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Revulsion Is No Basis For Lawyer to Quit Defense, Panel Rules

An attorney's revulsion against evidence his client sexually abused a young girl did not constitute a "compelling" reason for his attempt to withdraw as counsel, a federal appeals court ruled yesterday.

Kelley E. Fischer of Binghampton was ready to defend Dean Sacco against charges of sex trafficking a young girl and of buying her to create child pornography until two weeks before trial in 2008, when he received evidence from prosecutors that he said changed his mind—a used condom found in Mr. Sacco's possession that bore the victim's DNA.

That single bit of evidence, Mr. Fischer said in an April 24 affirmation to Northern District Judge Thomas J. McAvoy asking to withdraw, caused an immediate shift in his "moral and technical perspective on this case."

At a hearing the next day, Mr. Fischer told the judge that he had to withdraw because his personal feelings might affect his ability to effectively represent his client, "particularly with respect" to the victim.

Judge McAvoy denied the motion and the jury, after hearing horrific evidence of abuse and exploitation that began when the child, S.O., was 10 years old, convicted Mr. Sacco and his tenant, the girl's mother, Linda O'Connor, of sex trafficking of a child. Mr. Sacco was also convicted of buying a child for the purpose of producing child pornography, producing and possessing child pornography and interstate travel with intent to engage in illicit sexual conduct with a minor. He was sentenced to life in prison. Ms. O'Connor was also convicted of selling a child for the purpose of producing child pornography and producing child pornography. She received a 30-year sentence.

Yesterday, the Second Circuit rejected every one of the defendant's claims on appeal, including Mr. Sacco's allegation that Judge McAvoy's refusal to allow Mr. Fischer to withdraw deprived him of a fair trial.

Judges Amalya Kearse, Rosemary Pooler and Peter Hall heard the appeal in , 08-5968-cr, on Oct. 13, 2010. Judge Kearse wrote the court's 47-page opinion.

Mr. Fischer was appointed to represent Mr. Sacco in February 2008. He said in his affirmation that his preparation for trial was almost complete when he submitted his motion to withdraw and affirmation under seal on April 24.

At a hearing the following day, Mr. Fischer cited Ethical Consideration EC2-30 of what was then the New York Lawyer's Code of Professional Responsibility, "which basically says that if the intensity of an attorney's personal feelings might affect—may affect that attorney's ability to effectively represent his client—then the attorney should seek to withdraw.

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