Wilson v. Mintzes
Decision Date | 17 June 1985 |
Docket Number | No. 83-1046,83-1046 |
Citation | 761 F.2d 275 |
Parties | Roy WILSON, Petitioner-Appellant, v. Barry MINTZES, Respondent-Appellee. |
Court | U.S. Court of Appeals — Sixth Circuit |
John R. Minock (court-appointed), Detroit, Mich., for petitioner-appellant.
Frank J. Kelley, Atty. Gen. of Michigan, J. Peter Lark, Lansing, Mich., for respondent-appellee.
Before ENGEL, MARTIN and CONTIE, Circuit Judges.
On May 4, 1984, we reversed the district court's denial of petitioner Roy Wilson's petition for a writ of habeas corpus and remanded to the district court with instructions that the writ be granted. Wilson v. Mintzes, 733 F.2d 424 (6th Cir.1984). The Supreme Court of the United States granted respondent Mintzes' petition for a writ of certiorari, vacated our judgment and remanded the case for consideration in light of Strickland v. Washington, 466 U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 1 For the reasons that follow, we reaffirm our earlier judgment.
Petitioner Wilson contended in seeking a writ of habeas corpus that the trial judge's failure to grant a continuance to allow him to retain substitute counsel when he expressed dissatisfaction with the conduct of his counsel at trial deprived him of his sixth amendment right to counsel. We found that counsel's conduct at trial constituted good cause to warrant substitution of counsel and that Wilson was prejudiced by counsel's attempt to remove himself from the case in front of the jury and by his refusal to cross-examine the officer in charge of the investigation. 2
The sixth amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
While the plain language of the amendment simply guarantees a defendant "the Assistance of Counsel for his defence," such language encompasses a guarantee of the right to self-representation, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1974), the right of indigents to appointed counsel in felony prosecutions, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970); Birt v. Montgomery, 725 F.2d 587, 592 (11th Cir.1984) (en banc ) ( ); Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir.1978). Additionally, although much sixth amendment jurisprudence has been concerned with the rights of indigent defendants, an accused who desires to and is financially able "should be afforded a fair opportunity to secure counsel of his own choice." Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932); Crooker v. California, 357 U.S. 433, 439, 78 S.Ct. 1287, 1291, 2 L.Ed.2d 1448 (1958); Chandler v. Fretag, 348 U.S. 3, 10, 75 S.Ct. 1, 5, 99 L.Ed. 4 (1954) (); Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942) () ; Urquhart v. Lockhart, 726 F.2d 1316, 1319 (8th Cir.1984); United States v. Burton, 584 F.2d 485, 488-89 (D.C.Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed. 34 (1979) (). 3 Contra Rubio v. Estelle, 689 F.2d 533, 535 (5th Cir.1982). Therefore, "[w]hen a court unreasonably denies defendant counsel of choice, the denial can rise to the level of a constitutional violation." Birt, 725 F.2d at 592; United States v. James, 708 F.2d 40, 44 (2d Cir.1983). The denial of an accused's right to counsel of his choice "may so offend our concept of the basic requirements of a fair hearing as to amount to a denial of due process of law contrary to the Fourteenth Amendment...." Glasser, 315 U.S. at 70, 62 S.Ct. at 464.
Likewise, our court has long recognized the accused's right to retain counsel of his choice. 4 Linton v. Perini, 656 F.2d 207, 208-09 (6th Cir.1981), cert. denied, 454 U.S. 1162, 102 S.Ct. 1036, 71 L.Ed.2d 318 (1982) ( ); United States v. Phillips, 699 F.2d 798, 801 (6th Cir.1983), overruled on other grounds, United States v. Tosh, 733 F.2d 422 (6th Cir.1984) (); United States v. Reese, 699 F.2d 803, 805 (6th Cir.1983); Ross v. Reda, 510 F.2d 1172, 1173 (6th Cir.), cert. denied, 423 U.S. 892, 96 S.Ct. 190, 46 L.Ed.2d 124 (1975) ( ). "The right to choose one's own counsel is an essential component of the Sixth Amendment because, were a defendant not provided the opportunity to select his own counsel at his own expense, substantial risk would arise that the basic trust between counsel and client, which is a cornerstone of the adversary system, would be undercut." Linton, 656 F.2d at 209.
While recognizing that the accused's right to retain counsel of his choice is necessary to maintaining a vigorous adversary system and the objective fairness of the proceeding in which the accused is prosecuted, United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66 L.Ed.2d 564 (1981), recognition of the right also reflects constitutional protection of the accused's free choice independent of these concerns. See Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 1056, 79 L.Ed.2d 288 (1984). 5 Many of the concerns supporting an accused's right to choose to represent himself also support an accused's right to counsel of choice. 6 Conceding that an accused has the right to assistance of counsel at trial as well as the fundamental and personal nature of that right, 7 it is clear that when an accused is financially able to retain an attorney, the choice of counsel to assist him rests ultimately in his hands and not in the hands of the State.
While an accused's right to choose counsel to assist him at trial is an essential component of the sixth amendment right to assistance of counsel, it is beyond peradventure that such right is not absolute. 8 Richardson v. Lucas, 741 F.2d 753, 756 (5th Cir.1984); Urquhart, 726 F.2d at 1319; Birt, 725 F.2d at 593; James, 708 F.2d at 44; United States v. Silva, 611 F.2d 78, 79 (5th Cir.1980); Mardian, 546 F.2d at 979 n. 9; Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.1976); United States v. Ramey, 559 F.Supp. 60, 62 (E.D.Tenn.1981). When an accused seeks substitution of counsel in mid-trial, he must show good cause such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict with his attorney in order to warrant substitution. United States v. Brown, 744 F.2d 905, 908 n. 2 (2d Cir.1984); United States v. Morris, 714 F.2d 669, 673 (7th Cir.1983); United States v. Welty, 674 F.2d 185, 188 (3d Cir.1982); McKee v. Harris, 649 F.2d 927, 931 (2d Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982); United States v. Hart, 557 F.2d 162, 163 (8th Cir.), cert. denied, 434 U.S. 906, 98 S.Ct. 305, 54 L.Ed.2d 193 (1977) ( ). See generally United States v. Calabro, 467 F.2d 973, 986 (2d Cir.1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1358, 35 L.Ed.2d 587 (1973) ().
Consideration of such motions requires a balancing of the accused's right to counsel of his choice and the public's interest in the prompt and efficient administration of justice. 9 Linton, 656 F.2d at 209; Urquhart, 726 F.2d at 1319; Reese, 699 F.2d at 805 (disqualification order); Phillips, 699 F.2d at 801-02; Burton, 584 F.2d at 489; Gandy, 569 F.2d at 1323; Giacalone v. Lucas, 445 F.2d 1238, 1240 (6th Cir.1971), cert. denied, 405 U.S. 922, 92 S.Ct. 960, 30 L.Ed.2d 793 (1972). However, "a trial court, acting in the name of calendar control, cannot arbitrarily and unreasonably interfere with a client's right to be represented by the attorney he has selected." Linton, 656 F.2d at 209.
Whether a continuance is appropriate in a particular case depends on the facts and circumstances of that case, Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964); Morris, 461 U.S. at 11-12, 103 S.Ct. at 1615-16, with the trial judge considering the length of delay, previous continuances, inconvenience to litigants, witnesses, counsel and the court, whether the delay is purposeful or is caused by the accused, the availability of other competent counsel, the complexity of the case, and whether denying the continuance will lead to...
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