonably should know of the possibility of a conflict of interest." Strouse v. Leonardo, 928 F.2d 548, 555 (2d Cir. 1991). This initial obligation to inquire arises whenever a district court is "sufficiently apprised of even the possibility of a conflict of interest." Levy, 25 F.3d at 153.
When a possible conflict has been "entirely ignored" by the district court, reversal has been "automatic." See id; see also Ciak, 59 F.3d at 307 (discussing the "automatic reversal rule" and reversing on that basis); United States v. Lussier, 71 F.3d 456, 461 (2d Cir. 1995) (suggesting that district court's failure to make conflict inquiry constitutes "per se reversible error"), cert. denied, 517 U.S. 1105, 116 S. Ct. 1321, 134 L. Ed. 2d 474 (1996).
Although the trial court's denial of a Defendant's Marsden motion is reviewed pursuant to the deferential abuse of discretion standard, reversal is automatic when, as here, a Defendant has been deprived of his right to discharge retained counsel and defend with counsel of his choice. (Lara, supra, 86 Cal.App.4th at p. 154, citing People v. Ortiz, supra, 51 Cal. 3d at p. 988.)
The court may refuse the request of a defendant with retained counsel to substitute new counsel to ensure orderly and expeditious judicial administration only if the defendant is "unjustifiably dilatory or... arbitrarily desires to substitute counsel at the time of trial." (Id. at p. 153, quoting People v. Blake (1980) 105 Cal. App. 3d 619, 623-624.)
"Where fundamental rights are affected by the exercise of discretion by the trial court,... such discretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action." (In re Carmaleta B. (1978) 21 Cal. 3d 482, 496; People v. Davis (1984) 161 Cal. App. 3d 796, 802-803.)
"A criminal defendant's right to decide how to defend himself should be respected unless it will result in 'significant prejudice' to the defendant or in a 'disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.' [] In other words, we demand of trial courts a 'resourceful diligence directed toward the protection of [the right to counsel] to the fullest extent consistent with effective judicial administration.'" (Ortiz, at pp. 982-983, quoting People v. Crovedi (1966)
Actual Conflict Shows Defendant Was Constructively Denied Counsel.
The Ninth Circuit found in Nguyen, where the Court held that "Nguyen was constructively denied counsel. Nguyen, 262 F.3d at 1004 ("There is no question in this case that there was a complete breakdown in the attorney-client relationship. By the time of trial, the defense attorney had acknowledged to the Court that Nguyen 'just won't talk to me anymore.' In light of the conflict, Nguyen could not confer with his counsel about trial strategy or additional evidence, or even receive explanations of the proceedings.
In essence, he was 'left to fend for himself.' "). Similarly, in Brown, the 9th Circuit found that the defendant was constructively denied his right to counsel where he "was forced into a trial with the assistance of a particular lawyer with whom he was dissatisfied, with whom he would not cooperate, and with whom he would not, in any manner whatsoever, communicate." Brown, 424 F.2d at 1169. In that case, the defendant and his public defender became embroiled in an irreconcilable conflict. Id. at 1169.
Nonetheless, even due to total breakdown of communication with trial counsel, as the 9th Circuit has pointed out more than once, even when a client forecloses avenues of investigation, the defense does not shut down. Lawyers must look for the "alternate sources of information and evidence." Silva v. Woodford, 279 F. 3d 825, 847 (9th Cir.) cert. den. 123 S. Ct. 342 (2002); accord Douglas v. Woodford, 316 F. 3d 1079, 1086 (9th Cir., 2003). The California Supreme Court recently embraced the Ninth Circuit Court of Appeals consideration of three factors when determining if a court should declare a conflict: (1) timeliness of the motion, (2) adequacy of the court's inquiry into the defendant's complaint, and (3) whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate defense. People v. Abilez --- Cal.Rptr.3d ----, 2007 WL 1839142 Cal.,2007.
What is often overlooked is the fact that although tactical decisions are not usually grounds for ineffective assistance of counsel claims on appeal, issues the Defendant raises to the trial court may bring up issues concerning a conflict requiring new counsel. Often times a Defendant bringing his attorneys substandard performance to the attention of the court is made in open court, and other time in writing. See, U.S. v. Mays, Slip Copy, 2007 WL 869509, S.D.Tex., Mar 20, 2007 "Mays wrote a letter to this Court on September 28, 2004, expressing dissatisfaction with his court-appointed counsel…"
Despite his thoughts, the standard the Defendant must strive for is an objective standard. Namely, that the subjective opinion of his attorneys performance may be deemed objectively lacking to the point of threatening the right of the Defendant.
In short, a Defendant's subjective evaluation of his counsel's performance, or subjective belief in the existence of a conflict with his counsel, do not create an "irreconcilable conflict." See Cronic, 466 U.S. at 657, 104 S.Ct. 2039; Wheat, 486 U.S. at 159, 108 S.Ct. 1692.
Instead, an "irreconcilable conflict" requires specific objective evidence of a significant internal conflict between the defendant and counsel that rises to such a level that counsel could not or would not act as an effective advocate account the conflict. See Cronic, 466 U.S. at 659 n. 21, 104 S.Ct. 2039. In Mickens v. Taylor, 535 U.S. 162 (2002) 240 F.3d 348 Justice Scalia, delivering the opinion of the court, sets out two important principles, the underpinnings of which should be applied to petitioner in the case at bar. First, Justice Scalia cites Cuyler v. Sullivan, 446 U.S. 335, at 347-348, for the notion that the trial court's duty to inquire into the propriety of a potential conflict is required only when "the trial court knows or reasonably should know that a particular conflict exists." Mickens at 1242 (emphasis added).
