Petition for Writ of Certiorari — Perretti v. Fuller
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» | | | Suprome Court, U.S.
. JUN 20 1989
oe eetee JOSEPH F. SPANIOL, JR.
LERK
tee
IN THE rag
Supreme Court of the Gnited States
OCTOBER TERM, 1988
PETER N. PERRETTI, JR.,
Attorney General of New Jersey,
Petitioner,
vs.
GLEN FULLER,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
PETER N. PERRETTI, JR.
Attorney General of New Jersey
DEBRA L. STONE
Attorney of Record
RICHARD J. HUGHES JUSTICE COMPLEX
P.O. Box CN086
Trenton, New Jersey 08625
(609) 292-9086
DEBRA L. STONE
MEREDITH A. COTE
Deputy Attorneys General
Division of Criminal Justice
Of Counsel &
on the Petition
June 1989
oe ANNE RTE SENSE TTAT IIRL IEG
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203
QUESTIONS PRESENTED FOR REVIEW
1. Whether the United States Court of Appeals for
the Third Circuit properly concluded, without prior
precedent from this Court and in conflict with other
federal precedent, that a state criminal defendant’s
qualified right to counsel of choice, as contemplated
by the Sixth Amendment of the United States Con-
stitution, encompasses a defendant’s right to have out-
of-state counsel admitted pro hac vice.
2. Whether the court of appeals properly concluded,
in conflict with this Court’s opinion in Wheat v. United
States, 486 U.S. __, 108 S. Ct. 1692 (1988), and
other federal precedent, that an improper denial of
a state criminal defendant’s right to counsel of choice
is per se reversible error.
3. Whether the district court and the court of
appeals properly deferred to the factual conclusions
of the state trial court as required under Title 28
U.S.C. sec. 2254(d).
PARTIES BELOW
Only Peter N. Perretti, Jr., Attorney General of
New Jersey, and respondent Glen Fuller remain party
to this petition.
ill
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW .................. i
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I ns aa nasccccunsaeescsedkinnedissexsasxenssesensceen» 1
ec Ls ce nk cisnaibicgubiseuanasniccesnanes 2
FEDERAL CONSTITUTIONAL PROVISION _IN-
Te ered ns. wan ivennswaveatbacssesnonsaseensvesesss 2
NE EW BGR hey sncseainssncsncnhssvecssancscnancesssasessess 3
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MET SOE BERM CATE vcisccescscessssnvesascccsesessonsces 6
REASONS FOR GRANTING THE WRIT .................... 1]
A. There is a Split in the Circuits as to
Whether the Right to Counsel of Choice
Encompasses a Right to Counsel Pro Hac
Vice; the Court of Appeals Erroneously
Concluded that a Sixth Amendment Right
to Counsel Pro Hac Vice Exists ........... 1]
B. There is a Split in the Circuits as to
Whether the Denial of a Defendant’s
Right to Counsel of Choice can be Harm-
less Error; Wheat v. United States has
been Misapplied by the Third Circuit .... 17
C. Neither the District Court nor the Court
of Appeals Gave Proper Deference to the
State Trial Court’s Factual Findings as
Required Under Title 28 U.S.C. Section
ee elaine cs no onchachaacekinahuonsnanvensuans 25
ei tucasiLccasskvesekcansasiasesigavescsanvanssieveanens 30
iV
APPENDICES:
APPENDIX A THE WRITTEN OPINION AND JUDG-
MENT OF THE UNITED STATES
COURT OF APPEALS FOR THE
THIRD CIRCUIT, published at 868
F.2d 604 (8d Cir. 1989), rendered
FEY BG, TID kcisesinciennercvntrnecisns
APPENDIX B ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE
THIRD CIRCUIT, filed April 3, 1989
SOPH EEE EEE EHH EEE EEE HEHEHE EEEEEEE SHEE EEE HEHEHE EELS
APPENDIX C ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE
THIRD CIRCUIT DENYING REHEAR-
ING, filed March 24, 1989 ..........0....
APPENDIX D THE WRITTEN OPINION, AS
AMENDED, OF THE UNITED STATES
DISTRICT COURT, DISTRICT OF NEW
JERSEY, rendered May 10, 1988 ....
APPENDIX E ORDER OF THE UNITED STATES
DISTRICT COURT, DISTRICT OF NEW
JERSEY, rendered May 10, 1988 ....
APPENDIX F ORDER OF THE SUPREME COURT
OF NEW JERSEY, published at 107
N.J. 45, 526 A.2d 186 (1986), filed
POOURIIOP BE FIO cacnevcnsncieisaniicserces
APPENDIX G THE WRITTEN OPINION OF THE SU-
PERIOR COURT OF NEW JERSEY,
APPELLATE DIVISION, published at
211 N.J. Super. 321, 511 A.2d 1197
(App. Div. 1986), filed June 19, 1986
SOCCER HEHEHE EEE EEE EEE EEE HEHEHE EEEEHEEEEEE HEHE HEHEHE EEHE ESE
la
25a
29a
45a
47a
APPENDIX H TRANSCRIPT OF MOTION OF JULY
2, 1981, BEFORE THE SUPERIOR
COURT OF NEW JERSEY, LAW DI-
VEEN. -chsasicieeae bgt antennae
APPENDIX I TRANSCRIPT OF MOTION OF JULY 9,
1981, INCLUDING THE ORAL OPIN-
ION OF THE SUPERIOR COURT OF
NEW JERSEY, LAW DIVISION .........
APPENDIX J NEW JERSEY COURT RULE !:21-1, AS
REEF? kintsnsispnincnipmnan nanan
65a
TABLE OF CITATIONS
CASES CITED: Page
Anaya v. People, 764 P.2d 779 (Col. 1988) ........... 18
Bedrosian v. Mintz, 518 F.2d 396 (2d Cir. 1975) . 11,15
Brown v. Allen, 344 U.S. 448, reh’g denied, 345
Licies eR ROE certctancssecckarcanuanbenieaeeesen 26
Brown v. Supreme Court of Virginia, 414 U.S. 1034
(1973), summarily affg 359 F. Supp. 549 (E.D.
WHA cciscccssiccivuachgeaianneoaatcieriae ae 13
Chapman v. California, 386 U.S. 18 (1967) ......0... 22
Davis v. Stamler, 650 F.2d 477 (8d Cir. 1981) ..... 22
Engle v. Isaac, 456 U.S. 107 (1982) oe. 16
Faretta v. California, 422 U.S. 806 (1975) ........... 22
Flanagan v. United States, 465 U.S. 259 (1984) ... 18,19
Gideon v. Wainwright, 372 U.S. 335 (1968) .......... 21,22
Hull v. Lockhart, 474 U.S. 52 (19885) ..................... 22
Jones v. Barnes, 463 U.S. 745 (1988) ...... ee. 21
Kugler v. Helfant, 421 U.S. 117 (1975) oe. 16
Lefton v. City of Hattiesburg, Miss., 333 F.2d 280
Ce A. RI xccsticcssncncigncccanctceeience taeeeseas 16
Leis v. Flynt, 439 U.S. 488 (1979) ................ 13,14,16,17
Linton v. Perini, 656 F.2d 207 (6th Cir. 1981), cert.
Gemied, 454 U.S. TIGE (LOBR) ..cccccscsoscscsccessssses 18
Marshall v. Lonberger, 459 U.S. 422 (1988) .......... 26
Middlesex County Ethics Committee v. Garden, 475
Shs: SB RRUMED KccisisccatecicepAghestecnaeunsenecoetan noes 16
Morris v. Slappy, 461 U.S. 1 (1988) ......0.0.. 12,21,22,29
Norfolk & Western R. Co. v. Beatty, 423 U.S. 1009
(1975), summarily affg 400 F. Supp. 234 (S.D.
TIA) <Asdanssainsianiinnannennieceasasnmaseusdediceicnaeen ee aa 13,17
Powell v. Alabama, 287 U.S. 45 (1982) .........00... 12,16,20
Table of Citations Continued
Page
Ross v. Reda, 510 F.2d 1172 (6th Cir.), cert. denied,
Be Ec. Rea nnuaetdn ener enmimes 12,13,15,17
Rushen v. Spain, 464 U.S. 114 (1983), reh’g denied,
Me | Nee ern 26
State v. Chappee, 211 N.J. Super. 321, 511 A.2d
1197 (App. Div.), certz- ved sub nom. State
v. Fuller, 107 N.J. 45, 526 A.2d 135 (1986) 9,17,24
State v. Kavanaugh, 52 N.J. 7, 248 A.2d 225, cert.
Ganied, SES U.S. DEE CBG) cisicecscscecccsneccessseaes 14,27
State v. Lanza, 60 N.J. Super. 189, 158 A.2d 355
CO. EINE. TIPU sixcnssnsdcrcrtciccndimdaancenoone 27
Strickland v. Washington, 466 U.S. 668
PETES ncsceieciccihuinnagheeetacteaeiit cceireaeccaaain 18,21,22,23
Sumner v. Mata, 449 U.S. 539 (1981) ....... 26,30
Supreme Court of New Hampshire v. Piper, 470
CFs SEP CII exiascccncesethemanthceoonecebindiaees as 16
Townsend v. Sain, 372 U.S. 293 (19838) ................. 26
United States v. Ash, 413 U.S. 300 (1978) ............ 21
United States v. Burton, 584 F.2d 485 (D.C. Cir.
1978), cert. denied, 489 U.S. 1069 (1979) ....... 29
United States v. Casey, 480 F.2d 151 (5th Cir.), cert.
dented, 414 U.S. 1046 (19738) .....cc.ccccscecccsseess:: 25
United States v. Cronic, 466 U.S. 648 (1984) ....... 21
United States v. Dinitz, 588 F.2d 1214 (5th Cir.
1976), cert. denied, 429 U.S. 1104 (1977) ....... 14
United States v. Laura, 607 F.2d 52 (3d Cir.
RUT IE: ache nnsscscceeckucuenhieetasnaeaccansbiaaaiauabenin aca a kes 13,19
United States v. Morrison, 449 U.S. 361 (1981) ... 20
United States v. Panzardi Alvarez, 816 F.2d 813
6. Be Be. | ORME in inn eRe 12,13,15,18,28
United States v. Rankin, 779 F.2d 956 (3d Cir.
EIEN cusnisiah conctesacas Gs savees nedeadieoabancentaes 13,18,19,20
United States v. Romano, 849 F.2d 812 (8d Cir.
RMS BOTS crt POND ne Wa Re TPN SRR ae Ma Been 18,19
Vill
Table of Citations Continued
Page
United States v. Washington, 797 F.2d 1461 (9th
ae I carlo ucoesseuaraiescueccacueconinnserucedamenuencton. 20
Wheat v. United States, 486 U.S. ___, 108 S. Ct.
NEE (CUIIIED Kaaenervdsehaccninccnnnns 6,10,13,17,18,20,22 23,29
Williams v. Nix, 751 F.2d 956 (8th Cir.), cert. de-
Wee, STR UB. LEB COCR) acvvvivcicccccsccscccccsecces 18,23
STATUTES CITED: |
28 U.S.C. sec. 1254(1) (West 1987) ....................... 2
Se U.S.C. onc. SESE TWemt 1087) nice ccsccsiccscccccccsccss 6
28 U.S.C. sec. 2254(d) (West 1987) ................. 3,25,26,30
RULES CITED:
SK Oe Ws UN sieves atvobenvasceneasegaatvccacrnsebrasstcies 2
Be I, OE ceteincencesniecnccscnniahacatnaininrsens 11
N.J. Ct. R. 3:9-3(f) (Gann 1980) ...............ccccccccseess. 8
N.J. Ct. R. 1:21-1(a) (Gann 1981) ..............cccceeeeeeee 6
Beis, Sik Ws BERS GUD ROAD coccckntacctasccacevicecosinc 5,26,27
CONSTITUTIONAL PROVISION CITED:
Rc TMU: GUI WF cicccsntscicosoxiaceancdetaanschamcceninc, 2,12
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1988
No. __—
PETER N. PERRETTI, JR.,
Attorney General of New Jersey,
Petitioner,
VS.
GLEN FULLER,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
The petitioner, Peter N. Perretti, Jr., Attorney
General of the State of New Jersey, respectfully prays
tnat a writ of certiorari issue to review the judgment
and opinion of the United States Court of Appeals
for the Third Circuit, entered in the above-entitled
proceeding on February 24, 1989, and from the denial
on March 24, 1989 of a timely petition for rehearing.
OPINIONS BELOW
The oral opinion of the Superior Court of New Jer-
sey, Law Division (Hamlin, J.S.C.) has not been re-
ported. It is reprinted as Appendix I, p. 77a, infra.
The written opinion of the Superior Court of New
Jersey, Appellate Division (Greenberg, P.J.A.D.) is re-
ported at 211 N.J. Super. 321, 511 A.2d 1197 (App.
Div.), certif. denied, 107 N.J. 45, 526 A.2d 135 (1986),
and is reprinted as Appendix G, p. 47a, infra.
The written opinion of the United States District
Court, District of New Jersey (Ackerman, D. J.), is
not reported. It is reprinted as Appendix D, p. 29a,
infra.
The written opinion of the Court of Appeals for
the Third Circuit is reported at 868 F.2d 604 (3d Cir.
1989), and is reprinted as Appendix A, p. la, infra.
JURISDICTION
On February 24, 1989, the United States Court of
Appeals for the Third Circuit in its opinion to which
certiorari is sought affirmed the district court’s order
granting respondent’s request for a writ of habeas
corpus. Thereafter, on March 24, 1989, the court of
appeals denied a timely petition for rehearing. The
jurisdiction of this Court is invoked under 28 U.S.C.
sec. 1254(1) and Rule 20.1.
FEDERAL CONSTITUTIONAL PROVISION INVOLVED
UNITED STATES CONSTITUTION, AMENDMENT V1
In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall
have been committed, which district shall have been
previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be con-
fronted with the witnesses against him; to have com-
pulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defense.
STATUTE INVOLVED
UNITED STATES CODE ANNOTATED TITLE 28
section 2254(d”West 1987)
In any proceeding instituted in a Federal
court by an application for a writ of habeas
corpus by a person in custody pursuant to
the judgment of a State court, a determi-
nation after a hearing on the merits of a
factual issue, made by a State court of com-
petent jurisdiction in a proceeding to which
the applicant for the writ and the State or
an officer or agent thereof were parties, evi-
denced by a written finding, written opinion,
or other reliable and adequate written indi-
cia, shall be presumed to be correct, unless
the applicant shall establish or it shall oth-
erwise appear, or the respondent shall ad-
mit—
(1) that the merits of the factual dispute
were not resolved in the State court hearing;
(2) that the factfinding procedure employed
by the State court was not adequate to afford
a full and fair hearing;
(83) that the material facts were not ade-
quately developed at the State court hearing;
(4) that the State court lacked jurisdiction
of the subject matter or over the person of
the applicant in the State court proceeding;
(5) that the applicant was an indigent and
the State court, in deprivation of his consti-
tutional right, failed to appoint counsel to
represent him in the State court proceeding;
(6) that the applicant did not receive a full,
fair, and adequate hearing in the State court
proceeding; or
(7) that the applicant was otherwise denied
due process of law in the State court pro-
ceeding;
(8) or unless that part of the record of the
State court proceeding in which the deter-
mination of such factual issuc was made, per-
tinent to a determination of the sufficiency
of the evidence to support such factual de-
termination, is produced as provided for
hereinafter, and the Federal court on a con-
sideration of such part of the record as a
whole concludes that such factual determi-
nation is not fairly supported by the record:
And in an evidentiary hearing in the pro-
ceeding in the Federal court, when due proof
of such factual determination has been made,
unless the existence of one or more of the
circumstances respectively set forth in par-
agraph number (1) to (7), inclusive, is shown
by the applicant, otherwise appears, or is ad-
mitted by the respondent, or unless the court
concludes pursuant to the provisions of par-
agraph numbered (8) that the record in the
State court proceeding, considered as a
whole, does not fairly support such factual
determination, the burden shall rest upon the
applicant to establish by convincing evidence
that the factual determination by the State
court was erroneous.
