Reply Brief — William Allen Davis, Petitioner v. Colorado

No. 23-1096

In the

Supreme Court of the United States

_________________________

WILLIAM ALLEN DAVIS,

Petitioner,

V.

COLORADO,

Respondent.

_________________________

On Petition for a Writ of Certiorari

to the Colorado Supreme Court

_________________________

REPLY BRIEF FOR PETITIONER

_________________________

MALLIKA L. MAGNER

P.O. BOX 1666

Crested Butte, CO 81224

STUART BANNER

Counsel of Record

UCLA School of Law

Supreme Court Clinic

405 Hilgard Ave.

Los Angeles, CA 90095

(310) 206-8506

banner@law.ucla.edu

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

REPLY BRIEF FOR PETITIONER .......................... 1

I.

Colorado’s defense of the decision

below rests on a misunderstanding

of this Court’s cases. ............................................ 1

II. Colorado errs in minimizing the

importance of the conflict. ................................... 5

CONCLUSION ......................................................... 10

ii

TABLE OF AUTHORITIES

CASES

Caplin & Drysdale, Chartered v. United

States, 491 U.S. 617 (1989) .................................. 6-7

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

1991) .................................................................... 5, 7

Commonwealth v. Jordan, 733 N.E.2d 147

(Mass. App. Ct. 2000) .............................................. 7

Daniels v. Lafler, 501 F.3d 735 (6th Cir.

2007) ........................................................................ 5

Gideon v. Wainwright, 372 U.S. 335 (1963) ........... 1-2

Harling v. United States, 387 A.2d 1101

(D.C. Ct. App. 1978) ................................................ 5

In re Welfare of M.R.S., 400 N.W.2d 147

(Minn. Ct. App. 1987) .............................................. 5

Lane v. State, 80 So. 3d 280 (Ala. Ct. Crim.

App. 2010) ................................................................ 7

Morris v. Slappy, 461 U.S. 1 (1983) ................... 2, 6, 8

People v. Espinal, 781 N.Y.S.2d 99 (N.Y.

App. Div. 2004) .................................................... 5, 7

People v. Johnson, 547 N.W.2d 65 (Mich. Ct.

App. 1996) ............................................................ 5, 7

People v. Jones, 91 P.3d 939 (Cal. 2004) ................... 9

People v. Rainey, 527 P.3d 387 (Colo.

2023) ..................................................................... 3-4

Smith v. Superior Court, 440 P.2d 65 (Cal.

1968) ..................................................................... 8-9

State v. Cottrell, 809 S.E.2d 423 (S.C. 2017) ............. 7

State v. Huskey, 82 S.W.3d 297 (Tenn. Ct.

Crim. App. 2002) ................................................. 5, 7

State v. McKinley, 860 N.W.2d 874 (Iowa

2015) ........................................................................ 7

State v. Taylor, 171 A.3d 1061 (Conn. Ct.

App. 2017) ................................................................ 7

iii

State ex rel. Allen v. Carroll Circuit Ct., 226

N.E.3d 206 (Ind. 2024) ............................................ 6

Stearnes v. Clinton, 780 S.W.2d 216 (Tex. Ct.

Crim. App. 1989) ..................................................... 7

United States v. Gonzalez-Lopez, 548 U.S.

140 (2006) ......................................................... 3, 6-7

Weaver v. State, 894 So. 2d 178 (Fla. 2004) .............. 7

Wheat v. United States, 486 U.S. 153 (1988) ............ 6

1

REPLY BRIEF FOR PETITIONER

Everyone agrees that the Sixth Amendment right

to counsel limits a trial court’s power to force a defendant to change lawyers against his will—at least

where the defendant is paying the bill. The question

in this case is whether the same is true where the

defendant is too poor to hire his own lawyer. As Colorado concedes, the lower courts are deeply divided

on this question. On one side, most courts hold that

lawyers for poor defendants are no more fungible

than lawyers for rich defendants, and that the Sixth

Amendment accordingly protects rich and poor alike.

On the other side, a few courts, including the Colorado Supreme Court below, hold that the Sixth

Amendment affords less protection to the poor.

