IV. Actual
Conflict of Interest That Adversely Affected Representation and No Valid
Waiver
A. Simultaneous Representation of Jointly
Tried Codefendants
1. U.S. Court of Appeals
Cases
2002: United States v. Newell, 315 F.3d 510
(5th Cir. 2002). The defendant’s
purported waiver of a conflict of interest in his money-laundering trial
was not a knowing and intelligent waiver of the actual conflict that
developed at trial. The defendant and his co-defendant were charged with
money-laundering and fraud and were represented by the same attorney.
The co-defendant was acquitted while the defendant was convicted. Prior
to trial the court questioned the defendant about the potential conflict
of interest and the defendant elected to proceed. During the trial,
however, it became apparent and "palpable" that counsel presented a
lopsided defense strategy focusing on the co-defendant’s innocence,
which made it appear that the defendant was the go-between the
codefendant and the undisputed mastermind of the illegal operation and
that the co-defendant engaged in "simple-minded trust" of the defendant.
Counsel followed this theme throughout his arguments and also presented
the co-defendant to testify and the testimony largely consisted of
pointing the finger at the defendant. Although the trial court advised
the defendant prior to trial of "the general dangers of dual
representation, the scope of the waiver did not include the actual
conflicts that arose during trial." "At the outset of a criminal case
the district court can often offer little more than a general warning of
possible harm. Such an inquiry does not end the matter of conflicted
counsel, and the court remains under a continuing obligation during the
course of trial to remedy an actual conflict if it emerges."
1996: Griffin v. McVicar, 84 F.3d 880 (7th
Cir. 1996). Trial counsel in triple murder and assault case had an
actual conflict of interest that adversely affected representation where
counsel represented the defendant and co-defendant during the same
trial. Defendant initially retained different counsel and attempted to
negotiate a plea to testify against codefendant. That counsel was
unsuccessful and defendant’s family then retained counsel, who was
already representing the codefendant. Defendant informed counsel that he
was present at the scene of the crime but that he did not shoot anyone.
Counsel moved to sever the trials on grounds that the codefendant’s
extensive criminal record might prejudice defendant and that either
defendant might have made admissions which could prove damaging to the
other. The motion was denied. Prior to trial, when questioned by the
trial court, counsel asserted that there was no conflict in the joint
representation. During the state’s evidence, eyewitnesses identified the
codefendant as the shooter of at least two of the victim’s. The evidence
against the defendant was conflicting on whether he may have shot
anyone. Even though defendant appeared to be the least culpable, counsel
failed to present a defense asserting that defendant was just an
innocent bystander and co-defendant was guilty party. Instead, counsel
tried to discredit the eyewitness testimony. His efforts were organized
around a theory that the shootings were linked to the drug-related
killing of defendant’s brother, which had occurred just a few weeks
earlier. He also presented a joint alibi defense, through defendant’s
and another witness’ testimony. He did not even mention the alibi in
either his opening or closing statements though, perhaps because the
alibi witness could not account for the relevant time period. Defendant
in post-conviction admitted that he lied in alibi testimony because
counsel told him that if he admitted being present at the scene he would
be convicted as accomplice. There was an actual conflict in the joint
representation. Counsel clearly possess information which would have
suggested to an unconflicted counsel the availability of a defense
focused on discrediting the identification of defendant and shifting the
blame onto the codefendant. Although defendant gave perjured testimony
at trial, the court held:
Even if [defendant] did represent that the alibi
story was true, an effective attorney would have discussed with
[defendant] the disadvantages of linking his fortunes to those of [the
co-defendant], given the strength of the eyewitness identifications of
[the co-defendant] and [the co-defendant]'s extensive criminal history.
An attorney free to consider [defendant]’s singular interests would,
particularly in light of [defendant]’s waffling on his story, have
pointed out the possibility of resting a defense on the weakness and
contradictions in the testimony implicating him in the shootings. This
approach would have compared favorably with bringing in an alibi which
left [defendant] with the task of refuting the evidence against [the
co-defendant] as well.
Id. at 888. Moreover, the decision to present
the alibi defense was clearly favorable to the defendant, who otherwise
had no defense, but detrimental to the defendant, who had a much
stronger, credible defense available.
Edens v.
Harrigan, 87 F.3d 1109 (10th Cir. 1996). Trial counsel had
actual conflict of interest that adversely affected representation in
robbery and felony murder case where counsel represented the defendant
and co-defendant during the same trial. Defendant was charged with
two-codefendants. The evidence showed that the three conspired to commit
the robbery. The two co-defendants entered the pharmacy and codefendant
one shot two people in the course of the robbery. Defendant was not
present at the crime scene, but was an accomplice according to the
state’s evidence. During trial, both the defendant and codefendant two,
who had entered the pharmacy, were represented by the same attorney, who
was retained by codefendant two’s family. Codefendant one testified and
claimed self-defense. Codefendant two testified and claimed that he was
compelled by fear of codefendant one. The defendant did not testify or
present any evidence. Counsel did not even make any opening or closing
argument for defendant. Because defendant did not object to the conflict
at trial, he must show an actual conflict that adversely affected
representation under Cuyler. Court held that
there was an actual conflict because the only way defendant could have
avoided criminal liability in this case would have been for him to have
presented the defense that he had not participated in any way in the
robbery. A successful effort on his behalf, however, necessarily would
have damaged codefendant two, because counsel would have had to
contradict and impeach his own client and allow the defendant to
testify, which would have contradicted codefendant two. Adverse affect
is found because the record reflects that the conflict between the
defenses was consistently resolved in favor of codefendant two at
defendants’ expense. Counsel never articulated what defense, if any, was
contemplated for defendant and he put on no evidence on defendant’s
behalf. Defendant was not permitted to testify and counsel never
cross-examined either codefendant concerning their inculpatory testimony
that defendant had provided a ride to the car used in the robbery.
Counsel also failed to pursue separate plea negotiations on defendant’s
behalf. Counsel attempted to negotiate a joint deal for defendant and
codefendant two, but never tried to negotiate solely for defendant, even
though negotiations on his behalf alone might have produced a plea offer
from the government since he could have provided valuable testimony
undermining codefendant two’s defense. He had also witnessed the
conspiratorial conversation that took place between the two codefendants
and arguably could have testified that codefendant two was not forced to
participate in the robbery, contrary to his claim. No effort was made to
bargain solely for the defendant though because such an arrangement
would have been in direct conflict with codefendant two’s defense. Counsel also failed to call a witness that
would have contradicted some of the incriminating information against
defendant because counsel was more concerned with codefendant two’s
defense. The court also rejected the government’s argue of waiver. "[W]e
must indulge every reasonable presumption against the waiver of
fundamental rights." Id. at 1118 (citing Glasser, 315 U.S. at 70). The record revealed
that counsel told the defendant that he could be convicted or sentenced
differently the codefendant. There was no discussion during the hearing,
however, of the risks associated with the dual representation and there
was no inquiry by the court on this matter.
1992: United States v. Martin, 965 F.2d 839
(10th Cir. 1992). Counsel had actual
conflict that adversely affected representation in drug conspiracy case
where counsel jointly represented defendant and codefendant.
Furthermore, while the District Court conducted an inquiry, the court
did not adequately advise defendant and the resulting purported waiver
was invalid. In an undercover drug operation, defendant was initially
involved in discussions concerning the possible purchase of marijuana.
Defendant did not ultimately make the purchase, but someone else did.
Following the arrests of the persons involved in the purchase, defendant
turned himself in after learning that he was included in the indictment.
At trial, defendant and a codefendant were jointly represented by
counsel. Several other codefendants had independent counsel, but
defendant’s counsel largely orchestrated the defense for all. The trial
court conducted only a brief inquiry prior to trial. Counsel had an
actual conflict because he convinced defendant not to testify due to a
"‘united we stand, divided we fall’ philosophy of defense." Id. at 842. Defendant, who was clearly less
culpable than his codefendants, would have testified that he withdrew
from the conspiracy after the initial meeting and had nothing more to do
with it. An actual conflict that adversely affected representation was
clear in these circumstances. The court gives deference to the District
Court’s finding in 2255 hearing that the same court had conducted an
inadequate hearing prior to trial to ensure an adequate waiver.
1985: United States ex. rel. Zembowski v.
DeRobertis, 771 F.2d 1057 (7th Cir. 1985) (affirming 598 F. Supp. 914
(N.D. Ill. 1984)). Counsel had actual conflict that adversely affected
representation in robbery case where counsel also represented
codefendant in joint trial. Prior to trial, the state moved to join the
cases. Counsel opposed joinder, in part, by noting that defenses would
conflict. The court held that this was sufficient objection to trigger
trial court’s duty to inquire and failure to do so required reversal.
Even assuming trial court’s duty was not triggered, reversal required
because counsel had an actual conflict that adversely affected
representation since counsel actually elicited testimony during trial
that strengthened the identification of the defendant. Counsel also
argued that defendant was more culpable than codefendant and duped her
into involvement. In sentencing, counsel argued only on behalf of
codefendant.
1984: United States v. Auerbach, 745 F.2d
1157 (8th Cir. 1984). Counsel had
conflict that adversely affected representation in illegal sale of
firearms case where counsel represented defendant and codefendant in
joint trial. Defendant and his son were represented by the same counsel.
Adverse affect found because the son had a prior felony conviction and
no objection was posed to the prejudicial affect of this on defendant.
1983: United States ex rel. Gray v. Director,
721 F.2d 586 (7th Cir. 1983). Counsel had
conflict that adversely affected representation in murder and rape case
where counsel represented defendant and codefendant in joint trial
before separate juries. Defendant had defense of coercion by
co-defendant, and an independent, conflict-free, competent attorney for
defendant would have carefully considered continued cooperation with
state as way of avoiding any prosecution, or immunity agreement with
state, or plea bargain with state, or strong defense of coercion, or, in
event of conviction, strong plea for leniency based on minimum
participation. Defendant’s counsel, in contrast, could not adopt any of
those options because each of them would put co-defendant in
jeopardy.
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.
United States ex rel.
Williams v. Franzen, 687 F.2d 944 (7th Cir. 1982). Counsel
had actual conflict that adversely affected representation in burglary
case where counsel represented defendant and codefendants in joint
trial. Codefendant’s testimony was not only inconsistent with
defendant’s defense, but tended to incriminate defendant. Due to the
conflict, counsel could not impeach the codefendant. Where two or more
defendants have inconsistent stories about crime charged, joint
representation is impermissible, particularly where one defendant cannot
be effectively prevented by counsel from taking stand or where counsel
is precluded from cross-examining or impeaching witness because of
conflicting loyalties.
2. U.S. District
Court Cases
1986:Hudson v. Lockhart
, 679 F. Supp. 891 (E.D. Ark. 1986). Counsel had actual
conflict that adversely affected representation in aggravated robbery
case where counsel also represented codefendant in joint trial. During
trial, the codefendant was positively identified as shotgun wielding
robber and the defendant was merely placed at the scene in a passive
role of customer who left premises before robbery commenced, and other
evidence against defendant was sparse. Nonetheless, counsel did not
attempt to shift blame to codefendant.
3. State
Cases
2003: State v. Thomas, 840 So.2d 25 (La. Ct.
App. 2003). Counsel in possession of stolen automobile case had an
actual conflict that adversely affected his performance where counsel
represented defendant and a testifying co-defendant with contrary
interest. The defendant was arrested as a passenger in the back seat of
a stolen vehicle. There were three co-defendants. One of the
co-defendants testified that she had been driving the car, which had no
key in the ignition and had clearly been started with a screwdriver or
some other instrument. She testified that it was dark and the car was
already running when she started driving though and that the defendant
had been driving the vehicle before her and had picked her up. The court
held that there were conflicting interests because the co-defendant
could only benefit by testifying that she assumed control of the vehicle
from the defendant while it was running. In presenting this testimony,
however, she provided the jury with a much stronger basis to conclude
that the defendant either knew or should have known that the car was
stolen. Without the co-defendant’s testimony, the state’s case would
have demonstrated only that the defendant was a rear passenger. The
attorney’s action in eliciting the co-defendant’s testimony was clearly
detrimental to the defendant.
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.
1996: Maya v. State, 932 S.W.2d 633 (Tex.
Crim. App. 1996). Counsel had actual conflict that adversely affected
representation in attempted murder case where counsel represented two
codefendants, who were husband and wife. The defendants were arrested
following a "road rage" type shooting. They retained the same counsel.
During trial, the husband asserted self-defense. The wife, however, had
made a prior statement and testified in a manner that revealed that the
shooting was not self-defense but anger that the victim had been
following too closely while driving. When the wife was called to
testify, counsel attempted to minimize her involvement without casting
the blame on the defendant. "This is an impossible task, and the tactic
compromised the defense of both clients. These dilemmas represent actual, not
possible, conflicts of
interest." Id. at 636. Prejudice presumed and
reversal required under Cuyler because
counsel failed to advise his clients of the potential conflict and to
obtain a waiver.
1995: Meyers v. State, 454 S.E.2d 490 (Ga.
1995). Counsel in murder case had actual conflict that adversely
affected joint representation of defendant and his codefendant, who was
defendant’s identical twin. Defendant was convicted and codefendant was
acquitted. An eyewitness testified that one of the twins entered a
pawnshop with another codefendant and and the non-twin codefendant shot
and killed one employee, shot her, and robbed the store. The witness
could not identify, which twin entered the store. The twins’ testimony
at trial was virtually identical. Prior to trial, however, one twin
(Aaron) stated that the non-twin codefendant took his mother’s gun and
had not returned it. The other twin (Arthur) stated that Aaron took his
mother’s gun on the morning of the murder and had given it to the
codefendant that actually shot the victims. Aaron was convicted and
Arthur was acquitted. Counsel had conflict that adversely affected
representation. Counsel harmed Aaron by putting Arthur on the stand in
light of his prior inconsistent statement that was damaging to Aaron and
in light of his inability to attack or impeach Arthur's testimony since
he represented him as well. Moreover, if counsel had not called Arthur
to testify, he might well have prejudiced Arthur and caused Arthur
rather than Aaron to be convicted on all charges.
People v.
Lee, 649 N.E.2d 457 (Ill. App. Ct. 1995). Counsel in drug
possession case had actual conflict that adversely affected
representation where counsel represented three codefendants with adverse
interests in joint trial. Defendant and his wife were visiting
codefendant’s apartment when a search warrant was served and drugs were
found. According to police, defendant admitted the apartment was his.
The codefendant informed counsel, however, that the apartment was hers
and that the defendant and his wife rarely even visited. Counsel did not
present this information at trial, however, and the court directed a
verdict acquitting codefendant and wife. The court found "that defense
counsel was between the proverbial rock and a hard place." Id. at 460. Had counsel challenged the evidence
that the apartment was not the defendant’s, he might have broken link
between defendant and the drugs, but only at the cost of establishing
for the state the fact of co-defendant’s control over the apartment.
1993: People v. Reyes, 622 N.E.2d 86 (Ill.
App. Ct. 1993). Counsel in unlawful use of weapon case had actual
conflict that adversely affected representation where counsel
represented both the defendant and codefendant. Defendant was stopped
for being on school grounds, from which he was barred because he was
suspended, and because it was reported that he had a gun in the car. He
had just picked up some of his friends as school let out. When the car
was stopped, the defendant and the four other occupants were patted
down. The car was then searched and a pistol was found in a gym bag. All
were arrested. Defendant admitted that the gun was solely his. Another
codefendant also admitted that the gun was solely his. Both were
charged. Prior to trial, the court sua sponte
raised concerns about a potential conflict. Counsel declared that there
were none. Counsel admitted, however, that he did not argue the motion
to suppress and lack of probably cause for the defendant as forcefully
as he might have otherwise because of the joint representation. Counsel
had an actual conflict that adversely affected representation. In order
to adequately defend the defendant, counsel had to argue that the
codefendant’s statement was true and that the gun belonged to him. He
could not do this because he represented the codefendant also.
1992: Gee v. State, 611 A.2d 1081 (Md. Ct.
App. 1992). Counsel in drug case had actual conflict that adversely
affected representation where counsel represented both buyer and seller
in joint trial. Defendant and codefendant were arrested after police
officers observed defendant purchasing heroin from codefendant. A public
defender was appointed to represent both. At a pretrial hearing, counsel
informed the court of a conflict because the government was offering a
plea to defendant in exchange for cooperation against counsel’s other
client. The trial court found no conflict and instructed counsel to
proceed with joint representation. The appellate court found that
conflict adversely affected defendant prior to trial. He had no defense
at trial and the conclusion was foregone. Because of the conflicted
representation though, defendant was deprived of the advice of counsel
in rejecting the government’s plea offer, which would have resulted in
only a seven-month sentence rather than the four years defendant
ultimately got.
When still debating within himself as to whether
to make such a bargain, [defendant] was entitled to the best advice and
wise experience of single-minded counsel. Notwithstanding [defendant]'s
tentative decision to stand by his codefendant, a lawyer concerned only
with [defendant]'s temporal welfare would have read him the riot act,
expatiated at length upon the folly of misguided loyalty, and persuaded
him to take the "deal" and run. [Defendant]'s lawyer, because of his
mutual allegiance to [the codefendant], however, was obviously paralyzed
from giving such tactically sound advice. It was in the very failure to
receive such advice that [defendant] was deprived of effective
assistance.
Id. at 1090. The codefendant, however, was
prejudiced at trial. His only defense was to deny any involvement in
criminal activity. An advocate for him would have argued that defendant
was found with drugs on him, the codefendant had nothing on him.
Unconflicted counsel would have argued that the exchange between the two
had nothing to do with drugs. Because counsel was conflicted, however,
codefendant was unable to place all the blame on defendant. Both
defendants granted new trial.
1990: State v. Martinez-Serna, 803 P.2d 416
(Ariz. 1990). Counsel in drug case had actual conflict that adversely
affected representation where counsel represented defendant and
codefendant in joint trial. Codefendant and defendant were arrested
after drugs were found in the truck driven by codefendant. Shortly after
arrest, codefendant admitted that the drugs were his and that the
defendant knew nothing about the drugs. Nonetheless, during trial both
codefendant and defendant testified that they were coerced at gunpoint
to transport the drugs. Counsel had an actual conflict that adversely
affected representation because counsel’s conflict dictated a united
defense when codefendant had previously admitted the drugs were
his.
Armstrong v.
State, 573 So.2d 1329 (Miss. 1990). Counsel had actual
conflict that adversely affected representation where counsel
represented defendant and codefendant in joint sentencing. Trial court
also erred in failing to inquire given the obvious conflict. Defendant
was 14 years old. His codefendant was 17. Both plead guilty to armed
robbery. The evidence was clear that the codefendant was the main
culprit and the defendant’s participation was minimal. Nonetheless, in
sentencing, counsel presented no evidence or argument for defendant or
codefendant "for fear that to do so would characterize one as being more
culpable than the other." Id. at 1333.
Counsel also refrained from arguing any other mitigation although
defendant had much available mitigation but instead defendant "graduated
from the seventh grade to the Mississippi State Penitentiary." Id.
1988: People v. Jones, 520 N.E.2d 325 (Ill.
1988). Counsel had conflict in robbery and murder case that adversely
affected representation where counsel represented defendant and
codefendant in joint trial. Defendant and codefendant made pretrial
statements admitting participation but claiming only to be the lookout.
During trial, defendant testified and denied all involvement for him and
codefendant. The codefendant did not testify at trial. Counsel argued
only that their confessions had been coerced. The court held that the
defendant was prejudiced by the conflict because the presence in
evidence of codefendant’s statement implicating defendant violated
defendant’s right to confrontation. The joint representation of the two
defendants in one trial created a clear conflict as to defendant,
because when co-defendant declined to testify, there was no way that
defendant’s attorney could effectively deal with the implicating
statement.
People v.
Taylor, 520 N.E.2d 907 (Ill. App. Ct. 1988). Counsel had
actual conflict that adversely affected representation where counsel
represented jointly tried codefendants with antagonistic defenses.
Counsel represented defendant and her nephew/codefendant. Prior to
trial, the court inquired into the conflict, but counsel assured the
court that there was no conflict and each defendant’s testimony would
support the other. During trial, however, defendant testified, contrary
to the state’s evidence that she was the leader, that codefendant was
actually the aggressor. Counsel was surprised by the testimony and opted
at that point not to cross-examine her to discredit her testimony. The
appellate court held that counsel had an actual conflict at that point
that adversely affected his representation of codefendant because
counsel did not attempt to discredit defendant’s testimony. The court
also reversed defendant’s conviction because she also was impacted by
counsel’s divided loyalties. Despite the purported pretrial waiver, the
court held that the waiver was inadequate because the conflict was not
apparent prior to trial. The court also held that "the right to
conflict-free counsel is so fundamental that a conflict of interest
affecting legal representation amounts to plain error when the record
plainly indicates the existence of an actual conflict of interest
precluding counsel’s undivided loyalty." Id.
at 911.
Cole v.
White, 376 S.E.2d 599 (W. Va. 1988). Counsel had actual
conflict that adversely affected representation where counsel
represented both defendant and defendant’s father in joint trial for
malicious assault. Evidence admitted in the trial showed that the father
had a motive for the victim’s beating and the father’s alibi witness had
been beaten by the father on several occasions. That evidence would not
have been admissible against the defendant if he and his father had been
represented separately or if the trials had been severed.
1987: Fitzgerald v. United
States, 530 A.2d 1129 (D.C. 1987). Counsel had actual
conflict that adversely affected representation in drug case where
counsel represented defendant and codefendant in joint trial and court
did not adequately inform defendants of their right to separate counsel.
In addition, differing amounts of evidence against each defendant with
respect to different counts of indictment foreclosed the attorney who
represented both defendants from using blame-shifting defense.
People v.
Pico, 514 N.E.2d 224 (Ill. App. Ct. 1987). Counsel had
actual conflict that adversely affected representation in aggravated
battery case where counsel represented defendant and codefendants in
joint trial, where credibility of each defendant was called into
question, and could not be restored without proving that at least one of
the others was lying.
Tate v.
State, 515 N.E.2d 1145 (Ind. Ct. App. 1987). Counsel had
actual conflict that adversely affected representation in theft case
where counsel represented both defendants in joint trial. One defendant
testified professing his own innocence, by suggesting that it was
co-defendant who stole groceries. Once that conflict arose, performance
of joint counsel was impaired as to both co-defendants by attorney’s
continued active representation, which precluded attorney from
cross-examining witnesses on behalf of each of co-defendants.
State v.
James, 739 P.2d 1161 (Wash. Ct. App. 1987). Counsel had
actual conflict that adversely affected representation in robbery case
where counsel represented defendant and codefendant in joint trial and
female defendant chose not to testify in her own defense because it
would be prejudicial to the other defendant, and where female defendant
was implicated in a robbery for which the other defendant was charged
and she was not.
1986: People v. Rhinehart, 385 N.W.2d 640
(Mich. Ct. App. 1986). Counsel had actual conflict that adversely
affected representation in drug case where counsel represented both
defendant and codefendant in joint trial. Defendant consented to joint
represent based on counsel’s initial decision not to have either
testify, but counsel without consulting defendant called codefendant to
testify about alibi and the testimony proved damaging to defendant.
Reversal also required because the trial court failed to adequately
inquire.
Matter of Delfin
A., 123 A.D.2d 318 (N.Y. App. Div. 1986). Counsel had
conflict that required presumption of prejudice in delinquency case
involving sexual abuse where counsel had been retained by residential
facility where juvenile had been voluntarily placed in foster care, and
where alleged incident of sexual abuse occurred, to represent the
facility in proceedings against the juvenile. At those proceedings it
was expected that employees of the facility would testify. Furthermore,
counsel represented two alleged accomplices whose statements about the
incident of sexual abuse differed from that of the juvenile.
1985: Armstrong v. People, 701 P.2d 17
(Colo. 1985). Counsel who jointly represented husband and wife in
aggravated robbery case had a conflict that adversely affected
representation of both where husband and wife defendants were charged
with differing degrees of criminal activity and the great bulk of the
evidence introduced was directed toward proving the husband’s
culpability. The wife elected to testify in her own defense, and offered
testimony in support of her husband’s defense as well. The only evidence
against the wife was circumstantial, but this was used to try and
benefit both clients, rather than have her acquitted.
