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A SIGNIFICANT LITTLE HOLDING

While many people were baking cookies and buying last-minute gifts, the U.S. Court of Appeals for the 9th Circuit last week was handing down a procedural ruling of some significance to attorney-defendant relations.

Manuel Yepiz and his friends were being tried for a number of violent crimes connected to their street gang, the Vineland Boys. As happens with a significant number of defendants, Manuel became concerned about his attorney. He wrote to the judge about it.

As any lawyer who has practiced for more than few months can tell you, heaven save us from the officious little minions in the clerk’s office. They will nitpick and flyspeck pleadings, and delight in rejecting them for some alleged procedural infirmity. Not enough copies, margins wrong, certificate of service not on a separate page… If the Continental Congress had tried to file the Declaration of Independence, some colonial-era clerk would have rejected it for John Hancock’s signature being too large.

We once got so frustrated at a clerk’s office that we actually filed a petition for mandamus, asking the court to order its clerk to accept filings, and to leave a determination of procedural adequacy to the judges. The court – which has to live with its clerk’s office – declined us.

In today’s case, there came a time when Manuel decided he wanted a new lawyer. There was plenty of time before trial, so new counsel should not have disrupted anything. The general 6th Amendment rule is that an accused has the right to discharge counsel for any reason or no reason” so long as the substitution does not cause significant delay or inefficiency or run afoul of other considerations, such as the fair, efficient and orderly administration of justice. In fact, where a defendant fires retained counsel and is financially qualified, the court must appoint new counsel for him under the Criminal Justice Act at any stage of the proceedings.

Manuel’s right to trade in his lawyer was pretty clear. The problem was that to invoke his right, Manuel wrote a letter to the judge. When the letter got to the Clerk’s office, some assistant to an assistant ¬ following the local rules – sent it back to him without the judge ever seeing it.

The letter was returned along with a form from the clerk’s office called a “Notice of Document Discrepancies” (NDD). A checked box at the bottom of the NDD stated that Manuel’s letter was “NOT to be filed, but instead REJECTED.” The NDD did not indicate the basis for the court’s rejection, and the docket description of the document only indicated that the denial was based on the fact that “[p]arties should not write letter[s] to Judge.”

Manuel wrote twice more, but each time suffered the same fate: the judge never saw those letters, either.

Last week, the 9th Circuit said the district court’s failure to consider Manuel’s request was a structural defect in the trial requiring reversal. It did not matter, the Court of Appeals said, that the judge never saw it or that the court’s local rules required that such letters be returned b the clerk. The Circuit was troubled that the rejection provided too little detail as to the reason the letter was being returned:

“Because no explanation was provided, Yepiz was not given notice as to how he could properly present his request for new counsel, and as such, the local rules served to arbitrarily deny Yepiz’s constitutional rights. Under the circumstances of this case, therefore, we reject the government’s argument that the court was excused from its duty to inquire into Yepiz’s request because of Yepiz’s failure to comply with any local rule of procedure.”

The 9th concluded that “because the substitution would not have affected the court’s calendar, Yepiz was entitled to discharge his lawyer for any reason or no reason.” For that reason, the case was reversed.

One of the three judges on the panel wrote a detailed dissent, complaining among other things that the holding was contrary the local rules of all of the district courts in the circuit, and would clog up the works of the trial courts. This procedural ruling could well find its way to the Supreme Court, if the government is of a mind to seek certiorari.

United States v. Yepiz, Case No. 07-50051 (9th Cir., Dec. 20, 2016)