Forced Representation By Associate Deemed Unconstitutional
A New Jersey judge’s decision to force a criminal defendant to go to trial while being represented by a partner’s associate because of the partner’s scheduling conflict amounted to the deprivation of the defendant’s Sixth Amendment right to counsel of his choice, a state appeals court ruled May 15.
In a published ruling, the three-judge Appellate Division said that since the trial judge failed to properly weigh the defendant’s request for an adjournment because of his lawyer’s unavailability, the conviction must be overturned and a new trial must be awarded.
“We conclude that the denial of defendant’s request to adjourn the trial … reflects an arbitrary exaltation of expedience in case processing at the expense of defendant’s right to counsel,” wrote Appellate Division Judge Marie Lihotz in State v. Martinez. Judges Marianne Espinosa and Jerome St. John joined in the ruling.
In January 2011, defendant Gregory Martinez and a co-defendant, who was not named, were charged in a 12-count indictment, including one count of first-degree possession of narcotics with intent to distribute, after police found more than five grams of cocaine in a car in which they were riding, according to the appeals court’s opinion. The co-defendant pleaded guilty but Martinez maintained he did not know the drugs were in the car.
Martinez retained Joseph Benedict of Benedict and Altman in New Brunswick to represent him.
An associate at Benedict’s firm, Philip Nettl, appeared before Middlesex County Superior Court Judge Diane Pincus on Feb. 4, 2013, and requested an adjournment of the trial, scheduled for Feb. 13, 2013, because Altman would be on trial in another matter before another judge, the opinion said.
Pincus, according to Benedict, said the case was one of the oldest on her calendar and wanted the case to go to trial and to have Nettl present Martinez’s defense. Nettl, the opinion said, acknowledged that he was prepared to try the case, but noted that Martinez was vociferous in his desire to be represented by Benedict. After Presiding Judge Bradley Ferencz rejected the request for an adjournment, trial began before Pincus. A jury convicted Martinez of all but one of the charges.
At sentencing, Pincus rejected Benedict’s request for a new trial, saying Nettl presented a “‘vigorous’” defense and that Martinez received a fair trial, according to the opinion. Martinez then appealed.
Lihotz said Pincus should have adjourned the trial so Martinez could have been represented by the counsel of his choice, Benedict.
“An unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for a delay’ violates the right to assistance of counsel,” Lihotz said, citing the U.S. Supreme Court’s 1983 ruling in Morris v. Slappy.
A judge facing a request for an adjournment must engage in fact-sensitive analysis that weighs the need to balance a calendar and the public’s interest in the orderly administration of justice against a defendant’s right to counsel of his or her choosing, Lihotz said, noting that there was no such analysis undertaken in this case.
Citing the state Supreme Court’s 2014 ruling in State v. Kates, Lihotz said a trial judge can reject a request for an adjournment if there is a “reasoned, thoughtful analysis” of a lengthy list of factors that include, among other things, the age of the case, the reasons behind the request, the availability of witnesses, the ability of other counsel to represent the defendant and the complexity of the case.
“However, the absence of this analysis results in a one-sided and, consequently, arbitrary determination,” she said. “In the absence of the necessary factual analysis prior to the denial of an adjournment request to reschedule trial because of counsel’s unavailability, an abuse of discretion results.”
“In this matter, we conclude that both reviewing judges failed to deliberately balance the competing interests and give weight to defendant’s right to be represented by counsel of his choice,” Lihotz said.
If the right to counsel is wrongfully denied, it is not necessary to determine whether the defendant was effectively represented or suffered no prejudice, she said.
“Deprivation of the right is ‘complete’ when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received,” Lihotz said, quoting the U.S. Supreme Court’s 2006 ruling in United States v. Gonzalez-Lopez.
Benedict said he was not surprised by the appeals court’s ruling.
“I’m more surprised by what happened at the trial level,” he said. “Mr. Nettl is a very good lawyer, but that’s not the issue. Moving the calendar took precedence over making sure that my client got the attorney of his choice.
“There was no reason not to grant the adjournment,” he said.
Peter Aseltine, a spokesman for the Attorney General’s Office, which represented the state on the appeal, said only that officials there are reviewing the decision and are considering their options.