III. Court Had Sua Sponte Duty But Failed to Adequately Inquire
A. Simultaneous Representation of Jointly Tried Codefendants
1. U.S. Court of Appeals Cases
1982: Smith v. Anderson
, 689 F.2d 59 (6th Cir. 1982). Counsel had conflict that
adversely affected representation and trial court failed to adequately inquire in robbery
case where counsel represented defendant and codefendant and informed the court
of conflicts. An attorney’s timely statement that conflict adheres in joint
representation is a grave representation requiring meticulous consideration. Thus, the
trial judge’s terse reply that he saw no conflict of interest in
joint representation of defendants charged with armed robbery was
not justified or sufficient response, even if defendant’s counsel could have
been more detailed in his expression of possible conflict. Here,
joint representation of defendants by counsel had adverse effect on defendant’s
right to representation. Defendant sat, against his will, at
same table with co-defendant, who admitted being in store when
it was robbed and who was implicated by all but one
res gestae witness. Defendant, in contrast, was implicated by only one,
and defendant claimed he was not at scene of robbery.
Counsel’s ability to bolster defendant’s defense suffered because of counsel’s inability to
highlight lesser number of witnesses adverse to defendant and the fewer
incriminating acts to which those witnesses testified.
2. U.S. District Court Cases
2002: United States v. Burraston, 178 F. Supp.2d 730
(W.D. Tex. 2002). District court suppressed the deposition testimony of
a witness cross-examined by the defendant’s conflicted lawyer. Lawyer
initially agreed to represent both codefendants in prosecution for
smuggling people across the US-Mexico border, but it was understood that
both would pay retainer fees and if conflict developed counsel would
continue to represent only the codefendant. Counsel informed the
Magistrate that a conflict potential was present. Following a detention
hearing, the defendant was unable to pay the retainer and announced that
he would get another lawyer. Before he could, the government deposed
four witnesses that were allegedly smuggled in by the defendants.
Counsel conducted the depositions for both defendants. During three of
them, the defendant raised no issue. During the last, he stated that the
lawyer did not represent him. Court held that the magistrate judge was
obligated to inquire into possible conflicts when counsel informed him
initially of the potential problem. In order to resolve the problem, the
District Court suppressed the one deposition the defendant had objected
to at the time because defendant had not been able to cross-examine
through unconflicted counsel.
3. State
Cases
2000: Lewis v. State, 757 A.2d 709 (Del. 2000). Trial court in burglary,
unlawful imprisonment, and conspiracy case erred in failing to inquire
into the propriety of joint representation prior to trial. Counsel
represented both the defendant and his codefendant in the same
proceedings. Both alleged mistaken identity and alibi as defense. In
sentencing, the codefendant admitted his guilt and stated that the
defendant was not with him. While a state rule required the judge to
inquire into potential conflicts of joint representation, the trial
judge simply noted that the codefendants had separate alibi defenses and
were represented by the same attorney in the context of deciding how
many total preemptory challenges to allow for the defense during the
jury selection process. The trial court never conducted an inquiry. The
Delaware Supreme Court held that automatic reversal was not required
absent a showing of an actual conflict and an adverse affect on
counsel’s representation. In this case, the evidence against the
codefendant was strong and the evidence against the defendant was weak.
The conflict this worked against the defendant in possible pleas
negotiations and trial itself. Any attempt to exploit the weakness of
the evidence against the defendant would necessarily enhance the
apparent strength of such evidence against the co-defendant. To the
extent that the strength of the state’s case against the codefendant
undermined the credibility of his alibi defense, it had the potential
for "spilling over" and undermining the jury’s assessment of defendant’s
alibi defense. Finally, the ability to argue for a lesser sentence for
defendant was compromised,
where the
codefendant had a gun during the crime and the
second assailant was unarmed.
State v. Bowen, 999 P.2d 286 (Kan. Ct. App. 2000). Trial
court failed to make an adequate inquiry into a conflict of interest in
counsel’s dual representation of codefendants in drug manufacture case.
Separate counsel were initially appointed, but then defendant retained
counsel. At defendant’s request, after initial resistance, counsel
agreed to also represent the codefendant without an additional retainer.
The state objected to the joint representation and asked for an
on-the-record waiver. Counsel indicated that each defendant had signed a
waiver but declined to produce it because "it was confidential." In a
post-trial hearing, the document was introduced into evidence. It
indicated only that the defendants "may be precluded from asserting
defenses which would be detrimental to one or the other of us" and an
agreement to share confidential information. It also indicated that
either defendant could prevent the other from accepting a plea offer.
Id. at 290. The trial court questioned counsel about the joint
representation but never addressed either defendant. During trial, the
defendant testified, contrary to counsel’s expectation. He admitted
attempting to manufacture methamphetamine and possessing drug
paraphernalia but denied that he had ever been successful in making the
drug. He also said that the codefendant was angry at him and not
involved. During closing, counsel argued that the defendant was honest
and admitted some guilt and that the codefendant committed no crime –
she was only loyal to the man she lived with. The defendant was
convicted of all charges. The court of appeals held that the trial court
did not conduct an adequate inquiry because the court questioned only
counsel. An in-depth hearing or inquiry should be conducted and should
result in one of three outcomes: (1) a determination that the risk of
conflict is too remote to warrant separate counsel; (2) the appointment
of separate counsel; or (3) a determination that defendants waive
the right to conflict-free representation. Here, none of those things happened. There was also no adequate
waiver of the conflict.
Mere assurances from a defense counsel, whose representation is in
question, cannot provide the basis for finding a waiver of such a
fundamental right. The trial court also did not examine the memorandum
of understanding. The fact [counsel] was unwilling to divulge the
memorandum establishing his joint representation should have heightened
concern over the sufficiency of the waiver. Even if the trial court had
examined the memorandum, it would not have been sufficient to establish
waiver. The memorandum did not establish the extent of [counsel’s]
consultation with [the defendant]. The memorandum also did not spell out
the possible consequences if certain defenses were
precluded.
