DISTRICT OF COLUMBIA COURT OF APPEALS ______________________ No.

[REDACTED] ______________________

[DEFENDANT], [Defendant], v. UNITED STATES OF AMERICA, Appellee. ___________________________________________________ Appeal from Decision of the Superior Court of the District of Columbia Criminal Division ___________________________________________________ BRIEF FOR APPELLANT ___________________________________________________

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]

TABLE OF CO TE TS PAGE TABLE OF AUTHORITIES . 2 ISSUE PRESENTED . 3 STATEMENT OF THE CASE .. 4 STATEMENT OF FACTS..... 5 ARGUMENT 16 I. THE LOWER COURT FAILED TO CONDUCT AN ADEQUATE INQUIRY INTO APPELLANTS PRETRIAL INEFFECTIVE ASSISTANCE CLAIM THE TRIAL COURT ERRED IN DENYING DEFENDANTS MOTIONS TO CONTINUE

II.

CONCLUSION 32 CERTIFICATE OF SERVICE 34

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TABLE OF AUTHORITIES

CASES

PAGE

Farrell v. United States, 391 A.2d 755 760 (D.C. 1978).......16, 17, 23 Fields v. United States, 466 A.2d 822 (D.C. 1983).......17 Forte v. United States, 856 A.2d 567 (D.C. 2004) ....17 Kyle v. United States, 759 A.2d 192 (D.C. 2000).. 30 Matthews v. United States, 459 A.2d 1063 (D.C. 1983)...17, 18, 23 McFadden v. United States, 614 A.2d 11 (D.C.1992).16, 18, 25, 28 Mills v. United States, 796 A.2d 26 (D.C. 2002)..16, 22, 29 Monroe v. United States, 389 A.2d 811(D.C. 1978).....16, 17, 28 Mungo v. United States, 772 A.2d 240 (D.C. 2001)6 Nelson v. United States, 601 A.2d 582 (D.C.1991)28 OConnor v. United States, 399 A.2d 21(D.C. 1979)29, 30 Powell v. Alabama, 287 U.S. 45 (1932) .. 32 Wingate v. United States, 669 A.2d 1275 (D.C.1995) 16, 25 Yancey v. United States, 755 A.2d 421 (D.C. 2000) 32

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ISSUES PRESE TED I. Whether the trial court made an adequate inquiry into Defendants pre-trial ineffective

counsel claim. II. Whether the trial court abused its discretion and violated Appellants Sixth Amendment

rights by denying multiple requests for a continuance based on numerous valid grounds including, inter alia: (1) the governments filing of a morning of the trial superseding information charging a new, more serious offense that counsel was not prepared to defend; and (2) the governments failure to turn over Brady and Jencks materials requested in pre-trial discovery and critical to the effective examination of the governments only witness.

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STATEME T OF THE CASE [The Complainant], a correctional officer, accused Appellant [Defendant] of assaulting her at the D.C. Jail, where [Defendant] was an inmate, on June 7, 2011. (Tr.2:9).1 On October 14, 2011, [Defendant] was found guilty on two counts: Assault on a Police Officer, in violation of D.C. Code 22-405(b); and Misdemeanor Sexual Abuse, in violation of D.C. Code 22-3006. (R.10). Both counts arose out of the same June 7 incident, but the government did not charge the second count until the day of [Defendant] trial for the first offense, which was charged in the initial information filed four months earlier. (R.1, R.8). The evidence adduced at trial was minimal. [Complainant] and [Defendant] were the only witnesses. [Complainant] testified that [Defendant] grabbed [her] vaginal area as she supervised the distribution of inmates meals, and that she reacted by striking him with a clipboard. (Tr.2:9, 32). [Defendant] account directly contradicted [Complainant]s. He testified that [Complainant] was ushering him back into his cell and that he was stalling, which caused her to lose her temper and strike him. (Tr.2:56-57). He said [Complainant]s accusation was a post hoc fabrication contrived to avoid professional sanctions for an assault on an inmate that violated prison rules. (Tr.2: 70-71). Surveillance video captured the incident, but the judge found the footage inconclusive and based his verdict entirely on a finding that [Complainant] was credible and [Defendant] was not (Tr.2:72). [Defendant] was sentenced to 180 days incarceration on each count, terms to run concurrently. (R.10). He filed a timely Notice of Appeal on October 17, 2011. (R.11).
1

There are two transcripts in the record. The first transcript (denoted as Tr.1) memorializes an October 14, 2011 pre-trial hearing. The second (Tr.2.) memorializes trial proceedings held later that same day.

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STATEME T OF THE FACTS I. THE GOVER ME TS CHARGES On June 14, 2011, [Defendant] was charged by criminal information with Count I, Assault on a Police Officer (R.1). The assault was alleged to have occurred on June 7, 2011, one week before [Defendant] was arrested and charged. (Id.) On October 12, 2011 just two days before [Defendant] was scheduled to go to trial on Count I the government filed a Notice of Intent to File a Superseding Information adding one count of Misdemeanor Sexual Abuse to his complaint. (R.7). The amendment was not based on newly acquired evidence; the government simply stated that it had cause to believe that the newly charged offense had also been committed. (Id.) The superseding information was filed on October 14, 2011, the day of [Defendant] trial. (R.8). II. PRE-TRIAL DISCOVERY A D BELATED DISCLOSURES The discovery package that the government initially produced was thin, so defense counsel filed a comprehensive Rosser lesser requesting additional materials on September 6, 2011. (R.6). The letter filed more than one month before trial asked for a broad range of materials. (Id.) It specifically requested records relating to Department of Corrections disciplinary proceedings that were predicated on the same conduct that gave rise to [Defendant] criminal charges and that resulted in his exoneration.2 The government never produced the Department of Corrections hearing records, and the court did not ask the prosecution why they

