State of Connecticut v. Richard Roszkowski (2014)

MEMORANDUM OF DECISION REGARDING DEFENSE COUNSELS' MOTION TO WITHDRAW

INTRODUCTION

Before the court is a December 9, 2013 Motion to Withdraw filed by counsel for the defendant Richard Roszkowski.   Briefly summarized, the pertinent facts are as follows.   The state filed an amended information charging the defendant with three counts of murder, two counts of capital felony, and one count of criminal possession of a firearm.   The matter was tried to the jury before Judge Kavanewski.   Using the bifurcated procedure employed in all capital cases, the jury found the defendant guilty of all counts on May 4, 2009.   The state is seeking the death penalty.   On July 15, 2009, following an evidentiary hearing in the penalty phase, the same jury that convicted the defendant of two counts of capital felony in the guilt phase also rendered a verdict of death.   That second jury verdict reached in the penalty phase was subsequently vacated by the court, Kavanewsky, J., on October 9, 2009, before any sentence was ever imposed.   The jury's earlier verdict finding the defendant guilty of both counts of capital felony was not affected by the court's ruling, and those guilty verdicts were left undisturbed.   However, Judge Kavanewsky's action necessitated the scheduling of a new penalty phase proceeding in Superior Court before a new jury to be impaneled for that purpose.   The case was accordingly continued.

On June 30, 2011, while the matter was awaiting a retrial of the penalty phase, the defendant was found not competent by the court, Thim, J. Thereafter, on October 5, 2011, the court, Devlin, J., appointed attorney Francis O'Reilly as guardian ad litem for the limited purpose of allowing defense counsel access to certain medical records of the defendant while he was under a finding of incompetency.   On April 13, 2012, the court, Devlin, J., found that the defendant was restored to competency.   Current lead trial counsel is attorney Michael Courtney of the Capital Defense and Trial Services Unit of the Office of the Chief Public Defender.   He filed an appearance for the defendant on May 9, 2012.   Later that same month, on May 30, 2012, the court, Devlin, J., permitted predecessor trial counsel for the defendant to withdraw from the case.   The court based its decision on the ground that defense counsel from the first trial might themselves be called to testify as mitigation witnesses in the new penalty phase, and on the ground that there was a breakdown in the attorney/client relationship with Roszkowski.   Also during that same proceeding on May 30, 2012, the defendant advised the court that he wished to represent himself in the retrial of the penalty phase.   Thereafter, the court heard the defendant's oral motion “to proceed as a pro se defendant.”  (Transcript [Tr.], 5/30/12, p. 15.)   Judge Devlin conducted a lengthy canvass of Roszkowski as to the perils and pitfalls of self-representation, which also included an extended colloquy with the defendant.   The court took the defendant's request under consideration and continued the case for one week.

On June 6, 2012, Judge Devlin denied the defendant's motion requesting permission to represent himself.   On June 13, 2013, attorney Corrie–Ann Mainville filed her appearance for the defendant.   As current trial co-counsel, attorney Mainville is employed in the office of the Public Defender in the judicial district of Hartford.   On July 10, 2013, the court, Devlin, J., denied counsels' motion for another examination to determine the defendant's competency to stand trial, but at the specific request of defense counsel, the court granted the re-appointment of attorney O'Reilly “in the interests of justice” to serve as guardian ad litem.   That appointment was for the limited purpose of allowing the defense team to access Roszkowski's medical records.

Jury selection for the new penalty phase hearing commenced on September 16, 2013, before the undersigned.   Voir dire was completed on December 4, 2013, and the penalty phase rehearing before the newly impaneled jury is scheduled to begin on January 7, 2014.   On December 9, 2013, attorneys Courtney and Mainville filed the instant joint motion for permission of the court to withdraw their appearances for Roszkowski, citing his lack of cooperation in refusing to undergo neuropsychological testing.   The state objects to the motion to withdraw as a delaying tactic based on insufficient grounds.   Additional facts and history will be set forth as necessary.

