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Defendant forfeited right to counsel of choice; failed to show deficient performance

State v. Annette Morales-Rodriguez, 2014AP1438-CR, District 1, 2/3/15 (not recommended for publication); click here for briefs

A defendant must assert that she was denied her constitutional right to the counsel of her choice before trial, not after. Also, an attorney clears the “deficient performance” prong of an ineffective assistance of counsel claim where he withdraws as counsel based on a possible conflict even if the client wants him as her lawyer and will waive the conflict.

This case may ring a bell. The defendant was convicted of 2 counts of 1st-degree intentional homicide for killing a pregnant woman and cutting her baby out of her womb. Three lawyers agreed to represent her pro bono at the trial court level, but the State asserted they had conflicts of interest and thus moved to require her to waive the conflicts. After consulting with their client, the lawyers moved to withdraw on the grounds that: (1) forcing her to waive the conflicts would also force her to waive her right to assert on appeal that she recevied conflicted representation, which they did not want; (2) she had a dual-personality disorder that would interfere with her ability to sign a valid waiver (no expert opinion supported this point); and (3) a conviction might suggest that the lawyers had tanked the case in order to curry favor with the DA for various reasons. Meanwhile, the defendant told the court that she wanted the three lawyers to continue as her counsel. What a mess.

Long story short, on appeal the defendant argued that she was denied her constitutional right to the counsel of her choice, and this was structural error (meaning not subject to harmless error analysis). The court of appeals, avoiding the merits, declared the claim forfeited because the defendant failed to make it before the start of her trial:

The right to appeal the denial of the right to counsel of one’s choice may be forfeited if a timely objection is not made.   See State v. Pinno, 2014 WI 74, ¶¶7-8, 56-64, 356 Wis. 2d 106, 850 N.W.2d 207 (ruling that defendant must timely object to structural constitutional right to public trial). To preserve this objection, Morales-Rodriguez was required to make this argument before the start of her trial. Instead, she waited until after she was convicted to complain. “It would be inimical to an efficient judicial system if a defendant could sit on [her] hands and try [her] luck” with her appointed attorneys “only to argue after [her] conviction that [her] Sixth Amendment right” to counsel of her choice had been violated. See id., ¶7 (a defendant cannot take a wait and see attitude with structural constitutional claims). Slip op. ¶11.

The defendant also claimed that her pro bono trial lawyers provided ineffective assistance of counsel. They withdrew based upon a misunderstanding of the law governing conflicts of interests, their reasons made no sense, and they denied her the counsel of her choice. She requested a hearing.  She didn’t get it. As to her lawyers’ alleged “deficient performance,’ the court of appeals held:

Conflicts and potential conflicts create an exception to a defendant’s right to counsel of choice. See Peterson, 314 Wis. 2d 192, ¶13. Her attorneys were acting in her best interests when electing to withdraw so as to allow her to have a “conflict-free” representation without the potential conflict issues lurking in the background. This was certainly not deficient performance. Slip op. ¶15.

The court of appeals also found no “prejudice” because the defendant was ably represented by the two public defenders appointed as her successor counsel, and she did not complain about thei failure to object to the withdrawal of her pro bono lawyers. Slip op. ¶18.

The leading case on a defendant’s right to the counsel of her choice is United States v. Gonzalez-Lopez, 547 U.S. 140 (2006). the court of appeals held that it didn’t apply to this case because there the trial court refused to allow the lawyer to represent the client. The client and the lawyer wanted the attorney-client relationship. Here the pro bono attorneys declined to continue the representation based upon a possible conflict of interest. The court of appeals could find no case holding that a “defendant has a constitutional right to keep an attorney under these circumstances.” Slip op. ¶17.

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