Davis v.
State, 461 So.2d 291 (Fla. Dist. Ct. App. 1985). Counsel
had conflict that adversely affected representation in drug case where
counsel represented defendant and codefendant in drug case and elicited
testimony from defendant in motion to sever cases that defendant was
solely responsible and the codefendant had no knowledge of the drugs.
State v.
Lem’Mons, 705 P.2d 552 (Kan. 1985). Counsel had conflict
and prejudice was presumed where counsel’s husband/law partner
represented codefendant and defendant and codefendant each claimed
innocence and implicated the other.
1984: *Barclay v. Wainwright, 444 So.2d 956
(Fla. 1984). Counsel had conflict that adversely affected representation
in direct appeal of murder case where counsel represented defendant and
codefendant in joint appeal. Counsel failed to make plausible argument
of lesser culpability that could have benefitted defendant immensely but
would have harmed co-defendant and counsel had been retained by family
of codefendant and ultimately married the codefendant’s sister.
Amaya v.
State, 677 S.W.2d 159 (Tex. Crim. App. 1984). Counsel had
conflict that adversely affected representation in rape case where
counsel represented three defendants, who were brothers, in joint trial.
All three defendants were adversely affected in light of differing
culpabilities, such as one of them was not present during abduction and
only two of them had weapons. Witnesses repeated facts that were
consistent with only one of the brothers’ story. Defense counsel could
not redirect witness to clarify her factual account without damaging the
credibility of his other two clients.
Ex parte
Acosta, 672 S.W.2d 470 (Tex. Crim. App. 1984). Counsel had
conflict that adversely affected representation in probation revocation
case where counsel represented defendant and codefendant with adverse
interests in joint hearing.
1983: People v. V.W., 445 N.E.2d 445 (Ill.
App. Ct. 1983). Counsel had conflict that adversely affected
representation in delinquency case for aggravated battery where counsel
represented three codefendants in joint trial and the three gave
inconsistent testimony. Counsel was thus presented with a situation in
which it appeared that at least one of his three clients was lying, but
he could not examine his own clients in detail to bring out the truth.
State v.
Morrow, 440 So.2d 98 (La. 1983). Counsel had conflict that
adversely affected representation in kidnapping case where counsel
represented defendant and codefendant in joint trial. Counsel did not
present evidence, cross-examine witnesses or make arguments to jury on
state’s failure to prove defendant’s participation in initial abduction
of victim and on his undisputed lesser culpability in entire sequence of
events. That evidence and argument might have influenced jurors to
return different verdict
*Ex parte
McCormick, 645 S.W.2d 801 (Tex. Crim. App. 1983). Counsel
had conflict that adversely affected representation in capital case
where counsel represented two codefendants in joint trial. Evidence
supported findings that defendants did not waive their right to
conflict-free counsel, that there was irreconcilable conflict of
interest in representing both defendants, and that such conflict
adversely affected counsels’ performance of duties to defendants in that
helping one defendant necessarily hurt the other. Defendants were denied
effective assistance of counsel by such joint representation, especially
in capital case where jury must consider particularized circumstances of
individual offense and individual offenders.
1982: People v. Elston, 182 Cal. Rptr. 30
(Cal. Ct. App. 1982). Counsel had actual conflict that adversely
affected representation in child abuse case where counsel represented
defendant and codefendant in joint trial. Trial court erred in failing
to conduct inquiry when faced at outset with possibility that conflict
of interest existed precluding joint representation of defendants.
Actual conflict and deprivation of effective representation arose where
judge had to fix penalties for both defendants, and it appeared that
defendant could have attacked probation report’s allocation of
responsibility and its disparate sentencing recommendations. Each
defendant’s statements about origin of child abuse was affront to
other’s credibility, defense counsel did not make arguments on
defendant’s behalf that could have been made, defendants had disparate
criminal records, and each defense rested upon contradictory and
inconsistent interpretation of facts.
B. Simultaneous
Representation of Codefendants in Pleas Negotiations or
Sentencing
1. U.S. Court of Appeals
Cases
1992: United States v. Swartz, 975 F.2d 1042
(4th Cir. 1992). Counsel in bank fraud conspiracy had an actual conflict
that adversely affected representation in sentencing where counsel
represented defendant and codefendant and counsel objected to a lower
sentence for defendant because in counsel’s view both were equally
culpable. During the investigation, defendant retained counsel. Counsel
later agreed to represent the co-defendant as well and a written waiver
was signed by both. At the initial appearance and arraignment, the
Magistrate Judge conducted an inquiry and determined that the waivers
were valid. Defendant then negotiated a plea in which she would
cooperate in the prosecution of other coconspirators and would receive a
downward departure in sentencing. The codefendant also agreed to plead
guilty in exchange for some charges being dropped but his plea did not
include a downward departure in sentencing agreement. At the time of the
pleas, the District Court was informed that the Magistrate had held a
hearing and, thus, did not inquire further into the conflict. Following
the pleas, defendant and codefendant testified against another
coconspirator. During that trial, defendant became concerned that the
codefendant was lying and increasing defendant’s involvement. Defendant
was concerned that counsel could not properly represent her in
sentencing if counsel could not say anything derogatory about the
codefendant. Defendant asked counsel to withdraw from codefendant’s
representation and represent only her. Counsel offered instead to
withdraw from her representation and proceed only with codefendant and
then counsel assured her that he could proceed with both cases. Later,
defendant learned that she would be called as a witness at codefendant’s
sentencing. She again asked counsel to withdraw from representing the
codefendant because of the conflict, but counsel assured her that he
could represent both. During codefendant’s sentencing, counsel argued
that he and the defendant were equally culpable and should be sentenced
the same, even though codefendant was higher in the guidelines than
defendant even without her downward departure due to cooperation with
the government and the evidence was clear that defendant was less
culpable than the codefendant. Counsel’s strategy, while good for the
codefendant, clearly harmed the defendant. Later in the proceeding,
defendant was called to testify that codefendant was not coerced, as he
had previously testified. The court asked counsel why he persisted in
representing both and counsel just assured the court that defendant had
waived and the Magistrate Judge had inquired and resolved the issue.
Later the same day, defendant was sentenced. Represented by new counsel
she then filed a motion for new sentencing due to counsel’s conflict.
The Fourth Circuit held that counsel had an actual conflict in
sentencing when counsel argued in a fashion damaging to the defendant
and when the defendant testified. The conflict also adversely affected
counsel’s representation. Although defendant had previously signed a
waiver and the Magistrate Judge inquired, the Fourth Circuit has
"recognized that a single waiver pursuant to rule 44(c) may not serve to
waive all conflicts of interest
that arise throughout the course of that defendant's criminal
proceedings. The district court has a continuing obligation under rule
44(c) to guard against conflicts of
interest that may worsen as circumstances change during the course of
the representation." Id. at 1049. Defendant’s
initial waiver was insufficient to waive the conflict that ultimately
developed at sentencing when counsel’s argument was directly adverse to
defendant.
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.
1987: Thomas v. Foltz, 818 F.2d 476 (6th Cir. 1987). Counsel had actual conflict
that adversely affected representation in murder case where counsel
represented defendant and two-codefendants and negotiated a "package
deal" plea for all three to plead to second-degree murder. Counsel’s
joint representation of defendant and two co-defendants precluded
counsel from engaging in separate plea negotiations on defendant’s
behalf even though he was less culpable than the others because that
would have been detrimental to the interests of co-defendants who wished
to plead guilty.
1985: *Ruffin v. Kemp, 767 F.2d 748 (11th Cir. 1985). Counsel had actual conflict
that adversely affected representation in murder case where counsel also
represented codefendant and attempted to negotiate a plea for him in
exchange for testimony against defendant. While the codefendant did not
ultimately plead guilty, the court found an actual conflict that
adversely affected representation because counsel did not attempt to
negotiate a plea for defendant.
*Ford v.
Ford, 749 F.2d 681 (11th
Cir. 1985). Counsel had conflict that adversely affected representation
in murder case where counsel represented both defendant and his
codefendant/ brother and defendant plead guilty despite desire to go to
trial because state offered only a joint agreement to avoid death
penalty and defendant’s brother desired to plead guilty and ask for
mercy. Because counsel was in a position of divided loyalties and the
defendant and codefendant had divergent interests, he could not
represent both co-defendants without some conflict arising.
2. U.S. District
Court Cases
1999: Trejo v. United States, 66 F. Supp.2d
1274 (S.D. Fla. 1999). Counsel had actual conflicts that adversely
affected representation. Five codefendants signed agreement with
government for joint cooperation where the defendants understood that
cooperation by one would inure to the benefit of all. Ultimately, one
codefendant got a downward departure but the three involved here did
not. The court, although finding the government’s actions shaky, found
that the agreement did not prohibit this and that defense counsel should
have ensured that their understanding of the agreement was included in
the signed document. In a 2255 proceeding, the court learned that
initially all codefendants were cooperating. The three codefendants had
counsel, who shared office space, and "stood in" for each other at
various proceedings representing multiple defendants. One of the lawyers
essentially abandoned his client without notice to him. The remaining
two lawyers assured the defendants that the cooperation agreement was a
"group agreement" that would benefit all, that the agreement would not
be included in the plea agreement but was clear with the government, and
that they would receive sentences of only 5-10 years, which did not
happen. Counsel’s conduct was deficient in failing to include their
understanding of the plea agreement in the actual agreement and the
defendants would not have plead guilty if the government refused this
agreement. Counsel’s failures were due to severe conflicts of interest.
"The clients’ concept of cooperation as ‘one for all and all for one’
appears to have spilled over to their attorneys’ concept of
representation. Examples of this haphazard ‘group representation’ abound
in the record." Id. at 1286. Counsel were
meeting with other codefendants. In meetings with the government, at
times, some counsel and some defendants were missing. One counsel
withdrew from representation without his client or the court knowing
because of the "musical chairs" method of representation. Id. As a result, the "taint" of conflict spread
to all three defendants. Id. at 1287. Guilty
pleas set aside.
1990: Cates v. Superintendent, Indiana Youth
Center, 752 F. Supp. 854 (S.D. Ind. 1990). Counsel had
actual conflict that adversely affected representation in forgery,
theft, and burglary case where counsel represented defendant and
codefendant and negotiated a plea for codefendant that required
testimony against defendant. Following counsel’s negotiation of the plea
for the codefendant, counsel moved to withdraw due to the conflict. The
court allowed counsel to withdraw and defendant retained different
counsel who advised the defendant to plead guilty to avoid being charged
as a habitual offender. Although counsel at the time of the plea was not
conflicted, the court found that the initial counsel’s actual conflict
and the adverse affects required reversal of the plea. The court also
prohibited the state from using the codefendant’s testimony in any
retrial.
3. Military Cases
1987: United States v.
Newak, 24 M.J. 238 (1987). Counsel had actual conflict that
adversely affected representation in conduct unbecoming an officer case
where counsel represented both the accused and the enlisted woman with
whom she allegedly had homosexual relations and counsel negotiated a
plea on behalf of the enlisted woman that required her testimony against
the accused.
4. State Cases
2001: Thomas v. State, 346 S.C. 140, 551
S.E.2d 254 (2001). Counsel in drug case had actual conflict where
counsel represented husband and wife charged with drug charges. Counsel
initially informed defendant about dangers of joint representation and
received a waiver. Later, however, the prosecutor offered deal to allow
both to plead to lesser offenses for an eight year sentence or to allow
one to plead guilty to all and receive the maximum sentence while the
other had charges dismissed. The defendant plead guilty and received the
maximum sentence and charges against her husband were dismissed. Counsel
acted on his divided loyalty by failing to advise the defendant, whom he
believed to be the less culpable of the two, that she had nothing to
lose by proceeding to trial since she was receiving the maximum
punishment in the plea agreement.
"Although petitioner initially waived a conflict of interest,
once it became clear an actual conflict existed due to the plea bargain,
counsel should have either withdrawn from representing one or both of
them or acquired another waiver covering this specific conflict. To be
valid, a waiver of a conflict of interest must not only be voluntary, it
must be done knowingly and intelligently." 346 S.C. at 144, 551 S.E.2d
at 256.
2000: Ellis v. State, 534 S.E.2d 414 (Ga.
2000). Defense counsel had actual conflict of interest that adversely
affected her representation of robbery defendant. Three defendants were
charged. There was a positive identification of one. The non-identified
codefendant retained counsel and asked her to also represent the
defendant. Both initially claimed mere presence and that they remained
in the car while the identified codefendant and two other men committed
the robbery. A month before trial, the defendant told counsel that he
had been shown a weapon and asked to participate but he declined showing
prior knowledge of the planned robbery. Following that counsel told both
clients that if they went to trial they would need different lawyers and
arranged two other lawyers for them. Counsel continued, however, to
advise the two clients about possible pleas. On her advice, the
defendant entered an Alford plea. He
subsequently filed a motion to withdraw the plea due to the conflict of
interest. The court held that counsel had an actual conflict because she
continued to represent both defendants even though they had different
versions of their innocence defense. The conflict had an adverse affect
because counsel did not pursue a possible plea agreement for the
defendant to testify against his codefendant where the state’s evidence
was weak.
1998: *Sheridan v. State, 959 S.W.2d 29 (Ark.
1998). Counsel in capital trial had actual conflict of interest that
adversely affected representation due to counsel’s simultaneous
representation of defendant and his codefendant/brother. Both defendants
were charged with murder. Prior to trial, represented by counsel who
negotiated the plea, the codefendant agreed to plead guilty to hindering
apprehension and to testify against codefendant. Following the
defendant’s trial, the state dismissed the charges against the
codefendant. The defense at trial was self-defense. Defendant alleged
that he intended to scare the victim and she pulled knife out
threatening him. The codefendant testified that the victim had informed
the police that the defendant was dealing drugs and the defendant took
her out to a cemetery presumably to scare her. The codefendant left for
a few minutes and returned to find the defendant with blood on him.
Counsel asserted strategy because the codefendant would testify anyway
and he utilized the codefendant to corroborate defendant’s account of
events, but admitted that he "relaxed" his cross-examination of the
codefendant for fear that it might backfire. Court found that the
codefendant’s testimony was not helpful. While he corroborated some of
the defendant’s testimony, he also described the defendant as cool and
methodical following the killing, described the defendant’s activities
in attempting to cover for the killing, and the defendant’s threats to
kill another witness. Court also found that codefendant’s testify was
not inevitable because with different counsel he may have invoked right
to remain silent, which would have resulted in a much weaker case for
the state. Counsel’s representation was adversely affected because
counsel did not elicit the fact that the codefendant had been initially
charged with capital murder and had pled guilty to a much lesser charge in exchange for his
testimony. Counsel also did not point out that the codefendant had not
been sentenced for the hindering-apprehension charge and had the
potential to avoid serving time in prison if his testimony met with the
approval of the State. He also did not explore why the codefendant was
testifying against his brother and the fact that the victim's sister and
the codefendant were romantically involved. Counsel even admitted that
he had treated the codefendant carefully during cross-examination.
Garcia v.
State, 979 S.W.2d 809 (Tex. Ct. App. 1998). Counsel in drug
case had an actual conflict that adversely affected representation due
to simultaneous representation of defendant and codefendant. Defendant
plead nolo contendre to drug distribution and was placed on deferred
adjudication. Following a subsequent arrest, defendant moved to set
aside the plea due to counsel’s conflict of interest in representing her
and her boss. Counsel was informed by the state that if the defendant
did not plead both would be tried, but if the defendant entered a plea
the charges against her boss would be dismissed. Counsel informed the
defendant that if she did not plead her boss would lose his liquor
license, with the implication being that she would lose her job. Counsel
admitted that his primary interest was in getting the charges dismissed
for the boss/codefendant. Prejudice presumed.
1997: Netters v. State, 957 S.W.2d 844 (Tenn.
Crim. App. 1997). Counsel had conflict of interest that adversely
affected representation. Defendant and codefendant were charged with two
counts of attempted murder and aggravated burglary. Both were assigned
public defenders from the same office. The defendant wanted to go to
trial. The codefendant wanted to plead. Several days before trial, the
codefendant’s attorney, without defendant’s counsel being present (and
possibly without his knowledge), informed the defendant that if he did
not plead his codefendant would be forced to go to trial. He advised the
defendant to plead guilty to lesser charges and the defendant gave in
and entered a plea. His own counsel was not in the courtroom during the
beginning of the plea. He entered in the middle and took issue with
defendant’s statements that he had not properly represented him, but the
defendant continued with an Alford plea. The
defendant got eight years and his codefendant got three. Court found
that the public defender’s office was viewed as a whole and the office
had a conflict regardless of the appointment of two separate attorneys.
The proper focus is solely upon whether counsel's conflict affected
counsel's actions and the defendant's decision; therefore, it is
inappropriate to consider whether another attorney, untainted by
a conflict of interest, would also
have recommended a guilty plea. Id. at 848.
In this case, counsel’s representation was adversely affected where he
negotiated a joint plea, despite the defendant’s expressed desires to go
to trial. Prejudice presumed.
1995: Edgemon v. State, 318 S.C. 3, 455
S.E.2d 500 (1995). Counsel in burglary case had actual conflict that
adversely affected representation where counsel represented defendant
and two co-defendants. Initially, the state was negotiating with both
codefendants to plead guilty and testify against the defendant. One of
the codefendants entered an agreement to testify against defendant in
exchange for Pretrial Intervention (ultimate dismissal of charges
possible). Defendant ultimately plead guilty. Counsel testified in
post-conviction that he did not negotiate the codefendants’ deals but
did emphasize to the prosecutor that the codefendants were less culpable
than the defendant. Counsel should have withdrawn from the joint
representation.
1994: State v. Dadas, 526 N.W.2d 818 (Wis.
Ct. App. 1994). Trial court erred in failing to inquire into conflict.
Defendant and codefendant charged with commercial gambling. Counsel
initially advised both of a potential conflict, which they purportedly
waived. After consulting with the government, counsel advised both that
if they cooperated with authorities, no prison time would be sought.
Each gave statements incriminating themselves and the other. Counsel
then entered plea negotiations that would allow jail time with more time
for defendant. Defendant plead no contest pursuant to the agreement. The
trial court never conducted an inquiry as required by state law into the
potential conflict, although the court knew about the dual
representation. The appellate court declined automatic reversal and held
that when the trial court failed to inquire the appellate court would
conduct de novo review to determine whether
an actual conflict existed. Appellate court found actual conflict because counsel advised
codefendant to cooperate with law enforcement and provide incriminating
information against defendant. This information could serve as a basis
for additional criminal charges, either federal or state, against
defendant and could affect sentencing in which the information was also
used. New sentencing granted.
1993: State v. Padilla, 859 P.2d 191 (Ariz.
Ct. App. 1993). Counsel in drug case had actual conflict that adversely
affected representation where counsel represented the defendant and his
codefendant/wife. Defendant was arrested after making a sale to an
informant. His family members were separately charged in "companion
cases." Counsel was retained to represent defendant, defendant's wife,
his brother, and his sister-in-law at a package rate on all the drug
charges stemming from the same investigation and involving the same
informant. The defendant entered an Alford
plea pursuant to a plea agreement. Although counsel did not attempt to
plea bargain in exchange for the defendant’s testimony against other
family members, no adverse affect found because defendant testified in
post-trial hearing that he would have rejected such a deal. Adverse
affect was found in sentencing, however, because an unconflicted counsel
would have asserted defendant’s reduced culpability in the family
enterprise as compared to his brother. More importantly, counsel acted
adversely to defendant when he indirectly shifted the blame to defendant
from his wife at her sentencing hearing immediately before defendant’s
sentencing. Seeking leniency for the wife, counsel implied – before the
same judge that sentenced defendant – that defendant had led his wife
astray. This implicit advocacy against the defendant amounted to
ineffective assistance and adversely affected representation. Remanded
for new sentencing.
1992: Littlejohn v. State, 593 So. 2d 20
(Miss. 1992). Counsel in drug conspiracy case had actual conflict that
adversely affected representation where counsel simultaneously
represented the government’s primary witness for same offense. Following
arrest, defendant retained counsel. The retainer agreement noted a
potential conflict with witness. Counsel then represented witness in
entering a plea to drug conspiracy charges in exchange for a reduced
sentence and testimony "in a subsequent proceeding." During trial, three
codefendants, who had entered pleas, and witness testified against
defendant. The testimony revealed that, although the witness had been
separately indicted, he was part of the same conspiracy with the
defendant and her codefendants. In cross-examining the codefendants,
counsel established that they had plead guilty in exchange for their
testimony. Counsel did not ask that question of the witness, however.
And, although counsel objected, the state brought out that counsel had
represented the witness in his plea. The Mississippi Supreme Court’s
analysis begins with the brilliant observation that "[u]nder our system
of jurisprudence, if a lawyer is not one hundred percent loyal to his
client, he flunks." Id. at 23. When dealing
with actual conflicts of interest in representation of codefendants,
Competency of defense counsel is not then the
issue; loyalty of counsel is. And when the reviewing court concludes
that the defense lawyer in fact had "an actual conflict of interest," it
does not "indulge in nice calculations as to the amount of prejudice
attributable to the conflict. The conflict itself demonstrates a denial
of the right to have the effective assistance of
counsel."
Id. The court notes that the witness waived
grand jury proceedings and was charged and plead guilty on the same day.
"This would not have occurred in the absence of preceding serious,
meaningful negotiation and a clear and distinct understanding between
the prosecution and defense counsel." Id.
And, the court notes that when the witness plead guilty the others had
not even been indicted yet. In its analysis, the court discusses the
prosecution’s duty to inform the court of conflicts and not to proceed
without doing so when the prosecution knows of a conflict.
Austin v.
State, 609 A.2d 728 (Md. 1992). Counsel had actual conflict
in drug case that adversely affected representation where two partners
represented defendant and codefendant that testified against him.
Defendant was indicted with six codefendants. Defendant retained
counsel. A codefendant retained same counsel. Initially they were
represented by same counsel and then later a partner in the same firm
took over representation of the codefendant. At a pretrial hearing, the
court inquired about status of each of the cases without the presence of
the other codefendants and counsel. The codefendant indicated she had
agreed to plead guilty in exchange for her testimony against the
defendant. The trial court noted a potential conflict and instructed
codefendant’s counsel not to inform defendant’s counsel, his partner,
that the codefendant had agreed to plead guilty and would be testifying
against defendant. Defendant proceeded to trial. Counsel objected to the
gag order against his partner and requested a transcript of the hearing
held concerning the codefendant’s status. The prosecutor informed the
court (different judge) that the prior actions were necessary due to
counsel’s conflict and that the prior judge had not conducted a hearing
on the conflict. The court did not inquire but sent the case back to the
initial judge, who refused to lift the gag order. The case then
proceeded to trial. The codefendant testified against defendant. At
defendant’s sentencing, counsel indicated that he had talked to the
codefendant a number of times during his representation of her prior to
her plea agreement and that she had never implicated the defendant. The
appellate court held that "the presence or absence of an actual
conflict of interest should be resolved by the same principles,
regardless of whether the codefendants are represented by the same
attorney or by law partners." Id. at 731-32.
Actual conflict clear here where counsel represented defendant and
codefendant/witness in the same proceeding. Adverse affect found where
counsel stated in sentencing that the codefendant/witness had made
numerous statements to him that did not implicate the defendant, but
counsel made no attempt at trial to cross-examine the codefendant
concerning these prior statements. The court declines to determine
whether this would be sufficient for reversal though because the court
found that the trial court’s gag order that in effect reduced
defendant’s defense team clearly adversely affected representation. The
trial court should have instead made a determination of whether the
defendant was willing to waive the conflict. The court also declined to
hold that the question could only be resolved in post-conviction
proceedings because it was the trial court’s actions that created the
adverse affect here.
1989: Tarwater v. State, 383 S.E.2d 883 (Ga.