Id. at 293. The defendant’s silence during the hearing did not
lessen the trial court’s duty to conduct an adequate inquiry. This case
also reveals an actual conflict because "[t]he memorandum of
understanding not only recognized the potential for conflict, it created
actual conflict by purporting to give each defendant a veto over a
course of action, a plea agreement, contemplated by the other."
Id. No showing of prejudice required "because the evil here is
what an advocate refrains from doing, ‘not only at trial
but also as to possible pretrial plea negotiations....’" Id.
(quoting Holloway, 435 U.S. at 490). While defendant also argues
that counsel’s argument showed actual conflict, the argument is weakened
because counsel argued based on the defendant’s testimony, which was
clearly designed to exonerate his codefendant. The court recognized
though that "[a]n assessment of the impact of the conflict on
[counsel’s] tactics and decisions, however, would require unguided
speculation" and the defendant only had to show actual conflict. "Where
an attorney owed a duty to two defendants, yet argued one defendant's
testimony incriminated him and cleared the other defendant, one may
reasonably conclude the attorney labored under an actual conflict."
Id. at 294.
1987: Matter of Jason S., 126 A.D.2d 951 (N.Y. App. Div. 1987). Trial court failed to
adequately inquire where counsel represented juvenile in delinquency
proceedings and also represented the other youths involved.
1984: People v. Green, 101 A.D.2d 1009 (N.Y. App. Div. 1984). Trial court failed
to adequately inquire in promoting gambling case where counsel
represented both codefendants in joint trial.
1983: People v. Mroczko, 672 P.2d 835 (Cal. 1983). Trial court erred in failing
to adequately inquire in murder case where counsel simultaneously
represented codefendant and another uncharged suspect. While the court
made some inquiry it was inadequate and essentially blocked by counsel’s
interjections to prevent the court from adequately advising the
defendant and obtaining a valid waiver.
B. Simultaneous Representation of Codefendants
in Plea Negotiations
1. U.S. Court of Appeals Cases
1990: Hoffman v. Leeke, 903 F.2d 280 (4th Cir.
1990). Counsel in accessory to murder case had conflict that adversely
affected representation where counsel jointly represented defendant and
two codefendants, who plead guilty and testified against defendant. The
trial court also failed to conduct an adequate inquiry and should have
rejected defendant’s purported waiver even if it was valid. Prior to
trial, the court inquired of the defendants jointly and individually
about the joint representation and counsel informed the court that he
saw no conflict. A mistrial was granted shortly after jury selection.
Prior to the new trial, a local co-counsel was retained. Each defendant
again expressed a desire to continue with the joint representation.
After that, both codefendants accepted plea agreements and agreed to
testify against defendant. The state repeatedly brought out during the
trial that counsel represented the codefendants. A codefendant was the
state’s primary witness. The co-counsel conducted the cross-examination.
The court reached "an inescapable and unavoidable conclusion" of an
actual conflict that adversely affected the representation. Id.
at 286. The conflict was "patent" where defendant "was in the
unacceptable position of having his own attorney help the state procure
a witness against him." Id. The adverse affects were clear in
that counsel negotiated a plea agreement for the codefendant that
required him to implicate the defendant and did not even inform the
defendant that the codefendant would testify against him. Counsel also
could not cross-examine the codefendant and attack what amounted to the
state’s entire case against him. "To cross-examine [the witness]
effectively, [counsel] would have had to question his own client's
truthfulness. This he could not do." Id. Finally, the adverse
affect was clear in the prosecutor’s repeated references during trial
that counsel also represented the codefendants. The adverse affect was
not lessened by the fact that it was the unconflicted cocounsel that
cross-examined the codefendant. Conflicted counsel was the lead counsel
who prepared the case without the cocounsel’s preparation. Conflicted
counsel also examined 14 of the 17 witnesses during the trial.
"Therefore, regardless of the effectiveness of [co-counsel’s] efforts at
trial, upon which we need not pass judgment, those efforts could not
have overcome the presumed prejudice arising from [lead counsel’s]
actual conflict of interest." Id. at 287. In discussing whether
defendant had waived the conflict, the court declared that "[n]ot even
the proffer of admittedly valid waivers of conflict-free counsel can
restrict a trial court’s power to insist on separate representation."
Id. at 288. Even if defendant made a valid waiver, "permitting
multiple representation in a case of this type" would be improper.
Id.
[W]e believe that a member of the public would be shocked to observe
a criminal trial in which the same attorney represented both the
defendant and the state's star witness, in which the attorney had cut
the deal that made that witness available to the state, and in which the
prosecutor pointed out the defense attorney's untenable position at
every opportunity.
Id. In any event, the court found no valid waiver because "[a]
defendant cannot knowingly and intelligently waive what he does not
know." Id. at 289. Here, no one explained the meaning of a
conflict of interest and defendant was not informed that his counsel had
advised the codefendant to testify against him. Counsel also insisted
that he saw no conflict. "If [counsel] was suffering from such myopia,
we cannot insist on greater appreciation of the risk of conflict on the
part of a layman whom [counsel] advised." Id. When it became
obvious that counsel had negotiated a plea bargain for the codefendant
that required him to testify, "the judge had a duty to conduct further
inquiry and secure a further waiver if [defendant] wished to make one."
Id.
2. State Cases
1986: People v. Mattison, 494 N.E.2d 1374 (N.Y. 1986). Trial court erred in
failing to adequately inquire once it became apparent during trial that
counsel had actual conflict in robbery case where a member of counsel’s
firm represented the codefendant and negotiated a plea for him to
testify against defendant.
