Petition for Writ of Certiorari — Luzenski Allen Cottrell, Petitioner v. South Carolina

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2017

No. 17 - __________

Luzenski Allen Cottrell,

Petitioner,

-vs.State of South Carolina,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

SOUTH CAROLINA SUPREME COURT

KEIR M. WEYBLE*

SHERI LYNN JOHNSON

Cornell Law School

158 Hughes Hall

Ithaca, NY 14853

607 255 3805

kw346@cornell.edu

Attorneys for Petitioner

*Counsel of Record

CAPITAL CASE

More than three years after their appointment, and less than three weeks before petitioner’s

South Carolina capital trial was set to begin, the trial judge, over objection, dismissed both of his

lawyers after learning that they had made disparaging remarks about each other in out-of-court

conversations with prosecutors. The court took no evidence and found no facts, but justified

dissolving the attorney-client relationship on the ground that the alleged tension between counsel

would leave a jury verdict against petitioner intolerably vulnerable on state collateral review. The

South Carolina Supreme Court affirmed.

In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), this Court established that the

erroneous removal of a criminal defendant’s counsel of choice is structural error. Because the issue

was undisputed in that case, however, the Court did not explicitly address the anterior question of

the legal standard governing involuntary dissolution of an established attorney-client relationship.

Other lower courts have attempted to fill that gap themselves with slightly varying formulations

informed by this Court’s decisions in Gonzalez-Lopez and other cases. While any of the other lower

courts’ formulations would appear to prohibit what the South Carolina courts did in this case, the

Sixth Amendment doctrine concerning the right to counsel of choice would be materially improved

by an authoritative formulation from this Court.

The question presented is:

Whether a court violates the Sixth Amendment right to counsel of choice when, over

a defendant’s objection, it dissolves an established attorney-client relationship in the

absence of specific findings demonstrating legal disqualification or other extreme

circumstances not curable through a less drastic remedy?

i

TABLE OF CONTENTS

QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

CITATION TO OPINION BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTITUTIONAL PROVISIONS INVOLVED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.

The trial court’s dissolution of Cottrell's defense team based on “absolutely

no investigation” of allegations brought forth by prosecutors. . . . . . . . . . . . . . . . . 2

II.

Cottrell’s direct appeal to the South Carolina Supreme Court. . . . . . . . . . . . . . . . 6

III.

The South Carolina Supreme Court’s decision on direct review.. . . . . . . . . . . . . . 7

REASONS THE WRIT SHOULD BE GRANTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

I.

The state courts’ rule in this case implicates the right to counsel of choice in

any case involving an existing attorney-client relationship. . . . . . . . . . . . . . . . . . . 9

II.

The South Carolina Supreme Court exceeded the boundaries set by this

Court’s cases and would have been prohibited under the varying formulations

used by other lower courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

III.

The perceived risk that Cottrell might “prevail on PCR” had no basis in fact

or law and should not be permitted to stand as precedent justifying

dissolution of an established attorney-client relationship. . . . . . . . . . . . . . . . . . . 15

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

APPENDIX A

Opinion of the South Carolina Supreme Court

APPENDIX B

Record of pretrial proceeding resulting in dismissal of counsel

APPENDIX C

Petitioner’s Pro Se Motion to Maintain Lead Counsel in Death Penalty Case

ii

TABLE OF AUTHORITIES

Federal cases

Cuyler v. Sullivan, 446 U.S. 335 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Harrington v. Richter, 562 U.S. 86 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Morris v. Slappy, 461 U.S. 1 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 13

Nix v. Whiteside, 475 U.S. 157 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Porter v McCollum, 558 U.S. 30 (2009) (per curiam).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Rompilla v Beard, 545 U.S. 374 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Strickland v. Washington, 466 U.S. 668 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 14, 15, 16

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Wheat v. United States, 486 U.S. 153 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 13, 16

State cases

Burnett v. Terrell, 905 N.E.2d 816 (Ill. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Clements v. State, 817 S.W.2d 194 (Ark. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Commonwealth v. Cassidy, 568 A.2d 693 (Pa. Super. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

English v. State, 259 A.2d 822 (Md. 1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Grant v. State, 607 S.E.2d 586 (Ga. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Harling v. United States, 387 A.2d 1101 (D.C. 1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Lane v. State, 80 So.3d 280 (Ala. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

Langford v. State, 426 S.E.2d 793 (S.C. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

McKinnon v. State, 526 P.2d 18 (Alaska 1974).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

People v. Courts, 693 P.2d 778 (Cal. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

iii

People v. Davis, 449 N.E.2d 237 (Ill. App. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

People v. Griffin, 987 N.E.2d 282 (N.Y. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

People v. Harlan, 54 P.3d 871 (Colo. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

People v. Johnson, 547 N.W.2d 65 (Mich. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Smith v. Super. Ct. of L.A. Cnty., 440 P.2d 65 (Cal. 1968). . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

