1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The court set this case for trial today despite defense counsel Carol Defender’s wellgrounded motion

for continuance. Through no fault of her own, Ms. Defender cannot be sufficiently prepared for trial to fulfill her ethical duty of competent representation, RPC 1.1, and her constitutional duty of effective assistance of counsel. U.S. Const. amend. VI; Wash. Const. art. 1, § 22. Ms. Defender carries a crushing caseload and has been in trial literally almost every week for the past three months. She has shown exceptional diligence in working long hours of overtime in the attempt to keep up with an impossible workload. This case involves a multiplicity of factual and legal issues and requires extensive investigation and intensive expert witness interviews and preparation. Due to simple lack of time resulting from an overwhelming STATE OF WASHINGTON Plaintiff, vs. AAAA XXXXXXXX, Defendant. Case No: 02-1-00721-1 MEMORANDUM OPPOSING CONTEMPT FINDING SUPERIOR COURT OF WASHINGTON FOR XXXXXXX COUNTY

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workload, Ms. Defender has been literally unable to prepare this case for trial as her ethical duty and the Sixth Amendment require. The court therefore cannot hold her in contempt. With exceptions not relevant here, “contempt of court” occurs only on intentional “[d]isobedience of any lawful judgment, decree, order, or process of the court.” RCW 7.21.010(1)(b) (emphasis added). It cannot be lawful to require defense counsel to proceed to trial when she is unable, through no fault of her own, to fulfill her ethical and constitutional duties. The Sixth Amendment right to effective assistance of counsel means “the lawyer not only possesses adequate skill and knowledge, but also that he has the time and resources to apply his skill and knowledge to the task of defending each of his individual clients.” State v. Peart, 621 So. 2d 780, 789 (La. 1993). Therefore, “where defense counsel places the trial court on notice that continued representation places counsel in an ethical dilemma, and counsel raises issues of his client’s constitutional rights, the court must conduct a careful and in-depth review into all the facts and circumstances.” State v. Williams, 704 N.E.2d 12, 14 (Ohio Ct. App. 1997). When the record demonstrates that defense counsel declines to proceed with trial because he or she is unable to provide effective assistance through no fault of his or her own, a trial court abuses its discretion by holding counsel in contempt. The record demonstrates Ms. Defender has “not been lacking in diligence in preparing” her cases and she cannot “give constitutionally adequate representation” to her client because, among other issues, she has been “unable to interview” key expert witnesses. Hughes v. Superior Court, 164 Cal. Rptr. 721, 722 (Ct. App. 1980). In these circumstances, a court abuses its discretion in holding counsel in contempt: Clearly petitioner's client was entitled to effective assistance of counsel, one aspect of which is the investigation and presentation of crucial defenses. To force an unprepared counsel to proceed to trial regardless of the reasons for the lack of preparedness would result in a violation of constitutional rights. "(I)t is a denial of the accused's constitutional right to a fair trial to force him to trial with such expedition as to deprive him of the effective aid and assistance of counsel." If

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counsel had obeyed the court's order to proceed, his compliance would have denied his client a fair trial.

Id. at 722-23 (citations omitted). Ms. Defender has demonstrated “sufficient reason” for refusing to proceed with trial: “protection of [her] client’s constitutional right to adequate representation at trial” and therefore cannot be in contempt. Id. at 723 (reversing contempt finding). To order Ms. Defender to trial would require her “to violate her professional obligation” to her client “both under the state and federal Constitutions” and the Rules of Professional Conduct. In re Sherlock, 525 N.E.2d 512, 519 (Ohio Ct. App. 1987). The court cannot require Ms. Defender “to violate her duty to her client as the price of avoiding punishment for contempt.” Id. at 521. “Given the glut of cases public defenders are expected to handle,” and the specific record here, where Ms. Defender has been in trial constantly for the last three months, “it is reasonable to conclude” she has had “too little time” to “investigate the case and prepare for trial.” Id. at 519. As a result, Ms. Defender, “through no fault of her own” is “incapable of rendering effective assistance of counsel” and cannot be held in contempt. Id. (reversing contempt finding against public defender unable to proceed to trial due to lack of time to prepare). The court cannot hold Ms. Defender in contempt where she is “unable to comply” with an order to go to trial without violating her ethical and constitutional duties. Rainier Nat’l Bank v. McCracken, 26 Wn. App. 498, 511 (1980). An attorney “should not stand in danger of imprisonment for asserting respectfully what he considers to be lawful rights,” and at the least is entitled to “an opportunity for review by an appellate court” before contempt is imposed. Dike v. Dike, 75 Wn.2d 1, 16 (1968). Cf. Seventh Elect Church v. Rogers, 102 Wn.2d 527, 536 (1984) (“When an attorney makes a claim of privilege in good faith, the proper course is for the trial court to stay all sanctions for contempt pending appellate review of the issue.”).

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In any case, the court cannot require Mr. XXXXXXXX to proceed to trial without counsel. “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have.” United States v. Cronic, 466 U.S. 648, 654 (1984). “The right to counsel guaranteed by the Constitution . . . means more than just the opportunity to be physically accompanied by a person privileged to practice law.” Frazer v. United States, 18 F.3d 778 (9th Cir. 1994). Once counsel is appointed, a defendant cannot be “left to fend for himself, without representation by counsel,” in the midst of criminal proceedings. United States v. Gonzalez, 113 F.3d 1026, 1029 (9th Cir. 1997). To terminate representation during trial amounts to a “complete denial of counsel,” a per se violation of the Sixth Amendment. Cronic, 466 U.S. at 659. For these reasons, the court cannot hold Ms. Defender in contempt and must allow a continuance of sufficient time to enable her to render effective assistance of counsel. Dated this 1st day of March 2004 CENTER FOR JUSTICE By: David Blair-Loy WSBA #27831

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