DISCUSSION

Whether to grant a motion to withdraw is within the discretion of the trial court.   Therefore;  “[d]ecisions regarding the withdrawal of counsel are evaluated under an abuse of discretion standard ․ The trial judge is the arbiter of the many circumstances which may arise during the trial in which his [or her] function is to assure a fair and just outcome.”  (Internal quotation marks omitted.)  State v. Lee, 138 Conn.App. 420, 442 (2012), quoting State v. Fernandez, 254 Conn. 637, 647–48, 758 A.2d 842 (2000), cert. denied, 532 U.S. 913, 121 S.Ct. 1247, 149 L.Ed.2d 153 (2001).   In support of their motion to withdraw, defense counsel invokes the Practice Book as well as several rules of professional responsibility.  Practice Book § 3–10(a) provides in relevant part:  “No motion for withdrawal of appearance shall be granted unless good cause is shown ․” Rule 6.2 of the Rules of Professional Conduct governs the accepting of appointment as counsel.   That rule provides in relevant part:  “A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as if:  “(1) Representing the client is likely to result in violation of the Rules of Professional Conduct or other law ․ [or] (3)[t]he client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.”  Rule 1.2 of the Rules of Professional Conduct governs the scope of counsel's representation, and the allocation of authority between a client and his lawyer.   It provides in relevant part:  “[A] lawyer shall abide by a client's decisions concerning the objectives of representation, and ․ shall consult with the client as to the means by which they are to be pursued.”  Rule 1.16 of the Rules of Professional Conduct governs when withdrawal or termination of representation is required.   It provides in relevant part:  “(a) Except as stated in subsection (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:  (1) The representation will result in a violation of the Rules of Professional Conduct or other law ․ (b) Except as stated in subsection (c), a lawyer may withdraw from representing a client if:  (1) withdrawal can be accomplished without material adverse effect on the interests of the client ․ (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement ․ (6) the representation ․ has been rendered unreasonably difficult by the client;  or (7) other good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring ․ permission of a tribunal when terminating a representation.   When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.”

Finally, Rule 1.14 of the Rules of Professional Conduct pertains to counsel's representation of an impaired client.   That rule provides in relevant part:  “(a) When a client's capacity to make or communicate adequately considered decisions in connection with a representation is impaired, whether because of ․ mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client is unable to make or communicate adequately considered decisions, is likely to suffer substantial physical ․ or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a legal representative.”   As previously mentioned, on two prior occasions in this case, Judge Devlin has approved the appointment of attorney Francis O'Reilly to act as guardian ad litem for the defendant.

At the outset, the court notes the importance of the fact that we are about to start trial—specifically, a new penalty phase proceeding.   For that purpose, January 7, 2014 is the date fixed and agreed upon by the court in consultation with the parties long ago.   It is now at hand.   Voir dire started three months ago, a lengthy process which has now been successfully concluded.   Consequently, the court considers trial to have already started;  see State v. Bozelko, 119 Conn.App. 483, 502 n.7, 987 A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d 867 (2010);  and at this stage in the proceedings on the eve of trial, the timing of counsels' motion is highly relevant.

“Practice Book § 3–10 requires that a court find good cause to grant a motion to withdraw.   Our Supreme Court has held that to work a delay by a last minute discharge of counsel there must exist exceptional circumstances ․ [The court] must distinguish between a substantial and timely request for new counsel pursued in good faith, and one made for insufficient cause on the eve or in the middle of trial ․

“While a criminal defendant's right to be represented by counsel implies a degree of freedom to be represented by counsel of [the] defendant's choice ․ this guarantee does not grant a defendant an unlimited opportunity to obtain alternate counsel on the eve of trial ․ Although the court has a responsibility to inquire into and to evaluate carefully all substantial complaints concerning court-appointed counsel ․ the extent of such inquiry lies within the [trial] court's sound exercise of discretion.   After it has given the defendant an adequate opportunity to inform it of his or her complaints, the court has broad discretion in determining whether circumstances warrant the appointment of new counsel or the dismissal of the defendant's existing counsel.”  (Internal quotation marks omitted.)  State v. Williams, 102 Conn.App. 168, 205, 926 A.2d 7, cert. denied, 284 Conn. 906, 931 A.2d 267 (2007).