Stearns v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1989). . . . . . . . . . . . . . . . . . . . . . 10, 12, 13

State v. Cottrell, 809 S.E.2d 423 (S.C. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

State v. Fields, 696 S.E.2d 269 (W. Va. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

State v. Huskey, 82 S.W.3d 297 (Tenn. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . 10, 12, 13, 17

State v. Nelson, 333 S.E.2d 499 (N.C. App. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

State v. Sanders, 534 S.E.2d 696 (S.C. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Weaver v. State, 894 So.2d 178 (Fla. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

Williams v. District Court, 700 P.2d 549 (Colo. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Constitutional provisions

U.S. Const. amend. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

U.S. Const. amend. IX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statutes

28 U.S.C. § 1257.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Rules

Rule 407, SCACR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

iv

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2017

No. 17 - __________

Luzenski Allen Cottrell,

Petitioner,

-vs.State of South Carolina,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

SOUTH CAROLINA SUPREME COURT

Petitioner, Luzenski Allen Cottrell, prays that a writ of certiorari issue to review the judgment

of the South Carolina Supreme Court.

OPINIONS BELOW

The opinion of the South Carolina Supreme Court affirming Cottrell’s conviction and death

sentence is published at 809 S.E.2d 423 (S.C. 2017), and is attached as Appendix A. The section

of the record in which the trial court dismissed Cottrell’s counsel over objection is attached as

Appendix B. Petitioner’s Pro Se Motion to Maintain Lead Counsel in Death Penalty Case is

attached as Appendix C.

1

JURISDICTION

The South Carolina Supreme Court affirmed the trial court’s judgment on December 20,

2017, and denied a timely request for rehearing on February 16, 2018. By order dated April 19,

2018, the Chief Justice extended the time to file this petition to and including June 18, 2018. This

Court has jurisdiction pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Sixth Amendment to the United States Constitution, which provides:

“In all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel

for his defense.”

This case also involves the Fourteenth Amendment to the United States Constitution, which

applies the Sixth Amendment to the States and provides in pertinent part: “No state may deprive any

person of life [or] liberty ... without due process of law ....”

STATEMENT OF THE CASE

I.

The trial court’s dissolution of Cottrell’s defense team based on

“absolutely no investigation” of allegations brought forth by prosecutors.

By March of 2012, petitioner Luzenski Allen Cottrell and his two appointed lawyers, Stuart

Axelrod and Lisa Armstrong, had spent more than three years together preparing for Cottrell’s retrial

for the capital offense of killing a South Carolina police officer.1 ROA 388.2 Trial was set to begin

1

Cottrell’s first trial on that charge ended in a conviction and death sentence, but that

judgment was set aside on appeal because the trial court erroneously prevented the jury from

considering the factually colorable defense that the deceased officer’s conduct in the moments

preceding the shooting constituted legal provocation sufficient to reduce the homicide offense to

voluntary manslaughter. State v. Cottrell, 657 S.E.2d 451, 453-54 (S.C. 2008) (Cottrell I).

2

“ROA” refers to the Record on Appeal submitted to and on file with the South Carolina

Supreme Court, whose judgment is the subject of this petition.

2

later that month, on March 26. ROA 380. By all outward indications, the attorney-client

relationship had been an industrious and productive one; counsel met with and consulted Cottrell,

gathered and analyzed the evidence, prepared and argued numerous pretrial motions, and earned and

maintained their client’s trust. See, e.g., ROA 6; 29; 190; 240; 334; 363. The relationship remained

observably functional and oriented toward Cottrell’s defense through March 5, 2012, when the

lawyers appeared and presented arguments together at a pretrial hearing on discovery and other

matters. ROA 336-360.

During that same March 5 hearing, the State gave the trial judge two one-page memoranda

– one dated January 6, 2012, and one dated February 21, 2012 – purporting to summarize

disparaging remarks each defense lawyer had made about the other in conversations with the

individual prosecutors. ROA 358-362. When the pretrial hearing resumed on March 8 as previously

planned, the trial judge announced that a “matter more pressing” had emerged in the form of

allegations by the Solicitor’s office that “a serious rift or problem [was] developing in the defense

team,” and that it had prompted “concern about the defendant’s ability to be effectively represented

by this defense team.” ROA 365.3

After noting that he had “reviewed both of the memorandum [sic] in detail” and spoken

privately with each defense lawyer, the judge declared for the record: “I have made, let me make

this clear, absolutely no investigation to determine whether or not there was any truth to the

allegations. My only concern was whether the allegations had been made.” ROA 366. He then

added: “My inclination is, and I quite frankly feel that I have no alternative but to continue this case

3

Although the first of the two memos given to the trial judge concerned a conversation that

occurred two months earlier, the record suggests no explanation for the prosecutors’ delay in

approaching the trial court about their concerns for the effectiveness of Cottrell’s defense.

3

and relieve one or both counsel in this matter and hire a substitute.” ROA 367.