NEW JERSEY COURT RULE INVOLVED:
RULES GOVERNING THE COURTS OF
THE STATE OF NEW JERSEY
R. 1:21-2
(Gann 1981)
1:21-2. Appearances Pro Hac Vice
An attorney of any other jurisdiction, of
good standing there, whether practicing law
in such other jurisdiction as an individual, or
a member or employee of a partnership, or
an employee of a professional corporation au-
thorized to practice law in such other juris-
diction, or an attorney admitted in this State,
of good standing, who is not domiciled in this
State and who does not maintain in this State
his principal office for the practice of law,
may, at the discretion of the court in which
any matter is pending, be permitted, pro hac
vice, to speak in such matter in the same
manner as an attorney of this State who is
domiciled in and maintains a bona fide office
for the practice of law in this State or main-
tains in this State his principal office for the
practice of law; and who is therefore, pur-
‘For the convenience of this Court, the court rule governing
the appearance of counsel pro hac vice in New Jersey which
was in effect on July 2, 1981, the pertinent date herein, has
been reproduced in this section. The court rule involved has
been subsequently amended essentially to codify pertinent case
law; the amended rule is reproduced for this Court’s convenience
in petitioners’ Appendix J.
suant to R. 1:21-1(a) authorized to practice
in this State; provided, however, that all
pleadings, briefs and other papers filed with
the court shall be signed by an attorney of
record authorized to practice in this State,
who shall be held responsible for them and
for the conduct of the cause and of the ad-
mitted attorney therein.
STATEMENT OF THE CASE
This case squarely presents this Court with the op-
portunity to remove the confusion which currently
exists in the lower courts with respect to whether
pro hac vice counsel is encompassed within the right
to ‘‘counsel of choice’’ secured by the Sixth Amend-
ment and, if so, whether this Court’s opinion in Wheat
v. United States, 486 U.S. __ , 108 S. Ct. 1692 (1988),
mandates that any violation of the Sixth Amendment
right to counsel of choice be subjected to a harmless
error analysis. This case has evolved from the grant-
ing of a writ of habeas corpus pursuant to 28 U.S.C.
sec. 2254 which was affirmed by the United States
Court of Appeals for the Third Circuit.
The following sequence of events gives rise to the
matter presently before this Court. Douglas Chappee
and Respondent Glen Fuller were charged in Middle-
sex County New Jersey Indictment No. 938-80, filed
on February 27, 1981, with various narcotics offenses
and unlawful possession of a weapon. (App. A, at p.
3a).
On July 2, 1981, the Honorable C. Judson Hamlin,
J.S.C., heard and denied codefendant Chappee’s mo-
tion to have a Colorado attorney appear pro hac vice
on his behalf. Respondent’s motion for pro hac vice
~
—
counsel was not decided on that day due to his
counsel’s failure to appear. (App. H, at pp. 66a-67a).
On July 9, 1981, the trial court heard arguments
from respondent’s counsel on his motion to have an
attorney from the District of Columbia and one from
Illinois represent him pro hac vice. The judge was
faced with out-of-state defendants from two distant
jurisdictions (Chappee resided in Massachusetts, while
Fuller lived in Colorado) who wished to admit three
out-of-state counsel from Colorado, Illinois, and the
District of Columbia. Both defendants were free on
bail. Admission of counsel would leave the court with
the nearly impossible task of coordinating the ap-
pearances of five people from four different areas of
the country. Further, at that time an air traffic con-
trollers’ strike was imminent. Finally, the court was
concerned with the crowded court calendar and the
speedy trial requirements of the New Jersey courts.
After extensive arguments by counsel, the court, in
a lengthy oral opinion, denied respondent’s motion.
(App. I, at pp. 92a-100a). The court was of the opinion
that the case was simple, local counsel was competent
to handle it, local counsel and out-of-state counsel had
not coordinated properly as required by local rules,
and the potential for delay in attempting to coordi-
nate the schedule of three attorneys and two
defendants from four different and far-flung jurisdic-
tions outweighed respondent’s qualified right to
counsel of choice. The court agreed to give respondent
an opportunity to appeal his ruling. (App. I, at pp.
100a-102a).
Respondent requested leave to appeal to the Su-
perior Court of New Jersey, Appellate Division, which
court denied leave to appeal the trial court’s order
denying pro hac vice representation. Respondent also
requested leave to appeal to the Supreme Court of
New Jersey, which was denied.
On April 10, 1984, codefendant Chappee and
respondent appeared before the Honorable Joseph F.
Deegan, Jr., J.S.C., and entered retrazit pleas of
guilty to Count Four of the indictment (possession of
cocaine with intent to distribute). These pleas were
entered pursuant to a plea agreement whereby the
State of New Jersey agreed to make no recommen-
dation as to sentence, other than that incarceration
was necessary, but would recommend dismissal of the
remaining counts of the indictment against Chappee
and respondent. In accordance with N.J. Ct. R. 3:9-
3(f), Chappee and respondent individually reserved the
right to raise certain legal issues for purposes of
appeal, including the pro hac vice denial, notwith-
standing entry of their guilty pleas. (App. G, at p.
50a).
On November 20, 1984, respondent was sentenced
by Judge Deegan to the custody of the Commissioner
of the Department of Corrections for a term of 20
years imprisonment on Count Four (possession of
more than 3.5 grams of free base cocaine with intent
to distribute) and received a fine of $20,000. The
judge also dismissed the remaining counts in accord-
ance with the plea agreement and gave respondent
credit for time served. (App. G, at p. 50a).
On January 16, 1985, respondent filed a notice of
appeal to the Superior Court of New Jersey, Appel-
late Division. Similarly, on May 2, 1985, codefendant
Chappee filed a notice of appeal to the appellate di-
vision. In a published decision the appellate division
affirmed both Chappee’s and respondent’s convictions,
ruling in part that Judge Hamlin properly exercised
his discretion in denying admittance of defense counsel
pro hac vice. State v. Chappee, 211 N.J. Super. 321,
324-25, 511 A.2d 1197, 1204-05 (App. Div.), certif.
denied sub nom. State v. Fuller, 107 N.J. 45, 526
A.2d 135 (1986). (App. G, at p. 47a). The Supreme
Court of New Jersey denied respondent’s petition for
certification. 107 N.J. 45, 526 A.2d 185 (1986). (App.
F, at p. 46a).
Subsequently, on June 16, 1987, respondent filed a
petition for writ of habeas corpus with the United
States District Court for the District of New Jersey.
Petitioner Attorney General of New Jersey filed his
answer on July 20, 1987.2 The district court granted
respondent’s request for a writ on February 10, 1988.
By order dated March 4, 1988, the court vacated the
order of February 10 and requested additional brief-
ing.® :
On May 10, 1988 the district court issued its
amended opinion and order again granting
respondent’s request for a writ of habeas corpus. The
district court found that the existence of capable local
counsel was not sufficient to overcome respondent’s
right to counsel of choice. The district court found
* Warren Diesslin, the Superintendent of Buena Vista Correc-
tional Facility, Buena Vista, Colorado, was also a named
defendant to the petition as respondent was then incarcerated
at that facility on unrelated charges. Respondent has since been
paroled from that facility and, consequently, Superintendent
Diesslin is no longer a party to this petition.
8 Prior to receiving the district court’s order vacating the opin-
ion and order granting the writ, petitioner Attorney Genera! of
New Jersey had filed a notice of appeal from that order. That
appeal was subsequently withdrawn on petitioner’s motion.
10
the state court’s ruling was premised upon a pre-
sumption that in-state counsel would be more knowl-
edgeable with respect to state law and rules and that
this distinction was without merit. (App. D, at p. 41a).
The district court also found that the state court’s
findings with respect to delay were merely speculative
and that there was no basis for finding that admission
of these attorneys would cause delay. The district
court concluded that the state trial judge denied
respondent’s motion with a per se ruling that out-of-
state counsel would delay the case and that this ruling
deprived respondent of his right to counsel of choice.
(App. D, at p. 48a). The court also noted that denial
of this right is per se reversible and does not require
a showing of prejudice to the criminal defendant.
(App. D, at pp. 48a-44a). On June 8, 1988, petitioner
Attorney General of New Jersey timely filed a notice
of appeal with the court of appeals.
On February 24, 1989, the court of appeals, through
a majority opinion authored by the Honorable Edward
R. Becker, Circuit Judge, affirmed the grant of the
writ, holding that the qualified right to counsel of
choice encompassed the right to pro hac vice repre-
sentation, that violation of this mght was per se re-
versible error notwithstanding Wheat v. United States,
486 U.S. __, 108 S. Ct. 1692 (1988), and finally,
that the right to counsel of choice had been arbitrarily
denied in this case. (App. A, at p. la). The Honorable
Joseph F. Weis, Circuit Judge, dissented, stating that
respondent’s right to counsel of choice was not vio-
lated in this case. (App. A, at p. 19a).
Petitioner Attorney General of New Jersey filed a
timely petition for rehearing on March 6, 1989. The
United States Court of Appeals for the Third Circuit
1]
denied the petition for rehearing on March 24, 1989.
(App. C, at p. 27a). At the time of this denial,
respondent was still incarcerated in Colorado, and
therefore, petitioner did not move to stay the man-
date of the court of appeais. In accordance with Fed.
R. App. Proc. 41, the mandate of the court of appeals
issued on March 31, 1989.
On May 25, 1989, respondent was paroled from the
Buena Vista Correctional] Facility in Colorado. In light
of this changed circumstance, petitioner moved, on
June 1, 1989, before the court of appeals for an order
vacating and recalling the mandate pending filing of
the within petition. To date, the court of appeals has
taken no action with respect to petitioner’s motion.
REASONS FOR GRANTING THE WRIT
A. There is a Split in the Circuits as to Whether the Right
to Counsel of Choice Encompasses a Right to Counsel
Pro Hac Vice; the Court of Appeals Erroneously Con-
cluded that a Sixth Amendment Right To Counsel Pro
Hac Vice exists.
In its opinion the United States Court of Appeals
for the Third Circuit, while recognizing the lack of
an explicit determination by this Court as to whether
there is a right to counsel pro hac vice included within
the right to counsel of choice, concluded that ‘‘the
right to counsel pro hac vice is encompassed analyt-
ically within the right to counsel of choice’ component
of the Sixth Amendment. (App. A, at p. 7a). This
conclusion is in direct conflict with the opinion of at
least one other federal circuit court which has ruled
that a defendant has no right to have counsel ap-
pointed outside the state, Bedrosian v. Mintz, 518
F.2d 396, 400-02 (2d Cir. 1975), and is in apparent
12
conflict with another circuit court which has impliedly
found no right to the appointment of out-of-state
counsel where competent in-state counsel is available,
Ross v, Reda, 610 F.2d 1172, 1178 (6th Cir.), cert.
denied, 426 U.S, 892 (1975), Only one circuit court
opinion provides arguable support for the position
adopted by the Third Cireuit, See United States v,
Panzardi Alvarez, #16 F.2d 8138, 817 (1et Cir, 1987)
(indicating that admission of defendant's counsel pro
hac vice implicates constitutional concerns, but doing
so only in the context of a peculiar Puerto Rican court
rule which allowed out-of-state counsel to appear only
once a year), Thus, the present case affords this Court
with the opportunity to eliminate the conflict cur-
rently existing among the federal courts and to de-
termine whether the request of a defendant for out-
of-state counsel is encompassed in the right to counsel
of choice component of the Sixth Amendment. With-
out a definitive ruling from this Court, the lower
courts will continue to be in a state of conflict, as
they attempt to properly assess a defendant’s request
for out-of-state counsel within the context of a state’s
important interest in maintaining control over those
individuals practicing law within its borders,
The Sixth Amendment guarantees a criminal
defendant the right “to have the Assistance of
Counsel for his defense,’’ U.S. Const. amend. VI.
There is no question that a component of this right
is the protection of a defendant's opportunity to ob-
tain counsel of his choice, Powell v, Alabama, 287
U.S, 45, 53 (1982), The Sixth Amendment does not,
however, assure the absolute right to the particular
counsel of his choice, See Morris v, Slappy, 461 U.S. ,
1, 18-14 (1983), While a defendant’s choice may not
be denied arbitrarily, a defendant's right to choose
his own counsel must be balanced against the fair
and proper administration of justice, United States v,
Rankin, 779 F.2d 956, 968 (2d Cir, 1986); United
States v, Laura, 607 F.2d 52, 65 (4d Cir, 1979), See
alao United States v, Panzardi Alvarez, #16 F.2d at
#16, The essential aim of the Sixth Amendment is to
guarantee an effective advocate for a defendant, not
to ensure that a defendant is inexorably represented
by the lawyer or lawyers he prefers, Wheat v, United
States, 486 U.S, —_, 108 8S, Ct, 1692, 1697 (1988),
When a defendant chooses out-of-state counsel,
however, clearly there are compelling state interests
involved as well, that is, the regulation and licensing
of attorneys who practice before the state court and
the court’s control of its trial calendar to avoid in-
ordinate delay. On several occasions, this Corrt has
recognized the importance of these state interests. It
is clear, for example, that out-of-state counsel have
no constitutional right to practice in a state in which
they have not been admitted to the bar. Leis v. Flynt,
439 U.S. 488 (1979). Similarly, a criminal defendant
does not have an unconditional right to choose as his
counsel an individual who is not admitted to practice
law in the state in which his trial is being held. Ross
v, Reda, 510 F.2d at 1172. Moreover, this Court has
previously upheld state bar rules that prohibited out-
of-state counsel from practicing within the state al-
together or on a case-by-case basis, Leis v, Flynt, 489
U.S, at 448, See Norfolk & Western Ry, Co, v, Beatty,
428 U.S, 1009 (1975), summarily affg 400 F. Supp.
234 (S.D. Ill.); Brown v, Supreme Court of Virginia,
414 U.S, 1084 (1978), summarily affg 359 F, Supp.
549 (E.D. Va.), Indeed, no one has seriously suggested
14
that local bar admission requirements must fall if a
defendant chooses to have counsel who do not meet
those local requirements, United States v, Dinitz, 538
F.2d 1214, 1219 (Sth Cir, 1976), cert, denied, 429 U.S,
1104 (1977), By virtue of its conclusion that 4a
defendant's right to counsel of choice encompasses
the right to counsel pro hae vice, however, the court
of appeals has sanctioned the right of a defendant to
choose counsel who are not members of the bar as
freely as he would a local attorney, thus greatly di-
minishing the state’s legitimate control over the per-
sons who may be licensed to practice law and
rendering virtually nugatery this Court's decisions
which allow a state to exclude out-of-state counsel
from practicing within its borders.
It is important to emphasize that this Court has
never ruled on the question of the impact of a
defendant’s Sixth Amendment right to counsel of
choice upon a state’s right to regulate the admission
of out-of-state attorneys pro hac vice. Leis v. Flynt,
439 U.S. at 443 n.4, 446 n.2. The New Jersey courts
have held, however, that there is no constitutional
right to representation by out-of-state counsel. State
v, Kavanaugh, 52 N.J. 7, 18, 248 A.2d 225, 231, cert.
denied, 898 U.S. 924 (1968),*
On the federal level, as previously indicated, there
is a split among the circuits as to whether a denial
of a defendant's motion to have an attorney represent
him pro hae vice can be a denial of his Sixth Amend-
ment right to counsel of choice, At least one circuit
has ruled that a defendant has no right to have
‘Thus, a conflict also appears between the Third Circuit and
the Supreme Court of New Jersey,
15
counsel appointed from outside the state, Bedrosian
vw, Mintz, 518 F.2d at 400-02; see alao Rosas v, Reda,
510 F.2d at 1173 (implying no right where competent
local counsel available), Caselaw reveals that only the
United States Court of Appeals for the First Circuit
has ruled contrarily on the question of out-of-state
counsel, holding that admission of defendant's counsel
of choice to practice pro hae vice may not be denied
arbitrarily on the basis of a local court rule allowing
out-of-state counsel to appear only once a year,
thereby implicitly holding that there is a constitutional
right to such representation, United State v, Panzardi
Alvarez, 816 F.2d at 816, 817, Although Panzardi
stated that the admission of the defendant’s counsel
pro hac vice implicates constitutional concerns, it did
so solely in the context of discussing the peculiar rule
used in Puerto Rico, and it did not discuss the juris-
diction’s interest in controlling the admission of per-
sons to its bar and in controlling its courts. 816 F.2d
at 816. Thus, the court assumed such a right existed
without really discussing it.
