
What protects the defender? A radical difference in rules
May 14, 2008In stark contrast to the jurisdiction in which I used to practice:
Appeals court rules against Minn. man who punched defender
ST. PAUL — Punch your public defender in court and you’re on your own, that’s the message the Minnesota Court of Appeals sent a Chisholm man on Tuesday.
William Edwin Lehman Jr. pummeled attorney Mark Groettum in a Hibbing courtroom during his July 2006 trial on felony assault.
Lehman challenged a decision to deny his right to court-appointed counsel and a decision to shackle him for the rest of the trial. He also complained that no evidentiary hearing was held on the matter.
The three-judge appeals panel says the district court did not abuse its power by denying Lehman a new public defender. They also say it was justified to shackle Lehman and say a separate hearing wasn’t necessary because Lehman punched his attorney in front of the judge and jury.
That should be the rule across the board! Punching out your public defender - or your paid lawyer, for that matter - in open court is the most graphic demonstration there could be that there has been a total breakdown in communication between attorney and client, and that there is not and cannot any longer be the necessary trust to maintain such a relationship.
The ruling in my (former) jurisdiction, is counter-intuitive in the extreme. I quote directly from the relevant State Supreme Court case, that “Defendant was not entitled to appointment of new counsel after he struck public defender wh had been appointed to represent him on head with chair, in the absence of evidence that defendant’s rights were prejudiced by public defender’s representation and in view of fact that defendant had embarked on deliberate course designed to delay and disrupt his trial” Clearly, an educated and professional attorney may be able to set aside his personal feelings and continue to fairly and competently represent a defendant. But the attorney/client relationship is two-way. The question is not only whether the attorney can lay aside any personal animosity and remain impartial in his/her representation, but whether the defendant trusts and is willing to communicate with and work with that attorney. If a defendant disagrees with and distrusts his attorney to the point where he physically assaults the attorney in the courtroom, or even verbally threatens the attorney with bodily harm or death, as happens on occasion to most public defenders, what does that tell you about the quality of their relationship? What dies it tell you about the client’s willingness to be truthful with his attorney, or to cooperate in a proposed defense, or to reliably provide information on witnesses and facts that would either help or harm his case? In the absence of evidence of severe mental illness, the only reasons that a defendant would attack his attorney are malice, or frustration at his inability to control the proceedings, which he of course, blames on his attorney, rather than on the inherent position of a defendant in the justice system as it exists today. The prosecutor controls what is charged and how, what is offered and why. The judge controls the procedure and demeanor of the courtroom. The defendant is in control of - what? Whether to plead guilty or not guilty. Whether to accept or reject an offer tendered to him/her. Whether to proceed to a bench trial or a jury trial. Whether or not he/she testifies at trial or sentencing. The rest is strategy, and if there is a disagreement in how to proceed, the attorney may accept or reject what his client wants him to do, based on both ethical concerns, and what is in the client’s best interest. And there’s where the conflicts usually arise.
The defendant may want to claim alibi when four or five eyewitnesses are willing to testify that he was there. The defendant might insist on a speedy trial in the belief that the witnesses won’t show up, when you have spoken with them, and know that they will, and they will testify in a way that is damaging to your client. He may insist on this, despite your well-founded belief that his confession should be suppressed on grounds of defective Miranda warnings and physical/psychological coercion. The defendant might mistakenly believe that you somehow can force the judge to dismiss a case on the bare assertion that the witnesses are lying; or that you can dictate to the prosecutor what an appropriate offer should be. There’s a thousand ways that misunderstandings can arise, and it is in the nature of being a public defender that openness and trust is difficult to initiate and sustain. Most such conflicts can be worked around.
But when the conflict rises to the threat of physical violence against yourself or your family, or to actual physical assault - that’s it. The relationship has broken down. It’s OVER, folks.
The Eighth amendment protects a person convicted of a crime against cruel and unusual punishment. What and who protects his attorney?