Lead counsel attempts to buttress his argument to withdraw by noting that this is the first time he has ever attempted to do so in a capital case.   However, the fact that counsel has never previously sought leave of the court to withdraw in his years of trying death penalty cases is precisely the reason why he should not be allowed to do so now.¹  Given the potential penalties here, no one in Connecticut stands in greater need of the guiding hand of experienced counsel than Roszkowski.   When it comes to counsel and the role of counsel, the court is considering their belated request for permission of the court to now leave their post at the defendant's side, to attempt to forfeit the serious task now before them.   However, the court finds that at this hour, a defendant like Richard Roszkowski standing convicted of two counts of capital felony is as much entitled to counsel at his sentencing hearing as any defendant convicted of any lesser crimes.   Moreover, Roszkowski has a far more compelling need for such counsel.   Therefore, in this case and on this motion, this court of necessity has done its own weighing process.   Counsel may disagree with this ruling, or any other prior rulings of this court or Judge Devlin, but the court cannot allow them to withdraw under these circumstances.

Given these considerations, this court finds that this is not a case susceptible of being delayed any longer at the trial court level, where it has been pending since 2006.   As previously noted, the defendant stands in need of counsel now more than ever.   These four-year-old convictions for two counts of capital felony that arise out of three murders committed over seven years ago beg the following question of trial counsel:  If not you, who?  “Trial courts have an unquestioned obligation, under both the state and federal constitutions, to provide indigent defendants with legal representation.”   State v. Harman, 198 Conn. 124, 130, 502 A.2d 381 (1985), citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).   Self-representation is not an option here, and when it comes to defense counsel with sufficient relevant skill and experience in handling death penalty-eligible capital cases, there is simply not a deep trial lawyer bench from which to draw upon in this area.   Depriving the indigent defendant of legal representation at this stage would derail the new penalty phase proceeding, a sentencing proceeding already extremely attenuated from the three underlying murders.   Moreover, granting a motion to withdraw now would potentially mean that the defendant could never be sentenced for his capital offenses.   If that is the real (if unstated) goal of the motion to withdraw, it is also denied by this ruling, as “never” is not an option in this case.   The record reflects that counsel asked for and was allowed a number of generous continuances by the court, Devlin, J., to prepare when lead counsel accepted this appointment in May 2012 to represent the defendant.   Counsel has now had over eighteen months in order to prepare for the retrial of the penalty phase.

Moreover, there is absolutely no reasonable assurance—let alone a guarantee—that if this motion to withdraw were to be granted by the court, that any new court-appointed successor counsel would fare any better with this defendant.   That is the court's real concern.   It has now spent almost three months on voir dire alone—weeks of the court and counsel's time to summon to court and examine hundreds of citizens.   Counsel have individually interviewed over 260 panelists, each of whom had previously completed a detailed written questionnaire.   After lengthy questioning of each, counsel agreed upon eighteen honest, hardworking men and women to serve as regular and alternate jurors.²  These sober citizens all indicated a willingness to make the sacrifice that service on this jury will entail.   In fact, it is also evident that great effort and much hard work has been performed by the current and former defense teams in representing Roszkowski thus far.   If the court now granted this motion by counsel to withdraw, all that good defense work and preparation to date, the expenditure of court resources, and the public investment of time would be for naught.   That could well yield a worst case scenario.   If present counsel were allowed to withdraw, the court fears an even worse outcome for the defendant down the line, one aggravated by still more uncertainty and years of further sentencing delays.   New lawyers with less experience in capital cases than the present team would have to begin anew the laborious task of trying to build their bridges to the incarcerated defendant.   Such stressors occasioned by those extended delays, by their very nature, could not and would not be at all beneficial to Roszkowski, or to the families of those who lost their lives that tragic day in 2006.   To the contrary, it might conceivably lead to further hardening of his attitude toward cooperation with counsel.   The court finds that a third set of lawyers in this case would make no difference.   Ethical considerations have not been ignored by the court in this process;  rather, they have been weighed in an effort to strike the proper balance.