Despite the obvious murkiness in which the state
of the law now exists and the lack of any real support
for its opinion, the court of appeals has explicitly
concluded that the right to counsel of choice com-
ponent of the Sixth Amendment contemplates the
right to out-of-state counsel, In so doing, the court
of appeals virtually has ignored the compelling inter-
est the state has in regulating those attorneys who
are allowed to practice within its borders, as well as
the important interest state courts have in controlling
their calendars, although explicitly recognizing the
reality that “the number of occasions on which a
defendant will desire to be represented by counsel
16
pro hac vice is frequent and will be increasingly so.”’
(App. A, at p. 7a).
There are significant reasons why a Sixth Amend-
ment right to choose out-of-state counsel should not
exist, at least where there has been no showing that
local counsel was incompetent or would refuse to rep-
resent a defendant. See Powell v. Alabama, 287 U.S.
at 45; Lefton v. City of Hattiesburg, Miss., 333 F.2d
280 (5th Cir. 1964). The states retain an obvious and
important interest in maintaining control over those
persons practicing law within their borders. See Leis
v. Flynt, 489 U.S. at 448, and cases cited therein.
Those interests cannot be vindicated if any time a
criminal defendant demands out-of-state counsel, the
state courts are required to admit them. Such a rule
makes local rules on bar admission meaningless. In
effect, such a ruling gives criminal defendants and
the federal courts control over admission to practice
law in state courts. It places a burden on the state
to demonstrate why counsel should not be admitted.
The traditional function of the state courts to deter-
mine the qualifications of those who seek to practice
law in the jurisdiction (see Middlesex County Ethics
Committee v. Garden, 475 U.S. 428, 434 (1982)) would
be vitiated.
Indeed, traditionally, this Court has deferred to and
recognized the importance of a state’s procedural
rules. See, e.g., Engle v. Isaac, 456 U.S. 107 (1982);
Kugler v. Helfant, 421 U.S. 117 (1975). This is par-
ticularly true with respect to control over admission
to a state’s bar. See Supreme Court of New Hamp-
shire v. Piper, 470 U.S. 274 (1985). Moreover, as
previously indicated, this Court has always recognized
that the admission of counsel pro hac vice is purely
17
discretionary and has upheld state bar rules that ex-
cluded out-of-state counsel from practice altogether.
Leis v. Flynt, 489 U.S. at 443; see Norfolk & Western
R. Co. v. Beatty, 423 U.S. at 1009. As this Court
noted in Leis, ‘‘.. .the Constitution does not require
that because a lawyer has been admitted to the bar
of one state, he or she must be allowed to practice
in another.’’ 439 U.S. at 443. These rulings become
meaningless if a criminal defendant can demand out-
of-state counsel no matter what the state bar rules
provide. The Sixth Amendment simply cannot be read
to guarantee an unconditional right for a criminal
defendant to be represented by an_ out-of-state
attorney. Ross v. Reda, 510 F.2d at 1178. The er-
roneous ruling of the court of appeals cannot be al-
lowed to stand, therefore, particularly where, as was
the case here, a defendant has-not been denied ad-
equate representation by local counsel. If the opinions
of this Court recognizing the discretion and important
interest of the states in regulating and licensing the
attorneys who are allowed to practice within their
borders, are not to be rendered meaningless along
with the bar requirements of the various states, then
this Court must grant review of the court of appeals’
decision.
B. There is a Split in the Circuits as to Whether the Denial
of a Defendant’s Right to Counsel of Choice can be
Harmless Error; Wheat v. United States has been Mis-
applied By the Third Circuit.
There is a split among the state’ and federal courts
as to whether a harmless error analysis should be
*Compare State v. Chappee, 211 N.J. Super. 321, 511 A.2d
1197 (App. Div. 1986), certif. denied sub nom. State v. Fuller,
(cont'd)
18
applied to cases where a defendant alleges that he
has been denied counsel of choice.
Several courts of appeal, including the Court of
Appeals for the Third Circuit, have held that the im-
proper denial of a defendant’s counsel of choice is
per se reversible and no showing of prejudice need
be made. See, e.g., United States v. Rankin, 779 F.2d
956 (3d Cir. 1986); see also United States v. Romano,
849 F.2d 812 (3d Cir. 1988); United States v. Panzardi
Alvarez, 816 F.2d 813 (1st Cir. 1987); Linton v. Per-
ini, 656 F.2d 207 (6th Cir. 1981), cert. denied, 454
U.S. 1162 (1982). The Eighth Circuit, on the other
hand, has applied a harmless error rule. Williams v.
Nix, 751 F.2d 956 (8th Cir.), cert. denied, 471 U.S.
1138 (1985).The question has never been definitively
resolved by this Court. See Flanagan v. United States,
465 U.S. 259, 268 (1984). However, this Court’s de-
cision in Wheat v. United States, 486 U.S. __, 108
S. Ct. 1692 (1988), which the Third Circuit chose not
to follow, strongly indicates that the harmless error
rule should be applied. This Court has the opportunity
to clarify the law, resolve the split and to ensure that
Wheat will be uniformly and properly applied.
Petitioner submits, as the majority in Fuller rec-
ognized, that this Court’s treatment of ineffective as-
sistance of counsel in Strickland v. Washington, 466
U.S. 668 (1984), and denial of counsel of choice in
the area of attorney conflicts of interest in Wheat v.
United States, has undercut seriously the rationale
behind the Third Circuit’s rule presuming prejudice
107 N.J. 45, 526 A.2d 1197 (1986) with Anaya v. People, 764
P.2d 779 (Col. 1988). Indeed, Chappee demonstrates a conflict
between the New Jersey state courts and the Third Circuit on
this question.
19
as originally set forth in United States v. Laura, 607
F.2d 52 (3d Cir. 1979), and followed in United States
v. Rankin, 779 F.2d 956, 960 (8d Cir. 1986), and
United States v. Romano,® 849 F.2d 812 (8d Cir. 1988).
In Rankin the Third Circuit quoted the following
language from Flanagan in support of its conclusion
that denial of the right to counsel of choice could
never be harmless.
‘Obtaining reversal for violation of such a
right does not require showing any prejudice
to the defense, since the right reflects con-
stitutional protection of the defendant’s free
choice independent of concern for the objec-
tive fairness of the proceeding.’
Rankin, 779 F.2d at 960 (citing 465 U.S. at 268).
Petitioner submits, with all due respect, that this
language was merely a summary of the arguments
advanced by the petitioners in Flanagan, which in-
volved the appealability of a disqualification order be-
fore trial. This Court’s comment, in the context of
deciding whether a collateral order was appealable,
was merely that 2f, on the one hand, the right to
counsel of choice is like the Sixth Amendment right
to self-representation as denial of counsel altogether,
then a showing of prejudice was not required. Filan-
agan v. United States, 465 U.S. at 267-68. This Court
went on to say that on the other hand, the asserted
6 While Romano was decided shortly after the decision in
Wheat, it contains no reference to the Wheat decision. The ma-
jority in Fuller assumed that the panel considered the case and
rejected its application. (App. A, at p. 3a n.]). Petitioner is un-
sure whether Wheat was considered by the Romano court be-
cause the opinion does not mention, much less discuss, the case.
20
right may be one which is not violated absent some
demonstrable prejudice. Jd. at 268. This Court con-
cluded that it need not decide the issue because in
any event the disqualification order still would not be
appealable. Jbid. In sum, this Court did not decide
the issue of whether prejudice was required to be
shown for a denial of the mght to counsel of choice.
Ibid. See United States v. Washington, 797 F.2d 1461,
1467 n.7 (9th Cir. 1986). In other words, this Court
never decided whether the right to counsel of choice
should be treated as the right to counsel or the right
to self-representation, or rather, as the right to ef-
fective assistance of counsel.
The Third Circuit, in Rankin, stated that the right
to counsel of choice is similar to that of self-repre-
sentation and concluded that no prejudice need be
shown. As the majority in Fuller acknowledged, this
conclusion has been called into question by this Court’s
recent decision in Wheat v. United States. While
Wheat specifically involved the disqualification of cho-
sen counsel because of a potential conflict of interest,
the language regarding the right to counsel of choice
is instructive.
The Sixth Amendment to the Constitution
guarantees that “‘{iJn all criminal prosecu-
tions, the accused shall enjoy the right. . .to
have the Assistance of Counsel for his de-
fense.”’ In United States v. Morrison, 449
U.S. 361, 364 (1981), we observed that this
right was designed to assure fairness in the
adversary criminal process. Realizing that an
unaided layman may have little skill in ar-
guing the law or in coping with an intricate
procedural system, Powell v. Alabama, 287
21
U.S. 45, 69 (1932); United States v. Ash, 413
U.S. 300, 307 (1973), we have held that the
Sixth Amendment secures the right to the
assistance of counsel, by appointment if nec-
essary, in a trial for any serious crime. Gid-
eon v. Wainwright, 372 U.S. 335 (1963). We
have further recognized that the purpose of
providing assistance of counsel ‘‘is simply to
ensure that criminal defendants receive a fair
trial,’ Strickland v. Washington, 466 U.S.
668, 689 (1984), and that in evaluating Sixth
Amendment claims, ‘‘the appropriate inquiry
focuses on the adversarial process, not on the
accused’s relationship with his lawyer as
such.”’ Unitea States v. Cronic, 466 U.S. 648,
657, n. 21 (1984). Thus, while the right to
select and be represented by one’s preferred
attorney is comprehended by the Sixth
Amendment, the essential aim of the Amend-
ment is to guarantee an effective advocate
for each criminal defendant rather than to
ensure that a defendant will inexorably be
represented by the lawyer whom he prefers.
See Morris v. Slappy, 461 U.S. 1, 18-14
(1983); Jones v. Barnes, 463 U.S. 745 (1988).
108 S. Ct. at 1696-97. As the Fuller majority ac-
knowledged, if the purpose of the right to select
counsel, like the right to effective assistance of
counsel, is to ensure an effective advocate for a crim-
inal defendant, then making a violation of the right
per se reversible without a showing of prejudice makes
no sense. (App. A, at pp. 9a-10a). The right to choose
22
one’s counsel is not like the right to represent one-
self.? Wheat v. United States, 108 S. Ct. at 1697 n.3.
Nor is it like the right to counsel. That right is fun-
damentally essential to the right to a fair trial and
a violation could never be harmless error. Gideon v.
Wainwright, 372 U.S. 335, 344-45 (1963); see Chap-
man v. California, 386 U.S. 18, 23 n.8 (1967). Indeed,
unlike the right to counsel, the right to counsel of
choice is never absolute. Davis v. Stamler, 650 F.2d
477, 479 (8d Cir. 1981); see Morris v. Slappy, 461
U.S. 1, 18-14 (1983). The right to counsel of choice
is more akin to the right to effective assistance of
counsel because that is what the right to counsel of
choice is designed to secure. Thus, a standard similar
to that espoused in Strickland v. Washington, 406
U.S. 668 (1984), and Hill v. Lockhart, 474 U.S. 52
(1985), should be used. That is, a defendant who dem-
onstrates that his right to counsel of choice was vi-
olated should be required to demonstrate prejudice
from the denial of that right. It seems anomalous to
require a finding of prejudice for a violation of the
Sixth Amendment right to counsel in the context of
the adequacy of a defendant’s representation by
counsel or where inadequate representation is shown,
but not in the context of the right to choose counsel—
a right which is not absolute and which is given
7In a footnote in Wheat this Court stated that:
Our holding in Faretta v. California, 422 U.S. 806
(1975), that a criminal] defendant has a Sixth Amend-
ment right to represent himself if he voluntarily elects
to do so, does not encompass the right to choose any
advocate if the defendant wishes to be represented by
counsel.
108 S. Ct. at 1697 n.3 (emphasis in original).
ota
23
merely to secure the right to effective representation.
Accordingly, petitioner submits that a violation of
respondent’s right to choose counsel] should not result
in automatic reversal of his otherwise valid conviction.
Williams v. Nix, 751 F.2d at 959-60.
Acknowledging the force of the above arguments,
the majority in Fuller nevertheless decided not to
follow this Court’s opinion in Wheat because it was
not sufficiently “‘concrete.”’ (App. A, at p. 12a).® It
instead chose to follow its own precedent, precedent
which it acknowledged was severely diluted by this
Court’s decisions in Wheat and Strickland. Petitioner
urges this Court to afford the guidance requested by
the Third Circuit on this issue.
It is submitted that this case is an ideal vehicle for
resolution of the question of harmless error by this
Court. In the case at bar, the fact that respondent
received excellent representation by local counsel was
never challenged. Indeed, the New Jersey appellate
court made the following findings in passing on
respondent’s right to counsel of choice claim:
We also point out the following. We have
given this case an intensive review. While we
do not suggest that the absence of discern-
able [sic] prejudice from denial of defendants’
motions for admission of counsel pro hac vice
in itself precludes defendants from obtaining
relief by reason of the denial, we neverthe-
less think it appropriate to state that from
* Alternatively, the majority said that an en banc opinion by
the Third Circuit would also suffice absent a more specific state-
ment by this Court. Petitioner moved for reconsideration en
banc; the Third Circuit denied the motion. (App. C, at p. 27a).
24
our study of the record, the briefs on appeal
and observation of defendants’ attorneys at
oral argument, it is clear defendants have
received extremely competent representation
both in the trial court and here. Indeed we
are satisfied that beyond any doubt even if
defendants had been represented by the
attorneys denied admission they could not
have received more competent representation
or a better result. We point out that
defendants almost asked to be arrested. They
were speeding on the turnpike in the early
morning hours with marijuana in plain view.
Further, they did not even have proper pa-
pers for the car. The case against them was
overwhelming and their guilt clear beyond
doubt. Yet skilled counsel has raised every
conceivable defense on their behalf and has
turned what should have been a routine case
into a massive and protracted struggle. The
trial judge’s anticipation that New Jersey
counsel would ably conduct the defense has
been vindicated.
State v. Chappee, 211 N.J. Super. 321, 335, 511 A.2d
1187, 1205 (App.Div.), certif denied sub nom. State
v. Fuller, 107 N.J. 45, 526 A.2d 185 (1986). (App. G,
at pp. 63a-64a).
Respondent clearly had not just adequate represen-
tation but excellent representation from his _ local
counsel. Counsel opposed the state at every conceiv-
able juncture. Respondent does not claim that other
counsel could have achieved a better result. Since the
right to counsel of choice is merely a mechanism for
ensuring a defendant’s right to effective assistance,
25
it makes little sense to reverse a conviction where,
as here, it is clear beyond any doubt that a defendant
received effective assistance.* The freedom to choose
one’s counsel should not be used as a device to ma-
nipulate or subvert the orderly procedure of the courts
or the fair administration of justice. Cf. United States
v. Casey, 480 F.2d 151 (5th Cir.), cert. denied, 414
U.S. 1045 (1978). Since respondent can point to no
prejudice from the alleged violation of his rights,
petitioner submits that the district court erred in is-
suing the order for a writ of habeas corpus.
In sum, there is great confusion in the federal and
state courts as to whether the denial of counsel of
choice is subject to a harmless error analysis. Clari-
fication of this issue and a determination as to
whether Wheat is‘to be applied in these circumstances
are urgently needed. This case presents this Court
with the ideal factual and legal scenario to resolve
these questions and end the conflict in the lower
courts.
C. Neither the District Court nor the Court of Appeals
Gave Proper Deference to the State Trial Court’s Fac-
tual Findings as Required Under Title 28 U.S.C. section
2254(d).