1989). Counsel in murder case had actual conflict that adversely
affected representation where counsel represented all three defendants
in pleas where "plea bargain required that unless all three plead
guilty, none could." Id. at 884. Actual
conflict found because counsel not bargain for defendant without
jeopardizing the bargains for the codefendants. Per se adverse affect found "when counsel
representing multiple defendants negotiates a plea bargain conditioned
upon more than one pleading guilty." Id. at
885.
1988: Ingle v. State, 742 S.W.2d 939 (Ark.
1988). Counsel in drug case had actual conflict that adversely affected
representation where counsel represented both defendant and codefendant
in plea negotiations. Initially, defendant and codefendant had the same
charges and counsel attempted to negotiate an equal deal. After the
defendant was charged with additional offenses, however, counsel argued
in negotiating for the codefendant that defendant was more culpable even
on the initial charges. The court observed that "[w]hen a substantial
disparity of evidence or of charges exists, it is unusual if an actual
conflict does not also exist." Id. at 941.
Here, an actual conflict was apparent because counsel was "was playing
one client against the other." Id. Counsel’s
representation was adversely affected because he virtually abandoned
defendant in order to get a better offer for codefendant.
1988: Williams v. State, 529 N.E.2d 1313
(Ind. Ct. App. 1988). Counsel in robbery case had actual conflict that
adversely affected representation where counsel represented both
defendant and codefendant. Prior to trial, counsel negotiated a plea to
a lesser charge for codefendant. During the plea hearing codefendant
provided factual statements implicating defendant. Defendant then
proceeded to a bench trial before the same judge who took codefendant’s
plea. In sentencing, counsel argued for leniency for codefendant his
participation was minimal and defendant had greater culpability.
Commonwealth v.
Green, 550 A.2d 1011 (Pa. Super. Ct.1988). Counsel had
actual conflict that adversely affected representation in burglary case
where defendant’s counsel and codefendant, who pled guilty and testified
against defendant, were members of the same public defender office.
Defendant denied knowledge of burglary, but codefendant testified that
defendant was involved. Defendant asserted a conflict of interest and
the trial court properly granted defendant a new trial.
1984: People v.
Simmons, 352 N.W.2d 275 (Mich. Ct. App. 1984). Counsel had
conflict that adversely affected representation in manslaughter case
where counsel simultaneously represented defendant and codefendant in
sentencing. Conflict developed when counsel in order to arguing for more
lenient sentence for defendant would have had to emphasize codefendant’s
greater degree of culpability. Remanded for resentencing of
defendant.
1982: State v. Ross, 410 So.2d 1388 (La.
1982). Counsel had a conflict that adversely affected representation
where counsel represented defendant and codefendant and negotiated a
plea for codefendant to testify against defendant. During trial, the
codefendant testified that it was defendant who had initiated the armed
robbery, struck the victim, and robbed the cash register. Defense
counsel did not extensively cross-examine codefendant, who was sentenced
to five years for his participation in the robbery, while defendant was
sentenced to hard labor for a period of thirty-five years without
benefit of probation, parole, or suspension of sentence.
C. Simultaneous
Representation of Codefendants in Severed Trials
1. U.S. Supreme Court
Cases
1980: Cuyler v. Sullivan, 446 U.S. 335
(1980). Court held that in multiple representation cases where there is
no objection at trial, the defendant must demonstrate that an actual
conflict of interest adversely affected counsel’s performance in order
to get relief under the Sixth Amendment. Two retained counsel
represented three co-defendants in murder case. The defendants were
tried separately. Sullivan was tried first and convicted. The state’s
case was entirely circumstantial and the defense presented no evidence.
None of the defendants objected to multiple representation. The Court
held that nothing in the Sixth Amendment requires state courts to
initiate inquiries into multiple representation "[a]bsent special
circumstances." Id. at 346. "Unless the trial
court knows or reasonably should know that a particular conflict exists,
the court need not initiate an inquiry." Id.
at 347. In this case, there was no objection to the multiple
representation and the risk of conflict was reduced by the provision of
separate trials. Likewise, the court of appeals found that the decision
to rest with no defense evidence was on its face a reasonable tactical
response to the weakness of the state’s circumstantial evidence. Id. at 347. Thus, the trial court did not have
an affirmative duty to inquire into the propriety of multiple
representation. Id. at 348. Likewise, the
Court held, "In order to establish a violation of the Sixth Amendment, a
defendant who raised no objection at trial must demonstrate that an
actual conflict of interest adversely affected his lawyer’s
performance." Id. at 348. Once the defendant
shows that the conflict "actually affected the adequacy" of
representation, there is no requirement that the defendant "demonstrate
prejudice." Id. at 349. The Court remanded
this case to the court of appeals to apply these standards in Sullivan’s
case.
*Burger v.
Kemp, 483 U.S. 776 (1987). Counsel in murder case did not
have an actual conflict that adversely affected representation due to
his partner’s representation of codefendant in severed trial. Petitioner
was charged along with codefendant in murder. Both defendants confessed.
They were tried separately. During defendant’s trial, his codefendant’s
statement was not offered and the codefendant did not testify. Following
defendant’s trial, while still representing defendant on appeal, counsel
assisted his partner in representing the codefendant at his trial and on
appeal. The court found no "active representation of competing
interests" and that the joint efforts may have actually benefitted the
defendant. Id. at 784. "Moreover, we
generally presume that the lawyer is fully conscious of the overarching
duty of complete loyalty to his or her client." Id. While counsel did not assert defendant’s
lesser culpability on appeal when he was also representing the
codefendant, this was a proper strategic decision.
As we reaffirmed in Smith
v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434
(1986), the "process of ‘winnowing out weaker claims on appeal and
focusing on’ those more likely to prevail, far from being evidence of
incompetence, is the hallmark of effective appellate advocacy. Jones v. Barnes, 463 U.S. 745, 751-752, 103
S.Ct. 3308, 3312-3313, 77 L.Ed.2d 987 (1983).
Id. In addition, in order to show an actual
conflict, petitioner must show that counsel’s motive for not raising the
issue was his partner’s representation of the codefendant or his
involvement in that case. The court also found that even if counsel had
an actual conflict, it did not affect counsel’s advocacy. Counsel
attempted to plea bargain but was rebuffed by state. Counsel also was
not prohibited from arguing petitioner’s lesser culpability because he
was tried separately from the codefendant.
2. 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 did not
adequately resolve the issue. 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. The
petitioner’s best defense would have been to contend that the drugs
belonged to the co-defendant and there was strong evidence indicating
that the co-defendant and not the petitioner actually controlled the
drugs. During petitioner’s trial, however, counsel not only failed to
argue that the co-defendant was guilty, but he affirmatively argued that
she was innocent and seemed to concede that the co-defendant’s room was
actually the petitioner’s room and that the petitioner was the person
identified by the confidential informant, which was not the case. While
attempting to present a common defense, counsel took on a heavier burden
than would have been necessary in defending the petitioner alone
because, while it was plausible that one woman in the house was innocent
of involvement with the drugs, it was far less plausible that both were.
Nonetheless, counsel failed to even present any evidence that the
co-defendant lived in the home. Instead of this obvious defense, counsel
chose to point the finger at two other men because his duty of loyalty
to the co-defendant would have been breached had he actively pursued a
theory that she was guilty of the charges while he was currently
representing her in a trial on those same charges. Here, where counsel
chose to forego an obvious and strong defense to avoid inculpating
another client, the court found that counsel labored under an actual
conflict of interest establishing a Sixth Amendment violation under Cuyler v. Sullivan. The court also found that
counsel was ineffective under the standard of Strickland v. Washington because counsel failed
to present a strong argument in petitioner’s case that the co-defendant
actually possessed the drugs. 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.
1986: Nealy v. Cabana, 782 F.2d 1362 (5th Cir. 1986). Counsel had actual conflict
that adversely affected representation in robbery case where counsel
simultaneously represented a codefendant in severed trials. During
trial, the state presented evidence that the codefendant made statements
to police that incriminated defendant. The codefendant denied making
these statements but was not called to testify because of counsel’s
concern that codefendant would be harmed in his upcoming trial. While
the state argued that the codefendant’s testimony would have
incriminated the defendant and no counsel would have called him to
testify, the court held that whether the codefendant’s testimony would
or would not ultimately have incriminated defendant or not was not the
issue. The issue was that counsel was unable to decide whether to call
the codefendant to testify unfettered by the conflict.
1983: Sullivan v. Cuyler, 723 F.2d 1077
(3rd Cir. 1983) (affirming 553 F. Supp.
1236 (E.D. Pa. 1982)). Counsel had conflict that adversely affected
representation in murder case where counsel represented defendant and
codefendant in severed trials. Defendant proved that the joint
representation generated a conflict that adversely affected his
representation, in that his attorneys decided not to call co-defendant
to testify on a crucial matter because co-defendant was awaiting trial
for the same murders.
3. Military
Cases
1999: United States v. Henry, 50 M.J. 647
(N.M. Crim. App. 1999). Actual
conflict of interest existed which adversely impacted accused
as result of accused's representation on conspiracy charge by assistant
defense counsel who had previously represented four other alleged
co-conspirators. Some of the representations were in unrelated
courts-martials. One, who testified in appellant’s trial, was in an
administrative discharge proceeding possibly related to this case. One
was in a court-martial on these same charges. Counsel did not disclose
the conflicts to the client and left discussions and advice to a junior
counsel with little experience, but the junior counsel was not even
aware of all of the conflicts. Although the accused decided to plead
guilty, he was adversely affected by the conflict because he was not
fully informed of the conflict and the potential impact of that conflict
on his detailed assistant defense counsel. The accused did not make a
knowing waiver. He did not even know of the conflicts until after he
plead guilty and then he was not allowed the opportunity to talk to
independent counsel and the judge informed him of the apparent conflict,
but did not inform him of the exact nature or possible impact of the
conflicts. Finally, the court held that the "burden to show the
non-existence of an adverse impact lies with the Government." Id. at 653. Here, "[a]lthough appellant need not
show any adverse impact, a review of the record shows that it existed,
id. at 654, because conflicted counsel
limited his own representation by limiting contact with the accused and
leaving that to less experienced counsel. Counsel also recognized that
if the case wqA contested, he would be limited in his participation
because conflict issues would arise. Thus, "[h]e had at least an
arguable interest in getting appellant to plead guilty to avoid the
conflict of interest appearing on the record." Id. at 654.
4. State
Cases
1988: State v. Livingston, 366 S.E.2d 654 (W.
Va. 1988). Trial court erred in failing to appoint separate counsel for
defendant and her husband in breaking and entering case where their
interests clearly conflicted since the only evidence of husband’s guilt
was the defendant’s statement. The same counsel was appointed to
represent them and their cases were severed. Defendant was convicted and
the charges were then dismissed against the husband.
1987: Dowell v.
Commonwealth, 351 S.E.2d 915 (Va. Ct. App. 1987). Trial
court failed to adequately inquire in grand larceny case where counsel
represented defendant and two co-defendants called as witnesses to
testify against her. Counsel objected to the state calling the two
witnesses whom he also represented in connection with this same offense.
Conviction vacated and proceeding remanded for the trial court to decide
whether the defendant validly waived her right to independent counsel.
If not, then a new trial would be required.
D. Simultaneous Representation of Codefendants in
Post-Trial Proceedings (U.S. Court of Appeals Cases
only)
2001: Reynolds v. Chapman, 253 F.3d 1337
(11th Cir. 2001). Counsel in rape and kidnapping case had an actual
conflict that adversely affected post-trial representation. Defendant
and two codefendants were all represented by the same public defender’s
office. Another codefendant retained private counsel. The codefendants
represented by the public defender office negotiated pleas, but the
defendant rejected any possible plea agreement and went to trial along
with the codefendant that was represented by private counsel. The
codefendants that pled out did not testify. During the trial, counsel
argued that the codefendant also on trial was more culpable. Both
defendants were convicted. Following the trial and sentencing, private
counsel for the codefendant withdrew and counsel was also appointed to
represent him in his motion for new trial. Counsel ultimately filed the
same motion for new trial on behalf of both the defendant and his
codefendant. The defendant was not aware of any of the potential
conflicts at the time. The court held that the public defender office’s
concurrent representation (in rape and kidnaping trial) of defendant and
two codefendants was only a potential conflict that did not have adverse
affect on counsel. With respect to the post-trial representation,
however, the court observed that counsel "was in the untenable position
of advancing arguments urging that two defendants be granted a new trial
after each of those defendants had spent the entire trial attempting to
foist blame on the other." Id. at 1345.
Counsel made arguments about the lack of evidence against the defendant
but did not argue the relative strength of the evidence, which pointed
primarily to the codefendant. Counsel also did not argue that the
defendant was unduly prejudiced by the codefendant’s false testimony
supported by his mother, who was held in contempt for giving false
testimony. Reversal required under Cuyler v.
Sullivan to allow new post-trial proceedings.
E. Simultaneous Representation of Government Witness in
Related Case
1. U.S. Court
of Appeals Cases
2000: *Perillo v.
Johnson, 205 F.3d 775 (5th Cir. 2000). Counsel in capital
trial had actual conflict of interest that adversely affected
defendant’s representation due to prior and concurrent representation of
the state's star witness. Defendant initially indicted for murder along
with two codefendants. She was tried, sentenced to death, and then had
the case reversed. The first codefendant ultimately had the murder
charges dropped and proceeded to trial on two aggravated robbery charges
represented by counsel, who argued that all of the blame should be
placed on the defendant and the other codefendant. The codefendant was
convicted but sentenced to only five years probation. Following the
trial, counsel remained close to the codefendant and even flew from
Texas to California to serve in her wedding by giving the bride away.
When the second codefendant was tried, counsel was instrumental in
putting the first codefendant in touch with the victim’s family and
obtaining her immunized testimony against the second defendant. The
immunity negotiated for the codefendant would not, however, have
protected her from perjury charges if her testimony was later proven
false. The testimony against the second codefendant ensured death for
him but also was more damaging for the defendant than any prior
statement and painted her as the most culpable. Counsel represented the
first codefendant during the second codefendant’s trial and she stayed
in counsel’s one-bedroom apartment for 7-10 days during that proceeding.
Ultimately, the defendant’s retrial was scheduled and counsel was
appointed to represent her. The defendant was not made aware of any of
the above information other than the fact that counsel represented the
codefendant in her trial and secured a favorable sentence for her. When
the trial court issued a subpoena for the first codefendant (living in
California) to testify, she indicated a desire to quash the subpoena.
Counsel flew to California to represent her in that proceeding. Counsel
also represented the first codefendant during the time that she was
offered immunity for her testimony against the defendant. During the
trial, the first codefendant/witness again stayed in counsel’s home.
Counsel had his associate meet with the witness. The associate informed
counsel that he had a conflict of interest due to the dual
representation. Outside the associate’s presence, counsel also went over
with the witness her prior testimony and what he intended to ask her in
cross-examination. On the day, the witness appeared for trial, there is
some question as to whether counsel stated that he had advised her to
lie in the second codefendant’s trial and that she needed to continue
that lie. During the witness’ testimony, the state attempted to
establish that she had an on-going relationship with counsel and
counsel’s associate intervened to say that he represented her and
advised her to assert the attorney-client privilege. Once it became
apparent that the witness would not follow his advice, the associate
left. The witnesses’ testimony again revealed only the prior trial
representation without more and the trial court did not inquire further.
The witness repeated her damaging testimony from the second
codefendant’s trial but also expanded upon it to add new details without
objection from counsel. During cross, counsel actually bolstered the
witness’ credibility and did not impeach her credibility or expose her
ulterior motives although both avenues were ripe. Counsel also brought
out in cross alleged prior bad acts not developed by the state in direct
examination. He even brought out false testimony, such as testimony that
the witness did not receive any benefit for her testimony against the
second codefendant and that counsel was not present then. During much of
this cross, the defendant told counsel that the witness was lying and
asked him to conduct a more vigorous cross-examination. Counsel only
called one witness in defense and that was to say that the defendant had
made a statement, that went unsigned, claiming sole responsibility for
the murder. The state had not offered this statement in evidence.
Counsel’s argument during the trial was aggravating. In sentencing,
counsel did present mitigation and argued for mercy, but stated that the
case was never about guilt-or-innocence. The court also noted that
counsel was ultimately disbarred for lying to a client. The court found
an actual conflict that adversely affected representation. Counsel had a
continuing duty of loyalty based upon his former and concurrent
representation of the witness. If he had impeached her, she could have
been prosecuted for perjury. By not impeaching her, he gave up plausible
defense strategies that could have had significant impact with respect
to the defendant’s guilt and punishment. Moreover, counsel elicited
damaging testimony from the witness/client that the state had not even
elicited.
1990: McConico v. Alabama, 919 F.2d 1543
(11th Cir. 1990). Counsel had conflict that adversely affected
representation in murder case where defendant claimed self-defense and
counsel simultaneously represented a witness who was the victim’s life
insurance beneficiary. Defendant was tried and convicted of the shooting
death of his brother-in-law. His wife was a beneficiary of victim’s life
insurance policy, which included a clause excluding payment if the
defendant’s self-defense claim were established. Defendant and wife, who
was also a witness, were represented by the same counsel. Counsel had
conflict because he had to cross-examine his own client and the "success
of one client depend[ed] on discrediting another." Id. at 1547. The representation was adversely
affected because counsel did not call important witnesses, did not
adequately cross-examine or impeach the wife with prior inconsistent
statements, and did not attempt to exclude her testimony on the basis of
privileged marital communications. A petitioner need not show that the
trial outcome would be different, but merely that the conflict had some
adverse effect on counsel’s performance.
2. State
Cases
2003: *State v.
Cisco, 861 So. 2d 118 (La. 2003). Counsel in capital murder
trial had an actual conflict of interest for which the defendant did not
make a knowing an intelligent waiver due to counsel’s representation of
the lead investigator, who was also a key witness for the state. The
record reflected only that counsel represented the lead investigator and
his wife in separate family law matters without any additional detail.
The crime for which the defendant was arrested remained unsolved for a
year before the defendant became a suspect. In initial questioning, he
denied involvement, but then confessed to involvement in more than
nineteen contradictory statements, with the majority being given to the
lead detective. There was no physical evidence linking the defendant to
the crime scene. Outside of the defendant’s confessions, the only other
inculpatory evidence was the identification of the defendant in a
physical lineup by an eyewitness. This witness had never been able to
give a detailed description of the assailant and allegedly remembered
for the first time during the physical lineup that one of the assailants
had a tattoo on his hand as the defendant did. During the trial, the
defense theory was that the defendant gave false confessions as a result
of his turbulent upbringing and long-term substance abuse beginning when
he was six years old. The defense also challenged the reliability of the
identification. On the day that counsel was appointed, she requested
that the physical lineup be postponed, but the detective had already
obtained the defendant’s permission to proceed without her presence. It
was during that lineup that the eye-witness identified the defendant.
When counsel first met with the defendant, he apparently recognized the
potential for conflicting interests and sent the defendant a letter in
which she informed the defendant of her representation of the detective.
She, nevertheless, left it up to the defendant to decide whether she had
a conflict and whether he wanted to continue with her representing him.
Several weeks later at the defendant’s arraignment, counsel informed the
court of the dual representation and presented a written document that
the defendant had signed, allegedly waiving the conflict. The trial
judge made only a cursory inquiry and, like the defense counsel,
effectively left it to the defendant to decide for himself whether an
actual conflict of interest existed. The defendant was arraigned before
a different judge, who was also aware of the potential conflict, but,
nonetheless, without conducting a hearing, found that counsel could
continue representation. In another court hearing held more than a year
prior to trial, counsel informed the court that the defendant had made
several written allegations of collusion between counsel and the lead
detective. Without inquiring into any detail, the court elicited a
statement that the defendant wanted counsel to continue representing
him. Ultimately, eleven months later, the case went to trial, and the
defendant was convicted and sentenced to death. The court held that a
defense attorney required to cross-examine a current or former client on
behalf of a current defendant suffers from an actual conflict. Here,
there was such an actual conflict, but neither trial judge adequately
informed the defendant that counsel’s representation could be negatively
affected in an attempt to obtain a knowing and intelligent waiver from
the defendant. Likewise, neither counsel nor the trial court, ever
explained to the defendant that he had a right to obtain other counsel.
Under these circumstances, the court found that the defendant had not
made a knowing and intelligent waiver of his right to the assistance of
conflict-free counsel.
1988: *People v.
Easley, 759 P.2d 490 (Cal. 1988). Counsel in capital
sentencing had an actual conflict that adversely affected representation
due to counsel’s simultaneous representation of a government witness in
related proceedings. During initial trial, defendant was represented by
a public defender. During the sentencing, the state presented evidence
of defendant’s prior involvement in the arson for hire of the Chicken
Ranch brothel in Nevada, including testimony from the owner of the
brothel who provided the only direct evidence that defendant was
connected to the owner of a business competitor that allegedly planned
the arson. Following trial, the owner of the Chicken Ranch, who was
suing his competitor for the arson, agreed to retain counsel to
represent defendant on appeal in exchange for defendant’s immunized
testimony in a pending federal criminal trial admitting that he
committed the arson. Represented by counsel, who also represented the
Chicken Ranch owner, on direct appeal, the death sentence was reversed.
Prior to resentencing, defendant’s initial public defender was allowed
to withdraw because he had a conflict. At defendant’s request, counsel
was appointed to represent defendant. The government informed the court
that counsel also represented a witness – the Chicken Ranch owner – and
that counsel could be a witness if the defendant testified and denied
the arson because counsel had elicited the defendant’s confession to the
arson. The trial court advised defendant that he had a right to
unconflicted counsel but did not conduct an indepth inquiry. The
California Supreme Court held that counsel had an actual conflict
because it was in defendant’s interest to prove that he did not commit
the prior arson while it was in the witness’ interest in the civil suit
to prove that defendant did commit the arson. Counsel’s representation
was adversely affected because counsel did not attempt to impeach the
witness with his obvious financial interest in establishing defendant’s
guilt of the arson. Counsel also failed to present any evidence to
negate or mitigate defendant’s involvement in the arson. The court also
held that the defendant did not make a valid waiver of the conflict.
Although the court informed defendant of his right to conflict-free
counsel, the court never advised defendant of the full range of dangers
and possible consequences of the conflicted representation and never
asked the defendant for a waiver. Furthermore, the trial court was too
willing to accept counsel’s representations of no conflict when
counsel’s judgment in representing such clearly conflicted interests was
questionable. Finally, the court held that it was irrelevant that
defendant requested counsel and that this was not a case involving the
right to retained counsel of choice because counsel was appointed by the
court not retained.
1987: People v.
Stewart, 511 N.Y.S.2d 715 (N.Y. App. Div. 1987). Counsel
had actual conflict that adversely affected representation in murder
case where counsel simultaneously represented the defendant’s father,
who was the state’s primary witness, and the father turned defendant in
because he wanted defendant to get treatment for mental illness.
1985: Gordon v. State, 684 S.W.2d 888 (Mo.
Ct. App. 1985). Counsel had conflict that required automatic reversal
where counsel previously represented the state’s primary witness on
unrelated charges and simultaneously represented government witness in
related parole revocation proceedings.
F. Simultaneous Representation of Persons Implicated
(But Not Jointly Charged)
1. U.S. Court
of Appeals Cases
2001: Lockhart v.
Terhune, 250 F.3d 1223 (9th
Cir. 2001). Counsel in murder and attempted murder trial had an
actual conflict of interest that adversely affected counsel’s
representation where prosecutors presented evidence that petitioner had
committed a second, earlier murder and his appointed counsel was also
representing another man implicated (but not charged) in that earlier
homicide. According to the district court, after being appointed to
represent both Lockhart and Galbert, Defense counsel learned during the
simultaneous representation of the conflict and had both clients to sign
waivers. The waiver signed by petitioner did not, however, disclose the
nature of the conflict. Counsel also informed the court his other
client’s alleged possession of the gun used in the prior shooting was
the only basis of the conflict, when the other client had also been
identified by two people as one of the shooters in the prior murder.