Colorado spends most of its brief in opposition defending the decision below, BIO 8-22, but its argument rests on a misunderstanding of this Court’s

cases. The state is no more successful in its attempt

to minimize the importance of the conflict among the

lower courts. Id. at 22-33. This issue is one that recurs often, it is one the Court has never addressed,

and it has been percolating in the lower courts for

decades. The Court should grant certiorari.

I. Colorado’s defense of the decision

below rests on a misunderstanding

of this Court’s cases.

Colorado offers six arguments, all unsound, in defense of the decision below.

The state begins with what it calls a textual argument. Id. at 8-9. Colorado notes that before Gideon v. Wainwright, 372 U.S. 335 (1963), the Sixth

Amendment was not understood to require the gov-

2

ernment to provide counsel for indigent defendants.

BIO 8-9. Now that indigent defendants do have that

right, however, the text of the Sixth Amendment

provides no basis for distinguishing between rich defendants and poor ones. It provides the same right to

counsel for everyone. Unless the Court is prepared to

overrule Gideon, a measure that Colorado does not

propose, the decision below is difficult to reconcile

with the Sixth Amendment’s text.

Second, Colorado erroneously suggests that the

decision below is compelled by Morris v. Slappy, 461

U.S. 1 (1983). BIO 10-12. As we explained in our certiorari petition, Pet. 25-26, Slappy did not address

our issue. The question in Slappy was whether the

Sixth Amendment guarantees a “meaningful relationship” with counsel rather than merely the assistance of counsel. 461 U.S. at 13. The Court held that

it does not. Id. at 13-14.

Slappy thus has no bearing on whether rich and

poor defendants should be treated identically when a

trial court wants to force a defendant to switch lawyers. In this situation, a poor defendant is not claiming a right to a meaningful relationship with his

counsel. He is only claiming that he has the same

right to continue being represented by his counsel as

is enjoyed by a rich defendant.

Third, Colorado argues that the Sixth Amendment

does not restrict a trial court’s power to force any defendant to change lawyers, even a defendant who

has hired his own counsel. BIO 12-14. Here, Colorado is simply mistaken. The Sixth Amendment “commands, not that a trial be fair, but that a particular

guarantee of fairness be provided—to wit, that the

accused be defended by the counsel he believes to be

3

best.” United States v. Gonzalez-Lopez, 548 U.S. 140,

146 (2006). Before a trial court can compel a rich defendant to change lawyers against his will, the court

needs a good reason at the very least. This is the

unanimous view of the lower courts on both sides of

the conflict on the question presented, including the

courts below. Pet. App. 8a, 18a-19a. The conflict is

over whether the same rule applies to poor defendants.

Fourth, Colorado repeats the argument erroneously adopted below by the Colorado Supreme Court,

People v. Rainey, 527 P.3d 387, 393 (Colo. 2023)—

that the right to continue being represented by a

specific attorney is entirely derivative of the right to

choose that attorney in the first place. BIO 14-18. As

we explained in our certiorari petition, this argument is incorrect. Pet. 24-25. At the beginning of a

case, indigent defendants must accept the attorneys

assigned to them, because there is no other practical

way to provide lawyers to all the defendants who

need them. Once defense counsel has begun working

on a case, however, there is no longer any reason for

treating poor defendants differently from rich ones.

At that point, all defendants are in the same position, so the Sixth Amendment should apply equally

to all of them.

Fifth, Colorado suggests that the Sixth Amendment need not protect poor defendants as much as

rich ones, because weaker protection is good enough.

BIO 18-19. This suggestion misapprehends the question presented, which asks whether rich and poor

defendants should be treated equally, not whether

any specific level of protection is adequate.

4

In any event, weaker protection is not good

enough. Under the decision below, a trial court can

force a defendant to change lawyers at any time, for

any reason or no reason, so long as the defendant

cannot show prejudice—that is, so long as the defendant cannot show that he would have been acquitted if he had been allowed to stick with his original attorney. Pet. App. 11a; Rainey, 527 P.3d at 396.

As amicus NACDL demonstrates, this is scant protection indeed. NACDL Br. 16-21. Appointed counsel

must constantly worry about annoying the trial

judge with motions or objections, for fear of being replaced with a new attorney. Lawyers for the rich

have no such worries. Unlike lawyers for the poor,

they are free to advocate zealously for their clients.