C. Simultaneous
Representation of Codefendants in Severed Trials
1. U.S. Court of Appeals Cases
2004: McFarland v. Yukins, 356 F.3d 688 (6th
Cir. 2004). Drug conviction reversed due to the trial court’s failure to
adequately inquire into counsel’s conflict, counsel’s actual conflict of
interest that adversely effected his performance, and trial counsel’s
ineffectiveness in failing to present an adequate defense. The
petitioner and her daughter were charged as co-defendants where drugs
were found during a search of the home they shared. Both the defendant
and her daughter were represented by the same retained attorney. On the
day of the scheduled bench trial, counsel informed the court that the
defendant and co-defendant had concerns about sharing the same attorney
and that the evidence might well raise antagonistic defenses. The
petitioner also informed the court that she believed she needed a
separate attorney and that she had attempted to hire a different
attorney but could not afford one. Rather than appoint a second
attorney, the court severed the cases and ordered that they be tried in
front of different judges. The trials proceeded at pretty much the same
time. In the co-defendant’s trial, the state presented evidence that the
bedroom where most of the drugs were found belonged to the co-defendant.
A caller to the crack hotline also made complaints about a woman with
the co-defendant’s name. A confidential informant also identified the
co-defendant as the person discussing drugs. During the petitioner’s
trial, the state did not present any evidence that the co-defendant
lived in the house or in the bedroom where most of the drugs were found
and did not present any evidence that the crack hotline telephone
complaints and the confidential informant had both identified the
co-defendant. Defense counsel did not bring any of this information out
in cross-examination or present any evidence on its own. In closing
argument, the defense argued only that the drugs belonged to one of two
men that were also initially suspected. One of the men was present at
the time of the search, but did not have a key to the locked bedroom
where most of the drugs were found. The other man was not present at the
time of the search and was connected to the house only by some paperwork
identifying him as the co-defendant’s husband. Both the defendant and
co-defendant were convicted. They were represented on appeal by a
different attorney but still had the same attorney between them.
Appellate counsel did not raise any issue concerning ineffective
assistance of counsel or a conflict of interest. In state
post-conviction, the petitioner asserted ineffectiveness of trial
counsel and of appellate counsel for failing to argue that trial counsel
was ineffective but the state court denied on procedural grounds that
the petitioner did not show good cause for a failure to assert the issue
on direct appeal as required in state court. The court first found that
the petitioner was entitled to relief under Holloway v. Arkansas
because the petitioner objected to the joint representation and the
trial court was aware that there was an issue about who possessed the
drugs in the house shared by the defendant and her co-defendant
daughter. The trial court was also aware that the petitioner had
attempted to hire separate counsel, but was unable to afford a different
lawyer. Under the circumstances, the notice to the court of a concrete
conflict of interest was sufficient to bring the case within the
Holloway rule, which required automatic reversal due to the trial
court’s failure to inquire and to resolve the issue. The trial court’s
action in severing the trials did not resolve the issue because counsel
was still actively involved in the co-defendant’s trial when he
represented the petitioner. Although his actions in the petitioner’s
trial were not automatically before the trier of fact "in the
co-defendant’s case, still any evidence or argumentation developed
against [the co-defendant] would instantly be made available to the
prosecutor for use in [the co-defendant’s] case." Thus, if counsel had
attempted to exonerate the petitioner by showing that the co-defendant
controlled the bedroom where most of the drugs were found, counsel would
have compromised his duty to the co-defendant. Independent of the trial
court’s failure to inquire, reversal was also required because counsel
had an actual conflict of interest that adversely affected
representation and because counsel provided ineffective assistance of
counsel. The court found that, with respect to all three of these
arguments, the petitioner would have won on direct appeal had appellate
counsel adequately raised the issues. Appellate counsel was ineffective
in failing to assert these issues, which were clearly stronger than the
arguments made by counsel on direct appeal. The conflict issue was an
obvious one, and the petitioner was entitled to automatic reversal under
the rule in Holloway. Because appellate counsel also represented
the co-defendant, however, appellate counsel also had a conflict of
interest. The court found that appellate counsel’s ineffectiveness was
the cause for petitioner’s failure to assert ineffectiveness of trial
counsel on appeal. Thus, the petitioner had established cause and
prejudice for failing to assert these issues on appeal. Because the
state court never ruled on the actual conflict of interest and the
ineffective assistance claim under Strickland, the court reviewed
these claims de novo. The only state court decision on the
Holloway claim was the trial court’s decision. Under the AEDPA, the
court found that the trial court’s actions contradicted the clearly
established precedent of Holloway v. Arkansas because the state
court confronted a set of facts that were materially indistinguishable
from Holloway and yet arrived at a different result.
2003: Harris v. Carter, 337 F.3d 758 (6th Cir.
2003). The trial court failed to adequately inquire into the potential
conflict after being advised by counsel that he represented the
co-defendant, who was called to testify. The defendant and codefendant
were charged with offenses arising from a drive-by shooting and retained
the same attorney. Prior to trial, counsel did not foresee a conflict
because neither client was interested in a plea bargain in exchange for
testimony and they planned a common defense for a joint trial. The trial
court sua sponte severed the trial’s though. After the
co-defendant was convicted, but before his sentencing, he was called as
a witness in the defendant’s trial. He invoked his right to remain
silent but was granted immunity for any additional charges, other than
perjury and falsification. Defense counsel then requested that the court
appoint counsel for the co-defendant because counsel represented him and
the defendant and could not adequately advise the co-defendant. The
court denied the motion and proceeded. The co-defendant provided
damaging testimony, but counsel did not cross-examine him at all because
he feared subjecting him to further prosecution and revealing client
confidences. The court held that counsel’s request for separate counsel
was a sufficient objection under Holloway to alert the trial
court and trigger the court’s duty to inquire. The fact that counsel did
not raise the conflict until the midst of trial was of no concern
because the conflict did not arise until the co-defendant was granted
immunity and compelled to testify. The court’s failure to inquire once
on notice required the presumption of prejudice and reversal. Applying
the AEDPA standards, the court held that the state court’s finding to
the contrary was an unreasonable application of Holloway.