Likewise, there was no evidence that counsel ever told petitioner that
he had decided not to pursue the allegations against the other man as
part of petitioner’s defense. Actual conflict clear because could not
fairly represent the conflicting interests where (1) allegations that
the other client actually shot the prior victim suggested that he was
more culpable than the petitioner, but (2) it was in the other client’s
interest to have petitioner convicted of the offenses with which he was
charged because of the connection between those crimes and the uncharged
murder. Also clear that the conflict adversely affected petitioner’s
defense. The state court required petitioner to show that the conflict
of interest "prejudicially affected" his representation. This was
contrary to clearly established federal law holding that prejudice must
be presumed if adverse affect shown, whether it rises to the level of
actual prejudice or not. The state court also held that petitioner could
not show prejudice because proof of the other client’s guilt would not
exculpate petitioner. Under clearly established federal law, a conflict
gives rise to an adverse effect when it "‘prevent[s] an attorney ...
from arguing ... the relative involvement and culpability of his clients
in order to minimize the culpability of one by emphasizing that of
another.’" Wheat v. United States, 486 U.S.
153, 160 (1988) (quoting Holloway, 435 U.S.
at 490. Here, counsel was unable to emphasize other client’s involvement
in uncharged murder to minimize petitioner’s involvement and a number of
counsel’s actions and inactions can "likely" be attributed to the
conflict and counsel’s desire to protect his other client. This is
sufficient to satisfy the "adverse effect" prong of the conflict of
interest test. The state court also denied relief based on a finding of
a valid knowing and intelligent waiver. The state court’s conclusion was
an unreasonable application of Supreme Court precedent, however, because
a valid waiver requires that the petitioner be sufficiently informed of
what he is waiving and the ramifications. Here, petitioner did not know
that counsel’s other client had actually been accused of the prior
murder by two people. He, therefore, could not have known the risk that
counsel’s inability to target the other man as an alternative suspect
actually posed to his defense.
2. State
Cases
2000: People v.
Woidtke, 729 N.E.2d 506 (Ill. App. Ct. 2000). Court found
per se conflict of interest that required reversal of murder conviction.
During his representation of defendant, counsel was also representing
another client on misdemeanor charges related to impersonation of
investigator into murder with which defendant was charged. Counsel was
aware that his other client was a suspect in the murder and even
subpoenaed him as a witness but did not call him to testify. Counsel
never made defendant, his other client, or the court aware of his
conflict. Reversal required even though counsel’s representation of the
other suspect ended seven months prior to trial. Where, as here, defense
counsel has a tie to a person or entity that would benefit from an
unfavorable verdict for the defendant, a per se conflict arises
requiring reversal because the knowledge that a favorable result for
defendant would inevitably conflict with the interests of counsel’s
other clients or employer might subliminally affect counsel’s
performance in ways difficult to detect and show.
1995: Smith v. State, 666 So. 2d 810 (Miss.
1995). Counsel in drug distribution case had actual conflict of interest
that adversely affected representation where he simultaneously
represented witness (implicated but not charged in this case) in plea
negotiations on other charges. Witness testified that he had distributed
drugs to a confidential informant at the same time and in the same
location as defendant’s sale. The witness was not charged though. The
witness did have prior drug charges though in which counsel had
represented the witness in plea negotiations. The witness was still
pending sentencing at the time of defendant’s trial. Counsel attempted
to cross-examine the witness. When he asked about the witness’ plea, the
witness pointed out that counsel represented him, and counsel asked
nothing else. The court found, "The sudden curtailing of what had been
up to that point a vigorous cross-examination of [the witness] by the
public defender is compellingly indicative of an actual conflict of interest which adversely
affected the public defender's performance as counsel for [defendant]."
Id. at 813.
1990: *People v.
Singer, 275 Cal. Rptr. 911 (Cal. Ct. App. 1990). Counsel in
murder case had a conflict that adversely affected representation where
counsel was having an affair with defendant’s wife and also representing
her because she was potentially implicated in crimes. Defendant was
arrested for the murder of his wife’s ex-husband. A first trial ended in
hung jury. Defendant was convicted in the second trial. During both
trials counsel had a sexual relationship with defendant’s wife, which
was disclosed after trial to defendant by counsel’s former employee. The
court noted that an actual conflict must be shown under Cuyler, but California law requires a showing of
a potential conflict if the record "supports ‘an informed speculation’
that appellant’s right to effective representation was prejudicially
affected." Id. at 921. Here, counsel’s affair
with defendant’s wife "introduced deception and duplicity into the
advocate-client relationship, which by definition must be grounded in
trust and fidelity." Id. at 920. Counsel may
have had an interest in defendant being convicted so the affair could
continue or remain undiscovered. Counsel may also have had an interest
in protecting his lover from being implicated in the crimes, especially
where counsel also represented her.
State v.
Santillanse, 790 P.2d 1062 (N.M. Ct. App. 1990). Counsel
had actual conflict of interest that adversely affected representation
in assault case where counsel simultaneously represented defendant and
his brother who was implicated but not charged with crime. Defendant and
his brother, who bore a strong resemblance to defendant, were arrested
following a fight. Defendant was charged with one shooting and the
brother was charged with two stabbings. They retained counsel. The
brother entered a plea to the two stabbings and swore under oath, that
he was not the shooter. Following the plea, but before defendant’s
trial, the brother informed counsel that he was the shooter also. During
trial, one eyewitness testified that the brother was the shooter.
Counsel did not call the brother to testify. Counsel had a actual
conflict that adversely affected representation. Counsel told one
witness before trial not to mention the brother’s confession to the
shootings. Counsel also did not call the brother to testify and advised
defendant not to testify in order to protect the brother from perjury
charges.
1984: Commonwealth v. Hurley, 461 N.E.2d 754
(Mass. 1984). Counsel had conflict that required presumption of
prejudice in murder case where counsel simultaneously represented a
prosecution witness who was also a potential suspect as an accessory to
the crime in an unrelated case. The witness was also counsel’s
friend.
G. Simultaneous Representation of Government or Defense
Witness or Confidential Informant in Unrelated Case (State Cases
only)
2000: Ramirez v. State, 13 S.W.3d 482 (Tex.
Ct. App. 2000). Defendant was denied effective assistance of counsel in
prosecution for unlawful possession of a firearm by a felon because
defense counsel labored under an actual conflict of interest that
adversely effected her performance. During trial, the state called as a
witness a client of defense counsel in another pending criminal case.
Counsel moved for a mistrial because she had no notice of the witness
and because she had confidential information from him and could not
adequately represent the witness or the defendant in cross-examining her
own client. The court denied the motion for mistrial and pressed on. The
witness/client testified that the defendant made incriminating
statements to him in confinement. During cross, counsel attempted to
establish that she had confidential information that she could not use
in cross because the witness/client was not waiving his privilege. The
court would not allow this testimony. Counsel again moved for a mistrial
due to the prejudice to defendant. The court of appeals held, "Great
deference should be accorded the representations of an attorney who
feels a division of loyalty." Id. at 486. "It
is well-established that a defendant is denied the effective assistance
of counsel in those instances where an attorney is unable to cross-
examine, or is chilled in the cross-examination of, a government witness
because of the attorney/client privilege arising from counsel’s prior
representation of the witness or from his duty to advance the interests
of the witness as a current client." Id. at
487. Counsel in this case had an actual conflict of interest that had an
adverse effect on appellant's trial. In addition, the trial court failed
to conduct an inquiry into the apparent conflict.
1998: People v. Coleman, 703 N.E.2d 137 (Ill.
App. Ct. 1998). Trial court erred in denying state’s motion to
disqualify counsel in first-degree murder case where counsel represented
three state witnesses, each of whom faced future uncertain punishment
for previously adjudicated guilt on unrelated cases and hoped to gain
the State's favor in return for their testimony. Counsel did not attempt
to impeach one witness. For several other witnesses it appeared that
counsel had actually brokered the deal to testify against the defendant.
Under state law, where defense counsel has represented a State's
witness, a per se
conflict of interest exists if the professional relationship
between the attorney and the witness is contemporaneous with counsel's
representation of the defendant. Even though counsel withdrew right
before the testimony of one of the witnesses, the representation was
still contemporaneous because counsel still owed a duty to that client
and had represented him in all pretrial proceedings, including the
interview of him for this case. There was also no knowing waiver here.
When the state raised the issue repeatedly, the defendant was merely
informed that counsel represented witnesses for the prosecution and then
he was asked if he had any problem with it. His response indicated that
he had no problem provided the contemporaneous representation caused him
no harm. This was not a valid waiver, however, because the judge did not
determine whether the defendant fully understood the significance of
counsel’s conflicting loyalties and understood how the loyalties to the
prosecution witnesses could hamper counsel’s effectiveness.
1997: Commonwealth v. Martinez, 681 N.E.2d
818 (Mass. 1997). Trial court conducted an inadequate inquiry into
conflict in murder case. Defendant was charged with drug-related murder.
Only one witness (independent of codefendant) placed defendant near the
scene of the crime and had first hand-knowledge of defendant’s drug
dealing. This witness had been interviewed several times and did not
implicate the defendant. At defendant’s insistence, the witness was
listed as a defense witness, which prompted the state to interview the
witness again. The witness implicated the defendant and testified for
the state at trial. Just prior to the witness’ testimony, defense
counsel disclosed that he had previously represented the witness and
represented him on pending charges when he first made statements in this
case. He informed the defendant of this information and then interviewed
the witness. He was not aware that the witness would be called as a
state’s witness at the time of his discussions with the witness though.
Counsel stated that his representation of the witness was concluded,
except for a "technical" matter to conclude a disorderly conduct case
that had been part of a negotiated package deal to resolve 24 charges.
The court found no simultaneous representation and no conflict.
Nonetheless, the court asked the defendant if he had heard what counsel
said and if he still wanted counsel to represent him. The appellate
court found that the representation was simultaneous because counsel
still represented the witness on one charge for which he had not be
sentenced at the time of the defendant’s trial. While the witness’
pending charge was minor and might not rise to the level of a conflict
in another case, in this case it was sufficient to raise genuine
concerns about counsel’s divided loyalty. Counsel was also facing
pending ethics charges at the time of defendant’s trial and likely felt
constrained in cross-examining the witness. Counsel had also violated
his confidential relationship with the defendant by informing the
witness that counsel did not believe defendant’s alibi. "Taking into
account [counsel’s] relationship
with [the witness], [counsel’s] ethical problems, and the undenied
allegations of broken client confidence, . . . the defendant's claim of
a conflict of interest ‘is
supported by adequate evidence of its existence.’" Id. at 825-26. The trial court’s inquiry was
inadequate to establish defendant’s intelligent waiver of conflict where
judge did not inform defendant that he had constitutional right to
attorney who was free of divided loyalties, did not give defendant
opportunity to raise or discuss any concerns that he might have, and did
not make sure that defendant understood that other counsel could be
retained in his behalf. In addition, the colloquy included no discussion
of counsel’s alleged disclosure to his other client, no discussion of
counsel’s disbelief of defendant. Trial court also failed to advise
defendant in such a way that he could understand or appreciate the
possible implications of counsel’s relationship with witness. The court
was most troubled by counsel’s statements of disbelief to the witness
and held, "In this special context, the colloquy to procure the
defendant's waiver was insufficient." Id. at
827.
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.
Smith v.
State, 666 So. 2d 810 (Miss. 1995). Counsel in drug
distribution case had actual conflict of interest that adversely
affected representation where he simultaneously represented witness
(implicated but not charged in this case) in plea negotiations on other
charges. Witness testified that he had distributed drugs to a
confidential informant at the same time and in the same location as
defendant’s sale. The witness was not charged though. The witness did
have prior drug charges though in which counsel had represented the
witness in plea negotiations. The witness was still pending sentencing
at the time of defendant’s trial. Counsel attempted to cross-examine the
witness. When he asked about the witness’ plea, the witness pointed out
that counsel represented him, and counsel asked nothing else. The court
found, "The sudden curtailing of what had been up to that point a
vigorous cross-examination of [the witness] by the public defender is
compellingly indicative of an actual
conflict of interest which adversely affected the public
defender's performance as counsel for [defendant]." Id. at 813.
People v.
Carillo, 218 A.D.2d 505 (N.Y. App. Div. 1995). Counsel had
actual conflict that adversely affected representation in murder case
where counsel simultaneously represented an eyewitness and had
previously represented the actual shooter. Defense counsel’s prior
representation of witness, whose testimony could have exculpated
defendant but who did not testify in defendant’s trial – despite
counsel’s indication during opening argument that witness would testify
– affected his representation of defendant and conduct of defense. It
was possible that witness did not testify because of a pending drug case
in which he was represented by counsel and was concerned that if he was
subjected to cross-examination, his testimony about his drug activities
might have been used against him in the pending case. The conflict may
have been created by fact that counsel had represented witness on more
than one occasion, giving him pecuniary interest, in that counsel may
have been motivated to guard witness’s interests to ensure that counsel
would be retained in future. Otherwise, once witness "bolted" as time to
testify drew near, conflict-free counsel would have hired investigator
or sought witness to ensure witness’s presence at trial. Furthermore,
defense counsel’s prior representation (only a short time before) of
another client, the alleged triggerman in the murder with which
defendant was charged, affected his representation of defendant and
conduct of defense in this prosecution. Counsel had continued duty to
maintain triggerman’s confidences. In addition, although every
eyewitness identified triggerman as the murderer and counsel had heard
on street that triggerman was real culprit, counsel did absolutely
nothing to verify this information or locate triggerman.
1989: *People v.
Thomas, 545 N.E. 2d 654 (Ill. 1989). Counsel had per se conflict in capital murder where counsel
simultaneously represented government witness on unrelated charges.
Defendant was arrested based on information provided by witness, who was
defendant’s cousin. Following his arrest, he retained counsel. The
witness also retained the same counsel to represent her on charges of
welfare fraud. Counsel moved to suppress defendant’s statement and
evidence due to lack of probable cause for arrest but did not call
witness to testify. During trial, witness either denied making
statements or said she could not remember. On cross, counsel attempted
to establish that witness had history of mental illness. On redirect,
prosecutor sought to prove that counsel represented witness and the
objection was sustained. Counsel intended to call another witness mental
illness, but backed off when court indicated it would allow the
government to rebut with evidence that counsel represented the witness.
Court held that counsel had duty to withdraw from representation and
that contemporaneous representation of government witness was a per se conflict where prejudice would be
presumed. Adverse affect on representation found even if not per se conflict where counsel failed to call
witness at suppression hearing and altered her trial strategy to avoid
revelation of her representation of witness.
1986: People v.
McDonald, 496 N.E.2d 844 (N.Y. 1986). Counsel had actual
conflict that required reversal in arson case where counsel
simultaneously represented the corporation, whose building was damaged
in the fire, and a corporate officer gave testimony tending to prove
defendant’s guilt.
In re
Saladin, 518 A.2d 1258 (Pa. Super. Ct.1986). Counsel had
actual conflict that adversely affected representation in juvenile
delinquency hearing for robbery where another attorney in counsel’s
office simultaneously represented the victim/witness on unrelated
charges. Adverse affect found because counsel did not cross-examine
prosecution witness vigorously about his mental health because of the
attorney-client privilege.
1984: Commonwealth v. Hurley, 461 N.E.2d 754
(Mass. 1984). Counsel had conflict that required presumption of
prejudice in murder case where counsel simultaneously represented a
prosecution witness who was also a potential suspect as an accessory to
the crime in an unrelated case. The witness was also counsel’s
friend.
1982: Commonwealth v. Hodge, 434 N.E.2d 1246
(Mass. 1982). Counsel had a conflict that required presumption of
prejudice in murder case where counsel’s law partner simultaneously
represented prosecution witness in unrelated civil matter, which created
a financial interest for counsel.
H. Simultaneous Representation of Third Party With
Adverse Interest (State Cases only)
1996: Derrington v. United States, 681 A.2d
1125 (D.C. 1996). Counsel in drug distribution case had actual conflict
that adversely affected representation where counsel simultaneously
represented another person about whom the defendant might have had
information of use to the prosecutor. Prior to trial, counsel informed
the court that he believed defendant served as a confidential informant
for government in the investigation of counsel’s other client. While the
other client had already plead guilty, he was still pending sentencing.
Counsel noted that he would not be able to adequately negotiate for the
defendant though on the basis of his cooperation with the government.
The court continued the hearing for counsel to obtain additional
information. At the later hearing, counsel informed the court that he
did not believe there was an actual conflict. The defendant proceeded to
trial with counsel never attempting to negotiate a plea based on his
cooperation or advising the defendant about the possibility of doing so.
Counsel had an actual conflict and his representation was adversely
affected as evidenced by his failure to attempt to negotiate a deal for
his client.
1986: Matter of Delfin A., 123 A.D.2d 318
(N.Y. App. Div. 1986). Counsel had conflict that required presumption of
prejudice in delinquency case involving sexual abuse where counsel had
been retained by residential facility where juvenile had been
voluntarily placed in foster care, and where alleged incident of sexual
abuse occurred, to represent the facility in proceedings against the
juvenile. At those proceedings it was expected that employees of the
facility would testify. Furthermore, counsel represented two alleged
accomplices whose statements about the incident of sexual abuse differed
from that of the juvenile.
1983: United States v.
Carducci, 557 F. Supp. 531 (W.D. Pa. 1983). Counsel had
conflict that adversely affected representation in drug case where
counsel simultaneously represented suspect charged with murder of
codefendant. A mistrial was declared in initial trial due to
codefendant’s murder. During second trial, counsel did not call
witnesses that corroborated entrapment defense, even though he intended
to in the first trial because the witnesses would be adverse to the
suspect in the murder of codefendant. While counsel stated other valid
reasons for not calling these witnesses, the court found that reversal
was required where counsel also considered the conflicted reasons in
making decision to exclude exculpatory testimony.
1982: Mannon v. State, 645 P.2d 433 (Nev.
1982). Counsel had conflict that adversely affected representation in
drug case where during trial counsel, who represented defendant’s
girlfriend on an unrelated charge, was informed by girlfriend that she
was guilty of the offense with which defendant was charged, but counsel
remained silent until after trial due to obligation to protect
confidentiality of statement.
I. Retained by Codefendant or Third-Party With Adverse
Interest
1. U.S. District Court
Cases
2003: Eisemann v. Herbert, 274 F. Supp. 2d
283 (E.D.N.Y. 2003). Counsel in a sodomy case had a conflict of interest
due to his simultaneous representation of both the defendant and his
father and counsel’s self-interest in concealing his misconduct.
Defendant was charged with molesting his girlfriend’s daughter. His
father was charged with numerous charges out of sexually molesting the
same girl. The father retained counsel to represent him. In the course
of this representation, counsel "bilked" the family of relatively
exorbitant sums of money and used fabricated affidavits to cover up his
conduct. Counsel was later disbarred. Analyzing the case under the
AEDPA, the court found a conflict of interest because the defendant and
his father were essentially co-defendants accused of committing the same
crimes. While the court recognized that there is disagreement among the
federal courts as to whether a defendant claiming a conflict must show
that counsel’s abandoned defense strategy was prudent or reasonable or
whether the defendant need only show that the alternative strategy was
reasonable, the court found a conflict in this case because "the
alternative strategies as abandoned by petitioner’s counsel were
plausible, reasonable, and sensible." The court found that the state
court had applied a test of "significant possibility of conflict" and
found that this formulation was both an unreasonable application and
contrary to the test established by Strickland and Cuyler. The court found that while
the defendant and his father were not literally co-defendants, they
were "effectively so," because the defendant and his father were
arrested on the same day for molesting the same victim during the same
period of time. The court also found that the fact that counsel’s
associate actually conducted the trial was not relevant to the conflict
of interest claim. The alternative strategies that counsel could have
pursued was to call the father as a witness because he had already been
convicted and sentenced at the time of defendant’s trial. The counsel
did not do so however because he would run the risk of revealing client
confidence. He would also have run the risk that the father would have
testified that the counsel had "bilked the family of tens of thousands
of dollars." Counsel could also have pursued the strategy of arguing
that the father was coerced into signing his confession, which also
would have been a theory that alleged that the victim had fabricated all
allegations of abuse at the insistence of her mother during a custody
battle. This defense was not viable unless counsel would also have
admitted that he coerced his former client into pleading guilty. The
third defense avenue that could have been pursued was to encourage the
defendant to accept a plea in exchange for testifying against his
father. This was not done, however, and the court noted that it is
"reasonable to suspect" that counsel "sacrificed one client, the son,
because most or all of his ill-gotten fee was obtained from his paying
client, the father. He who pays the piper calls the tune." The court
also found that counsel’s actions in stealing money from the family,
forging false affidavits to excuse his conduct, and threatening
petitioner with jail time if he did not vouch for the false affidavits
also created a second conflict of interest because counsel had an
interest in hiding his own misconduct.
2000: United States v. Duran-Benitez, 110 F.
Supp.2d 133 (E.D.N.Y. 2000). Defendant convicted of various drug
offenses moved for downward departure on the basis of his attorney’s
conflict that has adverse affect on representation. Defendant and
codefendant were initially appointed separate attorneys. Defendant
initially rejected plea offers. After a new attorney entered an
appearance for him, his codefendant started cooperating with the
government. On the basis of her information, new charges were brought
against the defendant and charges were brought against a second
codefendat. The first codefendant’s cooperation eventually earned her
her a " § 5K1.1 letter," see U.S. Sentencing
Guidelines ("USSG") Manual § 5K1.1 (1998), from the Government and a
significant downward departure at her sentencing. In contrast, the
defendant, who pled guilty and was awaiting sentence, had not received a
§ 5K1.1 letter from the Government because the information he sought to
provide was deemed stale. Defendant moved for a downward departure
because his new attorney had been retained and paid for by the second
codefendant without defendant even making a request that he do so. The
second codefendant also retained counsel for the first codefendant and
other persons implicated but they rejected the representation. In order
to protect the person paying his retainer, counsel prevented the
defendant from offering cooperation with the government. Ultimately, the
defendant petitioned the court for new counsel and informed the court of
the reason. The court appointed new counsel for the defendant. The
defendant then cooperated but the government deemed the information to
be stale and not warranting a § 5K1.1 letter. In order to remedy the
Sixth Amendment violation, the court sentenced the defendant if he had
provided earlier cooperation, provided substantial assistance to the
Government, and secured a § 5K1.1 letter, which cut the sentencing range
to about half of what he had faced.
2. State Cases
1997: State v. Norman, 697 A.2d 511 (N.J.
1997). Counsel had actual conflict that adversely affected
representation due to payment of counsel’s fees by the more culpable
codefendant. Codefendants were tried separately for drug-related murder.
Following their arrest defendant admitted that he was an accomplice and
chased the victim with a gun but stated that the victim had been shot
before he arrived. The codefendant admitted that he was closest to the
victim but asserted that both he and the defendant had fired their
weapons. The victim was shot only once. Codefendant retained an
attorney. At codefendant’s request, the attorney arranged counsel for
the defendant. The attorneys shared office space but were not partners.
Both counsel were paid by the codefendant and the defendant was aware of
that fact. The trials were severed and both were convicted. In
post-conviction, counsel for defendant testified that approached the
state in plea negotiations but no agreement was reached. Counsel denied
that he was influenced in the negotiations by the fact that the
codefendant paid his fees. No waiver found, even though the defendant
was aware at the time that his counsel was paid by the codefendant.
"There is a presumption against waiver, and waiver will be found only
when it is on the record and when the trial court has assured itself
that the defendant waiving the conflict is aware of the potential
hazards of joint representation." Id. at 525.
Court found that the state clearly would have been interested in the
defendant’s cooperation because he had substantial knowledge of the
shooting and presumably about the codefendant’s drug dealings. Court
also finds that codefendant paid counsel’s fees presumably because he
was concerned about defendant’s potential cooperation. "In such
circumstances, where the defendants have starkly conflicting interests, we would be remiss
if we did not recognize a significant conflict and strong likelihood of
prejudice." Id. at 526. Defendant’s
conviction reversed, but not codefendant’s.
1985: *State v.