Sixth, and finally, Colorado contends that the decision below does not establish a two-tier system of

justice. BIO 20-22. It does. Colorado law now explicitly provides two different standards to govern

whether the trial court may force the defendant to

change lawyers mid-case, one standard for rich defendants and another for poor defendants. The

standard for rich defendants is a multi-factor test

that values the attorney-client relationship for its

own sake, a test that can produce a reversal even

where the defendant cannot show prejudice from being forced to change lawyers. Rainey, 527 P.3d at

393 & n.2. Poor defendants, by contrast, must show

prejudice, under a test that does not place any value

on the attorney-client relationship. Id. at 394.

The practical effect of this two-class system can be

seen in our case. On the eve of trial, the trial judge

revoked the appointment of William Davis’s lawyer,

who had been working on the case for several

5

months, because the judge was irritated that the

case was being tried at all. Pet. 4. If Davis had been

a wealthy man who was paying his own lawyer,

there is little chance the trial court would have

forced a new lawyer upon him. If it had, his conviction would have been reversed. We know this for certain because Davis’s conviction was reversed by the

Court of Appeals, which held that the Sixth Amendment applies equally to the rich and the poor. Pet.

App. 13a-21a.

The same two-class system can also be seen in the

other cases making up the lower court conflict. Trial

courts have, in effect, fired appointed counsel for sins

like requesting continuances, Daniels v. Lafler, 501

F.3d 735, 738-40 (6th Cir. 2007); Clements v. State,

817 S.W.2d 194, 194-200 (Ark. 1991); People v. Espinal, 781 N.Y.S.2d 99, 100-02 (N.Y. App. Div. 2004),

disagreeing with the court, Harling v. United States,

387 A.2d 1101, 1103-06 (D.C. Ct. App. 1978); People

v. Johnson, 547 N.W.2d 65, 67-71 (Mich. Ct. App.

1996); In re Welfare of M.R.S., 400 N.W.2d 147, 152

(Minn. Ct. App. 1987), and filing more motions than

the court thinks necessary, State v. Huskey, 82

S.W.3d 297, 302-11 (Tenn. Ct. Crim. App. 2002). It is

hard to imagine trial courts forcing wealthy defendants to change lawyers in such circumstances. If

they did, the resulting convictions would have been

reversed, as can be seen in the outcomes of nearly all

these cases.

II. Colorado errs in minimizing the

importance of the conflict.

Colorado recognizes that the lower courts are

deeply divided over the question presented, and in-

6

deed the state illustrates the conflict with a helpful

chart. BIO 32. As the Indiana Supreme Court recently observed, “[c]ourts around the country are divided

over whether the Sixth Amendment guarantees

criminal defendants the continuity of courtappointed counsel.” State ex rel. Allen v. Carroll Circuit Ct., 226 N.E.3d 206, 214 (Ind. 2024).

Colorado provides three reasons for letting the

conflict fester, but there is no merit to any of them.

First, Colorado errs in suggesting that the Court

has put the issue to rest. BIO 25-26. The state cites

four of this Court’s decisions, but none even addressed the issue. In Gonzalez-Lopez, the Court

merely noted that indigent defendants have no right

to choose a particular appointed attorney at the beginning of a case. 548 U.S. at 144. The Court had no

occasion to discuss whether, once counsel has begun

working on the case, the Sixth Amendment treats

rich and poor defendants differently. The same is

true of Caplan & Drysdale, Chartered v. United

States, 491 U.S. 617, 624 (1989). In Wheat v. United

States, 486 U.S. 153, 159-62 (1983), the Court held

that all defense lawyers, whether retained or appointed, may be replaced if the trial court has a good

enough reason. Again, the Court had no occasion to

address whether there are two different standards,

one for retained counsel and another for appointed

counsel. Finally, as we have already seen, Slappy

merely held that defendants, whether rich or poor,

have no constitutional right to a “meaningful relationship” with their attorneys. 461 U.S. at 13-14.

The Court did not address whether the Sixth

Amendment gives more protection to rich defendants

7

than to poor ones. The question presented is one that

this Court has never addressed.

