Colorado Criminal Law Series – Continuances – Can I Change Lawyers?
By H. Michael Steinberg – Colorado Sex Crimes Criminal Defense Lawyer – Email the Author at email@example.com
Colorado Criminal Law Series – Continuances – Can I Change Lawyers? – When a private lawyer replaces the public defender – or – when a new lawyer replaces an existing lawyer – there is no guarantee that the Judge will allow the substitution – especially if the case is set for trial and or a motions hearing.
This article examines this issue based a new case decided this year (2014) which cases provide standards Colorado trial judges must follow in making the decision of whether to allow the new lawyer to take over the case – but more importantly – whether to grant a continuance to make that happen.
Balancing The Defendant’s Sixth Amendment Right To Choose His/Her Lawyer Against The Judge’s Right To Run His/Her Courtroom
The stress between these considerations can be stated as: the Sixth Amendment constitutional right to counsel of choice versus the public’s interest in the fairness and efficiency of the judicial system.
While the Colorado Courts of Appeal have acknowledged that this is an intensive “fact-based question” question that should be decided by the Trial Court Judge, the Supreme Court of Colorado has set out certain factors that must be weighed by the trial court in making this critically important decision.
Since the entry of a new lawyer almost always requires a continuance of the proceedings for the new lawyer to “get up to speed” on the case. Therefore the analysis surrounds the decision to grant or to deny that continuance.
A New Multi-Factor Balancing Test
The “multi-factor balancing test” that must now be applied to determine whether the public’s interest in the efficiency and integrity of the judicial system outweighs the defendant’s Sixth Amendment right to counsel of choice and the findings and conclusions that follow – is the subject of the remainder of this article.
A Colorado Defendant’s Right to Counsel of Choice Under The Sixth Amendment
Here are some rules of law in this important area:
The Sixth Amendment to the United States Constitution has been interpreted to afford a criminal defendant the right to be represented by counsel of his or her choice. See U.S. Const. amend. VI;
This right is well established as the United States Supreme Court has recognized this right for decades.
Every Defendant must be afforded a fair opportunity to secure counsel of his own choice.
A defendant’s right to select an attorney whom he or she trusts is central to the adversary system and “of substantial importance to the integrity of the judicial process.” The right is given “great deference.”
No “Absolute Right” To Choose Your Lawyer Where and When You Want
The Sixth Amendment, however, “does not guarantee an absolute right to counsel of choice in all cases.” As noted above – there are situations where “judicial efficiency or the public’s interest in maintaining the integrity of the judicial process,” may be held to be more important than the defendant’s interest in being represented by a particular attorney.
Some believe that one method used by criminal lawyers use is to intentionally delay a case for tactical and strategic purposes. It is clear that if a judge believes this – the judge will not allow a Defendant to use the right to counsel of choice to delay the trial or impede judicial efficiency.
Continuances Generally Are Not Reversed On Appeal
The denial or the grant of a motion for a continuance is reviewed on what is known as “abuse of discretion.” standard. Only if a trial court’s decision is “arbitrary or unreasonable” and materially prejudices the defendant, will that decision be altered by a higher court.
Known as the “sound discretion” standard – the trial court has “wide latitude” and tremendous power and authority to make this call.
The Colorado Supreme Court handed down eleven (11) factors that it now mandates must be applied when a Defendant asks for a continuance to “accommodate” a new lawyer who desires to enter on the case to replace the former lawyer.
Courts must use these 11 factors and make a record of the impact of these factors so that the courts of appeal can properly review the Trial Courts exercise of its discretion in determining whether or not to grant a continuance:
1. the defendant’s actions surrounding the request and apparent motive for making the request;
2. the availability of chosen counsel;
3. the length of continuance necessary to accommodate chosen counsel;
4. the potential prejudice of a delay to the prosecution beyond mere inconvenience;
5. the inconvenience to witnesses;
6. the age of the case, both in the judicial system and from the date of the offense;
7. the number of continuances already granted in the case;
8. the timing of the request to continue;
9. the impact of the continuance on the court’s docket;
10. the victim’s position, if the victims’ rights act applies; and
11. any other case-specific factors necessitating or weighing against further delay.
…No single factor is “dispositive.” The weight accorded to each factor varies depending on the specific facts at issue in the case.
Conclusion – Colorado Criminal Law Series – Continuances – Can I Change Lawyers?
The typical scenario that occurs – as it did in the Brown case – is a private lawyer desires to substitute for the public defender. In terms of a criminal case – a great deal of time had passed in the case (ten months). Then, a month and a half before trial in Brown, (when Brown’s family raised the funds necessary to hire a private lawyer), the new lawyer asked to take over the case asking for a continuance eight days before trial.
While the new lawyer said he had hired an investigator and was “prepared to jump into this case” he also maintained that he had just obtained the discovery and needed additional time to prepare for trial.
The Trial Court denied Brown’s motion to continue the trial and this “effectively forced Brown to proceed to trial without his retained counsel of choice.” Thereafter Brown was convicted of kidnapping, assault, sexual assault, attempted unlawful sexual contact, and menacing and sentenced to an indeterminate term of thirty-six-years-to-life in the Department of Corrections. The Brown court remanded the case to make findings consistent with the new “Brown Factors.”
After the Brown case – the “Brown Factors” will be applied to every case in this category as of this decision. Hopefully more continuances for new counsel will now be granted as a result of this decision.
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at firstname.lastname@example.org – A Denver Colorado Drug Crimes Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.
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