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United States District Court, S.D. New York

August 9, 2004.

ROSALIE GARCIA, et al., Defendants.

The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


The defendants in this case stand accused of various counts of narcotics trafficking and murder in furtherance of an alleged criminal enterprise. The violent and other criminal acts set forth in the indictment allegedly occurred over a period of about ten years, from 1990 to October 2000. Because some the charges carry a potential capital sentence, the Court initially appointed a second defense attorney for each of the indigent defendants to assist them in connection with the capital charges. See 18 U.S.C. § 3005 ("Whoever is indicted for treason or other capital crime shall be allowed to make his full defense by counsel; and the court before which the defendant is to be tried, or a judge thereof, shall promptly, upon the defendant's request, assign 2 such counsel, of whom at least I shall be learned in the law applicable to capital cases, and who shall have reasonable access to the accused at all reasonable hours."). On July 19, 2004, the Government advised the defendants and the Court in writing that it would not seek the death penalty against any of the defendants in this case. At a conference held three days later, the Court terminated the appointments of the additional defense counsel "learned in the law applicable to capital cases," effective August 22, 2004, subject to applications, on a showing of good cause, for the continuation of those appointments. Defendants Luis Morges, Manuel Roman, and Ricardo Silva each move ex parte for the continuation of the appointment of second counsel.

  Whether or not § 3005 entitles formerly capital defendants to the continued appointment of additional counsel after the Government elects not to seek the death penalty, compare United States v. Boone, 245 F.3d 352, 358 (4th Cir. 2001) (holding that "§ 3005 provides an absolute statutory right to two attorneys in cases where the death penalty may be imposed," even if the Government elects not to seek it), with United States v. Waggoner, 339 F.3d 915, 919 (9th Cir. 2003) (holding that the Government's filing of formal notice that it does not intend to seek the death penalty extinguishes a defendant's statutory right to two attorneys in a formerly capital case), the Court may continue such an appointment in the interest of justice. See United States v. Davidson, No. 92 Cr. 35, 1992 WL 165825, at *4-*6 (N.D.N.Y. July 10, 1992) (adopting the majority view that § 3005 does not require the continued appointment of a second counsel after the Government indicates that it will not seek the death penalty, but nonetheless granting the defendants' motion for the appointment of additional counsel "in the interest of justice" in view of the complexity of the formerly capital case).

  The defendants argue that the breadth and complexity of the charges here would justify the appointment of additional counsel even if the case had never involved the death penalty. While these arguments are persuasive, this Court has never had occasion to appoint more than one lawyer for a defendant in a non-capital case, and must be mindful of the limited reserve of Criminal Justice Act funds and the consequent need to protect the public treasury against unnecessary expense. However, the Court need not decide whether it would appoint additional counsel for the defendants had this case not been filed initially as a capital case to which § 3005 applies. Where the death penalty has been in play for a substantial considerable period of time, and additional counsel have been involved in the defendants' representation virtually from the outset, special considerations apply that further support the continuation of the appointments, and tip the balance in favor of defendants' application, in what was already a close case for the appointment of additional counsel.

  The Government unsealed the indictment in this case on October 31, 2002. On December 11, 2002, the Court appointed additional "learned counsel" for the defendants. Hence, these defendants have been represented by both of their current lawyers for over 18 months. In a case of this kind, defense counsel's efforts to forestall application of the death penalty often involve not merely the development of mitigating facts about the defendant's background and personal history, which can perhaps be neatly severed from the merits of the underlying charges, but also investigation of the charges to determine whether the facts of the alleged crimes, the defendants' roles in the events, and any weaknesses in the Government's case may provide arguments that may persuade the prosecution not to pursue the death penalty. Furthermore, it may not be — possible or expedient to divide the roles of defense counsel along some neatly-perforated line between "guilt" and "sentencing" issues. Efficient and effective representation will often require integrated collaboration between counsel in preparing all aspects of the defense. Here, defense counsel for each of the defendants who have filed applications represent that they have jointly pursued all aspects of the case with co-counsel appointed under § 3005. Under these circumstances, to relieve one half of a two-lawyer team at this stage of the litigation would impose additional inefficiency and delay, in occasion with the transition of counsel, on a case that — because of the exigencies of the multiple appeals to prosecutorial discretion and levels of supervisory review in the federal system — has made essentially no progress toward trial in the nearly two years it has been pending. Whether or not this case might justify appointment of a second lawyer at this stage had the death penalty not been in play and had a single lawyer represented each of the defendants from the outset, the presence of additional lawyers who have already become deeply familiar with the case and the defendants whom they represent will undoubtedly enable the parties and the Court to move forward with this long-delayed trial more efficiently than would otherwise be practicable, to the great advantage of the administration of justice.*fn1

  It must be emphasized, however, that the continuation of the appointments of additional counsel is by no means automatic, or even routine, once a case ceases to involve the death penalty, and defense counsel should consider carefully the necessity of additional counsel before making such applications. This Court's limited experience with this situation to date suggests that defense counsel do not heedlessly make such applications; in another matter pending before the Court, for instance, which involves charges arising out of a discrete incident, defense counsel declined to seek the continuation of additional counsel after consultation with the Court. In this case, however, the complexity of the charges, the potentially voluminous evidence, and the number of distinct criminal acts that will be at issue in the trial of this matter, taken together with the special considerations applicable in a formerly capital case, justify the continued appointments of additional counsel.

  Accordingly, the defendants's applications are granted. For defendants Morges, Roman, and Silva, the appointments of, respectively, Isabelle A. Kirschner and Norman Reimer, George Goltzer and Jean Barrett, and David Greenfield and Andrew Patel, as joint counsel for defendants pursuant to the Criminal Justice Act is continued.


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