The trial judge then invited the parties to speak. The prosecution went first, claiming concern

for Cottrell’s right to be “adequately” and “effectively represented,” and worrying that “a postconviction relief [sic] would be granted if we went forward with the trial ....” ROA 368. Defense

counsel Armstrong – who was the subject of the second, more recent, prosecutor memo – was

conciliatory and optimistic: “I would like to reiterate, that as far as I’m concerned I can set aside my

personal misgivings about dealing with co-counsel and one thing I have never questioned is his

commitment to Mr. Cottrell, notwithstanding some impressions that I’ve gotten and may have been

wrong about.” ROA 369. Defense counsel Axelrod agreed that Cottrell’s defense was “most

important” and that the Solicitor’s “memo solidifies probably a PCR,” but suggested Cottrell himself

should be consulted. ROA 370.

When asked for “any comments” he might have, ROA 371, Cottrell said that the allegations

of dysfunction portrayed in the prosecution’s memos were news to him, but made clear that he

trusted and valued Axelrod and needed a chance to speak to his lawyers:

Your Honor, I know from my knowledge from speaking with both

my attorneys that I know Mr. Axelrod’s strategy. I know that he’s

been preparing diligently for my trial. We’ve spoken on numerous

occasions about how he would like to proceed and I feel confident in

his ability to represent me as the attorney for this trial.

I just became aware of this rift between the two attorneys. I had no

idea that it was there. It does cause me concern as well but if I could

I would like to speak with both of them, you know. I haven’t had a

chance to do that since I found out ....

ROA 371-372. The court then declared a recess to permit the meeting Cottrell had requested.

When the proceedings resumed a short time later, Cottrell reported to the court that his

4

lawyers “would be able to work together.” ROA 372. He went on to “reiterate that I do feel

confident in the representation,” and emphasized that his confidence in Axelrod was especially

strong: “I know that the work that Mr. Axelrod has done in the first part of the trial of this case, I

don’t think it can be matched by anybody else.” ROA 373.

Unpersuaded by the assurances that counsel could work together despite their personal

differences, or by the strength of Cottrell’s relationship with Axelrod, and without taking any

additional evidence or making any findings of fact, the trial judge followed his initial “inclination”

and summarily removed both lawyers:

As I’ve said I have been very careful not to go into the specifics other

than general allegations, but there have been allegations involving

dishonesty, unethical conduct, personal problems that should be

addressed, all sorts of things that I believe on review would be

matters that would be of grave concern to a PCR judge .... I’m telling

you that if it reaches that point that could certainly be a problem.

I don’t think that ... I have any alternative than to relieve counsel in

this matter, both attorneys. I am going to appoint someone, I’m going

to give them adequate opportunity to pick up your defense and they

will, I’m sure, proceed in the same fashion or very much the same

fashion.

ROA 374-375.4 In reaching these conclusions, the trial judge neither articulated nor purported to

apply any recognized legal standard applicable to the dissolution of an existing attorney-client

relationship. He likewise offered no explanation for removing both lawyers instead of just one.

Six days after the trial judge ruled from the bench, on March 14, 2012, Cottrell filed a pro

4

In a written order entered five days later, the trial judge discounted counsel’s assurances that

they could set aside their differences, ROA 381 (“This is a capital case two weeks from trial. I see

no way to repair the relationship of co-counsel and the damage done to the defense.”), and insisted

that his “duty at this point is to protect this defendant by taking the course most likely to assure that

he will be effectively represented and his constitutional rights will be preserved,” id.

5

se motion in the South Carolina Supreme Court seeking to reinstate Axelrod as lead counsel and to

eliminate the source of any possible team dysfunction by removing Armstrong from the case. ROA

383-386. That motion was summarily “dismissed” by the South Carolina Supreme Court on the

ground that “no extraordinary reason exists to entertain [it] ....” ROA 391. Cottrell’s request to

reinstate Axelrod was later renewed by replacement counsel, who pointed out that if the issue “was

one of dysfunction between the two [dismissed lawyers], it would seem that if Mr. Axelrod stayed

alone or paired up with new counsel, the problem would have been resolved.” ROA 559. Counsel

also contended that Axelrod’s removal violated Cottrell’s Sixth Amendment right to counsel,

because once a relationship between the defendant and appointed counsel is established, “it is

entitled to constitutional protection and respect.” Id. In response, the judge offered no further

explanation for the decision to permanently remove both Armstrong and Axelrod.

Instead, he

maintained only that he knew what was best for Cottrell and his defense. ROA 560 (“Let me assure

you that everything I did in that regard was to protect you. Let me assure you of that.”).

The case proceeded to trial, where Cottrell was convicted and sentenced to death.

II.

Cottrell’s direct appeal to the South Carolina Supreme Court.