2. State Cases
1997: Rice v. State, 487 S.E.2d 517 (Ga. Ct. App. 1997).
Trial court erred in finding purported waiver of conflict in case
involving theft by police officer of public funds where finding was made
in a hearing held without the defendant’s presence. Defendant and
codefendant retained the same counsel. Codefendant proceeded to trial
first. The state raised the conflict issue and defendant’s absence. The
court stated it would address the issue later with the defendant and
proceeded with the hearing. Counsel produced a "waiver" signed by both
defendants. Without even questioning the codefendant, who was present,
the court found the waiver to be valid, even though it did not mention
the fact that both defendants were scheduled to be witnesses against the
other. The court did not inform the codefendant of the possible
conflicts inherent in dual representation and did not inquire of the
codefendant if he understood the agreement and voluntarily signed it.
The court ruled that the agreement constituted a waiver of any conflict
and satisfied the court's responsibility to determine whether the
defendants agreed to the joint representation. Counsel
suggested that the court bring the defendant into the courtroom and
review the situation with him but the court ruled the agreement was as
binding upon the defendant as it was upon the codefendant and no such
action was necessary. Defendant then testified in codefendant’s trial
and his testimony was later used to impeach his testimony in his own
trial. Appellate court found that reversal was required because the
"waiver" hearing was a critical stage conducted outside his presence.
Further, because the defendant may well have chosen not to testify in
the codefendant’s trial if he had been adequately advised by
unconflicted counsel, the court prohibits use of his testimony in the
codefendant’s trial at his own retrial.
1992: Kenney v.
State, 837 P.2d 664 (Wyo. 1992). Prejudice
presumed under state law where counsel represented defendant and
co-defendant in drug case in separate trials. Defendant and her
codefendant/boyfriend were charged. They initially retained separate
counsel. Defendant was represented by retained counsel in pretrial
motions. Three days prior to trial, defendant sought to retain different
counsel of her choice. It was apparent, due to her limited education and
other factors, that defendant had received assistance from someone with
legal training in drafting her "pro se" documents. The court
allowed her retained counsel to withdraw and granted a short
continuance. The codefendant’s retained counsel then begin representing
the defendant. Counsel informed the court that defendant had been unable
to retain other counsel because she was indigent. The defendant
proceeded to trial and was convicted. She was convicted and sentenced to
18-36 months. The codefendant then entered a plea and received a
suspended sentence and probation. The court held that "[w]hile the
United States Supreme Court reviews claims of ineffective assistance of
counsel due to conflicts of interest under the standard of review
adopted in Cuyler, Wyoming recently adopted a more stringent
approach. Absent a valid waiver, prejudice is presumed in all
instances of multiple representation of criminal defendants." Id.
at 672-73. Here, the trial court did not inquire concerning the joint
representation and there was no evidence of a valid waiver of the
conflict.
D. Simultaneous Representation of
Government Witness on Unrelated Charges (State Cases only)
2000: State v. Watson, 620 N.W.2d 233 (Iowa 2000). Trial
court erred in failing to sua sponte conduct inquiry into potential
conflict of interest in murder case where one of two appointed counsel
simultaneously represented a key prosecution witness, a jailhouse snitch
who testified that the defendant admitted shooting his father. The
defense was that the shooting was accidental or self-inflicted and even
the expert witnesses conflicted on whether the evidence showed an
intential shooting. The witness was cross-examined and admitted that he
was pending sentencing on contempt charges at the time of his initial
statement. He also testified that he was represented in those contempt
charges by defendant’s counsel, but not the counsel that conducted the
cross-examination. The trial court failed to conduct an inquiry into the
potential conflict even following this testimony. The appellate court
held, based on its interpretation of Wood v. Georgia, that "where
the trial court knew or should have known of a particular conflict,
reversal is required without a showing that the conflict adversely
affected counsel's performance, even though no objection was made at
trial." Id. at 237. In its analysis, the court observed, "Unlike
the joint representation of codefendants, where there may be a benefit
to presenting a united defense, in the case of dual representation of
the defendant and an adverse witness, there is no benefit to common
representation. To the contrary, the potential for less zealous
representation of the defendant is obvious." Id. at 239. The
court also rejected the state’s claims that the problem was solved
because the witness’ case was resolved by the time of trial and because
the conflicted counsel did not conduct the cross-examination. On the
former, the court noted that counsel’s ethical obligation to his former
client did not cease with the conclusion of the case. On the latter, the
court noted that the counsel that conducted the cross-examination of the
witness was in the same public defender office and, thus, shared the
same ethical obligation to the former client. "Moreover, [counsel’s]
obligation to zealously represent his client, the defendant, was not
suspended simply because his co-counsel was the one who asked [the
witness] questions on the witness stand. [Counsel] still had an
obligation to [the defendant] to contribute what he could to the defense
team's preparation for [the witness’] cross-examination, including
pre-trial investigation. We conclude, therefore, that [counsel’s]
decision not to personally examine [the witness] insufficient to remove
the actual conflict of interest that burdened [the] defense
team." Id.
at 241.
1995: State v. Jenkins, 898 P.2d 1121 (Kan. 1995). Trial
court erred in failing to conduct inquiry when the court was informed
that counsel represented a government witness/informant on charges
incurred while working as a confidential informant. Defendant was
charged with sale of cocaine to a police informant. At preliminary
hearing, appointed counsel raised concerns about a possible conflict
because she had represented the informant on unrelated burglary charges
while he was working as an informant. Counsel questioned the informant
and the defendant and both agreed to have her continue to represent the
defendant, but the questions and answers did not amount to a waiver of
the conflict. Following this hearing and prior to defendant’s trial,
counsel represented the informant in a motion to modify his sentence.
