Case o' The Week: "Return to Sender" = Return for Trial: Yepiz and Right to Retained Counsel
|Hon. John T. Noonan|
A bounced-back letter means a bounced-back case, when Ninth considers right to counsel of choice.
United States v. Yepiz, 2016 Westlaw 7367827 (9th Cir. Dec. 20, 2016, 2016), decision available here.
Players: Decision by Judge Noonan, joined by Judge Reinhardt. Partial dissent by Judge Nguyen.
Facts: Yepiz and his co-defendants went to trial on RICO charges. Id. at *1. Four months before trial, Yepiz wrote directly to the district judge and complained of difficulties he had with his retained counsel. Id. at *5. The court rejected the letter because local rules prohibit ex parte contact with the judge – but it didn’t explain why in the returned letter. Id.
Yepiz wrote another pair of letters asking for an in camera hearing to request appointed counsel. Id. The court ultimately held the hearing, but rejected the request for appointed counsel as “untimely” and on the “eve of trial.” Id.
Yepiz wrote a fourth letter with concerns about his counsel during trial. Id. He appealed after being convicted at trial.
Issue(s): “Unlike most substitution cases that arise when an indigent defendant requests new court-appointed counsel in place of an existing appointed attorney, the present appeal concerns a defendant's request to replace retained counsel with appointed counsel.” Id. at *6 (internal quotations omitted).
“Yepiz claims the district court abused its discretion when it failed to inquire into his April letter seeking to replace [retained counsel] Estrada with court-appointed counsel.” Id.
Held: “We agree.” Id. “The right to counsel of choice includes the constitutional right to discharge retained counsel, and a defendant may generally do so for any reason or no reason so long as the substitution would [not] cause significant delay or inefficiency or run afoul of ... other considerations, such as the fair, efficient and orderly administration of justice. . . . [D]enial of a defendant's right to counsel of choice is a structural error, requiring that convictions be vacated even without a showing of prejudice. . . . Where a court allows a defendant to discharge his retained counsel and the defendant is financially qualified, the court must appoint new counsel for him under the Criminal Justice Act (CJA), at any stage of the proceedings. . . .” Id. at *6.
“We . . . find that the district court abused its discretion when it arbitrarily and without explanation rejected Yepiz's April 2006 letter. Given the defects in the district court's handling of Yepiz's requests, we VACATE Yepiz's conviction and REMAND for a new trial.” Id. at *8 (internal quotations and citations omitted).
Of Note: Structural errors are rarer than hen’s teeth. That standard – structural error – is the crux of Judge Nguyen’s dissent. Id. at *8 (Nguyen, J. dissenting in part). Judge Nguyen would employ a harmless error analysis by characterizing the appeal as alleging ineffective assistance of counsel, not choice of counsel. Id. In her view the case hinges on the status of the pro se letter Yepiz wrote to the court four months before trial (bounced, most likely, by a clerk). Id. at *8.
Judge Nguyen worries that “[t]he majority’s holding means that district courts can’t enforce local rules prohibiting represented parties from writing pro se letters to the judge.” Id. at *10. Whether or not that’s true, it is fair to say that Yepiz means that the scribbled letters of our pen pal clients are likely to get a much closer read from their judicial audience.
How to Use: Do we have an ethical obligation to transmit to the court a client’s request for new counsel? Of course, doing so is good form and is the “right” thing to do. But is it an ethical requirement?
“Once Estrada learned that his client might want to discharge him, he had a duty to promptly discuss the issue with Yepiz and, if Yepiz indeed had that intent, to honor it. An attorney has an ethical obligation to seek substitution or withdrawal if his client wants the representation to end.” Id. at *9. The cases relied upon by Judge Nguyen don’t state that obligation quite as bluntly, but note well her rule: if a client wants to fire us, we let the court know.
For Further Reading: The Eleventh Circuit held this year that a client needn’t show “good cause” to dismiss his retained counsel. See decision here.
A case of interest, because the author of Jimenez-Antunez is a lead candidate for the vacant Supreme Court seat. See article here.
Image of the Honorable Judge John T. Noonan from http://www.wabash.edu/images2/news/Noonan-morrillo-story-1.jpg
Steven Kalar, Federal Public Defender N.D. Cal FPD. Website at www.ndcalfpd.org