This Court has recognized repeatedly that questions
of historical fact!® ‘‘must be determined, in the first
* Respondent has never challenged the efficacy of his repre-
sentation by local counsel; indeed, respondent was represented
in the federal courts by counsel who was a member of the same
firm which represented respondent’s codefendant in the state
courts.
'’ This Court has defined the phrase “‘historical fact’’ as ‘‘facts
‘in the sense of a recital] of externa] events and the credibility
(cont'd)
26
instance, by state courts and deferred to, in the ab-
Sence of ‘convincing evidence’ to the contrary, by the
federal courts.’’ Rushen v. Spain, 464 U.S. 114, 120
(1983), reh’g denied, 465 U.S. 1055 (1984) (quoting
Marshall v. Lonberger, 459 U.S. 422, 431-382 (1983)).
The need for such deference stems, in part, from the
reality that the state courts are in a far better po-
sition to properly and completely assess the multitude
of factual issues presented during the course of a
trial. See Rushen v. Spain, 464 U.S. at 120; Marshall
uv. Lonberger, 459 U.S. at 482.
Further, the deference requirement embodied in 28
U.S.C. sec. 2254(d) was ‘‘.. .intended by Congress as
[a] limitation on the exercise of [the first jurisdictional
grant by Congress to the federal courts.]’’ Sumner v.
Mata, 449 U.S. 5389, 547 n.2 (1981). Thus, this Court
has recognized repeatedly its ‘‘duty ...to see to it
that the jurisdiction of the [district court], which is
defined and limited by statute, is not exceeded.” Jbid.
New Jersey allows the admission of out-of-state
counsel pro hac vice by court rule.’ By virtue of this
rule, New Jersey trial courts are required to consider
not only the defendant’s desire for a particular
counsel, but also whether good cause exists for the
admission of out-of-state counsel. This decision in-
volves considerations such as the complexity of the
of their narrators ....’’’ Townsend v. Sain, 372 U.S. 293, 309
n.6 (1988) (quoting Brown v. Allen, 344 U.S. 448, 506, reh’g
denied, 345 U.S. 946 (1953) (opinion of Frankfurter, J.) ).
1 The district court erroneously referred to a later amended
version of N.J. Ct. R. 1:21-2 in its decision. (App. D, at p. 35a).
‘The amended version of this rule is reproduced in this Petition
as Appendix J, while the version in effect at the pertinent time
of this case is reproduced in the text at p. 5, supra.
27
case, the qualifications of out-of-state counsel and the
availability of qualified local counsel. Indeed, N..J. Ct.
R. 1:21-2, as amended, now expressly sets forth these
requirements. Prior to this amendment, and at the
time of respondent’s motion, such considerations were
necessitated by caselaw. See State v. Kavanaugh, 52
N.J. 7, 248 A.2d 225, cert. denied, 3938 U.S. 924
(1968); State v. Lanza, 60 W.J. Super. 189, 142-43,
158 A.2d 355, 858 (App. Div. 1960). As will be dis-
cussed infra, the state trial judge, contrary to the
findings of the district court and the majority of the
Third Circuit’s panel, did not abuse his discretion and
arbitrarily deny respondent’s motion to have counsel
admitted pro hac vice; rather, he carefully balanced
all relevant factors.
In the case at bar, respondent requested that the
court admit not just one out-of-state counsel, but two:
an attorney from Illinois and one from the District
of Columbia. At the same time codefendant Chappee
requested that the court admit an attorney from Col-
orado. Additionally, the two defendants, both of whom
were free on bail, were from two distant jurisdictions
(Chappee resided in Massachusetts, while Fuller lived
in Colorado). Thus, the judge was faced with requests
to admit three out-of-state counsel from three differ-
ent and distant jurisdictions, as well as having to
contend with two out-of-state defendants from differ-
ent areas of the country. The judge carefully consid-
ered the requests for admission of counsel pro hac
vice; his discussion spans some 17 pages in the tran-
script. (See App. I). The state trial judge specifically
found that the case was not complex (indeed it was
a routine turnpike automobile stop), that local counsel
were well able to handle the matter, and that it would
28
be extremely difficult to accommodate the scheduling
of three out-of-state counsel from three different ju-
risdictions in different parts of the country, thereby
almost inevitably causing delay in the proceedings. In
this respect, the judge also took note of the imminent
probability of an air traffic controllers’ strike. The
judge further noted that out-of-state counsel had not
coordinated properly with local counsel as provided
by the court rule. The judge thus denied the pro hac
vice requests.
What is of particular importance is that it is on
the very basis of the trial court’s reasoned decision
that Judge Weis dissented from the court of appeals
majority decision. Indeed, as Judge Weis’ dissent co-
gently and forcefully notes, the state trial court here
gave proper and detailed reasons for the denial of
the pro hac vice motion. (App. A, at pp. 19a-21a).
The judge’s actions were not ‘“‘wooden’’ or automatic
as the majority has characterized them; rather they
reflected a thoughtful concern for the balancing of a
hectic and crowded trial calendar with respondent’s
rights. (App. A, at p. 15a).
Despite the trial court’s recitation of such compel-
ling factors, the district court and the majority of the
court of appeals nevertheless dismissed the court’s
reasoning, concluding, in part, that the trial court’s
concern that use of out-of-state counsel would nec-
essarily result in delays was a “rote application of
[a] kind of blanket generalization [which left] ‘no room
for the exercise of discretion.’”” (App. D, at p. 42a)
(quoting United States v. Panzardi Alvarez, 816 F.2d
813, 817 (1st Cir. 1987) ).
There is no question that the trial court was con-
cerned with delay in this case. But delay can be, and
29
petitioner submits is in this case, sufficient to coun-
tervail a defendant’s request for out-of-state counsel,
indeed, even a defendant's qualified right to counsel
of choice. As the dissent cogently states ‘‘... accom-
modating one defendant in scheduling might prejudice
the rights of another whose trial would be accelerated
or delayed.” (App. A, at p. 22a). See United States
v. Burton, 584 F.2d 485, 490 (D.C. Cir. 1978), cert.
denied, 439 U.S. 1069 (1979). Moreover, as this Court
has explicitly recognized, and Judge Weis clearly
noted in his dissent (App. A, at p. 22a), it is imper-
ative that trial courts be given wide latitude in con-
trolling their trial calendars. See Morris v. Slappy,
461 U.S. 1, 11 (1983). Obviously there is no way a
trial court may predict with absolute certainty that
delay will occur; it should suffice that the court con-
cludes on the basis of the evidence before it that delay
may occur and denies the motion for pro hac vice
representation for that reason. Cf. Wheat v. United
States, 486 U.S. __, 108 S. Ct. 1692 (1988).
Petitioner submits that the reasons for the trial
court’s denial of the pro huc vice motion were amply
supported by the record and were not arbitrary. The
rulings by the majority and the district court to the
contrary are, as the dissent points out, based upon
a mischaracterization of the trial court’s ruling as
resting on per se factors. (App. A, at pp. 2Za-23a).
In view of the district court’s refusal to properly
defer to the trial court’s findings, the opinion of the
court of appeals affirming the district court’s reason-
ing must be reviewed by this Court. The opinions of
both the district court and the court of appeals serve
to accomplish nothing more than to contribute to fed-
eral habeas as being a ‘“‘source of friction between
30
state and federal courts’’ which ‘“‘Congress obviously
meant to [partially] alleviate when it enacted subsec-
tion (d)’’ of section 2254. Summer v. Mata, 449 U.S.
at 550. If the intent of Congress is not to be frus-
trated and section 2254(d) is to be given any force,
this Court must grant review of the court of appeals’
decision.
CONCLUSION
Based upon the foregoing, petitioner urges the
granting of this petition for a writ of certiorari. The
court of appeals chose to follow its own precedent
which it admitted was severely undercut by this
Court’s opinion in Wheat and is in conflict with other
federal courts. Further, the Third Circuit ruled that
there is a right to pro hac vice counsel encompassed
within a state criminal defendant’s Sixth Amendment
right to counsel of choice, an issue decided to the
contrary by other federal courts and the state courts
of New Jersey and never decided by this Court.
Review by this Court is warranted to clarify the
law on whether a right to have counsel admitted pro
hac vice is contemplated within a defendant’s right
to counsel of choice and to determine whether an
alleged violation of this right, if it exists, is subject
to a harmless error analysis when reviewed in a ha-
beas proceeding.
Respectfully submitted,
PETER N. PERRETTI, JR.
Attorney General of New Jersey
Petitioner
DEBRA L. STONE
Deputy Attorney General
Attorney of Record
DEBRA L. STONE
MEREDITH A. COTE
Deputy Attorneys General
Division of Criminal Justice
Appellate Section
Of Counsel and on the
Petition
DATED: June 1989
la
4
!
:
r.
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 88-5456
GLEN FULLER.
Appellee
¥;
WARREN DIESSLIN.
Superintendent of Buena Vista Correctional Facility.
Buena Vista, Colorado and W. CARY EDWARDS,
Attorney General for State of New Jersey.
Appellants
On Appeal From the United States District Court
for the District of New Jersey
(D.C. Civ. No. 87-2353)
Argued October 31, 1988
Before: GIBBONS. BECKER and WEIS,
Circuit Judges
(Filed February 24, 1989)
ALAN SIBLER (Argued)
MARK B. GOMBINER
Hayden. Perle and Silber
177 Prince Street
New York, NY 10012
Attorneys for Appellee
2a
DEBRA L. STONE (Argued)
Deputy Attorney General
Division of Criminal Justice
Appellate Section
25 Market Street
P.O. Box CN 086
Trenton, NJ 08625
W. CARY EDWARDS
Attorney General of New Jersey
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Attorneys for Appellants
OPINION OF THE COURT
BECKER, Circuit Judge.
This is an appeal from an order of the district court
granting a writ of habeas corpus to a state prisoner on
the grounds that he was arbitrarily denied the right to
counsel of his choice by a New Jersey state court before
which he appeared on drug and weapons charges.
Petitioner, Glen Fuller, had New Jersey counsel, who
moved for admission pro hac vice of two out-of-state
lawyers who were prepared to try Fuller's case. Without
a hearing or making particularized findings. the state
trial court denied Fuller's request, reasoning that local
counsel was competent and that unacceptable trial
delay was likely with two out-of-state counsel. Upon
pleading guilty, Fuller reserved the right to raise the
counsel of choice issue on appeal. Appellate relief in the
State court was denied, thereby exhausting state
remedies and setting the stage for the habeas petition.
3a
New Jersey appeals the district court’s decision
granting the writ. The appeal raises the question
whether a trial court, which presumes that the
proceedings will be unacceptably delayed where the
defendant is represented by out-of-state counsel, and
denies counsel of choice on that basis alone (assuming
the existence of competent local counsel), has
arbitrarily denied the right to counsel of choice and
therefore violated defendant's sixth amendment right
to counsel. Although New Jersey argues strongly, see
infra Typescript at 12-13, that our precedents in
United States v. Romano, 849 F.2d 812 (3d Cir. 1988)
and United States v. Rankin, 779 F.2d 956 (3d Cir.
1986), should be reevaluated in light of the Supreme
Court's recent decision in Wheat v. United States, 108
S. Ct. 1692 (1988). we do not believe that that case may
be read as overruling these cases. which control the
question. and hence we will affirm. !
I]. FACTS AND PROCEDURAL HISTORY
On November 14. 1980, Glen Fuller was a
passenger in a car driven by Douglas Chappee. which
was stopped for speeding in New Jersey. A search of the
car turned up a large quantity of cocaine and about a
pound of marijuana. Fuller and Chappee were
subsequently indicted by a grand jury on three counts
of possession of a controlled dangerous substance and
one count each of possession of a controlled dangerous
substance with intent to distribute and unlawful
possession of a weapon. On motion to the New Jersey
Superior Court (the trial court). Fuller requested.
‘: We note that Romano was decided shortly after the decision
in Wheat was announced. but that Wheat was not expressly
addressed in Romano. We presume. however. that the panel in
Romano considered Wheat. but rejected the possibility that it
overruled the Rankin line of cases followed in Romano.
4a
through local counsel, that he be represented pro hac
vice by a lawyer from IHinois and another from the
District of Columbia. The trial judge based his denial of
Fuller's motion on his belief that local counsel was
competent, that the case was going to be hotly
contested, and that two out-of-state counsel would
severely inconvenience the proceedings, stating that
“the nature of the probable delay. . . [that] will occur as
a result of this matter. . . is so grave as to overcome the
unfettered’ right of defendant to counsel of his own
choosing. and accordingly, the motion to admit pro
hac is denied."? JA at 791-92.
Fuller subsequently requested leave to appeal the
trial court's denial of his motion for counsel pro hac
vice to the Appellate Division of the Superior Court,
and to the Supreme Court of New Jersey, but leave was
denied in both instances. Fuller then sought relief in
the district court for the District of New Jersey,
requesting a temporary restraining order. a
preliminary injunction, and a permanent injunction.
At that time the court denied relief and abstained in
the face of the ongoing state criminal proceedings.
Younger v. Harris, 401 U.S. 37 (1971). An immediate
appeal to this Court was withdrawn, and the trial court
proceedings resumed.
In August of 1982. a suppression hearing was held
before the state trial court. Two years later, on April 10.
1984, Fuller and codefendant Chappee entered
conditional retraxit guilty pleas to possession of
cocaine with intent to distribute, in exchange for
2. At the time of the trial judge’s determination, the state rule
controlling admission of pro hac vice counsel stated that such
counsel could be admitted “at the discretion of the court.” N.J. Ct.
R. 1:21-2 (1981). The rule has been subsequently amended: the
district court inadvertently referred to the amended version. Dist.
Ct. Op. at 9.
5a
dismissal of the remaining counts and the state's
agreement to make no recommendation as to sentence
other than that incarceration was necessary. Fuller
reserved the right to raise certain legal issues,
including the counsel of choice issue, for purposes of
appeal. He was sentenced to a term of 20 years in jail
and a fine of $20.000.
Fuller appealed to the Appellate Division. which
affirmed Fuller's conviction, holding inter alia that the
trial court had not abused its discretion in denying
Fuller's motion for admission of counsel pro hac vice
and further stating that Fuller had “received extremely
competent representation both in the trial court and
here.” State v. Chappee, 211 N.J. Super. 321, 335,
511 A.2d 1197. 1205 (App. Div. 1986). The New Jersey
Supreme Court denied certification. State v. Fuller,
107 N.J. 45. 526 A.2d 136 (1986).
On June 16, 1987, Fuller filed his habeas petition.
28 U.S.C. § 2254 (1982). On May 10. 1988. the district
court filed an amended opinion and order. granting the
writ. The court ruled that: (1) the denial of Fuller's
request for counsel pro hac vice deprived Fuller of his
right to counsel of choice because the existence of local
capable counsel “is not a sufficient reason to overcome
(the defendant's} right to counsel of choice”; and (2)
that the trial court had erred in making a ‘rote
application” of a “blanket generalization” rather than
an individual determination of potential delay based on
the facts of this case. Dist. Ct. Op. at 14-15. The court
went on to note that the trial court's distinction
between in-state and out-of-state attorneys was a
“geographical” distinction that made little sense in
light of the “reality of a highly mobile bar that has at its
disposal modern transportation and communication. ©
Id. at 16. The court held that deprivation of the right to
counsel of choice is per se reversible and does not
6a
require a showing of prejudice, citing United States v.
Laura, 607 F.2d 52. 58 (3d Cir. 1979), and United
States v. Rankin, 779 F.2d 956, 960 (3d Cir. 1986).
Our review of this legal determination of the
district court is plenary. See United States v. Adams,
759 F.2d 1099, 1106 (3d Cir. 1985}; Universal
Minerals. Inc. v. C.A. Hughes & Co., 669 F.2d 98, 102
(3d Cir. 1981).
III. DISCUSSION
A. Does the Right to Counsel of Choice Include
a Right to Counsel Pro Hac Vice?