During defendant’s trial, he presented an alibi defense. The appellate
court found an actual conflict where counsel represented the defendant
and the key state’s witness at the same time. Because the trial court
was informed of the actual conflict, the court had a duty to inquire,
even though there was no objection to the conflict. Failure to inquire
required automatic reversal under Holloway. Even assuming that
Cuyler controls and
adverse affect must be shown, the court finds that counsel’s
representation was adversely affected because counsel did not
cross-examine the witness on the affects of cocaine, even though he
admitted being under the influence when he allegedly bought cocaine from
the defendant. Counsel also did not question the witness regarding his
admitted addiction to cocaine or to what lengths he might go to obtain
drugs or the money necessary to buy drugs for himself. This was
especially important in light of evidence that the witness received
money from the police each time he made a sale.
1987: *State v. Carmouche, 508 So.2d 792 (La. 1987). Trial court erred in
capital murder case in failing to adequately inquire when defense
counsel informed the court that he simultaneously represented a state
witness on unrelated charges.
E. Simultaneous Representation
of Persons Implicated (But Not Jointly Charged) in Unrelated
Case (State Cases Only)
1986: State v. Martin, 513 A.2d 116 (Conn. 1986). Trial court failed to
adequately inquire in robbery case where counsel informed the court that
he had a conflict and moved for a mistrial following testimony
implicating another client.
F. Prior
Representation of Persons
Implicated (But Not Jointly Charged) in Related Case (U.S. Court of
Appeals Cases Only)
1995: Ciak v. United States, 59 F.3d 296 (2nd
Cir. 1995). In 2255 action, the court held that the trial court erred in
failing to conduct an inquiry in weapons possession case where the court
was aware that counsel had previously represented an important
government witness in a substantially related matter and presented in
that case a theory that was possibly at odds with the position he took
in defendant’s trial. Defendant was arrested following a domestic
disturbance while driving a car owned by his sister and her fiancé. Weapons were found in the car.
Defendant retained counsel. While meeting with defendant’s sister and
her fiancé concerning his defense,
counsel agreed to represent the sister and her fiancé in the related forfeiture action. The
car was recovered, but then the sister and her fiancé broke up and the fiancé took the car. At defendant’s subsequent
trial, the defense was that the defendant did not own the guns or put
them in the car but counsel did not call the sister to testify even
though she had informed him that she put the guns in the car. The
government called the ex-fiancé in
rebuttal. In cross-examining him, counsel spent most of his time
questioning the witness on the collateral issue of the location of the
car because counsel’s fee for representing petitioner had been based on
funds from the anticipated sell of the car. The cross degenerated into
an argument between counsel and the witness with the witness accusing
counsel of misstating the facts. In the midst of this, counsel informed
the court that he had represented the witness and the defendant’s sister
in the forfeiture action. The trial court did not inquire further.
Counsel then cross-examined the witness about prior statements allegedly
made to counsel in the course of his representation of the witness.
Still the court did not inquire. The appellate court first noted that no
procedural bar would be applied due to defendant’s failure to assert the
conflict issue on appeal because the conflicted counsel and his
associate represented defendant at the time. Next, the appellate court
found that counsel had a clear conflict in attempting to impeach his
former client and making himself an unsworn witness. This was "an
‘unavoidable conflict of interest,’ in part because defense counsel
cannot impeach the government witness in such circumstances without
undermining his own credibility. Standing alone, becoming an unsworn
witness is a basis for disqualification of an attorney." Id. at 304. Even worse, the court notes that the
cross-examination of his former client raised questions about where
counsel’s loyalty was, i.e., himself, the defendant, or his former
client. Second, counsel clearly had a conflict in presenting competing
theories in the forfeiture action and in defendant’s trial and counsel
may have developed his own financial interest in protecting the sister
from testifying due to his interest in the car. As the court noted,
counsel could not call the sister to testify because it could have
resulted in (1) the disclosure that counsel had presented a contrary
argument in the forfeiture action, i.e., that the gun was defendant’s;
and (2) the possibility of state reopening forfeiture proceedings and
the loss of the car, which was the source of his retainer. Under these
circumstances, the district court erred in denying an evidentiary
hearing on defendant’s claim of a conflict of interest that adversely
affected the representation. Because the trial court erred, however, in
failing to conduct an inquiry when it had a duty to do so though, the
case would be remanded for new trial rather than a hearing.
G. Prior Representation of Victim or
Government Witness on Unrelated Charges
1.
U.S. Supreme Court Cases
2002: *Mickens v. Taylor, 122 S. Ct. 1237 (2002).
Petitioner was convicted of murder and sentenced to death. His lead
counsel during the trial had also represented the victim and was
representing him in juvenile proceedings at the time of the murder.
Counsel had only met with the victim one time for 15-30 minutes.
Following the murder, he was appointed to represent petitioner by the
same judge that had appointed him to represent the victim previously.
Counsel did not disclose the conflict to the court, his co-counsel, or
petitioner. Although the trial court knew or should have known about the
potential conflict, the court conducted no inquiry. In these
circumstances, the Court rejected an automatic reversal rule and held
that in order to obtain relief, petitioner must establish an actual
conflict and that the conflict adversely affected the representation.
The Court also noted that both Cuyler v. Sullivan and Holloway
v. Arkansas were cases involving
simultaneous representation and the question whether these holdings
apply to successive representation and other potential conflicts remains
open.
2.
State Cases
2001: Thomas v. State, 785 So.2d 626 (Fla. Dist. Ct. App. 2001). Trial court
erred in escape, battery on officer, and resisting arrest prosecution
for failing to inquire into potential conflict and obtain waiver where
the court was aware that counsel had previously represented a key
prosecution witness. Counsel informed the court of the prior
representation, but stated that he did not believe it presented a
problem. He asked, however, that the witness be instructed not to
mention the prior representation. The trial court found no conflict
because the prior representation had nothing to do with this case.