The letter stated: I have been advised that an Administrative Hearing was held concerning the events that comprise the factual predicate for the above-captioned case. I specifically request a diligent investigation of, search for, Jenks [sic] and Brady material stemming from this Hearing. (I would note that the finding of the Administrative Tribunal was reversed on administrative appeal on or about June 22, 2011). (Id.) -5-

had failed to do so. The prosecution also ignored other requests in the Rosser letter, which asked them to conduct a diligent examination of the personnel files of law enforcement and government agents and turn over, inter alia: any statements by the defendant intended to be offered into evidence; all Brady material; any evidence tending to impeach government witnesses; and the names of any witnesses favorable to the accused (Id.) On October 7, 2011 one week before trial and one month after the government received Defendants Rosser letter the prosecutor sent an e-mail disclosing certain statements [that] were made by Mr. [Defendant] to the complaining witness (Tr.2:49). The belatedlydisclosed statements, which the government intended to introduce at trial, involved a threat [Defendant] allegedly made to [Complainant] about a month before the assault on June 7. (Id.) Specifically, [Complainant] proposed to testify that [Defendant] told her he intended to grab her pussy one month before allegedly making good on that promise. (Tr.2:50). [Complainant] never reported the threat, and the government never explained and was never asked to explain why [Defendant] statement was not disclosed until a week before trial. As discussed more fully below, the governments clear aim in seeking to introduce the statement was to bolster the Misdemeanor Sexual Abuse charge. To convict a defendant of that offense the government must show a specific intent to abuse, humiliate, harass, degrade, arouse or gratify the sexual desire of any person. Mungo v. United States, 772 A.2d 240, 245 (D.C. 2001). The prosecutor would argue that [Defendant] threat to grab [[Complainant]s] pussy proved he possessed such intent.3 As also discussed below, [Defendant] denied making the

The prosecutors closing argument included the following: With regards to the statements that the defendant made to [[Complainant]] on some period of time several weeks before the incident occurred, the government submits that that strongly shows the defendants intent when he -6-

threat, and one of his continuance requests was based on the governments failure to produce Department of Corrections policies and training manuals that would impeach [Complainant]s claim that he made it by showing that agency policy required the reporting of such threats. (See infra, pp. 9-12). III. PRE-TRIAL HEARI G A D CO TI UA CE RULI GS [Defendant] case was initially assigned to Judge [Pre-trial Judge], but she transferred the trial to [Trial Judge] because she was concerned it would not conclude in time for her to attend a judicial investiture ceremony scheduled for 3:30 that afternoon. (Tr.1:6). [Trial Judge] also expressed a desire to attend the investiture ceremony, but he said his primary goal is to complete this trial, you know, fairly. (Tr.2:4). [Pre-trial Judge] considered a number of issues before transferring the case, including [Defendant] multiple continuance requests. A. FIRST CO TI UA CE RULI G Defendants first continuance request related to the governments filing of a morning-ofthe-trial superseding information charging him with Misdemeanor Sex Abuse. (Tr.1:2-3). Defense counsel said he did not have adequate time to discuss the new charge with his client and was not quite sure what my defense would be in the new situation. (Id.) The government made no attempt and was not asked by the court to explain the failure to include the new count in the original information filed four months earlier. (Tr.1:2-5). [Pre-trial Judge] denied the request for a continuance, stating: Its just a new charge, but the facts are the same and I dont see any basis for granting a continuance This case is ready now. It costs taxpayers money to get this case ready, so Im not inclined to grant the continuance. Let me just make the record. actually committed the incident on the day of June 7, 2011, that he was either attempting to humiliate Ms. [Complainant] or he was attempting to gratify his own sexual desires. (Tr.2:64). -7-

(Tr.1:5, 14). B. SECO D CO TI UA CE RULI G [Pre-trial Judge] also denied a request to allow defense counsel to withdraw. (Tr.1:7, 1314). Defense counsel sought to withdraw for two reasons: first, because he did not feel prepared to defend the case; and second, because his client was dissatisfied with his performance, which made counsel queasy about continuing the representation if Mr. [Defendant] really doesnt want me. (Tr.1:13-14). [Pre-trial Judge] conducted a Monroe-Farrell inquiry and engaged in a colloquy with [Defendant] to examine the reasons for his dissatisfaction. (Tr.1:7-14). Asked if he was happy with his lawyers representation, [Defendant] replied: Sixty/forty and said he did not want counsel to continue representing him (Tr.1:7). Asked to articulate the reasons for his dissatisfaction, [Defendant] said that his primary concern was that counsel failed to obtain critical discovery that [Defendant] told him to procure. (Tr.1:7-13). [Defendant] was most disturbed by counsels failure to timely obtain records from the Department of Corrections administrative proceedings that exonerated [Defendant]. (Tr.1:10). Counsel explained that the government had not responded to his request for the materials and that he then tried unsuccessfully to obtain them from PDSDC, where the matter had been assigned to a law student who was no longer with PDSDC. (Tr.1:11). Counsel said that [Defendant] had obtained some of the administrative records through his own efforts and had given them to him right before the hearing began. (Id.)4 [Pre-trial Judge] did not ask the

Because the government never produced the disciplinary hearing records in discovery, [Defendant] cannot be certain that what he obtained through his own efforts included all of the documents pertaining to the administrative proceedings. -8-

government why the records had been withheld. She appeared satisfied that defense counsel now possessed them through his clients efforts. (Id.) After hearing all of [Defendant] concerns about his attorneys performance, [Pre-trial Judge] asked counsel if he felt prepared to defend [Defendant]. (Id.) He again said that he did not. (Tr.1:13, 14). [Pre-trial Judge] nevertheless denied the continuance, citing her belief that [Defendant] request to dismiss his attorney was a delay tactic aimed at prolonging matters so that he could seek to have the case dismissed. (Tr.1:14). She said: It costs taxpayers money to get this case ready, so Im not inclined to grant the continuance. Let me just make the record. (Id.) C. THIRD CO TI UA CE RULI G [Defendant] also requested a continuance to locate and procure the testimony of a critical potential fact witness a former cellmate whose name [Defendant] did not know. (Tr.1:15-19). The government opposed on two grounds. First, the prosecutor said defense counsel had ample time to identify this witness (Tr.1:21). Second, the prosecutor said the altercation was captured on video, and [t]o the extent the cellmate was in the cell, my understanding of the facts is that his view [of the incident] would have been blocked. (Tr.1:16). After taking a brief recess to view the surveillance footage, defense counsel disputed the governments claim that the potential witnesss view of the altercation was obstructed. (Tr.1:20). Counsel said a continuance was needed to investigate further whether [the witness] was able to see what happened. (Id.) [Pre-trial Judge] who did not view the video before ruling denied the continuance, holding that the incident would not have been visible to the potential witness and that [Defendant] proffer regarding the probative value of his testimony was too remote and speculative. (Tr.1:21).

