adduced in less than 15 minutes. It took nearly two hours, by virtue of a series of lengthy, meritless objections by Mr. Brunwasser (interspersed with a number of unaccepted invitations by Mr. Brunwasser for the Court to order him to stop objecting).
Local counsel, Mr. Jacobovitz, was present at the hearing but played no role in the presentation of evidence. He had a jury deliberating in another case. When the direct testimony of the first witness finally was concluded, the Court was advised that Mr. Jacobovitz's jury had reached its verdicts. Prior to leaving for the other courtroom, Mr. Jacobovitz addressed the Court for the first time. He moved for leave to withdraw. A copy of the transcript of what was said between then and the taking of a brief recess is attached as Exhibit A. (Mr. Shmanda was the Assistant United States Attorney.) It is clear that local counsel has no authority and plays no role in the case other than being present in court. As that portion of the transcript reflects, Mr. Brunwasser again sought a continuance prior to beginning cross-examination. That request was denied.
After the recess, Mr. Brunwasser commenced his cross-examination of the first witness. By approximately 5:15 p.m., that cross-examination had not been completed. Had local counsel been handling the matter, the entire suppression hearing undoubtedly would have been completed. Had existing local counsel been given any authority, the Court could have continued sitting to permit completion of at least the first witness' testimony. Instead, the Court felt obliged to adjourn so that Mr. Brunwasser could catch his 5:50 p.m. flight back to Pittsburgh.
Prior to departing, Mr. Brunwasser stated that the press of other cases would make it impossible for him to resume the suppression hearing until December.
Present Posture and Ruling
It is now five months since defendant was arrested and more than four months since he was indicted. In addition to the two appeals which have been filed (referred to in n.3, supra), Messrs. Gibson and Brunwasser have filed in the Court of Appeals a PETITION FOR WRIT OF MANDAMUS PROHIBITION AND EXTRAORDINARY RELIEF PLUS EXERCISE OF THE COURT'S SUPERVISORY AUTHORITY IN RE SEPTEMBER 14, 1987, SEPTEMBER 18, 1987 AND SEPTEMBER 22, 1987 ORDERS OF DISTRICT JUDGE STANLEY S. HARRIS WHICH ORDERS ARE FILED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AT C.A. 87-1821 AND CR. 87-311. (D.C. Cir. Case No. 87-5309.) The Court cannot read Mr. Brunwasser's mind, and would be reluctant to conclude that he seeks obfuscation and delay. That, however, is what has occurred. Similarly, the Court does not question Mr. Brunwasser's legal ability. However, it has become apparent that defendant's representation by a sole practitioner who is located hundreds of miles from the District of Columbia is unacceptably delaying the resolution of this case.
The Speedy Trial Act calls for the trial of a case within 70 days of an indictment. 18 U.S.C. § 3161(c)(1). Technically, of course, the pendency of the unduly protracted suppression process has been tolling the requirements of the Speedy Trial Act. 18 U.S.C. § 3161(h)(1)(F). Additionally, at the partial suppression hearing on November 6, Messrs. Gibson and Brunwasser readily asserted their waiver of defendant's right to a speedy trial. However, the Court must give recognition to the strong interests of a defendant, the Government, and the public in a speedy adjudication of guilt or innocence.
The Court accordingly withdraws its permission for Mr. Brunwasser to participate pro hac vice any further in this case. See Local Rule 104(d). The Nation's Capital is scarcely a frontier town with a shortage of qualified lawyers. Defendant may proceed pro se (which the Court discourages), or he may proceed with representation by Mr. Jacobovitz or other counsel of his choice. In any event, he must proceed henceforth without Mr. Brunwasser's representation in this Court.
An appropriate Order accompanies this Memorandum Opinion.
Excerpts from Transcript of Suppression Hearing Held on November 6, 1987
THE COURT: THEY HAVE a VERDICT. THEY WILL CALL AGAIN as SOON as THEY HAVE EVERYBODY BACK TOGETHER.
MR. JACOBOVITZ: I UNDERSTAND.
MAYBE THIS IS a GOOD TIME TO BREAK. FOR a BRIEF MOMENT, IF I MAY, I WOULD LIKE TO ADDRESS the COURT BEFORE MR. BRUNWASSER STARTS HIS CROSS.