During trial, the witness testified that he was a cellmate and saw the
defendant hit the officer. He admitted prior convictions and that he had
a pending charge. Counsel cross-examined his former client briefly
regarding how many people were in the cell and whether he expected
favorable treatment for his testimony. The trial court erred because the
court did not address the defendant at all and did not inquire to
determine whether the witness had given defense counsel privileged
information. Prejudice presumed.
Singley v. United States, 548 A.2d 780
(D.C. 1988). The trial court erred in failing to conduct an adequate
inquiry before acting to defendant’s detriment when possible conflict
became apparent in robbery case where counsel had previously represented
the victim on unrelated charges. The court’s actions in treating the
conflict as an actual conflict created an adverse affect on the
representation. After counsel cross-examined the victim to establish
motive to testify to help himself and that he was acting on the advice
of his lawyer, the government informed the court that counsel had been
the victim’s lawyer until he had to withdraw due to representation of
the defendant. Counsel denied recollection that he had represented the
victim and moved to withdraw. The court did not inquire of the witness
or the defendant and denied the motion to withdraw. The court then
instructed the jury that it should disregard the impeachment
cross-examination of the victim. By these actions the court treated the
conflict as an actual conflict and defendant’s representation was
adversely affected.
1983: Matter of Richardson, 675 P.2d 209 (Wash.
1983). Trial court erred in failing to adequately inquire in assault
case where counsel either previously or simultaneously represented a
defense witness. A trial court commits reversible error if it knows or
reasonably should know of a particular conflict on part of counsel into
which it fails to inquire. No prejudice need be shown, and rule is not
limited to joint representation of co-defendants, but includes
representation of both defendant and witness.
H. Counsel Retained by Codefendant
or Third-Party With Adverse Interest (U.S. Supreme Court Cases
Only)
1981: Wood v. Georgia, 450 U.S. 261 (1981). The trial
court erred in failing to inquire into the possibility of a conflict of
interest created by the representation of the defendants by their
employer who allegedly operated the criminal enterprise for which they
were prosecuted. The defendants were charged with distributing obscene
materials and convicted. They were sentenced to probation with
substantial fines, but failed to pay the fines. After three months, the
court held a revocation hearing in which the defendants presented
evidence that they were unable to pay the fines. The trial court ordered
payment of the fines within three days or confinement. The Court granted
certiorari to determine whether the Equal Protection Clause was violated
by imprisonment of a probationer solely because of his inability to make
installment payments on fines. Rather than deciding this issue, however,
the Court noted that the record reflected that the three defendants had
been represented throughout by one lawyer, who was paid by their
employer. In addition, the employer had paid all fines and posted all
bonds with the sole exception of the fines under review. The attorney
never argued in the initial sentencing that the fines were excessive and
the court imposed stiff fines because the court was aware that the
employer had been paying all fines and expenses of the defendants. The
defendants never paid even small amounts of the fine to indicate good
faith because of their assumption that the employer would pay the fines.
Even at the revocation hearing where the defendants presented evidence
of their indigence, counsel did not argue for a reduction of the fines.
Thus, the Court held that the risk of conflict was evident, because the
record suggested that the employer desired to create a test case to
present the current claim to the Court, which meant that the defendants
had to be jailed for non-payment of the fines. The Court recognized an
inherent danger in a criminal defendant being represented by a lawyer
hired and paid for by a third party, particularly when the third party
is the operator of the alleged criminal enterprise. One risk is that the
lawyer will not seek leniency for the defendant by offering testimony
against the employer who retained counsel. A second risk, present in
this case, is that the employer’s long-range interest in establishing
legal precedent could subject the defendants to harsher treatment.
Id. at 269. Under these facts, the Court held that "the
possibility of a conflict of interest was sufficiently apparent
at the time of the revocation hearing to impose upon the court a duty to
inquire further." Id. at 272. Moreover, even the state raised the
conflict issue and requested that the court inquire further. Id.
at 273. The Court remanded and ordered that
if the court found an actual conflict of interest and that there was no
valid waiver, then a new revocation hearing should be held with counsel
free of conflicts.
I. Counsel Was Necessary or Potential
Witness (U.S. Court of Appeals Cases Only)
1. U.S. Court of Appeals Cases
1998: United States v. Kliti, 156 F.3d 150 (2nd Cir.
1998). Trial court in counterfeit check case committed reversible error
in failing to inquire into the potential conflict when the court learned
that counsel was a witness to an exculpatory statement by
co-defendant/witness. During a bond hearing, counsel also represented
the co-defendant at the request of his attorney, who was absent. After
the bond hearing, the co-defendant had said in front of the defendant,
the counsel, and another witness that the defendant was not involved in
any way and he would make sure the government knew that. Ultimately,
however, he entered into a deal and testified against defendant. During
trial, counsel informed the court of these events. The court held,
however, that counsel could ask if the codefendant had made the
statements but could not inform the jury that counsel had heard it so
that counsel would not be an unsworn witness. The codefendant denied
making the statement. The only other witness to the statement invoked
his Fifth Amendment right leaving only counsel and the defendant to
testify about the codefendant’s statement. No evidence was presented
about the statement. The Second Circuit held that a hearing is required
whenever a defendant would forgo important testimony by his attorney
because of his attorney's continued representation of him. Thus, the
trial court erred in failing to conduct a hearing to ensure that the
defendant was fully aware of the conflict and that he could have a
different lawyer and call this lawyer as a witness. "When faced with an
attorney as a sworn or unsworn witness, the proper recourse is to
disqualify the attorney, not to exclude the testimony." To establish a
violation of the Sixth Amendment right to effective assistance of
counsel, the defendant must show that counsel had either (1) a potential
conflict of interest that resulted in prejudice to the defendant, or (2)
an actual conflict of interest that adversely affected the attorney's
performance. Even assuming that the conflict was only a potential
conflict and the defendant had to prove prejudice, the prejudice was
clear. The codefendant provided the only direct evidence of the
defendant’s guilt and his credibility was essential. Counsel was the
only person who could impeach his testimony.
