Opinion
Case No. C1-04-50, No. 51.
October 6, 2004
ORDER GRANTING DEFENDANT DUONG'S REQUEST FOR SUBSTITUTION OF COUNSEL
This matter comes before the Court as a result of defendant Diana Duong's letter request for substitution of counsel filed on October 1, 2004 (Docket No. 49). A jury trial is scheduled to commence on Monday, November 1, 2004. A hearing was held on October 6, 2004, in Bismarck, North Dakota. Representing the Government was SAUSA Paul Emerson. Representing defendant Duong was attorney Kent Morrow and also present was attorney Ben Pulkrabek, counsel for defendant Truong.
It is well-established in the Eighth Circuit that the trial court has broad discretion in determining whether to grant a request for substitution of counsel, particularly when the issue is raised close to the date of trial. United States v. Vallery, 108 F.3d 155 (8th Cir. 1997). The right to choice of counsel must not obstruct orderly judicial procedure or deprive courts of their inherent power to control the administration of justice. If a defendant's attempted exercise of her choice of counsel is dilatory, the trial court can require her to proceed with designated counsel. United States v. Reeves, 674 F.2d 739, 748 (8th Cir. 1982).
Whether to grant a motion for new counsel is a matter committed to the sound discretion of the district court. United States v. Exson, 328 F.3d 456 (8th Cir. 2003). A defendant must show a justifiable dissatisfaction with counsel in order to be granted a substitute. Justifiable dissatisfaction sufficient to warrant that new counsel be appointed includes a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between the attorney and the defendant. Id. quoting Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991). The proper focus in evaluating claims of dissatisfaction with counsel is on the quality of the advocacy.
When a defendant makes a request for substitute counsel, the Court should inquire into the reason(s) for the defendant's dissatisfaction with her attorney before ruling on the request.See McMahon v. Fulcomer, 821 F.2d 934 (3rd Cir. 1987). A defendant does not have the absolute right to counsel of her own choosing. The primary aim of the Sixth Amendment is to guarantee an effective advocate for each criminal defendant, rather than to ensure each defendant will be represented by the lawyer she prefers. Nerisen v. Solem, 715 F.2d 415 (8th Cir. 1983).
At the hearing on October 6, 2004, the Court inquired of the Defendant as to the reason(s) for her dissatisfaction with her court-appointed attorney. Duong informed the Court that she was dissatisfied with defense counsel because she felt there had been a breakdown in communications and defense counsel (Morrow) "has no time for her case." In essence, Duong stated she was extremely dissatisfied with attorney Morrow, she was not being properly represented, and she requested substitute counsel to adequately protect her rights.
It is incumbent upon a defendant to show justifiable dissatisfaction with counsel in order to be granted a substitute. As previously noted, justifiable dissatisfaction sufficient to warrant that new counsel be appointed includes a conflict of interest, an irreconcilable conflict, or a complete breakdown of communications between the attorney and the defendant. United States v. Exson, 328 F.3d 456 (8th Cir. 2003). The Court finds the defendant, Diana Duong, has shown justifiable dissatisfaction under the circumstances.
A defendant does not have the absolute right to counsel of her own choosing. The primary aim of the Sixth Amendment is to guarantee an effective advocate for each criminal defendant, rather than to ensure that each defendant will be represented by the lawyer she prefers. The Defendant's letter request for substitution of counsel is GRANTED. As per Duong's request, the Court appoints attorney Steve Balaban as substitute counsel.
IT IS SO ORDERED.