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Public defender Andrea Konow should not have been required to continue her representation of capital murder defendant Malik El-Shabazz after he punched her co-counsel, state Supreme Court Justice Sandra Schultz Newman wrote in a dissenting statement filed four days after her fellow justices ruled against Konow in the matter. In Commonwealth v. El-Shabazz, the court denied an emergency petition in which Konow sought a stay of Philadelphia Common Pleas Judge Jane Cutler Greenspan’s decision to jail Konow for contempt. Justices Ronald D. Castille and Max Baer filed statements in support of the court’s denial. Konow, a 19-year veteran of the Defender Association of Philadelphia, had insisted on withdrawing from the case after 20-year-old El-Shabazz, accused of the rape and murder of a 6-year-old girl, punched defender Fred R. Goodman in the face in open court shortly after the prosecution rested its case. Greenspan excused Goodman from the case, though he has since rejoined the defense team. In her statement of “strong dissent,” Newman challenged insinuations she believed Castille had made concerning the Defender Association. “I am disheartened by the general tenor of [Castille's] statement in support of denial,” Newman wrote, “which unjustifiably accuses [Konow] and the Defender Association of using the unprovoked assault of El-Shabazz as a litigation tactic. Although the statement in support of denial contends that [Konow] holds ‘the key to her release,’ she should never have been put behind the locked door in the first place.” Konow was jailed for roughly six hours March 23 but was freed that afternoon after the Superior Court granted a temporary stay. The following morning, Newman issued a second stay. The lawyers in the case waited two days for a ruling, expecting Newman to handle the emergency petition on her own, but by Thursday evening, the court had denied Konow’s request, indicating that Newman was the only justice voting in Konow’s favor. Newman began her statement by analyzing a 2003 case from Ohio, State v. Williams, which Konow cited in support of her petition. In that case, the Ohio Supreme Court overturned a trial court’s decision not to allow two attorneys to withdraw from a capital case when the defendant had struck one of the lawyers. “[The Ohio Supreme Court] emphasized that in the context of the penalty phase of a capital case,” Newman wrote, “it is particularly important for counsel not to reveal to the jury, through his or her body language, any fear of the defendant.” Newman then addressed the state Supreme Court’s 1999 decision in Commonwealth v. Lester, which was cited as controlling by Castille in his statement. Newman differentiated Lester, where a lawyer’s petition to withdraw after being punched was denied, from the instant matter, noting that in that case, the assault had not occurred in the jury’s presence, among other distinctions. Newman argued that allowing Konow to withdraw could help prevent El-Shabazz from turning the punching incident into fertile grounds for appealing any convictions. “Assuming, arguendo, that El-Shabazz is convicted of the crimes charged,” Newman wrote, “he will ultimately raise motions contending that [Konow] rendered ineffective assistance of counsel; how those arguments would not be meritorious strains credulity. In light of [Konow's] assertion that she is not prepared to represent El-Shabazz at the guilt stage, requiring her to step into the shoes of attorney Goodman is an open invitation to raise a good faith claim of ineffectiveness.” Newman further wrote that the trial court’s decision to excuse one defense counsel but not the other was “potentially inconsistent.” She also rejected Castille’s contention that Konow erred in taking her petition directly to the appellate level. After granting a temporary stay in the matter even though Konow had not asked the trial court for a stay, according to Castille’s statement, Superior Court Judge Richard B. Klein had instructed Konow to seek a stay from Greenspan. Instead Konow petitioned the Supreme Court. “In light of time restraints and her incarceration,” Newman wrote, “[Konow] took the steps most effectively designed to achieve her release. Her attempt to seek relief from the Superior Court was eminently reasonable, and I refuse to assume that this was part of a strategy to euchre the judicial process.” In a concurring statement in support of denial, Baer noted that he wrote separately because he did not wish to assume that Konow’s behavior “represents petulance.” In his statement, Castille wrote in a footnote that if Konow was afraid of a client charged with raping and murdering a child, she “may want to consider another line of work.” Since last week, Konow and Goodman have continued representing El-Shabazz, who has been shackled. During Goodman’s closing argument Monday, El-Shabazz was escorted out of the courtroom following an outburst. The sequestered jury has been deliberating since Monday afternoon. Both Karl Baker, deputy chief of the appeals division for the Defender Association, and Cathie Abookire, spokeswoman for Philadelphia’s District Attorney’s Office, declined to comment on Newman’s statement, as the El-Shabazz case is still before the jury. (Copies of the 14-page opinion 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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