2. State Cases
2003: State v. Lopez, 835 A.2d 126 (Conn. Ct. App.
2003). A defendant’s convictions for risk of injury to a child were
reversed because the trial court failed to adequately inquire into the
potential conflict of interest of the defense counsel, who was a
potential witness. The victim alleged that the defendant had molested
her numerous times after she and her mother had moved into the
defendant’s home. The defendant was arrested and charged with sexual
assault and risk of injury to a child. Prior to trial, the victim wrote
and signed a statement recanting her previous accusation against the
defendant. She testified that she did so at the insistence of her mother
and the defendant, and that the defendant dictated this statement and
forced her to sign it. Following this signing, the victim’s mother and
the defendant took the victim to defense counsel’s office, where she met
in private with counsel, and, according to her own testimony, told him
that the handwritten statement was true. Her statement was then typed
and signed again. Prior to trial, outside the defendant’s presence and
off the record, the prosecutor informed the court that defense counsel
may testify at trial. Defense counsel informed the judge that he did not
intend to testify. The court conducted no further inquiry even though
there was clearly a potential for conflict and the defendant was not
present for this discussion. The court held that there was a potential
conflict because counsel’s testimony at trial concerning the victim’s
demeanor while in his office may have been beneficial to the defendant.
The court also noted concern that testimony regarding defense counsel’s
role in securing and witnessing the victim’s statement may have affected
counsel’s credibility with the jury. The court held that, under the
circumstances, the defendant was not required to show an actual adverse
consequence from the conflicted representation. While addressing
Mickens v. Taylor and distinguishing it, the court held that the
trial court did not fulfill its obligation of conducting a thorough and
searching inquiry into the potential conflict. Prejudice was
presumed.
J. Defendant Alleged Ineffective Assistance
1.
U.S. Court of Appeals Cases
1995: United States v. Shorter, 54 F.3d 1248 (7th Cir.
1995). Trial court erred in failing to inquire into potential conflict
when the defendant accused counsel of misconduct and counsel moved to
withdraw. Defendant was charged with multiple counts of conspiracy and
distributing cocaine. During trial, defendant plead guilty to cocaine
conspiracy and perjury counts. Before sentencing, counsel moved to
withdraw. At sentencing, counsel stated that the defendant had accused
her of forcing him to plead guilty. The attorney also asserted that
defendant was making false statements to the court. The trial court
proceeded to sentencing without ruling on the motion to withdraw. "When
a defendant accuses his counsel of improper behavior and the counsel
disputes his client's accusations, an actual conflict of
interest results because ‘any contention by counsel that defendant's
allegations were not true would (and did) contradict his client.’"
Id. at 1252-53. "Because the district court failed to conduct a
hearing and determine the impact of the conflict of interest, we
will presume that the conflict prejudiced [defendant] if he has shown a
possibility of prejudice." Id. at 1253 (citation
omitted). This possibility was apparent because counsel did not argue
for a downward departure from the Sentencing Guidelines.
2.
U.S. District Court Cases
1984: White v. White, 602 F. Supp. 173 (W.D. Mo. 1984).
Trial court failed to adequately inquire in drug case where defendant
repeatedly expressed ineffective assistance and irreconcilable conflicts
with attorney. "Prejudice should be presumed from a fractured
attorney-client relationship just as it would be if the petitioner had
been denied the assistance of counsel or if petitioner’s appointed
counsel had a conflict of interest." Id. at 178.
3.
State Cases
1990: Brooks v. State, 555 So.2d 929 (Fla. Dist. Ct. App. 1990). Trial court
erred in failing to conduct inquiry about defendant’s request to
discharge court-appointed counsel. Defendant filed several written
motions alleging conflict of interest and requesting dismissal, but
judge failed to inquire and summarily denied the motions. Because
district court of appeal was unable to say that error of trial court in
failing to conduct inquiry about defendant’s request to discharge
court-appointed counsel was harmless beyond a reasonable doubt, reversal
and remand for new trial was required.
People v. Vaughn, 558 N.E.2d 479 (Ill. App. Ct. 1990). Trial
court erred in failing to inquire into potential conflict when defendant
raised the issue. Defendant plead guilty to sexual assault. He then
filed a pro se motion to vacate the plea alleging ineffective
assistance by his public defender counsel. The court offered to appoint
another public defender but defendant declined because that counsel had
assisted his counsel in the case. Defendant requested outside counsel,
but the court informed him that it was the public defender or pro
se. Defendant went pro se. The trial
court erred in failing to determine whether a conflict existed.
K. Counsel Had Conflicting
Interests Due to Connection With Law Enforcement (U.S. Court of
Appeals Cases only)
2000: United States v. Rogers, 209 F.3d 139
(2nd Cir.
2000). Trial court erred in failing to inquire prior to trial into
counsel’s conflict in drug conspiracy case. Following his conviction,
the defendant learned that his appointed defense counsel was a police
commissioner and requested new counsel. A police commissioner is
involved, amongst other things, in making departmental policy and
hiring, firing, and promotions decisions. The judge denied the motion,
while acknowledging that he (the judge) had known for years that counsel
was a police commissioner, and proceeded to sentencing. The Second
Circuit held that the court had a duty to advise the defendant prior to
trial of the potential conflict and to conduct an inquiry into the issue
because the case involved the same police department for which counsel
was a commissioner. Failure to do so required automatic reversal and the
court’s post-trial analysis of the issue, once the defendant’s motion
was made, did not change the required result.
L. Conflicting Interests
Due to Potential Ethics Violations or Criminal Conduct (U.S. Court
of Appeals Cases only)
1995: Ciak v. United States, 59 F.3d 296 (2nd
Cir. 1995). In 2255 action, the court held that the trial court erred in
failing to conduct an inquiry in weapons possession case where the court
was aware that counsel had previously represented an important
government witness in a substantially related matter and presented in
that case a theory that was possibly at odds with the position he took
in defendant’s trial. Defendant was arrested following a domestic
disturbance while driving a car owned by his sister and her fiancé. Weapons were found in the car.