Cottrell appealed directly to the South Carolina Supreme Court, asserting that the trial court’s

dissolution of his longstanding relationship with both of his attorneys violated his Sixth Amendment

right to counsel, and that, pursuant to United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the

error required automatic reversal. In support of his claim, Cottrell acknowledged that, as an indigent

defendant, he did not enjoy the same right to select a lawyer with whom to form a relationship as

would a defendant with greater financial means. But he maintained that where, as in this case, an

attorney-client relationship has already formed and become established, that relationship merits the

6

same protection regardless of whether counsel arrived at it by way of appointment or retainer.

Cottrell further contended that the decision to remove both lawyers in this case not only lacked

factual support in the record developed by the trial court, but also ran afoul of the standards for the

removal of counsel over a defendant’s objection that have been embraced and applied by every other

state court to have addressed the question. Finally, Cottrell argued that even if the intra-defenseteam dysfunction alleged by the prosecution did require some intervention, removal of both counsel

rather than just one was too extreme. See generally, Final Brief of Appellant at 10-23.

III.

The South Carolina Supreme Court’s decision on direct review.

The South Carolina Supreme Court agreed that a criminal defendant’s “relationship with

appointed attorneys, once established, should be afforded the same level of deference as that which

is afforded to clients with retained counsel[.]” State v. Cottrell, 809 S.E.2d 423, 430 (S.C. 2017).

The court also agreed that, “‘as a procedural safeguard, an evidentiary hearing is appropriate to

determine whether there is evidence to support counsel’s removal,’” and that the absence of evidence

or findings concerning “the allegations” underlying the trial judge’s action in this case was

“somewhat problematic.” Id. at 431 (quoting State v. Sanders, 534 S.E.2d 696, 698 (S.C. 2000)).

This concern notwithstanding, the South Carolina Supreme Court accepted that “the

allegations” – which were neither specified in the record, Cottrell, 809 S.E.2d at 431, nor

investigated by the trial court, ROA 374 – posed a sufficient risk of generating a meritorious claim

for state collateral relief to justify – perhaps even mandate – removal of Cottrell’s lawyers:

[O]nce one of Cottrell’s attorneys admitted on the record that he

believed Cottrell would likely prevail on PCR based on these

allegations, we find the trial judge had little choice but to remove the

attorneys to preserve the integrity of the trial in accordance with

Gonzales-Lopez and Sanders. The right to counsel is not so absolute

7

that it requires a trial judge to preside over a trial, exhausting the time

of attorneys, jurors, and judicial staff despite an admission by a

defendant’s attorney that the integrity of the verdict is in doubt due to

conduct falling below the accepted standards of the legal profession.

Cottrell, 809 S.E.2d at 431. While the court did not cite Strickland v. Washington, 466 U.S. 668

(1984), its references to “prevail[ing] on PCR” and “conduct falling below the accepted standards

of the legal profession” make plain that it was responding to a perceived risk that maintaining

Axelrod and/or Armstrong as defense counsel would have somehow given rise to a meritorious Sixth

Amendment ineffective assistance of counsel claim.5 Like the trial court below, however, the South

Carolina Supreme Court did not elaborate on how the lawyers’ disparaging statements pointed to an

imminent violation of the right to effective assistance of counsel or how a lawyer’s conclusory

“admission” of such an imminent violation might qualify as a substitute for a factual record. Nor

did either court acknowledge the alternative and less extreme remedy – specifically requested in

Cottrell’s pro se filing and reiterated later by replacement counsel – of eliminating the source of any

remaining dysfunction by removing Armstrong but retaining Axelrod.6

5

While the court’s reference to “the accepted standards of the legal profession” might also

call to mind the rules of professional responsibility, it is axiomatic that a mere breach of those rules,

without more, does not give rise to a colorable claim for post-conviction relief in a criminal case.

See, e.g., Nix v. Whiteside, 475 U.S. 157, 165 (1986) (“[B]reach of an ethical standard does not

necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel.”);

Langford v. State, 426 S.E.2d 793, 795 (S.C. 1993) (quoting Rule 407, SCACR) (“In our view, the

Rules of Professional Conduct have no bearing on the constitutionality of a criminal conviction.

Their purpose is to regulate and guide the legal profession by defining proper ethical conduct, and

‘nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the

extra-disciplinary consequences of violating such a duty.’”).

6

The justification for affirmance offered by the separate concurring opinion was no more

illuminating than that of the majority. After expressing sharp disagreement with the majority’s

conception of the breadth of discretion afforded to a trial judge, and lamenting the inadequacy of the

record made below, the concurring justice simply declared the circumstances “unique” and unworthy

of a new trial. See Cottrell, 809 S.E.2d at 438-440 (Few, J., concurring).

8

REASONS THE WRIT SHOULD BE GRANTED

The South Carolina Supreme Court’s endorsement of the abrupt dissolution, over objection,

of a capital defendant’s long-established relationship with his counsel, on a barren record and for a

stated purpose recognized by no other court, violated Cottrell’s Sixth Amendment right to counsel

of choice and threatens enforcement of that right in all future cases, whether counsel is appointed

or retained. This Court’s intervention is necessary not only to correct the South Carolina courts’

error in this case, but also to ensure more broadly that the Sixth Amendment’s “command[]” “that

the accused be defended by the counsel he believes to be best,” Gonzalez-Lopez, 548 U.S. at 146,

is followed in the absence of a genuine “need,” id. at 147 n.3, to override it.

