Opinion
Criminal Action No. 07-143 (JAG).
July 31, 2008
ORDER
This matter having come before this Court on the Defendants' motions seeking to maintain the appointment of learned counsel, pursuant to 18 U.S.C. § 3005, and this Court having reviewed the parties' submissions; and for the reasons set forth in the accompanying Opinion; and good cause appearing;
Counsel for Defendants Emmanuel Jones and Torien Brooks each submitted an ex parte petition to this Court seeking to maintain the appointment of learned counsel. (Tr. 4, May 9, 2008.) Counsel for Defendants David Ariste, Anthony Walker, and Matthew Turner joined these motions orally, on the record, on May 9, 2008. (Id. at 6, 8.)
IT IS on this 30th day of July, 2008,
ORDERED that the Defendants' motions to maintain the appointment of learned counsel are GRANTED; and it is further
ORDERED that a copy of this Order be served on all parties within seven (7) days of the date of entry of this Order.
OPINION
This matter comes before this Court on the Defendants' motions seeking to maintain the appointment of learned counsel, pursuant to 18 U.S.C. § 3005. The government opposes the continued appointment of learned counsel based on its decision not to seek the death penalty against any of the five named defendants. For the reasons stated below, this Court shall allow all five learned counsel to remain in the case through trial and any other proceedings before this Court.I. BACKGROUND
Defendants Emmanuel Jones, Torien Brooks, Anthony Walker, David Ariste and Matthew Turner (collectively, the "Defendants") all are charged in a seven-count indictment with violating 18 U.S.C. §§ 2, 924(c), 1959(a)(1), 1959(a)(3) and 1959(a)(5) related to the murder of Michael Taylor and other offenses. As a result of these charges, the United States Attorney sought approval to seek the death penalty against the Defendants. Counsel for each of the five defendants petitioned this Court for the appointment of additional counsel learned in the law applicable to capital cases, pursuant to 18 U.S.C. § 3005. This Court granted Defendants' motion and appointed learned counsel.
On April 24, 2007, this Court appointed attorney David A. Ruhnke, as learned counsel for Emmanuel Jones; Mitchell A. Golub, as learned counsel for Torien Brooks; Roy B. Greenman, as learned counsel for Anthony Walker; David B. Glazer, as learned counsel for David Ariste; and Michele Ann Adubato, as learned counsel for Matthew Turner.
On April 23, 2008, after a year of extensive work and detailed presentations to the Department of Justice, the United States Attorney for the District of New Jersey informed this Court and all defense counsel that it would not seek the imposition of the death penalty against any of the Defendants in this case. Now, the question arises whether each Defendant may continue to receive the legal services of each of the five appointed learned counsel. Not surprisingly, all defense counsel argue that each learned counsel should remain in place as counsel of record. The United States Attorney argues that the language of § 3005 is clear and unequivocal — learned counsel may be appointed where the government seeks the death penalty; if such penalty is not sought, learned counsel's appearance is not necessary and should no longer be approved.
The tension that arises from the opposing positions here does not implicate the right to counsel. All Defendants have competent primary counsel representing each of them. The crux of the matter is whether, despite the absence of the death penalty in the case, learned counsel may continue to be engaged, as counsel of record.
"The Constitution does not specify the number of lawyers who must be appointed. If a single attorney provides reasonably effective assistance, the Constitution is satisfied, and if a whole team of lawyers fails to provide such assistance, the Constitution is violated." Riley v. Taylor, 277 F.3d 261, 306-07 (3d Cir. 2001) (citation omitted).
II. LEGAL STANDARD
18 U.S.C. § 3005 provides that
Whoever is indicted for treason or other capital crime shall be allowed to make his full defense by counsel; and the court before which the defendant is to be tried, or a judge thereof, shall promptly, upon the defendant's request, assign 2 . . . counsel, of whom at least 1 shall be learned in the law applicable to capital cases, and who shall have free access to the accused at all reasonable hours. . . .18 U.S.C. § 3005. The statute is silent on whether a defendant may still be entitled to the appointment of the learned counsel if the government decides that it shall not seek the imposition of the death penalty against a defendant. U.S. v. Douglas, 525 F.3d 225, 235 (2d Cir. 2008). This silence has created a void in the law in this area. As presented to most courts, the issue presented is whether federal courts are "required" to leave learned counsel in place despite the removal of the specter of the death penalty.