Chandler, 698 S.W.2d 844 (Mo. 1985). Counsel had conflict
that adversely affected representation in murder case where counsel X
was implicated in the same murder and had been represented by counsel Y
when counsel X was indicted but the charge was later dismissed and
counsel X paid counsel Y to represent defendant. The victim was an
attorney. The defendant’s brother, who was represented by counsel X at
the time of his initial statements, implicated defendant in murder and
testified at trial that he stood watch while defendant and another
brother committed murder. The other brother that had already been
convicted of murder and sentenced to death had initially been
represented by counsel X but discharged him and testified before a grand
jury that defendant was hired by counsel X to kill the victim. He
testified in a deposition that he committed the murder alone and
defendant had nothing to do with it. Adverse affect shown because
counsel did not call this brother, who exculpated defendant to testify
allegedly because he had no credibility. Defendant was entitled to
counsel that could make decision whether to call the brother or not
without a conflict.
J. Prior Representation of Government or Defense
Witness in Same Case (U.S. Court of Appeals Cases only)
1995: United States v. Malpiedi, 62 F.3d 465
(2nd Cir. 1995). Trial counsel in fraud
(based on contractor kickback scheme) and obstruction of justice (based
on altering checking records when they were subpoenaed by grand jury)
had actual conflict of interest that adversely affected representation
due to counsel’s prior representation of key government witness. Witness
had testified in two grand jury proceedings as custodian of defendant’s
records (which were altered according to government). Counsel
accompanied her to first grand jury proceeding and arguably served as
her counsel at the time. Just prior to her testimony, the government
disclosed the potential conflict to the court. Counsel responded that he
did not represent the witness previously. The government and the defense
agreed that counsel would question the witness only about whether she
was alone with the documents in a conference room while preparing for
the first grand jury appearance and that the government would elicit
from her only that counsel had accompanied her to that proceeding. She
was called to testify. Counsel conducted in depth cross about the first
grand jury proceeding. The court interrupted. The witness, through
another attorney, then invoked her attorney-client privilege. The court
prohibited counsel from any argument concerning the first grand jury
testimony. Following the testimony, the court asked the defendant if he
was satisfied with counsel’s cross. Although he said he was, the
appellate court found that this clearly was not an adequate hearing on
whether he waived conflict-free representation. Following trial, the
defendant, through different counsel, asserted the conflict. District
court denied relief. Appellate court held that counsel had an actual
conflict and his representation was adversely affected because he was
unable to adequately cross-examine the witness concerning her testimony
in the grand jury proceedings, in which she failed to give the damaging
testimony she offered at trial and committed perjury.
1991: United States v. Tatum, 943 F.2d 370
(4th Cir. 1991). Counsel had actual conflict in bankruptcy case that
adversely affected representation where counsel was a member of a law
firm implicated in crimes and counsel had previously represented a
government witness, who was also his law partner, in the same
proceeding. Defendant, who was in the business of restoring expensive
and collectible automobiles, filed bankruptcy petition but hid three
cars from the trustee and creditors, allegedly upon advice of counsel.
The cars were transferred to one of counsel’s law partners. During the
grand jury proceedings, defendant, his business partner, and the lawyer
that obtained the cars were all represented by a different lawyer in the
same firm as bankruptcy counsel and the lawyer that obtained the cars.
After the government notified the firm of its concern about the
conflicts (but only several months prior to trial), an outside lawyer
entered an appearance and conducted the trial, but conflicted counsel
was present and assisting him. The government informed the court of the
conflicts but the court did nothing. The Fourth Circuit held that
counsel had an actual conflict because counsel could not assert that
defendant relied on the advice of counsel without inculpating his law
partners and increasing the risk of civil malpractice liability of the
firm. Counsel also had a conflict because counsel could not present
himself as a witness concerning a "missing file" from the law firm that
defendant claimed contained exculpatory information. Counsel also had a
conflict because counsel had represented the defendant’s business
partner, who was the government’s primary witness, in the grand jury
proceedings. Counsel also had a conflict because his law partners, the
one that obtained the cars and the one that advised defendant in the
bankruptcy proceedings, were witnesses during the trial. Counsel’s
conduct was adversely affected because counsel could not seek a plea
agreement for defendant to testify against his law partners. He also
could not call himself to testify concerning the missing file or
effectively cross-examine his partners or his former client at trial.
The fact that outside counsel conducted the trial did not change the
required result because that counsel entered the case only several
months prior to trial and relied heavily on conflicted counsel’s
knowledge of the facts and prior proceedings. Thus, outside counsel’s
performance was infected by the conflicts.
K. Prior Representation of Government Witness or
Confidential Informant in Related Case
1. U.S. Court
of Appeals Cases
1986: United States v. Iorizzo, 786 F.2d 52
(2nd Cir. 1986). Counsel had actual
conflict that adversely affected representation in mail fraud case where
counsel had previously represented a government witness in related
proceedings. Defendant was charged with mail fraud based on a scheme to
evade state gasoline taxes by filing false information through use of
the mail. The government witness worked for the defendant and had
testified in a related tax commission case with counsel, paid by
defendant representing him. Adverse affect found on representation
because counsel did not attack witness’s credibility on the stand, even
though he had made prior inconsistent statements at the time defense
counsel was representing him. Counsel broached this issue but the
government objected due to the conflict.
2. Military
Cases
1991: United States v. Augusztin, 30 M.J.
(N.M.C.M.R. 1990). Purported waiver of conflict was inadequate in
solicitation of homosexual acts cases where counsel simultaneously
represented the government’s primary witness on overlapping charges and
the trial court failed to conduct an adequate inquiry. The witness made
a statement against the accused and later recanted the statement. He was
then tried and convicted of charges, including an overlapping
solicitation to commit sexual acts with the accused. During the
accused’s trial, the witness’ incriminating statement and recantation
were admitted without any objection by counsel.
The quid pro quo
arrangement to permit both [the witness]'s original statement and
subsequent recantation to come into evidence without objection from
either side and thus avert the need to cross- examine [the witness] was
not the result of a tactical judgment by a conflict-free lawyer that
such evidence would not be helpful to appellant. Rather, the decision to
forgo confrontation of the witness . . . must be viewed in some measure
as being made to protect the interest of defense counsel. Defense counsel abandoned appellant's right to
confront and cross-examine [the witness] in favor of a two sentence
retraction that did little to deflect the straightforward impact of the
initial statement. At the time, defense counsel's abandonment was viewed
by all concerned as necessary to allow defense counsel to avoid
ethically improper conduct. This simply reverses the priorities that the
attorney owes to his client because it puts the lawyer's concerns ahead
of the client's needs, and then shapes the client's needs to eliminate
the attorney's problems created by a direct conflict of
interest.
Id. at 709 (footnotes and citations omitted).
Although the trial court inquired, the inquiry was inadequate to elicit
a valid waiver because the trial court did not inform the accused of the
specific nature of the conflict or explain or elicit the accused’s
understanding of the details and potential perils of the conflict. The
court instead apparently relied on identical written "waivers" signed by
the accused and the witness on the morning of trial. The "waiver," which
the court noted was "apparently drafted just prior to coming into trial
by the counsel whose capacity to act in appellant’s interests was at
issue," id. at 713, stated that counsel had
advised the accused of the conflict but did not detail the
advice.
3. State
Cases
2003: People v. Daly, 792 N.E.2d
446 (Ill. App. Ct. 2003). Trial counsel had per se conflict in drug distribution case where
trial counsel had represented the confidential informant, who was the
primary witness for the state. The CI had been arrested on drug charges
and represented by counsel had those charges dismissed in exchange for
an agreement to make undercover drug buys. While doing so, the CI had
other charges dropped because of his work for the state. The CI
testified during trial that he made three buys from the defendant.
Counsel established in cross-examination that the CI had had charges
dismissed and was working as a CI, but did not elicit the fact that the
dismissed charges and the work as a CI were linked. Counsel also did not
establish that the CI had a financial arrangement with the state where
he was paid for drug busts, but only given expense money if he failed to
make a buy. Although counsel no longer represented the CI, the court
held that there was a "continuing" relationship to the extent that
counsel would be required to cross-examine the CI about matters
occurring during the time that counsel represented him. Prejudice
presumed.
2000: Nethery v. State, 29 S.W.3d 178 (Tex.
Ct. App. 2000). Defendant’s trial counsel had actual conflict of
interest that prejudiced defendant in trial for organized criminal
activity for theft arising out of illegal use of landfill. Counsel had
also represented the defendant and codefendant in a civil suit brought
against them for the same activities. Following the civil trial, the
codefendant obtained different counsel. The defendant’s counsel then
represented one of the complaining witnesses in that suit in unrelated
criminal charges for theft by a public servant. That case was pending at
the same time as the defendant’s charges and counsel sought to withdraw
prior to defendant’s trial, but did so primarily on defendant’s failure
to pay his retainer with the possible conflict mentioned only as a
sideline. During trial, counsel called his other client as a witness.
Counsel apparently hoped to establish that defendant thought his permits
were legal, but the witness/client testified, amongst numerous damaging
points, that he informed defendant his dumping was illegal. Counsel’s
conflict and the adverse affect on his representation was clear, because
counsel did nothing to minimize this damaging testimony. The court notes
that there was no reason to call the witness in the first place, but
after he was there counsel should have attacked his credibility with
information that he had been fired from his position with the City and
had no contact with the defendant at the time of the alleged offenses in
this case. Prejudice presumed.
L. Prior Representation of Government Witness on
Unrelated Charges (State Cases only)
1997: Lee v. State, 690 So. 2d 664 (Fla.
Dist. Ct. App. 1997). Trial court obtained inadequate waiver in murder
case where the public defender office had previously represented the
state’s key witness, who was a jailhouse snitch, at the time of the
alleged statements. In addition, defendant’s counsel had personally
represented the snitch years before, although counsel had no
recollection of it. The trial court conducted an inquiry and the
defendant purported to waive the conflict. Later, after the defendant
raised concerns about counsel’s performance, the defendant sought to
withdraw the waiver but the court refused to revisit the issue because
the defendant had purportedly made a knowing and intelligent waiver. As
additional concerns arose, the court refused to appoint different
counsel and defendant went pro se. He then changed his mind and
proceeded forward with the assigned public defender. The appellate court
held that there clearly was an actual conflict in counsel’s prior
representation of the snitch and because counsel’s office represented
the snitch at the time of the alleged statements in this case. The court
held that, "[f]or a waiver to be valid, the record must show that the
defendant was aware of the conflict
of interest, that the defendant realized the conflict could affect the
defense, and that the defendant knew of the right to obtain other
counsel." Id. at 667. Here, the purported
waiver was not a valid waiver because the defendant was unaware at the
time that he was entitled to different court-appointed counsel. Record
reflected defendant’s understanding that if he did not accept conflicted
counsel, then he would have to represent himself. Because the issue had
been raised at trial and preserved for appeal, automatic reversal
required.
1995: Livingston v. State, 907 P.2d 1088
(Okla. Crim. App. 1995). Counsel in murder case had an actual conflict
that adversely affected representation due to counsel’s prior
representation of the defendant’s son, who was the primary state’s
witness. Defendant was charged with murdering his ex-wife’s boyfriend.
Defendant was charged six months later, primarily on the statements of
his son, who said that defendant admitted murder to him. Prior to the
son’s allegations, represented by counsel, he was adjudicated a juvenile
on charges of lewd molestation and obscene telephone calls. The
defendant testified against his son in the juvenile adjudication
proceedings. At a pretrial motions
hearing in defendant’s case, counsel indicated he wanted to
cross-examine the son about these juvenile adjudication proceedings and
to impeach im by showing the son’s bias against his father and his
motive to testify. He also initially asked to use records of the son’s
psychological examinations to show bias. He informed the court that he
had represented the son in the juvenile proceedings. The trial court
ruled that counsel could ask the son if he was biased because the
defendant did not support him when he was charged with juvenile
offenses, but could not cross-examine him on the substance of the
offenses. The court did not conduct an inquiry into the conflict,
however. Counsel’s planned cross was not conducted, even though the son
testified that defendant admitted killing to him. Counsel had an actual
conflict due to duty of loyalty to both defendant and his son. The
representation was adversely affected because counsel did not pursue
cross-examination of the son to show motive and bias in testimony.
Prejudice presumed.
1993: State v. James, 433 S.E.2d 755 (N.C.
Ct. App. 1993). Counsel in murder case had an actual conflict that
adversely affected representation where he previously represented a key
prosecution witness on an unrelated charge. Counsel was appointed to
represent the defendant following his arrest for a shooting that
occurred outside a nightclub. Counsel was then retained by witness to
represent him on a state charge of possession of a firearm by a felon
and in a federal investigation for conspiracy to possess and traffic in
crack cocaine, for which he was ultimately indicted. The witness plead
guilty in exchange for cooperation with the government. The witness was
called to testify in the defendant’s trial. Both the state and federal
charges were still pending against the witness. Counsel brought out in
cross that he represented the witness. The court found an actual
conflict where counsel simultaneously represented the defendant a
government witness. Adverse affect found because counsel did not cross
examine the witness concerning his plea bargain arrangement in federal
court (which involved a downward departure for cooperation). Counsel
did, however, conduct this type of cross-examination with another
witness. The court also observed that the trial court had an independent
duty to conduct an inquiry once the conflict became apparent. Normally,
the court would remand for a hearing on whether there was an actual
conflict when the court failed to conduct an inquiry, but reversal was
required here anyway because of the actual conflict and adverse affect
on representation.
1989: Self v. State, 564 So.2d 1023 (Ala.
Crim. App. 1989). Counsel in drug trafficking case had actual conflict
that adversely affected representation where both defendants were
represented by counsel who had previously represented the state’s
confidential informant. The informant and her husband were indicted for
trafficking in cocaine. The husband, represented by defendant’s counsel,
was convicted. The informant, represented by codefendant’s counsel,
provided information supporting the search warrant that led to
defendant’s and codefendant’s arrest as part of a plea agreement
allowing probation. Some of the husband’s convictions were reversed and
his case was remanded for resentencing represented by defendant’s
counsel. Defendant and codefendant were then tried while represented by
conflicted counsel. During the trial, the identity of the informant was
revealed. Both counsel, based on statements previously made to them by
the informant, had reason to be aware of the informant’s identity prior
to indictment and to believe that the information in the affidavit
supporting the search warrants was untrue. Nonetheless, neither counsel
called her as a witness or informed their clients because the informant
was still on probation and might suffer. While the court recognized that
a good argument could be made that the conflicted representation was
simultaneous, the court treated it as successive representation. Id. at 1033. An actual conflict that adversely
affected representation was found due to both counsel’s failure to call
the informant to testify.
1983: In re Darr, 191 Cal. Rptr. 882 (Cal.
Ct. App. 1983). Counsel had conflict that adversely affected
representation in murder case where counsel previously represented
government witness on unrelated charges. The trial court erred in
failing to inquire about the possible conflict or to advise the
defendant of his right to conflict-free representation when it was
revealed during trial that the defendant’s attorney had represented the
witness. Counsel did not seek timely probation revocation hearing in
witness’s felony case, which would have provided further grounds for
impeachment of witness, and unexplained omissions existed in
cross-examination of witness for bias.
M. Counsel Was
Necessary or Potential Witness
1. U.S. Court
of Appeals Cases
2002: Rubin v.
Gee, 292 F.3d 396 (4th Cir. 2002) (affirming 128 F.
Supp. 2d 848 (D. Md. 2001)). Counsel in murder case had an actual
conflict of interest that adversely affected petitioner’s
representation. Following the shooting of her husband, petitioner
contacted two attorneys, who both came to the crime scene. After
learning that petitioner had taken a lot of medication, the attorneys
instructed their assistant to take petitioner to the hospital and have
her admitted under a false name. The attorneys notified the police that
the victim was dead, but did not disclose any other information. The day
after the shooting, one of the lawyers drove Petitioner to the bank to
withdraw $105,000 for counsel’s retainer fee and expenses. The other
attorney took the evidence in the case to his office. Only after the
attorneys discovered that a warrant was out for petitioner’s arrest did
they turn the petitioner in to the police. Counsel then advised
petitioner who to retain as her trial counsel. They also remained part
of the defense team and continued to collect fees from the petitioner,
even though they did not sit at counsel table during her trial. During
trial, the state brought out (in cross-examination of petitioner) the
events following the homicide, without any mention of the lawyer’s
activities, to refute petitioner’s self-defense claim by arguing that
she had fled the scene of the crime, lied about her identity, and showed
consciousness of guilt. Neither attorney was called to testify. The
state court concluded that counsel’s actions following the homicide did
not create an actual conflict of interest. The state court also did not
consider the continuing effects of counsel’s conflict when evaluating
the effectiveness of petitioner’s trial representation. The Fourth
Circuit held that this was an "objectively unreasonable" application of
clearly established federal law because counsel plainly had a conflict
of interest that adversely affected their own performance and the
performance of petitioner’s trial counsel. Counsel’s personal interests
fundamentally conflicted with the objectives of petitioner’s
representation from the moment they arrived at the scene of the crime
until the completion of her trial. Counsel utterly failed to function as
petitioner’s advocates. Instead, they assisted her in evasive action and
functioned almost as accessories after the fact in order to secure their
retainer fee. Following counsel’s advice created serious problems for
petitioner at trial. Petitioner thus had a strong interest in having
counsel testify that she acted on the advice of her own lawyers
following the homicide. Counsel had no interest in testifying, however,
because of potential criminal charges for obstruction of justice and
hindering the apprehension of a criminal defendant. In fact, both
counsel were the subject of a grand jury investigation that began prior
to petitioner’s trial and continued until after it was complete. One of
the attorneys had even engaged his own attorney to represent him in the
investigation. Furthermore, both attorneys
were also the targets of an inquiry by the Maryland Attorney Grievance
Commission during which they had to justify the $150,000 fee they
eventually collected for representing petitioner.
Given these facts, the Fourth Circuit said, "At all times, the
attorneys' fidelity to their own interests superseded any sense of
obligation they may have had to their client." Id. at 404. Counsel’s continued representation
of petitioner was adversely affected by their conflict of interest. They
cloaked themselves in the attorney-client privilege to assure that they
would not be asked to testify at
trial and never considered withdrawing so they could testify and assist
petitioner as witnesses. Counsel’s conflict of interest also ultimately
tainted and adversely affected petitioner’s representation by her three
trial attorneys. Counsel "violated the most basic principles of the
attorney-client compact from the beginning to the end. . . . The taint
from their conflict of interest could not be cleansed simply by bringing
in independent counsel to make trial decisions." Id. at 405. The state court decision to the
contrary was an objectively unreasonable application of the Cuyler v. Sullivan standard. Counsel’s
"representation of Rubin was more than ineffective – it was a perversion
of the attorney-client relationship. [Counsel’s conflict of interest was
so severe that it led to a corruption of the adversarial process that
our system relies on to produce just results. It is hard to imagine a
case that would call the fundamental fairness of a trial into more
question than this one. What happened here should never happen in our
system. Rubin is entitled to a new trial with conflict-free
representation." Id. at 406.
1982: Uptain v. United
States, 692 F.2d 8 (5th Cir. 1982). Counsel had actual
conflict that adversely affected representation in bail jumping case
where counsel also served as the state’s primary witness. The district
court’s appointment of another attorney to cross-examine defense counsel
did not resolve the ineffectual-assistance problem, because defense
counsel resumed primary responsibility for the defense once
prosecution’s questioning of him ended. Nor did defendant waive his
Sixth Amendment right to effective counsel. The record reflected no
discussion with defendant by judge, prosecutor, or either appointed
defense counsel, of problems inherent in defense counsel’s serving dual
role as chief prosecution witness.
2. State
Cases
2004: People v.
Lewis, ___ N.E.2d ___, 2004 WL 728245 (N.Y. Apr. 6, 2004).
Reversal of drug convictions required where counsel testified against
the defendant in a hearing on admissibility of unavailable witness’
statement. The charges were based primarily on drugs found on the
defendant’s premises with a search warrant. Shortly after jury
selection, the state notified counsel that the state would call a
witness that purchased drugs from the defendant at the premises. Within
an hour of the notice, the witness was threatened by an unidentified
caller and intimidated into refusing to testify. At the hearing on the
admissibility of the witnesses’ statement, the defendant denied making
the threat, but then the state called defense counsel to establish that
counsel had told no one about the witness other than the defendant.
Counsel did not object and provided the adverse testimony. Although
counsel’s testimony was "neither earth-shattering nor insignificant,"
reversal was required because counsel’s actions were "enough to rupture
the attorney-client relationship not only for the Sirois hearing but for the balance of the trial
itself."
2000: Commonwealth v.
Patterson, 739 N.E.2d 682 (Mass. 2000). Reversal required
under state law where counsel failed to move to withdraw when it became
obvious that she was a necessary witness for the defendant in murder of
off-duty police officer (serving as store security guard) case. Initial
investigation in search of car seen in the area of murder led to the
defendant’s brother to whom the car was registered. The brother informed
the police that the car was actually owned and driven by the defendant.
The brother then suggested that the defendant go with him to meet with
counsel, who represented the brother in an unrelated civil matter. The
defendant informed his brother that he had been present at the time of
the murder. Counsel assumed representation of the defendant after the
initial meeting. With counsel present, the defendant then made a
statement to police in which he admitted being at the store on the
evening of the murder with his codefendant but denied knowledge of the
murder. Counsel later received a search warrant affidavit alleging that
the defendant stated to police that his codefendant was the triggerman.
Counsel immediately informed the state’s attorney in writing and orally
with a copy to codefendant’s counsel that she had been present for the
defendant’s statement and that he was not asked and did not state that
the codefendant was the triggerman. Both defendant’s moved to sever the
trials, in part, because of the possibility that counsel could be called
to testify by the codefendant’s counsel. These motions were granted. At
the defendant’s trial, there was testimony indicating that a man fitting
the defendant’s description was present in the area of the store on the
night of the murder and eyewitness identification of the codefendant.
There was also other evidence linking the codefendant to the murder but
nothing directly linking the defendant other than fingerprint testimony
of admittedly questionable methodology. A police officer then testified
that the defendant said in his statement that his codefendant was the
triggerman. Counsel did not testify or call the defendant to testify so
this testimony was unrebutted. The court held that counsel should have
moved to withdraw based on state ethical rules that, at the time,
required an attorney to withdraw as counsel if the lawyer learned or if
it became "obvious" that the lawyer "ought to be called as a witness on
behalf of his client." Under state law, once
the defendant has shown that his attorney should have withdrawn because
of the likelihood that the attorney's testimony would be necessary, the
defendant need not demonstrate any actual prejudice stemming from his
attorney's failure to testify.
1989: Nunn v. State, 778 S.W.2d 707 (Mo. Ct.
App. 1989). Counsel had an actual conflict that adversely affected
representation in arson case where counsel testified and counsel was
implicated in possible ethical misconduct related to the case. Prior to
trial, counsel interviewed three state’s witnesses by phone and
tape-recorded the calls without the witness’ knowledge. Counsel also
subpoenaed one state witness to his office for a deposition without
notifying the state and without actually setting up a deposition. At
trial, this witness testified and denied talking to counsel on the
phone. Counsel then called himself to testify concerning the witness’
prior inconsistent statement and had his brother who was also a lawyer
conduct the examination. During cross, the state brought out the
tape-recording and subpoena activities. Counsel then resumed
representation and called a former law clerk as a witness to testify
that he and not counsel was responsible for the subpoena. During
closing, the state vigorously attacked counsel’s credibility. Court
found an actual conflict for four reasons. First counsel had an obvious
interest in the outcome of the case because he was retained, not
appointed. Second, through its intimation of impropriety in counsel’s
tape-recording telephone conversations without the other side’s
knowledge and issuing a subpoena for an improper purpose, the state made
defense counsel’s credibility an issue for the jury. Third, defense
counsel called a witness for the sole purpose of rehabilitating defense
counsel’s own credibility. Finally, defense counsel’s appearance in the
inconsistent roles of advocate and witness may have undermined the
jury’s ability to decide the facts and its perception of movant. The
court held that counsel should have withdrawn when he decided to
testify.
Counsel was caught between the obligation to do
his best for movant and the need to justify his own conduct as legal and
ethical. An accused is entitled to representation which is uncluttered
by counsel's efforts to vindicate his own conduct. A conflict of
interest resulting in ineffective assistance of counsel may arise from
an interest adverse to the accused or an interest simply personal to the
attorney.