I.

The state courts’ rule in this case implicates the right to counsel of choice

in any case involving an existing attorney-client relationship.

As a practical matter, the Sixth Amendment “right to counsel of choice,” Gonzalez-Lopez,

548 U.S. at 146, is made up of two related but separable components: first, the right to choose the

lawyer with whom an attorney-client relationship is to be started; and second, the right to maintain

and benefit from an established, functional attorney-client relationship free of unwarranted external

interference. See Wheat v. United States, 486 U.S. 153, 159 (1988) (observing that Sixth

Amendment “comprehend[s]” “the right to select and be represented by one’s preferred attorney”)

(emphasis added).

As an indigent defendant, Cottrell had no say in the initial selection of the lawyers assigned

to represent him. Gonzalez-Lopez, 548 U.S. at 151 (“the right to counsel of choice does not extend

to defendants who require counsel to be appointed for them”). But once the assignment was made

– and certainly by the time the trial court intervened more than three years later, virtually on the eve

9

of trial – Cottrell’s interest in maintaining the relationship he had built with his counsel was

constitutionally indistinguishable from that of a defendant paying counsel from his own pocket. See

Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980) (“[W]e see no basis for drawing a distinction

between retained and appointed counsel that would deny equal justice to defendants who must

choose their own lawyers.”); Morris v. Slappy, 461 U.S. 1, 23 n.5 (1983) (Brennan, J., concurring

in the result) (“[T]he considerations that may preclude recognition of an indigent defendant’s right

to choose his own [court-appointed] counsel, such as the State’s interest in economy and efficiency,

... should not preclude recognition of an indigent defendant’s interest in continued representation by

an appointed attorney with whom he has developed a relationship of trust and confidence.”).7

The South Carolina Supreme Court accepted this principle when it observed that “Cottrell’s

... relationship with [his] appointed attorneys, once established, should be afforded the same level

of deference as that which is afforded to clients with retained counsel[.]” Cottrell, 809 S.E.2d at

430. Accordingly, when it went on to endorse as a valid exercise of the trial court’s “broad

7

See also, e.g., Lane v. State, 80 So.3d 280, 295 (Ala. Crim. App. 2010) (“With respect to

continued representation, however, there is no distinction between indigent defendants and

nonindigent defendants.”); Smith v. Super. Ct. of L.A. Cnty., 440 P.2d 65, 74 (Cal. 1968) (“To hold

otherwise would be to subject that relationship to an unwarranted and invidious discrimination

arising merely from the poverty of the accused.”); Weaver v. State, 894 So.2d 178, 189 (Fla. 2004)

(“To allow trial courts to remove an indigent defendant’s court-appointed counsel with greater ease

than a non-indigent defendant’s retained counsel would stratify attorney-client relationships based

on defendants’ economic backgrounds.”); People v. Davis, 449 N.E.2d 237, 241 (Ill. App. 1983)

(“[F]or purposes of removal by the trial court, a court-appointed attorney may not be treated

differently than privately retained counsel.”); State v. Huskey, 82 S.W.3d 297, 305 (Tenn. Crim. App.

2002) (“[A]ny meaningful distinction between indigent and non-indigent defendants’ right to

representation by counsel ends once a valid appointment of counsel has been made.”); Stearns v.

Clinton, 780 S.W.2d 216, 223 (Tex. Crim. App. 1989) (“[T]he power of the trial court to appoint

counsel to represent indigent defendants does not carry with it the concomitant power to remove

counsel at his discretionary whim [because] to hold otherwise would be to discriminate between

retained and appointed counsel without a semblance of rationality.”).

10

discretionary authority” the removal of Cottrell’s lawyers in the absence of an evidentiary record or

specific factual findings, and on the basis of a speculative theory about “PCR” implications, the

South Carolina Supreme Court set a precedent applicable to all attorney-client relationships,

appointed or retained. Id. The question, therefore, is whether the approach taken by the state courts

here is consistent with the limitations on the right to counsel of choice recognized by this Court and

the interpretations and applications of those limits reflected in the decisions of other state courts.

As discussed below, it is not.

II.

The South Carolina Supreme Court exceeded the boundaries set by this

Court’s cases and would have been prohibited under the varying

formulations used by other lower courts.