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D. FOURTH CO TI UA CE RULI G [Defendant] also requested a continuance to obtain Department of Corrections policies and training manuals that had been requested in discovery but never produced. (Tr.1:25-26). [Defendant] said the materials would show that agency policies required employees to report inmate threats. (Id.) Accordingly, they were critical to impeaching [Complainant], who proposed to testify that [Defendant] threatened to grab her pussy a month before the assault a threat that was never reported. (Id.) [Pre-trial Judge] ruled against [Defendant], saying again that she believed his continuance request was a delay tactic. (Tr.1:26). However, she did not entirely discount the potential relevance of the withheld documents. In lieu of a continuance she instructed defense counsel to track down the materials during the lunch recess, and she told the prosecutor to assist the defense in getting whatever regulations there are at the jail that he might want to use to crossexamine your witness. (Tr.1:26-27). As discussed below, defense counsel was unable to obtain the materials during the lunch recess, and [Defendant] would unsuccessfully renew his continuance request during the cross-examination of [Complainant] at trial. (Tr.2:47-51). [Defendant] further claimed that prison officials raided his cell and confiscated prison records he gathered to prove he was not housed in [Complainant]s unit when the alleged threat was made. (Tr.1:12, 24-26). [Pre-trial Judge] called the prison and asked an official to check [Defendant] housing records and relay that information to Judge [Trial Judge], who would take judicial notice of what he was told. (Tr.1:26-27). A prison official complied and later called chambers with confirmation of [Defendant] claim: he was not placed in [Complainant]s unit until May 26, 2011 two weeks after she claimed he threatened her. (Tr.2:20).

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[Complainant] would then testify that she did not know when the threat was made but if she had to guess she would say it happened probably about two weeks before the assault not one month before, as she initially contended. (Tr.2:13). [Complainant] also said she was unsure where the threat was made, stating: I think that it was like in the dining area. (Id.) E. RE EWED CO TI UA CE RULI G At trial, [Defendant] renewed his request for a continuance to obtain the Department of Corrections personnel files and training materials. (Tr.2:49). [Pre-trial Judge] had instructed defense counsel to track down the documents over his lunch break and she asked the prosecutor to help him do so. (Tr.1:26-27). Counsel had been unable to obtain the documents, however, and he thus renewed the motion during his cross-examination of [Complainant]. (Tr.2:49). [Complainant] had testified that she did not report [Defendant] threat to grab her pussy because as a female officer, you hear this 50 times a day. (Tr.2:42). Counsel asked her whether agency guidelines nevertheless required the reporting of such threats, and [Complainant] emphatically stated that they did not. No. No, sir. No, sir. There is nowhere in the rulebook that says that. If he threatens to say that he going to kill me or something like that, then its different. (Tr.2:42-43). Counsel then stated that he needed the agency regulations to cross-examine [Complainant]. (Id.) He asked [Trial Judge] to call prison officials, saying that it was his understanding that [Pre-trial Judge] had asked Dr. Brandt to locate the regulations and contact the court, which would then take judicial notice of Dr. Brandts representations regarding the substance of the policies. (Tr.2:43, 48). The government opposed, saying, Mr. [Defense Counsel] has had adequate time to research this. We had a lunch break to look into it. (Tr.2:43)

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[Trial Judge] e-mailed [Pre-trial Judge] to determine what understanding had been reached regarding Dr. Brandts assistance in locating the agency regulations. (Tr.2:48). [Pre-trial Judge] replied that she only asked Dr. Brandt to locate [Defendant] housing records; as for the agency materials, [Pre-trial Judge] said she asked the AUSA to find any regulations or personnel procedures that might require the reporting of incidents. (Id.) Defense counsel protested that the prosecutor had not done that. The prosecutor simply gave defense counsel the phone number of a Department of Corrections lawyer, and he thus did not comply with Judge [Pre-trial Judge]s instruction to help him procure the materials. (Id.). Defense counsel further argued that the forty-five minutes he was given to locate the files was insufficient, and that [Complainant]s testimony about [Defendant] threat which necessitated the materials for cross-examination had only been disclosed one week before trial. (Tr.2:49). [Trial Judge] denied the renewed request, saying he did not think the Department of Corrections files were significant. (Tr.2:50). [Trial Judge] rejected the argument that the materials impeached [Complainant]s credibility, stating: Frankly, I credit without any reason not to believe it, Sergeant [Complainant]s testimony that she gets offensive statements of a sexual nature from inmates 50 times a day and that she makes a decision about whether they are serious or not and about whether to report them. I find that credible. Even if there were some technical violations of Department of Corrections procedures, I dont think that that would be significant to my assessment of her credibility. But I understand that Judge Retcin dealt with requests to postpone the trial. She decided that we should proceed. Thats what we are doing. Does the defense intend to call or present any witnesses? (Tr.2:50-51). The record does not indicate that [Trial Judge] considered, before ruling on the continuance request, whether the prosecutor had complied with Judge [Pre-trial Judge]s order to find any regulations or personnel procedures that might require the reporting of incidents. (Tr.2:48).

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IV.

THE TRIAL As discussed supra, the evidence adduced at trial was minimal. [Complainant] was the

sole government witness.5 Two exhibits were entered into evidence: (1) a surveillance video, which the government said corroborated [Complainant]s account, the defense argued showed no assault, and the court found inconclusive; and (2) an incident report [Complainant] said she filed after the assault.6 A. [COMPLAI A T] TESTIMO Y The record reflects inconsistencies in [Complainant]s testimony. The inconsistencies included variations that emerged within her direct testimony as it developed, and discrepancies between her account on direct testimony and her account on cross-examination. The inconsistencies involved such matters as when during their interaction [Defendant] reached out and grabbed [her] vaginal area, where she and [Defendant] were positioned when he did so, and what occurred in the moments leading up to the assault. Direct: assault occurred as the detail handed him his food tray. [Complainant] first said that she was supervising the distribution of inmates meals and as the detail handed [[Defendant]] his food tray, he reached out and grabbed my vaginal area. (Tr.2:9). Direct: assault occurred as I was talking to him about clothing request. Asked if [Defendant] spoke to her before touching her, [Complainant] clarified that they had a brief conversation before the assault about [Defendant] request for additional underwear, and that the assault occurred during that conversation, not as [Defendant] was being handed a food tray:

[Complainant] testified that she reported the incident to at least four officials. (Tr.2:11, 24, 36, 46-47). None were called as government witnesses.
6

The incident report did not indicate the date and time that it was written or filed. - 13 -

