Sunday, May 17, 2015

Case o' The Week: Right to Fire Sparks Ninth's Ire - Brown and the Sixth Amendment Right to Counsel

 Brown, with no Green, results in a colorful decision.
United States v. Brown, 2015 WL 2215899(9th Cir. May 13, 2015), decision available here.

Players: Decision by Judge Berzon, joined by Judges Reinhardt and Gould. Big win for D. Nev. AFPD Jason Carr.  

Facts: Brown was charged with a number of child-porn-related offenses. Id. at *1. Weeks before trial, retained counsel filed a motion to withdraw from the case and substitute a public defender. Id. 
  After a hearing, the Honorable District Judge Robert Clive Jones denied the motion, explaining to Brown “he would not receive nearly as good a defense were the court to appoint a public defender.” Id. at *4. 
  Trial was continued, Brown was convicted, and he was sentenced to 180 months.

Issue(s): Were there sufficient reasons to deny Brown’s right to discharge his retained counsel and be appointed CJA counsel?

Held: “We now reiterate Rivera–Corona’s intertwined rules: (1) A defendant enjoys a right to discharge his retained counsel for any reason ‘unless a contrary result is compelled by ‘purposes inherent in the fair, efficient and orderly administration of justice,’ Rivera–Corona, 618 F.3d at 979 (quoting United States v. Ensign, 491 F.3d 1109, 1115 (9th Cir.2007)), and (2) if the 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”), 18 U.S.C. § 3006A. Because no sufficient reason justified the district court’s denial of Richard Carl Brown's right to discharge his retained lawyer or its refusal to appoint counsel, we vacate Brown's convictions and remand for a new trial.” Id. at *1.

Of Note: In what has quickly became the most e-mailed footnote in history, Judge Berzon valiantly defends the Defenders: “[W]e completely disagree with the district court's assessment of federal public defenders, who, in our experience, typically provide the highest quality representation . . . . Nor are we alone in that opinion: A survey of 457 federal district and appellate judges, published as part of an article co-authored by Judge Posner of the Seventh Circuit, rated advocacy by public defenders in federal court significantly higher than that provided by privately retained attorneys . . . and even prosecutors.” Richard A. Posner & Albert H. Yoon, What Judges Think of the Quality of Legal Representation, 63 Stan. L.Rev. 317, 322, 327 (2011).”

How to Use: Footnote 5 has received the (well-deserved) attention, but the entire opinion is a welcome and important decision on indigent defense. Judge Berzon carefully discusses the Ninth’s key Rivera-Corona holding, and works through the ramifications when retained counsel is fired and Mr. Green is no longer in the case. See id. at *6 & n.3 (discussing CJA appointment of previously retained counsel).  
  Brown a worthy read for both retained counsel (who occasionally must part ways with their clients), and for CJA counsel (who may inherit that client). The key principle in this specific scenario is that in this context, “the extent-of-conflict review is inappropriate.” Id. at *5. Put differently, clients have the right to fire their retained counsel, “for any reason or [for] no reason.” Id. at *5. (NB: that’s a constitutional right, to boot. Id. at *5) This is a very different rule than the conflict analysis for appointed counsel. 
   Brown is a thorough and well-written decision that gives clear guidance to both retained and CJA counsel in these unfortunate appointment scenarios.
For Further Reading: Ninth Circuit Judge Stephen Reinhardt (on the panel) and Nevada's District Judge Jones have crossed paths before. The jurists have exchanged candid views regarding their respective decisions in Nevada’s ballot option. See article here.  
  This Townley v. Miller election litigation is an interesting backdrop to this Brown case (particularly Judge Reinhardt’s concurrence to the September 5, 2012 order). See order here

Image of “Mr. Green” from Imageof the Honorable Judge Stephen Reinhardt and the Honorable District Judge Robert Jones from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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