united-states criminal-law right-to-counsel sixth-amendment
No right to a public defender
<p>In <a href="http://caselaw.findlaw.com/nc-court-of-appeals/1705033.html#sthash.6WmM6Y9v.dpuf">a recent court case in NC, USA</a>, the appeals court upheld that the trial court did not make a mistake in forcing a person to choose between counsel and testifying.</p>

<p>Basically, the court appointed lawyer said the client was going to lie, and the judge granted his motion to resign. As such the defendant was left with private counsel, or representing himself. </p>

<p>I thought there was a law against choosing between testifying and having counsel? Also the right to a public defender couldn't be just taken away?</p>

<p>Key exchange:</p>

<blockquote>
  <p>THE COURT: Is he going to have retained counsel by then or is he going to represent himself?</p>
  
  <p>MR. CAMPBELL: I would let him speak to that, if that's appropriate.</p>
  
  <p>MR. SMITH: I'm going to make an attempt to retain counsel, Your Honor. If I am unable to, I will represent myself.</p>
</blockquote>

<p>What happens is the court asks will he retain counsel or represent himself, effectively taking away the right to public counsel, at which point he says he will try to get counsel. By not offering the right to public counsel, they effectively took away his right to public counsel.</p>

<p>Smith makes three arguments in his appeal, that the trial court erred by:</p>

<ol>
<li>allowing Smith's trial counsel to withdraw on the sixth day of trial and  </li>
<li>failing to appoint substitute counsel for Smith thereafter, and  </li>
<li>that the private substitute counsel Smith retained was presumptively ineffective based upon the amount of time he had to review Smith's case before proceeding with the trial.</li>
</ol>

<p>Smith does not raise the question that you mention: the law against choosing between testifying and having counsel. That question was raised by the state's attorney:</p>

<blockquote>
  <p>There are cases that say the [c]ourt cannot make a defendant choose
  between the right to testify and the right to counsel... [T]here is a
  Hobson's choice here between Mr. Smith testifying and Mr. Smith having
  an attorney. And the courts have ruled at times that there can't be a
  choice between those things.</p>
</blockquote>

<p>Speaking of Hobson's choice:</p>

<p><strong><a href="https://scholar.google.com/scholar_case?case=8337781545433330773" rel="nofollow">United States ex rel. Wilcox v. Johnson, 555 F. 2d 115 - Court of Appeals, 3rd Circuit 1977</a></strong></p>

<blockquote>
  <p>the appellee here "was put to a Hobson's choice": decline to testify
  and lose the opportunity of conveying his version of the facts to the
  jury, or take the stand and forego his fundamental right to be
  assisted by counsel. The Trial Judge thus conditioned the exercise of
  Mr. Wilcox's statutory right to testify upon the waiver of rights
  guaranteed by the Constitution. This was an <strong>impermissible infringement
  upon the appellee's right to testify and his Sixth Amendment right to
  counsel</strong>.</p>
</blockquote>

<p>also:</p>

<p><strong><a href="https://scholar.google.com/scholar_case?case=6407142659223484605" rel="nofollow">US v. Scott, 909 F. 2d 488 - Court of Appeals, 11th Circuit 1990</a></strong></p>

<blockquote>
  <p>To advise [the defendant] that he could be precluded from testifying,
  without confirmation that [the defendant] intended to commit perjury,
  or could proceed pro se <strong>impermissibly forced Scott to choose between
  two constitutionally protected rights</strong>.</p>
</blockquote>

<p>and:</p>

<p><a href="https://casetext.com/case/wilson-v-state-958" rel="nofollow"><strong>Wilson v. State, 12 So.3d 292 (Fla. Dist. Ct. App. 2009)</strong></a></p>

<blockquote>
  <p>This case concerns a defendant's desire to testify in greater detail
  about the incidents giving rise to the criminal charges, confronted by
  his attorney's belief that more testimony was not a good idea. The
  judge offered the defendant the choice of testifying further by giving
  up his attorney, and representing himself. The defendant chose not to
  testify. <strong>We hold that the trial court improperly forced a choice
  between two constitutional rights, and reverse</strong>.</p>
</blockquote>