[COMPLAINANT]: He handed me the request slip. I said what is this for? He said that he had needed some underwear and a tee shirt. I said that I just gave you underwear and a tee shirt two weeks ago. But he said, yes, but these are too big. So, I need some more. [AUSA]: Did he make that statement before or after he grabbed your vaginal area? [COMPLAINANT]: As I was talking to him, he reached out and he grabbed me. (Tr.2:9-10). [Complainant] then testified that she hit him with her clipboard, closed his cell door, and walked off the tier off the unit for a supervisor. (Tr.2:11). Cross-examination: assault occurred before [Complainant] closed his door. [Complainant]s testimony included exchanges wherein counsel asked her to describe what was happening as she viewed a monitor playing the surveillance footage. (Tr.2:25-33). Counsel walked [Complainant] through the portion of video that captured the supposed assault and the following exchange ensued: MR. [DEFENSE COUNSEL]: You are engaged in conversation with Mr. [Defendant] and he shows you a white slip; is that correct? [COMPLAINANT]: Thats correct. MR. [DEFENSE COUNSEL]: You are standing close to him and gesticulating with your right hand? [COMPLAINANT]: I am asking him to step back into his cell. MR. [DEFENSE COUNSEL]: Right now, you close the door? [COMPLAINANT]: Thats when he touched me right there and the door is not closed (Tr.2:26-27). [Complainant] testified that after [Defendant] touched her she hit him with her clipboard inside his cell, then exited and closed the door. (Tr.2:24, 32). She did not summon assistance and other officers conducting feeding on the other side of the unit did not rush to her aid. (Tr.2:24-25). She then closed two other cell doors, left the unit, and went directly to the supervisor. (Tr.2:32-33).

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[Complainant] was asked whether the use of corporal of physical violence against a resident is ever permitted and she responded that it depends on the circumstances. It is permitted in self-defense or in the defense of another person, sir, or to save lives, sir. (Tr.2:41). She conceded that using physical violence against a resident is a very serious infraction of personnel rules if an officer is not acting in self-defense. (Id.) B. [DEFE DA T] TESTIMO Y [Defendant] denied [Complainant]s accusation that he threatened to touch her inappropriately one month before the purported assault, saying he was not even in her presence when she says the statement was made. (Tr.2:52). After addressing that issue he testified about the June 7 incident, describing what he observed as the surveillance video played on a monitor. (Tr.2:53-57). He described receiving a food tray and giving it to his cellmate because he was not hungry, and he said that he was standing in his doorway when [Complainant] approached his cell. (Tr.2:54). He said [Complainant] had a hand on his left shoulder as he was talking to her about an underwear request. (Tr.2:55). He said he was trying to keep his cell door open because it was stuffy in there, and that he was stalling and did not really need the underwear. (Id.) He then tried to hold my foot on the door so that I, so that the door would not close, and that [Complainant], who attempted to close the door but could not, then struck him: I am pretty sure I was struck because I tried to stop her from closing the door. When she could not close the door she tried to get me off the door by hitting me with the clipboard and the clipboard flew in my room and it hit my cellmate. (Tr.2:56-57). The prosecutor then cross-examined [Defendant] about past criminal activity and [Defendant] admitted to the following prior convictions: Possession with Intent to Distribute Cocaine in 2007; Possession of Marijuana in 2010; Possession of Marijuana in 2006. (Tr.2:62).

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C. COURTS VERDICT [Trial Judge] found [Defendant] guilty on both counts and based his verdict entirely on a determination that [Complainant] testified credibly and [Defendant] had not. (Tr.2:72). [Trial Judge] stated: As I said, I think that this case comes down to credibility because the videotape is basically consistent with both accounts that I heard I find Sergeant [Complainant] to be a credible witness. I dont give any more or less weight to her testimony because she is a correctional officer There was no evidence at all of any motive that Sergeant [Complainant] would have to make this up I did not find Mr. [Defendant] to be a particularly credible witness. He did confirm and I think that that goes in part more to Sergeant [Complainant]s credibility, he confirmed the conversation about the underwear and that, in fact, he didnt really need underwear. Mr. [Defendant] confirmed that I think what I draw from this is that Mr. [Defendant] was restless. He didnt want to go back in the cell. He just saw an opportunity to humiliate a female correctional officer. I credit Sergeant [Complainant]s testimony about the statement that Mr. [Defendant] made to her two weeks or so earlier. She testified that she could not remember. I think that that time is consistent with the time that, with the amount of time that Mr. [Defendant] testified that he was in the cell. This is just an instance where a male inmate decided to give a female correctional officer to make her life worse. I think that constitutes misdemeanor sexual abuse. It constitutes assault on a correctional officer. So I find Mr. [Defendant] guilty on both counts. (Tr.2:72-74). ARGUME T [Defendant] makes two arguments on appeal: (1) that the lower court failed to conduct an adequate inquiry into his pre-trial ineffective assistance claim; and (2) that the court erred in denying two of his continuance requests. I. LOWER COURT FAILED TO CO DUCT A ADEQUATE I QUIRY I TO DEFE DA TS PRE-TRIAL I EFFECTIVE COU SEL CLAIM [Defendant] raised a pre-trial claim of ineffective counsel, as discussed above. (See supra, pp. 8-9). The court rejected his claim, finding that counsels performance had not been deficient and that [Defendant] allegation may be a delay tactic. (Tr.1:14). [Defendant] first

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argument on appeal is that the courts pre-trial inquiry into his ineffectiveness claim was insufficient and violated his Sixth Amendment rights. A. STA DARD OF REVIEW This Court has held that when a defendant makes a pre-trial claim of ineffective counsel, the trial court has a constitutional duty to conduct an inquiry sufficient to determine the truth and scope of the defendant's allegations. Monroe v. United States, 389 A.2d 811, 820 (D.C. 1978); accord, Farrell v. United States, 391 A.2d 755, 760-762 (D.C. 1978). The requirement of such inquiries into pre-trial ineffectiveness claims now known as Monroe-Farrell inquiries has been reaffirmed on numerous occasions.7 Monroe-Farrell inquiries aim to prevent Sixth Amendment deprivations by determining whether counsel has consulted with the defendant and prepared his case in a proper manner. Monroe, 389 A.2d at 819. 8 This Court has not established the precise form which the requisite inquiry must take, holding instead that substance and scope of the inquiry is committed to the sound discretion of the trial court. Farrell, 391 A.2d at 760. Accordingly, the decision below can be reversed or remanded if this Court finds an abuse of discretion in the form, substance and scope of the [Monroe-Farrell] inquiry. Wingate, 669 A.2d at 1284. B. MO ROE-FARRELL I QUIRIES Determining whether a trial court has abused its discretion in investigating pre-trial ineffectiveness allegations is a case-specific endeavor, as the precise scope of the inquiry

See, e.g., McFadden v. United States, 614 A.2d 11 (D.C.1992); Wingate v. United States, 669 A.2d 1275 (D.C.1995); Mills v. United States, 796 A.2d 26 (D.C. 2002).