The Denial of the Motion for Examination to Determine Competency

The state opposes this motion to withdraw, and just as counsel themselves do not agree on the competency issue there will never be unanimity of opinion among the experts of any stripe here.   If the defendant's competency or the argued lack thereof is truly what is driving this motion, it must be stressed that competency itself is a question of law for the court.   Notwithstanding the views of any third parties cited by defense counsel in their motion, ethical amici curiae of sorts,³ the weighing process demonstrates that granting counsels' motion to withdraw here and now, rather than reasonably ensuring a better and more just end result, would actually carry with it a far greater risk of working a manifest injustice on the defendant.

This motion to withdraw filed by defense counsel on the eve of trial and after completion of a lengthy jury selection process may be viewed as part and parcel of their continued objection to Judge Devlin's earlier denial of a motion to have the defendant evaluated again in July 2013.   Yet as attorney Courtney himself advised the court, Devlin, J., on May 30, 2012, the day that prior defense counsel was granted permission to withdraw from the case, “He [Roszkowski] also understands, based on what I've told him, that this cannot continue as a game of musical counsel.   There's going to have to be a time, whether it's me, or someone else, or Mr. Roszkowski, someone will have to represent him when this case goes to trial, if the case goes to trial.”  (Tr., 5/30/12, p. 3.)

While counsel's motion to withdraw references the fact that on July 10, 2013, Judge Devlin had denied another competency evaluation of the defendant, the motion itself does not quote from any part of the court's reasoning.   Instead, the motion to withdraw quotes exclusively and at length from Dr. Paul Amble, M.D., a psychiatrist whose opinion was considered and expressly rejected by Judge Devlin at that time.   It is because of counsel's current reliance upon the opinion of Dr. Amble in this motion to withdraw that the court feels compelled to discuss Judge Devlin's consideration of that same opinion.   Herewith is the articulation of the court, Devlin, J., in denying defense counsel's motion for another competency examination of the defendant after hearing the arguments of counsel:

THE COURT:  Mr. Roszkowski was found not competent in June of 2011.   I took over as presiding Judge in this court in September of 2011 and for the better part of ten months I dealt with Mr. Roszkowski's lack of competency.   In terms of being at Whiting, I heard from Dr. Mark Cotterell, the head of Whiting, he testified in front of me on at least four occasions.   I heard from Dr. Reena Kapoor, who was the—at that time, the psychiatrist at the Gardner Correctional Institution.   I heard from the doctor who was the—Craig Burns, who was the psychiatrist that actually was in charge of Mr. Roszkowski's restoration, and amongst that, I heard repeated argument and submissions by attorneys Bruckmann and Smith about Mr. Roszkowski's lack of cooperation with them, and all that was presented to me, and Whiting, in two completely separate evaluations of the defendant concluded he was competent.

This is just a repackaging of that same material.   Dr. Amble says he understands the charges against him.   He actually has a very sophisticated understanding about the fact that the State of Connecticut has repealed the death penalty only prospectively, and he has real concerns about why that doesn't affect him, which is a completely, I think, sophisticated understanding of the law and the questions associated with it.

He told Dr. Amble he would cooperate with his attorney.   There's just this lack of cooperation on the part of Mr. Roszkowski, which Dr. Amble attributes to maybe some depression because of his circumstances, because of his charges against him, and the prospects of going through another death penalty trial, all of which I understand.   But that's different, that's different than competency.   That's a different set of questions.

So, I don't think this request is justified, and under 54–56d competency exams are ordered when they're justified.   I've been down this road with Mr. Roszkowski for months, and months, and months, and months.   We had many hearings on this.   I've reviewed scores of records on this.

