Lawyers Fired for Fussing

by Rick Wetzel on September 16, 2011

As a criminal appeals and habeas corpus lawyer, I am always interested in unusual courtroom occurrences.  One such situation recently occurred in Fredericksburg, Virginia.  In an extremely rare judicial move, a Virginia Circuit judge removed both the prosecutor and defense attorney from a child abuse case in which the accused is a former sheriff’s deputy.  Following a contentious pre-trial hearing, Judge Joseph J. Ellis told both the prosecutor and the defense lawyer they would be replaced for the upcoming trial.

Ellis said he had to remove them both because he felt their ability to remain professional was overwhelmed by their personal animosity toward each other.  “I’ve been practicing law for 31 years and I’ve been on the bench for more than 12 years, and I truly can’t recall a case that disturbs me more than this one; not because of the charges, but because of the conduct of the two of you,” Ellis said.  “I am going to replace both of you.  It’s the only way I’m capable of ensuring [the defendant] will be having the fair trial he is entitled to and guarantee the rights of the victim.”

The Texas Rule

Had the trial been in Texas, it is clear the judge could not remove the prosecutor and prevent him from trying the case.  Neither an elected prosecuting attorney, nor his assistants, can be disqualified or prevented by a trial court from carrying out their duties to prosecute criminal cases.  State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 932 (Tex. Crim. App. 1994); State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 5 (Tex. Crim. App. 1990).

The ability of a judge to remove defense counsel is extremely limited.  The Sixth Amendment guarantees a criminal defendant the right to be represented by the retained counsel he prefers.  Wheat v. U.S., 486 U.S. 153, 158-60 (1988).  An accused is, in fact, entitled to counsel of his own selection, and as many as he may see proper to employ, to defend him.  Jackson v. State, 55 Tex.Crim. 79, 115 S.W. 262, 264 (1908).

Zealous Advocate

Our system of justice is an adversarial process.  All lawyers have a duty to zealously represent their client.  That duty applies whether the lawyer is a prosecutor, defense trial lawyer, criminal appeals lawyer, or habeas corpus lawyer. The right to counsel of one’s own choosing is not absolute.  It can be overridden by important consideration relating to the integrity of the judicial process and the fair and orderly administration of justice.  A talented and experienced lawyer will know how far and hard to push without being ejected from the game.

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