RIGHT OF TESTIFYING DEFENDANT TO CONSULT LAWYERS IS CLARIFIED

NYLJ 5-31-07

2. RIGHT OF TESTIFYING DEFENDANT TO CONSULT LAWYERS IS CLARIFIED

2. “How long is too long in a trial?”—is NOT the question.

“How much ‘how long’ meant” is.

The U.S. Court of Appeals bore down on that one in the 2nd Circuit for their review of U.S. v. Andrews, 05-2639-cr. It doesn’t matter what the case was, either; it was the time Andrews’ attorney was barred from speaking with his client that they were weighing in on.

It was during an overnight break during cross-examination that Counselor Donovan was barred by the court from consulting with his client. Exactly what transpired is a bit murky, on his end, but clear enough to the Prosecutors. They immediately reviewed their request for constitutional issues and had the ban rescinded.

However, by that time Donovan and Andrews had gone their separate ways and—incredibly—this attorney was, “for some or one reason of other,” unavailable to meet with his client (even after the 3-hour ban had been lifted?—who knew?) until the next morning.

Did this unfairly handicap his defense? Sure. Was it misconduct on the Government’s part? Not if you see their immediate review and withdrawal of the ban as acting in good faith. Ultimately, the burden fell on the Defense. The court recessed the following morning to give the attorney ample time to review testimony with his client, but, due to the fact that Donovan had failed to take notes—saying his memory of the trial was ‘hazy”, since he thought he was going to speak with his client right after the day’s court—and paid scant attention to whatever service would have told him he could meet with Mr. Andrews… Well, it was not so much a ‘bad call’ as no call at all.

That being said, the Appeals panel came to the conclusion that the 6th Amendment rights were not materially affected as to effective assistance from counsel.

(Ok. So it was bribery, fraud and other charges in connection with a scandal involving illegal investment of state pension funds with the Connecticut Treasurer…)

(And now we segue into an Olberman-type musical insert of “How Long (has this been going on)” by Ace…)