New Jersey challenges the district court's issuance
of the writ on the ground that if there is a right to
choose out-of-state counsel, that right is not absolute
and, at all events, was not improperly denied in this
case. At the threshold, we must determine whether the
right to counsel of choice encompasses the right to
counsel pro hac vice. Neither this Court nor the
Supreme Court has explicitly determined whether the
right to counsel pro hac vice is included within the
right to counsel of choice. The Supreme Court has
considered whether an out-of-state attorney has a
fourteenth amendment due process right to practice in
a State in which he is not a member of the bar and held
that there is no such right. See Leis v. Flynt, 439 U.S.
438 (1979). The Court. however, made it clear that it
had not addressed the issue of whether a litigant’s
right to counsel of choice includes the right to
out-of-state counsel. Leis, 439 U.S. at 442 n.4.
New Jersey advances no argument why. and we see
no reason why, a request for counsel pro hac vice
should be treated any differently by a trial court than
any other request for counsel of choice.’ We do have, as
nS Because Fuller does not challenge the states pro hac vice
rule itself. but only the trial court's weighing of his right to counsel!
the district court noted. “a highly mobile bar that has
at its disposal modern transportation and
communication.” Dist. Ct. Op. at 16. Therefore, the
number of occasions on which a defendant will desire
to be represented by counsel pro hac vice is frequent
and will be increasingly so. Arbitrarily to deny a
defendant the right to obtain counsel from outside the
state would untowardly limit the possible choices the
defendant might have. Thus, we conclude that the
right to counsel pro hac vice is encompassed
analytically within the right to counsel of choice, and
as such should be examined within the analytic
framework generally employed in right to counsel of
choice cases.
B. Does Arbitrary Denial of Counsel of Choice
Require Per Se Reversal?
The sixth amendment guarantees a criminal
defendant the right “to have the Assistance of Counsel
for his defense.” U.S. Const.. amend. VI. It is
well-settled that a component of this right is the
of choice against the requirements of fair and proper judicial
administration. we are not faced with the issue of whether the rule
itself is unconstitutional.
New Jersey argues that there is no sixth amendment
right to pro hac vice counsel. asserting that the state has an
“important interest in maintaining control over those persons
practicing law within their borders” and that if the right to counsel
pro hac vice is constitutionalized. then the “state courts [would be)
. required to admit them.” Appellant's Br. at 15. New Jersey's
conclusion overstates the issue. The right to counsel of choice has
been traditionally “balanced against the requirements of the fair
and proper administration of justice.” Rankin, 779 F.2d at 958.
Therefore. the mere fact that a defendant's sixth amendment right
to counsel of choice encompasses the right to request counsel! pro
hac vice does not necessarily require the courts tu approve the
request in every instance. Rather. it creates a presumption that the
defendant's request should be granted unless considerations of
judicial administration supervene.
8a
protection of a defendant's opportunity to obtain
counsel of choice. Powell v. Alabama, 287 U.S. 45, 53
(1932): Romano, 849 F.2d at 818; Rankin, 779 F.2d at
958: Laura, 607 F.2d at 55-56. The sixth amendment
does not, however, “ensure that a defendant will
inexorably be represented by the lawyer whom he
prefers.” Wheat. 108 S. Ct. at 1697: see also Romano,
849 F.2d at 819 (“The right to choose counsel is not
unqualified ... ."); Rankin, 779 F.2d at 958 (“Although
the right to representation by chosen counsel is subject
to limitations it may not be hindered unnecessarily. ’):
Laura, 607 F.2d at 57 (no absolute right to counsel of
choice). Thus. while a defendant's choice may not be
arbitrarily denied, a defendant's right to choose his
own counsel must be balanced against the fair and
proper administration of justice. Rankin. 779 F.2d at
958: Laura. 607 F.2d at 57: see also Linton v. Perini,
656 F.2d 207, 209 (6th Cir. 1981) (“a trial court, acting
in the name of calendar control, cannot arbitrarily and
unreasonably interfere with a client's right” to counsel
of choice).
Our recent decision in United States v. Romano,
849 F.2d 812 (3d Cir. 1988). controls the outcome of
this case. In Romano, following the district court's
revocation of defendant's pro se status, the defendant
requested counsel of her choice. The court summarily
denied defendant's request, instead appointing
counsel for her. Romano, 849 F.2d at 818. On appeal,
this Court held that the district court's failure to
conduct a hearing and failure to make “specific
findings of fact consistent with the evidence” as to the
suitability of defendant's chosen counsel violated the
defendant's sixth amendment rights and required
reversal. Id. at 820. The holding of Romano, therefore,
is that a trial court's arbitrary denial of defendant's
request for her counsel of choice requires per se
9a
reversal. See also Rankin, 779 F.2d at 960 (arbitrary
denial of defendant's request for counsel of choice
requires reversal without showing of prejudice):
Laura, 607 F.2d at 57-58 (same): United States v.
Panzardi Alvarez, 816 F.2d 813. 817 (ist Cir. 1987)
(mechanistic application of local rule that permits
district judge to arbitrarily deny defendant's request
for counsel of choice requires reversal).
New Jersey has offered the following not
insubstantial arguments for a conclusion that
Romano should not control the outcome of this case.
but rather the right to counsel of choice should be
governed by the harmless error beyond a reasonable
doubt standard. First. in the Supreme Court's most
recent case involving waiver of conflict-free counsel.
the Court implies that the right to counsel of choice is
grounded in the right to effective assistance of counsel.
In Wheat, 108 S. Ct. at 1697 (upholding district
courts decision not to permit waiver of right to
conflict-free counsel). the Court stated that “while the
right to select and be represented by one’s preferred
attcrney is comprehended by the Sixth Amendment.
the essential aim of the Amendment is to guarantee an
effective advocate for each criminal defendant rather
than to ensure that a defendant will inexorably be
represented by the lawyer whom he prefers.” Because
the Court did not find error in the district court's
order. it does not address in any fashion whether a
prejudice. harmless error, Chapman v. California.
386 U.S. 18 (1967). or per se analysis would have been
appropriate had they found error. The Court. however.
States that the “essential aim” of the Sixth Amendment
is the effective assistance of counsel. While that does
not answer the question of which standard applies it
would not, as New Jersey pointed out at oral argument,
make much sense to require per se reversibility in
10a
counsel of choice cases if the right to counsel of choice
is intended to secure the right to effective assistance of
counsel and the right to effective assistance of counsel
requires a showing of prejudice for reversal. See
Strickland v. Washington, 466 U.S. 668. 691-92
(1984).
Second, New Jersey argues that the right to
counsel of choice is, in any case, akin to the right to
effective assistance of counsel and, therefore. a
harmless error or prejudice analysis should be applied.
Under existing jurisprudence, it is not clear whether
the right to counsel of choice is more akin to the right
to effective assistance of counsel or the right to
self-representation. A denial of the right to
self-representation is per se reversible. See Faretta v.
California, 422 U.S. 806 (1975). But a denial of the
right to effective assistance of counsel is subject to a
prejudice analysis. This Court in Rankin, 779 F.2d at
960, stated that the right to counsel of choice is a
species of the right to self-representation. Arguably,
therefore, per se analysis should apply. See also
Laura, 607 F.2d at 58. But, as New Jersey points out,
the Supreme Court in Wheat states that the right to
counsel of choice is not a species of the right to
self-representation and therefore implies that per se
analysis would not necessarily apply. Wheat, 108 S. Ct.
at 1697 n.3 (a defendant's “right to represent himself if
he voluntarily elects to do so, does not encompass the
right to choose any advocate if the defendant wishes to
be represented by counsel’).
Were we writing on a clean slate. we would be
presented with the difficult issue of determining
whether the right to counsel of choice is governed by a
harmless error. or prejudice, analysis or a per se
reversal analysis. Prior to Strickland, in which the
Supreme Court announced a prejudice test for
ineffective assistance of counsel cases, courts couid
lla
safely assume that all right to counsel cases were
governed by the per se reversibility standard. See
Gideon v. Wainwright. 372 U.S. 335 (1963) (holding
that denial of right to counsel is governed by per se
standard). In fact, in this Circuit, the seminal right to
counsel of choice case simply assumed that a per se
reversal analysis applied. See Laura, 607 F.2d at 58.
The subsequent Third Circuit right to counsel of
choice cases have relied heavily on Laura withoypt
addressing whether the intervening Strickland case .
altered the standard for reversal. See United States v.
Romano. 849 F.2d 812 (3d Cir. 1988): United States v.
Rankin, 779 F.2d 956 (3d Cir. 1986). It is by no means
clear, however, whether Laura survives Strickland or
the burgeoning constitutional harmless error cases.
See generally T. Stacy & K. Dayton. Rethinking
Harmless Constitutional Error, 88 Colum. L. Rev. 79
(1988) (detailing increasing trend toward harmless
error analysis and providing analytical approach).*
4. It is also unclear exactly what the law in this Circuit is with
respect to the standard in right to counsel of choice cases that do
not involve arbitrary denials. Although the issue has been
addressed in dicta. no Third Circuit case has vet expressed a
holding as to whether a nonarbitrary, but erroneous denial of the
right to counsel of choice is subject to either a harmless error
analysis or falls under a rule of per se reversibility. For instance. a
trial court could make a reasoned determination on the basis of a
fully prepared record (hence a non-arbitrary determination). but
still err in concluding that counsel of choice should be denied.
Arguably. the discussion in L’nited States v. Flanagan. 679 F.2d
1072. 1075 (3d Cir. 1982). vacated on other grounds. 465 U.S. 259
(1984). implies that absent arbitrary action. there can be no
reversal. basing its conclusion on Davis v. Stamler. 650 F.2d 477
(8d Cir. 1981). but the court in Davis not only applied an
arbitrariness standard, but also a reasonableness standard to the
trial judge's activities. We therefore conclude that no case in this
Circuit has vet expressed a holding as to the standard to be applied
in nonarbitrary. erroneous denials of the right to counsel.
12a
Despite New Jersey's interesting arguments to the
contrary, Wheats dicta, however pregnant, cannot
control the outcome. Rather, we are constrained by
this Circuit's approach in Rankin and Romano. In this
Circuit, absent further (and more concrete) Supreme
Court developments or an in banc opinion, where there
is an arbitrary denial of the right to counsel of choice,
reversal is per se.
_ The district court in this case measured the trial
court's treatment of Fuller's motion for counsel pro hac
vice against the well-settled standards discussed
supra, holding that the trial judge “failled] to scrutinize
the particular case at bar” and therefore violated
Fuller's sixth amendment rights. As the following
discussion of the trial court's inquiry will make clear.
the district court's conclusion was correct,
C. Was the State Trial Court's Denial of
Counsel Pro Hac Vice Arbitrary?
The state trial court determined that local counsel
was capable vi adequately representing Fuller. The
court stated that it was “satisfied there's an adequate
degree of expertise available in this state to handle any
of these motions.” Dist. Ct. Op. at 11 (quoting trial
court transcript of July 9, 1981, at 32). The district
court rejected the state courts determination,
reasoning that local counsel were not necessarily more
knowledgeable about local law than out-of-state
counsel and that the state rule’s requirement that
out-of-state counsel appear with local counsel would
mitigate any delays potentially caused by an
out-of-state counsel's lack of knowledge of the local law.
We agree with the district court that, as a logical
matter, it is not necessarily true that local counsel will
be more knowledgeable about the New Jersey law than
out-of-state counsel and therefore the competence of
18a
in-state counsel will not in itself reduce the likelihood
of delay.
On appeal, however, New Jersey has characterized
this issue not so much as a factual matter of whether
in-state counsel would know more than out-of-state
counsel, but rather, as a proposed legal standard: if
there is adequate local counsel, then a denial of a
request for out-of-state counsel cannot deny a
defendant his sixth amendment rights. We conclude
that this approach is without merit. because it
collapses the right to counsel of choice into the right to
effective assistance of counsel. A fair restatement of
New Jersey's position is that if the local pool of
available counsel would supply effective assistance.
then the denial of the right to counsel of choice could
not rise to a constitutional deprivation.* In New
Jersey's favor. the Supreme Court has stated that “the
essential aim of the [Sixth] Amendment is to guarantee
an effective advocate for each criminal defendant
rather than to ensure that a defendant will inexorably
be represented by the lawyer whom he prefers.” Wheat.
108 S. Ct. at 1697. Yet, even if the right to counsel of
choice exists for the purpose of securing effective
assistance of counsel to the defendant. as New Jersey
suggests, see supra Typescript at 10, the two rights are
not identical. We do not understand the language in
Wheat to mean that the right to counsel ©. choice is
°. One Circuit has held that an indigent defendant has no right
to have out-of-state counsel] appointed for him. because of the
State’s “legitimate interest in developing a pool of competent
attorneys to represent indigents ..... Bedrosian v. Mintz. 518 F.2d
396. 401 (2d Cir. 1975). That case does not speak. however. to a
case such as the one before us wherein there is no claim of a
countervailing state interest for preferring in-state counsel over
out-of-state counsel. It therefore provides no guidance for our
decision in this case.
l4a
important only insofar as it secures the right to
effective assistance of counsel. Rather. it could be fairly
interpreted to mean that, although the core value in
the sixth amendment is effective assistance of counsel,
the amendment also eomprehends other related rights,
such as the “right to select and be represented by one's
preferred attorney.” Id.
This Court has clearly stated the importance of a
defendant's securing the counsel of his choice, and
these considerations are significantly different from
the goals sought from effective assistance of counsel:
[T]he most important decision a defendant makes
in shaping his defense is his selection of an
attorney. The selected attorney is the mechanism
through which the defendant will learn of the
options which are available to him. It is from his
attorney that he will learn of the particulars of the
indictment brought against him, of the infirmities
of the government's case and of the range of
alternative approaches to oppose or even cooperate
with the government's efforts.
Attorneys are not fungible, as are eggs. apples and
oranges. Attorneys may differ as to their trial
strategy, their oratory style, or the importance they
give to particular legal issues. These differences, all
within the range of effective and competent
advocacy, may be important in the development of
a defense. It is gencrally the defendants right to
make a choice from the available counsel in the
development of his defense. Given this reality. a
defendant's decision to select a particular attorney
becomes critical to the type of defense he will make
and thus falls within the ambit of the sixth
amendment.
lda
Laura, 607 F.2d at 56. Therefore, it should not be
enough for the government to demonstrate availability
of other competent counsel to defeat the defendant's
request for particular counsel. Rather, the only
concerns the court may consider in weighing whether
to grant the defendant's request for counsel of choice
are the defendant's right to counsel of choice and the
fair and proper administration of justice.
The state trial court also expounded on the
difficulties inherent in cases involving out-of-state
attorneys and caused by the likely delays incumbent
upon traveling and the trial court’s inability to
negotiate trial scheduling with out-of-state judges. See
Dist. Ct. Op. at 12-13. The district court rejected the
trial court’s conclusion, stating that [t]he rote
application of this kind of blanket generalization
‘leaves no room for the exercise of discretion.’ Rather, it
represents the court's failure to scrutinize the
particular case at bar.” Id. at 15 (quoting Panzardi
Alvarez. 816 F.2d at 817). The district court further
declared that the record demonstrated that local
counsel was unprepared to proceed, but that
out-of-state counse! was prepared and concluded that
“the trial court’s view was based, at best, upon
speculative delays rather than upon a record which
could support a finding that the particular out-of-state
attorneys repeatedly impeded the progress of
litigation.” Dist. Ct. Op. at 15-16.
We hold that the district court correctly concluded
that the trial court's wooden approach and its failure to
make record-supported findings balancing the right to
counsel with the demands of the administration of
justice resulted in an arbitrary denial of Fuller’s motion
for counsel pro hac vice. We are satisfied that the
district court correctly applied the law of this Circuit in
concluding that such an arbitrary denial constituted a
l6a
per se constitutional error justifying issuance of the
writ.° See Romano, 849 F.2d at 820.’
