Metropolitan News-Enterprise


Thursday, September 27, 2001


Page 1


Ninth Circuit Finds Moreno Abused Discretion in Making Defendant Keep Appointed Lawyer


By ROBERT GREENE, Staff Writer


U.S. District Judge Carlos R. Moreno failed to explore the rift between a criminal defendant and his court-appointed lawyer and abused his discretion in denying the defendant’s repeated requests for new counsel, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

On the day of the federal judge’s nomination to the California Supreme Court, the appeals panel criticized Moreno for making inadequate inquiries after defendant Carlos Adelzo-Gonzalez said three times that he could not communicate with his lawyer, and after the lawyer in open court questioned his client’s truthfulness.

Moreno focused too much on the lawyer’s competence and his ability to provide adequate representation and not enough on the ability of lawyer and client to work together on the defense, the panel said.

In an opinion by U.S. District Judge Susan Illston of the Northern District of California, sitting by designation on the appeals court, the panel said Moreno erred in failing to postpone Adelzo-Gonzalez’s trial and appointing another lawyer to represent him while the judge probed the nature of the problem. Instead, Illston said, Moreno essentially left the defendant unrepresented by leaving in place the very lawyer who objected to and openly opposed his client’s motions for new counsel.

“The district court’s finding that there was no break in communication between Adelzo-Gonzalez and his attorney was clearly erroneous,” Illston said. “The relationship between Adelzo-Gonzalez and the appointed counsel was antagonistic, lacking in trust, and quarrelsome.”

The defendant ultimately told Moreno that he would rather forget the trial and just plead guilty to the charges against him if he had no choice but to be represented by the court-appointed lawyer. In fact, the lawyer stayed on and Adelzo-Gonzalez did plead guilty — to hostage-taking and transporting and harboring illegal aliens — and was sentenced to 63 months in prison and three years supervised release.

On appeal he argued that the court violated his Sixth Amendment right to affective assistance of counsel. The appeals court did not reach the issue, deciding instead that Moreno erred in denying the substitution motions.

The first motion came six weeks before the scheduled trial date when he told Moreno that he did not understand the nature of the proceeding.  He also said that his lawyer had told him he “was going to try to sink me for 105 years so that I wouldn’t be able to see my wife and children.”

The lawyer told the judge that his client understood perfectly well and that “he has been advised by someone, or has his own ideas, as far as what he wants to do.”

“For the record, the things that were said are lies,” the lawyer told the court.

The motion was denied and a second one came in a letter to Moreno four weeks later. At the resulting ex parte hearing on the motion, the defendant asked about the charges against him and the judge referred him to his lawyer.

The last motion came just before the trial. The lawyer interrupted his client, saying:

“Your honor, in my opinion he is about to obstruct justice....I’d request that he not address the Court....He is about ready subject himself to another federal crime.”

The motion was denied, and Adelzo-Gonzalez said he might as well plead. The plea was accepted and sentence handed down.

Illston faulted Moreno for asking the defendant open-ended questions and for putting on him the onus of articulating why representation was not competent.

There was a sufficient display of antagonism on the part of both the lawyer and the client to warrant further inquiry, she said.

“The perfunctory inquiries did not provide the district court a sufficient basis to determine the extent of the breakdown in communication,” she said.

The case was remanded for further proceedings.

Illston was joined by Ninth Circuit Judges Proctor Hug and Betty Fletcher.

The case is U.S. v. Adelzo-Gonzalez, 99-50152.


 — Capitol News Service