The only issue which should have been before the
jury was defendant's conduct, not that of his attorney.
Id. at 711 (citations omitted). Adverse
affect was clear since counsel injected his credibility as an issue and
the jury may have "unintentionally imputed the alleged improprieties of
defense counsel to his client." Id.
N. Defendant or Counsel Had Filed Lawsuit or Ethics
Complaint Against Counsel
1. U.S. Court
of Appeals Cases
1991: Mathis v. Hood, 937 F.2d 790 (2nd Cir. 1991). Appellate counsel had actual
conflict that adversely affected representation in robbery appeal where
defendant had filed a grievance against counsel. Following conviction,
defendant filed a notice of appeal and the Legal Aid Society was
appointed. Almost 18 months later, Legal Aid notified the defendant that
there was a conflict because the office had represented the codefendant
at trial. The court then appointed private counsel. Private counsel did
nothing for a year and then was replaced with another private counsel.
This counsel also did not file an appellate brief ultimately two and
half years after appointment. By the time he filed his brief, defendant
had filed a grievance against him. The court found an actual conflict
that adversely affected representation because counsel’s interest was in
having the conviction affirmed, otherwise counsel faced disciplinary
proceedings or could be liable for his part in the delay in setting
aside an erroneous conviction. The court also noted the poor quality of
counsel’s briefs and that counsel waived oral argument. New appeal
ordered.
2. State
Cases
1992: Clark v. State, 831 P.2d 1374 (Nev.
1992). Counsel had actual conflict and prejudice was presumed where
counsel filed civil suit against defendant to resolve retainer issues
while representing him in criminal case. Defendant retained counsel to
represent him in murder case. The fee was supposed to come from a
personal injury settlement handled by counsel’s firm on behalf of
defendant. When the settlement proceeds from the personal injury case
were disbursed, however, it was discovered that a medical lien had been
overlooked. The clinic holding the lien filed a complaint against
defendant, his wife, and counsel. Counsel filed a cross-claim against
defendant and his wife, and obtained a default judgment against
defendant while defendant was in jail awaiting sentencing on his
first-degree murder conviction. The appellate court noted that counsel
ultimately only got about $5,000 for representing defendant in murder
case. Court expressed concern that this may have caused counsel to be
"conservative in his efforts to interview potential witnesses or hire
necessary experts," id. at 1376, even though
the state’s case was circumstantial and involved a lot of medical
evidence. Court was also concerned that counsel had less incentive in
murder case because "an incarcerated client would be less apt to
vigorously oppose an entry of default and subsequent enforcement of the
civil judgment." Id.
Accordingly, we determine that there is a
significant possibility that [counsel’s] performance was adversely
affected by this conflict, or, equally compelling, that the appearance
of impropriety created by the conflict was too great to be judicially
excused. Under the fact-specific circumstances of this case we conclude
that [defendant] was relieved of the obligation to show
prejudice.
Id. at 1376-77. Court notes though that this
ruling is fact-specific and that Cuyler will
be applied in other cases.
1991: People v. Cano
, 581 N.E.2d 236 (Ill. App. Ct. 1991). Counsel had actual conflict
that adversely affected representation in criminal sexual assault case
were defendant filed a grievance against counsel and asserted
ineffective assistance. Defendant’s complaints were made following
trial, but before sentencing. At the hearing on the motion for new
trial, counsel informed the court of the grievance. The court considered
appointing different counsel but counsel’s supervisor informed the court
that counsel was the most competent. Counsel proceeded on the motion for
new trial. Defendant then requested different counsel and moved to
reopen the trial. The court denied new counsel and appointed counsel’s
supervisor to argue the motion to reopen the trial. The supervisor
informed the court of the conflict and asked not to be put in the
position of arguing against his subordinate. Defendant later withdrew
his pro se motion to reopen the trial and his claims of ineffectiveness
and proceeded to sentencing with the original counsel representing him.
Counsel had an actual conflict due to the grievance pending against him.
"It was possible for [him] to render allegiance to defendant." Id. at 241. Counsel’s supervisor also had an
interest in protecting the professional reputation of his subordinate,
which conflicted with defendant’s interests. The representation was
adversely affected because the court required conflicted counsel to
proceed unless defendant withdrew his ineffectiveness claims. This
prompted defendant to withdraw his claims. Prejudice presumed.
O. Defendant Alleged Ineffective Assistance
1. U.S. Court
of Appeals Cases
1995: Lopez v.
Scully, 58 F.3d 38 (2nd Cir.
1995). Counsel had actual conflict that adversely affected
representation in sentencing where the defendant had asserted improper
conduct by counsel. During trial, after several evidentiary rulings
against the defendant, defendant plead guilty in exchange for reduced
sentence of 18 years. Prior to sentencing, defendant filed pro se motion
to withdraw plea, in part, because of alleged coercion and ineffective
assistance by counsel. Defense counsel denied defendant’s allegations
and court denied motion and proceeded to sentencing. Appellate court
finds that counsel had an actual conflict due to the allegations against
him. Court denies new hearing on motion to withdraw plea because court
finds that would have been denied regardless of whether defendant had
unconflicted representation or not. Court does grant new sentencing
though because counsel’s conflict had adverse affect in that counsel
made no argument for leniency. The fact that court had previously
indicated that she would sentence the defendant to 18 years and would
not consider a lower sentence did not matter. Counsel should have argued
for leniency in light of a number of mitigating factors. District court
found harmless error but appellate court stated, "Harmless error
analysis is inappropriate in this context. Once a petitioner has shown
that an actual conflict of interest
adversely affected defense counsel’s performance, prejudice to the
petitioner is presumed and no further showing is necessary for
reversal." Id. at 43.
1986: United States v. Ellison, 798 F.2d 1102
(7th Cir. 1986). Counsel had actual
conflict that adversely affected representation in motion to withdraw
plea to kidnapping where motion based on allegations against counsel.
Counsel’s representation was adversely affected because he not only
failed to represent defendant but testified and denied the
allegations.
2. U.S.
District Court Cases
2003: Whiting v. Burt, 266 F. Supp. 2d 640
(E.D. Mich. 2003). Appellate counsel in murder case had a conflict of
interest that adversely affected representation on appeal. Appellate
counsel, who had been trial counsel, failed to raise "colorable" claims
of ineffective assistance of trial counsel for failing to investigate
and present a diminished capacity defense and failing to request a
cautionary instruction regarding testimony by an alleged accomplice.
Reviewing the case under the AEDPA but not discussing application of the
standards beyond citing them, the court found a conflict of interest
that adversely affected representation. The court cited both case law
and the NLADA Guidelines that appellate counsel should not be the same
as trial counsel. "Simply put, appellate counsel could not be expected
to raise the issue of his own ineffectiveness at trial on appeal." Id. at ___. The issue was not waived by
petitioner because there was no evidence that the petitioner had been
warned by counsel or the court of the potential conflict. The court
ordered a new appeal in the state courts.
3. Military
Cases
1992: United States v. Jeter, 35 M.J. 674
(A.C.M.R. 1992). Counsel in larceny and forgery case had actual conflict
of interest in post-trial matters due to accusations of ineffective
assistance of counsel. Following the trial, counsel submitted a request
for clemency to the convening authority and attached a letter from the
accused, which included allegations that she had been denied effective
assistance of counsel. The Army Court held that counsel should not have
continued representation in light of these allegations because counsel
could not adequately represent the accused’s interests in these
circumstances. Remanded for new post-trial proceedings.
4. State
Cases
2002: State v. Griddine, 75 S.W.3d 741 (Mo.
Ct. App. 2002). Counsel in rape case had an actual conflict that
adversely affected the defendant. The defendant was convicted of
forcible rape and sentenced as a prior offender. He appealed, and on
appeal was represented by the same counsel. At the start of the appeal,
the defendant asked counsel to file a motion challenging counsel’s
effectiveness at trial. State law at the time allowed only 30 days after
the filing of the transcript in his direct appeal to do so. Counsel
refused and told the defendant that filing such a motion would hurt the
defendant’s case and cause him to be incarcerated for a longer period of
time. The defendant took counsel’s advice and never filed the motion.
The direct appeal was denied. Defendant then requested a recall of the
mandate because of his counsel’s conflict of interest. Actual conflict
found because counsel had an interest in protecting his own
representation by not filing the ineffectiveness claim. The conflict
adversely affected the defendant because the defendant listened to
counsel and did not file his claim. He was therefore denied review. As a
result, the court recalled the mandate, vacated its previous opinion,
and remanded the case to the trial court for resentencing.
2000: Zeiszler v. State, 765 So.2d 128 (Fla.
Dist. Ct. App. 2000). Trial court erred in failing to appoint
conflict-free counsel to represent defendant on his motion to withdraw a
guilty plea where the motion was based, in part, on allegations that
counsel coerced him take the plea.
1999: Blackwood v. State, 755 So.2d 699 (Fla.
Dist. Ct. App. 1999). Trial court erred in failing to appoint
conflict-free counsel in aggravated battery case. The public defender
initially moved to withdraw because the office had previously
represented the alleged victim. Counsel then asked the court to hold the
motion because they were attempting to resolve the case. Counsel
represented the defendant in his plea and sentencing and then filed a
motion to withdraw the plea based in part on counsel’s conflict of
interest. Trial court denied. Appellate court held that the defendant
was entitled to appointment of new counsel to represent him on his
motion to withdraw the guilty plea because the public defender was
placed in the "impossible" position of attempting to argue motion to
withdraw plea even though he certified that he had conflict of interest
in representing defendant.
Padgett v.
State, 743 So.2d 70 (Fla. Dist. Ct. App. 1999). Trial court
erred in failing to appoint conflict-free counsel to represent defendant
on his motion to withdraw a guilty plea to child sex offenses where the
motion was based, in part, on allegations that counsel coerced him take
the plea and counsel’s and defendant’s versions of events were
contradictory. Under state law, indigent defendant had the right to new
court-appointed counsel in this situation.
State v.
Taylor, 1 S.W.3d 610 (Mo. Ct. App. 1999). Defense counsel’s
advice in murder case that client should not file a post-conviction
motion asserting ineffectiveness of counsel was actual conflict of
interest from which prejudice would be presumed for purposes of
supporting recall of appellate mandate. State law at the time allowed
only 30 days after the filing of the transcript in his direct appeal to
do so. Counsel, who continued representation post-trial, advised the
defendant not to file the post-conviction motion but instead to raise
all issues as plain error in the direct appeal. None of the claims of
ineffective assistance of trial counsel were presented to any court. "A
trial attorney's representing a defendant on direct appeal and in a
postconviction motion in which the claim is ineffective assistance of
trial counsel creates an inherent
conflict of interest for the attorney. .
. . It puts the attorney in the untenable position of litigating his
or her own incompetence." Id. at 612. Here,
by advising the defendant not to file his motion, counsel, "in essence,
was caught between his obligation to do his best for [the defendant] and
a desire to protect his own reputation and financial interests." Id. Counsel also incorrectly advised the
defendant that his claims could be asserted in the direct appeal.
Counsel had an actual conflict that adversely affected his
representation. Mandate recalled and remanded for resentencing after
which the defendant could pursue a new direct appeal and postconviction
relief.
1998: Holifield v. State, 717 So.2d 69 (Fla.
Dist. Ct. App. 1998). Trial court erred in failing to appoint
conflict-free counsel to represent defendant on his motion to withdraw a
guilty plea where the motion was based, in part, on allegations that
counsel coerced him take the plea.
1996: State v. Harrell, 911 P.2d 1034 (Wash.
Ct. App. 1996). Trial court erred in failing to appoint unconflicted
counsel to argue motion to withdraw guilty plea in rape case. Following
guilty plea, defendant moved to withdraw plea due to allegations of
ineffective assistance of counsel. Counsel refused to assist defendant
and testified as a witness against him. Court finds that counsel had a
conflict and that defendant was essentially denied any counsel on his
motion to withdraw plea.
1991: People v. Cano
, 581 N.E.2d 236 (Ill. App. Ct. 1991). Counsel had actual conflict
that adversely affected representation in criminal sexual assault case
were defendant filed a grievance against counsel and asserted
ineffective assistance. Defendant’s complaints were made following
trial, but before sentencing. At the hearing on the motion for new
trial, counsel informed the court of the grievance. The court considered
appointing different counsel but counsel’s supervisor informed the court
that counsel was the most competent. Counsel proceeded on the motion for
new trial. Defendant then requested different counsel and moved to
reopen the trial. The court denied new counsel and appointed counsel’s
supervisor to argue the motion to reopen the trial. The supervisor
informed the court of the conflict and asked not to be put in the
position of arguing against his subordinate. Defendant later withdrew
his pro se motion to reopen the trial and his claims of ineffectiveness
and proceeded to sentencing with the original counsel representing him.
Counsel had an actual conflict due to the grievance pending against him.
"It was possible for [him] to render allegiance to defendant." Id. at 241. Counsel’s supervisor also had an
interest in protecting the professional reputation of his subordinate,
which conflicted with defendant’s interests. The representation was
adversely affected because the court required conflicted counsel to
proceed unless defendant withdrew his ineffectiveness claims. This
prompted defendant to withdraw his claims. Prejudice presumed.
1985: People v.
Willis, 479 N.E.2d 1184 (Ill. App. Ct. 1985). Counsel had
conflict that required presumption of prejudice in burglary case where
defendant moved to withdraw guilty plea based on part on allegations of
ineffective assistance of counsel. Therefore, defendant was entitled to
new hearing on his motion to withdraw his guilty plea.
People v.
Thompson, 477 N.E.2d 532 (Ill. App. Ct. 1985). Counsel had
conflict that required presumption of prejudice in armed robbery case
where defendant moved to withdraw guilty plea based on part on
allegations of ineffective assistance of counsel and was represented by
a counsel in the same public defender’s office on the motion to
withdraw. Therefore, defendant was entitled to new hearing on his motion
to withdraw his guilty plea.
P. Conflicting Interests Due to Potential Ethics
Violations or Criminal Conduct
1. U.S. Court
of Appeals Cases
2004: United States v.
Williams, 372 F.3d 96 (2nd Cir. 2004). Counsel had actual
conflict of interest during pretrial phase of criminal enterprise, money
laundering, drugs, and weapons case. Counsel’s conflict arose because
counsel had engaged in criminal transactions relevant to the defendant’s
crimes and, in an effort to conceal his own misconduct, actively
discouraged the defendant from engaging in plea discussions and
cooperating with the government. Three months prior to trial, counsel
pled guilty to facilitating the murder of his business partner, money
laundering, and drug trafficking. The "requisite adversity" was apparent
in counsel’s failure to make any effort to negotiate a plea on behalf of
the defendant, even though the defendant "may well have had knowledge
valuable to the government, especially at the early stages of the
proceedings." No waiver found because the defendant did not necessarily
know the full extent of counsel’s criminal activities of know "how these
facts translate into a conflict of interest." Although counsel’s
conflict did not affect the trial, it did affect the "likely result [the
defendant] would have obtained had he not had conflicted counsel."
Remanded for the court to determine whether the same sentence would have
resulted without conflicted counsel.
2002: Rubin v.
Gee, 292 F.3d 396 (4th Cir. 2002) (affirming 128 F.
Supp. 2d 848 (D. Md. 2001)). Counsel in murder case had an actual
conflict of interest that adversely affected petitioner’s
representation. Following the shooting of her husband, petitioner
contacted two attorneys, who both came to the crime scene. After
learning that petitioner had taken a lot of medication, the attorneys
instructed their assistant to take petitioner to the hospital and have
her admitted under a false name. The attorneys notified the police that
the victim was dead, but did not disclose any other information. The day
after the shooting, one of the lawyers drove Petitioner to the bank to
withdraw $105,000 for counsel’s retainer fee and expenses. The other
attorney took the evidence in the case to his office. Only after the
attorneys discovered that a warrant was out for petitioner’s arrest did
they turn the petitioner in to the police. Counsel then advised
petitioner who to retain as her trial counsel. They also remained part
of the defense team and continued to collect fees from the petitioner,
even though they did not sit at counsel table during her trial. During
trial, the state brought out (in cross-examination of petitioner) the
events following the homicide, without any mention of the lawyer’s
activities, to refute petitioner’s self-defense claim by arguing that
she had fled the scene of the crime, lied about her identity, and showed
consciousness of guilt. Neither attorney was called to testify. The
state court concluded that counsel’s actions following the homicide did
not create an actual conflict of interest. The state court also did not
consider the continuing effects of counsel’s conflict when evaluating
the effectiveness of petitioner’s trial representation. The Fourth
Circuit held that this was an "objectively unreasonable" application of
clearly established federal law because counsel plainly had a conflict
of interest that adversely affected their own performance and the
performance of petitioner’s trial counsel. Counsel’s personal interests
fundamentally conflicted with the objectives of petitioner’s
representation from the moment they arrived at the scene of the crime
until the completion of her trial. Counsel utterly failed to function as
petitioner’s advocates. Instead, they assisted her in evasive action and
functioned almost as accessories after the fact in order to secure their
retainer fee. Following counsel’s advice created serious problems for
petitioner at trial. Petitioner thus had a strong interest in having
counsel testify that she acted on the advice of her own lawyers
following the homicide. Counsel had no interest in testifying, however,
because of potential criminal charges for obstruction of justice and
hindering the apprehension of a criminal defendant. In fact, both
counsel were the subject of a grand jury investigation that began prior
to petitioner’s trial and continued until after it was complete. One of
the attorneys had even engaged his own attorney to represent him in the
investigation. Furthermore, both attorneys
were also the targets of an inquiry by the Maryland Attorney Grievance
Commission during which they had to justify the $150,000 fee they
eventually collected for representing petitioner.
Given these facts, the Fourth Circuit said, "At all times, the
attorneys' fidelity to their own interests superseded any sense of
obligation they may have had to their client." Id. at 404. Counsel’s continued representation
of petitioner was adversely affected by their conflict of interest. They
cloaked themselves in the attorney-client privilege to assure that they
would not be asked to testify at
trial and never considered withdrawing so they could testify and assist
petitioner as witnesses. Counsel’s conflict of interest also ultimately
tainted and adversely affected petitioner’s representation by her three
trial attorneys. Counsel "violated the most basic principles of the
attorney-client compact from the beginning to the end. . . . The taint
from their conflict of interest could not be cleansed simply by bringing
in independent counsel to make trial decisions." Id. at 405. The state court decision to the
contrary was an objectively unreasonable application of the Cuyler v. Sullivan standard. Counsel’s
"representation of Rubin was more than ineffective – it was a perversion
of the attorney-client relationship. [Counsel’s conflict of interest was
so severe that it led to a corruption of the adversarial process that
our system relies on to produce just results. It is hard to imagine a
case that would call the fundamental fairness of a trial into more
question than this one. What happened here should never happen in our
system. Rubin is entitled to a new trial with conflict-free
representation." Id. at 406.
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.
1991: United States v. Tatum, 943 F.2d 370
(4th Cir. 1991). Counsel had actual conflict in bankruptcy case that
adversely affected representation where counsel was a member of a law
firm implicated in crimes and counsel had previously represented a
government witness, who was also his law partner, in the same
proceeding. Defendant, who was in the business of restoring expensive
and collectible automobiles, filed bankruptcy petition but hid three
cars from the trustee and creditors, allegedly upon advice of counsel.
The cars were transferred to one of counsel’s law partners. During the
grand jury proceedings, defendant, his business partner, and the lawyer
that obtained the cars were all represented by a different lawyer in the
same firm as bankruptcy counsel and the lawyer that obtained the cars.
After the government notified the firm of its concern about the
conflicts (but only several months prior to trial), an outside lawyer
entered an appearance and conducted the trial, but conflicted counsel
was present and assisting him. The government informed the court of the
conflicts but the court did nothing. The Fourth Circuit held that
counsel had an actual conflict because counsel could not assert that
defendant relied on the advice of counsel without inculpating his law
partners and increasing the risk of civil malpractice liability of the
firm. Counsel also had a conflict because counsel could not present
himself as a witness concerning a "missing file" from the law firm that
defendant claimed contained exculpatory information. Counsel also had a
conflict because counsel had represented the defendant’s business
partner, who was the government’s primary witness, in the grand jury
proceedings. Counsel also had a conflict because his law partners, the
one that obtained the cars and the one that advised defendant in the
bankruptcy proceedings, were witnesses during the trial. Counsel’s
conduct was adversely affected because counsel could not seek a plea
agreement for defendant to testify against his law partners. He also
could not call himself to testify concerning the missing file or
effectively cross-examine his partners or his former client at trial.
The fact that outside counsel conducted the trial did not change the
required result because that counsel entered the case only several
months prior to trial and relied heavily on conflicted counsel’s
knowledge of the facts and prior proceedings. Thus, outside counsel’s
performance was infected by the conflicts.
1988: Mannhalt v. Reed, 847 F.2d 576 (9th
Cir. 1988). Counsel had conflict in robbery and possession of stolen
property case that adversely affected representation where counsel was
implicated in purchasing stolen goods from a codefendant/witness.
Following the witness’ testimony that counsel had purchased stolen goods
from him, counsel offered his own unsworn testimony that the accusation
was false, but did not actually testify. Counsel also failed to question
the defendant in his testimony about whether counsel had ever purchased
stolen property. "Although Cuyler involved
a conflict of interest between
clients, . . . the presumption of prejudice extends to a conflict
between a client and his lawyer's personal interest." Id. at 580.
We find that when an attorney is accused of
crimes similar or related to those of his client, an actual conflict
exists because the potential for diminished effectiveness in
representation is so great. For example, a vigorous defense might
uncover evidence of the attorney's own crimes, and the attorney could
not give unbiased advice to his client about whether to testify or
whether to accept a guilty plea.
Id. at 581. Counsel’s representation was also
adversely affected in four areas: 1) counsel’s failure to testify to
rebut the witness’ allegations, 2) counsel’s cross-examination of the
witness, 3) counsel’s failure to question the defendant on direct about
the allegations, and 4) counsel’s failure to explore possible plea
bargains for defendant to testify against counsel.
1984: United States v. Cancilla, 725 F.2d 867
(2nd Cir. 1984). Counsel had conflict
that required presumption of prejudice in mail fraud case where counsel
was implicated in same crime. During appeal process, information emerged
that tended to implicate counsel in criminal dealings with defendant and
codefendants before their arrest. The court held that prejudice would be
presumed in these circumstances.
Gov’t of Virgin
Islands v. Zepp, 748 F.2d 125 (3rd Cir. 1984). Counsel had conflict that
adversely affected representation in drug case where counsel faced
potential criminal liability on the same charges and stimulated
testimony that was adverse to defendant. Defendant faced charges of
destruction of evidence and simple possession of a controlled substance.
Even though there was no direct evidence of wrongdoing by defense
counsel, on day of events giving rise to the prosecution, defense
counsel had equal access and opportunity, while in house with defendant,
to flush cocaine down the toilet. Bags of cocaine were later recovered
from the house’s septic tank.
2. U.S.
District Court Cases
2004: Rugiero v. United States, 330 F. Supp.
2d 900 (E.D. Mich. 2004). Counsel had an actual conflict of interest
that adversely affected representation in drug case because counsel was
the subject of a criminal investigation by the same prosecutor during
the pretrial and trial proceedings. Counsel was being investigated for
possible extortion, money laundering, and conspiracy and was aware of
the investigation well prior to trial. The defendant did not learn of
the investigation until the time of jury deliberations when the
defendant saw TV broadcasts about the government’s intent to indict
counsel. Although the court acknowledged the dicta in Mickens v.
