This is a complicated situation, not because of the intricate facts of the case, but simply the struggles to find an attorney that fits.  I have no doubt that Mr. Phillipe is an excellent attorney, but his attorney-client relationship with Mr. Krause was not a good fit.  It’s important to get an attorney that works with you and fits well. 

A10-1091        State of Minnesota, Respondent, vs. Jeffrey Arthur Krause, Appellant.

1.   After weighing the Mathews v. Eldridge, 424 U.S. 319, 335 (1976) factors, we hold that in a forfeiture-of-counsel evidentiary hearing, the defendant is entitled to due process protections, including adequate notice, the assistance of counsel, the ability to present evidence and to confront and cross-examine witnesses, an impartial decision maker, a decision on the record, and a full explanation for the decision.  Because appellant was denied the right to counsel at his evidentiary hearing, his procedural due process rights were violated.
2.   To avoid any conflicts of interest, if the defendant’s alleged conduct involves a physical assault or threat of harm against the appointed public defender, a lawyer unaffiliated with defendant’s counsel must be appointed to represent the defendant during the forfeiture-of-counsel evidentiary hearing.
3.   Because we conclude that the district court denied appellant his due process rights, we do not decide whether the district court erred in its ruling.  Instead, we remand the matter to the district court for an evidentiary hearing with due process protections to determine whether appellant engaged in “extremely serious misconduct” warranting forfeiture of the right to counsel.
4.   In order to guide the district court in its decision, we conclude that a credible threat of harm to an attorney or the attorney’s family may constitute “extremely serious misconduct” warranting forfeiture of the right to counsel.

Reversed in part and remanded.

By: Landon J. Ascheman, Esq.

(B) 612.217.0077 (C) 651.280.9533