U.S. v. Morsette

Full title: United States of America, Plaintiff, v. Dustin Morsette, a/k/a Dusty James…

Court: United States District Court, D. North Dakota, Northwestern Division

Date published: Aug 23, 2011

Case No. 4:10-cr-070 (D.N.D. Aug. 23, 2011)

Opinion

Case No. 4:10-cr-070.

August 23, 2011

Summary : The Defendant sent a letter to the Court requesting substitution of counsel. A hearing was held, at which the Defendant asserted that he had lost trust and confidence in his court-appointed attorney. Counsel informed the Court that he has experienced problems, including the loss of his home, due to the flood in Minot. The Court found that the Defendant had demonstrated justifiable dissatisfaction and substitution of counsel is justified and necessary under the circumstances.

ORDER GRANTING DEFENDANT'S REQUEST FOR SUBSTITUTION OF COUNSEL

DANIEL HOVLAND, Chief Judge

This matter comes before the Court as a result of the Defendant's letter request for substitution of counsel received on August 11, 2011. A copy of the letter was forwarded via email to counsel for both parties on the same date. See Docket No. 119-1. A jury trial is scheduled to commence on Monday, November 28, 2011. A hearing was held on August 23, 2011, in Bismarck, North Dakota. Representing the Government was AUSA Rick L. Volk and representing the defendant was attorney Robert Thomas.

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 (8^th 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 his choice of counsel is dilatory, the trial court can require him to proceed with designated counsel. United States v. Reeves, 674 F.2d 739, 748 (8^th 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 (8^th 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 (8^th Cir. 1991)). The proper focus in evaluating claims of dissatisfaction with counsel is on the quality of the advocacy. As a general rule, a hearing should be held to consider the defendant's concerns.Caban v. United States, 281 F.3d 778 (8th Cir. 2002).

When a defendant makes a request for substitute counsel, the Court should inquire into the reason(s) for the defendant's dissatisfaction with his attorney before ruling on the request.See McMahon v. Fulcomer, 821 F.2d 934 (3^rd Cir. 1987). A defendant does not have the absolute right to counsel of his 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 he prefers. Nerisen v. Solem, 715 F.2d 415 (8^th Cir. 1983).

At the hearing on August 23, 2011, the Court inquired of the Defendant [hereinafter referred to as "Morsette"] as to the reason(s) for his dissatisfaction with his court-appointed attorney, Robert Thomas. Morsette informed the Court that he was generally dissatisfied with Robert Thomas as his attorney. In essence, Morsette has had a breakdown in communications with his attorney which centers on a lack of trust and confidence. In addition, defense counsel has had to deal with a multitude of problems and concerns related to the devastating flood in Minot and the destruction and loss of his home which the Court cannot ignore. Defense counsel has done an admirable job in a difficult and complex case. Nevertheless, this combination of events — a breakdown of communications, the chaos caused by the massive flooding in Minot, and the trial being relocated to Bismarck, leads the Court to conclude that a substitution of counsel is justified and necessary under the circumstances.

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 (8^th Cir. 2003). The Court finds that the defendant, Dustin Morsette, has shown a justifiable dissatisfaction with counsel to support his request for a substitute.

A defendant does not have the absolute right to counsel of his own choosing. The primary aim of the Sixth Amendment is to guarantee an effective advocate for each criminal defendant rather to ensure that each defendant will be represented by the lawyer he prefers. The Defendant has demonstrated a justifiable dissatisfaction with court appointed counsel. The Defendant's request for substitution of counsel is GRANTED.

IT IS SO ORDERED.