Tuesday, June 23, 2015

The Right to Counsel of Choice is Strong Enough to Outweigh a Jury that’s Ready to Go.

State v. Reed (HSC June 17, 2015)
Background. Ikaika Reed was charged with assault in the first degree. The allegation stems from an incident at the Waianae Boat Harbor, where during the early morning hours, Reed punched a guy in the face while holding the knife and caused a laceration across the guy’s face from “the tip of his ear to the tip of his nose.” If convicted, he was looking at a ten-year prison term with a mandatory minimum of three years and four months.

Shortly after his arraignment, the Office of the Public Defender was appointed to represent him. Twenty-seven days after the appointment, the public defender moved to continue trial because he had not received a copy of the grand jury proceedings. Trial was continued. About a week before trial, Reed moved to continue again. The motion was continued briefly. Five days before the trial date, Reed told the court that he was looking for retained counsel and requested more time. The prosecution did not object, but the circuit court denied the motion.

On the day of trial, Reed appeared with privately retained counsel and renewed his request for a continuance. The public defender moved to withdraw. Reed’s retained counsel explained that if the continuance was granted, he would be able to represent Reed at trial. The circuit court nonetheless found Reed’s request “dilatory” and denied the continuance and the public defender’s motion to withdraw.

After a two-day trial, the jury found Reed guilty. The circuit court sentenced Reed to ten years prison with the mandatory minimum of three years and four months. Reed appealed and the ICA affirmed.

Your Constitutional Right to the Lawyer of your Choice. The Sixth Amendment to the U.S. Constitution and Article 1, Section 14 of the Hawaii Constitution includes “the right to privately retained counsel of choice.” State v. Maddagan, 95 Hawaii 177, 179-80, 19 P.3d 1289, 1291-92 (2001). The right to retained counsel is so important that deprivation of it results in “structural error.” State v. Cramer, 129 Hawaii 296, 303, 299 P.3d 756, 763 (2013). A structural error affects the structure in which the trial took place, not the trial process itself. State v. Ortiz, 91 Hawaii 181, 193, 981 P.2d 1127, 1139 (1999). And so structural errors are not subject to harmless review. The HSC noted that inherent in the right to retained counsel is the fact that that the accused “should have confidence and trust in his or her counsel, and accordingly, in the judicial system as a whole.”

The Maddagan-Cramer-(and now)-Reed Balancing Test. Like all rights, the right to retained counsel is not absolute. When the court considers a motion to withdraw and substitute counsel, the trial court must give “[d]ue regard” to the defendant’s right to counsel of choice and “countervailing considerations.” Maddagan, 95 Hawaii at 180, 19 P.3d at 1292. The HSC pointed out that in Cramer there were cases from other jurisdictions that had identified a host of factors to determine. In Cramer, however, the trial court only considered the timeliness of the request and failed to address other factors. Id. at 302, 299 P.3d at 762. The HSC held that this case is extremely similar. Every request for a continuance in the case was justified and there was insufficient grounds to deny the motion to withdraw. The prompt administration of justice was simply not enough to justify the circuit court’s denial. And because this was a structural error, no harmlessness needed to be proved. The judgment was vacated and remanded for a new trial.

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