This Court has recognized some limits on the right to maintain a relationship with counsel

of choice, but the state courts’ action in this case does not align with any of them. For example,

Wheat cited the federal courts’ “independent interest in ensuring that criminal trials are conducted

within the ethical standards of the profession and that legal proceedings appear fair to all who

observe them” as reasons for upholding a trial court’s refusal to permit a single lawyer to

simultaneously represent three criminal defendants despite their attempts to waive the obvious

potential conflict. Wheat, 486 U.S. at 160. And in Slappy, this Court reversed a grant of habeas

relief where the record made clear that although the prisoner’s substitute counsel had been appointed

to replace a physically incapacitated lawyer only six days before trial, the replacement lawyer still

had adequate time to prepare, and the prisoner’s request for a continuance to facilitate the return of

his original lawyer was not made until the third day of trial. Slappy, 461 U.S. at 12-13.

Although their formulations vary and would benefit from an authoritative statement by this

Court, lower courts outside South Carolina generally treat a trial judge’s discretion to sever an

11

established attorney-client relationship – retained or appointed – over the defendant’s objection as

“severely limited.” Huskey, 82 S.W.3d at 308; People v. Courts, 693 P.2d 778, 781 (Cal. 1985).

“Gross incompetence or physical incapacity, or contumacious conduct that cannot be cured by a

citation for contempt may justify the court’s removal of an attorney[] over the defendant’s

objection.” Harling v. United States, 387 A.2d 1101, 1105 (D.C. 1978) (quoted in Huskey, 82

S.W.3d at 308); accord Lane, 80 So.2d at 299; Smith, 440 P.2d at 72-74; Weaver, 894 So.2d at 189;

Burnett v. Terrell, 905 N.E.2d 816, 824-25 (Ill. 2009); People v. Johnson, 547 N.W.2d 65, 69 (Mich.

1996). “However, mere disagreement as to the conduct of the defense certainly is not sufficient to

permit the removal of any attorney.” Huskey, 82 S.W.3d at 309 (quoting Harling, 387 A.2d at 1105);

accord McKinnon v. State, 526 P.2d 18, 22 (Alaska 1974); Clements v. State, 817 S.W.2d 194, 200

(Ark. 1991); Davis, 449 N.E.2d at 242; Stearns, 780 S.W.2d at 223.

These courts have likewise emphasized the seriousness and care with which the prospect of

removing a defendant’s lawyer must be approached, and have made clear that unwarranted

separation of client and attorney amounts to a violation of the right to counsel. McKinnon, 526 P.2d

at 22-23 (“Once counsel has been appointed, and the defendant has reposed his trust and confidence

in the attorney assigned to represent him, the trial judge may not, consistent with the United States

... [C]onstitution[], rend that relationship by dismissing the originally appointed attorney and then

thrusting unfamiliar and unwelcome counsel upon the defendant.”); Clements, 817 S.W.2d at 200

(“[W]here, as here, a trial court terminates the representation of an attorney, either private or

appointed, over the defendant’s objection and under circumstances which do not justify the lawyer’s

removal and which are not necessary for the efficient administration of justice, a violation of the

12

accused’s right to particular counsel occurs.”).8

In this case, “[n]one of the[] limitations on the right to choose one’s counsel” recognized by

this Court or others “is relevant[.]” Gonzalez-Lopez, 548 U.S. at 152. The record before the trial

court gave no hint of the clear and present danger of a conflict of interest that justified dissolving the

attorney-client relationship in Wheat; unlike in Slappy, there was no concern over counsel’s physical

availability to appear and try the case as scheduled; nor was there even an allegation, let alone hard

facts, suggesting either gross incompetence or contumaciousness not curable by other means.

8

Accord People v. Harlan, 54 P.3d 871, 878 (Colo. 2002) (quoting Williams v. District Court,

700 P.2d 549, 555 (Colo. 1985)) (an indigent defendant is entitled to “continued and effective

representation by court-appointed counsel in the absence of a demonstrable basis in fact and law to

terminate that appointment”); Harling, 387 A.2d at 1106 (“The court’s discharge of appellant’s

[appointed] attorney [without cause] was not only an encroachment on appellant’s right to counsel,

but also a threat to the independence of the bar which represents indigent defendants.”); Grant v.

State, 607 S.E.2d 586, 587 (Ga. 2005) (interest in appointing local counsel was not sufficient “to

overcome the strong interest of the defendant and of the court system in sustaining an existing, close

relationship between a death penalty defendant and his counsel”); English v. State, 259 A.2d 822,

826 (Md. 1969) (“[O]nce counsel has been chosen, whether by the court or the accused, the accused

is entitled to the assistance of that counsel at trial.”) (emphasis in original); Johnson, 547 N.W.2d

at 69 (“[O]nce an attorney is serving under a valid appointment by the court and an attorney-client

relationship has been established, the trial court may not arbitrarily remove the attorney over the

objection of both the defendant and counsel.”); State v. Nelson, 333 S.E.2d 499, 501 (N.C. App.

