High Court Limits Choice of Attorney in S.D. Case

Acting in the case of a convicted Escondido marijuana trafficker who was not allowed to hire a high-profile San Diego defense attorney, a sharply divided U.S. Supreme Court ruled Monday that federal trial judges can deny a defendant the lawyer of his choice if there is a potential conflict of interest.

The decision Monday affirms the 1985 conviction in U.S. District Court in San Diego of Mark Wheat. Wheat, also known as Mark Chum, was found guilty of receiving and storing more than 20,000 pounds of Mexican marijuana at his Escondido home over a three-year period for local distribution and sale.

Wheat had appealed the conviction on the grounds that U.S. District Judge J. Lawrence Irving unfairly ruled that he could not hire attorney Eugene Iredale to assist David Semco in his criminal defense.

Irving, acting on motions by the U.S. attorney’s office, said that, since Iredale already was representing two other people in the 23-defendant case, and, since Iredale’s clients might testify against Wheat, conflict could arise if Iredale represented Wheat as well.

Conviction Upheld

The 9th Circuit Court of Appeals upheld Wheat’s conviction despite his appeal. In its 5-4 decision, the Supreme Court on Monday also supported Irving’s decision to keep Iredale off Wheat’s case.

Assistant U.S. Atty. Mike Lasater said Monday that he would make court motions to have Wheat’s $250,000 bail revoked. Wheat had been sentenced to 10 years in federal prison, put on five years’ probation and fined $125,000, but has been free on bail pending a decision on the appeal, which took 2 years.

Attorney John Cleary, who took Wheat’s appeal to the Supreme Court, said he would talk with his client about the possibility of petitioning for a rehearing. He said, however, that he holds little hope for another hearing.

Iredale characterized the Supreme Court ruling as “a disservice to our Constitution.”

“Not only are prosecutors free to determine which charges they file, and when to file those charges, but, under this decision, they will be permitted to dictate an accused’s choice of counsel,” Iredale said. “This opinion opens the way for manipulation and abuse of power by prosecutors who can seek now to deprive an accused not only of his liberty but of his right to chosen counsel.”

Cleary had argued that the mere possibility of a conflict of interest for a defense lawyer is not enough reason to veto a defendant’s choice of lawyers, especially when the defendant is willing to waive any right to conflict-free representation. Wheat had made that waiver, and Iredale’s two other clients also said they did not object to him representing Wheat.

But writing for the court majority, Chief Justice William H. Rehnquist said a defendant’s waiver cannot cure possible damage to the court’s image caused when a lawyer is allowed to represent more than one defendant in the same criminal case.

“Federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them,” Rehnquist said.

“Not only the interest of a criminal defendant but the institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by unregulated multiple representation,” he said.

Rehnquist said trial judges “must recognize a presumption in favor of a counsel of choice,” but he said that presumption “may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.”

Votes to Overturn

Rehnquist was joined by Justices Byron R. White, Sandra Day O’Connor, Antonin Scalia and Anthony M. Kennedy.

Justices Thurgood Marshall, William J. Brennan, John Paul Stevens and Harry A. Blackmun voted to overturn Wheat’s conviction.

Writing for himself and Brennan, Marshall said: “I believe that the potential for a conflict of interest in this case did not overcome (Wheat’s) right to choose his own counsel.”

Writing for himself and Blackmun, Stevens said Wheat should have been allowed “additional counsel of his choice” because he still would have had legal representation if an actual conflict developed.

“In this case, it is abundantly clear to me that the district judge abused his discretion and deprived (Wheat) of a constitutional right of such fundamental character that reversal is required,” Stevens said.

Rule in Favor of Judge

Cleary said of the majority opinion:

“The court didn’t so much rule in favor of the government or the defense as it did in favor of the district court judge. It’s now a matter almost left up to the practically unreviewable discretion of the trial court judge.”

The ruling, Cleary said, “turned on the right of the judge to protect the image of the system from criticism of ethical abuses, and left it up to the judge to monitor that.”

“Unfortunately, it subordinates the right of the litigant to pick his own attorney,” he said. “It seems they’ve put the cart before the horse. It allows super-qualified defense attorneys to be kicked off cases on the grounds that it is in the best interest of the system.

“We’re protecting your right to counsel by allowing the judge to say you can’t have the attorney of your choice. It’s sort of like mother knows best,” Cleary said.

Of the two other defendants represented by Iredale, Juvenal Gomez-Barajas was acquitted of the drug conspiracy charges while Javier Bravo first pleaded guilty to conspiracy in exchange for a prosecution recommendation that he be placed on probation and no more than 30 days in jail.

But, after Iredale told Irving that he planned to represent Wheat when his case went to trial a few days later, prosecutors told Bravo that, if he testified against Wheat, the government would drop its recommendation of jail time and recommend straight probation instead.

Bravo accepted the new agreement and eventually testified at Wheat’s trial, but still there was no conflict, Iredale maintained, because Bravo offered no evidence that harmed Wheat’s case.