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Even though the state Supreme Court stepped in, the lawyers got back on the case, and the jury reached a verdict, the case isn’t closed for criminal defense attorneys in Philadelphia, who continue to criticize a top city prosecutor’s comments that defense counsel tried to use a defendant’s assault as a means to get a mistrial because their case was not proceeding well. The controversy erupted last week in the trial of 20-year-old Malik El-Shabazz, who in open court punched one of the two public defenders assigned to his case. El-Shabazz was convicted Wednesday of first-degree murder in the rape and slaying of a 6-year-old girl. The case has moved into the penalty phase, whereby the jury will decide whether El-Shabazz should be executed. Fred Goodman, the public defender who was struck by El-Shabazz, was granted permission to withdraw from the case by Common Pleas Judge Jane Cutler Greenspan. But when his co-counsel, Andrea Konow, also asked to be removed, Greenspan denied that request and eventually found Konow in contempt. Konow’s case was appealed to the Pennsylvania Supreme Court, which last week ordered her to continue representing El-Shabazz. Goodman has also since rejoined the case. While many defense attorneys said they agreed with the high court ruling, they took exception to comments made last week by First Assistant District Attorney Arnold H. Gordon, who told Greenspan that the defense had “a concerted strategy” to obtain a mistrial and was more interested in maintaining the Defender Association of Philadelphia’s perfect record of avoiding the death penalty than in defending El-Shabazz. He added that Konow’s refusal to continue was an attempt to win a mistrial for El-Shabazz. First Assistant Public Defender Charles Cunningham, who was in the courtroom when Gordon made the comment, said he couldn’t recall attacks of such a “vicious” nature made by a prosecutor against the defender’s office. “The only thing we tried to do was be professional,” Cunningham said. “And if that means that circumstances arise where we feel that we cannot effectively represent our client, we’re going to tell the court about it. “I just think Mr. Gordon’s comments are ridiculous. He’s insinuating that we look at death penalty cases as some kind of game. Well, that may be how they view things over there, but we certainly don’t. His comments were poorly chosen, and every member of the public defenders’ office takes offense to them.” Gordon declined comment Wednesday because the case was still in the hands of the jury. He did say, however, that his views were repeated in the prosecution’s documents filed with the Supreme Court. In an answer to the public defender’s request to stay the contempt charge against Konow, prosecutors alluded to comments made by Greenspan in court that called Konow on the carpet for her “lack of candor.” While not going as far as Gordon, Greenspan made note of the public defender’s perfect record in death penalty cases. “This is a situation with an admittedly difficult client and an overwhelmingly good case for the commonwealth,” Greenspan said in court transcripts. “And I have to say that it is one where, for the purpose of the Defender Association as a whole, you seem closer to the death penalty than in any other case — and I see most of the cases that come through the system — where this has presented an opportunity to delay.” The brief also claims that both Gordon and Konow stated immediately after the punching incident that they had no problem continuing to represent their client. It wasn’t until the following day that they claimed to be traumatized by the outburst, the prosecution’s brief said. Jeff Lindy, a former state and federal prosecutor who now earns a living as a criminal defense attorney in Philadelphia, said reasonable minds could differ when discussing the merits of Konow’s unsuccessful appeal. On one hand, El-Shabazz would be placed in shackles in front of armed sheriff’s deputies, dispelling any possible fear on the part of Konow. But Lindy said he also understands how the violent incident with Goodman could affect Konow’s ability to zealously defend her client. “Just on that issue alone, this case will be reviewed [on appeal] federally,” Lindy said. “For Arnie Gordon to make an allegation that these defense attorneys were trying to avert justice just so they could keep their perfect record in death penalty cases is so incredibly unprofessional. Some judges who are just as respected as Judge Greenspan might have chosen to declare a mistrial. “Of course when he’s in front of the jury, Fred’s going to act like [the punch] was no big deal. He’s trying to present his client in the best light possible. But after having time to reflect on it, he decided to get out for the best interest of the client and himself. As for Konow, it’s like what would happen if two lawyers from [a civil law firm] were handling a case and the client punched one of them. The other one would probably argue that his partner was just punched, and he couldn’t zealously defend the client anymore. The defender’s association is like a law firm in that respect.” Norris Gelman never had to worry about being punched out by his most notorious client, Ira Einhorn, who was in France when he was tried and convicted in absentia for the murder of girlfriend Holly Maddux. Gelman said he believes that Greenspan’s decision to proceed with the trial was the correct one, but he also said he does not doubt the veracity of Konow’s claims of not being prepared to handle the trial phase and her claims of fearing her client. “If you fall in love with the client, the sincerity flows out of you during the trial,” Gelman said. “And when the client punches out the lawyer, that’s gone. “I understand that the commonwealth has gone through the time and expense of picking a jury and trying a case. But I think [Konow] was sincere in wanting out of the case. She had only prepared for the capital stage of the case, and Fred was handling the trial phase. Yes, you remove the physical threat by shackling [El-Shabazz]. But there’s still emotional and professional issues in play.” Joel Rosen spent nearly two decades as one of the top prosecutors in the Philadelphia District Attorney’s Office, successfully trying Einhorn twice. He said he believes that Goodman should not be forced to defend someone who physically attacked him. But he said he thinks Konow should have to stick it out. “I realize that’s a tough thing for her to have to do, but lawyers have to do tough things all the time,” said Rosen, now in private practice at Kessler Cohen & Roth. “It’s the nature of the business and this case. The problem was created by the misconduct of the person on trial. He shouldn’t be rewarded for his bad behavior with a mistrial. It’s not fair to the victim’s family or the community as a whole.” Morgan Lewis & Bockius associate Richard Negrin, a former Philadelphia assistant district attorney, said he also agrees with the Supreme Court’s decision. When defending those accused of violent crimes, he said, public defenders have to be prepared for the behavior displayed by El-Shabazz. “It’s part of the responsibility you have when you take that job,” Negrin said. That being said, Negrin said he thinks Gordon took things a step too far with his comments about the motives of two public defenders. “That’s a tough sell because there’s no pattern that backs up Arnie’s comments, and that’s why so many defense lawyers are upset at what he said,” Negrin said. “I would think it’s far more likely that El-Shabazz spoke with a jailhouse lawyer who told him this was a way to get a mistrial declared. And even that’s a stretch because you don’t know how sophisticated he is about these things.” Prosecutors said in court papers that if the Supreme Court granted Konow’s petition, that would have paved the way for defendants to act out in court as a way to have a mistrial declared when the proceedings are not going well. Gelman proposed a solution, although it might raise constitutional concerns. “If you hit your lawyer, I think what you’re trying to say is that you want to represent yourself,” Gelman said. “[A defendant] could stand up and just say in court that he doesn’t like his lawyer or he could just punch the lawyer in the nose. Either way, if I were a judge, I’d say request granted and let him represent himself. That would make a defendant think twice about acting up.”

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