9

In a recent court case in NC, USA, the appeals court upheld that the trial court did not make a mistake in forcing a person to choose between counsel and testifying.

Basically, the court appointed lawyer said the client was going to lie, and the judge granted his motion to resign. As such the defendant was left with private counsel, or representing himself.

I thought there was a law against choosing between testifying and having counsel? Also the right to a public defender couldn't be just taken away?

Key exchange:

THE COURT: Is he going to have retained counsel by then or is he going to represent himself?

MR. CAMPBELL: I would let him speak to that, if that's appropriate.

MR. SMITH: I'm going to make an attempt to retain counsel, Your Honor. If I am unable to, I will represent myself.

What happens is the court asks will he retain counsel or represent himself, effectively taking away the right to public counsel, at which point he says he will try to get counsel. By not offering the right to public counsel, they effectively took away his right to public counsel.

  • Your question is no longer consistent: Public counsel withdrew. Defendant retained private counsel. Defendant was never without counsel. Your question suggests that at some point Defendant requested different public counsel and was rebuffed. Did that occur? Or are you asking in general whether one has the right to a public defender of one's choosing? I.e., if he had wanted to retain the original counsel could he have moved the court to compel that? – feetwet Oct 2 '15 at 19:35
  • @feetwet Your right in the sequence of events. Your wrong in the fact that he retained private counsel of his own choosing. He was asked to provide his own counsel or represent himself, therefor he retained private counsel. The way I would imagine, if you show up in court and the court asks you, Mr. FeetWet, will you provide counsel or will you represent yourself?, they have taken away your right to public counsel – DidIReallyWriteThat Oct 2 '15 at 19:50
  • You do not have a right to public counsel in the US. You have the right to to an attorney and to have an attorney present for any questioning. The defendant had an attorney, at no time was the defendants right denied. – Chad Oct 2 '15 at 20:19
  • @Chad What about Gideon v. Wainwright? "Held: The right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, and petitioner's trial and conviction without the assistance of counsel violated the Fourteenth Amendment." – D M Dec 29 '17 at 19:46
  • @DM - And as I said in the comment on my answer, had the defendant actually been forced to represent themselves pro se, then that rule might apply. The actuality of the case was the defendant did not challenge the ruling that another PD need not be assigned, and instead procured private representation. – Chad Dec 29 '17 at 21:51
7

Smith makes three arguments in his appeal, that the trial court erred by:

  1. allowing Smith's trial counsel to withdraw on the sixth day of trial and
  2. failing to appoint substitute counsel for Smith thereafter, and
  3. that the private substitute counsel Smith retained was presumptively ineffective based upon the amount of time he had to review Smith's case before proceeding with the trial.

Smith does not raise the question that you mention: the law against choosing between testifying and having counsel. That question was raised by the state's attorney:

There are cases that say the [c]ourt cannot make a defendant choose between the right to testify and the right to counsel... [T]here is a Hobson's choice here between Mr. Smith testifying and Mr. Smith having an attorney. And the courts have ruled at times that there can't be a choice between those things.

Speaking of Hobson's choice:

United States ex rel. Wilcox v. Johnson, 555 F. 2d 115 - Court of Appeals, 3rd Circuit 1977

the appellee here "was put to a Hobson's choice": decline to testify and lose the opportunity of conveying his version of the facts to the jury, or take the stand and forego his fundamental right to be assisted by counsel. The Trial Judge thus conditioned the exercise of Mr. Wilcox's statutory right to testify upon the waiver of rights guaranteed by the Constitution. This was an impermissible infringement upon the appellee's right to testify and his Sixth Amendment right to counsel.

also:

US v. Scott, 909 F. 2d 488 - Court of Appeals, 11th Circuit 1990

To advise [the defendant] that he could be precluded from testifying, without confirmation that [the defendant] intended to commit perjury, or could proceed pro se impermissibly forced Scott to choose between two constitutionally protected rights.

and:

Wilson v. State, 12 So.3d 292 (Fla. Dist. Ct. App. 2009)

This case concerns a defendant's desire to testify in greater detail about the incidents giving rise to the criminal charges, confronted by his attorney's belief that more testimony was not a good idea. The judge offered the defendant the choice of testifying further by giving up his attorney, and representing himself. The defendant chose not to testify. We hold that the trial court improperly forced a choice between two constitutional rights, and reverse.

Here is a really recent case where The Connecticut Supreme Court gave defendant a new trial after his lawyer quit (went into snooze mode) when the defendant insisted on testifying.

State of Connecticut v. Maurice Francis, (SC 19305)

The record reflects that the court and defense counsel understood the defendant to be self-represented during his testimony. Defense counsel made it abundantly clear that they had no intention of representing the defendant should he testify and would file a motion to withdraw if necessary to avoid doing so. After canvassing the defendant regarding the pitfalls of proceeding pro se, the trial court ruled that it would have to let the defendant ‘‘self-represent . . . during this point . . . .’’ Consistent with this ruling, the court’s docket sheet reflects the court clerk’s notations indicating that, for purposes of the defendant’s testimony only, the defendant was allowed to represent himself and standby counsel was appointed. It further indicated that, for the remainder of the trial, counsel was retained to represent the defendant. Because of this ruling, defense counsel did not need to file a motion to withdraw, as their temporary status as standby counsel remedied the representation problem that they had sought to avoid.

An interesting distinction among these cases is the reason the attorney conditioned representation on withholding testimony. One reason is ethical – knowledge that the client is going to lie. The other reason is strategic; the attorney thinks the witness will hurt the case.


