How many times can a defendant fire his defense attorney?
November 7, 2013 5:05 AM   Subscribe

How many times can a defendant dismiss his defense attorney, probably in an attempt to delay prosecution? A little over a year ago, my next door neighbor did a Very Bad Thing. Please believe me when I say there is no doubt that he did the thing he is accused of. When he is finally convicted, he will probably go to prison for the rest of his life.

I've been following some of the court activity, because my state publishes some of that information online. He originally had a "final" trial set months and months ago, but he has fired his defense attorney, then rehired him a couple of times. This last time he actually dismissed the original guy and got a different defense attorney. This keeps pushing the "final" jury trial back by several months each time. He also demanded (and got) a psych eval for competency (he was declared competent to stand trial). He's been in prison before, so I imagine he's just putting off the inevitable. For various reasons, I will feel much safer when he's actually in prison and not just in county lock-up (or wherever he is right now. I have no idea). Our local police told me that he will go to prison for the rest of his life for what he did.

He is not a man of financial means. While I despise that there are basically a different set of laws for the wealthy, I'm very glad he doesn't have access to that kind of power. How many more times can he do this? How long can he drag the trial out? This is in Wisconsin, if it matters.

(Side note: I'm off too work, so I hope I've given enough detail for this question to be generally answered. I'm trying to err on the side of not TMI.)
posted by tllaya to Law & Government (6 answers total)
Best answer: This is a thorny question, because defendants in the US have a constitutional right to retained counsel of their choice. When a court impairs that right by denying a continuance for newly retained counsel to prepare for trial, the conviction might be overturned by an appeals court.

That doesn't mean a criminal defendant has the right to delay trial indefinitely--the court can consider all of the circumstances of a request for a continuance when it makes a decision. Factors that courts often consider in determining whether to allow a defendant to replace retained counsel include: whether the defendant articulates an acceptable reason for desiring new counsel; whether he has been in continuous custody; whether the defendant has informed the trial court of his efforts to retain new counsel; whether the defendant has cooperated with current counsel; and the length of time defendant has been represented by current counsel.

The judge, unfortunately, is going to be incentivized to grant a continuance in the absence of some reasonably compelling reason to deny the request. If the court of appeals believes the judge unfairly denied the request, a conviction can be reversed and then the process starts all over. If the judge grants the request, however, the only real consequence (particularly if the defendant is already in custody) is a few months of delay.

(The rules for indigent defendants who accept appointed counsel are a little different. An indigent defendant is basically limited to the right to constitutionally effective counsel--if they cannot point to a constitutional defect in their court-appointed lawyer's representation, they usually cannot get a new lawyer appointed for them.)
posted by monju_bosatsu at 5:44 AM on November 7, 2013 [6 favorites]

Best answer: monju_bosatsu has it. Speaking broadly, the tie goes to the defendant in criminal cases, because the judge is concerned about protecting the defendant's constitutional right to a fair trial.

Note that if you are a victim of the defendant's crime, you have various rights under Wisconsin's Victim's Bill of Rights, including a right to have your interests considered if the judge is weighing whether to grant a continuance. See 950.04(1v)(ar). A number of other rights are included in the Bill.
posted by craven_morhead at 7:14 AM on November 7, 2013 [1 favorite]

Best answer: monju_bosatsu basically has it: there is no hard-and-fast rule about the number of times this can be done, or the number of continuances that can be granted at the defendant's request. As long as the judge thinks that the defendant's rights would be infringed if the continuance were not granted, he's going to grant it, particularly given the apparent gravity of the charges. If we were talking about a simple assault or retail theft, the judge would probably run out of patience pretty quickly, as those cases aren't complicated and the potential penalties are pretty minimal. But if we're talking about a case where the defendant is facing serious jail time, he's going to cut a lot more slack.

Still, it really, really matters whether the defendant is paying for his own attorney or relying upon court-appointed counsel. Defendants absolutely have the right to an attorney, and to the extent that there is a legitimate breakdown in the relationship between a defendant and a court-appointed attorney, there is probably a right to have a different attorney appointed.* But defendants only really have the right to an attorney of their own choosing if they pay for that attorney themselves.**

In neither case, however, are defendants going to be permitted to simply drag things out indefinitely for that reason alone. There will eventually come a point--and it can take years--where the judge determines that the only possible explanation is that the defendant is just screwing with the court. Judges don't like that. Not one bit. If it comes to that, which it rarely does, the judge will eventually insist that the trial move forward. At that point, the defendant can stick with his current attorney, try to hire another one, deal with court-appointed counsel, or go pro se, but the trial will likely occur as scheduled whatever he chooses. A defendant that interferes with the court's attempts to protect his rights and then turns around and insists upon those very same rights is likely to be held to have waived them.

All of which, of course, comes back to the fact that the vast majority of public defender's offices are overworked and most are underpaid. That doesn't mean they're bad lawyers. Contrary to popular belief, most public defenders are excellent attorneys. Working at a public defender's office isn't something you do if you can't find any other work. Competition is fierce. Most offices receive hundreds of applications for every single position. The problem is not the quality and dedication of the attorneys, it's that they are usually not given the resources they need to provide the level of service that private defense attorneys can. They'll certainly do their best, and there is no question whatsoever that a five-year veteran of a public defender's office will have far more trial experience even than many partners at private firms. But they're so bogged down with cases that they just can't be as responsive as private attorneys can. In many cases--particularly the less serious ones--the outcome of any given case would be the same regardless of who is hired, but even on those cases, private attorneys can and usually do offer a level of customer service that the public defender can't possibly match. Which goes back to the fact that a breakdown of the relationship between attorney and client is a legitimate reason for appointing new counsel. Many public defenders simply don't have much of a relationship with their clients to begin with--they can't, they don't have time--and many of the defendants they serve are understandably frustrated about that. If you're sitting in jail facing attempted murder charges, and you haven't heard from your attorney in a month, that's not a good thing. Recent Atlantic article if you're interested.

