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Federal court judge gives Utah defendant an earful

Published September 28, 2012 11:17 pm

Man is told "where you've done something wrong ... you'll lose."
This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Joseph F. Porter may have learned more about the federal justice system than he wanted to know after he asked a magistrate judge this week to assign him a new attorney.

The request sparked a pointed speech from U.S. District Court Magistrate Judge Paul Warner about defendants' odds of prevailing in criminal court cases.

"If you take a case to trial, where you've done something wrong ... you'll lose," Warner told Porter. "That's how it works. Ninety-five percent of the time, they lose. Maybe 98 percent of the time, they lose. You know why they lose? Because they're guilty."

A grand jury indicted Porter earlier this year for bank fraud and mail theft, and he is awaiting trial in the Davis County jail.

Porter wrote a letter to the court asking for a hearing to address his representation, saying there had been a "complete breakdown in communication and irreconcilable differences" with attorney Robert Steele, who works for the Federal Defender's Office.

"I feel I can't trust any lawyer out of the federal defender," Porter wrote. He said Steele represented him and lost a 2007 case involving a firearm.

Porter is now being prosecuted for allegedly taking checks from someone else's mail and depositing them in his bank account.

The request landed in Warner's courtroom, and what follows is from an audio recording from the Tuesday hearing.

Steele told Warner that Porter wanted new counsel because he was "very concerned" about the prior lost case.

"There's no personal animosity at all, but he's just worried about that," Steele said.

Warner then explained to Porter that no one likes to lose, although "it's possible for even the best [attorneys] to lose."

"More often than not, unless you have the facts, you're not going to win the case," Warner added. "It's just that simple."

But Porter was unswayed.

"I feel that I want another lawyer," he told Warner. "If I'm going to go all the way here, I'd rather have a different lawyer to go all the way with. I don't want to lose twice with the same lawyer."

That vexed the judge.

"I'm going to give you a new lawyer, Mr. Porter," Warner told him. "But let me explain something to you. You don't deserve one.

"No?" Porter asked. "Why is that?"

Warner said it was a "great" question.

"I said you don't deserve a new lawyer, he's fine, he's competent, he's doing the job," Warner said of Steele. "The fact that he lost a case doesn't mean a thing. ... It has a lot more to do with the facts and what you did than what he could do to help you."

Warner said Steele was one of the most competent, hardworking, ethical and caring defenders in town.

"You were fortunate to have him, even if you lost," the judge said. "He didn't lose, you did."

Porter got in one word: "No."

"Yes," the judge cut in. "That's how it works. You lost because of what you did."

Porter again objected with a single, "No."

"No? Well, you don't have to agree with me," Warner said. "But you keep denying it, you're not going to get a new lawyer. So what do you think about that? You want to keep saying no to me, Mr. Porter? Say it one more time and you're stuck with Mr. Steele for the duration."

He then added: "Go ahead, get smart-alecky with me. Just say no one more time. You want to say it?"

When Porter apparently demurred, Warner said Porter would get a new attorney to ensure he didn't have any excuses "when you lose this time."

"And you will lose this time because that's the nature of this thing," the judge said, while adding he did not know whether Porter was guilty or not.

Warner finished by saying it was Porter's "last bite of the apple" and he would not "keep playing this business of rotating attorneys, because you don't have to like or trust them."

Bravo, said Paul Cassell, a former federal court judge and now professor at the University of Utah's S. J. Quinney School of Law.

Ethical rules for judges "don't bar plain speaking," he said. "In fact, if anything, the rules encourage judges to make clear to the defendant what is going on in the criminal justice process.

"It is all too easy to say the only reason I got convicted is because I had a bad defense attorney," Cassell said. "But as Judge Warner was pointing out, it usually has nothing to do with the defense attorney, but with what the defendant has done."

Judges also have a duty to make sure a request for a new attorney isn't simply a "time-wasting tactic or waste of taxpayer dollars," he said. "Any time you switch lawyers in the middle of a case, it creates a delay."

brooke@sltrib.com