I AM LOCAL COUNSEL in THIS MATTER. WHAT I WOULD LIKE TO MAKE a MOTION TO DO at THIS POINT IS TO WITHDRAW.
THE REASON I'M DOING THAT IS BECAUSE MR. GIBSON IS SATISFIED WITH MR. BRUNWASSER. THEY DID NOT WANT LOCAL COUNSEL HERE.
I DO NOT HAVE ANY AUTHORITY TO DO ANYTHING; SO MR. GIBSON HAS NOT HAD the BENEFIT of ANY of LOCAL COUNSEL'S EXPERIIENCE on the RULES and EXPERIENCE IN COURT.
INSTEAD of YOUR HONOR BREAKING UP THIS HEARING SINCE I HAVE a VERDICT, I WOULD ASK THAT MR. GIBSON and MR. BRUNWASSER BE ALLOWED TO PROCEED PRO HAC VICE, which MR. BRUNWASSER WAS INITIALLY APPOINTED TO. I REALIZE THERE IS NO PROBLEM WITH HIM APPEARING in COURT.
APPARENTLY NOW HE HAS NO PROBLEM in COMING TO COURT. I DON'T THINK THAT THAT WILL BE a PROBLEM in the FUTURE.
AND I THINK at THIS POINT, IT IS JUST REPETITIVE in HAVING ME HERE in TERMS of MR. GIBSON PAYING LEGAL FEES.
AND IF YOUR HONOR IS INCLINED TO LET MR. BRUNWASSER PROCEED on HIS OWN, I CERTAINLY HAVE NO OBJECTION TO THAT.
MR. BRUNWASSER CAN ADEQUATELY PROTECT MR. GIBSON'S RIGHTS, and I AM NOT CONTRIBUTING in ANY RESPECT TO ANYTHING.
SO I HAVE NO OBJECTION IF YOUR HONOR ALLOWS ME TO WITHDRAW at THIS TIME and ALLOW MR. BRUNWASSER TO PROCEED PRO HAC VICE in THIS CASE.
MR. BRUNWASSER: YOUR HONOR, ALL THAT IS HAPPENING IS THAT MR. GIBSON CAN'T AFFORD TWO FULL-TIME LAWYERS BOTH DOING the SAME THING.
THE COURT: WELL, I AM SURE MR. JACOBOVITZ IS NOT FULL-TIME. MR. JACOBOVITZ'S ROLE IS TO MAKE CERTAIN THAT WE ARE ABLE TO MOVE THIS CASE FORWARD in CASE YOU DECIDE THAT THERE IS a STORM and YOU DON'T WANT TO COME.
MR. BRUNWASSER: WELL, YOUR HONOR, I ASSURE YOUR HONOR -- I GAVE YOUR HONOR ALL THAT DOCUMENTATION.
AND I WOULD SUGGEST THAT a REASONABLE EVALUATION WOULD BE THAT I AM JUSTIFIED in WHAT I DID.
THE COURT: WELL, LET'S . . .
MR. BRUNWASSER: REGARDLESS, REGARDLESS, . . .
THE COURT: I WOULD APPRECIATE IT IF YOU WOULD NOT INTERRUPT ME, PLEASE.
I DID NOT INTERRUPT YOU, and I WOULD APPRECIATE YOUR NOT INTERRUPTING ME.
THE COURT: WE WILL EXCUSE YOU FROM the COURTROOM TO GO TO YOUR VERDICT WHENEVER THAT COMES IN; BUT I WOULD LIKE TO HEAR FROM MR. SHMANDA on the REQUEST THAT YOU'VE JUST MADE, and I WOULD LIKE TO REFLECT on IT MORE.
MR. JACOBOVITZ: OKAY.
YOUR HONOR, I JUST MIGHT ADD for the RECORD THAT I HAVE NOT HAD AUTHORITY TO PREPARE DISCOVERY OR ANY OTHER MATTER in the CASE.
SO MR. BRUNWASSER IS VERY FAMILIAR WITH the FACTS, MORE FAMILIAR WITH the FACTS THAN I AM; and SO I DON'T THINK MR. GIBSON WOULD LOSE ANY QUALITY of LEGAL REPRESENTATION IF I WERE ALLOWED TO WITHDRAW FROM the CASE.
