7th Circuit: Indiana judge violated man’s Sixth Amendment right to counsel

An appellate court has ruled that a senior judge in the Northern District of Indiana violated a man’s Sixth Amendment rights by not allowing him to proceed to trial with the lawyer of his choosing.

That decision came from a three-judge panel on the 7th Circuit Court of Appeals, which included former U.S. Supreme Court Justice Sandra Day O’Connor, who was sitting by designation at the Circuit level.

The decision came Friday in the case of U.S. v. Sidney O. Sellers , No. 09-2516, a drug trafficking case from U.S. Judge Rudy Lozano who became a senior judge in the Northern District of Indiana after his retirement in 2007.

As part of a sting operation in early 2008, police and Drug Enforcement Administration officers staked out Sidney Sellers’ car and later pulled him over in Lake County for traffic violations. They found a fully loaded handgun registered in Illinois as well as several bags of crack cocaine. Police charged him with possession with intent to sell crack cocaine and possession of a firearm used in drug trafficking, and he received a 180-month sentence.

Sellers’ attorney representation became the pivotal issue in this case. The Illinois attorney he hired to represent him appointed a secondary counsel who ended up being the person representing Sellers through trial in May 2008. The lead counsel, David Weiner, was expected to begin shortly, but scheduling conflicts detailed in the record prevented him from stepping in, so the secondary attorney, Michael Oppenheimer from Illinois, remained on the case. He missed various pre-trial motion deadlines and ultimately filed a motion for a continuance three days before the trial was to begin because that date conflicted with other cases the other attorney was handling.

Senior Judge Lozano denied the motion and a request to suppress the evidence, explaining that the trial had been set for nearly two months and that Weiner, who was supposed to be lead counsel, hadn’t even filed an appearance at that time. The judge postponed the trial for a week, but that didn’t help Weiner who was still going to be handling another murder trial.

 Oppenheimer renewed his requests for a continuance on grounds he wasn’t prepared as lead counsel, and Sellers indicated he wanted to dismiss Oppenheimer as counsel because he’d wanted Weiner all along, but Senior Judge Lozano declined to postpone the trial. Oppenheimer and a new attorney represented Sellers at trial, again reiterating the need to postpone. Ultimately, Sellers was convicted and sentenced.

On appeal, Judge Michael Kanne sat with authoring Judge Ilana Diamond Rovner and former Justice O’Connor in deciding that the District judge’s refusal to grant Sellers a continuance deprived him of his Sixth Amendment right to choice of counsel and he deserved a new trial.

Analyzing the District judge’s reasons for denying the continuance, the appellate panel noted that the pre-trial motions had been late and within a few days before trial, that Sellers’ preferred counsel had not yet filed an appearance, and that the court itself had a practice of requiring any new counsel to “take the case as they find it.”

In a footnote, the panel pointed out that the court’s reliance on missed deadlines as a reason against new counsel or a continuance would, in effect, create a built-in appeal issue for ineffective assistance of counsel. “Under this reasoning, a defendant whose lawyer fails to comply with the court’s deadlines will be saddled with his ineffective counsel precisely because the lawyer is ineffective.”

The panel also pointed to Judge Lozano’s statements that he’d already accommodated the defendant by moving the trial back one week, that the government had timely turned over discovery, that the case wasn’t complex, that the judge had cancelled his attendance at the 7th Circuit judicial conference in Chicago, that the delay would affect other cases in need of trial dates, and that Judge Lozano was using this case to respond to the propensity of other Illinois counsel to request last-minute continuances.

All of these factors show that Judge Lozano’s decision-making on the continuance request was arbitrary and unreasonable,” the panel found.

“The record provides no evidence that the court balanced any of these circumstances against the needs of fairness and the demands of the calendar,” Judge Rovner wrote, citing the landmark Sixth Amendment precedent of U.S. v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). “It seems instead that the court stood on unyielding principle – the principle that new counsel must ‘take the case as he finds it;’ the principle that continuances will not be granted for those who request them at the eleventh-hour and miss other deadlines; and the principle that delay of one case will unfairly backlog other cases.”

The 7th Circuit vacated the judgment and sentence and remanded for a new trial and pre-trial proceedings.