The court held that pre-trial allegations of [in]effective assistance at trial due to lack of preparation rise to the level of a claim of a Sixth Amendment deprivation, and that in such situations it is incumbent upon the trial court to determine the validity of the assertions and to take whatever course of action is thereby mandated. Id. at 820. - 17 -

undertaken is necessarily dependent upon the circumstances presented in each individual case. Monroe, 389 A.2d at 820. Certain guidelines have been articulated, however. This Court has held, for instance, that a routine inquiry the asking of several standard questions will be insufficient, Farrell, 391 A.2d at 761-62, and that a proper inquiry must be suitably detailed to allow the court to determine at the time of the defendants complaint the truth and scope of his allegations. Matthews v. United States, 459 A.2d 1063, 1065 (D.C. 1983). On the other hand, a trial court need not attempt to examine every conceivable deficiency in the representation. Forte v. United States, 856 A.2d 567, 574 (D.C. 2004). The trial court must, however, make on-the-record findings sufficient to permit meaningful appellate review on the issue of the ability and preparedness of counsel to render effective assistance under the prevailing circumstances. Fields v. United States, 466 A.2d 822, 824 (D.C. 1983). If the court fails to make adequate findings, the case must be remanded for a proper inquiry or the conviction must be reversed. See Matthews, 459 A.2d at 1065-66. Reversal, rather than remand, is required if there is obvious prejudice or when the trial courts conclusions are unsupported by the pre-trial record. McFadden, 614 A.2d at 18. Courts should also err, if at all, on the side of reversal, rather than remand, in order to provide incentives for thorough pre-trial Monroe-Farrell inquiries and to avoid prolonging appeals. Id. Defendant argues that the Monroe-Farrell hearing in the instant case was insufficient. The lower courts investigation of [Defendant] ineffectiveness allegation was perfunctory. The courts questions were routine and did not explore the substance of his complaints, and its findings were not sufficiently articulated on the record. Moreover, the proper remedy is reversal rather than remand because the courts conclusions were unsupported by the record and

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because obvious prejudice resulted when [Defendant] was forced to go to trial with an attorney who was unprepared to defend him. C. ADDITIO AL FACTUAL BACKGROU D The trial courts Monroe-Farrell inquiry was prompted by defense counsel [Defense Counsel]. [Defense Counsel] informed the court that he and [Defendant] had a significant disagreement, and he asked the court to ask [Defendant] whether he was satisfied with his performance. (Tr.1:7). The following colloquy ensued: THE COURT: Mr. [Defendant], are you satisfied with how Mr. [Defense Counsel] is representing you in this matter? MR. [DEFENDANT]: Sixty/forty. THE COURT: Well, I dont know what that means, sir. MR. [DEFENDANT]: Yeah in some ways; no in some ways. THE COURT: All right. Well, putting it all together, are you asking that he continue as your lawyer? MR. [DEFENDANT]: No. (Id.) [Defendant] then elaborated on his claim, citing the following concerns: Counsels Failure to Consult, Review Discovery with Defendant. [Defendant] first said [Defense Counsel] had not shared discovery materials with him. (Id.)9 The court asked [Defense Counsel] if prosecutors provided discovery and he said they had but that production was incomplete:

As would become clearer as the Monroe-Farrell inquiry progressed, [Defendant] claim that counsel had not reviewed discovery materials with him was intertwined with a related allegation that counsel tasked [Defendant] with obtaining discovery that counsel should have procured. - 19 -

The and package is the right word. There was this whats typically called a package of basic materials. I then filed a Rosser letter requesting more material, additional materials that was filed on September 5. (Tr.1:8). [Defense Counsel] said that he reviewed what the government had given him with [Defendant]. (Id.) [Defendant] denied that assertion, stating: I havent seen a discovery package. (Id.) [Defense Counsel] said he visited his client in jail on six or seven occasions and they reviewed the discovery during some of those meetings. (Id.) [Defendant] disputed that contention, saying [Defense Counsel] came to see me three or four times and told me what possibly may be on some papers. (Tr.1:9). [Defense Counsel] then said his records reflected at least five jail visits; the fourth visit took place a week-and-a-half before trial and the fifth occurred a few days before trial, after the government gave notice of the superseding information. (Id.) The trial judge told [Defense Counsel] she accepted his representation that you reviewed the discovery materials with [[Defendant]] Theres not much difference between his numbers and yours. It was many times that he went to see you at the jail. (Id.) Failure to Procure Critical Evidence. [Defendant] then said that [Defense Counsel] failed to obtain critical discovery materials that [Defendant] instructed him to procure. (Id.) The documents at issue were the records of an internal prison disciplinary hearing that arose out of [Defendant] alleged assault which administrative proceeding resulted in his exoneration. (Id.) [Defendant] said he asked [Defense Counsel] to contact Courtney Tucker, a PDS intern who represented him at the administrative proceeding. (Id.) He said [Defense Counsel] failed to obtain the documents for over a month and that [Defendant] procured them on his own and brought them to court that morning. (Tr.1:10-11). [Defense Counsel] granted that he was unable to retrieve the documents from Tucker, who was no longer with PDS. (Tr.1:11). Tuckers former

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supervisor gave [Defense Counsel] her e-mail address, and he had supposedly been in contact with Tucker but she was unable to put together her own paperwork on that and hadnt done so before trial. (Id.) THE COURT: So Mr. [Defendant] did receive the material he had wanted you to get from Ms. Tucker. Is that correct? MR. [DEFENSE COUNSEL]: Thats correct. And THE COURT: Is that correct, Mr. [Defendant]? MR. [DEFENDANT]: Yes. MR. [DEFENSE COUNSEL]: And gave it to me, Judge. (Id.) The judge was satisfied that counsel had received the materials from his client before trial. Disregarding Clients Instructions. Lastly, [Defendant] said [Defense Counsel] ignored his express instructions regarding whether to seek a continuance. (Tr.1:13). [Defendant] said he told [Defense Counsel] not to seek a continuance when [Defense Counsel] visited him two days earlier to inform him about governments superseding information. (Id.) [Defendant] thought the court would deny the governments request to file a morning-of-the-trial amendment, and he did not want to seek a continuance because just in case they werent ready, then I wouldnt be able to seek for a dismissal in the case. (Id.) [Defendant] was late to the hearing, however, and he said [Defense Counsel] went behind my I mean, against my advisement to not seek for it (Id.) The judge said [Defendant] complaint was moot because [Defense Counsel] had not officially moved for a continuance at that point; he only said he might be asking for a continuance. (Id.)10