THE COURT: THANK YOU.
MR. SHMANDA: YOUR HONOR, WE WOULD SIMPLY POINT OUT THAT ORDERED in the ORDER ISSUED BY the COURT on SEPTEMBER the 22ND, PAGE 3, ORDERED THAT "THE PORTION of the COURT'S SEPTEMBER 15, 1987 ORDER GRANTING DEFENDANT GIBSON'S MOTION TO WAIVE LOCAL RULE 104 IS VACATED. MR. BRUNWASSER MAY NOT APPEAR in OPEN COURT TO FILE PLEADINGS in THIS ACTION UNLESS HE COMPLIES WITH LOCAL RULE 104."
AND IT ORDERED THAT "COUNSEL REPRESENTING DEFENDANT GIBSON, WITH or WITHOUT MR. BRUNWASSER, SHALL BE RESIDENT COUNSEL WITHIN the MEANING of LOCAL RULE 104."
I BELIEVE, YOUR HONOR, THAT EVENTS HAVE TRANSPIRED THUS FAR in THIS CASE THAT SUPPORT WE HAVE LOCAL COUNSEL in THIS CASE, at LEAST FAMILIAR WITH the PRACTICES and PROCEDURES THAT ARE EMPLOYED ROUTINELY in THIS DISTRICT in CONNECTION WITH CRIMINAL CASES.
MR. BRUNWASSER MAY BE a VERY FINE LAWYER, BUT I DO NOT BELIEVE HE IS OVERLY EXPERIENCED in the CRIMINAL-LAW AREA, PARTICULARLY as IT IS PRACTICED in a JURISDICTION PERHAPS 250 MILES FROM HIS OWN, in ALLEGHENY COUNTY, PENNSYLVANIA, in the FEDERAL COURTS in ALLEGHENY COUNTY.
SO WHILE WE CERTAINLY DO NOT WISH TO APPEAR TO BE OBSTRUCTIONIST TOWARD THE COURT and TOWARD LOCAL COUNSEL, WE FEEL THAT IT IS VERY IMPORTANT THAT LOCAL COUNSEL HAVE SOME CONNECTION WITH THIS CASE.
THE COURT: WELL, I WILL REFLECT on the REQUEST.
IN the MEANTIME, LET'S MOVE ALONG WITH THIS CASE.
MR. BRUNWASSER: MAY I SAY THIS, YOUR HONOR: I AM a GRADUATE of the HARVARD LAW SCHOOL . . .
THE COURT: I AM NOT SURE MR. SHMANDA CAN HEAR YOU.
MR. SHMANDA: NO, I CANNOT.
MR. BRUNWASSER: I AM a GRADUATE of the HARVARD LAW SCHOOL; and in MY CAREER, I HAVE PARTICIPATED in SOME of the MOST IMPORTANT CRIMINAL CASES in ALLEGHENY COUNTY, WHERE I AM PRIMARILY ADMITTED TO PRACTICE, WITH GREAT SUCCESS.
I'VE HAD CASES in which MY CLIENT WAS the TARGET of the UNITED STATES GOVERNMENT and I WAS SUCCESSFUL.
IN FACT, THERE WAS ONE CASE INVOLVING GEORGE LEE . . .
THE COURT: WELL, LET'S GET . . .
MR. BRUNWASSER: WELL, I WANT TO TELL YOUR HONOR THAT ALL THAT YOUR HONOR IS DOING BY HAVING LOCAL COUNSEL in COURT IS PUTTING AN UNFAIR ECONOMIC BILL on MR. GIBSON, WHO CANNOT AFFORD TWO FULL-TIME COUNSEL.
YOUR HONOR CAN TELL FROM the PAGES I'M FILING THAT I'M WILLING TO DO MY WORK; and ALL YOU'VE DONE IS YOU'VE PUT ANOTHER STEP on US SO THAT EVERYTHING I DO I HAVE TO CLEAR IT BASICALLY WITH LOCAL COUNSEL.
LOCAL COUNSEL IS NOT AUTHORIZED TO DO ANY WORK or TO ACCEPT ANY PAPERS or TO DO ANYTHING; WE ONLY HAVE HIM HERE in COURT BECAUSE YOUR HONOR HAS ORDERED IT, and I SUGGEST THAT YOUR HONOR'S ORDER IS CONTRARY TO FRASER V. EBEY JUST DECIDED BY the UNITED STATES SUPREME COURT.
