Federated States of Micronesia v Jano [2000] FMSC 43; 9 FSM Intrm. 470a (Pon. 2000) (6 July 2000)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Federated States of Micronesia v Jano, [2000] FMSC 43; 9 FSM Intrm. 470a (Pon. 2000)

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

MARTIN JANO,
Defendant.

CRIMINAL CASE NO. 2000-500

ORDER DENYING MOTION TO RECONSIDER

Richard H. Benson
Associate Justice

Decided: July 6, 2000

APPEARANCES:

For the Plaintiff:
Amy J. Fitzpatrick, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei, FM 96941

For the Defendant:
Thomas G. Soucia, Esq.
Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei, FM 96941

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HEADNOTES

Attorney, Trial Counselor and Client - Withdrawal; Criminal Law and Procedure - Right to Counsel
A court cannot allow defense counsel to withdraw when the trial is well into the defendant's case-in-chief so that the defendant can seek new counsel to resume trial when that new counsel was not present during trial and has not heard either the prosecution's witnesses' testimony or that of the defense witnesses who have already testified. FSM v. Jano, [2000] FMSC 43; 9 FSM Intrm. 470a, 470b (Pon. 2000).

Attorney, Trial Counselor and Client - Withdrawal; Criminal Law and Procedure - Right to Counsel
Defense counsel cannot, in the middle of a criminal trial, precipitously accept other employment, without making the acceptance of employment conditional, commit himself to begin work "immediately," and then move for withdrawal because defense counsel is under an ethical obligation to continue as counsel until the criminal trial ends, even if that means postponement of his departure for new employment. FSM v. Jano, [2000] FMSC 43; 9 FSM Intrm. 470a, 470b (Pon. 2000).

Attorney, Trial Counselor and Client - Withdrawal; Criminal Law and Procedure - Right to Counsel
When ordered to by a tribunal, defense counsel is ethically obligated to continue the representation even if good cause to withdraw is present. Should the criminal trial end in a conviction, new counsel may be obtained for sentencing. FSM v. Jano, [2000] FMSC 43; 9 FSM Intrm. 470a, 470b (Pon. 2000).

Attorney, Trial Counselor and Client - Withdrawal; Criminal Law and Procedure - Right to Counsel
Denying withdrawal of counsel in the middle of a criminal trial is within the court's discretion, and as long as counsel is providing effective assistance, a criminal defendant has the choice of either continuing with that counsel or representing himself pro se. FSM v. Jano, [2000] FMSC 43; 9 FSM Intrm. 470a, 470b (Pon. 2000).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This case comes before me on the Motion to Reconsider Motion to Withdraw as Attorney filed July 5, 2000 by the defendant's attorney. The original motion of June 28, 2000 was caused by the attorney's intention to depart Pohnpei on July 13, 2000 to begin other employment in Palau and alleged disagreements with his client on how to proceed further with this case. I denied that motion to withdraw on June 30, 2000.

As noted previously, the trial in this case is far advanced: it is well into the defendant's case-in-chief.

The motion to reconsider my June 30th denial is denied. The trial is too far advanced. I cannot allow defense counsel to withdraw at this stage of the trial so that the defendant can seek new counsel to resume trial when that new counsel was not present during trial and has not heard either the prosecution's witnesses' testimony or that of the defense witnesses who have already testified.

My decision is not limited by the actions of defense counsel, who, in the middle of a criminal trial, precipitously accepted other employment on June 23, 2000, and committed himself to begin work "immediately," and then moved, on June 28, 2000, for withdrawal. Counsel, without qualification, states that he is leaving the Federated States of Micronesia on July 13, 2000. The problem is counsel's own commitment to Palau, apparently.

In my view, defense counsel is under an ethical obligation to continue as counsel until the trial ends, even if that means postponement of his departure for Palau. When ordered to by a tribunal, defense counsel is ethically obligated to continue representation even if good cause to withdraw, which I do not find here, is present. FSM MRPC R. 1.16(c). If the trial should end in a conviction, new counsel may be obtained for sentencing. Otherwise, I can only repeat what I noted in my earlier order.

Denying withdrawal of counsel in the middle of a criminal trial is within my discretion. Meyer v. Sargent, [1988] USCA8 1120; 854 F.2d 1110, 1114 (8th Cir. 1988). As long as counsel is providing effective assistance a criminal defendant has the choice of either continuing with that counsel or representing himself pro se. State v. Pepperling, 582 P.2d 340, 346 (Mont. 1978).

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