Lincoln judge allows attorneys to withdraw from teen murder case, delaying trial

The attorneys for a Lincoln teenager who had been set to go to trial for murder this month for a fatal stabbing in 2024 asked to withdraw from the case, saying they couldn't competently represent him on the court's timeline. 

At a hearing over two days this week, attorneys Justin Kalemkiarian and Eric Hagen asked Lancaster County District Judge Ryan Post for a three-month continuance of Stephen "Max" D'Amore's trial for the first-degree murder of Xavian Sawyer.

"This case is as serious as it gets," the attorneys said in a written filing Wednesday to add to their oral motion the day before to withdraw as counsel, citing competency. "Further compounding the seriousness of the matter, defendant is only 16 years old."

Video from shortly before midnight May 18, 2024, showed two people in a pushing match. Sawyer arrived and squared up with D'Amore, then 14. Sawyer swung once, then D'Amore swung back, striking him twice in the chest with a knife. Sawyer, 16, died at the hospital.

At Tuesday's hearing, Hagen pointed to an appeal in the case after Post denied a motion to transfer the case to juvenile court. The decision ultimately was affirmed by the Nebraska Supreme Court in March.

Post asked how that stopped them from doing discovery. 

Hagen said the prosecutor said she wouldn't consider any plea offers once they started deposing witnesses. Then, on May 19 this year, it became clear they had come to an impasse on plea negotiations in the case.

The defense argues it was self-defense.

"That was a month ago. How many people have you deposed in the last month?" the judge asked him.

"We have not deposed any," Hagen said. 

Though he said, efforts have been made to set dates to do them.

"A lot's been made about defense dragging its feet. ... One way or another we're not prepared. But I don't believe that's the case, and I don't believe it's one-sided either," Hagen said.

He said they got more than 4,000 files in late June from Deputy Lancaster County Attorney Amy Goodro, a point she said wasn't accurate, and a new report Tuesday regarding an interview with the person who supplied the knife.

Hagen said Kalemkiarian has another trial starting next week. 

That's his choice, Post said.

"Why can't you be prepared in the next few weeks?" the judge pressed.

Hagen again pointed to the more than 4,000 new files in the last two weeks and the new report and said one of their experts isn't even available.

"I don't know what more I can say," he said. 

Hagen said if the trial goes forward in two weeks with them as counsel and D'Amore is convicted, "I don't see how that stands under constitutional scrutiny."

Post said to this point, he's heard they made a series of choices not to do a number of things.

"I want to know what you actually did?" he asked.

Hagen said after the juvenile transfer hearing, they pursued the appeal, which took more than a year. At that point, they didn't know what the result would be.

Kalemkiarian said they don't want a 16-year-old boy to go to prison because he and Hagen "made bad decisions."

"It's easy to armchair quarterback, but the reality is if this young man goes down for first-degree murder with both counsel saying 'We're not ready to go,' I think there's a substantial likelihood this comes back (on appeal)," he said.

Kalemkiarian said he understood the court's frustration and he's sorry.

Goodro, the lead prosecutor, objected to a continuance, disputing handing over more than 4,000 "new files." She said that's the updated total of files in the folder including those they'd been given in 2024 plus some duplicates or photos from different angles.

She said the only new information was the interview (though defense attorneys had known who had supplied the knife since 2024 through discovery) and photos of items in evidence, which the defense could have gone to see themselves. 

"It's the state's position that the defense's lack of preparation during this time is part of their overall trial strategy to delay as long as possible to keep Mr. D'Amore out of custody, literally buying him more time to be a teenager," Goodro said.

In the end, Post found that the defense had not shown good cause for a continuance. 

He said it was still a week and a half from trial "and defense has had nearly two years to prepare." The appeal came back in March, and they've known since at least April 8 it was set for trial in July. 

"The defense still has many days to prepare with multiple lawyers on the case. How they choose to prepare for trial is up to them in consultation with their client," Post said.

After a break, Kalemkiarian and Hagen asked the judge to allow them to withdraw, citing a Nebraska court rule of professional conduct that says a lawyer must withdraw "if the representation will result in violation of the Rules of Professional Conduct or other law."

At a noon hearing Wednesday, Post said the court rule cited isn't normally the basis cited to withdraw from a case.

"That's a very significant representation to make," he said.

Kalemkiarian said he understood and didn't make it lightly. 

"We're now putting our law licenses at issue here," he said.

Such a motion will prompt a report to the Nebraska Supreme Court's Council for Discipline. 

Kalemkiarian said, for the record, the basis for the motion is "basically solely based on the timeline." If this court were to continue the case, they would withdraw it.

"Because I think we can, given proper time, more than adequately and competently represent Mr. D'Amore," he said. 

Post granted the motion to withdraw, which means a delay to the trial. A hearing has been set in two weeks to see how D'Amore wants to proceed.