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The 2nd U.S. Circuit Court of Appeals has ruled it will not second-guess state court judges when they require criminal defendants who have attacked their attorneys to proceed without a lawyer. The unanimous federal appeals court decision left intact a 4- to- 12-year sentence imposed upon a defendant who was left without counsel after he had punched his attorney and punctured the lawyer’s eardrum. Second Circuit Judge Sonia Sotomayor wrote that the circuit would not intervene because the New York state courts’ interpretation of applicable federal precedent was “not unreasonable.” But Sotomayor warned that the court might reach a different result in a federal case, noting that its ruling was circumscribed by “the deferential standard” applied to state prisoners’ petitions for habeas corpus. She also noted that the defendant in the New York case, Gregory Gilchrist, was deprived of counsel only at the sentencing phase of his case and suggested that a “potentially heightened burden of justification” might be imposed on the deprivation of counsel during trial. Second Circuit Judges Pierre N. Leval and Robert D. Sack joined in the opinion. In the case before the 2nd Circuit, Acting New York State Supreme Court Justice Richard D. Carruthers had refused to appoint a new lawyer after finding that Gilchrist hit his lawyer from the Legal Aid Society, Neville Ross, without provocation. Carruthers granted Legal Aid’s motion to withdraw as counsel and refused to appoint a successor, asserting, “I am not going to put another attorney by court order in [a] position of danger.” The incident took place shortly before Gilchrist was sentenced in 1995. Under the broad latitude given to state courts under the federal habeas statute, Sotomayor wrote in Gilchrist v. O’Keefe, 00-2466, Gilchrist had to show that Justice Carruthers’ ruling was either contrary to a U.S. Supreme Court precedent or an “unreasonable application” of clearly established federal law. Carruthers’ finding that Gilchrist had forfeited his right to counsel by hitting his lawyer did not run afoul of a prior U.S. Supreme Court ruling, because the Court has never ruled the right to counsel may not be summarily — without warning — forfeited, Judge Sotomayor wrote. Similarly, Sotomayor stated, because the U.S. Supreme Court in at least two cases has upheld the forfeiture of important constitutional rights from misbehaving criminal defendants, the New York courts’ interpretation of federal law was not unreasonable. PRECEDENTS CITED In People v. Allen, 397 U.S. 337 (1970), the U.S. Supreme Court upheld a trial judge’s authority to exclude a disruptive defendant from his trial despite the defendant’s constitutional right to be present. And in 1973 the Supreme Court upheld a conviction rendered against a defendant who failed to attend the proceedings against him in Taylor v. U.S., 414 U.S. 17 (1973). Of those two cases, only in Taylor was action taken without an explicit warning to the defendant. The distinction is important because in order for a waiver of constitutional rights to be effective it must be “knowing” and “intelligent.” But, Justice Carruthers, and New York’s Appellate Division, 1st Department, upheld the summary denial of counsel to Gilchrist as a “forfeiture,” with no warning required of his misconduct. Despite the fact that the defendant in the Allen case had been explicitly warned that his misconduct would result in his removal from the courtroom, Judge Sotomayor observed that the Supreme Court “did not indicate whether such a warning was required in every situation.” In addition, Sotomayor noted that two other circuit courts have explicitly upheld the forfeiture of the right to counsel from violent defendants: the 3rd Circuit in United States v. Leggett, 162 F. 3d 237, and the 11th Circuit in United States v. McLeod, 53 F.3d 322 (1995). Gilchrist was represented by Gail Jacobs of Great Neck, N.Y. New York state was represented by David Axinn, Michael S. Belohlavek and Marion R. Buchbinder of the Solicitor General’s Office of the State Law Department.

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