We hasten to add that we do not hold that a court is
prohibited from using its “instinct and judgment
based on experience,” Wheat, 108 S.Ct. at 1699, when
it weighs the competing rights of the litigant to counsel
of his choice and wise judicial administration. Rather,
we merely hold that the court may not assume that
out-of-state attorneys will not be capable of meeting the
6. New Jersey argues that we must reverse the district court.
because 28 U.S.C. § 2254(d) (1982) requires us to give great
deference to a state court's factfindings. However. the trial court in
this case made no findings of fact with respect to the issue of
counsel of choice. Rather. its conclusions were drawn from its
presuppositions about the impact of out-of-state counsel on trial
court scheduling. Where the district court has made no findings of
“historical fact.” we need not presume its statements are correct.
see Holland v. Attorney General of New Jersey. 777 F.2d 150. 155
(3d Cir. 1985). and therefore § 2254(d) provides no impediment to
our affirmance of the district court's issuance of the writ.
7. The state trial court also perceived that the case was going to
be “fought tooth and nail.” would involve a number of interlocutory
appeals. and therefore that scheduling wou!d be even more
difficult. J.A. 786-87. While the district court cid not address this
issue in terms. we find this justification for the denial of the motion
for counsel of choice most disturbing. We agree with the state trial
court that it is undeniable that a hotly contested case is likely to
intensify scheduling demands upon the court. but the defendant's
interest in counsel of choice in such a situation is most acute and
should not be denied absent record evidence that the chosen
counsel would in fact delay the scheduling of the proceedings. It
would make no sense to condition the grant of a request for counsel
of choice on the degree of intensity with which the defendant
pursues his case or whether the government and the defendant
happen to be amicable or at loggerheads. Moreover. the
arbitrariness of the trial court's conclusion is heightened by the
fact that Fuller did not engage in a great number of interlocutory
appeals. but rather pled guilty. This point. therefore. buttresses
our holding that the district court properly issued the writ.
l7a
court's schedule. Upon obtaining sufficient
information as to the availability of the requested
counsel, the court must then employ its knowledge and
experience to determine whether the litigant’s choice of
counsel will unduly frustrate the administration of the
court. It is this kind of reasoned balancing that is
necessary to avoid the arbitrariness problem.
Moreover, these holdings do not militate against
the principle that a trial court has broad discretion in
the administration of its trials. In Wheat, the Court
stated that “the District Court must be allowed
substantial latitude in refusing waivers of conflicts of
interest .... In the circumstances of this case, with the
motion for substitution of counsel made so close to the
time of trial, the District Court relied on instinct and
judgment based on experience in making its decision.”
108 S. Ct. at 1699. And in Morris v. Slappy, 461 U.S.
1, 11 (1983) (right to counsel of choice not violated
where trial court refused continuance even though
defendant's counsel of choice was in the hospital), the
Court emphasized that “[t]rial judges necessarily
require a great deal of latitude in scheduling trials.”
See also Rankin, 779 F.2d at 960: Sampley v.
Attorney General of North Carolina, 786 F.2d 610, 613
(4th Cir. 1986) (courts have broad latitude in deciding
whether to grant continuance, even where decision
results in denial of counsel of choice). cert. denied, 478
U.S. 1008 (1986).
The Eighth Circuit has gone further and
interpreted this broad grant of discretion to permit a
trial court to deny the defendant's choice based on the.
trial court's presumption that in-state counsel would
provide for a more “orderly processing of the case” than
defendant's requested out-of-state counsel. Williams v.
Nix. 751 F.2d 956, 959 (8th Cir. 1985). cert. denied.
471 U.S. 1138 (1985). We do not believe that a
18a
requirement that the trial court determine whether the
defendant's chosen counsel is likely in fact to delay the
trial improperly impinges on its generally broad
discretion over scheduling and administration of its
caseload and therefore decline to follow the more
expansive Eighth Circuit position that would permit a
trial court to presume delay if out-of-state counsel is
entered.
IV. CONCLUSION
In sum, the state trial court's reasoning underlying
its denial of Fuller's motion for counsel of choice was
fundamentally flawed, because it was not based on the
facts of this particular case or on considerations that
are necessarily related to the determination whether to
deny the defendant's right to counsel of choice. We hold
that Fuller's request for counsel of choice was
arbitrarily denied, that Fuller's sixth amendment right
to counsel of choice was thereby violated, and therefore
that the district court was correct in issuing the writ of
habeas corpus. That order of the district court will
therefore be affirmed.
19a
WEIS, Circuit Judge, dissenting.
The majority concludes that the state trial judge
arbitrarily denied the defendant's request for
representation by counsel of his choice. I disagree with
that assessment of the state court's ruling, and would
reverse the district court’s grant of habeas corpus.
Because | find the trial judge acted within the scope of
his discretion. | would delay until another day the
constitutional question prematurely resolved by the
majority in this case.
Defendant Glen Fuller was asleep in the rear seat of
a car driven by his codefendant, Douglas Chappee,
when they were pulled over by New Jersey state
troopers for speeding at 4:30 a.m. on November 14,
1980. The troopers smelled marijuana smoke and
noticed a burnt marijuana cigarette on the floor of the
automobile. They requested and received permission to
examine the trunk where they discovered more than
five pounds of cocaine and lesser quantities of other
drugs. Both Fuller and Chappee were indicted, and
their cases were consolidated for pretrial motions and
trial.
On July 2. 1981. local counsel for codefendant
Chappee moved the admission pro hac vice of John
Van Ness. an attorney from Aspen. Colorado. The judge
to whom the case had been assigned for trial denied the
motion, observing that it was “difficult enough toruna
trial calendar and a motion calender with counsel
throughout the State, to get them here together on
time. obviously if we involved out-of-state counsel from
Colorado. who is on his feet today in Colorado and
perhaps tomorrow in California, and the day after that
in Florida. the opportunity to consult, meet with, and
to schedule becomes extremely difficult.”
The trial judge commented further that the case
did not appear to involve unusual difficulty requiring
20a
out-of-state counsel, but instead presented issues with
which local lawyers were quite familiar. He determined
that the Colorado attorney's proposed admission pro
hac vice would “unnecessarily burden and unduly
delay the disposition of motions, arguments and triall|
of the case.” Responding to a question from local
counsel, the judge elaborated on the difficulties of
airline scheduling. noting that no special expertise is
required “to understand it's harder to get a hold ofa
guy from Colorado, than it is from New Jersey.”
A week later the judge denied a similar motion to
admit Keith Stroup of Washington, D.C. and Michael
Pritzker of Iliinois on behalf of defendant Fuller. The
court explained.
“one [lawyer] from Aspen, Colorado, one from
either D.C. or Illinois. or wherever, plus local
counsel, plus out-of-state defendants. There are
too many unknowns in that equation. It's going to
be difficult just with the out-of-state clients and
in-state attorneys to run anything like a
reasonable motion and Appellate schedule, which
occur in this case, without adding two lawyers
from two different states, who have multiciplicity
of obligations and to run it all at the same time.”
The judge's concern with the defendants availability
arose from the fact that both were nonresidents --
Fuller lived in Colorado, Chappee in Massachusetts --
and both were enlarged on bail.
The court recognized that the state’s policy did not
discourage pro hac vice admissions, but that it first
required a balancing of the pertinent circumstances.
The judge recounted the imminent air controllers’
strike and noted the heavy scheduling obligations
imposed by the speedy trial rules. He pointed out that
even if all the motions pending in the case were
immediately resolved, the earliest trial date would fall
!
2la
in November or December, four or five months away.
More realistically, if disposition of the motions was
delayed until August and if out-of-state counsel were to
be admitted, “we're talking earliest disposition ... next
spring. when the case is a year old and probably
longer.”
This factual background. considered in light of the
judge's actual comments. is essential to a proper
resolution of the legal issue presented here. The
constitutional dimension of the right to retain counsel
of one’s choice, though consistently recognized, has
been coupled with the qualification that it is not
absolute. United States v. Flanagan, 679 F.2d 1072.
1075 (3d Cir. 1982), rev'd on other grounds, 465 U.S.
259 (1984); Davis v. Stamler, 650 F.2d 477. 479 (3d
Cir. 1981). We have acknowledged that. as desirable as
it may be for a criminal defendant to select an attorney
of his own choosing. “that goal must be weighed and
balanced against an equally desirable public need for
the efficient and effective administration of criminal
justice.” United States ex rel. Carey v. Rundle, 409
F.2d 1210, 1214 (3d Cir. 1969). cert. denied. 397 U.S.
46 (1970).
The complexities of calendar control in
metropolitan courts, the necessary balancing of the
accuseds rights to a speedy trial. the prosecutors’ need
for stability in scheduling. and the availability of
witnesses are all factors in the calculus. Unrestrained
liberality can upset the delicate’ balance:
accommodating one defendant in scheduling might
prejudice the rights of another whose trial would be
accelerated or delayed. Thus. the “inescapable”
conclusion, we have determined. is that “although the
right to counsel is absolute. there is no absolute right
to a particular counsel.” Jd. at 1215. See Wheat v.
United States, __ U.S. __. 108 S. Ct. 1692. 1697
(1988).
22a
A proper concern for the difficulties of calendar
control was critical to our decision in United States v.
Rankin, 779 F.2d 956 (3d Cir. 1986). There, we
decided that the district court infringed on the
defendant's right to counsel of choice by refusing to
continue a trial despite the fact that the defendant's
lawyer was still engaged in state court. The pivotal
element in that case was the inconsistency we
perceived between the district court’s action and a
compact that had been reached by the local federal arid
State courts designed to ease inter-forum calendar
conflicts.
In those circumstances. the public's interest in
efficient administration of the criminal justice system
coincided with the defendant's request for a
continuance. Consequently. the defendant's choice of
counsel -- which otherwise might have been
subordinated to the need to proceed expeditiously to
trial -- was given deference. The ruling in Rankin did
not compromise our previous holdings that the right to
ccunsel of choice is not absolute.
The Supreme Court has emphasized that trial
judges must be given wide latitude in scheduling trials.
“Not the least of [the judge's] problems is that of
assembling the witnesses, lawyers, and jurors at the
same place at the same time, and this burden counsels
against continuances except for compelling reasons.”
Morris v. Slappy, 461 U.S. 1, 11 (1983). This
consideration is particularly pertinent in today’s
bustling metropolitan court systems where
calendering is a frustrating, complicated process that
constantly threatens the prompt, orderly disposition of
criminal cases.
My review of the record here does not bear out the
‘district court’s conclusion that the state trial judge
proceeded from a per se theory that out-of-state
attorneys hinder the efficient processing of a case. To
23a
the contrary, the trial judge's comments revealed that
his concern was not with out-of-state counsel as such,
but with this particular congery of attorneys,
commuting from such distant areas as Colorado and
Illinois. The trial judge's conclusion that out-of-state
counsel's availability -- together with that of the
Colorado and Massachusetts defendants -- threatened
to produce logistical problems was neither arbitrary
nor unpredictable.
The district court’s reliance on the speed of
modern transportation to overcome geographical
considerations is undermined by the realities of the
jetage: flight cancellations. lost litigation boxes,
weather delavs. and, as the trial judge noted at the
time. the imminence of an air controller's strike.
Although air travel is quick when conditions are right.
experienced travelers know that expectations of flight
availability and on-time arrivals are often more fanciful
than real. Moreover, the district court did not evaluate
the added complexities in this litigation brought on by
the consolidation of the Fuller and Chappee cases.
Thus, not only were the pro hac vice applications of
attorneys Stroup and Pritzker at issue. but that of Mr.
Van Ness as well.
As one reason for granting habeas corpus relief,
the district court construed the state judge's ruling as
applying a per se presumption that New Jersey lawyers
were more knowledgeable about state and local rules
than the counsel defendants selected. I find nothing in
the trial judge's discussion that expresses such a view.
In fact, the judge generously acknowledged the
competence of out-of-state counsel, at times even
intimating that the special talents of chosen counsel
exceeded those necessary for the issues presented.
A fair reading of the state court transcript
persuades me that the district court mischaracterized
the trial judge’s ruling as resting on per se factors. To
the contrary. | find that the state judge sufficiently
24a
explained the specific circumstances that counseled
against admitting the three attorneys pro hac vice.
Judges in busy criminal courts encounter
daunting impediments to the prompt disposition of
the many cases awaiting trial. The difficulties to
beginning a trial on its scheduled day are many and
diverse. and it is hardly surprising that an
overwhelmed court can rarely accord parties a date
certain. Reducing the number of factors that
complicate scheduling while nevertheless honoring the
rights of the affected parties is no easy task. Inevitably,
some accommodation must at times be reached. and
harried trial judges must be given wide discretion in
this frustrating endeavor.
The state trial judge here did not abuse his
discretion in denying defendant representation by
out-of-state counsel. | would reverse the judgment of
the district court and vacate the grant of the writ of
habeas corpus.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
forthe Third Circuit
25a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 88-5456
GLEN FULLER
VS.
WARREN DIESSLIN. Superintendent of Buena Vista
Correctional Facility, Buena Vista, Colorado and
W. CARY EDWARDS. Attorney General for State
of New Jersey
W. Cary Edwards, Attorney Genera] of New Jersey and
Warren Disslin, Superintendent of the Buena Vista
Correctional Facility in Colorado,
Appellants
(D. C. Civil No. 87-2353)
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT
FOR THE ---- DISTRICT OF NEW JERSEY
Present: GIBBONS, Chief Judge, BECKER AND WEIS,
Circuit Judges
JUDGMENT
This cause came on to be heard on the record from the
United States District Court for the-- - - - District of New
Jersey and was argued by counsel October 31, 1988.
On consideration whereof. it js now here ordered and
adjudged by this Court that the judgment of the said Dis-
trict Court, entered May 13, 1988, be, and the same is
26a
hereby affirmed. Costs taxed against the appellant. All of
the above in accordance with the opinion of this Court.
ATTEST:
/s/ Sally Mrvos
Clerk
February 24, 1989
Certified as a true copy and issued in lieu
of a formal mandate on April 3, 1989.
Test: /s/ M. Elizabeth Ferguson
Chief Deputy Clerk, United States Court of Appeals,
for the Third Circuit
27a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 88-5456
GLEN FULLER,
Appellee
v.
WARREN DIESSLIN, Superintendent of Buena Vista
Correctional Facility, Buena Vista, Colorado and
PETER N. PERRETTI, JR., Attorney General
for the State of New Jersey
Appellants
(D.C. Civil No. 87-2353)
SUR PETITION FOR PANEL REHEARING AND
SUGGESTION FOR REHEARING IN BANC
PRESENT: GIBBONS, Chief Judge, SEITZ, HIGGIN-
BOTHAM, SLOVITER, BECKER, STAPLE-
TON, MANSMANN, HUTCHINSON,
SCIRICA, COWEN, and NYGAARD, Circuit
Judges and WEIS, Senior Circuit Judge"
The petition for rehearing filed by Appellants, Warren
Diesslin and Peter N. Perretti, having been submitted to
the judges who participated in the decision of this Court
and to all the other available circuit judges in active ser-
vice, and no judge who concurred in the decision having
*As to pane] hearing only.
28a
asked for rehearing, and a majority of the circuit judges
of the circuit in regular active service not having voted
for rehearing by the court in banc, the petition for re-
hearing is DENIED.
BY THE COURT,
/s/ Edward R. Becker
Circuit Judge
DATED: MAR 24 1989
29a
APPENDIX D
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Received
William T. Walsh, Clerk
May 10 233 PM ’88
United States
District Court
Civil Action No. 87-2353
GLEN FULLER,
Petitioner.
Vv.
WARDEN DIESSLIN, Superintendent of
the Buena Vista Correctional
Facility, Buena Vista, Colorado,
and W. CARY EDWARDS, Attorney
General of the State of New Jersey,
Respondents.
AMENDED
OPINION
ACKERMAN, District Judge
INTRODUCTION
Petitioner, Glen Fuller, brings this petition for habeas
corpus relief under 28 U.S.C. § 2254. Petitioner is cur-
rently confined at the Buena Vista Correctional Facility
in Colorado, but as a result of a separate conviction in
a ll
30a
the New Jersey courts, the State of New Jersey has lodged
a detainer with the State of Colorado which requires that
petitioner be surrendered to New Jersey upon completion
of his sentence in Colorado. Petitioner presently requests
an order directing his release from any future custody by
the Attorney General for the State of New Jersey on the
ground that his sixth amendment right to counse! of choice
was violated because the state trial judge denied his re-
quest for the pro hac vice admission of two-out-of state
attorneys.