The lower courts certainly do not think this Court

has resolved the question. The most recent of this

Court’s cases touted by Colorado was GonzalezLopez, decided in 2006, but several of the lower court

decisions taking our view of the issue came afterwards. See State v. Cottrell, 809 S.E.2d 423, 430

(S.C. 2017); State v. Taylor, 171 A.3d 1061, 1075

(Conn. Ct. App. 2017); State v. McKinley, 860

N.W.2d 874, 879-80 (Iowa 2015); Lane v. State, 80

So. 3d 280, 297 (Ala. Ct. Crim. App. 2010). The second-most recent case cited by Colorado was Caplan

& Drysdale, from 1989, but many more of the lower

court decisions taking our side came after that. See

Weaver v. State, 894 So. 2d 178, 187-89 (Fla. 2004);

Espinal, 781 N.Y.S.2d at 101; Huskey, 82 S.W.3d at

305-06; Commonwealth v. Jordan, 733 N.E.2d 147,

152 (Mass. App. Ct. 2000); Johnson, 547 N.W.2d at

152; Clements, 817 S.W.2d at 200; Stearnes v. Clinton, 780 S.W.2d 216, 222 (Tex. Ct. Crim. App. 1989).

Second, Colorado mistakenly contends that many

of the lower court cases taking our view of the issue

rest on a “repudiated rationale.” BIO 27-31. The rationale is that of the California Supreme Court,

which held, in one of the earliest cases to address the

issue:

[W]e must consider whether a court-appointed

counsel may be dismissed, over the defendant’s

objection, in circumstances in which a retained

counsel could not be removed. A superficial response is that the defendant does not pay his

fee, and hence has no ground to complain as

long as the attorney currently handling his case

8

is competent. But the attorney-client relationship is not that elementary: it involves not just

the causal 1 assistance of a member of the bar,

but an intimate process of consultation and

planning which culminates in a state of trust

and confidence between the client and his attorney. This is particularly essential, of course,

when the attorney is defending the client’s life

or liberty. … It follows that once counsel is appointed to represent an indigent defendant,

whether it be the public defender or a volunteer

private attorney, the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold

otherwise would be to subject that relationship

to an unwarranted and invidious discrimination arising merely from the poverty of the accused.

Smith v. Superior Court, 440 P.2d 65, 74 (Cal. 1968).

This passage would be cited by several other courts

in reaching the same conclusion.

This is the rationale that Colorado claims was

“repudiated.” Repudiated by whom? Not by the many

courts in other states that have cited it in subsequent years. Not by this Court, whose sole citation of

Smith was with approval. See Slappy, 461 U.S. at

23-24 (Brennan, J., concurring). Colorado suggests

that Smith has been repudiated by the California

Supreme Court, BIO 28, but even this limited claim

is not true. As we explained in our certiorari petition, Pet. 11 n.1, the California Supreme Court

merely noted uncertainty as to whether its opinion

1 This word should perhaps be “casual,” but it is “causal” in the original.

9

in Smith relies on the federal or the state constitution. People v. Jones, 91 P.3d 939, 945 (Cal. 2004).

The California Supreme Court has never repudiated

Smith’s rationale.

In any event, even if the California Supreme

Court were to repudiate Smith, that would not take

away the fact that so many other state courts have

agreed with its rationale. California would be

switched from one side of the lower court conflict to

the other, but the conflict would be just as big.

Third, and finally, Colorado worries that treating

rich and poor defendants equally “would have massive implications for our justice system.” BIO 34. Not

so. The Sixth Amendment already applies equally to

rich and poor defendants in most of the states in

which courts have addressed this issue—in Alabama, Alaska, Arkansas, Arizona, California, Connecticut, the District of Columbia, Florida, Illinois,

Iowa, Maryland, Massachusetts, Michigan, Minnesota, New York, South Carolina, Tennessee, and Texas. Pet. 8-14. The sky has not fallen. The justice system in these states seems to be working as well as it

does in Colorado.

The question presented in this case has divided

the lower courts for a long time. It has important

practical consequences, as can be seen by the differing outcomes of this case in the state court of appeals

and the state supreme court. The Court should decide whether the Sixth Amendment provides different standards for rich defendants and poor defendants, or whether it applies equally to both.

10

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

MALLIKA L. MAGNER

P.O. BOX 1666

Crested Butte, CO 81224

STUART BANNER

Counsel of Record

UCLA School of Law

Supreme Court Clinic

405 Hilgard Ave.

Los Angeles, CA 90095

(310) 206-8506

banner@law.ucla.edu