Sanctions Against Death Penalty Lawyer Nixed

     (CN) - An attorney who criticized payment delays and budget constraints was not trying to "extort" a federal court and is likely not part of a coordinated plan to wear down enthusiasm for the death penalty, the 9th Circuit ruled Monday.
     The ruling comes in a challenge to the removal last year of California-based attorney and death-penalty specialist John Grele from a racketeering and murder case in Las Vegas.
     In addition to finding that Grele had threatened to abandon his client if the court did not pay his bills, U.S. District Judge Robert Clive Jones accused Grele of conspiring with criminal defense attorneys to kill the government's enthusiasm for the death penalty.
     By the time Grele made the alleged threat, he had been representing Markette Tillman, for going on five years. Tillman had been one of several other alleged members of the Playboy Bloods gang in Las Vegas indicted in 2009 for various crimes, including the murder of a security guard at a gang-controlled housing project.
     In an email exchange and subsequent status hearing in late 2013, a dispute arose between Judge Jones and Grele over the attorney's 10 unpaid billing vouchers.
     The judge argued that the attorney's bills were excessive, saying that the total cost for the defense was "approaching $1 million."
     Jones threatened to remove Grele from the case if he refused to promise that "he would provide 'competent, effective assistance to Mr. Tillman.'" Grele responded, "'if I get paid in a timely fashion, I can represent [that] I can provide effective assistance of counsel,'" according to the ruling. (Brackets in original.)
     Judge Jones removed Grele from the case a short time later and referred the matter to the California Bar Association for a possible ethics investigation.
     "Mr. Grele was attempting to extort the court by delay or withdraw[al] of representation into prioritizing the signature of his vouchers and the approval of extraordinary and inappropriate budget requests and voucher requests for counsel, second counsel, paralegal, investigators and forensic experts," the order, as quoted by the appellate court, said.
     Jones went on to call Grele "part of a coordinated strategy by criminal defense attorneys to delay capital proceedings in order to wear down the government's will to pursue capital punishment," according to the ruling.
     A scheduling conflict led Jones to recuse himself from Tillman's case, a trial of which is pending.
     The state bar association declined to discipline Grele, who along with Tillman challenged his removal.
     A three-judge appellate panel refused to consider the removal order Monday, because it lacks jurisdiction over such non-final rulings, but did vacate the sanctions order against Gresel and question the lower court's conspiracy concerns.
     "Of particular concern is the court's broad statement regarding the criminal defense bar, claiming that Grele was 'part and parcel' of a coordinated 'strategy' by criminal defense attorneys to 'kill the motivation of the U.S. Attorney' so that the government would capitulate on capital punishment," Judge M. Margaret McKeown wrote for the panel. "Notably, this charge was offered with no foundation; it unfairly implicates attorneys who represent defendants in the most difficult cases and unfairly suggests that U.S. Attorneys would cave to such pressures."
     The lower court had failed to give Grele proper notice of his removal, and "improperly removed him for highlighting a problem with the voucher payments, which the district court admitted were untimely," the San Francisco-based panel found.
     An improper disqualification could unduly harm Grele's reputation as a death-penalty specialist in a profession where reputation is paramount, the court found.
     "Lawyers do not have a ready 'toolkit' for their profession," McKeown said. "Instead, their professional reputations are the essence of their livelihood. Reputations matter - to the court, to clients, to colleagues, and to the public. In a specialized arena, such as criminal defense, the professional circle is even more circumscribed. Appointed lawyers representing indigent clients in federal cases rely on public funds which, in turn, are controlled in part by the judiciary. To be sure, the judiciary and the lawyers have an obligation to be stewards of ... funds. But this oversight should not trade off with the rights of clients. Nor should such supervision ignore the practical reality that inordinate delays in processing ... vouchers stretch lawyers to their economic limits."
     Grele did not immediately return a request for comment.