Taylor, 122 S. Ct. 1237 (2002), the court held that the rule in the
Sixth Circuit is that the Cuyler v. Sullivan standard applies in
all conflict cases. The court found an actual conflict because of "the
attorney’s obvious self-serving bias in protecting his own liberty
interests and financial interests." The conflict adversely affected
counsel’s performance in a number of ways. First, counsel did not pursue
pre-trial negotiations because he was being investigated for taking
unreported large cash payments and had solicited large cash payments
from the defendant. Thus, counsel’s interest was to keep the defendant
away from negotiations. Second, counsel delayed the defendant’s trial in
order to delay his own case. The delay resulted in the government
strengthening its case against the defendant by gaining the cooperation
of co-defendants. Third, counsel failed to protect the defendant when a
key government witness violated a sequestration order. Rather than fight
on this issue, counsel "curried favor" with the government. Fourth,
although the court polled the jurors about the impact of TV broadcasts
concerning counsel, counsel’s presence at the time called into question
the reliability of the juror’s responses. Counsel’s presence and
questioning were "manipulated" by counsel contrary to the defendant’s
interests. Reversal was required, even though the defendant subsequently
retained counsel to continue representation during the sentencing and
appeal.
2003: Eisemann v.
Herbert, 274 F. Supp. 2d 283 (E.D.N.Y. 2003). Counsel in a
sodomy case had a conflict of interest due to his simultaneous
representation of both the defendant and his father and counsel’s
self-interest in concealing his misconduct. Defendant was charged with
molesting his girlfriend’s daughter. His father was charged with
numerous charges out of sexually molesting the same girl. The father
retained counsel to represent him. In the course of this representation,
counsel "bilked" the family of relatively exorbitant sums of money and
used fabricated affidavits to cover up his conduct. Counsel was later
disbarred. Analyzing the case under the AEDPA, the court found a
conflict of interest because the defendant and his father were
essentially co-defendants accused of committing the same crimes. While
the court recognized that there is disagreement among the federal courts
as to whether a defendant claiming a conflict must show that counsel’s
abandoned defense strategy was prudent or reasonable or whether the
defendant need only show that the alternative strategy was reasonable,
the court found a conflict in this case because "the alternative
strategies as abandoned by petitioner’s counsel were plausible,
reasonable, and sensible." The court found that the state court had
applied a test of "significant possibility of conflict" and found that
this formulation was both an unreasonable application and contrary to
the test established by Strickland and Cuyler. The court found that while
the defendant and his father were not literally co-defendants, they
were "effectively so," because the defendant and his father were
arrested on the same day for molesting the same victim during the same
period of time. The court also found that the fact that counsel’s
associate actually conducted the trial was not relevant to the conflict
of interest claim. The alternative strategies that counsel could have
pursued was to call the father as a witness because he had already been
convicted and sentenced at the time of defendant’s trial. The counsel
did not do so however because he would run the risk of revealing client
confidence. He would also have run the risk that the father would have
testified that the counsel had "bilked the family of tens of thousands
of dollars." Counsel could also have pursued the strategy of arguing
that the father was coerced into signing his confession, which also
would have been a theory that alleged that the victim had fabricated all
allegations of abuse at the insistence of her mother during a custody
battle. This defense was not viable unless counsel would also have
admitted that he coerced his former client into pleading guilty. The
third defense avenue that could have been pursued was to encourage the
defendant to accept a plea in exchange for testifying against his
father. This was not done, however, and the court noted that it is
"reasonable to suspect" that counsel "sacrificed one client, the son,
because most or all of his ill-gotten fee was obtained from his paying
client, the father. He who pays the piper calls the tune." The court
also found that counsel’s actions in stealing money from the family,
forging false affidavits to excuse his conduct, and threatening
petitioner with jail time if he did not vouch for the false affidavits
also created a second conflict of interest because counsel had an
interest in hiding his own misconduct.
3. Military
Cases
2004: United States v.
Cain, 59 M.J. 285 (2004). Counsel had an inherent conflict
in indecent assault plea case because of his homosexual affair with the
Appellant, which could have resulted in counsel being charged with the
same offenses that the Appellant already faced. Appellant was charged
with three specifications of homosexual forcible sodomy. The Senior
Defense Counsel assigned himself to represent the Appellant. Due to his
case load, counsel detailed an assistant defense counsel. Appellant
entered a negotiated a plea to two specifications of indecent assault,
in exchange for dismissal of the third forcible sodomy specification and
a sentence limitation of 24 months confinement. Shortly after the plea,
counsel was questioned about Appellant’s parents’ allegations that
counsel had pressured the Appellant for sexual favors. Counsel denied
the allegations, but committed suicide the next morning. On appeal, the
Army Court ordered an evidentiary hearing. The evidence showed that
counsel had a sexual relationship with the Appellant from the outset and
that the relationship was initiated by counsel. Appellant did not want
to engage in a sexual relationship with counsel, who was married and had
a son, but believed that he would go to prison for a long-time without
counsel as his attorney. Although he was advised by several civilian
attorneys to seek other counsel, he did not. While the court found that
there was a relationship between counsel and the Appellant, the court
found that it was not coerced and played no role in the guilty plea. The
court also found that Appellant had waived any conflict of interest when
he declined to follow the recommendation of the two civilian attorneys
to sever his relationship with counsel. The Court of Appeals for the
Armed Forces held that counsel’s actions exposed him and the Appellant
to the possibility of prosecution, conviction, and substantial
confinement for the military crimes of fraternization and sodomy (which
Appellant was already charged with). Likewise, counsel’s actions exposed
him and the Appellant to administrative proceedings that could have
resulted in involuntary termination for homosexuality. Counsel’s actions
also violated ethical rules. Under these circumstances, any testimony by
the Appellant at trial would have been risky to defense counsel because
the prosecution might have sought to question Appellant about similar
sexual misconduct. Thus, counsel faced a conflict between his personal
interests and his responsibility to Appellant. The court held that
"[t]he uniquely proscribed relationship before us was inherently
prejudicial and created a per se conflict of interest in counsel's
representation of the Appellant." The problems from this conflict are
not overcome by the actions of the assistant defense counsel, who
negotiated the pretrial agreement, because conflicted counsel was the
experienced, lead counsel in the case. The Court rejected a finding of
waiver because, while Appellant had been advised that counsel’s conduct
was unethical, he was not advised that the relationship could impact the
merits of his case. Thus, there was no knowing and intelligent waiver.
4. State
Cases
2001: State v. Martinez, 31 P.3d 1018 (N.M.
Ct. App. 2001). Counsel in murder case had conflict due to his own
self-interest and possible implication in the murder that adversely
affected representation. Witness testified that she saw three men
beating the victim inside a home. The victim ran out and was shot. The
witness left and called 911. She gave only a general description of the
shooter. When the police arrived, defendant was standing over the body.
The witness returned and said that he fit the description of the
shooter. At the preliminary hearing, the witness testified that she had
learned that defense counsel’s car was at the murder scene following the
shooting and she observed that the defense counsel fit the general
description of the shooter as well. Counsel did not move to preclude the
information about his vehicle being at the scene or withdrew. Likewise,
the trial court (not the same as preliminary hearing) was not notified
of the problem. During trial, the state presented evidence that defense
counsel’s vehicle was at the scene following the murder. There was also
evidence suggesting that a white car described by the witness as having
been there after the murder (and, given tire track evidence, possibly at
the time of the murder) was owned by an employee of defense counsel’s
law firm. After the state’s evidence, the court questioned the propriety
of defense counsel’s representation since there was evidence that he was
at the crime scene and the jury could infer from the evidence that
counsel’s employee removed the murder weapon, which was never found,
from the scene. The court also observed that the defendant at the scene
requested that his hands be tested for gunpowder residue and counsel
made the same request the following morning from which the jury could
infer that counsel had been there and advised the defendant to make the
request. Counsel stated that he had not been at the scene, but that he
and the defendant were business partners and the defendant often drove
counsel’s vehicle. Counsel also stated that the defendant informed him
that counsel’s employee had not been to the scene on the night of the
murder. Counsel even denied that the employee worked for him, although
the court observed that he had been in the courtroom assisting counsel
during the trial. Following these discussions, which the defendant
heard, the court simply asked him if wanted to continue with counsel’s
representation. The defendant responded that he did because he just
wanted to get the trial over with. The trial continued. During the
defendant’s testimony, counsel asked fourteen questions on the
collateral issue of why his vehicle had been at the scene. The defendant
also testified that counsel’s employee had been to the house earlier in
the day but was not there at the time of the murder. Defendant claimed
that victim was leaving his home when he heard a shot and went out to
find the victim dead. The prosecution argued on the basis of tire track
evidence showing the investigator’s car left after the witness though
that the defendant was lying. Counsel did not rebut this evidence, but
instead argued only that if someone left the scene the defendant would
have gone too. Counsel also did not argue the person driving the car
leaving the scene was the real killer. Counsel had a conflict due to his
own self-interest in not being implicated in the murder. If he was
present at the crime scene, then he was not in a position to give
unbiased advice to the defendant. If he was not present, then he should
have considered testifying to clear up the suspicion that he was present
and advising the defendant at the time. The representation was adversely
affected because counsel did not call his employee to testify. Counsel
also could have persuaded the defendant not to testify and argued to
implicate the driver of the car leaving the scene, which he could not
do, of course, because the driver worked for him. This theory though was
plausible under the state’s evidence and also would have explained the
absence of the murder weapon. Prejudice is presumed. Court also found
that defendant did not make a knowing and intelligent waiver because the
trial court never asked the defendant if he understood the nature of the
conflict or if he understood that he had a constitutional right to
conflict-free counsel.
1998: *In re Gay, 968 P.2d 476 (Cal. 1998).
Counsel had several conflicts, including pending charges against him in
the same jurisdiction. The cumulative prejudice of the conflicts, in
addition, to overall ineffective representation in sentencing required
that death sentence be vacated. Defendant was charged with killing a
police officer and numerous armed robberies. The defense counsel tricked
the defendant into retaining him with the help of a
psychologist/minister and then got himself appointed. Counsel then
advised the defendant to confess to the numerous armed robbery charges,
based on an alleged deal that the defense did not have, even though the
state’s evidence was based only on weak circumstantial evidence and
accomplice testimony. The confession allowed the state to convict and to
portray the defendant as a serial robber, which was devastating in light
of the absence of substantial mitigating evidence in sentencing. Counsel
then selected and used the psychologist and a psychiatrist based on a
fee arrangement. The psychologist would help trick people to get the
attorney retained and in turn the attorney would retain these "experts"
who worked together. The psychiatrist was unwilling to take the case if
extensive work was required, but counsel assured him that death was a
foregone conclusion and extensive time was not required. The
psychologist, who was not licensed, did only a Bender Gestalt
(neuropsychological screening test) and a WISC test, which is a
children’s intelligence test. The psychiatrist interviewed the defendant
and reviewed a single parole report. He did not request and was not
provided with any additional information. He testified only that the
defendant is sociopathic, but adapts well to structured environments. A
few other defense witnesses that counsel spoke to briefly, if at all,
prior to their testimony, testified that the defendant has good
character. Counsel was ineffective for numerous reasons. In addition to
all of these problems, during his representation of the defendant,
counsel was being investigated by the same prosecutor for
misappropriation of funds, which presented a potential conflict of
interest that was undisclosed. "Whether [counsel’s] failure to
aggressively defend petitioner at the penalty phase of the trial is
solely attributable to the conflict precipitated by the capping
relationship or was influenced by the distraction of the fund
misappropriation investigation cannot be determined on this record. The
per se rule of prejudice arising from an actual conflict of
interest does not apply therefore.
Nonetheless these conflicts contribute to our lack of confidence in the
verdict when considered with [counsel’s] other failings." Id. at 510-11 (citation omitted).
1995: Burnside v. State, 656 So.2d 241 (Fla.
Dist. Ct. App. 1995). Counsel had actual conflict of interest that
adversely affected representation where counsel was implicated with
possible unethical behavior in offering to sell the defendant’s
testimony to a codefendant. Defendant was charged conspiracy and murder.
He was persuaded, along with codefendant one to arrange the murder of
the wife of codefendant two. He hired codefendant three to carry out the
murder. Codefendant three instead murdered four men at the wife’s home.
Defendant then furnished money for codefendant three to flee the state.
Defendant initially attempted to work out a deal with the government to
testify against codefendant two, and made statements to the government.
He was then listed as a witness for the government. Defendant’s counsel
then approached codefendant two’s counsel to discuss possible favorable
testimony for codefendant two. Codefendant two’s counsel understood this
to mean that the defendant was offering perjured testimony in exchange
for financial assistance to defendant’s family. The government filed a
bar complaint and defendant’s counsel answered that he just passed along
the defendant’s message in an attempt to inform codefendant two’s
counsel of defendant’s propensity to lie. The government then placed
counsel on its witness list to rebut the defendant’s testimony if he
strayed from his prior statements to the government and moved to
disqualify counsel. Defendant moved to strike counsel from the witness
list and opposed the motion to disqualify. The court refused to strike
counsel as a potential rebuttal witness, but denied the motion to
disqualify counsel. Appellate court held that counsel had an actual
conflict "because of the state's threat to call trial counsel as a
witness if [the defendant] testified contrary to his proffer, trial
counsel had a personal stake in the decision whether to put [the
defendant] on the stand. That is, if [the defendant] did not testify,
trial counsel would avoid again having to give sworn testimony regarding
the alleged offer to sell testimony." Id. at
244. Adverse affect on representation found where counsel advised
defendant not to testify when defendant could have testified that the
murders of the four men were not part of the conspiracy to kill
codefendant two’s wife.
People v.
Jackson, 218 A.D.2d 556 (N.Y. App. Div. 1995). Trial
counsel created an actual conflict when he testified in rebuttal in
robbery and endangering welfare of child case and distanced himself from
his client. In response to prosecution witness’s testimony that
defendant offered him $150 to provide false alibi testimony, which was
allowed over defense objection (also found improper on appeal), defense
counsel took stand and testified that he told defendant to tell that
witness that, if he appeared, he would get witness appearance fee, if
necessary. Reversal required because when defense counsel took the
witness stand, he essentially distanced himself from defendant’s alleged
bribe offer. Since that conflict actually operated on the conduct of the
defense, the judgment had to be reversed and the case remanded for a new
trial.
1991: State v. Johnson, 823 P.2d 484 (Utah
Ct. App. 1991). Counsel had an actual conflict of interest in securities
law case that adversely affected representation where counsel was
implicated as a conspirator. Prior to trial, the state notified the
court of the potential conflict. Counsel denied involvement and asserted
that he would call the defendant to rebut any such allegations.
Defendant stated that he wished to proceed with counsel. During trial, a
codefendant that had plead guilty testified that he, the defendant, and
counsel had committed the crimes. Counsel had an actual conflict because
his interest in exonerating himself was not consistent with defending
his client. The adverse affect of the conflict was apparent in counsel’s
questioning of the codefendant only in an attempt to exonerate himself,
failure to call the defendant as a witness, and his failure to object to
the state’s closing argument. The allegations against counsel also
affected his integrity and credibility, which made him less effective as
counsel. The purported waiver of the conflict was not valid because it
was based on counsel’s statement that he would not be implicated and if
he was it would be rebutted with defendant’s testimony. This did not
happen. Moreover, while defendant was advised that counsel could not be
a witness and counsel in the same proceeding, he was not advised of the
possible effects on the jury if his defense counsel were implicated in
the crimes.
1989: Nunn v. State, 778 S.W.2d 707 (Mo. Ct.
App. 1989). Counsel had an actual conflict that adversely affected
representation in arson case where counsel testified and counsel was
implicated in possible ethical misconduct related to the case. Prior to
trial, counsel interviewed three state’s witnesses by phone and
tape-recorded the calls without the witness’ knowledge. Counsel also
subpoenaed one state witness to his office for a deposition without
notifying the state and without actually setting up a deposition. At
trial, this witness testified and denied talking to counsel on the
phone. Counsel then called himself to testify concerning the witness’
prior inconsistent statement and had his brother who was also a lawyer
conduct the examination. During cross, the state brought out the
tape-recording and subpoena activities. Counsel then resumed
representation and called a former law clerk as a witness to testify
that he and not counsel was responsible for the subpoena. During
closing, the state vigorously attacked counsel’s credibility. Court
found an actual conflict for four reasons. First counsel had an obvious
interest in the outcome of the case because he was retained, not
appointed. Second, through its intimation of impropriety in counsel’s
tape-recording telephone conversations without the other side’s
knowledge and issuing a subpoena for an improper purpose, the state made
defense counsel’s credibility an issue for the jury. Third, defense
counsel called a witness for the sole purpose of rehabilitating defense
counsel’s own credibility. Finally, defense counsel’s appearance in the
inconsistent roles of advocate and witness may have undermined the
jury’s ability to decide the facts and its perception of movant. The
court held that counsel should have withdrawn when he decided to
testify.
Counsel was caught between the obligation to do
his best for movant and the need to justify his own conduct as legal and
ethical. An accused is entitled to representation which is uncluttered
by counsel's efforts to vindicate his own conduct. A conflict of
interest resulting in ineffective assistance of counsel may arise from
an interest adverse to the accused or an interest simply personal to the
attorney.
The only issue which should have been before the
jury was defendant's conduct, not that of his attorney.
Id. at 711 (citations omitted). Adverse
affect was clear since counsel injected his credibility as an issue and
the jury may have "unintentionally imputed the alleged improprieties of
defense counsel to his client." Id.
1987: Morales v.
State, 513 So.2d 695 (Fla. Dist. Ct. App. 1987). Counsel
had actual conflict that adversely affected representation in robbery
case where counsel had instructed defendant to unlawfully tape record
conversation with codefendant who testified for state, but counsel did
not use tape to impeach witness because of concerns about the propriety
of his actions.
State v.
Cyrs, 529 A.2d 947 (N.H. 1987). Counsel had conflict in
drug case that required per se reversal where counsel was a state’s
witness against confidential informant and in order to avoid those
charges informant agreed to be a confidential informant against
defendant. Counsel also had a conflict because counsel was the subject
of the same drug investigation in which the defendant was implicated.
Prosecutor had inferential knowledge of those conflicts but did not
notify the court. The prosecutor’s silence also required reversal.
1986: Smith v. State, 717 P.2d 402 (Alaska
Ct. App. 1986). Counsel had conflict that required presumption of
prejudice in rape case where counsel failed to adequately advise
defendant, due in part, to concerns about ethics. Defendant had entered
into agreement to be tried on one of two rape charges, and to have
second charge dismissed if he were acquitted, but to plead guilty to
second charge if he were convicted. He was under no legally enforceable
obligation to enter a plea of guilty to the second charge after he was
convicted on the first charge, but defense counsel did not inform
defendant of his right to persist in a plea of not guilty to second
charge. Because of the manner in which this "double or nothing" plea
agreement was implemented in this case, defendant’s counsel may have
considered himself foreclosed as a matter of both personal integrity and
professional ethics from giving defendant any advice that would
encourage him to renege on the agreement. To the extent that this
precluded counsel from fully advising his client of the options legally
open to him, however, the concern of counsel with his own ethical and
moral dilemma was squarely at odds with his duty to protect his client’s
interest conscientiously, undeflected by conflicting considerations. If
counsel believed himself precluded from informing defendant of his right
to persist in his plea of no contest, then, the court opined, he was
under a duty to seek withdrawal from the case. Trial court’s order
denying motion to withdraw plea reversed.
1985: *State v. Chandler, 698 S.W.2d 844 (Mo.
1985). Counsel had conflict that adversely affected representation in
murder case where counsel X was implicated in the same murder and had
been represented by counsel Y when counsel X was indicted but the charge
was later dismissed and counsel X paid counsel Y to represent defendant.
The victim was an attorney. The defendant’s brother, who was represented
by counsel X at the time of his initial statements, implicated defendant
in murder and testified at trial that he stood watch while defendant and
another brother committed murder. The other brother that had already
been convicted of murder and sentenced to death had initially been
represented by counsel X but discharged him and testified before a grand
jury that defendant was hired by counsel X to kill the victim. He
testified in a deposition that he committed the murder alone and
defendant had nothing to do with it. Adverse affect shown because
counsel did not call this brother, who exculpated defendant to testify
allegedly because he had no credibility. Defendant was entitled to
counsel that could make decision whether to call the brother or not
without a conflict.
1982: State v. Loye, 289 S.E.2d 860 (N.C. Ct.
App. 1982). Counsel had a conflict that required presumption of
prejudice in robbery case where counsel was under investigation for his
own participation in criminal conduct involving the defendant.
Q. Counsel Had Conflicting Interests Due to Financial
Interest or Connection or Clear Sympathies with Prosecutor, Law
Enforcement, or Judge
1. U.S. Court
of Appeals Cases
1997: Blankenship v.
Johnson, 118 F.3d 312 (5th Cir. 1997). Appellate counsel
had a conflict of interest that adversely affected representation in
discretionary review process in Texas Court of Criminal Appeals.
Defendant was convicted of aggravated robbery. On direct appeal to the
Court of Appeals, the conviction was reversed. By the time of the
reversal, counsel had been elected as county attorney. Counsel did not
withdraw or inform the defendant though. The state sought discretionary
review in the Court of Criminal Appeals, which was granted, and the
defendant’s conviction reinstated without response from counsel, who was
aware of the proceedings. Counsel had an actual conflict because he was
serving as a prosecutor. The adverse affect was clear because counsel
did nothing and did not even inform his client that he was no longer
representing him until after the defendant’s conviction had been
reinstated. Prejudice presumed.
*Rickman v.
Bell, 131 F.3d 1150 (6th Cir. 1997) (affirming 864 F. Supp.
686 (M.D. Tenn. 1994)). Counsel had conflict due to his sympathies with
the prosecution case that adversely affected his representation and
resulted in constructive denial of counsel. Defendant was charged with
murder, rape, and kidnapping as a contract killer hired by the victim’s
husband to kill his wife. During trial, counsel "combined a total
failure to actively advocate his client's cause with repeated
expressions of contempt for his client for his alleged actions. The
effect of all this was to provide [the defendant] not with a defense
counsel, but with a second prosecutor." Id.
at 1157. Following his initial meeting with client, when client
confirmed that his statement to police was true, counsel did not
interview any witnesses, conduct any legal research, or obtain and
review any records. Counsel spent only 16 hours preparing for trial and
his preparation consisted solely of meetings with the defendant. During
trial, counsel pursued "a strategy" to convince the jury that the
defendant was a sick man. The appellate court observed though, "In our
view, [the defendant] would have been better off to have been merely
denied counsel; as it was, he had to endure attacks from his own
attorney that equaled or exceeded those of the prosecution." Id. at 1157. What counsel actually did "was to
convey to the jurors an unmistakable personal antagonism toward [the
defendant], characterized both by attacks on [the defendant] and by
repeatedly eliciting information detrimental to [the defendant’s]
interests." Id. at 1158. Counsel elicited
testimony of careful planning when the facts suggested otherwise. He
also elicited testimony of the defendant’s alleged threats to commit
other crimes. His attacks "took the form of portraying [the defendant]
as crazed and dangerous." Id. During
sentencing phase arguments, counsel even apologized to the prosecutors
and said that he was ashamed to represent the defendant. The court views
this abandonment of the duty of loyalty as a conflict of interest. "[A]n
attorney who is burdened by a
conflict between his client's
interests and his own sympathies to
the prosecution's position is considerably worse than an attorney with
loyalty to other defendants, because the interests of the state and the
defendant are necessarily in opposition." Id.
at 1159 (quoting Osborn v. Shillinger, 861
F.2d 612, 629 (10th Cir.1988) (emphasis added)).
1991: United States v. Swanson, 943 F.2d 1070
(9th Cir. 1991). Prejudice presumed where counsel conceded defendant’s
guilt in his closing argument in bank robbery case. The Ninth Circuit
held that this abandonment of the duty of loyalty by assisting the
prosecutor created a conflict of interest.
1988: *Osborn v. Shillinger, 861 F.2d 612
(10th Cir. 1988). Counsel had conflict that adversely affected
representation in capital case due to counsel’s sympathies to the
prosecution. Counsel believed he could talk the prosecutor out of
seeking the death penalty. When that failed, counsel was left unprepared
due to his failure to investigate. He advised defendant to plead guilty
and in sentencing sought only to show that defendant’s participation in
the crimes was more limited than his codefendants, who were not
sentenced to death. Counsel did not prepare and present mitigating
evidence concerning defendant’s family background and medical history.