On February 11, 1988, I filed an opinion and order in
which I granted petitioner’s request for a writ of habeas
corpus. On March 4, 1988, it was brought to my attention
that tne issue of pro hac admission of petitioner’s counsel
of choice had been raised before the Honorable Anne
Thompson of the United States District Court for the Dis-
trict of New Jersey. See Pritzker v. Hamlin, No. 81-2245,
slip op. (D.N.J. filed July 16, 1981) (unpublished). I was
unaware of this prior federal proceeding when I decided
to grant the writ. Thus, as a result of this information,
I vacated the writ and ordered the parties to brief the
issue regarding the effect, if any, the prior federal pro-
ceeding has on my decision to grant the writ. It should
be noted that I vacated the writ without any knowledge
that my decision had been appealed. Notice of this Appeal
was conveyed to me after I entered the order in which I
vacated the writ. The appeal itself has since been with-
drawn.
Upon review of the proceeding before Judge Thompson
and in consideration of the arguments submitted on the
effect of her decision on my own, it appears that counsel
sought to stay the criminal proceeding on the ground that
prosecution of that case without counsel of choice would
violate the constitution. Judge Thompson denied the re-
quest for a stay on the basis of Younger v. Harris, 401
U.S. 37 (1971). In that case, the Supreme Court made
clear that a federal court lacked authority to stay a crim-
a
3la
inal proceedings, absent extraordinary circumstances.
Judge Thompson found such circumstances to be lacking
and thus abstained from interfering with the ongoing state
criminal proceeding.
I agree with counsel that Judge Thompson’s decision
rested on the abstention doctrine and that she did not rule
on the merits of the pro hac vice issue. Therefore, I find
it has no bearing on my prior decision. I now turn to the
merits of the case.
PROCEDURAL HISTORY
On February 27, 1987, petitioner was indicted in Mid-
dlesex County for possession of a controlled dangerous
substance, possession of such a substance with an intent
to distribute, and unlawful possession of a weapon. ,
In May of 1981, petitioner filed a motion, pursuant to
N.J. Rules of Court 1:21-2, for the pro hac vice admission
of Keith Stroup, a member of the bar of the District of
Columbia, and Michael Pritzker, a member of the bar of
the state of Illinois. On July 9, 1981, the trial judge sitting
in the Superior Court, Law Division, Middlesex County,
denied petitioner’s request for admission of the attorneys
based upon a consideration of the degree of difficulty and
novelty of the issues presented in this case, the expertise
needed to adequately defend the accused and the demand
for stability in managing the court’s docket as a whole
and this case in particular. The trial judge specifically
stated that while he was satisfied that these out-of-state
attorneys are in good standing in the states in-which they
are admitted to practice law and are experienced criminal
lawyers, the difficulty in coordinating the schedules of two
attorneys from different states with the schedules of the
court, prosecution, and defendants, would result in nuv-
merous delays, sufficient to overcome petitioner’s sixth
amendment interests in counsel of choice. (Trans. of July
9, 1981 at 39). The court further stated that since these
32a
attorneys regularly appeared in courts outside this state,
the judge could not easily contact judges outside this jur-
isdiction to coordinate conflicting court obligations. (Jd. at
38). Finally, the court asserted that potential travel delays
further exacerbated the likelihood of adjournments. (Jd. at
34). In short, the judge held that management of his cal-
endar and the avoidance of trial delays required that he
deny petitioner’s request for the pro hac vice admission
of Mr. Stroup and Mr. Pritzker.’
Thereafter, petitioner, among others, brought an action
in federal court to obtain a temporary restraining order
to stay the state criminal proceeding. On July 16, 1981,
Judge Thompson issued her opinion in which she denied
the requested relief. The parties appealed this decision to
the Third Circuit. The appeal was withdrawn on September
25, 1981.
Thereafter, numerous pretrial suppression and eviden-
tiary hearings followed. Almost three years lapsed, how-
ever, before petitioner pled guilty to possesion with an
intent to distribute freebase cocaine. As part of this plea,
which was entered on April 10, 1984, petitioner reserved
his right to appeal, inter alia, the denial of his pro hac
vice motion which, he asserts, resulted in the unconsti-
tutional denial of counsel of choice.
On June 19, 1986, the Appellate Division of the Superior
Court considered the merits of his appeal on this issue
held that the trial judge did not commit an error in his
denial of petitioner’s request for the admission of out-of-
state counsel pro hac vice since there was a risk that the
presence of out-of-state counsel might hinder the swift
processing of the case. The Appellate Division was per-
suaded that the use of counsel from various geographic
1 On July 2, 1981, the court also denied a similar request of petitioner’s
co-defendant, Douglas Chappee, who sought the pro hac vice admission
of a Colorado attorney. His request for leave to appeal this decision
was denied by the Supreme Court of New Jersey on July 14, 1981.
33a
locations would increase the difficulties involved in sched-
uling criminal matters. Moreover, the court noted that the
case presented issues that could be ably handled by local
counsel and the record revealed that petitioner received
competent representation and thereby vindicated the trial
judge’s belief that New Jersey counsel could conduct a
fine defense. For these reasons, the Appellate Division held
that the trial judge did not abuse his discretion in denying
petitioner’s request.
On November 26, 1986, the Supreme Court of New Jer-
sey denied petitioner’s request for certification.
On June 16, 1987, petitioner filed the within petition
for a writ of habeas corpus.
EXHAUSTION
A federal court will not consider an application for a
writ of habeas corpus unless the petitioner has exhausted
the remedies available in the courts of the state. 28 U.S.C.
§ 2254(b). Since the record in this case reveals that
petitioner has exhausted his state remedies, the within
petition is ripe for disposition.
DISCUSSION
The sixth amendment of the Constitution guarantees to
any criminal defendant the right “‘to have the Assistance
of Counsel for his defense.’’ U.S. Const. amend VI. In-
herent in this guarantee is the protection of and deference
to the defendant’s actual choice of counsel. See United
States v. Alvarez, 816 F.2d 818, 816 (1st Cir. 1987); United
States v. Laura, 607 F.2d 52, 55 (8d Cir. 1978). See also
Powell v. Alabama, 287 U.S. 45, 58 (1932) in which the
Supreme Court recognized that an essential component to
the right to counsel is the opportunity to secure counsel
of choice. It is beyond dispute that “‘the most important
decision a defendant makes in shaping his defense is his
a
34a
selection of his attorney.”” Laura, supar, 607 F.2d at 56.
In addition to the strategic ramifications, interference with
the exercise of this selection impedes the development of
trust between an attorney and his client, ‘‘which is the
cornerstone of the adversary system.” Linton v. Perini,
656 F.2d 207, 209 (6th Cir. 1981); cert. denied, 454 U.S.
1162 (1982). Thus, given the constitutional dimensions of
this decision, the courts are prohibited from taking any
arbitrary action that hinders the effective use of a par-
ticular counsel and similarly requires that the defendant’s
choice of counsel not be dealt with lightly or arbitrarily.
Laura, supra, 607 F.2d at 57; United States v. Ranken,
779 F.2d 956, 958 (8d Cir. 1986); United States v. Flan-
agan, 679 F.2d 1072, 1076 (3d Cir. 1982), rev'd on other
grounds, 465 U.S. 259 (1984); United States ex rel Carey
v. Rundle, 409 F.2d 1210, 1215 (8d Cir. 1969), cert. denied,
397 U.S. 946 (1970). Accordingly, since a trial court’s de-
nial of a criminal defendant’s request to retain out-of-state
counsel implicates constitutional concerns, this decision
must have been made based upon a proper exercise of
discretion, which includes a recognition of the fundamental
importance of the right to counsel of choice, though not
absolute, and how the exercise of this right may be curbed
in the interest of achieving the fair, efficient and orderly
administration of justice. Rankin, supra, 779 F.2d at 958;
Davis v. Stamler, 650 F.2d 477, 479 (3d Cir. 1981); Laura,
supra, 409 F.2d at 1214.
In this circuit, the Court of Appeals has held that the
sixth amendment right to counsel of choice must yield
when, for example, an attorney’s ethical conduct is ques-
tioned, see Flanagan, supra, or when, after a reasonable
period, defendant has failed to select counsel of his own
choice, and his continued failure to do so would result in
further trial delays. Rundle, supra. In this latter instance,
the legitimate concern with respect to facilitating the swift
processing of criminal matters is clearly expressed as this
interest presents itself within the context of cluttered crim-
35a
inal dockets which are ‘‘constantly buffeted by conflicting
forces.”” Jd. at 1214. While the trial court must balance
the conflicting demands of court administration with the
rights of the accused,”’ id., this balance must be struck
only after a close examination of the facts before the court.
The non-discretionary application of a rule with respect to
conditions which generally result in delays fails to comply
with the requirement that the trial judge delicately balance
sixth amendment concerns against the efficient and orderly
administration of justice.
In weighing these interests, the trial judge must make
sufficient, non-speculative findings with respect to how the
defendant’s choice of counsel may affect the case at hand,
whether the selection demonstrates that it will result in
delay or was made for dilatory or prejudicial purposes and
. if the choice will effect others awaiting trial, the availa-
bility of witnesses to testify and the concerns of the victim
that justice is done. See Morris v. Slappy, 461 U.S. 1, 14
(1983); Alvarez, supra, 813 F.2d at 816.
In the case at bar, the exercise of petitioner’s choice of
counsel was embodied in his request for the pro hac vice
admission of two attorneys licensed to practice law in the
District of Columbia and Illinois, respectively. N.J. Court
Rule 1:21-2 governs pro hac vice admissions. While the
rule states that the pro hac vice admission of out-of-state
counsel is committed to the discretion of the trial judge,
such discretion may not be exercised arbitrarily. N.J. Court
R. 1:21-2; Thoma v. A.H. Robbins, 100 FRD 344, 348
(D.N.J. 1983); Burlington County Internal Medicine Ass’n
v. Amerwan Medicorp., Inc., 168 N.J. super. 382 (1979).
See also Frazier v. Heebe, 107 S.Ct. 2607, 2614 n.13 (1987)
in which the United States Supreme Court recognized the
discretionary nature of pro hac vice admission. The ex-
ercise of this discretion requires a nonmechanistic evalu-
ation of the factors delineated in the state rule governing
pro hac admission with respect to that attorney’s character
and prior admissions, affiliation with licensed in-state
eae tae ee
36a
counsel, the existence of an attorney-client relationship,
and the lack of local counsel with expertise in the field of
law involved, or arguably the facts of the case at bar. See
Rule 1:21-2(b). Thus, in the context of a criminal
defendant’s request for the pro hac vice admission of
counsel of choice, the trial judge must examine the above
factors while being mindful of the sixth amendment in-
terest at stake.
When presented with petitioner’s request, the trial court
stated that
The matter before the Court calls upon it to
exercise its discretion, pursuant to Rule 1:21, as
to whether out-of-state counsel should be admit-
ted pro hac in this matter, and I am satisfied
... that Mr. Pritzker and Mr. Stroup are mem-
bers in good standing in their respective bars and
while the affidavits talk in conclusionary fashion
about their specific degree of experience, I am
sure that they are experienced able trial counsel.
In exercising the discretion that the Court must
do, under Rule 1:21 the Court must consider and
does consider a number of factors.
*-_* *
The Court must consider the degree of difficulty
presented by the case at hand, the nature of
expertise necessary to adequately defend the per-
sons accused of crime, and of course must accord
wherever possible the great consideration to the
individual wishes of a defendant to choose counsel
of his choice. That of course is not an unfettered
right.. If it were, then Rule 121 [sic], would not
in any way, shape or form be constitutional be-
cause certainly all the historical developments of
‘ admission of practice law in various states has
been one which the Federal Courts have accorded
a great deference to and have generally not in-
37a
terfered with. So, clearly, I think the fact that
a state perceives to limit out-of-state attorneys
to practice is appropriate, as long as it does not
enfringe [sic] on any guaranteed constitutional
rights and the Rule or the provision of pro hac
admission, as exists, I believe in every state of
the Union, has never been declared to be con-
stitutionally infirmed.
Transcript of July 9, 1981 at 25-29. Continuing, the court
stated that
The bottom line is to what extent and what
weight is Defendant’s right to counsel in jeopardy
by the Court exercising such discretion? Clearly
the policy is if at all compatible with the rep-
resentation of defendants, to admit competent
outside counsel. I can see that and perceive that
to be the policy in the Rule.
Id. at 32.
In evaluating the above considerations, the trial court,
though explicitly noting the character and experience of
these out-of-state attorneys, found that members of the
local bar are capable of handling the issues of the case.
Specifically, the judge stated that
The record will reflect that the defendants
were arrested in the course of operating their
motor vehicle on the Turnpike. There was a
search of the motor vehicle ... [and ... those
of us who practice in the criminal field, Mr. Alt-
man and | note for the record, your particular
expertise in that area, we are all familiar with
the various exceptions in the State of the law
[with respect to constitutional searches], and that
perhaps the extensions to which reasonably it may
be taken. I mean, on the bare facts of it, I
frankly, outside of the fact that this is a lot of
38a
coke, and therefore a lot of money involved and
that the term of imprisonment or exposure is
greater than you would have otherwise, outside
of that, all the indicia surrounding the arrests,
nothing out of the normal, does not present any
great deal of difficulty, and I’m fully satisfied
that there are numerous counsel in the State, not
the least of which is Mr. Brown, Mr. Silber’s
former partner. I know there are some guys
around, Mike Querques, any number of others
who have, are articulate, able, and imaginative
counsel. I don’t think there’s anybody more i-
maginative than Mr. Brown in this state. I’ve
been an adversary, I’ve been a co-counsel of his,
I understand. There is a more than adequate
number of counsel in regard to this matter.
“* *
The bottom line is, and I say this respectfully,
and again as you said, not blowing smoke at any-
body, respectfully Mr. Altman, Mr. Cocziello, I’ve
read those motions and I know your reputations,
and I can’t believe that either one of you are so
dumb that you can’t perceive the arguments and
make those arguments and argue yourself.
So, I’m satisfied there’s an adequate degree of
expertise available in this state to handle any of
these motions.
(Transcript of July 9, 1981 at 27-29, 32).
Moreover, the court stated that the out-of-state status
of these attorneys represented potential delays to the proc-
essing of this matter due to the likelihood of conflicting
professional obligations and need for travel. On the issue
of delay, the court stated
I note and I say with some sadness, one of the
difficulties in handling out-of-state cases is that
39a
we have a situation here where now months after
the indictment and even after the motions were
filed, certified to by local counsel, they have not
even met their clients or talked to them until
apparently this morning, where I see a notarized
statement of one defendant. To the extent that
local counsel is responsible, local counsel as
attorney of record, may at sometime, if out-of-
state counsel is unavailable, be compelled to pro-
ceed with the matter ... [But today], we have
a situtaion where local counsel is now saying al-
though knowing as of at least late last week, that
we were going to proceed without fail tomorrow
on the motions, that they are not ready, and
perhaps counsel will have to withdraw and cer-
tainly if counsel withdraws or is severed from
the, or fired from their position as counsel by
their clients ‘cause they’re not comfortable with
them,’ further delay is built into the system.
While it is true that these counsel may well have
fine reputations and practice in a number of ju-
risdictions, there are things like airplanes, there
are air, air traffic countrol strikes, for instance,
they’re eminent, they’re going to be, as I per--
ceive it, this case is going to be fought tooth and
nail, beginning and end, every adverse ruling will
go by way of interlocutory relief. There’s nothing
wrong in that, but if I don’t foresee it in the
scheduling of this case, I am a fool. It’s going
to happen, we’re going to be going back and
forth.
