Thursday, November 16th, 2006

Retained Counsel Are Unique, but Appointed Counsel Are Fungible

United States v. Parker, Docket No. 05-6991-cr (2d Cir. Nov. 14, 2006) (Cabranes, Sotomayor, Raggi): This opinion does not break new legal ground, but is nonetheless of interest in highlighting the disparate treatment of defendants who can afford retained counsel and defendants who cannot. The contrast between (1) the Circuit’s easy affirmance here of the district court’s unilateral decision on a Crosby remand to replace the defendant’s CJA counsel – who had represented the defendant for well over 3 years by this time – with new CJA counsel, over defendant’s objection, and (2) the Supreme Court’s decision last June in United States v. Gonzalez-Lopez, 126 S. Ct. 2557 (2006), holding that an erroneous refusal to allow a defendant to proceed with retained counsel of his choice is a structural error requiring automatic reversal of his conviction (i.e., no showing of prejudice is needed), is hard to miss. Our two-tiered system of justice is rarely so visible.

The essential facts are these. In the summer of 2005, Parker appeared before District Judge Arcara for a Crosby remand (to determine whether the Judge would have imposed a different sentence had the Guidelines not been considered mandatory at the original, pre-Booker sentencing). By that time, Mark Mahoney had been Parker’s attorney for well over 3 years. Mahoney was originally retained by Parker, but became appointed counsel under the CJA in April 2002 when Parker lost his income.

Simultaneously, an appeal was pending in the Circuit concerning whether the district judge had erred in not appointing Mahoney as CJA counsel at an earlier time, as he and Parker had requested. The Circuit ultimately affirmed the district court’s decision in United States v. Parker, 439 F.3d 81 (2d Cir. Feb. 21, 2006) (click here for our discussion).

When the Crosby proceeding was before the district court, in sum, Parker and Mahoney’s challenge to the same court’s earlier refusal to appoint Mahoney under the CJA was still pending in the Circuit. Citing the possible appearance of conflict between him and Mahoney, Judge Arcara sua sponte removed Mahoney as Parker’s attorney and appointed new CJA counsel over Parker’s objection. Arcara had considered recusing himself to cure the potential conflict, but chose to remove Mahoney instead because of the unique nature of a Crosby remand. Arcara further noted that Parker would suffer no prejudice, since new CJA counsel was an experienced criminal practitioner.

Parker challenges this decision on appeal, and the Circuit easily affirms. It begins by citing Morris v. Slappy, 461 U.S. 1 (1983), for the proposition that “[t]here is no constitutional right to continuity of appointed counsel,” and adds that “courts are afforded considerable latitude in their decisions to replace appointed counsel, and may do so where a potential conflict of interest exists . . . and in the interests of justice.” Op. 7. The Circuit thus finds no abuse of discretion in Arcara’s decision to remove Mahoney for the Crosby remand, given the adversarial proceeding then-pending between the Judge and Mahoney in the Circuit and the “unique” nature of a Crosby remand. Op. 7-8. And since no one claims that new CJA counsel was ineffective at the Crosby remand, Parker was not prejudiced by the decision to replace Mahoney.

As noted, we quarrel not so much with the Court’s decision in this case (in light of existing law) as with the chasm in the treatment of defendants capable of affording retained counsel versus those unable to do so. If a defendant’s choice of retained counsel is so important as to warrant automatic reversal where erroneously denied, regardless of a showing of prejudice, as the Supreme Court held in Gonzalez-Lopez, we fail to see why the same principle would not at least entail searching scrutiny of a court’s decision to override an indigent defendant’s desire to continue with appointed counsel, especially one who has represented him for so long.

The Court concludes its opinion by emphasizing its “paramount interest in effectively implementing the CJA to ensure that legal services in this Circuit ‘will be performed with devotion and vigor so that the lofty ideal — equality before the law for all persons — will be achieved.” Op. 9 (quoting Second Circuit CJA Plan). But these words ring hollow when one contrasts the outcome here with that in Gonzalez-Lopez. A defendant’s right to counsel of choice is sacred if s/he can afford counsel, but meaningless if s/he cannot.

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