<p>Here is a really recent case where The Connecticut Supreme Court gave defendant a new trial after his lawyer quit (went into snooze mode) when the defendant insisted on testifying.</p>

<p><strong><a href="https://www.jud.ct.gov/external/supapp/Cases/AROcr/CR317/317CR67.pdf" rel="nofollow">State of Connecticut v. Maurice Francis, (SC 19305)</a></strong></p>

<blockquote>
  <p>The record reflects that the court and defense counsel understood the
  <strong>defendant to be self-represented during his testimony</strong>. Defense counsel
  made it abundantly clear that they had no intention of representing
  the defendant should he testify and would file a motion to withdraw if
  necessary to avoid doing so. After canvassing the defendant regarding
  the pitfalls of proceeding pro se, the trial court ruled that it would
  have to let the defendant ‘‘self-represent . . . during this point . .
  . .’’ Consistent with this ruling, the court’s docket sheet reflects
  the court clerk’s notations indicating that, <strong>for purposes of the
  defendant’s testimony only, the defendant was allowed to represent
  himself</strong> and standby counsel was appointed. It further indicated that,
  for the remainder of the trial, counsel was retained to represent the
  defendant. Because of this ruling, defense <strong>counsel did not need to
  file a motion to withdraw</strong>, as their temporary status as standby
  counsel remedied the representation problem that they had sought to
  avoid.</p>
</blockquote>

<p>An interesting distinction among these cases is the reason the attorney conditioned representation on withholding testimony. One reason is ethical &ndash; knowledge that the client is going to lie. The other reason is strategic; the attorney thinks the witness will hurt the case.</p>

<hr>

<p>Edit to discuss the ethics question as it was brought up in the comments.</p>

<p><em>Comment: However the defendant did not lie, the lawyer provided no evidence the defendant did lie, and the lawyer never stated why/how/what he thought the defendant might lie about.</em></p>

<p>The lawyer did not tell the court, and could not ethically tell the court. The superior court said:</p>

<blockquote>
  <p>Difficulty may be encountered if withdrawal is based on the client's
  demand that the lawyer engage in unprofessional conduct. The <strong>court
  may request an explanation for the withdrawal</strong>, while the <strong>lawyer
  may be bound to keep confidential</strong> the facts that would constitute
  such an explanation. The <strong>lawyer's statement that professional
  considerations require termination of the representation ordinarily
  should be accepted as sufficient</strong>. Lawyers should be mindful of their
  obligations to both clients and the court under Rules 1.6 and 3.3.</p>
</blockquote>

<p>The lawyer mentioned 1.16 as the reason he needed to withdraw. It basically says you can't represent someone if the representation would be an ethics violation:</p>

<blockquote>
  <p>Rule 1.16 Declining or Terminating Representation<br>
  (a) Except as
  stated in paragraph (c), a lawyer shall not represent a client or,
  where representation has commenced, <strong>shall withdraw</strong> from the
  representation of a client <strong>if</strong>:<br>
  (1) <strong>the representation will result in
  violation of law or the Rules of Professional Conduct</strong>;<br>
  (2) the
  lawyer's physical or mental condition materially impairs the lawyer's
  ability to represent the client; or<br>
  (3) the lawyer is discharged.</p>
</blockquote>

<p>And then Comment 3 says that if a lawyer wants to withdraw because of an ethics conflict the judge may let him go without further inquiry.</p>

<blockquote>
  <p><strong>Comment 3</strong><br>
  When a lawyer has been appointed to represent a client,
  withdrawal ordinarily requires approval of the appointing authority.
  Similarly, court approval or notice to the court is often required by
  applicable law before a lawyer withdraws from pending litigation.
  Difficulty may be encountered if withdrawal is based on the client's
  demand that the lawyer engage in unprofessional conduct. The court may
  request an explanation for the withdrawal, while the lawyer may be
  bound to keep confidential the facts that would constitute such an
  explanation. <strong>The lawyer's statement that professional considerations
  require termination of the representation ordinarily should be
  accepted as sufficient</strong>. Lawyers should be mindful of their obligations
  to both clients and the court under Rules 1.6 and 3.3.</p>
</blockquote>