So, for those reasons, and for the reasons I set forth when I articulated the motion last year, the motion—I'm granting a guardian ad litem for Mr. Roszkowski, but this does not—this is not a justified request on the request for a competency examination.   So, the Court is going to deny it, based on those reasons.   The matter is scheduled to start trial in ․ mid-September, and it's going to be in front of Judge John Blawie.   Thank you very much.

(Tr., 7/10/2013, pp. 9–11.)

Following that decision, Judge Devlin engaged in a colloquy with attorney Courtney on the record.   It was noted that Dr. Amble had consulted with Dr. Cotterell during the consideration of Roszkowski's competency, and that Dr. Amble had agreed that Roszkowski was competent, but that Dr. Amble had now changed his opinion:

THE COURT:  I just don't see the problems that he's [Dr. Amble] identifying here go to competence, they may go to other things, but I don't see them going to competence ․ See, the way I see it is, Mr. Roszkowski's impairment, which does exist, which does exist, I think that's cured by this guardian ad litem, which is why I think that's the right thing to do to appoint a guardian ad litem.   So, I'm not saying he's not—he doesn't have impairments, which have been manifested in a whole bunch of different sorts of ways, including today, but I think the better course is to appoint a guardian ad litem and that's what I've done.

(Tr., 7/10/2013, pp. 13–14.)

This court agrees that there are “other things” going on with Roszkowski that are unrelated to his competency to stand trial, as alluded to by Judge Devlin.   Dr. John Hess, M.D., a professor of psychiatry at the University of Michigan, and Dr. Herbert Thomas, M.D., of the Western Psychiatric Institute and Clinic at the University of Pittsburgh once conducted a comprehensive study and evaluation of various competency proceedings ordered by courts in the state of Michigan.   These doctors were both nationally known mental health professionals of the mid-twentieth century.   The study was published as Incompetency to Stand Trial:  Procedures, Results and Problems.   Despite some advances in our understanding of mental health, and some minor differences in the Michigan competency statute (their results were presented at an annual meeting of The American Psychiatric Association, and then published in 1963), time has not changed the fundamental soundness of their conclusions.   This includes the inherent difficulty that these psychiatrists themselves candidly identified in the area of competency evaluations of defendants, including what may be the real issue with Roszkowski:  “In brief,” they wrote, “the problem of competency to stand trial consists of a determination of the accused's mental status not in relation to the crime, but in relation to his trial ․ Our conclusion is that the issue of the defendant's competency to be tried was most frequently raised not on the basis of the defendant's mental status but rather was employed as a means of handling situations and solving problems for which there seemed to be no other recourse under the law ․ We submit that the true difficulty underlying the surface problems which arise from competency proceedings lies in the fact that on both sides, namely, law and psychiatry, there exists an assumption of the existence of a comprehensible standard of competency to stand trial that can be applied to a human being, assessed within a human being, and communicated to other human beings ․ It seems that depending upon one's context and framework that almost all defendants can be considered competent or that almost all can be considered incompetent.”   (Emphasis added.)   John H. Hess, Jr. & Herbert E. Thomas, Incompetency to Stand Trial:  Procedures, Results and Problems, 119 Am. J. Psych. 713, 719–20 (1963).⁴

In light of these issues, it has been both sound public policy and the longstanding law of the state of Connecticut that the issue of a defendant's competency to stand trial is one reserved to the judges of the Superior Court.   It has never been a question to be determined by the number of psychiatrists testifying for or against that particular proposition.  State v. DeAngelis, 200 Conn. 224, 229–30, 511 A.2d 310 (1986).   Our Supreme Court in DeAngelis also held that the entire subject of a defendant's competency to stand trial, as well as the statutory procedure for such a determination, is itself a legal question.  Id., 229.   As a matter of law, it is therefore one which must ultimately be determined by the trial court in the exercise of its sound discretion, and not by counsel for either side.   Judge Devlin did so in this case, and the court articulated an informed basis for its decision, based not only upon the opinions of several different psychiatrists, but on a number of personal interactions with Roszkowski over a ten-month timeframe.⁵  In the competency study referenced earlier, Drs. Hess and Thomas also observed that while the issue of a defendant's competency to stand trial by necessity requires collaboration between the legal and mental health professions, the psychiatrists themselves warned against attempts by physicians to usurp the fact finding function of the courts in this area.   Otherwise, “[t]he valued and traditional legal insistence on the right to determine fact is passively given over to the acceptance of opinion as fact.”  Hess, supra, 119 Am. J. Psych. 713.   They noted that a “distorted application by both physician and lawyer tends to subvert the social and legal principle inherent in the concept of competency and in so doing to sacrifice the professional identity of both lawyer and physician as well as their appropriate functions as assigned by society and which their client has the right to expect.”  Id.

