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In a rare after-hours ruling, the Pennsylvania Supreme Court yesterday refused to stay a Philadelphia judge’s decision to jail attorney Andrea Konow, a public defender, for refusing to continue representing a capital murder defendant after he punched her co-counsel in open court. “Issuing a stay would reward a recalcitrant attorney for flouting her ethical obligations to the court,” Justice Ronald Castille wrote in a five-page statement supporting the court’s one-page per curiam order. “Lawyers, who are officers of the court, should not be encouraged to act petulantly or defiantly when confronted with orders with which they disagree,” Castille wrote in Commonwealth v. El-Shabazz. Castille also said issuing a stay “would reward the capital defendant for his misconduct by providing him with an unwarranted new trial — which may very well be the reason he punched his lawyer in the first place.” Justice Max Baer filed a two-page concurring statement, and Justice Sandra Schultz Newman dissented, but said her statement of dissent would be filed at a later date. For Konow, a 19-year veteran of the Defender Association of Philadelphia, the ruling means that she could be sent back to jail this morning by Common Pleas Judge Jane Cutler Greenspan if she again refuses to resume the defense of Malik El-Shabazz, 20, who is on trial for the rape and murder of a 6-year-old girl. Due to the late release of the ruling, none of the lawyers in the Defender Association could be reached for comment. El-Shabazz punched attorney Fred R. Goodman on Monday, soon after the prosecution had rested its case. On Tuesday morning, Greenspan allowed Goodman to withdraw from the case, but ordered Konow to finish the trial. When Konow insisted that she, too, had to withdraw, Greenspan held her in contempt. Konow was jailed for about six hours on Tuesday but was released that afternoon when the Superior Court granted a temporary stay. On Wednesday morning, a second stay was issued that extended Konow’s reprieve – this time by Newman. For almost two days, the lawyers waited for a ruling, saying they expected Newman to handle the emergency petition on her own. But at about 5:30 p.m. yesterday, the court issued a decision that shows the matter was referred to the entire court and that Newman was the only justice voting in Konow’s favor. Castille was critical of Konow and her lawyer, Bradley S. Bridge, saying they “ignored” the directive in Superior Court Judge Richard Klein’s stay order on Tuesday that instructed them to seek a stay from Greenspan. Failing to ask the trial judge for a stay, Castille said, was “reason enough” to deny Konow’s emergency petition to the Supreme Court, and also “forestalled the possibility of the flexible resolution envisioned by Judge Klein.” Castille said he voted to deny the stay because the Supreme Court should not “tie the hands” of a trial judge. “By tying the judge’s hands, the court would prevent any prospect of rational solution,” Castille wrote. Granting the stay, he said, would “inevitably lead to the declaration of a mistrial.” A stay order would also “turn our review standard on its head,” Castille wrote, because Greenspan’s order is “presumptively valid” and should be reviewed only for an abuse of discretion. Reviewing such an order on an emergency motion for a stay, Castille said, calls for “an extraordinarily high showing.” Since Konow did not provide the high court with a transcript, he said, the court was unable to review Greenspan’s reasoning. “I do not deny that it is a sad prospect to consider any member of the bar spending time incarcerated for contempt,” Castille wrote. “But petitioner [Konow] has always held the keys to her release. The ‘injury’ may be easily repaired by attending to her duties as an officer of the court.” In a two-page statement, Baer said he agreed with Castille’s observations about the practical effect of any stay and that it would effectively “reward the defendant for his own egregious misconduct.” But Baer said he wrote separately because, unlike Castille, he was not as critical of Konow’s motives. “I decline to assume petitioner’s [Konow's] behavior lacks ethicality or represents petulance,” Baer wrote. But Baer said he agreed with Castille’s view that the case was difficult to review without a complete record — a fact that, he said, “strengthens my belief that we should not interfere with the distinguished trial judge orchestrating this difficult legal quagmire.” ( Copies of the one-page order, five-page statement in support of denial and two-page concurring statement in Commonwealth v. El-Shabazz, PICS No. 04-0466, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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