United States v. Brown, No. 13-10354 (Berzon with Reinhardt and Gould) --- What should happen when a defendant wants to fire his retained counsel?  Today the Ninth Circuit reiterated that, unless the defendant's reasons for discharging counsel interfere with the fair, efficient, and orderly administration of justice, the judge must allow retained counsel to withdraw and, if the defendant is indigent, appoint substitute counsel under the Criminal Justice Act.  Here, because the district judge (who has a track record of hostility toward appointed counsel, see United States v. Tillman, 756 F.3d 1144 (9th Cir. 2014)) neither gave a valid reason for denying the defendant's request to fire retained counsel nor for declining to appoint the Federal Public Defender to represent the defendant, the court vacated the defendant's convictions and remanded for a new trial.

The defendant was charged with advertising, transporting, receiving, and possessing child pornography.  He retained counsel, but the relationship broke down, and two and a half weeks before trial counsel moved to withdraw.  So the judge held a hearing on the motion, and an Assistant Federal Public Defender attended the hearing.  Counsel explained that there was an "extreme divergence of philosophical opinion" about how to defend the case, but the judge was more concerned that the real reason for withdrawal was that the defendant wasn't able to pay counsel's fee.  But there was no dispute about the fee.  The defendant explained to the judge that he was unhappy that his lawyers never engaged his assertions of innocence.  The judge reassured the defendant that his retained counsel was excellent and would be required to zealously present his defense.  When counsel raised the prospect that the defendant might claim ineffective assistance later on, the judge threatened him that if he continued to express that concern, he would require counsel to refund his entire fee.  The judge denied the motion.  The defendant was later convicted on all four counts and sentenced to 15 years in prison.

The Sixth Amendment right to counsel has two components -- a defendant is entitled to retained counsel of his own choosing, and a right to effective assistance of counsel.  He does not have a right to appointed counsel of his own choosing; his choices are limited to retaining any lawyer he wants, accepting the services of appointed counsel if he is eligible, or representing himself.  The only limitation on the right to counsel of choice is that the choice must not interfere with the orderly administration of justice.  A defendant who seeks to fire retained counsel and is otherwise indigent must be appointed counsel under the CJA.  The court may not leave a criminal defendant without counsel unless it complies with the procedure described in Faretta v. California 422 U.S. 806 (1975). 

The court first stressed that this motion was never about counsel's desire to withdraw, whether because he wasn't getting paid or for some other reason.  This motion was about the defendant trying to fire his lawyer because his lawyer wasn't presenting the defense he thought was most important.  When "it is apparent that the defendant, not the attorney, instigated the withdrawal motion, the defendant's Sixth Amendment rights should trump whatever concerns the court has about the lawyer's motives."  It was clear here that the defendant did not trust his lawyers to present the defense he thought was appropriate, owing in part to a breakdown in communication between them.  These are all sufficient concerns for allowing a defendant to fire counsel; indeed, so far as the Sixth Amendment was concerned, the defendant could fire counsel for any reason at all.  So the district judge's belief that retained counsel could do a better job than the Federal Public Defender was utterly beside the point.  And although the judge may have had some concerns about the timing of the request to withdraw, that was not the basis for denying the request to withdraw, and in any event the judge did give counsel another month to prepare for trial.  The judge simply made no findings about whether allowing withdrawal would impede the orderly administration of justice.  Because no such findings could be supported by the record, the court held that the defendant should have been granted appointed counsel.

The denial of the defendant's right to counsel of choice was structural error, and so the court vacated the defendant's convictions and remanded for a new trial.  It did, however, hold that the evidence presented was sufficient to sustain all of the charges.

Congratulations to Las Vegas AFPD Jason Carr.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/05/13/13-10354.pdf