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Law360 (May 29, 2020, 10:06 PM EDT ) A California federal judge questioned whether counsel for Michael Avenatti was able to handle his criminal defense amid the COVID-19 pandemic, zeroing in on the attorney's remarks in a recent status report that his ability to prepare for trial has been "deeply impacted."
U.S. District Judge James V. Selna said in a filing Thursday ahead of a June 2 status conference that Avenatti's attorney, H. Dean Steward, raised "many legitimate concerns" about going ahead with a trial amid the pandemic, but expressed his own concern with some of Steward's remarks, including Steward's comments about his own age, health and productivity.
"There is at least the suggestion," Judge Selna said, "that [Steward] may not be able to perform his duties."
The judge also said that he was "troubled" by a report from Steward that government attorneys produced more than 600,000 pages of documents. He questioned why discovery could not be loaded onto a laptop without communication capabilities so that Avenatti, who has been released from detention due to the COVID-19 outbreak, would be able to review discovery.
He added that it was also "readily apparent" that the August trial date would need to be pushed back.
Avenatti is charged in California with embezzling client funds. He was found guilty in a separate New York case in February of extorting Nike, and he is facing another federal prosecution in New York for allegedly stealing hundreds of thousands of dollars owed to high-profile client Stormy Daniels from her book deal.
Since being released, Avenatti wasted no time before calling into a status conference for the case.
In the California case, Steward filed a status report on Wednesday saying that because he is 68 and has diabetes, which both put him at increased risk for COVID-19, he has not been able to spend "significant time" with Avenatti, who has limited access to a computer and cannot use Zoom or other conferencing options.
Although the pair are in regular contact by phone, Steward said, this is not a substitute for in-person meetings when it comes to reviewing the "extensive" discovery, "which the government continues to produce with no end in sight." The report indicated that the government has produced over 1 million total pages of discovery.
Steward has also not been able to access certain IRS documents because the pandemic has prevented him from visiting an IRS office in person, the status report said.
In addition to these and other logistical concerns, Steward discussed the difficulty of performing his job duties in this stressful time.
"Unfortunately, even skilled and experienced trial attorneys would find it impossible to maintain the necessary sustained focus in the current environment," he wrote while advocating for a later trial date.
"During a deadly pandemic, every step an attorney takes, every pen he or she picks up, every person that wants to converse, and every cough he or she hears, could mean infection with a deadly virus," Steward continued. "This concern is even more heightened as a result of undersigned counsel's age and health condition (68 years old with diabetes), which places him in a high risk category for contracting the virus and suffering serious consequences."
Such "distractions" and the "divided attention" that resulted, Steward said, should be noted in order to preserve Avenatti's rights.
In his Thursday order, Judge Selna said he plans to ask in the upcoming status hearing whether Steward believes he is able to provide a "constitutionally-required" quality of representation, and said he expected Steward to alert him if, at any point, he did not believe himself capable of acting as effective counsel.
Representatives for the U.S. Attorney's Office handling the prosecution of Avenatti told Law360 that it will address the concerns raised by the judge at the upcoming hearing and declined to comment further.
Steward did not respond to a request for comment.
Avenatti is represented by H. Dean Steward.
The government is represented by Julian L. Andre and Brett A. Sagel of the U.S. Attorney's Office for the Central District of California.
The case is U.S. v. Avenatti, case number 8:19-cr-00061, in the U.S. District Court for the Central District of California.
--Additional reporting by Lauren Berg, Daniel Siegal, Stewart Bishop and Pete Brush. Editing by Haylee Pearl.
For a reprint of this article, please contact reprints@law360.com.