While it may be true, except when he was on
his feet, out-of-state counsel always came when
ordered, I’d love to know how many times mat-
ters were adjourned because most judges, not-
withstanding editorials in the law journal, most
judges give a fairly reasonable ear to requests
40a
for adjournment and are you then going to force
local counsel on, when out-of-state counsel can’t
be there. I’d love to know how many times mat-
ters have been adjourned. I suspect there are
many. If I have in-state counsel, I can pick up
the phone and talk to a judge in another juris-
diction and usually work out a much prompter
schedule in the disposition of this case. Every
matter that it must proceed, if we proceed with
out-of-state counsel, require notification of out-of-
state counsel, they have to meet with their
clients, who do not necessarily reside in their own
jurisdictions. There is a built-in two and three-
week delay on every communication in this mat-
ter. It’s just, that’s just the nature of the mails,
that’s the nature of travel, that’s the nature of
transit in the matter.
Yes, they’ve been admitted in the Circuit Court
of Appeals. I might add that being admitted for
Appellate purposes is a lot easier, you know when
you are going to get your Appellate argument,
the Appellate court is a gentleman’s court, able
to do things usually with adequate notice and
time. The trial court works around a rather
changing and liquid schedules and sometimes
~ short notice. I dare say that if I have two New
Jersey counsel in a matter and I had to dispose
of something important in this matter, a phone
call, especially in a case of this significance, would
bring counsel promptly within a day or two, at
the least. That just simply would be impossible
with out-of-state counsel. [Given the presence of
counsel from] either DC or Illinois, or wherever,
plus local counsel, plus out-of-state defendants
... [T]here are too many unknowns in that.equa-
tion. It’s going to be difficult just with the out-
of-state clients and in-state attorneys to run any-
4la
thing like a reasonable motion and Appellate
schedule, which occur in this case, without adding
two lawyers from two different states, who have
multiplicity of obligations and to run it all at the
same time. We have enough problem in co-counsel
cases, now, where, you know, one guy is avail-
able, the other guy is not, Judge, what are you
going to do, what are you going to do and going
to wind up way down the road, a long, long time
from now, maybe getting to the case.
I am satisfied that within the context of my
discretion, under Rule 121 [sic], that that is a
competent and reasonable consideration for the
Court to review. I am satisfied the nature of the
probable delay, notwithstanding dilatory and in-
tentional, just good faith delay, and it will occur
as a result of this matter and difficulty in sched-
uling Court’s disposition, is so grave as to over-
come the ‘unfettered’ right of defendant to
counsel of his own choosing, and accordingly, the
motion to admit pro hac is denied.
(Id. at 39-40). The above excerpts illustrate that the judge
denied petitioner’s pro hac vice motion based upon his
assessment of available qualified local counsel and the gen-
eralization that the presence of out-of-state counsel poses
delays that would not occur when only in-state attorneys
are used.
As to the trial judge’s first reason, I find that the ex-
istence of capable counsel licensed to practice law in the
jurisdiction is not a sufficient reason to overcome
petitioner’s right to counsel of choice. First, this indicates
a presumption that in-state counsel are more knowledgable
with respect to state law and local rules than out-of-state
counsel. This presumption represents an arbitrary distinc-
tion between in-state and out-of-state counsel. Certainly,
there are instances in which out-of-state attorneys quickly
42a
absorb the relevant state rules while long time members
of the bar appear in court without being versatile in the
aspects of local law. See Esposito v. Barnard, et al., Nos.
87-3034 and 87-3035 slip op. (8d Cir. March 31, 1988)
discussing Frazier, supra, at 2612-13. Therefore, such a
per se distinction is without merit.
Even if I assume that the above presumption has sup-
port, the interests advanced by the use of local counsel,
i.e., that their familiarity with the local rules enhances the
orderly administration of justice, can be achieved by a less
extreme mechanism. The legislature has endorsed a state
rule that requires any out-of-state counsel desiring to ap-
pear in the courts of the state be affiliated with local
counsel. Presumably, the requirement reflects the legis-
lature’s attempt to enhance the smooth processing of lit-
igation without curtailing an individual’s choice of counsel.
Thus, through affiliated local counsel, an individual may
be represented by counsel of choice without injury to the
interest in assuring familiarity with local law, which pre-
sumably facilitates the flow of litigation. Therefore, I find
that the mere existence of competent in-state attorneys to
defend the accused is insufficient to outweigh his sixth
amendment right to select his own counsel.
As to the trial court’s second basis for denying
petitioner’s request, I find that the trial court relied upon
the belief that the use of out-of-state counsel delays the
progress of litigation. The rote application of this kind of
blanket generalization ‘‘leaves no room for the exercise of
discretion.”” Alvarez, supra, 816 F.2d at 817. Rather, it
represents the court’s failure to scrutinize the particular
case at bar. The record indicates that the out-of-state
attorneys had not requested any adjournments and were
prepared to proceed on the matters then pending before
the court. Interestingly, local counsel was unprepared.
Moreover, out-of-state counsel never indicated to the court
an inability to appear at any time that the court may
request. In fact, it is asserted that in the past, these out-
43a
of-state lawyers were unable to appear before judges else-
where only in circumstances in which they were obliged
to appear in court at a conflicting time. Since similar time
conflicts could arise with New Jersey attorneys, these ex-
amples illustrate that the pro hac vice motion was denied
based upon a per se rule with respect to speculative delays
allegedly caused by out-of-state attorney.
Thus, the trial court’s view was based, at best, upon
speculative delays rather than upon a record which could
support a finding that the particular out-of-state attorneys
repeatedly impeded the progress of litigation. See Thoma,
supra. Had the record supported such a finding, and given
the strong interest in the swift resolution of criminal dis-
putes, the denial of a pro hac motion under such circum-
stances would have been upheld as rational. In this case,
however, the record reveals no dilatory behavior and thus
the court's in-state/out-of-state distinction, based purely on
geography” and speculation, must fall as arbitrary.
Furthermore, this geographical distinction fails to com-
port with the reality of a highly mobile bar that has at
its disposal modern transportation and communication. See
Frazer, supra, 107 S.Ct. at 2613; Esposito, supra. It is
in view of these technological modalities that Supreme
Court has stated that while pro hac admission is not rec-
ognized as a constitutionally guaranteed right, the practice
of allowing “‘out-of-state lawyer[s] the privilege of appear-.
ing upon motion, especially when ... associated with a
member of the local bar’ should be encouraged. Luis v.
Flynt, 489 U.S. 438, 441-42, 444 n.5 (1979) (per curiam).
Therefore, I find that the trial judge denied petitioner’s
motion based upon a per se rule that out-of-state attorneys
* Furthermore, the irony of the court’s conclusion that out-of-state
attorneys hamper the swift processing of criminal matters is further
illustrated by the fact that the instant pro hac motion was before the
court for two months before resolution and by the fact that over three
years lapsed before petitioner pled out.
44a
hinder the efficient processing of a case before the court,
and absent a record of dilatoriness on the part .of these
attorneys, the denial resulted in the arbitrary deprivation
of petitioner’s right to counsel of choice. Since the in-
fraction of this right ‘‘can never be treated as harmless
error,” Laura, supra, 607 F.2d at 58 (quoting Chapman
v. California, 386 U.S. 18, 23, n.8 (1967) ), the nonexist-
ence of prejudice to the petitioner as a result of the denial
is irrelevant. See Rankin, supra, 779 F.2d at 960. Hence,
since the petitioner’s sixth amendment right to counsel of
choice has been denied, I find that a writ of habeas corpus
should issue and the state has thirty days in which to
conduct a new trial once the petitioner is placed in the
custody of the Attorney General for the State of New
Jersey.
An order in conformance with this opinion has been filed
by the Court.
45a
APPENDIX E
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 87-2353
GLEN FULLER,
Petitioner,
v.
WARDEN DIESSLIN, Superintendent of the Buena Vista
Correctional Facility, Buena Vista, Colorado, and W. CARY
EDWARDS, Attorney General of the State of New Jersey,
Respondents.
AMENDED ORDER
For the reasons set forth in the amended opinion filed
this day,
IT IS on this 10th day of May, 1988,
ORDERED that petitioner’s request for the issuance of
a writ of habeas corpus is hereby granted;
IT IS FURTHER ORDRED that the State has thirty
days in which to conduct a new trial once petitioner is
placed in the custody of the Attorney General for the State
of New Jersey.
/s/ Harold A. Ackerman
HAROLD A. ACKERMAN
U.S.D.J.
Received
William T. Walsh, Clerk
Mav 10 233 PM ’88
UNITED STATES
DISTRICT COURT
46a
APPENDIX F
SUPREME COURT OF NEW JERSEY
C-362 September Term 1986
25,931
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DOUGLAS DAVID CHAPPEE,
Defendant,
and
GLEN FULLER,
Defendant-Petitioner
FILED SUPREME COURT NOV 26 1986
/S/ Stephen Townsend, Clerk
ON PETITION FOR CERTIFICATION
To the Appellate Division, Superior Court:
A petition for certification of the judgment in A-3996-
84T4 having been submitted to this Court, and the Court
having considered the same;
It is ORDERED that the petition for certification is
denied with costs.
WITNESS, the Honorable Robert N. Wilentz, Chief Jus-
tice, at Trenton, this 21st day of November, 1986.
I hereby certify that the foregoing is a true copy of the
original on file in my office.
/s/ Stephen Townsend
CLERK OF THE SUPREME COURT
47a
APPENDIX G
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE COMMITTEE ON OPINIONS
SUPERIOR COURT OF NEW JERSEY
.. APPELLATE DIVISION
A-2442-84T4
A-3996-84T4
ORIGINAL FILED
JUN 19 1986
Elizabeth McLaughlin
Clerk
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DOUGLAS DAVID CHAPPEE and GLEN FULLER,
Defendants-A ppellants.
Argued June 9, 1986 - Decided JUN 19 1986
Before Judges Morton I. Greenberg,
J. H. Coleman and Long.
On appeal from the Superior Court,
Law Division, Middlesex County.
Alan Silber argued the cause for
appellant Glen Fuller (Silber &
Rubin, attorneys).
J. Barry Cocoziello argued the
cause for appellant Douglas David
Chappee (Podvey, Sachs & Catenacci,
attorneys; Mr. Cocoziello and H.
Richard Chattman, on the brief).
Raymond 8S. Gurak, Deputy Attorney
=—
48a
General, argued the cause for
respondent (W. Cary Edwards,
Attorney General, attorney).
The opinion of the court was delivered by GREEN-
BERG, P.J.A.D.
This matter comes on before this court on appeals by
defendants Douglas D. Chappee and Glen S. Fuller from
convictions and sentences entered on their pleas of guilty
in these criminal cases. We consolidate the appeals for
disposition in this opinion.
The proceedings started when defendants were indicted
in Middlesex County for the following offenses: possession
of a controlled dangerous substance, marijuana, N.J.S.A.
24:21-20(ay'4) (count one); possession of a controlled dan-
gerous substance, methaqualone, N.J.S.A. 24:21-20(aX1)
(count two); possession of a controlled dangerous sub-
stance, cocaine of which more than 3.5 grams was free
base, N.J.S.A. 24:21-20(aX2) (count three); possession of a
controlled dangerous substance with intent to distribute,
more than 8.5 grams of free base cocaine, N.J.S.A. 24:21-
19(aX2)! and N.J.S.A. 24:21-19(b\2) (count four); and un-
lawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count
five).
On July 2 and July 9, 1981, defendants moved for ad-
mission of counsel pro hac vice, Chappee seeking to have
John Van Ness, a Colorado attorney, admitted and Fuller
seeking to be represented by Keith Stroup, a member of
the District of Columbia bar, and his partner, a Mr. Prit-
zler, a member of the Illinois bar, partners in a four person
multi-state firm. Judge Hamlin denied these motions, not-
ing the difficulties in scheduling cases when out-of-state
counsel are involved and the complications their admission
could cause. Further, the judge considered that the nature
of the case was such that in-state counsel could ably rep-
resent defendants.
‘The correct section is N.J.S.A. 24:21-19(aX1).
49a
On July 17, 1981 defendants moved (1) to suppress evi-
dence recovered from the trunk of the car in which they
were riding when arrested; (2) to dismiss part of the in-
dictment based on an alleged unconstitutionality of the
New Jersey statute classifying cocaine as a narcotic; (3)
to dismiss the indictment by reason of an underrepresen-
tation of women in the position of grand jury foreperson;
(4) to sever count five of the indictment; (5) to dismiss
the indictment because it contained multiplicious charges,
and (6) for Judge Hamlin to recuse himself from hearing
the suppression motion as he issued the warrant for the
search. The judge at that time made no ruling on the first
three motions but denied the last three.
After evidentiary hearings, Judge Hamlin denied
defendants’ motion to dismiss the indictment based on the
allegation there had been discrimination against women in
the position of grand jury foreperson on March 8, 1983
and denied the motion to suppress‘in a written opinion
aated August 6, 19838. In denying the motion to dismiss
Judge Hamlin pointed out that the duties of a foreperson
are ministerial. The motion to dismiss the indictment on
the grounds that cocaine was unconstitutionally classified
as a narcotic was denied and that issue is not raised on
this appeal.
Another significant pretrial proceeding related to a plea
agreement offered to defendants providing for maximum
incarceration of Chappee and Fuller of two years and six
years respectively. Fuller accepted the offer immediately
but Chappee hesitated. The State rescinded the offer be-
fore it was put on the record and before Chappee accepted
or rejected it. Defendants subsequently moved to enforce
the offer but on April 29, 1983 Judge Muscatello denied
their motion.
Chappee moved for a severance of his case from Ful-
ler’s. While this motion was initially granted, on the State’s
interlocutory appeal on leave granted we reversed and
50a
remanded the matter to the trial court for a hearing, at
which the motion was denied.
Pursuant to a plea agreement, reserving to defendants
the right to appeal from certain of the pretrial orders, on
April 10, 1984 defendants pleaded guilty to count four of
the indictment. On November 20, 1984, Fuller was sen-
tenced to a term of 20 years and a fine of $25,000 and
on March 18, 1985 Chappee was sentenced to a term of
seven years and a $5,000 fine. The remaining counts were
dismissed.
Defendants appeal raising the following issues. Chappee
asserts:
(1) The consent to search the trunk, sought dur-
ing custodial interrogation, was invalid under
the state and federal constitutions because no
Miranda warnings or other advisement of the
right to counsel and the consequences of the
consent were given.
A. Defendants were in custody and subjected
to custodial interrogation at the time con-
sent to search was sought.
B The failure to administer Miranda warn-
ings prior to the custodial interrogation in
which consent was sought invalidated the
purported consent.
1. Miranda warnings must precede a re-
quest for consent.
2. Regardless of whether Miranda warn-
ings are per se a prerequisite to a valid
consent, where consent is obtained as
the tainted and derivative fruit of a M7-
randa violation, the consent is invalid
and the preduct of the ensuing search
must be suppressed.
5la
C. Under the New Jersey Constitution, Ar-
ticle | Paragraph 7, a consent during cus-
todial interrogation is valid only if
preceded by warnings adequate to insure
an effective waiver and relieve the com-
pulsion inherent in custodial interrogation.
These must include advisements of the
right to counsel and the consequences of
consent.
(2) The conduct of the hearing on the motion to
suppress was prejudicially erroneous, and a
remand for a new hearing on the motion is
required.
A. The preclusion of defendants’ proffered
expert testimony on the issue of defendant
Fuller’s lack of capacity in the circum-
stances to give a voluntary and knowing
consent was prejudicially erroneous.
B. The judge presiding at the motion to sup-
press erred in failing to disqualify himself,
since he had issued the search warrant
after a testimonial hearing at which he
passed on the credibility of one of the
State’s key witnesses and determined one
of the central] facts at issue on the motion.
(3) The State’s withdrawal of the plea bargain
violated New Jersey law and policy; the State
falsely induced Chappee and Fuller to waive
their constitutional rights; the precedent will
cause plea negotiations to become unworka-
ble.
(4) The arbitrary denial of counsel of choice vio-
lated defendants’ Sixth Amendment rights.
}
aac lal
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