Public or Private? Right To Counsel Of Your Choosing May Depend On Whether You Have Private Counsel Or Appointed Counsel

 by:  Peter J. Gallagher (@pjsgallagher)

I don't usually post about criminal law cases but the Appellate Division's recent opinion in  State v. Martinez hit close enough to home that I thought it was worth a few words. (I apologize for the uncharacteristically long title. Professor Cole, one of my journalism professors from college, would not be proud.)  

A few years back I was fortunate enough to be asked to represent the Association of Criminal Defense Lawyers of New Jersey (ACDL-NJ) as amicus curiae in a case before the New Jersey Supreme Court — State v. Miller — that involved a similar issue to the one addressed in Martinez. Miller involved a defendant who was represented by the public defender's office. In the weeks and months leading up to the trial, defendant had been dealing with one public defender, but on the morning of trial a different public defender showed up to represent him. The trial court denied defendant's request for an adjournment, and forced defendant to go to trial with a lawyer he met for the first time on the morning of trial. Defendant was convicted and appealed the trial court's denial of his adjournment request. Both the Appellate Division and the Supreme Court affirmed the trial court's decision. Over an impassioned dissent from Justice Albin, the Supreme Court held that "it would have been preferable for the trial judge to have postponed the commencement of the [trial]," but that the decision to not do so was not an abuse of the trial court's broad discretion to control its own calendar and did not violate the defendant's right to counsel.

In Martinez, the facts were slightly different. Most importantly, as it turns out, unlike Miller, the defendant in Martinez was not represented by a public defender but was instead represented by private counsel. In Martinez, defendant retained a law firm to represent him and expected a specific partner from that firm to represent him at trial. However, the partner was not available on the trial date because of a conflict with another matter. It appears that both the prosecution and defense expected and agreed that the trial date would be adjourned to accomodate the partner's schedule, but the trial court refused to do so. Over defendant's objection, the trial court forced defendant to go to trial, not with the partner that he expected would handle the case, but with an associate from the partner's firm. By all accounts, the associate was capable and experienced, but defendant nonetheless objected to having to go to trial with counsel that was not the counsel he chose. 


Defendant was convicted. On appeal, he challenged the trial court's decision to deny his adjournment request. The Appellate Division agreed with defendant, reversed the trial court's decision, and remanded the case for a new trial. In doing so, the Appellate Division noted that the trial court had failed to consider the factors set forth in State v. Hayes that a trial court must balance when evaluating a request like the one made in Martinez. These factors include:

the  length  of  the  requested  delay;  whether other continuances  have  been  requested  and granted;   the balanced   convenience or inconvenience  to  the  litigants,  witnesses, counsel,   and   the   court;   whether the requested  delay  is  for  legitimate  reasons, or  whether  it  is  dilatory,  purposeful,  or contrived; whether the defendant contributed to the circumstance which gives rise to the request  for  a  continuance;  whether the defendant   has   other   competent counsel prepared  to  try  the  case, including  the consideration  of  whether  the  other  counsel was  retained  as  lead  or  associate  counsel; whether  denying  the  continuance  will  result in  identifiable  prejudice  to  defendant's case,  and  if  so,  whether  this  prejudice is of  a  material  or  substantial  nature;  the complexity  of  the  case;  and  other  relevant factors  which  may  appear in  the  context  of any particular case

Because the trial court did not engage in the required balancing test, but only considered "calendar considerations" when ruling on defendant's request, the Appellate Division held that its decision was arbitrary and could not stand.

The Appellate Division did not need to consider whether defendant had been prejudiced by having the associate represent him at trial rather than the partner. (According to the trial court, the associate put forth a vigorous defense and represented defendant "very well.") As the Appellate Division noted: "Deprivation of the right [to the effective assistance of counsel] 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."

The difference between Martinez and Miller can be found in a footnote in the Appellate Division's decision. In Miller, the Supreme Court distinguished defendants who are represented by private counsel from those who have counsel appointed for them. The former have the right to counsel of their choice, but the latter do not. As the Supreme Court observed in Miller and as the Appellate Division noted in Martinez: "Where a defendant obtains assigned counsel, the defendant's 'right to be represented does not entail the right to a public defender of his or her choice." Personally, I am not sure that I see a difference between the two that would justify this distinction, but maybe that is just sour grapes from having been on the wrong end of the decision in Miller.

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