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Earlier this week, a Ninth Circuit panel released an interesting opinion that shines light on a rarely-discussed form of prosecutorial misbehavior: interference with a defendant’s right to counsel. The federal murder trial of James Wells took place in the District of Alaska. After having one attorney appointed to represent him once he was indicted, the court appointed a second defense lawyer within a few weeks. Nearly half a year later, the prosecution decided that it would no longer seek the death penalty against Mr. Wells. Shortly after that, the Government filed a motion to remove Mr. Wells’s second attorney from his defense team. It argued that the federal statute under which the second lawyer was appointed—the Criminal Justice Act—did not require two lawyers in a non-death-penalty case. On the State’s motion, the magistrate removed the second lawyer.

As you may imagine, the defense objected to the Government’s efforts to alter the composition of its team. It argued that the lawyer who was being removed had already spent months working on the case and developing a relationship with the client. It also provided context of which the U.S. Attorney’s office surely knew: Mr. Wells’s only remaining lawyer managed the Alaska Federal Public Defender, which was experiencing an unprecedented fiscal crisis. That office would not be able to provide any further support to Mr. Wells. Meanwhile, the prosecution had three attorneys on the case. The defense also argued that the Government lacked standing to make a motion about who could represent Mr. Wells to begin with. Nonetheless, the magistrate adopted the Government’s position, cutting in half the number of lawyers working for Mr. Wells. (Several months later, Mr. Wells was able to retain the second lawyer and bring him back onto the case for the trial.)

On appeal, the Ninth Circuit panel criticized the prosecution’s gamesmanship. It labelled the Government’s actions “highly unusual,” and observed that their position was “ethically compromised.” Emphasizing the separation of powers, the court wrote that the prosecution “improper[ly] insert[ed]” itself “into a matter exclusively within the province of the judiciary.” Most powerfully, the court observed: “The Government’s decision to insert itself into the important determination of Wells’ fair representation carries with it a reproachable air of stacking the deck, for which we cannot offer tacit acceptance.” Now, the question is: will U.S. Attorneys around the country heed this warning? (For what it is worth, the Ninth Circuit also reversed Mr. Wells’s conviction on other grounds.)

While the outrageous behavior of some prosecutors has brought attention to the problem of prosecutors bullying defense lawyers with professional threats, it appears that scholars and legal commentators have not yet paid much attention to the issues that arise when prosecutors try to have defense lawyers removed from a case. Not only does such a move offend the separation of powers—as the Wells Court recognized—but it also creates major constitutional concerns because the Sixth Amendment protects the defendant’s right to representation. The Ninth Circuit was right to put its concerns in writing. Other defendants who confront prosecutors attempting to pull the same kind of interference can point to this opinion and argue that the removal of a defense lawyer at the prosecution’s request is not just bad optics, it’s bad ethics.

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