Defendant retained counsel. While meeting with defendant’s sister and
her fiancé concerning his defense,
counsel agreed to represent the sister and her fiancé in the related forfeiture action. The
car was recovered, but then the sister and her fiancé broke up and the fiancé took the car. At defendant’s subsequent
trial, the defense was that the defendant did not own the guns or put
them in the car but counsel did not call the sister to testify even
though she had informed him that she put the guns in the car. The
government called the ex-fiancé in
rebuttal. In cross-examining him, counsel spent most of his time
questioning the witness on the collateral issue of the location of the
car because counsel’s fee for representing petitioner had been based on
funds from the anticipated sell of the car. The cross degenerated into
an argument between counsel and the witness with the witness accusing
counsel of misstating the facts. In the midst of this, counsel informed
the court that he had represented the witness and the defendant’s sister
in the forfeiture action. The trial court did not inquire further.
Counsel then cross-examined the witness about prior statements allegedly
made to counsel in the course of his representation of the witness.
Still the court did not inquire. The appellate court first noted that no
procedural bar would be applied due to defendant’s failure to assert the
conflict issue on appeal because the conflicted counsel and his
associate represented defendant at the time. Next, the appellate court
found that counsel had a clear conflict in attempting to impeach his
former client and making himself an unsworn witness. This was "an
‘unavoidable conflict of interest,’ in part because defense counsel
cannot impeach the government witness in such circumstances without
undermining his own credibility. Standing alone, becoming an unsworn
witness is a basis for disqualification of an attorney." Id. at 304. Even worse, the court notes that the
cross-examination of his former client raised questions about where
counsel’s loyalty was, i.e., himself, the defendant, or his former
client. Second, counsel clearly had a conflict in presenting competing
theories in the forfeiture action and in defendant’s trial and counsel
may have developed his own financial interest in protecting the sister
from testifying due to his interest in the car. As the court noted,
counsel could not call the sister to testify because it could have
resulted in (1) the disclosure that counsel had presented a contrary
argument in the forfeiture action, i.e., that the gun was defendant’s;
and (2) the possibility of state reopening forfeiture proceedings and
the loss of the car, which was the source of his retainer. Under these
circumstances, the district court erred in denying an evidentiary
hearing on defendant’s claim of a conflict of interest that adversely
affected the representation. Because the trial court erred, however, in
failing to conduct an inquiry when it had a duty to do so though, the
case would be remanded for new trial rather than a hearing.
1992: United States v. Greig, 967 F.2d 1018 (5th Cir.
1992). Trial court erred in drug conspiracy case for failing to inquire
after the court learned that counsel had an actual conflict of interest
due to counsel’s unethical and criminal conduct in approaching
codefendant without his counsel’s permission. Defendant was along with
several codefendants. Prior to trial, a codefendant’s counsel informed
the court that defendant and defendant’s counsel had improperly
approached his client several times without permission and advised that
client to reject his counsel’s plea negotiations, which required
testimony against the defendant, and to seek different counsel. The
court informed defendant’s counsel that disciplinary proceedings would
be held but went forward with the trial without inquiry. The court held
a hearing on the issue following conviction but did not rule. At the
defendant’s sentencing, the court increased the guidelines level finding
obstruction of justice for the defendant’s part in acting with his
counsel in discussions with codefendant. Following sentencing the court
permanently barred counsel from appearing in the District Court again.
The Fifth Circuit held that the trial court erred in not conducting a
hearing to determine whether defendant was fully informed of this
counsel’s ethical violations and whether he desired to continue with
representation. ‘While we recognize that a trial court does not always
have an affirmative duty to inquire into the possibility of a
conflict of interest, it does have a duty to conduct a hearing once
it has been alerted and certainly when it knows of the existence of an
actual conflict of interest." Id. at 1022. There was an
actual conflict here that required inquiry because "counsel was in the
position of simultaneously having to defend himself as well as his
client regarding their potentially criminal activity. Like his client,
counsel was open to an indictment for obstruction of justice. . . . At
the very least, counsel faced severe disciplinary measures, including
monetary sanctions, and indeed the very loss of the right to
appear as counsel in the whole Western District of Texas. His alleged
conduct was highly unethical and clearly violated the Model Code of
Professional Responsibility as well as the American Bar Association's
Model Rules of Professional Conduct." Id. at
1022-23. Because the trial court conducted no inquiry, there could be no
finding of a knowing and intelligent waiver of the conflict. The court
required, however, that defendant establish that counsel’s
representation was adversely affected by the representation. Adverse
affect shown because counsel would have been preoccupied during trial
with his own thoughts of the pending disciplinary proceedings and
possible indictment. Likewise, during the codefendant’s testimony,
counsel did not object to discussions of meetings with defendant and his
counsel and only cross-examined the codefendant to try to minimize his
own improper acts. Further, at the hearing concerning counsel’s actions,
counsel questioned defendant in a fashion to shift responsibility to
him. And, this hearing was prior to sentencing and adversely impacted
the defendant. New trial granted.
1983: United States v. White, 706 F.2d 506 (5th
Cir. 1983). Trial court failed to adequately inquire in escape case
where counsel was under investigation for participation in escape
charges. Defendant was convicted of escape from the US Marshal. Before
trial, he retained counsel, who were under investigation regarding their
participation in his escape. Although the defendant was fully informed
of his right to have counsel dismissed and was questioned extensively by
the court about his awareness of the existence of a conflict, at no
point did the record show that the court, the defense attorney, or the
prosecutor informed the defendant of the precise manner in which he
might be prejudiced by counsel’s representation. The defendant’s waiver
was thus deprived of the knowing, intelligent, and voluntary nature
required for the waiver of a constitutional right, and constituted an
invalid waiver of the defendant’s Sixth Amendment right to effective
assistance of
counsel.