(C) Daily Kos This story was originally published by Daily Kos and is unaltered. . . . . . . . . . . Missed News: Newsweek "Aileen Cannon Is Heading for Legal Trouble." [1] ['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.'] Date: 2023-10-06 I was wondering what Judge Aileen Cannon was up to, and I found this on Newsweek: Aileen Cannon Is Heading for Legal Trouble Do tell? The judge overseeing the Mar-a-Lago classified documents case has set special hearings for Donald Trump's two co-defendants—but could now be facing an appeal over the lack of written reasons for holding the hearings. The hearings come one year after Judge Aileen Cannon, a Trump appointee, was sharply criticized by an appeal court for her handling of a major part of the case against the former president. Several legal experts told Newsweek that Cannon was out of her depth in the Trump case, with one New York University professor comparing her to a contestant on a cooking show who has previously only ever baked a pop tart. Okay then. As I repeatedly warned any readers on Daily Kos, I am no lawyer. My so called “legal knowledge” comes form watching Law and Order episodes. But I will try to explain part of what is going on here. Cannon is going to hold a “Garcia Hearing.” Now, I went to Lawfare to find an explanation of what a Garcia hearing is: On Aug. 1, the Justice Department indicted Donald Trump in the U.S. District Court for the District of Columbia. The next day, the Justice Department moved for a so-called Garcia hearing in the Southern District of Florida. A Garcia hearing is a hearing to ensure that a criminal defendant has adequate notice of his lawyer’s conflicts of interest. Waltine Nauta, Trump’s co-defendant in the Southern District of Florida, is represented by a lawyer named Stanley Woodward, Jr. According to the Justice Department’s motion, Woodward previously represented the person identified in the indictment as “Trump Employee 4” and is currently representing two other potential witnesses, “Witness 1” and “Witness 2.” (A little Googling makes it pretty easy to conjecture who these people are, but their identities have never been publicly revealed.) If a lawyer, representing a client in a criminal case, has to cross-examine another one of his clients, an obvious conflict of interest arises. To represent his criminal client vigorously, he might have to make the witness look bad—but he can’t do that, because he represents the witness too. Because criminal defendants have a Sixth Amendment right to unconflicted counsel, Woodward’s representation of Nauta, while Woodward simultaneously represents witnesses in the same case, might yield a Sixth Amendment violation. Woodward doesn’t represent Trump Employee 4 anymore, but his prior representation of Trump Employee 4 still poses a problem. Woodward presumably engaged in attorney-client privileged communications with Trump Employee 4. Even though he no longer represents Trump Employee 4, he is still obliged to keep those communications confidential. So if he cross-examines Trump Employee 4, he’ll constantly have to calculate whether his questions are influenced by privileged information, and he might hold back if there’s a risk he’ll be accused of an ethical violation by his former client. This is improper because he should be thinking about only one thing—zealous representation of his current client, Nauta. The Justice Department can’t straight-up ask for Woodward to be disqualified, however, because that would raise a different Sixth Amendment issue. Clients, within reason, have a right to choose their own lawyers. If Nauta wants Woodward to represent him, notwithstanding these conflicts, it’s not the Justice Department’s job to get in the way. Courts have devised a procedure to deal with this problem. In the Eleventh Circuit, this procedure is known as a Garcia hearing. Basically, the court holds a hearing in which it ensures the defendant is aware of the risks of a conflicted lawyer. The court can even appoint independent lawyers to represent the defendant and the witnesses for the purpose of explaining the risks of a conflicted lawyer. The case doesn’t proceed unless the defendant is fully apprised of the risks of having a conflicted lawyer and elects to proceed with that lawyer anyway. Basically, Jack Smith doesn’t want to lose this case based upon a violation of Nauta’s Sixth Amendment rights. Gotcha. And the judge is supposed to explain to Nauta, “Your lawyer has a conflict. Do you want another lawyer?” There is just one little problem with this scheduled hearing. From what I can tell, judges are supposed to put in writing WHAT THE HEARING IS ABOUT! Makes sense to me. Too bad Judge Aileen Cannon has NOT done this! And according to legal analysts, this is a big basic legal No No. And this violation of the basics of a Garcia hearing is appealable to the 11th Circuit Court of Appeals. Worse, this comes almost one year from the last time that the 11th Circuit smacked Cannon around for her attempt to appoint a special master to review all the classified documents in this case. In a biting analysis on the online creative writing site, Substack, lecturer and former federal prosecutor Joyce Vance said that Cannon could be facing similar criticism for her lack of reasoning in the conflict of interest case. "She hasn't even bothered to draft a written opinion to clarify her thinking, at least so far. She may face a similar fate with the Court of Appeals this year if prosecutors take another appeal to Atlanta," Vance wrote. Peter M. Shane, adjunct professor of law at New York University, told Newsweek that Cannon does not have enough trial experience to handle a case of this magnitude. "Cannon's initial rulings were so egregiously wrong that they raised some reasonable doubts as to her impartiality. But I am equally troubled that one of the most potentially consequential criminal trials in U.S. history is in the hands of a federal judge with just a handful of criminal trials under her belt, so to speak, none of them especially complex,' he said. "I wouldn't want to enter the final rounds of the Great British Baking Show if my experience was limited to successfully toasting Pop Tarts. But the statute on disqualification does not mention inexperience as a basis for removal," Shane added. Emphasis is mine. The article goes on to point out if there is another appeal to the 11th Circuit over this issue, the government has every right to ask that the case be assigned to another judge. The argument could be made that Cannon is not only biased but she is also just not qualified to handle this type of case. And given her previous track record, it’s not hard a difficult argument to make. 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