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 They immediately reviewed their request for constitutional issues and had the ban rescinded.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…)

CLIENT IS UNCOOPERATIVE BUT LAWYER CANNOT QUIT

NYLJ 4-10-07

2. CLIENT IS UNCOOPERATIVE BUT LAWYER CANNOT QUIT


2. The standard cant you can get from the professionals themselves--or any number of comedy club rejects, really--is: all lawyers are, first, lazy; second, liars, and lastly, overcharge like breathing. This bad attitude about the profession has placed it so far from a laughing stock it oughta be called cursing stock. Get down to cases, though, and it all becomes moot...and that's not a court. You gotta do the do, right? It comes as part of the basic package.

So, it's gotta give you pause to find yourself making an application before the bench to drop a client. Asking? That was then. Now, you're determined to put the plead in plea. If necessary, you'll try beg. Which is no answer at all, if this is the second time you’re tried it. And it is. And it isn’t. Because the answer is still No. Maybe grovel?

You can say such things as: "I have represented his interests to the best of my abilities. In convincing the DA to take the death penalty off the table, I feel little else would be possible, even given the advent of my client’s cooperation." What you don't say it that you get the same cooperation you’d expect from an Al Queda detainee at Guantanamo—minus the persuasion techniques of newly-enfranchised interrogators.

No. What you do say is, "The present situation, which your Honor is well-aware of, being that he wishes to proceed pro se, no longer even desiring independent counsel as advisor on motion practice and statutory option from an attorney before the bar, and that he even refuses to meet with me or my investigator…" It would be nice if you could get the lady justice to take the hint. Maybe phrase it as if the Truth was your client, and just the suggestion that your efforts at trying to portray him as an authentic maniac would be a disservice, maybe convict the truth under circumstantial evidence, like guilt by association. Maybe you ought to have your head examined.

What seems perfectly reasonable, even logical, in this context, becomes another thing entirely when seen through the lens of judicial authority and responsibility. The cause of action doesn't matter as much as the law must be satisfied, and if that means conforming to the image of fairness--the image will be fair enough. Under the convex and concave warping the Constitution of the United States and New York State and City Charters, once you get tagged, you're it. What the lady in the high chair doesn't say is: You are doing a fine job with this degenerate nutjob and there’s absolutely no chance in Hell you’re getting out from under it.

What she does say, though, is almost as candid. “Face it,” she’ll offer off the record, “when he starts with the jurisdictional challenges on the basis that the indictment has his name in all caps, you pretty much know where this is going." Sympathy and a shoulder to cry on, that seems to be all you're going to get here. "Somewhere along the line I’m going to order a sanity hearing on him and then we’ll have to find him competent and start this all over again. Right now, I’d like to rule him ‘hostile and uncooperative,’ but that would just give his next counsel grounds to move for a dismissal on prejudice, or ask me to recuse myself. And I’m not going to give that S.O.B. an inch if I can help it. The only way this goes to appeal is over my dead body. Or somebody changes the law.”

You could be unkind and say: I think you're just protecting your image, you Honor. And she could counter: No, I'm protecting my ass, counsellor. But, truth be told, nobody wants to get that honest.