10

The record is unclear as to whether [Defense Counsel] had, in fact, requested a continuance. He waived [Defendant] presence at the outset of the hearing. Then, after the government said - 21 -

* The trial judge then confirmed that [Defendant] had no other complaints and the following colloquy with [Defense Counsel] ensued: THE COURT: All right. Mr. [Defense Counsel], do you feel prepared to defend Mr. [Defendant] in this case? MR. [DEFENSE COUNSEL]: Your Honor, no, I dont. THE COURT: Why is that? MR. [DEFENSE COUNSEL]: Because the well, I need to talk to my THE COURT: Is it because you have hard feelings? I mean, youre such an able lawyerMR. [DEFENSE COUNSEL]: Thank you, Judge. THE COURT: -- so Im trying to find out if you believe you can fully represent him. Or is there something some problem. MR. [DEFENSE COUNSEL]: I understand. And I do believe I can, Judge, frankly. Its just that I have Im queasy. And this is for the Courts determination. Im queasy if Mr. [Defendant] really doesnt want me. I mean, the Court may feel its not his decision, but thats my only thats my queasiness. THE COURT: It largely is not his decision when the case is ready for trial. I dont want this to be a delay tactic. MR. [DEFENSE COUNSEL]: I understand. THE COURT: As he just said, he knows that you can move for a dismissal if the next time the case is ready. The case is ready now. It costs the taxpayers money to get this case ready. So Im not inclined to grant a continuance. Let me just make the record. (Tr.1:13-15).

that they were filing a superseding information, he stated: I havent had an opportunity to speak with my client about the change. Im not quite sure what my defense would be in the new situation. I have let me leave it like that. So I would be moving for a continuance, Your Honor. [Defense Counsel] then requested a brief recess, and [Defendant] arrived when the proceedings resumed. (Tr.1:3). - 22 -

The trial judge then inquired on the record whether counsel had received discovery (counsel said he had), and how many time he visited [Defendant] in jail (counsel said six). (Tr.1:15). The judge then asked whether counsel was prepared to examine the witnesses and raise defenses. (Id.) [Defense Counsel] raised one final issue. He said that when he visited [Defendant] after receiving notice of the morning-of-the-trial superseding indictment, [Defendant] told him that a cellmate likely witnessed the assault, and counsel requested time to locate and procure the testimony of that fact witness. (Id.) The court rejected a request for a continuance to allow defendant to locate the witness, holding that the proffer regarding the probative value of the cellmates testimony was too remote and speculative. (Tr.1:21). D. ARGUME T 1. The Trial Courts Ineffectiveness Inquiry Was Perfunctory and Insufficient

A proper Monroe-Farrell inquiry must involve more than a perfunctory inquiry about trial counsel's preparation and his or her communication with the defendant. Mills, 796 A.2d at 29, 29. The inquiry in the instant case was exactly that, perfunctory. [Defendant] raised serious claims that counsel had not diligently investigated the case, but the courts inquiry consisted of standard questions that did not adequately probe the truth and scope of his allegations regarding the seriousness of counsels discovery failures. Matthews, 459 A.2d at 1063. The trial courts routine, token inquiry [left the] judge entirely unaware of the facts essential to an informed decision as to defense counsel's preparedness for trial. Farrell, 391 A.2d at 761-62 Cursory treatment was given to [Defendant] allegation that [Defense Counsel] failed to diligently engage in pretrial discovery. [Defendant] specifically cited [Defense Counsel]s failure to obtain the records of the prison disciplinary hearing from Tucker, who represented [Defendant] in the administrative proceeding. However, the court was satisfied that even if

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[Defense Counsel] had not been diligent in getting the materials from Tucker, the defense would not be prejudiced going forward because the incarcerated defendant had obtained documents from the hearing on his own initiative, brought them to court on the day of the trial, and turned them over to [Defense Counsel]. (Tr.1:11). It was only through the efforts of his client that [Defense Counsel] came to possess, on the morning of trial, the records that counsel failed to secure from the law student who handled his clients case in the disciplinary hearing. (Id.) That apparently satisfied the trial judge. What mattered to the court is that [Defense Counsel] now had the materials and had received them before the trial began. The judge did not inquire whether the documents [Defendant] managed to obtain comprised everything that could have been provided. She did not consider whether there was other material, exculpatory evidence that Tucker, the Department of Corrections, or the government might have provided if [Defense Counsel] was more aggressive in pursuing agency files from those sources, rather than relying on his incarcerated client to dig up what he could from the inside of a prison cell. And it is likely that the materials [Defendant] was able to procure did not include everything that might have otherwise been produced by prosecutors or the Department of Corrections.11 The trial judge was satisfied that [Defendant] obtained materials from the hearing on his own and that his counsel now had them and could review them before trial commenced. The

D.C. regulations governing correctional facilities entitle residents to receive a copy of the written decision in their disciplinary proceedings. 28 DCMR 512.10. However, much more paperwork is produced during such hearings, including a disciplinary report filed by the accusing officer, a follow-up investigative report drafted by a Shift Supervisor, and [a]ny other reports memoranda or records concerning the offence that might have been submitted or attached to the investigative report. 28 DCMR 506.1, 506.3, 506.5, 506.6.