I RESPECTFULLY SUGGEST THAT IF -- and I AM NOT SAYING IT WAS YOUR HONOR'S INTENT -- IF YOUR HONOR INTENDED TO PUNISH MR. GIBSON and MYSELF, I SUGGEST THAT WE HAVE BEEN PUNISHED.
WE HAVE SPENT a LOT of MONEY THAT WE ORDINARILY WOULD HAVE SPENT; and MR. GIBSON JUST CAN'T AFFORD TWO FULL-TIME COUNSEL, BOTH WORKING PARALLEL TO EACH OTHER.
IT WILL SERVE NO JUSTICE PURPOSE EXCEPT TO PUNISH US.
I ASSURE YOUR HONOR THAT when I DIDN'T APPEAR, IT WAS UNINTENTIONAL. I KNOW THAT I HAVE TO DO WHAT the JUDGE SAYS IF I APPEAR in the JURISDICTION. I'VE BEEN a LAWYER ALMOST 39 YEARS.
AND I ASSURE YOUR HONOR THAT BEFORE, when I DIDN'T SHOW UP, IT WAS NOT JUST AN IMPETUOUS ACT.
I DID NOT BELIEVE THAT IF I GOT on THAT PLANE THAT I WOULD ARRIVE in the DISTRICT.
THE COURT: WE HAVE GONE ALL OVER THAT.
MR. BRUNWASSER: ALL RIGHT.
WELL, IT'S UNFAIR, YOUR HONOR, and IT'S CREATING a PROBLEM WITH JEFF -- HE'S CONCERNED ABOUT HIS OWN REPUTATION DOWN HERE. HE'S AFRAID IF I LOSE THE CASE, THAT IT'S GOING TO REFLECT on HIM and HE'S a YOUNG MAN JUST STARTING OUT in HIS CAREER.
AND THAT'S a GOOD POINT: IT ISN'T FAIR for HIM, YOUR HONOR, and IT ISN'T FAIR TO MR. GIBSON, and IT SERVES NO JUSTICE PURPOSE.
THE COURT: ARE YOU READY TO CROSS-EXAMINE the WITNESS?
MR. BRUNWASSER: WELL, I WOULD RATHER, YOUR HONOR -- IT IS NOW FIVE AFTER 4:00; I WOULD RATHER HAVE the MATTER POSTPONED and GET AN EXPEDITED COPY of THE TRANSCRIPT and HAVE CROSS-EXAMINATION START at ANOTHER DAY.
THAT'S WHAT I'M SUGGESTING BECAUSE I MAY NOT FINISH WITH the WITNESS, and I AM on the 5:50 FLIGHT; and I KNOW YOUR HONOR WOULDN'T WANT ME TO MISS the PLANE.
ON the OTHER HAND, I DON'T WANT TO SHORTEN MY CROSS-EXAMINATION in ORDER TO CATCH IT; SO I AM SORT of in the MIDDLE.
SO I WOULD ASK YOUR HONOR TO ADJOURN THIS UNTIL WE CAN GET a COPY of the TRANSCRIPT, and THEN MY CROSS-EXAMINATION WILL BE MORE EFFICIENT.
MEANWHILE, I AM ASKING YOUR HONOR TO DIRECT MR. SHMANDA TO GIVE US the MANIFEST for the WHOLE TRAIN and ANY OTHER EXCULPATORY PAPERS, MEANING I NEED THAT MANIFEST TO CROSS-EXAMINE.
AS I SAID TO YOUR HONOR, IF the MANIFEST SHOWS EVERY BODY HAD the SAME SO-CALLED "PROFILE," I KNOW YOUR HONOR WOULD NOT RULE AGAINST US.
BUT I CAN'T PROVE IT; SO SINCE WE ARE GOING TO HAVE TO GET THAT INFORMATION ANYWAY and SINCE MR. SAUVE WOULD PROBABLY BE CALLED BACK ANYWAY, NOTHING IS GOING TO BE GAINED BY JUST GOING AHEAD.
I WANT YOUR HONOR TO DIRECT MR. SHMANDA TO FURNISH ME PROMPTLY a COPY of THE MANIFEST.