1985), aff'd, 341 S.E.2d 561 (N.C. 1986) (“[W]hen an indigent defendant has confidence in and is

satisfied with the appointed lawyer that has handled his case to the eve of trial, ... he should not be

deprived of that counsel’s services during the trial except for justifiable cause.”); People v. Griffin,

987 N.E.2d 282, 284 (N.Y. 2013) (“courts cannot arbitrarily interfere with the attorney-client

relationship, and interference with that relationship for purpose of case management is not without

limits, and is subject to scrutiny”); Commonwealth v. Cassidy, 568 A.2d 693, 698 (Pa. Super. 1989)

(“[A] presumption must first be recognized in favor of the defendant’s counsel of choice; to

overcome that presumption, there must be a demonstration of an actual conflict or a showing of a

serious potential for conflict.”) (emphasis by the court); Huskey, 82 S.W.3d at 311 (removal of

appointed counsel in response to counsel’s motion practice was unwarranted because it failed to

accord sufficient weight to court’s “obligation to protect the defendant’s right to the effective

assistance of his counsel of choice”); Stearns ,780 S.W. 2d at 225 (“Once a valid appointment has

been made, the trial court cannot arbitrarily remove him as attorney of record over the objections of

the defendant and counsel.”); State v. Fields, 696 S.E.2d 269, 274 (W. Va. 2010) (“upon conducting

a hearing, a circuit court can remove a court-appointed attorney for good cause”).

13

Instead, the thin record before the state courts showed nothing more than unexplored, unresolved

“allegations” amongst the lawyers from which the trial judge presumed (erroneously, as discussed

infra) a Strickland violation in the making.

Also absent from the proceedings below is any sign of concern by either state court for the

Sixth Amendment’s “particular guarantee ... that the accused be defended by the counsel he believes

to be best.” Gonzalez-Lopez, 548 U.S. at 146. Cottrell made clear both at the March 8 hearing and

again in his pro se written submission on March 14 that he had sincere, specific confidence in

Axelrod’s ability, and did not “think it can be matched by anybody else.” ROA 373. The response

from the trial court could hardly have been less solicitous of Cottrell’s expressed wishes or the Sixth

Amendment interests they reflected. Without a word on either point, and without any apparent

consideration for the obviously less drastic option of removing Armstrong but retaining Axelrod, the

judge simply declared that he had no “alternative,” and left Cottrell with the hollow consolation that

he would “appoint someone,” and that someone “will, I’m sure, proceed in the same fashion or very

much the same fashion.” ROA 374-375. And while the South Carolina Supreme Court purported

to afford “deference” to the attorney-client relationship Cottrell had sought to preserve, the content

of its discussion demonstrates that its real energies were devoted, not to safeguarding Cottrell’s right

to keep a trusted, competent, non-conflicted lawyer, but instead to justifying the trial court’s removal

of both lawyers from the case. Cottrell, 809 S.E.2d at 430-431. That effort was misplaced, both

because it represented an inversion of the constitutional priorities that should have guided the court’s

review, and because the “PCR” concern cited by the trial court was obviously and irredeemably

meritless.

14

III.

The perceived risk that Cottrell might “prevail on PCR” had no basis in

fact or law and should not be permitted to stand as precedent justifying

dissolution of an established attorney-client relationship.

The South Carolina Supreme Court identified one reason justifying the trial court’s

dissolution of Cottrell’s three-year relationship with his two lawyers: that “one of Cottrell’s

attorneys” – Axelrod – “admitted on the record that he believed Cottrell would likely prevail on PCR

based on the[] allegations ....” Cottrell, 809 S.E.2d at 431; see also id. (declaring that counsel’s

conclusory opinion on this point left the trial court with “little choice but to remove the attorneys”);

ROA 374-375 (trial court observing that “allegations” “would be of grave concern to a PCR judge,”

and that, “I don’t think that ... I have any alternative than to relieve counsel in this matter, both

attorneys”). Because it is well known that mere breaches (or alleged breaches) of the rules of

professional responsibility do not entitle a prisoner to post-conviction relief, see Nix and Langford,

supra at n. 5, the statements of the courts below could only have been grounded in concern that the

“allegations” were enough to make out a winning claim of ineffective assistance of counsel under

the Strickland standard. That concern was plainly unfounded.

Under Strickland, “[t]he question is whether an attorney’s representation amounted to

incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or

most common custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466

U.S. at 690). At the pre-trial stage – where Cottrell’s representation was interrupted – counsel’s

competence in light of professional norms could only have been assessed by whether they had

discharged their “duty to make reasonable investigations or to make a reasonable decision that makes

particular investigations unnecessary,” and by whether they had rendered themselves fit to “to make

the adversarial testing process work” at the upcoming trial by preparing to challenge the State’s case

15

using the mechanisms available to them.9 Strickland, 466 US at 690-691; see also, e.g., Porter v

McCollum, 558 U.S. 30, 39-40 (2009) (per curiam); Rompilla v Beard, 545 U.S. 374, 389 (2005).