With all due respect to the opinions of Dr. Amble as recited by the defense in their current motion and as previously pressed before Judge Devlin, or the medico-legal opinions of anyone else, it does not address the real issue at the root of a finding of a defendant's competency to stand trial, let alone this motion to withdraw.   The day the court delegates its decision-making authority over any defendant presumed to be competent to psychiatrists, passively accepting all of their opinions, the day the court forfeits the right and the discretion to make its own independent determinations, and hands such authority over to psychiatrists, on that day the courts ought to get out of the competency business altogether.   The court should remove itself from the decision making process if that should ever come to pass, because by then the appropriate functions as assigned by society in this area will have been subverted.   It might also be time to relieve juries of their current responsibility for deciding such momentous questions as an accused person's mental disease or defect.   On that score, consider that such decisions are based in part on the opinions of mental health workers, and are routinely made over the years by citizen juries.   Moreover, these lay fact finders have no judicial experience at all.   As compared to a trial judge, our jurors are given a very limited legal framework and context to work with, as well as a limited time frame within which to grapple with and decide these important issues.   Nonetheless, we routinely accord respect to such jury verdicts, as we must.   With the freedom to decide an issue comes the freedom on the part of the fact finder, be it judge or jury, to accept or reject, in whole or in part, the testimony or opinion of any witness, including those opinions masquerading as fact.

CONCLUSION

Both sets of attorneys here, representatives of the state and the defendant, should know that the public and the community place their trust in them.   In other words, the public places just as much of its trust in attorney Courtney and attorney Mainville, and their proven ability to represent Roszkowski, as they place in the state's attorneys and their ability to represent the state's interests.   Both sides serve the court as officers of the court, and both sides thereby earn the respect and confidence of the public in doing so.   That is why the court does not fault defense counsel for trying to do whatever they can for their client, even to the point of filing this motion to withdraw.   Counsel has a duty to their client, but they also owe a duty to this court, one that started the moment attorney Courtney filed his appearance and accepted this appointment from the court back over 18 months ago.   Counsel quotes from Judge Devlin's earlier rulings in 2012 on the motion to withdraw filed by predecessor counsel, as well the court's denial of the defendant's motion to represent himself at trial.   However, neither of those prior rulings nor the rationale employed by the court at the time, nor the Rules of Professional Responsibility provide a sufficient basis to grant the instant motion by counsel to withdraw, or to take a leave of absence from a client under these circumstances.

Counsel also cited in their motion to withdraw a possible “stigma” associated with their continued representation of this defendant.   To the contrary, such concerns are unfounded, as defense counsel are actually upholding the highest traditions of the bar in doing so.   As Justice Hugo Black wrote, “Undivided allegiance and faithful, devoted service to a client are prized traditions of the American lawyer.   It is this kind of service for which the Sixth Amendment makes provision.   And nowhere is this service deemed more honorable than in case of appointment to represent an accused too poor to hire a lawyer, even though the accused may be ․ charged with an offense which is peculiarly abhorrent.”  (Footnote omitted.)  Von Moltke v. Gillies, 332 U.S. 708, 725–26, 68 S.Ct. 316, 92 L.Ed. 309 (1948).   It is apparent that counsel is seeking to withdraw here not because of the abhorrent nature of the instant offense, but because of their client's attitude toward some testing.   While they deserve the thanks of the court for what must seem like a thankless task, counsel are not at liberty to withdraw from representation.

