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The 2nd U.S. Circuit Court of Appeals has expanded the test for determining whether a trial court abused its discretion in denying a motion to substitute counsel. In a case involving a violent and abusive drug dealer who threatened his attorney, the 2nd Circuit said Thursday that it was adding a fourth factor to the usual three-part test used in evaluating substitution motions. The factor is “whether the defendant substantially and unjustifiably contributed to the breakdown in communication” with his lawyer. The 2nd Circuit decision raises the bar for uncooperative defendants who appeal their convictions by arguing that their trial lawyer should have been replaced. That fourth factor will now be considered in reviewing lower court denials of motions for substitution of counsel. Before the decision, the court focused primarily on whether the substitution motion was timely, whether the trial court had adequately inquired into the matter, and whether the conflict between defendant and counsel was so great as to cause a “total lack of communication preventing an adequate defense.” The ruling in United States v. Findley, 00-1224, rejected the appeal of convicted Connecticut cocaine dealer Andrew K. Findley, also known as “Roundhead,” who had unsuccessfully sought to replace his trial lawyer. Findley, who already had one lawyer withdraw from his case, quickly grew disgusted with his new court-appointed counsel, Brian Stapleton, and refused to cooperate with him. Just days before his cocaine distribution trial was to start in the District of Connecticut, Stapleton moved to withdraw, saying Findley was convinced the lawyer was part of a conspiracy to “railroad” him into a conviction. “He has repeatedly grown so agitated and hostile — shouting, screaming, throwing papers from the counsel table and around the room, making intimidating approaches to counsel … , ” the lawyer told Judge Alan H. Nevas. Stapleton added that he was afraid the conviction of Findley would result in a threat to his “ personal safety and that of my family.” Stapleton argued that as an alternative to his withdrawal, Findley should be evaluated for his competency to stand trial. Judge Nevas agreed, but after a 30-day period of evaluation at the Metropolitan Correctional Center, psychologists reached the conclusion that Findley was a “malingerer.” On the eve of jury selection in June 1999, both the attorney and Findley asked the court to end their relationship. Findley, in statements that the court found unbelievable, said his attorney had lied to him, failed to consult with him and refused to provide him with evidence and paperwork relating to the trial. On the first day of trial, Stapleton told the judge that a corrections officer had to prevent Findley from striking him, and that his client made a shooting gesture with his thumb and forefinger. When Stapleton asked that Findley be shackled during the trial, the judge agreed. During trial, Findley argued strongly for taking the witness stand in his own defense. Stapleton countered that his client’s prior convictions and manifest lack of credibility would make testifying a terrible mistake, a position born out when Findley testified, was convicted by the jury and sentenced to 30 years in prison. On his appeal, Findley said Judge Nevas abused his discretion when he denied the motion to substitute counsel after Stapleton had “completely abandoned” him — a violation of his Sixth Amendment right to effective assistance of counsel. Writing for the 2nd Circuit, Judge Fred I. Parker said the court had previously joined its fellow circuits in using the three-factor test in reviewing for abuse of discretion, but it was now following the lead of the 10th Circuit in adopting the fourth factor, the degree to which the defendant is responsible for the breakdown in communication. Parker said that all three factors had been met in this case: Judge Nevas responded to Findley’s timely motion by conducting an inquiry, which ended with his finding that the conflict between the defendant and his attorney was not so great as to result in a total lack of communication that prevented an adequate defense. “The record reveals that Findley and Stapleton did communicate prior to and during the course of the trial,” Judge Parker said. “Even after the district court repeatedly denied his withdrawal motions and after Stapleton expressed fear for his own and his family’s safety. Stapleton carried out his duties as Findley’s counsel … “ FOURTH FACTOR As to the newly adopted fourth factor, Judge Parker said, the “record clearly indicates that Findley created most, if not all, of the problems with Stapleton by refusing to cooperate with him, acting aggressively, and making threatening gestures and remarks toward Stapleton.” In the end, Parker said, “it was eminently reasonable for the district court to conclude that Findley was the source of the breakdown … “ Judges Dennis G. Jacobs and Robert A. Katzmann joined in the opinion. Gary D. Weinberger, Thomas G. Dennis and Dalit Yarden-Krug, of the Federal Public Defender’s Office in Hartford, Conn., represented Findley. U.S. Attorney Stephen C. Robinson and Assistant U.S. Attorney Christopher W. Schmeisser represented the government.

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