Edit to discuss the ethics question as it was brought up in the comments.

Comment: However the defendant did not lie, the lawyer provided no evidence the defendant did lie, and the lawyer never stated why/how/what he thought the defendant might lie about.

The lawyer did not tell the court, and could not ethically tell the court. The superior court said:

Difficulty may be encountered if withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of their obligations to both clients and the court under Rules 1.6 and 3.3.

The lawyer mentioned 1.16 as the reason he needed to withdraw. It basically says you can't represent someone if the representation would be an ethics violation:

Rule 1.16 Declining or Terminating Representation
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of law or the Rules of Professional Conduct;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
(3) the lawyer is discharged.

And then Comment 3 says that if a lawyer wants to withdraw because of an ethics conflict the judge may let him go without further inquiry.

Comment 3
When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. Similarly, court approval or notice to the court is often required by applicable law before a lawyer withdraws from pending litigation. Difficulty may be encountered if withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of their obligations to both clients and the court under Rules 1.6 and 3.3.

However, the appellate court writes that the trial court could have asked about comment 2 which says that suggestion of perjury is not enough to force withdrawal.

Comment 2
lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation.

But, and this is the big but - this is not enough for the appellate court to overturn the trial court.

...we may not consider the correctness of the court's ruling de novo or second guess its exercise of discretion... Rather, we are limited to a determination of whether the court's decision was “manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision.”

The rule violation at risk here is 3.3(a)(3):

(a) A lawyer shall not knowingly... offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

It's comment 9 that the state wanted the trial court to consider. It seems to me that she wanted to hint to the defense attorney that he could ethically hear the testimony if he didn't know that it was false.

Comment 9 Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer's ability to discriminate in the quality of evidence and thus impair the lawyer's effectiveness as an advocate. Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client's decision to testify.

It seems to me that comment 8 is more helpful, but I wasn't there.

Comment 8
The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer's reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer's knowledge that evidence is false, however, can be inferred from the circumstances. See Rule 1.0(g). Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.

  • Thank you for your answer. It is very helpful. However the defendant did not lie, the lawyer provided no evidence the defendant did lie, and the lawyer never stated why/how/what he thought the defendant might lie about. So your suggesting that normally he would be afforded a new trial, but because the lawyer hinted he might lie he was denied a new lawyer? – DidIReallyWriteThat Oct 2 '15 at 19:02
  • @DidIReallyWriteThat - There is no way that a lawyer can testify against his client like that: see attorney-client privilege. (There might be some corner cases where one can, but this is not one of them.) As Chad said, in this case, original counsel withdrew (the court can't penalize or infer anything from that), and the only real assertion I see in the appeal is that the replacement counsel was ineffective. – feetwet Oct 2 '15 at 19:11
  • @feetwet the court can't prevent a lawyer from resigning 6 days into a jury trial that was in preparation for over 3 years? – DidIReallyWriteThat Oct 2 '15 at 19:52
  • @DidIReallyWriteThat - I didn't say anything on that (which is an interesting question). I said that with a few exceptions a lawyer has a professional obligation that would prevent him from saying something damaging to the court about his client like, "I think my client is lying," or, "I'm withdrawing because my client told me he is going to lie." – feetwet Oct 2 '15 at 20:03
  • @DidIReallyWriteThat I edited the question to include some stuff about the ethics piece. Both the state and the superior court seem to imply that the lawyer could have put up the witness because he did not know that the testimony was false. As for the new trial part, I am just saying that if had not testified perhaps he could get a new trial on the grounds that his attorney unconstitutionally coerced him not to testify. But that's a long way from reality. – jqning Oct 2 '15 at 20:15
2

The defendant in this case did retain counsel just not a public defender. The appeal even admited there was counsel and only argued that the counsel was ineffective.

the private substitute counsel Smith retained was presumptively ineffective based upon the amount of time he had to review Smith's case before proceeding with the trial.

Had Smith been unable to retain private counsel then presumably, the judge would have appointed another counsel or not allowed the original PD to withdraw. If the judge had forced the defendant to go forward without counsel then it would have been a violation of the rule.

  • 1
    That's basically how it happened, they took away the public defender, asks will he represent himself or retain counsel, so he found private counsel AFTER the original PD had withdrawn. – DidIReallyWriteThat Oct 2 '15 at 18:28
  • They did not take away his public defender, his public defender asked with withdraw and the defendant indicated he would rather retain new counsel than request that the PD not be allowed to withdraw, or to request a new PD Be assigned. – Chad Oct 2 '15 at 20:15
  • @Char But the court states Rather, Campbell's withdrawal was caused by Smith himself demanding that Campbell engage in unprofessional conduct. The constitutional right to effective assistance of counsel does not encompass a right to have appointed counsel who is willing to engage in unprofessional conduct.1 Thus, Smith was simply not entitled to the appointment of substitute counsel. – DidIReallyWriteThat Oct 6 '15 at 14:26
  • @DidIReallyWriteThat - Possibly but that part was never challenged in court since the defendant was able to retain counsel. The defendant is entitled to representation by counsel. Had the defendant not been able to secure private counsel, and the court forced the defendant to act as his own attorney, then that rule may have applied. – Chad Oct 6 '15 at 14:31
  • but the fact that he was found indignant, got a public defender, then the public defender withdraws and he is not offered another public defender doesn't matter? – DidIReallyWriteThat Oct 6 '15 at 15:25

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