(CN) - Though a federal judge vacated the murder-for-hire conviction of a woman whose trial counsel faked being an attorney, the government may still retry her, the 10th Circuit ruled.
All parties had been unaware of defense counsel's pedigree when a court convicted Gwen Bergman on charges that she searched for a hit man on the Internet and used $30,000 of her mother's retirement savings to have him kill her ex-husband.
The hired gun was really an undercover police officer.
Bergman managed to have that conviction overturned in a habeas motion, however, after "it emerged that Ms. Bergman's lawyer was not a lawyer at all: he was a con man," the 10th Circuit opinion states.
"And a pretty good one at that," the appellate judges added. "For years he'd made a comfortable living duping clients and courts alike."
The phony attorney, Howard Kieffer, who reportedly raked in $70,000 in legal fees from Kieffer, was convicted in 2010 of fraud and contempt of court.
In vacating Bergman's conviction, U.S. District Judge William Martinez found that she had been deprived of her right to effective counsel at trial in violation of the Sixth Amendment.
The United States then asked the court to set a date for Bergman's next trial but Martinez insisted that his discharge order barred such proceedings.
Finding otherwise Friday, a three-judge panel in Denver remanded for additional proceedings.
There is no basis to find that the double-jeopardy clause of the Fifth Amendment bars retrial of Bergman, the 13-page order states.
"Everyone before us acknowledges that Ms. Bergman received ineffective assistance of counsel at trial," Judge Neil Gorsuch wrote for the court. "But no one suggests the jury acquitted her or that the evidence presented against her was legally insufficient to support a finding of guilt. So it would seem pretty clear that Ms. Bergman isn't protected from further prosecution by the double jeopardy clause."
The appellate judges also saw no issue with the fact that Bergman has already served a sentence for the crimes of which she was committed.
Ultimately "the government has a point" that "the remedy the District Court selected is too attenuated from the right it found violated," the ruling states.
"The presumptively appropriate remedy for a trial with an ineffective lawyer is a new trial with an effective one," Gorsuch wrote. "Not absolution, not the liberty of avoiding a fair trial simply because at some point along the way the defendant happened to hire a bad lawyer (or someone posing as a lawyer). Instead, we generally seek to 'neutralize the taint' of a Sixth Amendment ineffective assistance problem by 'assur[ing] the defendant the effective assistance of counsel and a fair trial.'" (Parentheses in original.)
Gorsuch concluded by emphasizing that the decision is limited to finding "that a discharge with prejudice to further prosecution efforts is a powerful remedy requiring powerful justification to qualify as tailored to the problem at hand - and in this case the district court failed to offer any reason suggesting so much might be called for here."
Judges Timothy Tymkovich and Paul Kelly joined the court's unanimous decision.
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