I WILL GIVE YOUR HONOR MY WORD I WILL READ IT and EVALUATE IT and ATTEMPT TO EFFECTIVELY CROSS-EXAMINE the WITNESS.
THE COURT: THIS IS REALLY NOT a VERY COMPLICATED FACTUAL SITUATION. I WOULD FEEL THAT a LAWYER of YOUR ABILITY and EXPERIENCE WOULD HAVE NO DIFFICULTY CROSS-EXAMINING OFFICER SAUVE.
SO WOULD YOU BE GOOD ENOUGH TO PROCEED.
MR. BRUNWASSER: I WOULD JUST RESPECTFULLY RESPOND.
WITHOUT the DOCUMENTS ABOUT which HE SPOKE EX PARTE, HOW CAN I CROSS-EXAMINE HIM EFFECTIVELY EVEN IF I WAS the GREATEST LAWYER in the WORLD?
HE SAID, "I LOOKED at a PAPER CONTAINING MANY, MANY NAMES and I DIDN'T HAVE THAT PAPER."
THE COURT: IT HAPPENS in THIS COURTHOUSE EVERY DAY.
MR. BRUNWASSER: WELL, YOUR HONOR, IF IT DOES, I RESPECTFULLY SUGGEST THAT THE PROCEDURE SHOULD CHANGE.
I HOPE YOUR HONOR WON'T TAKE THAT as a FRESH REMARK, BUT IT IS CONTRARY TO WHAT I WAS TAUGHT in SCHOOL and CONTRARY TO MY EXPERIENCE as a LAWYER.
I HAVE PRACTICED, YOUR HONOR, ALL OVER the COUNTRY, 13 DIFFERENT JURISDICTIONS; and . . .
THE COURT: WELL, WHAT I WOULD LIKE TO HAVE YOU DO IS TO PRACTICE in THIS JURISDICTION BY CROSS-EXAMINING THIS WITNESS WHILE WE ARE CONDUCTING THIS SUPPRESSION HEARING.
MR. BRUNWASSER: ALL RIGHT.
IF YOUR HONOR PUTS IT LIKE THAT, I HAVE NO CHOICE.
THE COURT: THANK YOU, SIR.
MR. JACOBOVITZ: MAY I BE EXCUSED, YOUR HONOR, for the VERDICT?
THE COURT: YES, SIR.
MR. JACOBOVITZ: THANK YOU.
THE COURT: THAT'S NOT PERMANENT THOUGH.
MR. JACOBOVITZ: I UNDERSTAND THAT, YOUR HONOR.
[MR. JACOBOVITZ LEAVES the COURTROOM.]
MR. SHMANDA: YOUR HONOR, COULDN'T WE HAVE JUST a BRIEF RECESS. I, of COURSE, WILL NOT SPEAK TO the WITNESS.
I DO HAVE a TRIAL STARTING NEXT WEEK, and THESE ARE JUST NORMAL LAST-MINUTE LOGISTICS.
THE COURT: ALL RIGHT.
MR. SHMANDA: THAT WILL ALSO GIVE COUNSEL AN OPPORTUNITY TO READ THIS OFFICER'S THREE-PAGE REPORT.
THE COURT: WELL, WE WILL TAKE 10 MINUTES.
MR. BRUNWASSER: MAY I BE EXCUSED TO GET a CUP of COFFEE, YOUR HONOR?
THE COURT: WE WILL TAKE a 10-MINUTE RECESS.
MR. BRUNWASSER: ALL RIGHT.
MR. SHMANDA: THANK YOU VERY MUCH, YOUR HONOR.
[THEREUPON, the COURT RECESSED at 4:08 P.M.]
ORDER - November 24, 1987, Filed
For the reasons set forth in the accompanying Memorandum Opinion, it hereby is
ORDERED, that permission for Allen N. Brunwasser to appear in this case pro hac vice is withdrawn. Consistent therewith, and also for the reasons stated in the accompanying Memorandum Opinion, it hereby further is
ORDERED, that the oral motion of Jeffrey Jacobovitz for leave to withdraw is denied. The Court's Courtroom Deputy shall contact Mr. Jacobovitz promptly with the objective of moving towards a speedy resolution of this case.