AT LEAST IT WASN'T A HORSE'S HEAD IN THE BED

Thanks to John Wesley Hall at the Law of Criminal Defense blog for this post directing attention to Commonwealth v. Means, decided by the Massachusetts Supreme Judicial Court (gotta love the name) on Friday.

Means, who even the judge acknowleged had very serious mental health and anger management issues, had been complaining about his appointed counsel for some time and had filed repeated motions to have him removed and new counsel appointed.

In March, 2005, the defendant filed a further pro se motion for the "immediate withdrawal" of his counsel and for the appointment of new counsel to represent him at his trial. In an affidavit attached to this motion, the defendant disclosed that he had sent a blood-smeared letter dated March 6, 2005, to appointed counsel threatening to harm him and his family if counsel did not withdraw from the case. . . . The defendant's affidavit also stated that, if the judge did not allow his motion, then at the "very first chance," the defendant "will physically assault, spit, kick, head-butt, etc." appointed counsel. To emphasize his point, the defendant added that he was "not playing around; this isn't any joke, I'm very serious! I have major mental health deficiencies, and present very serious anger management issues, due to lack of treatment." The defendant concluded his affidavit by noting that he was "not prepared" for his April 27 trial date, and did not have any documents with which to present his defense.

OK, that's a problem.

The trial court held a hearing. (Means was present by video conference, which is probably just how they do things there, but it likely made the threatened lawyer feel better than if he had to sit next to the guy.) Means acknowledged (threatened counsel advised him not to) that he'd written the letter. Judge said that his threats were sufficient to let counsel off, but that no new counsel would be appointed because, by the threats, he'd forfeited the right to appointed counsel.

A couple of days later, Means said that he never actually intended to harm anyone, it was just "a stunt" to get counsel to withdraw. He wanted and needed new counsel. Tough, said the judge. Means went to trial, pro se (the Committee for Public Counsel Services offered to represent him, but the judge wouldn't let that happen), and was convicted.

The high court said, look, threatening your lawyer and his family is serious stuff, and could, maybe, in the right case, be a basis for forfeiting the right to counsel. But

Before a judge orders the forfeiture of the defendant's constitutional right to appointed counsel based on the defendant's misconduct, the judge must give notice of and conduct a hearing in which the defendant is given a full and fair opportunity to show why so severe a sanction should not be imposed. Because the defendant was not given that opportunity, and because we cannot say with confidence that the result may not have been different had he been given that opportunity, we reverse the judgments.

And, of course, counsel should have been appointed for the defendant for the hearing.

Means gets a new trial. And good for the Massachusetts Supreme Judicial Court.

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A question all this raises is just when appointed counsel ought to ask leave to withdraw. All too often, counsel don't ask, or don't say the right things when they do ask, because their egos won't let them. I may talk about this in some future post.