Henry J. Bemporad, a federal magistrate in San Antonio and currently the tail wagging the dog in the federal racketeering case against former Bandidos president Jeff Pike, finally got around to unsealing his most recent decree this morning five days after he wrote and filed it.
Virtually all of the case is sealed because prosecutors fear the people will riot if they find out what “federal justice” now means. America is now deep into a season of riots.
Bemporad, at the urging of an Assistant United States Attorney Eric Joseph Fuchs, fired Pike’s lawyer of choice, a devilishly clever fellow named Attorney Kent A. Schaffer, last Thursday. Schaffer’s associates James Max Kennedy and Cynthia Hujar Orr were also banned from defending Pike. Of course, no one was supposed to know immediately. An apparent clerical error made the terminations public knowledge last Friday.
If Bemporad’s decision hold’s up, it will give federal prosecutors everywhere an argument for being able to pick their opponents in court. Schaffer has a reputation as a very smart pit bull. Fuchs has hardly had time to develop any reputation since passing the bar.
Fuchs argument for disqualifying his opponents is that two of Schaffer’s unnamed former clients have been enlisted to testify against Pike. They were allegedly Bandidos. They were allegedly represented by Schaffer for something – what is a secret – and they have already confessed to Fuchs what Schaffer said to them. To the lay mind, that would seem to indicate that they breached their half of the confidentiality agreement that existed between themselves and their lawyer first. According to Fuchs however, that confidentiality can only be breached by Schaffer if he, or anyone he knows, attempts to cross examine the two snitches.
Fuchs alleges that Schaffer was club council for the Bandidos and that unproved allegation disqualifies Schaffer and other club lawyers from representing any defendant in a motorcycle club RICO case that involves snitches who the club lawyer might have previously advised. Practically, the decision unsealed today strips Pike of his constitutional right to the lawyer of his choice. The Supreme Court has frequently reiterated that right. A decade ago, the late Justice Antonin Scalia succinctly wrote: “The Sixth Amendment provides that ‘in all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.’ We have previously held that an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him.”
In a case that is mostly comprised of prosecutorial games, Fuchs just convinced a magistrate to give him veto power over his legal opponent. Bemporad, a former federal defender, has also just fined Pike 13 months of legal fees without due process. And not least, Bemporad just further delayed the resolution of a case that should probably have never been brought.
The magistrate explained his decision mostly with cut and paste boiler plate like this:
“Mr. Shaffer and Mr. Kennedy must be disqualified from representing Defendant Pike in this case. ‘The Sixth Amendment guarantees the defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds. But the Sixth Amendment also guarantees representation that is free from conflicts of interest.’ United States v.Sanchez Guerrero, While ‘there is a presumption in favor of a defendant’s counsel of choice … that presumption may be overcome by an actual conflict of interest, or by a showing of a serious potential for conflict. This is true even when a defendant expresses a desire to waive the potential conflict.’”
“An ‘actual conflict…is a conflict of interest that adversely affects counsel’s performance.’ United States v. Preston ‘[A]n attorney’s performance is adversely affected by a conflict of interest where counsel could (pursue) a plausible alternative defense strategy or tactic but (chooses) not to do so because of the conflict.’ United States v. Apodaca.”
In other words, Bemporad argues that he is saving Pike from having the best criminal lawyer in Houston defend him.
No wonder the magistrate hid his decision for five days before letting the public, and the legal community, see it.