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U.S. v. Sidney O. Sellers, 7th Cir No. 09-2516, 5/19/11

7th circuit court of appeals decision

Counsel, of Own Choosing

By arbitrarily refusing to grant Sellers a continuance so he could retain counsel of his own choosing, the district court violated his 6th amendment right to counsel, a structural error requiring reversal without considering possible prejudice.

The facts are a bit extreme – Sellers thought he was retaining one attorney and instead he was saddled with an associate, besides which federal decisions aren’t necessarily binding on state courts. The decision nonetheless may be of some interest because it usefully recites general principles that are themselves beyond any dispute. Moreover, it discusses and relies heavily on Carlson v. Jess, 526 F.3d 1018 (7th Cir.2008), which itself granted habeas relief against a Wisconsin conviction.

The right to counsel and the right to engage counsel of one’s choosing, however, are not absolute. A court retains wide latitude to balance the right to choice of counsel against the needs of fairness to the litigants and against the demands of its calendar. Gonzalez‐Lopez, 548 U.S. at 152; United States v. Smith, 618 F.3d 657, 666 (7th Cir. 2010); United States v. Carrera, 259 F.3d 818, 824‐25 (7th Cir. 2001). This means, of course, that trial courts have broad discretion to grant or deny a request for a continuance to substitute new counsel. Carlson, 526 F.3d at 1025. “Only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay” violates the Sixth Amendment right. Carrera, 259 F. 3d at 825. In determining whether the decision was arbitrary, we consider both the circumstances of the ruling and the reasons given by the judge. United States v. Santos, 201 F. 3d 953, 958 (7th Cir. 2000).

To determine whether the decision was arbitrary, we consider the reasons for denial articulated by the district court judge. See Santos, 201 F.3d at 958. We begin with the court’s repeated statement — reiterated four times — that the continuance would be denied, in part, because “it is typically this Court’s rule that new counsel take the case as they find it.” R. 30 at 2. See also R. 74, Tr. 5/19/08 at 5; R. 36,Tr. 5/16/08 at 4, 26. This is not, however, the rule in this Circuit. Quite the opposite. The Sixth Amendment demands that a district court may not arbitrarily and unreasonably deny a continuance to provide for choice of counsel. Carlson, 526 F.3d at 1024. Adhering to a rigid rule that “a lawyer must take the case as he finds it” is exactly the type of arbitrary rule that the Sixth Amendment prohibits.See Id. at 1026. Thus a myopic insistence on proceeding with a scheduled trial date in the face of a valid request for a continuance is arbitrary and unreasonable. United States v. Miller, 327 F.3d 598, 601 (7th Cir. 2003).

We reiterate that a court certainly may consider how last minute continuances and missed deadlines tread upon the rights of parties and the demands of a court’s calendar. The key, however, is that these legitimate considerations must be balanced against the reasons in support of the motion for a continuance to accommodate new counsel. Carlson, 526 F.3d at 1026‐27. Here, the court failed in its dutyto look also at the other side of the scale and to weigh Sellers’s rationale for terminating Oppenheimer. …

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