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IndiaFoodie

Need clarification about interlocutory appeal possibilities about conflict

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(Illinois) A friend of mine's PD asked to withdraw from his case & the judge denied it. Both friend and PD believe the PD is conflicted and should no longer be on his case. But the PD says he is stuck if the judge won't allow him off it. I been calling attorneys to see if any suggestions. A few calls in, an attorney suggested that the PD file an interlocutory appeal saying that this is a "structural" issue and to look at the cases of "Gonzales" and "Lopez". The attorney was pretty confident in his suggestion.

 

So, I call around to what others thought of this and a couple of others said it might work, but then others said, "What?". They said my friend cannot do an interlocutory appeal on this basis. They quote me a rule about disqualification of counsel and say that the State would have to initiate a request, not my friend. They say it would have to be denied and then maybe the State could appeal it. 

 

Well the State is not going to do that, so it's a dud in the water. But I can't find this Gonzales or Lopez cases and I am wondering if the attorney was looking at something else? And, then, I am also wondering if there is a possibility of any federal action the PD could take now if there is no state action? Any suggestions here would be appreciated!

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Uncertain what you were told, but this may look promising:

 

The United States Supreme Court considered the issue and held that "the erroneous deprivation of the right to counsel of choice, 'with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as "structural error." ' " United States v. Gonzalez-Lopez (2006), 548 U.S. 140, 150, 126 S. Ct. 2557, 165 L.Ed.2d 409, quoting Sullivan v. Louisiana (1993), 508 U.S. 275, 282, 113 S. Ct. 2078, 124 L.Ed.2d 182.

 

This is because "[d]ifferent attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the 'framework within which the trial proceeds, ' [Arizona v.] Fulminante [(1991), 499 U.S. 279] at 310 [111 S.Ct. 1246, 113 L.Ed.2d 302]—or indeed on whether it proceeds at all." Id. at 150. Thus, the erroneous deprivation of a defendant's choice of counsel entitles him to an automatic reversal of his conviction.

 

But, this pertains more to a hired attorney I believe. Keep asking for that clarification!

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If you hire private counsel, you are entitled to have that attorney represent you.  That's what Gonzalez-Lopez case was about.  He hired a private out-of-state attorney who the court then basically interfered with.  When you are appointed a public defender, it's the OFFICE that is appointed, not a specific attorney and you don't have the right to demand a specific attorney represent you at taxpayer's expense.

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(Illinois) A friend of mine's PD asked to withdraw from his case & the judge denied it. Both friend and PD believe the PD is conflicted and should no longer be on his case. But the PD says he is stuck if the judge won't allow him off it. I been calling attorneys to see if any suggestions.

 

LegalwriterOne said: If you hire private counsel, you are entitled to have that attorney represent you.  That's what Gonzalez-Lopez case was about.  He hired a private out-of-state attorney who the court then basically interfered with.  When you are appointed a public defender, it's the OFFICE that is appointed, not a specific attorney and you don't have the right to demand a specific attorney represent you at taxpayer's expense.

 

I agree with LegalwriterOne. Still IndiaFoodie quetion remains. What can be done?

 

Is an interlocutory appeal an option?

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If you hire private counsel, you are entitled to have that attorney represent you.  That's what Gonzalez-Lopez case was about.  He hired a private out-of-state attorney who the court then basically interfered with.  When you are appointed a public defender, it's the OFFICE that is appointed, not a specific attorney and you don't have the right to demand a specific attorney represent you at taxpayer's expense.

 

Posted this before, but still applies to this post:

 

Substitute Counsel

 

Defendant also argues that the trial court erred in failing to provide him with a different attorney than the APD originally assigned to the case. He claims that the trial court should have provided him with a private attorney, as opposed to a different attorney from the public defender's office.

 

While criminal defendants have a right to counsel of their choosing, "the right to counsel of choice does not extend to defendants who require counsel to be appointed for them." U.S. v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006); see also People v. Baez, 241 Ill. 2d 44, 106 n.5 (2011). "A criminal defendant has no right to choose his appointed counsel or insist on representation by a particular public defender." People v. Wanke, 303 Ill. App. 3d 772, 782 (1999).

 

Instead, a defendant may be entitled to the replacement of appointed counsel only if he shows "good cause" for substituting his appointed attorney. Id.; People v. Royark, 215 Ill. App. 3d 255, 266 (1991). A defendant's dissatisfaction with counsel, arguments or disagreements about tactical matters, or assertions of a deteriorated relationship are insufficient cause to substitute counsel other than the public defender. Wanke, 303 Ill. App. 3d at 782; see also Royark, 215 Ill. App. 3d at 266 ("[T]he fact that an appointed attorney and his client bicker between themselves does not require a court to grant a motion for new counsel."). A trial court's decision on a motion for substitution of counsel is reviewed for an abuse of discretion. People v. Brisco, 2012 IL App (1st) 101612, ¶ 41; Wanke, 303 Ill. App. 3d at 782.

 

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It seems to me that denial of the right to counsel raises a constitutional issue and that this is what is happening here. IndiaFoodie's friend here is not getting conflict-free representation from the office. The issue may be so clear or severe that it will be reviewed later if the friend is convicted. But, why does he have to spend years waiting for review of something structurally amiss that will determine the whole defense? It seems stupid to have to wait when something this large looms over everything. Because it is constitutional, as IndiaFoodie asks, is there not some federal action or appeal he can take to straighten things out in the meantime?

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Of course, we have no idea what the nature of the alleged conflict may be. A judge has considered the alleged conflict and decided it is not serious enough to require substitution of counsel. The defendant disagrees. That does not make the issue a matter of constitutional import.

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