*Which does happen from time to time. Attorneys are people too, and the attorney-client relationship is essentially a personal relationship, even if it has professional overtones to it. Sometimes two people simply can't get along, under any circumstances, to the degree that would permit them to work together. Sometimes that happens between an attorney and a client. It's rare, but it's not unheard of, and a judge that is being careful about the constitutional rights of the defendants that stand before him will take that into consideration. But unless the both the attorney and the defendant say that the relationship is broken, this is a long shot. And if the attorney is a Public Defender. . . yeah, don't get your hopes up.

**Part of what is going on here is that most criminal courts have a list of local private attorneys--an official list more often not--whom they appoint to represent defendants that for whatever reason cannot be represented by the Public Defender. If a defendant wants an attorney to be appointed who isn't on that list, the court may or may not want to do that for a variety of reasons. Attorneys, on the other hand, are obligated--in practice if not strictly legally--to accept court appointments. Judges are sensitive to that though, and try not to appoint attorneys they know or suspect would not be willing to accept the appointment, which is part of what makes having those lists so useful. In any case, the court is under no obligation to appoint any attorney in particular, list or no.
posted by valkyryn at 7:33 AM on November 7, 2013 [8 favorites]

Best answer: Keep in mind that while the accused is free to fire his court appointed attorney, there isn't a lot to be gained by him doing so. his rights to a speedy trial aren't being violated since he's the one impeding the process. In PRACTICAL terms, he's in prison and when the day comes that he is tried, if he's convicted, he'll receive a sentence the judge determines is appropriate consistent with appropriate limitations on the judge's powers. Yes, closure is served if the process concludes. The law is sluggish and plodding, and there are folks who like to think they can gum up the works with games like firing the lawyer. Maybe he thinks he'll wear down the prosecution or outlive some witnesses and get a more attractive plea bargain. Pissing off the prosecution isn't a good way to do that, though.

He's in custody. Wherever that is, it's not fun. It's not a place where beer is served, girls are chased, or fun adult things happen a lot. It's the same boring world, every day, with no prospects for a better future. Even a benign prison is a cage.

And as for the "rest of his life" thing... life sentences without possibility for parole are for limited types of crimes and circumstances. A life sentence is different than life without parole. What kind of bad thing did neighbor do? A lot of murderers, rapists, child abusers, thieves, thugs get significant, non-life, parole-possible life sentences. Did he do ONE thing, several in sequence? Was he drunk when he did it? Was whatever he did cruel and depraved? Did he cross some societal line that in times past may have meant death sentence?

The kinds of stuff that don't warrant life-without would surprise you. The brevity of sentences for second-degree murder and manslaughter would surprise you.

(Of course, if a defendant is black, the law often bends a lot to make sure that maximums are imposed, because hey.... black. Personal peeve. Sorry!)

If you are the victim, or related, I am sorry. If not, well, join the rest of us who hope that law and justice converge fairly and impartially, and wait it out. You don't want to be in your own kind of spiritual prison, do you?
posted by FauxScot at 12:34 PM on November 7, 2013

Response by poster: Thank you all very much for the very complete and clear answers.

I wanted a sense of how long this would take, and knowing that "possibly years" is the answer actually makes me feel better. It means that this isn't likely that something is going really awry with the prosecution in this particular case. It's just the way it is. I can wait years.

I have no interest in him suffering, it's not that I want him in prison instead of jail so he can be better punished. I would just like to feel safe, and a fairly solid "30 years to life" will feel safer than "don't know, could be life, could be time served, anything could happen." Knowing that these delaying tactics can be par for the course is okay. And yes, I absolutely want all of his rights to be very well respected. Both because they should be, and because I don't want anything reversed once he's convicted.

So, again, thank you all. This has helped quite a bit.
posted by tllaya at 3:34 PM on November 7, 2013

tllaya, I have had a similar experience (in Wisconsin). I was mugged in 2011 by a career criminal (more of his adult life spent in custody than out), who clearly knew the system's ins and outs and relished deploying what rights he had. Between his arrest/arraignment and his eventual conviction he had six different public defenders. It was my impression that he did not want to plead out, despite their recommendation that he do so, and one after another they quit on him. Eventually, however, he went to trial acting as his own attorney. It was a power trip, but he was convicted and is now serving his five years and change.

Of course, he's appealing both this conviction and one that was already pending for felony theft. The cases have been filed for months without any activity, though. Meanwhile he's serving his time. If he gets out on schedule, late 2018 or so, I fully expect him to get his extended supervision revoked within a year or so based on his life pattern and that would put him in statie until 2024.

My case took about 11 months until sentencing (the other one took longer than that, of course). I suspect they might let a case with a potential life sentence play out for longer than that, but in the end the court won't tolerate someone just kicking the can down the road for the sake of kicking the can down the road; they have many many other cases pending and their time is valuable.

There should be a Victim/Witness office that is part of your local prosecutor's domain. You should follow through with them and they will discuss each stage of the process with you (resources allowing). If you are having difficulty as a crime victim, there may be some counseling resources available as well; please consider taking advantage of them.
posted by dhartung at 12:06 AM on November 8, 2013

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