11

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judge did not consider whether the brief recess between the pre-trial hearing and the commencement of the trial was sufficient to make use of the materials. She did not consider whether the unproduced Department of Corrections materials had value that could only be extracted if they were produced some time before trial that is to say, whether they may have pointed defense counsel to potential witnesses for the defense or other weaknesses in the governments case that could not be identified or exploited in the short time that he had to review the file. The trial judge did not consider whether [Defense Counsel] had been negligent in failing to independently procure those materials, or whether his failure to obtain this critical evidence was indicative of a broader lack of diligence that may have led him to overlook other important discovery. The trial judge did not ask why, after more than a month of stonewalling by the government (the Rosser letter was filed on September 5, 2011), counsel made no attempt to follow up on the prosecutions failure to produce the requested discovery by renewing the request, or by pressing the matter with the court through a motion to compel production. Nor did the trial judge explore whether the governments failure to respond to the legitimate request for documents constituted a breach of the its discovery obligations under Brady, Super. Ct. Crim. Rule 16, or other relevant authority.12 While the scope of a Monroe-Farrell inquiry depends upon the circumstances in each case, this Court has identified criteria for determining whether counsels preparation falls within the range of competence required in a criminal case. Wingate, 669 A.2d at 1289. One such yardstick is whether counsel conducted both a factual and legal investigation sufficiently in advance to permit reflection and to determine if matters of defense could be developed. Id.
12

The pretrial transcript reflects no attempt whatsoever by the court to ask the government whether they had complied with discovery requests and their Brady obligations. - 25 -

Counsel in the instant case did not conduct a thorough factual and legal investigation at all to say nothing of conducting such an investigation sufficiently in advance of trial to permit reflection and to determine if matters of defense could be developed. This Court should thus reverse the lower courts conviction. Outright reversal rather than remand is the proper remedy because trial courts conclusions in finding [Defense Counsel]s performance adequate were unsupported by the record, and because [Defendant] suffered obvious prejudice when he was forced to go to trial after the trial courts determination. McFadden, 614 A.2d at 18. 2. The Trial Courts Conclusions Were Unsupported by the Record

There are striking similarities between the facts of the instant case and McFadden, a case in which this Court found that a trial courts pre-trial ineffectiveness inquiry was inadequate and that the courts conclusions were unsupported by the record. Id. at 16. Like [Defense Counsel], the attorney in McFadden repeatedly admitted that he was unprepared for trial. Id. Moreover, the attorney in McFadden cited many of the same issues that [Defense Counsel] raised in explaining why he was unprepared to defend the case: Counsel explained that said he ha[d] not spent enough time talking to his client that there were witnesses he had not identified and that he did not know what defenses he would raise nor what he would tell the jury at the end of the trial. He also referred to tactical decisions that had yet to be made. Id. at 14, 16. The court also found that the defendant in McFadden like [Defendant] was the source of some of his counsels difficulty in resolving evidentiary and tactical issues. Id. at 16. The McFadden court specifically noted that counsels failure to locate the witnesses in time for trial could largely be blamed on the defendants failure to fulfill his responsibility to cooperate with counsel is identifying witnesses. Id. at 15. And the defense counsel in McFadden responded to that admonition by noting that his clients unhelpfulness in this regard was largely

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attributable to the fact that he, like [Defendant], was incarcerated: [S]ome of the witnesses are not really well-known to [the defendant]. And, of course, the defendant being locked up, there is difficulty in locating them. Id. The instant case and McFadden are also similar in that both lower courts agreed to a brief postponement one day in McFadden, forty-five minutes in this case that was wholly inadequate to allow the defendants respective attorneys to prepare for trial. Id. The attorney in McFadden was also eventually coaxed into dropping his repeated protestations that he was unprepared, stating that he could probably be ready if forced to go to trial much in the same way that [Defense Counsel] eventually conceded that he was prepared. Id. Lastly, McFadden is on point because the lower court there failed to revisit counsels pretrial claim that he was unprepared when the case went to trial the next day much in the same way that [Trial Judge] dismissed [Defense Counsel]s renewed request for a continuance by stating that [Pre-trial Judge] dealt with requests to postpone the trial. She decided that we should proceed. Thats what we are doing. (Tr.2:50-51). The reasoning of the McFadden court thus applies with equal force to the facts of the instant case: Counsel told the judge that if forced to go to trial, he could probably be ready by the following day. Yet, when the trial began the following day, the judge made no further inquiries of either trial counsel or appellant regarding their readiness to proceed to trial. In view of trial counsel's own admissions of unpreparedness, the trial judge's preliminary conclusion made without further inquiry that appellant, and not his trial counsel, was responsible for not having identified witnesses or fully prepared a defense is unsupported by the record. Id. at 16.

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Further evidence that the lower courts conclusions were not supported by the record is found in the trial judges lack of an explanation of the basis of her determination that counsels pre-trial performance was adequate. The trial judge did not probe the substance of [Defendant] main claim of ineffectiveness, alleging that [Defense Counsel] had exerted little effort in obtaining discovery. Nor did the judge elaborate on the record why she believed [Defense Counsel] had performed his investigative duties adequately. Instead, she appeared to find that he had performed adequately on the basis of his prior trial performances. (Tr.1:14). [Defense Counsel] repeatedly stated that he was unprepared to go to trial, and the trial judge repeatedly prodded him to explain why. Counsel stated several reasons (e.g., the governments belated filing of a superseding indictment charging a new crime that he had not fully discussed with his client and was not sure how to defend; the unproduced government discovery; the potential unidentified witness). The trial judge dismissed all these concerns and pressed him again to explain why he felt unprepared, asking: Is it because you have hard feelings? I mean, youre such an able lawyer. (Tr.1:14). As this Court has stated, assumptions that a lawyer has performed adequately in a particular case should not be based on past observations: Although the trial court's confidence in defense counsel's preparation to represent Mr. Mills in this matter may be understandable in light of the court's observation of his past representation of Mr. Mills, we have said previously that it is improper for a trial court to assume proper preparation by defense counsel. Mills, 796 A.2d at 31. See also Monroe, 389 A.2d at 822 ([The] view that since counsel was a generally competent attorney, he ipso facto was able to render adequate assistance to appellant in this case [is] an improper basis on which to predicate such a conclusion.) (emphasis in original).

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3.

Obvious Prejudice Resulted From Inadequate Ineffectiveness Inquiry

The obvious prejudice that accrued to [Defendant] when he was forced to go to trial, despite his claim of pre-trial ineffectiveness, is another reason that the proper remedy in the instant case is reversal, rather than remand. See McFadden, 614 A.2d at 18. In determining whether a defendant was prejudiced by an inadequate ineffecitiveness inquiry, counsels actual performance at trial will constitute circumstantial evidence on the issue of whether she was adequately prepared before trial. Nelson v. United States, 601 A.2d 582, 592 (D.C.1991). [Defense Counsel]s trial performance in the instant case provides strong circumstantial evidence that he was not adequately prepared before trial. Counsels failure to impeach the credibility of [Complainant] whose testimony the trial court based its verdict on was directly attributable to the discovery failures that [Defendant] complained of in his pre-trial hearing. As discussed at length supra, the governments violation of its discovery obligations which breaches were uncured because defense counsel failed to press for court-ordered enforcement deprived [Defendant] of critical evidence that would have impeached [Complainant]s credibility. (See supra, pp. 8-12). * The Sixth Amendment right to effective counsel encompasses an attorneys performance in pre-trial discovery because adequate preparation by, and consultation with, counsel often may be a more important element in effective assistance of counsel to which a defendant is entitled than the forensic skill exhibited in the courtroom. Mills, 796 A.2d at 31. For all of the above reasons, [Defendant] did not receive the pre-trial representation that he was constitutionally entitled to, and the lower courts failure to ensure that he did is an error that demands reversal.