Justice Scalia adds, importantly, that this situation is not to be confused with the "vague, unspecified possibility of conflict, such as that which 'inheres in almost every instance of multiple representation.' "Id. ("knows or reasonably should know that a particular conflict exists" it must initiate an inquiry about that conflict. [Cuyler ], 446 U.S. at 347, 100 S.Ct. 1708 and there must be a "knowingly and intelligently waived his right to conflict-free counsel, Maiden, 35 F.3d at 481 n. 5 (citing Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938))
The Court Must Act on Potential Conflict. There is little doubt once a court knows or should have known of a potential conflict, inquiry is mandated.
Every circuit of the United States Court of Appeals has reached the same conclusion: A trial court should conduct an inquiry into the basis for a Defendant's colorable motion to appoint substitute counsel. United States v. Morrison, 946 F.2d 484, 499 (7th Cir. 1991) ("the courts of appeals have held that 'the district court must engage in at least some inquiry as to the reasons for the defendant's dissatisfaction with his existing attorney'") (citing McMahon v. Fulcomer, 821 F.2d 934, 942 (3d Cir. 1987)) (internal quotation omitted).
Before a Defendant can knowingly and intelligently waive a conflict, the court must: (1) advise the defendant about potential conflicts; (2) determine whether the defendant understands the risks of those conflicts; and (3) give the defendant time to digest and contemplate the risks, with the aid of independent counsel if desired. U.S. v. Kliti 156 F.3d 150.
Reversal is Automatic Under Federal Law.
In order to ensure that a criminal defendant's right to conflict-free counsel is not abridged, a district court must "initiate an inquiry when it knows or reasonably should know of the possibility of a conflict of interest." Strouse v. Leonardo, 928 F.2d 548, 555 (2d Cir. 1991). This initial obligation to inquire arises whenever a district court is "sufficiently apprised of even the possibility of a conflict of interest." Levy, 25 F.3d at 153.
When a possible conflict has been "entirely ignored" by the district court, reversal has been "automatic." See id; see also Ciak, 59 F.3d at 307 (discussing the "automatic reversal rule" and reversing on that basis); United States v. Lussier, 71 F.3d 456, 461 (2d Cir. 1995) (suggesting that district court's failure to make conflict inquiry constitutes "per se reversible error"), cert. denied, 517 U.S. 1105, 116 S. Ct. 1321, 134 L. Ed. 2d 474 (1996).
Although the trial court's denial of a Defendant's Marsden motion is reviewed pursuant to the deferential abuse of discretion standard, reversal is automatic when, as here, a Defendant has been deprived of his right to discharge retained counsel and defend with counsel of his choice. (Lara, supra, 86 Cal.App.4th at p. 154, citing People v. Ortiz, supra, 51 Cal. 3d at p. 988.)
The court may refuse the request of a defendant with retained counsel to substitute new counsel to ensure orderly and expeditious judicial administration only if the defendant is "unjustifiably dilatory or... arbitrarily desires to substitute counsel at the time of trial." (Id. at p. 153, quoting People v. Blake (1980) 105 Cal. App. 3d 619, 623-624.)
"Where fundamental rights are affected by the exercise of discretion by the trial court,... such discretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action." (In re Carmaleta B. (1978) 21 Cal. 3d 482, 496; People v. Davis (1984) 161 Cal. App. 3d 796, 802-803.)
"A criminal defendant's right to decide how to defend himself should be respected unless it will result in 'significant prejudice' to the defendant or in a 'disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.' [] In other words, we demand of trial courts a 'resourceful diligence directed toward the protection of [the right to counsel] to the fullest extent consistent with effective judicial administration.'" (Ortiz, at pp. 982-983, quoting People v. Crovedi (1966)
Actual Conflict Shows Defendant Was Constructively Denied Counsel.
The Ninth Circuit found in Nguyen, where the Court held that "Nguyen was constructively denied counsel. Nguyen, 262 F.3d at 1004 ("There is no question in this case that there was a complete breakdown in the attorney-client relationship. By the time of trial, the defense attorney had acknowledged to the Court that Nguyen 'just won't talk to me anymore.' In light of the conflict, Nguyen could not confer with his counsel about trial strategy or additional evidence, or even receive explanations of the proceedings.
In essence, he was 'left to fend for himself.' "). Similarly, in Brown, the 9th Circuit found that the defendant was constructively denied his right to counsel where he "was forced into a trial with the assistance of a particular lawyer with whom he was dissatisfied, with whom he would not cooperate, and with whom he would not, in any manner whatsoever, communicate." Brown, 424 F.2d at 1169. In that case, the defendant and his public defender became embroiled in an irreconcilable conflict. Id. at 1169.
Nonetheless, even due to total breakdown of communication with trial counsel, as the 9th Circuit has pointed out more than once, even when a client forecloses avenues of investigation, the defense does not shut down. Lawyers must look for the "alternate sources of information and evidence." Silva v. Woodford, 279 F. 3d 825, 847 (9th Cir.) cert. den. 123 S. Ct. 342 (2002); accord Douglas v. Woodford, 316 F. 3d 1079, 1086 (9th Cir., 2003). The California Supreme Court recently embraced the Ninth Circuit Court of Appeals consideration of three factors when determining if a court should declare a conflict: (1) timeliness of the motion, (2) adequacy of the court's inquiry into the defendant's complaint, and (3) whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate defense. People v. Abilez --- Cal.Rptr.3d ----, 2007 WL 1839142 Cal.,2007.