A trial judge did not abuse his discretion when, just two weeks before the start of a capital murder trial, he removed and replaced the defendant’s bickering attorneys, the state Supreme Court ruled Dec. 20.

The defendant, Allen Cottrell, had established a relationship with his appointed attorneys and told Circuit Court Judge Larry Hyman Jr. that he was confident that they could represent him, despite accusations flying between the two.

The attorneys told Hyman that they could put their differences aside so the case could proceed, but conceded that their issues could jeopardize Cottrell’s case and probably “solidify post-conviction relief” if the case went forward. They agreed to defer to the court’s decision.  

Second chance at life

In 2005, Cottrell was tried for the 2002 murder of Myrtle Beach police officer Joe McGarry. McGarry and his partner spotted Cottrell, who was a suspect in another killing, buying coffee at a doughnut shop. McGarry was familiar with Cottrell through prior arrests. The officers approached Cottrell, and McGarry began running his information through a national crime database, checking for outstanding warrants.

Suspecting Cottrell of having a weapon, McGarry attempted to pat down Cottrell, and a struggle ensued. When it was over, McGarry lay dead in the parking lot, shot in the face with a .45-caliber pistol. McGarry fired one shot as he was falling down, and his partner also fired at Cottrell, who was struck in the leg.

Cottrell was convicted of murder and several other charges, but was granted a new trial when the Supreme Court found that the jury was not given a voluntary manslaughter instruction in addition to murder.

He said, she said

Before Cottrell’s second trial, in 2012, the state spoke separately with Cottrell’s appointed first and second chair attorneys, who accused each other of misconduct. First chair said that she had never met an attorney as dishonest and unethical as second chair, and that she couldn’t wait to wrap up the trial so she could “get away from him.” Second chair said that first chair was lazy, unmotivated, and “drank too much,” and that he had to take the lead because first chair would not request discovery or investigate details of the shooting, including the possibility of misconduct by McGarry.

The trial court met privately with each attorney and, in a pretrial hearing, expressed his concerns over whether the attorneys could effectively represent Cottrell. Ultimately, Hyman decided to relieve both attorneys. He appointed new defense counsel and afforded more than two years before rescheduling trial to allow the new attorneys to properly prepare.

‘Appropriate exercise’ of discretion

Cottrell was again found guilty of murder, and was sentenced to death. During the sentencing phase, the jury heard evidence of Cottrell’s prior bad acts, including a previous murder conviction and testimony regarding another murder he was allegedly involved in.

On appeal, Cottrell argued that the removal of his attorneys without any actual findings of fact on the record unnecessarily terminated his attorney-client relationship and violated his Sixth Amendment rights.

The government countered, and the Supreme Court agreed, that the removal was an appropriate exercise of the trial court’s discretion, given its duty to ensure judicial integrity and to safeguard the defendant’s right to effective counsel.

Quoting language from 2000’s state Supreme Court case, State v. Sanders, the high court wrote that when deciding whether to remove a defendant’s attorney, a court must balance his right to choose his own counsel “against the need to maintain the highest ethical standards of professional responsibility.”

“The Fourth Circuit has explained that a trial judge must be allowed ‘substantial latitude’ and broad discretion in disqualifying a defendant’s chosen lawyer so the trial judge may ‘rule without fear that it is setting itself up for reversal on appeal,” Justice Kaye Hearn wrote for the court, quoting U.S. v. Howard, a 4th U.S. Circuit Court of Appeals case from 1997.

Trusting a judge’s judgment

According to Cottrell, the removal of his counsel was arbitrary and unsupported by any basis in the record amounting to an “erroneous” deprivation of his counsel of choice, a structural error violating his Sixth Amendment rights.

But the key word, the Supreme Court held, is “erroneous.” United States v. Gonzales-Lopez, the case on which Cottrell relied for this argument, held that the right to chosen counsel is not absolute, but that the government conceded there that it erroneously deprived the respondent of his counsel of choice, thereby forfeiting the broad discretion normally afforded to trial courts. Further, it found that the right of counsel of choice does not apply to defendants represented by appointed counsel.

Here, Hearn noted that the court agrees with Cottrell’s argument that his established relationship with appointed counsel should be afforded the same level of deference as that afforded to clients with retained counsel, but that it fails to overcome the “strong language” Gonzales-Lopez, Sanders, and “the long line of other authorities” granting wide latitude to trial judges.

“Here, the record reflects the trial judge removed Cottrell’s attorneys to ensure Cottrell received a fair trial with adequate representation and to maintain the integrity of the judicial process,” Hearn wrote.

Judge had ‘little choice’

In a separate opinion, Justice John Few concurred in the result only, disagreeing with the notion that a trial court has the “discretion” to remove trial counsel to ensure that the defendant receives a fair trial.

“This Court has never before recognized such discretion, nor has any court of which I am aware,” Few wrote.

He added that a trial court may not terminate an attorney-client relationship in a criminal matter over the defendant’s objection without first making specific findings that a valid basis for disqualification exists.

“I would remand for findings as to whether a valid basis for disqualification exists,” Few wrote. “Even without a remand, I would affirm on the narrow basis that the facts in this record do not require a new trial.”

In the majority opinion, Hearn agreed that the law requires an evidentiary hearing with findings of fact before a judge can remove counsel, but that those concerns are mitigated here because in addition to private meetings, the trial judge held a hearing to allow Cottrell and his attorneys to be heard. Hearn found it “problematic” that the record does not specifically reflect “what the allegations of misconduct and disagreement actually entail,” but wrote that the attorneys’ statements that the accusations were made, and the absence of rebuttal, weighs in favor of the trial judge’s decision. Moreover, one of the attorneys admitted on the record that based on the accusations, Cottrell would likely prevail on PCR.

This left the trial judge “little choice,” Hearn wrote.

Limited options

Cottrell’s local counsel, Chief Appellate Defender Robert Dudek of the South Carolina Commission on Indigent Defense in Columbia, deferred comment to lead counsel, Keir Weyble and Sherri Lynn Johnson of Cornell Law School. Neither attorney responded to a message seeking comment.

Kenneth Gaines, a professor at the University of South Carolina School of Law, said that the only thing he finds unusual about the situation is the manner in which the issue was presented to the court — by the state.

“In many cases, the lawyers themselves will just go to the judge and say, ‘We’re not getting along,’” he said.

Gaines agreed with Hearns’ assessment of the judge’s options.

“Overall, if lawyers aren’t getting along, and the lawyers themselves say that it could jeopardize their representation, I think the judge didn’t have much choice but to be on the safe side and appoint new counsel,” he said.  


The 20-page decision is State v. Cottrell (Lawyers Weekly No.010-001-18). A digest of the opinion is available online at sclawyersweekly.com.

Follow Heath Hamacher on Twitter @SCLWHamacher

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