The majority of federal courts of appeals that have addressed this issue have concluded that once the government has informed the court and the defendant formally of its intention not to seek the death penalty, the matter is no longer a capital case within the meaning of 18 U.S.C. § 3005. Further, § 3005 does not require the district court to continue the appointment of a second counsel who is learned in capital cases. In re Sterling-Suarez, 306 F.3d 1170, 1174-75 (1st Cir. 2002); Douglas, 525 F.3d at 237;U.S. v. Shepherd, 576 F.2d 719, 727-29 (7th Cir.), cert. denied, 439 U.S. 852 (1978); U.S. v. Weddell, 567 F.2d 767, 770-71 (8th Cir. 1977), cert. denied, 436 U.S. 919 (1978); U.S. v. Waggoner, 339 F.3d 915 (9th Cir. 2003), cert. denied, 543 U.S. 1005 (2004);U.S. v. Grimes, 142 F.3d 1342, 1347 (11th Cir. 1998), cert. denied, 525 U.S. 1088 (1999). Thus, learned counsel may be disengaged in such a circumstance.
The Seventh Circuit held that 18 U.S.C. § 3005 "does not apply because there is no possibility that the death penalty can be imposed" when the death penalty was precluded by the Supreme Court of the United States' decision in Furman v. Georgia, 408 U.S. 238 (1972), which invalidated the death penalty under the statutory scheme then in effect. U.S. v. Shepherd, 576 F.2d 719, 727-29 (7th Cir. 1978). In 1976, the Supreme Court of the United States held that death penalty under modified state statutes was constitutional. Gregg v. Georgia, 428 U.S. 153, 207 (1976); Jurek v. Texas, 428 U.S. 262, 276 (1976); Proffitt v. Florida, 428 U.S. 242, 260 (1976). However, this does not appear to affect the analysis of the right to learned counsel once it is determined that the death penalty can be imposed.
The Eighth Circuit held that, in light of Furman, which invalidated the death penalty under the statutory scheme then in effect, the case "lost its capital nature as charged in the indictment. It follows that the district court did not err in rejecting Weddell's request for the appointment of a second attorney pursuant to 18 U.S.C. § 3005."). See supra note 3.
The Fourth Circuit has taken a different view on this matter. In U.S. v. Boone, the Fourth Circuit held that the right under 18 U.S.C. § 3005 to the appointment of death penalty qualified learned counsel in a case where the death penalty may be imposed attaches upon indictment and that right is absolute and not distinguished, even when the government does not in fact seek the death penalty. 245 F.3d 352, 358-59 (4th Cir. 2001). However, subsequently, the Fourth Circuit has viewed such rights as less absolute in U.S. v. Robinson, 275 F.3d 371, 383-84 (4th Cir.),cert. denied, 535 U.S. 1006 (2002) (declining to reverse a conviction where death penalty qualified counsel had been appointed but the appointment was terminated without objection after the government elected not to seek the death penalty).
The Third Circuit has held that the error was harmless when a district court failed to appoint learned counsel in a capital case until several weeks after the requests were made and when the requests were rendered moot by the government's decision not to seek the death penalty. U.S. v. Casseus, 282 F.3d 253, 256 (3d Cir. 2002), cert. denied, 537 U.S. 852 (2002). In Casseus, the Third Circuit reasoned that once the government declared that it would not seek the death penalty, the defendant is no longer a capital defendant. Id.
The Third Circuit has disagreed with the Fourth Circuit, which concluded that "harmless error review is not applicable to a violation of 18 U.S.C. § 3005." Casseus, 282 F. 3d at 256 n. 1. (citing Boone, 245 F.3d at 361 n. 8 (4th Cir. 2001)).
On the other hand, the statute and these precedents do not prohibit a court from appointing more than one attorney in its discretion. The Third Circuit does not preclude a district court from exercising discretion in determining whether to appoint more than one attorney in a non-capital case. Some Circuits have recognized that a district court has the discretion to decide whether to retain the learned counsel after the elimination of the death penalty. Douglas, 525 F.3d at 238 (deciding when, if ever, the retention of both counsel is necessary in the interest of justice after the government has announced it will not seek the death penalty is an exercise best left to the broad discretion of the district court); U.S. v. Steel, 759 F.2d 706, 710 (9th Cir. 1985) (the decision to appoint more than one attorney should be left to the sound discretion of the district court, taking into consideration the circumstances of each case).
