Opinion
CR. 12-50044
11-07-2013
UNITED STATES OF AMERICA, Plaintiff, v. NORMAN YELLOW HAWK, Defendant.
AMENDED
ORDER DENYING EX PARTE
MOTION FOR TERMINATION
OF COUNSEL
[DOCKET 235]
This matter is before the court pursuant to a motion filed by attorney John R. Murphy, court-appointed counsel for defendant Norman Yellow Hawk, indicating that Mr. Yellow Hawk has requested new court-appointed counsel. See Docket 235. This is Mr. Yellow Hawk's second court-appointed counsel, and his second motion to replace his counsel.
On May 7, 2013, Mr. Yellow Hawk filed a motion seeking to replace his first court-appointed counsel, attorney George Grassby. See Docket No. 122. The motion was made on the eve of trial, which was at that time scheduled for June 4, 2013. Mr. Grassby had retained two experts to testify at Mr. Yellow Hawk's trial. Numerous discovery motions had been filed and ruled upon. Both the government and Mr. Grassby had filed numerous pre-trial motions concerning the admissibility of evidence at trial. Subpoenas had been issued. In short, many resources had been devoted to prepare Mr. Yellow Hawk's case for trial. Mr. Yellow Hawk notified Mr. Grassby of his desire for new counsel by simply stonewalling Mr. Grassby, refusing to communicate with him in any fashion.
This court held an ex parte hearing on Mr. Yellow Hawk's motion. Mr. Yellow Hawk expressed dissatisfaction with Mr. Grassby based on comments other criminal defendants had made to Mr. Yellow Hawk about Mr. Grassby's abilities. Mr. Yellow Hawk also stated that his brother was in the process of privately retaining counsel for Mr. Yellow Hawk.
No privately-retained lawyer ever made a notice of appearance on behalf of Mr. Yellow Hawk following this hearing.
Although aware that Mr. Yellow Hawk had not established legal grounds for the discharge of his lawyer, the court was mindful of Mr. Yellow Hawk's repeated attestations of his innocence. In an attempt to give Mr. Yellow Hawk the benefit of another, objective attorney's opinion and assessment of his case, the court granted Mr. Yellow Hawk's motion and appointed his current counsel, Mr. John Murphy. The court requested Mr. Murphy to undertake representation of Mr. Yellow Hawk because Mr. Murphy has had extensive experience representing criminal defendants charged with crimes similar to Mr. Yellow Hawk. Mr. Murphy enjoys a superlative reputation in these types of cases.
Mr. Murphy began representing Mr. Yellow Hawk on May 9, 2013. See Docket No. 129. The June trial date was immediately continued. Trial has since been set for dates of July 29, 2013, and now for November 12, 2013. Mr. Murphy has retained experts to present testimony at trial, a motion to dismiss Count III of the indictment was filed by Mr. Murphy, and various other preparations for trial have been made. Mr. Murphy successfully secured Mr. Yellow Hawk's release on bond after he had previously had his bond revoked for violating the conditions of bond. Now, once again on the eve of his trial date, Mr. Yellow Hawk moves to replace Mr. Murphy as his counsel. See Docket No. 235.
Another ex parte hearing was held on Mr. Yellow Hawk's second motion. At the hearing, Mr. Yellow Hawk stated that his grounds for wanting another new lawyer were "intimidation" by his lawyer because Mr. Murphy had discussed a potential plea agreement with Mr. Yellow Hawk. Mr. Yellow Hawk apparently took offense at this discussion as he is, and remains adamant about, his innocence. The court explained--and Mr. Yellow Hawk confirmed that he understood--that the decision as to whether to go to trial or to enter into a plea agreement was his and his alone.
Mr. Yellow Hawk indicated that he wanted a lawyer appointed to represent him that was not on the court's CJA panel. Mr. Yellow Hawk again also represented that he would be hiring a new lawyer with his own funds. Mr. Murphy indicated to the court that Mr. Yellow Hawk had begun stonewalling him, and would not communicate with Mr. Murphy about strategic decisions regarding the trial, including whether Mr. Yellow Hawk should testify on his own behalf at the trial. Although faced with a difficult situation, Mr. Murphy represented to the court that he could continue to represent Mr. Yellow Hawk and that he would do so if the court denied Mr. Yellow Hawk's motion.
Section 3006A(c) of Title 18 of the United States Code states that "the United States magistrate judge or the court may, in the interests of justice, substitute one appointed counsel for another at any stage of the proceedings." In United States v. Anderson, 570 F.3d 1025 (8th Cir. 2009), the court stated that the decision to grant or deny a request for new counsel is reviewed on an abuse of discretion standard. Id. at 1031. A defendant may demonstrate a right to new counsel by showing a justifiable dissatisfaction with his current lawyer which arises from an irreconcilable conflict, a complete breakdown in communication, or any other factor significantly interfering with an attorney's ability to provide zealous representation. Id. (quoting United States v. Boone, 437 F.3d 829, 839 (8th Cir. 2006)). "The proper focus in evaluating claims of dissatisfaction with counsel is on the quality of advocacy." United States v. Taylor, 652 F.3d 905, (8th Cir. 2011) (quoting United States v. Exson, 328 F.3d 456, 460 (8th Cir.) cert. denied, 540 U.S. 1011 (2003)).
A defendant cannot show "justifiable dissatisfaction" by showing that he is frustrated with his lawyer's performance or that he disagreed with his lawyer's tactical decisions. Anderson, 570 F.3d at 1031 (citing Boone, 437 F.3d at 839). The burden is on the defendant to show "justifiable dissatisfaction." Id.
There is a distinction between a breakdown in communication and a defendant's unwillingness to communicate with counsel. The former may justify replacing counsel, the latter does not. Taylor, 652 F.3d at 909; Anderson, 570 F.3d at 1032 (citing United States v. Barrow, 287 F.3d 733, 738 (8th Cir. 2002); and United States v. Redd, 318 F.3d 778, 783 (8th Cir. 2003)). See also United States v. Nguyen, 608 F.3d 368, 375-76 (8th Cir. 2010); United States v. Mentzos, 462 F.3d 830, 839 (8th Cir. 2006); United States v. Webster, 84 F.3d 1056, 1062 n.2 (8th Cir. 1996); United States v. Swinney, 970 F.2d 494, 499 (8th Cir. 1992).
Here, the record is bereft of any legal grounds for "justifiable dissatisfaction." Although apparently Mr. Yellow Hawk took umbrage at the very mention of the possibility of a plea agreement, it would have been a defalcation of counsel's duties not to have communicated to Mr. Yellow Hawk any plea offer extended by the government. Mr. Yellow Hawk articulated no facts from which this court could conclude that Mr. Murphy was unprepared, unable or unwilling to continue to represent Mr. Yellow Hawk, or that he took any actions or failed to take any actions on Mr. Yellow Hawk's behalf. See Taylor, 652 F.3d at 909. Furthermore, the court concludes after having seen a pattern of behavior on Mr. Yellow Hawk's part, that he would not be any more satisfied or communicate better with a third lawyer, were the court to replace Mr. Murphy. Accordingly, it is hereby
ORDERED that Mr. Yellow Hawk's second motion for the replacement of his court-appointed counsel [Docket No. 235] is denied.
BY THE COURT:
_________________
VERONICA L. DUFFY
UNITED STATES MAGISTRATE JUDGE