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Right to Counsel – Change of Counsel

State v. Derryle S. McDowell, 2004 WI 70, affirming 2003 WI App 168, 266 Wis. 2d 599, 669 N.W.2d 204
For McDowell: Christopher J. Cherella
Amici: Keith A. Findley, John A. Pray, Frank Remington Center & WACDL


¶66. The final issue we consider is whether the circuit court erred in failing to permit McDowell new counsel. In situations involving appointment of new counsel, a circuit court’s exercise of discretion is triggered by a defendant’s presentation of a substantial complaint that could be interpreted as a request for new counsel. State v. Kazee, 146 Wis. 2d 366, 371, 432 N.W.2d 93 (1988). When a substantial complaint is made, the trial judge should inquire whether there are proper reasons for substitution. Id. (citations omitted).…

¶70. Upon examining the record, we note that defense counsel did not actually move to withdraw on the first day of trial, even though he acknowledged being “fired.” Moreover, we recognize that McDowell himself made no request for new counsel, even though he spoke to the circuit court, confirming his understanding that he would benefit by cooperating with his attorney.

¶71. Still, like the court of appeals, we “do not endorse the trial court’s quick ‘hogwash’ reaction.” …

¶72. Thus, we employ the factors set forth in State v. Lomax to determine whether withdrawal of counsel and the appointment of new counsel was warranted under the circumstances of this case….

¶73. In addressing the first Lomax factor, we acknowledge that the circuit court did not conduct a colloquy to more fully develop the substance of McDowell’s complaint. However, as the State notes, this must be set against “the fact that neither [defense counsel] nor McDowell offered any evidence of incompetency or of a conflict that made counsel’s continued representation untenable.” In light of the record, we agree that the circuit court cannot reasonably be faulted for failing to make a full inquiry.

¶74. The second Lomax factor supports upholding the circuit court’s decision. We have previously noted that “defendants in criminal cases often attempt to secure last-minute substitution of counsel to delay the trial, and the practice has ‘plagued’ the criminal courts in Milwaukee county.” Kazee, 146 Wis. 2d at 373. Given the number of adjournments in this case, along with the lack of clear expression on the part of both defense counsel and McDowell, it is understandable why the circuit court rejected McDowell’s eleventh-hour attempt to fire counsel.

¶75. Finally, the third Lomax factor also favors the circuit court. The record does not support that the alleged conflict between McDowell and defense counsel was so great that it resulted in a total lack of communication, or prevented an adequate defense. Indeed, as the State observes, it seems likely that the court’s remarks to McDowell regarding the advisability of cooperating with counsel persuaded him to communicate with counsel. The fact that McDowell disagreed with his attorney over the presentation of his testimony does not, in our view, automatically create “an irreconcilable conflict which leads to an apparently unjust verdict.” State v. Wanta, 224 Wis. 2d 679, 703, 592 N.W.2d 645 (Ct. App. 1999).

Note that this is an unsettled area under United States Supreme Court caselaw, which means that 2254 habeas invokes different considerations, e.g., Plumlee v. Masto, 512 F.3d 1204 (9th Cir 2008 en banc) (“Plumlee has cited no Supreme Court case — and we are not aware of any — that stands for the proposition that the Sixth Amendment is violated when a defendant is represented by a lawyer free of actual conflicts of interest, but with whom the defendant refuses to cooperate because of dislike or distrust. Indeed, Morris v. Slappy is to the contrary.”) This en banc decision overturned a panel decision, 465 F.3d 910, which, though no longer viable as a matter of federal habeas principles, nonetheless probably has salience for local practice, stressing, among other things:,/p>

On the duty of a trial court to appoint substitute counsel in the face of irreconcilable conflict or complete breakdown in communication between counsel and client, there is near-unanimity among the circuits. See United States v. Mullen, 32 F.3d 891, 897 (4th Cir. 1994) (holding that the trial court abused its discretion in refusing to appoint substitute counsel where “there was a total breakdown in communication between [counsel and client]” that “ma[de] an adequate defense unlikely”); Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991) (explaining that a defendant is entitled to a substitution of counsel where there exists “a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant”); United States v. Padilla, 819 F.2d 952, 955 (10th Cir. 1987) (same); Wilson v. Mintzes, 761 F.2d 275, 280 (6th Cir. 1985) (same); United States v. Welty, 674 F.2d 185, 188 (3d Cir. 1982) (same); United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973) (same); United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972) (same); see also United States v. Zillges, 978 F.2d 369, 372 (7th Cir. 1992) (in evaluating motion to substitute counsel, court must consider several factors, including “whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense”); United States v. Allen, 789 F.2d 90, 92 (1st Cir. 1986) (same); cf. United States v. Graham, 91 F.3d 213, 221 (D.C. Cir. 1996) (“A defendant [has] the right to effective representation by appointed counsel, and this right may be endangered if the attorney-client relationship is bad enough.”).7 These “convergent holdings” (all but one prior to the Nevada Supreme Court’s 1995 decision on Plumlee’s direct appeal) “reflected and applied clearly established federal law as determined by the U.S. Supreme Court” as of the time of the relevant state court decision. Robinson, 360 F.3d at 1059.

On a different but related point: where there has been a violation of the defendant’s right to representation by counsel of choice, the majority of federal courts apply a rule of automatic reversal. U.S. v. Gonzales-Lopez, 8th Cir No. 03-3487, 3/8/05. But contrast, Rodriguez v. Chandler, 382 F.3d 670 (7th Cir. 2004) (correct test is adverse-effect standard used in conflict of interest analysis).

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