For the reasons set forth herein, the motion to withdraw is DENIED.

IT IS SO ORDERED,

Blawie, J.

FOOTNOTES

FN1. Attorney Courtney advised the court at oral argument on his motion to withdraw:  “[T]his has to do with my ethical obligation, Ms. Mainville's ethical obligation, 18 years of doing this, probably 25 clients who've killed 45 human beings.   Not a single one of those clients is on death row, and I've never withdrawn in any case.   I've never moved to withdraw in any single case.”  (Tr., 12/18/13, p. 16.)   With all due respect to counsel's ability to successfully prove mitigation and/or attack aggravating factors in capital cases, that impressive prior record of advocacy demonstrates an uncommon level of relevant experience so beneficial to the defendant that it actually cuts against the merits of granting his motion to withdraw..  FN1. Attorney Courtney advised the court at oral argument on his motion to withdraw:  “[T]his has to do with my ethical obligation, Ms. Mainville's ethical obligation, 18 years of doing this, probably 25 clients who've killed 45 human beings.   Not a single one of those clients is on death row, and I've never withdrawn in any case.   I've never moved to withdraw in any single case.”  (Tr., 12/18/13, p. 16.)   With all due respect to counsel's ability to successfully prove mitigation and/or attack aggravating factors in capital cases, that impressive prior record of advocacy demonstrates an uncommon level of relevant experience so beneficial to the defendant that it actually cuts against the merits of granting his motion to withdraw.

FN2. It should be further noted that in the process of empaneling a jury of counsels' choice, neither side needed to exhaust all of their peremptory challenges in order to do so..  FN2. It should be further noted that in the process of empaneling a jury of counsels' choice, neither side needed to exhaust all of their peremptory challenges in order to do so.

FN3. See, e.g., Professor Lawrence Fox, who is referenced by the defense in their motion as having been consulted..  FN3. See, e.g., Professor Lawrence Fox, who is referenced by the defense in their motion as having been consulted.

FN4. This article was also republished by the University of Michigan Law School and featured in their publication, Psychiatry for Lawyers Handbook (Institute of Continuing Legal Education, 3rd Edition, 1966)..  FN4. This article was also republished by the University of Michigan Law School and featured in their publication, Psychiatry for Lawyers Handbook (Institute of Continuing Legal Education, 3rd Edition, 1966).

FN5. Whatever his attitude, the defendant does not thereby forfeit his right to counsel.   It is apparent that Roszkowski has proven himself to be a difficult client for all of his attorneys, past and present.   While Roszkowski has been unable to engage in any of the self-destructive or abusive behaviors that may have contributed to his predicament since his confinement over seven years ago, it is also apparent that Roszkowski is keenly aware that there is no possible outcome to his case, or this trial, which will ever involve his eventual release from the confines and strictures of DOC custody.   Under these circumstances, the incarcerated defendant's reported lack of complete cooperation in the face of such a bleak prognosis is perhaps unsurprising.   It does not by itself necessarily dictate a finding of incompetency as a matter of law.   Even under the best of such circumstances, when faced with such unpalatable alternatives for the rest of one's life, hope is so much harder for any man to maintain than despair..  FN5. Whatever his attitude, the defendant does not thereby forfeit his right to counsel.   It is apparent that Roszkowski has proven himself to be a difficult client for all of his attorneys, past and present.   While Roszkowski has been unable to engage in any of the self-destructive or abusive behaviors that may have contributed to his predicament since his confinement over seven years ago, it is also apparent that Roszkowski is keenly aware that there is no possible outcome to his case, or this trial, which will ever involve his eventual release from the confines and strictures of DOC custody.   Under these circumstances, the incarcerated defendant's reported lack of complete cooperation in the face of such a bleak prognosis is perhaps unsurprising.   It does not by itself necessarily dictate a finding of incompetency as a matter of law.   Even under the best of such circumstances, when faced with such unpalatable alternatives for the rest of one's life, hope is so much harder for any man to maintain than despair.

Blawie, John F., J.