By Brian Dowling

Law360 (December 7, 2020, 7:26 PM EST ) Responding to a judge's skepticism about their bid to delay trial during the pandemic, lawyers in the "Varsity Blues" college admissions case said witnesses can't be adequately prepared via Zoom and warned that any move by the court to have older counsel withdraw from the case would raise constitutional and appellate issues.

The arguments to delay trial from February to September 2021 came in a joint filing Friday by prosecutors and counsel for defendants Gamal Abdelaziz, Robert Zangrillo, John Wilson and Homayoun Zadeh addressing a directive from U.S. District Judge Nathaniel M. Gorton that they be ready to proceed with adequate safety precautions or else consider withdrawing from the high-profile case.

In that notice, the judge demanded an explanation as to why videoconferencing isn't sufficient to prepare out-of-state witnesses and asked how many of the attorneys in the case were older than 65. The attorneys representing the government and four defendants said Friday that multiple lawyers in the case are older than 65, including attorneys for two defendants, as well as likely several witnesses and their counsel.

The response to Judge Gorton also said attorneys on both sides of the case or their family members have conditions that put them at a higher risk of severe illness or death from COVID-19. 

"The defendants respectfully state that they are not willing to have any of their attorneys withdraw from the case to accommodate an earlier trial date," the attorneys wrote.

Further, there would be "serious implications for the defendants' Sixth Amendment rights" if the court forces an early date anyway and any attorneys withdraw due to advanced age or underlying medical conditions.

The filing cited the U.S. Supreme Court's 2006 decision in U.S. v Gonzalez-Lopez , penned by the late Justice Antonin Scalia, that called it a "complete" deprivation of the right to counsel of one's choice when "a defendant is erroneously prevented from being represented by the lawyer he wants."

"To the extent possible, the government seeks to avoid creating additional appellate issues in this regard," Friday's filing said.

Attorneys in the case say the proposal for a September trial date was the product of extensive discussions and added that a fall date is likely to hold. They acknowledged that such a date rests on the expectation that a vaccine will be widely available by late spring 2021, and that the country would see something "approaching normal" by the third or fourth quarter of the year.

"It is reasonable to assume that the parties (and witnesses) will be able to be fully vaccinated by the summer," the attorneys said, "thus allowing one or two months for counsel to meet with witnesses and prepare for a September trial."

Prosecutors and defense counsel say the court's interest in remotely preparing witnesses for trial is inadequate in most cases, since so much of the testimony will involve detailed exhibits, documents and audio recordings.

"Videoconferencing is not an adequate substitute for in-person preparation of such witnesses," the filing said. "It cannot, for instance, replace the nonverbal cues between lawyers and clients (or lawyers and co-counsel), which can be just as important as the words spoken, but are missed when communicating via video."

And all of the witnesses expected to need in-depth preparation reside outside of Massachusetts, according to the filing.

"No case has, to date, required preparing the majority of trial witnesses via videoconference, as this one would," the filing said.

Representatives for the defendants were not immediately available for further comment on Monday. A spokesperson for the U.S. Attorney's office declined to comment.

The government is represented by Justin D. O'Connell, Karin M. Bell, Kristen A. Kearney, Leslie A. Wright, Stephen E. Frank and Carol Head from the U.S. Attorney's Office for the District of Massachusetts.

Gamal Abdelaziz is represented by Brian T. Kelly, Joshua C. Sharp and Lauren M. Maynard of Nixon Peabody LLP, as well as Robert Sheketoff.

Robert Zangrillo is represented by Martin G. Weinberg of Law Offices of Martin G. Weinberg PC and Matthew Schwartz of Boies Schiller Flexner LLP.

John Wilson is represented by Michael Kendall and Yakov Malkiel of White & Case LLP, as well as Andrew E. Tomback of McLaughlin & Stern LLP.

Homayoun Zadeh is represented by Tracy A. Miner and Megan A. Siddal.

The case is U.S. v. Colburn et al., case number 1:19-cr-10080, in the U.S. District Court for the District of Massachusetts.

--Editing by Alanna Weissman.

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