I ran across a rather strange case in the Seventh Circuit involving several defendants on trial for various tax, mail and wire fraud counts. This was far from a routine tax case. To say the case was complex is kind of an understatement—there were over 1 million documents related to the trial.

During the middle of the trial, one of the court-appointed defense attorneys contacted the court and said he was ill. Rather than stopping the trial, the District Court took the highly unusual move of summoning the “Duty Attorney” for the Federal Public Defender’s office and appointed that attorney to “fill-in” for defense counsel, while the government conducted direct examination of a witness. The defendant objected to the court using a “fill-in” counsel, and after a few hours even the government objected, warning the court that it hoped any Sixth Amendment issue would be curable by holding the trial in recess until the original defense attorney recovered from illness.

All three members of the Seventh Circuit panel hearing the case were or are trial judges, and you can tell from their tone that they are genuinely concerned about trial courts grabbing a public defender that just happens to be in the building to use as “fill-in” counsel in an effort to keep the trial moving. Whether that concern will lead to acquittal in long and expensive case to prosecute is a different matter.

The case is United States v. Vallone, et al. The oral arguments can be heard here.