<p>However, the appellate court writes that the trial court could have asked about comment 2 which says that suggestion of perjury is not enough to force withdrawal.</p>

<blockquote>
  <p><strong>Comment 2</strong><br>
  lawyer ordinarily must decline or withdraw from
  representation if the client demands that the lawyer engage in conduct
  that is illegal or violates the Rules of Professional Conduct or other
  law. <strong>The lawyer is not obliged to decline or withdraw simply because
  the client suggests such a course of conduct</strong>; a client may make such a
  suggestion in the hope that a lawyer will not be constrained by a
  professional obligation.</p>
</blockquote>

<p>But, and this is the big but - this is not enough for the appellate court to overturn the trial court.</p>

<blockquote>
  <p><strong>...we may not consider the correctness of the court's ruling de novo or second guess its exercise of discretion... Rather, we are limited
  to a determination of whether the court's decision was “manifestly
  unsupported by reason or so arbitrary that it could not have been
  the result of a reasoned decision.”</strong></p>
</blockquote>

<p>The rule violation at risk here is 3.3(a)(3):</p>

<blockquote>
  <p>(a) A lawyer shall not knowingly... offer evidence that the lawyer knows
  to be false. If a lawyer, the lawyer's client, or a witness called by
  the lawyer, has offered material evidence and the lawyer comes to know
  of its falsity, the lawyer shall take reasonable remedial measures,
  including, if necessary, disclosure to the tribunal. A lawyer may
  refuse to offer evidence, other than the testimony of a defendant in a
  criminal matter, that the lawyer reasonably believes is false.</p>
</blockquote>

<p>It's comment 9 that the state wanted the trial court to consider. It seems to me that she wanted to hint to the defense attorney that he could ethically hear the testimony if he didn't <strong>know</strong> that it was false.  </p>

<blockquote>
  <p><strong>Comment 9</strong>
  Although paragraph (a)(3) only <strong>prohibits</strong> a lawyer from offering
  evidence the lawyer knows to be false, it <strong>permits</strong> the lawyer to refuse
  to offer testimony or other proof that the lawyer reasonably believes
  is false. Offering such proof may reflect adversely on the lawyer's
  ability to discriminate in the quality of evidence and thus impair the
  lawyer's effectiveness as an advocate. Because of the <em>special
  protections historically provided criminal defendants</em>, however, this
  <strong>Rule does not permit a lawyer to refuse to offer the testimony of such
  a client where the lawyer reasonably believes but does not know that
  the testimony will be false</strong>. Unless the lawyer knows the testimony
  will be false, the lawyer must honor the client's decision to testify.</p>
</blockquote>

<p>It seems to me that comment 8 is more helpful, but I wasn't there.</p>

<blockquote>
  <p><strong>Comment 8</strong><br>
  The prohibition against offering false evidence only applies
  if the lawyer knows that the evidence is false. <strong>A lawyer's reasonable
  belief that evidence is false does not preclude its presentation to
  the trier of fact.</strong> A lawyer's knowledge that evidence is false,
  however, can be inferred from the circumstances. See Rule 1.0(g).
  Thus, although a lawyer should resolve doubts about the veracity of
  testimony or other evidence in favor of the client, the lawyer cannot
  ignore an obvious falsehood.</p>
</blockquote>

<p>The defendant in this case did retain counsel just not a public defender.  The appeal even admited there was counsel and only argued that the counsel was ineffective.</p>

<blockquote>
  <p>the private substitute counsel Smith retained was presumptively
  ineffective based upon the amount of time he had to review Smith's
  case before proceeding with the trial.</p>
</blockquote>

<p>Had Smith been unable to retain private counsel then presumably, the judge would have appointed another counsel or not allowed the original PD to withdraw.  If the judge had forced the defendant to go forward without counsel then it would have been a violation of the rule.</p>