The Guidelines for the Administration of the Criminal Justice Act ("CJA Guidelines"), promulgated by the Judicial Conference of the United States, provide that, if, following the appointment of counsel in a case where a defendant was charged with an offense that may be punishable by death, it is determined that the death penalty will not be sought, the court should consider the questions of the number of counsel and the rate of compensation needed for the duration of the proceeding. More specifically, the CJA Guidelines instruct that:
The court should, absent extenuating circumstances, make an appropriate reduction in the number of counsel. In determining whether there are extenuating circumstances, the court should consider the following factors:
(a) the need to avoid disruption of the proceedings;
(b) whether the decision not to seek the death penalty occurred late in the litigation;
(c) whether the case is unusually complex, and
(d) any other factors that would interfere with the need to ensure effective representation of the defendant.
Guidelines for the Admin. of the Criminal Justice Act, vol. VII, § A, ch. 6.02.B(2) (2008).
III. DISCUSSION
The United States Attorney argues that the language of § 3005 clearly mandates the elimination of a defendant's right to learned counsel when the death penalty is not sought. However, the statute is silent on whether a defendant may still be entitled to the appointment of learned counsel after the government has decided that it would not seek the imposition of the death penalty against a defendant. Douglas, 525 F.3d at 235. The relevant case law does not prohibit a court from appointing more than one attorney in its discretion. Id. at 238; Steel, 759 F.2d at 710. The CJA Guidelines provide the factors a court may consider in maintaining the learned counsel when extenuating circumstances exist. Thus, this Court has discretion to consider the specific circumstance in this case in order to decide whether the Defendants are entitled to the continued appointment of learned counsel.
Counsel for Defendants argue in favor of the continued appointment of learned counsel due to the complexity of the case, the gravity of the charges, and the established attorney-client relationship. This case involves five Defendants, all are charged with seven counts of murder conspiracy, murder, assault with a dangerous weapon, and possession, use and carrying a firearm for violent crime. (Indictment Counts 1-7.) As recognized in the Complex Case Order, the gravity and magnitude of this case render it complex. Manual for Complex Litigation, Fourth, § 11.21; (Complex Case Order, May 22, 2008.) A trial in this matter is likely to involve a very large number of witnesses and significant amounts of physical evidence and is likely to be quite lengthy. (Complex Case Order, May 22, 2008.) Defense counsel will require additional time to prepare an adequate defense. (Id.) It is also likely that there will be substantial pretrial motions regarding the questions of law and fact in this case. (Id.)
Taking the factors indicated in CJA Guidelines into consideration, this Court is convinced that extenuating circumstances exist in this case. First, there is a need to avoid disruption of the proceedings. Termination of the appointment of the learned counsel will increase the work for the primary counsel, which in turn will delay and disrupt the proceedings of this case. In addition, the government informed this Court and Defendants of its decision not to seek the death penalty one year after the appointment of the learned counsel, which is well into this litigation. More importantly, this case is unusually complex. The complexity of this case has been recognized by both the United States Attorney for the District of New Jersey and the defense counsel, as evidenced by the Complex Case Order. Further, the charges emanating from a homicide, racketeering activity, including robbery, attempted murder and narcotics distribution all contribute to the gravity and magnitude of this case. (Id.) Finally, during the one year appointment, each learned counsel has established and developed a significant attorney-client relationship with each of their clients, which will facilitate effective representation, if all learned counsel are maintained.
This Court appointed learned counsel on April 24, 2007. The United States Attorney for the District of New Jersey informed this Court and all defense counsel of the decision not to seek death penalty in this case on April 23, 2008.
Based on the above considerations, this Court is convinced that there are extenuating circumstances in this case, which warrant the continued appointment of learned counsel on behalf of each Defendant.
In addition, due to the non-capital nature of the case, this Court will reduce the compensation for the learned counsel to that applicable to non-capital cases.
IV. CONCLUSION
For the reasons stated above, the requests for continued appointment of learned counsel for all Defendants are granted.