A trial judge concerned about counsel’s compliance with the Strickland standard would have

made some inquiry along these dimensions. Such a judge might have asked, for example, whether

counsel had performed an adequate investigation of the facts; whether they had formulated a theory

of the case plausibly grounded in the evidence and the law; and whether they were prepared to

advance that theory at trial through argument, cross-examination of the prosecution’s witnesses, and

perhaps presentation of a defense case-in-chief. A judge specifically concerned that interpersonal

conflict among counsel might impair their performance of these duties might also have asked

whether, regardless of any personal animosities, the lawyers remained capable of directing their

efforts toward the professionally competent advancement of their client’s interest in a fair trial.10

The trial judge in this case asked none of these questions, and therefore lacked even the beginnings

of a factual basis from which to conclude that Strickland-related “PCR” trouble was ahead.

What the record did show was that, regardless of the lawyers’ purported dislike for one

9

There may be extreme cases – such as newly pending criminal charges or sudden grave

illness – in which counsel has performed well in the pre-trial phase but there is reason to doubt his

or her ability to perform adequately at trial. Such circumstances are not present in this case.

10

The availability – and likely efficacy – of an inquiry along these lines distinguishes cases

involving concerns about possible Strickland ineffectiveness from those in which a trial court must

address the possibility of a developing conflict of interest. As this Court explained in Wheat, a

careful trial judge must have “broad latitude” to make a less than fully informed decision in a

potential conflict case because “[t]he likelihood and dimensions of nascent conflicts of interest are

notoriously hard to predict, even for those thoroughly familiar with criminal trials.” Wheat, 486 U.S.

at 162-163; see also id. at 163 (“A few bits of unforeseen testimony or a single previously unknown

or unnoticed document may significantly shift the relationship between multiple defendants.”). As

illustrated in the text above, assessing a lawyer’s pre-trial compliance with the requirements of

Strickland is different – and not nearly so speculative.

16

another, Axelrod (and perhaps Armstrong) had not neglected the duty to investigate, and was not

approaching trial without a plausible theory of defense in which the client believed. Cottrell himself

advised the judge that Axelrod had “been preparing diligently” and had made his client “confident

in his ability to represent me as the attorney for this trial.” ROA 371; see also ROA 373 (Cottrell:

“I know that the work that Mr. Axelrod has done in the first part of the trial of this case, I don’t think

it can be matched by anybody else.”). That assessment was consistent with what the trial judge

himself had witnessed just three days earlier when both lawyers appeared before him, delivered

detailed and coherent arguments on discovery issues, and gave every appearance of being fully

engaged in the final stages of trial preparation.11 See ROA 336-359.

Given what was known to the trial court and what that court did not bother to ask, there

simply was no basis for the South Carolina Supreme Court’s conclusion that Axelrod’s conclusory

“belie[f]” that “Cottrell would likely prevail on PCR” left the trial judge with “little choice but to

remove the attorneys ....” Cottrell, 809 S.E.2d at 431. Whatever Axelrod might have been thinking

when he made that remark, no court with even a passing knowledge of the Strickland standard – or

of the more general requirements for successfully challenging a criminal conviction – could have

taken it as conclusive (or even likely) proof of a looming constitutional violation. And in the

absence of a concern rising to that level, the decision below amounts to a serious infringement of the

Sixth Amendment right to maintain an established relationship with one’s counsel of choice, and a

stark departure from the consensus among courts outside South Carolina that a trial judge’s power

to interfere with that right should be “severely limited.” Huskey, 82 S.W.3d at 308.

11

Moreover, counsel’s joint appearance and cooperation at the March 5 hearing also

supported Armstrong’s March 8 representation to the trial judge that counsel could set aside their

personal hostilities and work together for the good of their client. See ROA 369.

17

Finally, even if the trial court here had been justified in taking some action to address the

alleged defense team dysfunction, the remedy it chose was far broader than necessary. As the trial

court framed it, the pivotal question was “whether or not ... the issues that have developed between”

Axelrod and Armstrong were “jeopardiz[ing]” Cottrell’s defense. ROA 366. Assuming they were

– as the trial judge appeared to do – that problem could have been solved simply by removing one

member of the team. Cottrell himself requested exactly that in the “Pro Se Motion to Maintain Lead

Counsel in Death Penalty Case” he submitted to the South Carolina Supreme Court, ROA 391, and

replacement counsel later reiterated it to the trial court, ROA559. Had either court granted that

entirely reasonable – and effective – request, the counsel of choice violation in this case could have

been mitigated or avoided, and Cottrell could have proceeded to his capital trial confident that he

was being “defended by the counsel he believes to be best.” Gonzalez-Lopez, 548 U.S. at 146.

18

CONCLUSION

WHEREFORE, for the foregoing reasons, this Court should grant certiorari.

KEIR M. WEYBLE*

SHERI LYNN JOHNSON

Cornell Law School

158 Hughes Hall

Ithaca, NY 14853

607 255 3805

kw346@cornell.edu

/s/ Keir M. Weyble

Attorney for Petitioner

June 15, 2018

*Counsel of Record

19