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The fate of public defender Andrea Konow — who was jailed for contempt for several hours on Tuesday for refusing to continue representing a murder defendant after he punched her co-counsel in open court Monday — is now in the hands of Pennsylvania Supreme Court Justice Sandra Schultz Newman. Newman, who is handling the emergency appeal of Philadelphia Common Pleas Judge Jane Cutler Greenspan’s contempt order, is expected to rule as early as this morning on whether to allow Konow to withdraw from the case. In the petition, Konow says she cannot continue to represent Malik El-Shabazz, 20, who is on trial for the rape and murder of a 6-year-old girl, because she does not “feel safe” in his presence and therefore cannot be a zealous advocate. But prosecutors argued in a response brief that Konow’s claim of fear is fabricated and that Greenspan has concluded that she is capable of continuing since El-Shabazz will be in handcuffs and shackled. “Many criminal defendants are violent; that is the nature of the work. If that realization is sufficient basis for a defense attorney to abandon her client midstream, we will have many more aborted trials in Pennsylvania,” the District Attorney’s Office said in its Supreme Court brief. On Tuesday morning, Greenspan had allowed Konow’s co-counsel, Fred R. Goodman — who was punched in the face by El-Shabazz in full view of the jury Monday — to withdraw from the case. But when Konow refused to continue the trial, Greenspan held her in contempt and Konow was jailed for several hours Tuesday. Konow was released Tuesday afternoon when Superior Court Judge Richard B. Klein issued a stay. But Klein said in his order that the stay would expire Wednesday morning and that he was releasing Konow overnight only so that she could either prepare to resume the trial or seek review before the Supreme Court. If Newman denies Konow’s petition, she could be sent back to jail this morning. But lawyers at the Defender Association of Philadelphia have said they will then ask the full Supreme Court to take the issue up. In the meantime, the jury hearing the case was sequestered for a second night. In a contentious hearing Wednesday morning, it appeared that Greenspan was poised to send Konow back to jail if she refused to continue representing El-Shabazz. Greenspan also suggested that she was considering whether to order Goodman to resume his work in the trial. If Goodman, too, refused to continue the case, he also could be sent to jail. But in the midst of the hearing, Konow’s lawyer, Bradley S. Bridge of the Defender Association, informed Greenspan that the Pennsylvania Supreme Court had issued a stay in the case. News of the stay appeared to anger Deputy District Attorney Ronald Eisenberg, who said he had received Bridge’s petition just minutes before the hearing and had not yet filed any response. The Supreme Court’s prothonotary’s office later said the stay was a temporary one in place only until Newman had received a response from the prosecutors and issued a ruling on the merits of the petition. Before the stay was issued, Greenspan made it clear that she still considered Konow to be in contempt of court. Greenspan said she also considered Konow’s refusal to continue to be a violation of several of the Pennsylvania Rules of Professional Conduct. Specifically, Greenspan said, Rule 1.16(c), says: “When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. Assistant District Attorney Jodi Lobel, in a fiery 10-minute argument, said she considered Konow’s claims of fear to be “laughable” since she was already defending a man accused of the rape and murder of a child. Lobel also argued that the defense lawyers were sandbagging the judge by leading her to believe that Konow would continue the trial when seeking Goodman’s withdrawal and then surprising the judge with the news that Konow, too, wanted out of the case. The tactic, Lobel said, seemed to be designed to secure a mistrial and also seemed to be based on the language of an Ohio Supreme Court decision that allowed two lawyers to withdraw midtrial after one was punched by a criminal defendant. But Lobel said the defense lawyers had changed their tune overnight. Immediately after the punch was thrown, she said, Goodman appeared to be “very forgiving” of his client, and Konow continued to sit next to him at counsel table after the punch. “He [Goodman] blew this off like it was part of the territory,” Lobel said, adding that she found it “appalling” that Goodman is now claiming to take it “so personally.” Lobel said the prosecution had rested its case and was ready to close. Greenspan said she “never would have let him [Goodman] go” if she had known that Konow, too, would ask to withdraw. Bridge was poised to respond to Lobel’s arguments but never got the chance because news of Newman’s stay order arrived, effectively halting the hearing. In his petition to the Supreme Court, Bridge argues that Konow acted properly by refusing to continue in the trial since she “could not, consistent with the Rules of Professional Conduct . . . provide competent representation.” Bridge argues that a 2003 decision from the Ohio Supreme Court in State v. Williams is “precisely on point” and held that a trial court in a death penalty case abused its discretion when it refused to allow two lawyers to withdraw after the defendant punched one of the lawyers following a guilty verdict. Konow, he argues, was in the same position since she could not be a zealous advocate if she felt she was “in danger.” Bridge argues that Konow is also not prepared to take over the case now because Goodman was the lead lawyer handling the guilt phase of the trial, and Konow had prepared to take the lead in the penalty phase if El-Shabazz were convicted of first-degree murder. But prosecutors argued in their Supreme Court brief that Pennsylvania law clearly supports a trial judge’s decision to order a defense lawyer to continue. In the brief, Hugh J. Burns Jr., chief of the DA’s appeals unit, and Eisenberg cited the Pennsylvania Supreme Court’s 1998 decision in Commonwealth v. Lester in which the justices upheld a trial judge’s decision to deny a defense lawyer’s request to withdraw after the defendant stood up and told the jury that he had filed a civil suit against his lawyer. The trial judge in the Lester case said he was denying the request to withdraw because he “feared the scenario would be repeated ad infinitum.” “This court held that the trial court acted properly. Otherwise Lester could cause repeated mistrials at will by punching his lawyer, who if permitted to withdraw would leave the court with no other choice but a mistrial,” Burns and Eisenberg wrote. The prosecutors also challenged Konow’s claim that she is not prepared to handle the guilt phase of the trial, saying she was “present for all proceedings, had handled certain pretrial matters, and had even conducted the examination of various witnesses.” As a result, they said, Greenspan “rejected as incredible and disingenuous petitioner’s claim that she was prepared only to represent defendant in the penalty phase.” The brief says Greenspan “rejected as incredible and disingenuous” petitioner’s claim to be afraid of being attacked by defendant. The prosecutors argue that Konow’s “sudden claims of fear are particularly unworthy in light of the two years she has spent working for and with this murder-rapist. The defendant brutally assaulted and murdered a little girl — facts which even the defense itself admitted to the jury, arguing only the degree of the murder. Now we are to believe that, because of a single punch causing no injury, counsel suddenly sees her client as a violent man?” As for the Ohio precedent, the prosecutors argue, “This is not Ohio, and precedent from the Supreme Court of Ohio is not controlling — precedent of the Supreme Court of Pennsylvania is. Aside from the unique factual findings of the trial court in this case, in Lester this court took into account important policy considerations that the Ohio court does not mention.” The lesson of Lester, they argue, is that “defendants charged with violent crimes should not be taught that, if things are going badly, they can terminate their trials at will by the simple expedient of punching the lawyer.” If Konow’s “defiance” of Greenspan’s order is allowed, they argue, “we will in the future be seeing many more lawyers being punched in the Criminal Justice Center.”

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