Firm's pre-indictment representation of co-defendants didn't violate right to counsel, judge rules
A federal magistrate has refused to dismiss the indictment against a drug defendant who contended his right to effective assistance of counsel for pre-indictment plea bargaining was violated because his law firm also represented a man who would become his co-defendant.
The Sept 28 decision (PDF) by U.S. Magistrate Nannette Baker noted that drug conspiracy cases often become a race to the courthouse in which soon-to-be defendants want to get the best deal by becoming the first to tell authorities what they know. Nonetheless, Baker found no right to effective counsel before indictment and said the defendant had failed to prove ineffective counsel after indictment.
Baker criticized lawyers in a St. Louis criminal defense firm for the multiple representation, but said the drug defendant had received “zealous representation” during a detention hearing and was not harmed. The St. Louis Post-Dispatch has a story on the criticism.
The firm—Rosenblum, Schwartz, Rogers & Glass—no longer represents the two defendants. Partner Scott Rosenblum had represented Thomas Gregory Anderson Jr., who claimed ineffective assistance. Another lawyer from the firm represented a co-defendant, but withdrew soon after the co-defendant’s indictment. Rosenblum withdrew five months after Anderson’s indictment.
Rosenblum had previously represented a confidential informant whose cooperation led authorities to Anderson. When the informant was talking to authorities, no one at the law firm was aware he was cooperating against Anderson, according to testimony cited in Baker’s ruling.
Baker also said another lawyer in the firm, Marc Johnson, brought a cellphone to the jail that Anderson used to take a selfie. Johnson had testified the cellphone belonged to Anderson, and he wanted it to retrieve a phone number so he could pay the law firm. Anderson alleged he could have offered prosecutors information against Johnson for bringing him the cellphone.
Baker saw no harm. She said that Anderson, with the law firm’s assistance, had “wisely declined” a no-holds-barred proffer that wouldn’t have reduced his sentence.
Rosenblum and Johnson told the Post-Dispatch they did nothing wrong. Rosenblum said he reacted as soon as he became aware of the potential conflict. “Obviously, we’re a larger firm than most criminal defense firms,” he said. Often lawyers aren’t aware of conflicts in cases with several defendants “for a multitude of reasons,” he told the newspaper.
Johnson said he didn’t commit any crime by bringing the phone to the jail. He said he was unpacking documents and didn’t realize at first that Anderson had picked up the phone. Johnson recalled that he was “livid’ when he saw Anderson had picked up the phone. The lawyer told the Post-Dispatch he wasn’t aware that Anderson took any selfies and commented: “What jackass would take a selfie?”
