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Right to Change of Counsel – Inability to Communicate Due to Client’s Severe Hearing Impairment

State v. Dwight Glen Jones, 2007 WI App 248
For Jones: Ellen Henak, SPD, Milwaukee Appellate


 ¶13   Although an indigent defendant does not have the right to pick his or her trial lawyer, Mulkovich v. State, 73 Wis. 2d 464, 474, 243 N.W.2d 198, 203–204 (1976) (“This court has frequently said that, except in cases of indigency, a defendant may have whatever counsel he chooses to retain and may refuse to accept the services of counsel he does not want.”), the indigent defendant is entitled to a lawyer with whom he or she can communicate, State v. Lomax, 146 Wis. 2d 356, 359, 362, 432 N.W.2d 89, 90, 92 (1988); anything less would make a mockery of the hallowed right to effective legal representation. The ability-to-communicate assessment is left to the reasoned discretion of the trial court. … Given what the trial court here knew, namely that Jones apparently had profound hearing problems, its inquiry into why Jones was frustrated with his lawyer’s interaction with him was inadequate to make an effective record as to why it denied his lawyer’s motion to withdraw, especially in light of the lawyer’s admission that, apparently, other than first meeting his client at the preliminary examination(!), he only met with Jones once—a meeting that, as noted, Jones told the trial court was not “a good meeting.”¶14   As we have seen, the trial court gave two reasons at the end of the hearing on the motion of Jones’s lawyer to deny the lawyer’s request to be allowed to withdraw: (1) Jones was not entitled to pick his lawyer; and (2) Jones was not being denied his Sixth Amendment right to counsel. In light, however, of the trial court’s awareness of Jones’s apparent substantial hearing problems and Jones’s repeated and non-dilatory pleas to get the lawyer off the case, these reasons are conclusory at best and do not meet the Lomax-recognized duty to make sufficient inquiry. See ibid. The trial court’s explanations for denying Jones’s postconviction motion were little better.

¶19   Jones submitted substantial scientific and other evidence with his postconviction motion attesting to the difficulties persons like him have in communicating with the non-hearing-impaired, and, also that those who are not hearing-impaired may overestimate their ability to communicate with those who are. He is entitled to try to prove this at what Lomax recommends is the preferred approach—a retrospective evidentiary hearing. See id., 146 Wis. 2d at 365, 432 N.W.2d at 93. We reverse the trial court’s order denying without an evidentiary hearing Jones’s motion for postconviction relief, and remand this matter to the trial court with instructions to hold that hearing, giving Jones sufficient leeway to prove, by expert testimony if necessary, his contention that he had an irresolvable breakdown in communications with his trial lawyer. If, at the conclusion of that hearing, the trial court determines that was there was a substantial breakdown in communications between Jones and his lawyer, he is to be given a new trial, which is the relief Jones seeks on this appeal.

The court, incidentally, exhorts the SPD to scrutinize attorney performance closely, albeit with an eye toward the limitations imposed by scarce reources, ¶5 n. 1: “We recognize that the limitation of resources makes monitoring of appointed counsel by the State Public Defender impossible. However, as appointing authority, it is also reasonable to expect a meaningful response to and inquiry regarding complaints about the appointed lawyer’s conduct that, if true, could seriously prejudice the client’s right to meaningful representation.” The court also uses a punctuation mark to express apparent shock at counsel’s late entry into the case, ¶13:“(first meeting his client at the preliminary examination(!).”


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