IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 5, 2010
UNITED STATES OF AMERICA, PLAINTIFF,
AUDREY RENEE BELL, DEFENDANT.
The opinion of the court was delivered by: Judge: Hon. Lawrence K. Karlton
MOTION AND ORDER TO REMOVE THE FEDERAL DEFENDER AS COUNSEL, AUTHORIZING THE APPOINTMENT OF CJA COUNSEL, AND CONTINUING OR MODIFYING PURPOSE OF HEARING
Date: February 9, 2010
AUDREY BELL, by her current attorneys, the Office of the Federal Defender, and Assistant Federal Defender Jeffrey L. Staniels, hereby moves for orders removing the Federal Defender as counsel due to an actual conflict of interest that precludes counsel from further representation, authorizing the Federal Defender to arrange for a replacement attorney from the CJA Panel, and modifying the purpose of the hearing scheduled for February 9, 2010, so as to vacate and continue sentencing, but to resolve the question of status of counsel for Ms. Bell.
In support of the motion the court is advised that undersigned counsel has conferred with Ms. Bell since the last scheduled appearance on January 26, 2010. In doing so it quickly became apparent that Ms. Bell was extremely distressed about the representation provided during the course of the jury trial and of advice given which resulted in her change of plea during the trial.
Dealing with that development requires review and advice regarding the effectiveness of undersigned counsel's own representation. Therefore, this office can neither ignore the resulting situation nor advise her how to proceed, including whether to seek to withdraw her guilty plea. Under federal rule of criminal procedure 11(d) the standard against which such a motion is judged changes drastically to a defendant's detriment once sentence is imposed. For this reason also, the Office of the Federal Defender cannot represent Ms. Bell at sentencing. Counsel has advised Ms. Bell of these matters by letter.
This situation results in an actual conflict of interest that this office cannot resolve. For that reason, and acting on Ms. Bell's demand following receipt of the letter just mentioned, the Office of the Federal Defender must declares the existence of an actual and disabling conflict of interest and asks the court to remove us as counsel.
Ms. Bell has not intimated in the least that she desires to represent herself rather than be represented by counsel. On that basis, this motion seeks authority to arrange for conflict-free CJA counsel to assume representation. The court is advised that Joseph Wiseman has agreed to accept an appointment. His schedule requires him to be in Southern California the week of February 9, 2010,so he cannot be present on February 9, 2010. He already has a matter scheduled before the court for February 17, 2010, and could appear on that date to personally accept appointment.
It is apparent from the course of proceedings that new counsel must have some time to confer with Ms. Bell and to become familiar with the situation now presented. For that reason, the court is requested to vacate the appearance scheduled for February 9, 2010, and recalendar it for February 17, 2010. (The court is advised that the government opposes this alternative.) Alternatively, the court is requested to limit the scope of Tuesday's appearance to resolving the issue of the status of counsel, and to continue the case with regard to the status of judgment and sentencing until March 16, 2010, or to such other date as the court may set.
Dated: February 5, 2010
Daniel J. Broderick Federal Defender JEFFREY L. STANIELS Assistant Federal Defender Attorney for Defendant AUDREY RENEE BELL
Based on the foregoing motion, the hearing scheduled for February 9, 2010, is vacated and the matter is continued to February 17, 2010, at 9:15 a.m. All parties, including Ms. Bell, are ordered to personally appear at that time. The Federal Defender is directed to arrange for conflict-free CJA counsel to appear to accept appointment if so ordered by the court.
IT IS SO ORDERED.
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