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II.

THE LOWER COURT ERRED I REQUESTS

DE YI G [DEFE DA T] CO TI UA CE

[Defendant] made four continuance requests during his pre-trial hearing, one of which he renewed at trial. (See supra, pp. 7-12). [Defendant] raised several valid grounds in these requests, including the inadequate notice of his charges that he received as a result of the governments belated filing of a superseding information, discovery holes created by government Brady violations and belated disclosures, and a desire to locate a potentially critical witness. (Id.) [Defendant] second argument on appeal assigns error to the trial courts denials of two of his continuance requests. He contends that the courts rulings constituted abuses of discretion that prejudiced his defense and violated his Sixth Amendment rights. A. STA DARD OF REVIEW The denial of a request for a continuance is generally reviewable only for abuse of discretion. OConnor v. United States, 399 A.2d 21, 28 (D.C. 1979). In some instances, however, the denial of a continuance can be deemed so arbitrary as to violate due process under the Fifth Amendment, so closer scrutiny will be required than is typically applied to matters reviewed for an abuse of discretion. Id. This Court has not set forth any mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. Id. at 31. Whether an erroneous continuance ruling rises to the level of constitutional violation will instead depend on the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Id. Accordingly, this Court has admonished trial courts to weigh continuance requests carefully. Id. The potential constitutional implications of erroneous denials demand such

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scrutiny. Id. Close scrutiny is also required because this Court has set forth precise criteria for weighing continuance requests in certain contexts, which guidelines will often demand the careful balancing of competing interests and several factors. Id. at 31-32. B. ARGUME T 1. Continuance Rulings at Issue

Defendant challenges two of the lower courts rulings on appeal. The first ruling responded to a continuance motion that [Defendant] made after the governments filed a morning-of-the-trial superseding information adding Count II, alleging Misdemeanor Sexual Abuse, to his Complaint. (See supra, pp. 5, 7). Defense counsel argued that the belated amendment which was not based on newly discovered evidence and came four months after [Defendant] was initially charged had left him unprepared to face the new charge, which he had not adequately discussed with his client. (Id.) The second continuance request raised on appeal cited a need for additional time to procure discovery materials that [Defendant] attorney deemed critical to disproving an element of the belatedly-charged offense. (See supra, pp. 9-12). 2. Continuance Rulings Constituted Abuses of the Courts Discretion

The trial court abused its discretion in denying the above-enumerated continuance requests. A continuance should be granted upon a showing that it is reasonably necessary to a just determination of the cause, OConnor, 399 A.2d at 28. Such a showing requires, at a minimum, some showing of prejudice in the absence of a continuance. Kyle v. United States, 759 A.2d 192, 196 n.2 (D.C. 2000). [Defendant] showed in the instant case that a continuance was reasonably necessary to the just determination of his case, and he showed that denying his request would prejudice his case.

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Defense counsel expressly told the court that his first continuance request was required because he had not discussed the new charge with his client and was unsure what his defense to it would be. (Tr.1:2-3). The governments belated amendment, and the courts continuance denial, precluded defense counsel from gearing his pre-trial efforts towards the defense of a sexual assault crime that includes a specific intent element not present in the simple assault offense initially charged. [Defendant] also made a showing that a continuance was required to allow him to obtain the withheld government discovery that his attorney deemed critical to defeating the belatedlynoticed sexual assault allegation. The courts ruling precluded [Defendant] from obtaining the Department of Corrections personnel files and training manuals required to impeach [Complainant], whose testimony was used to prove a critical element of the belatedly-noticed sexual assault charge. (See supra, pp. 7, 9-12). The lower courts rulings prejudiced [Defendant] defense by forcing him go to trial without allowing his attorney to investigate the newly-charged allegation or obtain the withheld discovery needed to impeach [Complainant]. (Tr.2:64). Accordingly, this Court should find that the trial court abused its discretion in failing to postpone [Defendant] proceedings. 3. Continuance Rulings Impinged on [Defendant] Sixth Amendment Rights

This Court should also find that the trial judges rulings impinged on [Defendant] Sixth Amendment rights. By forcing [Defendant] to go to trial without allowing his lawyer to devise a defense strategy or obtain needed discovery, the lower court denied him the effective assistance of counsel. As this Court has noted: The duty of the court to assure that the accused's right to counsel is protected is not discharged by an assignment [of counsel] at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case. Thus, the trial judge may not insist on such expeditiousness that counsel for the defendant lacks a

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reasonable time to prepare for trial; stripping away the opportunity to prepare for trial is tantamount to denying altogether the assistance of counsel for the defense. Yancey v. United States, 755 A.2d 421, 427 (D.C. 2000) (citing Powell v. Alabama, 287 U.S. 45, 71 (1932)). The lower courts perfunctory inquiry into [Defendant] pre-trial ineffective counsel claim violated his Sixth Amendment rights, and the courts rejection of his numerous valid continuance requests were abuses of discretion that also violated his constitutional rights. The trial court failed to heed the Court of Appeals admonition to carefully consider continuance requests and to closely listen to the grounds proffered in support of those requests. Some of the lower courts continuance rulings were more egregious than others because they more clearly implicated [Defendant] constitutional rights. But a common feature of all the continuance rulings is that they were made cursorily. In each case the demands of the criminal docket appeared to be the trial courts overriding concern. Yancey, 755 A.2d at 428.13 CO CLUSIO For all these reasons, Appellants convictions should be reversed.

Both [Pre-trial Judge] and [Trial Judge] seemed eager to expedite the proceedings and reluctant to postpone them under any circumstances. In dismissing Defendants continuance requests during the pre-trial hearing, [Pre-trial Judge] stated, The case is ready now. It costs the taxpayers money to get this case ready. So Im not inclined to grant a continuance. Let me just make the record. (Tr.1:15) (emphasis added). And in denying Defendants renewed continuance request at trial, [Trial Judge] stated, I understand that [Pre-trial Judge] dealt with requests to postpone the trial. She decided that we should proceed. Thats what we are doing. (Tr.2:51). - 33 -

13