Counsel also failed to object to prejudicial ex
parte information provided to the trial court that indicated
defendant was the "ringleader," id. at 627,
even though counsel knew or should have known that the information was
provided to the court. Counsel was not prepared to present the argument
chosen because counsel did not have the transcripts from codefendants’
plea hearings or interview the codefendants (one of whom admitted that
he was the ringleader). Counsel "so abandoned his ‘overarching duty to
advocate the defendant's cause,’ Strickland,
466 U.S. at 688, 104 S.Ct. at 2064, that the state proceedings were
almost totally non-adversarial." Id. at 628.
Following the defendant’s motion to withdraw his guilty plea, counsel
also made statements to the press indicating that defendant had no
evidence to support the claim and was playing a game to attract
attention. "Publicly chastising a client is evidence of
ineffectiveness." Id. During sentencing,
counsel also made public statements that his client was not amenable to
rehabilitation. Counsel did not challenge the ex
parte information or the state’s assertion that defendant was the
ringleader because counsel believed this to be correct. "[T]hat
conflicting evidence existed was apparently of no moment to him. Defense
counsel must present conflicting evidence to the court, not judge the
issue for himself." During sentencing, counsel also violated the duty of
loyalty by stressing the brutality of the crimes and compared his client
to "sharks feeding in the ocean in a frenzy; something that’s just
animal in all aspects." Id. Following the
trial, even though counsel still represented defendant on appeal,
counsel, in an evaluation of the trial judge, informed the judge in a
letter that his client deserved the death penalty.
A defense attorney who abandons his duty of
loyalty to his client and effectively joins the state in an effort to
attain a conviction or death sentence suffers from an obvious conflict
of interest. . . . In fact, an attorney who is burdened by a conflict
between his client's interests and his own sympathies to the
prosecution's position is considerably worse than an attorney with
loyalty to other defendants, because the interests of the state and the
defendant are necessarily in opposition.
Id. at 629. Here, counsel "did not simply
make poor strategic choices; he acted with reckless disregard for his
client's best interests and, at times, apparently with the intention to
weaken his client's case. Prejudice, whether necessary or not, is
established under any applicable standard."
1986: United States ex rel. Duncan v.
O’Leary, 806 F.2d 1307 (7th
Cir. 1986). Counsel had actual conflict that adversely affected
representation in murder case where counsel conspired with the
prosecutor and a police officer, who was the prosecutor’s girlfriend, to
get defendant to retain him. Counsel was manager of the prosecuting
attorney’s campaign for state’s attorney and they believed that it would
be good for the campaign for counsel to represent defendant. Counsel
entered appearance as petitioner’s attorney less than ten days before
trial, but did not seek continuance, failed to interview state’s
witnesses, and his cross-examination of those witnesses at trial was
rather limited.
1985: Wilson v. Mintzes, 761 F.2d 275 (6th Cir. 1985). Counsel had conflict that
adversely affected representation in rape case where counsel informed
the jury that he no longer represented the defendant and refused to
cross-examine a witness after the trial court questioned his competence.
"[C]ounsel’s decision to continue his battle of wits with the trial
judge rather than attend to his client’s case" constituted a conflict.
Id. at 286. "[C]ounsel’s loyalty to his own
interests rather than those of his client adversely affected his
performance in terms of appearance before the jury as well as his
tactical conduct of the case." Id. at 287.
Walberg v.
Israel, 766 F.2d 1071 (7th
Cir. 1985). Counsel had conflict and prejudice was presumed since the
trial court created the conflict by his bias against counsel, which
would have caused counsel concern that he would not get paid or
appointed on other cases if he represented defendant vigorously. The
trial judge was outwardly biased against defense counsel during
pre-trial hearings, disrupted the mode of witness examination by
answering for the witness, and relayed thinly veiled threats to never
appoint defense counsel to another case or to pay him. The court’s
actions created a conflict between the defendant and counsel that opened
the door to a potentially less-than-vigorous defense because "the state,
here in the person of the trial judge, ‘interfered in certain ways with
the ability of counsel to make independent decisions about how to
conduct the defense.’" Id. at 1076 (quoting
Strickland, 104 S. Ct. at 2064). "It is not
right that the state should be able to say, ‘sure, we impeded your
defense-now prove it made a difference.’" Id.
1984: *Westbrook v. Zant, 743 F.2d 764
(11th Cir. 1984). Counsel had conflict
that adversely affected representation in murder case where counsel
simultaneously represented the county in separate suit challenging
constitutionality of jury selection procedures. The Eleventh Circuit
initially held that if counsel did represent the county he had an actual
conflict because counsel would have been hard pressed to present a jury
composition challenge before petitioner’s trial, because such a
challenge would have been directed against another client. The court
remanded to the district court to determine whether counsel did
represent the county and ordered relief if this finding was made. Westbrook v. Zant, 704 F.2d 1487 (11th Cir.
1983). The district court, however, exceeded the scope of the mandate
and found, although counsel represented the county, that counsel did not
have actual conflict. Because the trial court found that counsel had
represented the county in the jury-pool litigation, it erred in finding
no conflict and denying the writ. Remanded, with instructions to issue
the writ.
2. U.S.
District Court Cases
1994: United States v. Harris, 846 F. Supp.
121 (D.D.C. 1994). Counsel had actual conflict of interest that
adversely affected representation in drug distribution case. Defendant
was charged following execution of a search warrant. Counsel was
appointed. Before meeting with defendant, counsel questioned a police
officer, her lover, about his role in the arrest. He told her that he
was present at the scene but had no knowledge of the arrest of defendant
but had been involved in the arrest of the codefendant. During the joint
trial, counsel’s lover testified. In addition to discussing the arrest
of the codefendant, he stated that he was present during portions of the
defendant’s arrest. During the entire period of counsel’s representation
of defendant, she was involved in a longstanding, adulterous, intimate
affair with her officer lover. He even had a key to her home. The court
found that defense counsel’s substantial personal relationship with an
adverse witness in the case established an actual conflict of interest. Adverse affect found
because the officer’s testimony conflicted with other accounts of the
circumstances surrounding the execution of the search warrant that led
to the arrest but counsel failed to adequately exploit these differences
on cross-examination. Codefendant’s counsel used this tactic on the jury
hung in his case.
1991: United States v. Marshank, 777 F. Supp.
1507 (N.D. Cal. 1991). Government’s collaboration with defendant’s
attorney during investigation and prosecution of drug case violated
defendant’s Fifth and Sixth Amendment rights and required dismissal of
the indictment. Counsel assisted the government by bringing in several
clients, who were not charged or being investigated, to offer
information in exchange for immunity. Based on information they
provided, the government initially targeted an "insider" in the drug
operation. Counsel contacted a former client, who was already indicted
on charges, and arranged for him to surrender and cooperate. He provided
information that led to indictment of another of counsel’s former
clients, who on the advice of counsel also cooperated and provided
information that led to defendant’s indictment. In the initial grand
jury proceedings, all of the witnesses were clients of counsel. When the
defendant was arrested, law enforcement, who had been working with
counsel, encouraged the defendant to call an attorney. Defendant called
the same counsel, who had previously represented him in divorce
proceedings and with whom he had an ongoing relationship. Counsel
advised him to provide some incriminating information as a showing of
good faith when the government had not even been aware of the
information. Ultimately, defendant retained separate counsel. The
initial indictment was dismissed. In the second grand jury proceedings,
counsel even testified against the defendant. [There’s more to the
horror story, but you get the picture]. The court held that the
government’s conduct created a conflict of interest between defendant
and counsel and the government took advantage of it without alerting the
defendant, the court, or even the "oblivious" counsel to the conflicts.
"While the government may have no obligation to caution defense counsel
against straying from the ethical path, it is not entitled to take
advantage of conflicts of interest of which the defendant and the court
are unaware." Id. at 1519. Moreover, the
government here assisted in efforts to hide the conflicts from
defendant. "In light of the astonishing facts of this case, it is beyond
question that [counsel’s] representation of [defendant] was rendered
completely ineffectual and that the government was a knowing participant
in the circumstances that made the representation ineffectual." Id. at 1520.
3. Military
Cases
1992: United States v. Bryant, 35 M.J. 739
(A.C.M.R. 1992). Military defense counsel had actual conflict that
adversely affected representation where counsel considered the needs of
the Army over the needs of his client. Accused was charged with
disobeying orders and disrespect in Saudi Arabia during Gulf War.
Despite believing that the accused should proceed to trial before a
panel because of problems with the government’s proof, counsel advised
the accused to waive a panel trial and proceed with a bench trial
because counsel knew the ground war was about to start (and it did the
next day) and he was concerned about the consequences of calling
soldiers to court to serve as panel members when they were needed in
combat. Although the record reflected a waiver by the accused, the court
found that counsel’s own affidavit attesting to his divided loyalties
could not be ignored.
1989: United States v. Whidbee, 28 M.J. 823
(C.G.C.M.R. 1989). Reversal of two general court-martial convictions
required where the prosecutor was the defense counsel’s immediate
supervisor and rater in all non-military justice matters and this
conflict was not explored by the court prior to trial because the court
was not informed of the problem. While defense counsel had disclosed to
the accuseds that trial counsel was his supervisor, defense counsel did
not recognize an actual conflict and it was thus "impossible for him to
provide the kind of explanation to an accused necessary for a knowing
waiver." Id. at 827. Absent proof of an
adequate waiver when such an "inherent and irrefutable" conflict is
present, id. at 826, prejudice is presumed.
1985: United States v. Kidwell, 20 M.J. 1020
(A.C.M.R. 1985). Counsel had conflict that adversely affected
representation in drug case where counsel negotiated a deal to dismiss
charges and administratively discharge the accused in exchange for
accused working as informant but counsel did not move for discharge
following provision of some information because he believed it was in
best interest of military to keep the accused providing information to
the government. The accused then picked up additional charges and the
government prosecuted and convicted him of all. The court held that
counsel’s failure to move for administrative discharge was due to
counsel’s desire to keep accused operating as an informant about
whereabouts of blank military identification cards, which the government
believed could be used by terrorists in a time when there had been
widespread terrorism against the U.S. and its installations. Counsel’s
interest was adverse to appellant’s interests at that point. Thus,
counsel actively represented competing interests. The convictions on the
initial charges were reversed. Resentencing ordered.
4. State
Cases
2004: In re S.G.,
807 N.E.2d 1246 (Ill. App. Ct. 2004). Counsel in parental rights
termination case had a per se conflict of interest due to his previous
representation of the minors as a guardian ad litem. The state sought to
terminate parental rights due to neglect and abuse of the children. In
the initial hearing, counsel served as a guardian for the children
asserting that parental rights should be terminated. Two months later,
the court appointed a different guardian for the children and appointed
counsel to represent the parent. A per se conflict was found because
counsel represented parties with adverse objectives at different times
in the same proceedings. Prejudice presumed in accord with state law per
se holdings.
1998: *Sallie v.
State, 499 S.E.2d 897 (Ga. 1998). Counsel in capital case
had actual conflict because counsel simultaneously worked as a full-time
judicial law clerk for the circuit judges, including the trial judge.
The defendant was never informed of the conflict. "There is no need to
embark on an analysis of Cuyler, supra, and its progeny: the conflict here is
obvious and, given the enormity of the penalty in this case, completely
impermissible." Id. at 448.
1996: State v. Holland, 921 P.2d 430 (Utah
1996). Prejudice presumed where counsel did very little and was
ultimately disqualified from representation on appeal due to counsel’s
breach of loyalty in arguing in another case that defendant is a prime
candidate for the death penalty. Capital defendant initially plead
guilty and was sentenced to die but initial appeal resulted in
resentencing hearing. On remand, defendant moved to withdraw guilty
pleas on basis that he was incompetent at the time of plea. The court
denied the motion and at the resentencing counsel presented no evidence
to challenge aggravation evidence and no evidence in mitigation rather
counsel simply presented the transcript from the prior sentencing and
did not even argue that life was an appropriate punishment. The same
counsel initially represented the defendant on appeal but was
disqualified due to actual conflict of interest for taking adversarial
position with defendant in another capital case. New counsel argued that
judge erred in nunc pro tunc finding of competency based on evidence and
ineffective assistance. Court found trial court did err in making nunc
pro tunc finding of competency in combination with defense counsel’s
completely bad and at times adversarial representation throughout
certainly draws into question whether defense counsel ever investigated
or advised defendant properly and whether defendant was in fact
competent.
1994: *People v. Lawson, 644 N.E.2d 1172
(Ill. 1994). Prejudice presumed in capital murder case where
court-appointed defense counsel had previously served in the same case
as a prosecutor. Counsel had appeared as a prosecutor at defendant’s
arraignment, where he filed two discovery motions, and presented then
defense counsel with copies of indictments and warrant for defendant’s
arrest. Counsel then became an assistant public defender and advised the
court, some seven months after appearing for the state at defendant’s
arraignment, that he had entered his appearance as defendant’s newly
appointed defense counsel. Counsel represented defendant through
pretrial, trial, and sentencing. Counsel then filed a motion for new
trial. New counsel was appointed following defendant’s pro se motion raising issues of ineffectiveness.
The conflict was never raised until appeal. The Illinois Supreme Court
found no default, however, because there was no indication in the record
that defendant was aware that counsel had served as a prosecutor in his
case. "[U]nder the circumstances here, where defendant's court-appointed
defense counsel also previously served in the same criminal
proceeding as the prosecuting
assistant State’s Attorney, a possible conflict of interests existed.
Fairness to both the accused as well as his attorney dictates
application of a per se rule. In such case,
it is unnecessary for the defendant to show actual prejudice in order to
be entitled to a reversal of his conviction." Id. at 1186-87.
*State v.
Holland, 876 P.2d 357 (Utah 1994). Counsel disqualified
from representation on appeal due to counsel’s breach of loyalty in
arguing in another case that defendant is a prime candidate for the
death penalty. Defendant plead guilty to capital homicide and was
sentenced to death. Based on an issue not raised by counsel in trial or
in first appeal, the court set aside the death sentence. In the second
capital sentencing, counsel introduced only the transcript from the
first penalty hearing and, otherwise, presented no evidence or argument.
The death sentence was again imposed. The Utah Supreme Court held that
the direct appeal would not be addressed until new counsel was appointed
because counsel violated his duty of loyalty to defendant. After filing
this appeal, counsel sought to call defendant to testify in an unrelated
capital trial concerning his criminal acts and background so that the
jury could compare defendant’s background and criminal activities with
those of the other capital defendant. "The purpose of the testimony was
to demonstrate that, when compared to [defendant], [counsel’s other
client] did not deserve the death penalty." Id. at 358. The testimony was excluded from the
other case, and counsel appealed on behalf of that client arguing that
defendant, unlike counsel’s other client "is a prime candidate for the
death penalty." Id. at 359. The state moved
to disqualify counsel in the other case and that motion was granted.
Although the state did not move to disqualify counsel in this case, the
court found the issue to be unavoidable and addressed counsel’s actions
sua sponte. The court found a violation of
the duty of loyalty. "At a minimum, an attorney's duty of loyalty to his
or her client requires the attorney to refrain from acting as an
advocate against the client, even in a case unrelated to the cause for which the attorney is
retained." Id. at 359-60.
If an attorney’s loyalty is compromised because
he believes that his client should be convicted or because he is
influenced by a conflict in loyalties to other defendants, third
parties, or the government, the law cannot tolerate the risk that the
attorney will fail to subject the prosecution's case to the kind of
adversarial challenge necessary to ensure that the accused receives the
effective assistance of counsel as guaranteed by the Sixth Amendment.
Id. at 360. Here, by asserting that defendant
was a prime candidate for the death penalty, counsel essentially aligned
himself with the state. "[A]n attorney is not justified in asserting
that his client deserves the death penalty, even if his client desires
to have that penalty imposed." Id. at 361
n.3. "Given the direct and fundamental nature of the duty of loyalty, we
will not inquire into the issue of whether the breach of that duty was
prejudicial." Id. at 361. New counsel
appointed.
1992: Browning v. State, 607 So.2d 339 (Ala.
Crim. App. 1992). Counsel had an actual conflict in drug case that
adversely affected represent where counsel in the same case, acting as a
municipal judge, had signed the search warrant for defendant’s home. The
court found an actual conflict and a violation of the judicial canons
prohibiting a part-time judge from appearing as counsel in a proceeding
in which he has appeared as a judge. The conflict was clear. Counsel as
a judge relied on information supplied him by the officers working on
the case in authorizing search of defendant’s home. As defendant’s
counsel, on the other hand, counsel and was obliged to question the
reliability of the information from the same officers whom he had
previously relied upon. Defendant did not make a valid waiver either.
While counsel informed the trial court of the conflict, the court
conducted an inquiry of counsel in chambers outside the defendant’s
presence. The court also found that the error was not harmless, even
though no evidence was obtained in the search authorized by counsel.
Prejudice is presumed when an actual conflict is shown.
1987: State v.
Bolen, 514 So.2d 691 (La. Ct. App. 1987). Counsel had
actual conflict in burglary case that required reversal regardless of
the absence of prejudice where counsel was the son of the sentencing
judge.
1986: State v. Browning, 483 So.2d 1008 (La.
1986). Counsel had conflict that required presumption of prejudice in
drug case where counsel was the sentencing judge’s son.
Worthen v.
State, 715 P.2d 81 (Okla. Crim. App. 1986). Counsel had
actual conflict that required reversal in drug case where counsel had
previously prosecuted defendant for two prior crimes used to enhance his
punishment.
State v.
Reedy, 352 S.E.2d 158 (W. Va. 1986). Failure of defense
counsel to disclose to defendant before trial the existence of a family
relationship between defense counsel and burglary victim denied
defendant his right to effective assistance of counsel.
1985: People v. Jackson, 213 Cal. Rptr. 521
(Cal. Ct. App. 1985). Counsel had potential conflict that required
automatic reversal where counsel failed to inform defendant of counsel’s
ongoing "dating" relationship with prosecutor. Reversal required even
though counsel and prosecutor were never married or engaged to each
other and did not live together, and counsel never divulged any
confidential defense information to prosecutor.
1984: People v. Washington, 461 N.E.2d 393
(Ill. 1984). Counsel had conflict that required automatic reversal in
murder case where counsel was employed as the prosecutor in another city
and some of the police officers from his city were called to show
probable cause for defendant’s arrest. Counsel’s conflict centered on
the simultaneous obligation to oppose and to attempt to discredit a
police officer and representative of the municipality he was serving as
its prosecutor. The attorney was obliged to cross-examine and attempt to
discredit one of the officers whose veracity and credibility he vouched
for when acting as a prosecutor for his municipality. Counsel’s
statement to trial judge showed that attorney was aware of the possible
conflict, but there was no showing that the conflict was explained to
the defendant. And there was nothing to show that defendant understood
the nature of an attorney’s conflict of interest. As such, defendant’s
waiver of the possible conflict was not knowing and understanding.
1983: People v. Castro, 657 P.2d 932 (Colo.
1983). Counsel had conflict that required presumption of prejudice in
murder case where counsel simultaneously represented the district
attorney in separate litigation involving recall petition and criminal
charges of overspending his office’s budget, even though the case was
not personally tried by the district attorney. Right to effective
assistance of counsel may be violated not only by representation falling
below the level of competence to be expected of a reasonably competent
attorney practicing criminal law, but also by representation that is
intrinsically improper because of a conflict.
State v.
Franklin, 331 N.W.2d 633 (Wis. Ct. App. 1983). Counsel had
actual conflict that adversely affected representation in theft case
where counsel at sentencing argued that defendant’s bond money had been
assigned to him for payment of legal fees, thus opposing state’s plan to
use bond money as restitution provided for by plea agreement. Defendant
was thereby denied effective assistance of counsel, requiring vacation
of sentence, regardless of whether plea agreement actually called for
use of bond money as restitution.
1982: Howerton v. State, 640 P.2d 566 (Okla.
Crim. App. 1982). Counsel had a conflict that required presumption of
prejudice where counsel was a part-time prosecutor.
R. Pending Criminal Investigation or Charges in Same
Jurisdiction
1. U.S. District Court Cases
1985: United States v.
Marin, 630 F. Supp 64 (N.D. Ill. 1985). Counsel had
conflict and prejudice was presumed where counsel was under criminal
investigation by the same prosecutor and was cooperating with the US
Attorney in an attempt to avoid indictment. While there was no showing
of adverse affect, the court held that, in his desire to ingratiate
himself with representatives of the US Attorney’s office or in his fear
of offending them in the course of his negotiations seeking
consideration for himself from them, counsel may have done less than he
might otherwise have done for his client. The court found that prejudice
should be presumed.
2. State Cases
1998: *In re Gay, 968 P.2d 476 (Cal. 1998).
Counsel had several conflicts, including pending charges against him in
the same jurisdiction. The cumulative prejudice of the conflicts, in
addition, to overall ineffective representation in sentencing required
that death sentence be vacated. Defendant was charged with killing a
police officer and numerous armed robberies. The defense counsel tricked
the defendant into retaining him with the help of a
psychologist/minister and then got himself appointed. Counsel then
advised the defendant to confess to the numerous armed robbery charges,
based on an alleged deal that the defense did not have, even though the
state’s evidence was based only on weak circumstantial evidence and
accomplice testimony. The confession allowed the state to convict and to
portray the defendant as a serial robber, which was devastating in light
of the absence of substantial mitigating evidence in sentencing. Counsel
then selected and used the psychologist and a psychiatrist based on a
fee arrangement. The psychologist would help trick people to get the
attorney retained and in turn the attorney would retain these "experts"
who worked together. The psychiatrist was unwilling to take the case if
extensive work was required, but counsel assured him that death was a
foregone conclusion and extensive time was not required. The
psychologist, who was not licensed, did only a Bender Gestalt
(neuropsychological screening test) and a WISC test, which is a
children’s intelligence test. The psychiatrist interviewed the defendant
and reviewed a single parole report. He did not request and was not
provided with any additional information. He testified only that the
defendant is sociopathic, but adapts well to structured environments. A
few other defense witnesses that counsel spoke to briefly, if at all,
prior to their testimony, testified that the defendant has good
character. Counsel was ineffective for numerous reasons. In addition to
all of these problems, during his representation of the defendant,
counsel was being investigated by the same prosecutor for
misappropriation of funds, which presented a potential conflict of
interest that was undisclosed. "Whether [counsel’s] failure to
aggressively defend petitioner at the penalty phase of the trial is
solely attributable to the conflict precipitated by the capping
relationship or was influenced by the distraction of the fund
misappropriation investigation cannot be determined on this record. The
per se rule of prejudice arising from an actual conflict of
interest does not apply therefore.
Nonetheless these conflicts contribute to our lack of confidence in the
verdict when considered with [counsel’s] other failings." Id. at 510-11 (citation omitted).
1996: People v. Edebohls, 944 P.2d 552 (Colo.
Ct. App. 1996). Trial court failed to conduct adequate inquiry into
counsel’s conflict where counsel had pending criminal charges in the
same jurisdiction. Defendant charged with numerous Organized Crime Act
violations including alleged that he headed a drug distribution
conspiracy. Counsel was retained. Prior to trial, counsel was charged
with two counts of tampering with a witness and one count of bribery in
a matter unrelated to defendant's case. Counsel informed the defendant
of the charges pending against him. At the request of the defendant
counsel withdrew but was then retained again two days later. On the
morning of trial, the court, having read about counsel’s charges in the
newspapers, inquired about the pending charges against counsel. The
court conducted an inquiry of the defendant without the prosecutor or
counsel being present and determined that the defendant waived any
potential conflict. Trial proceeded and the defendant was convicted. The
appellate court held that counsel’s pending charges, in the same
jurisdiction, created an actual conflict of interest.
Because the same district attorney's office was
responsible for the prosecutions of both defendant and defense counsel,
defense counsel may well have been "subject to the encumbrance that the
prosecutor might take umbrage at a vigorous defense" of defendant and
become more ardent in the prosecution of defense counsel. Under these circumstances, we conclude that an
actual conflict of interest existed.
Id. at 556. Although the trial court
conducted an inquiry, the court did not specifically ascertain whether
defense counsel and defendant had discussed the conflict of interest and
did not appoint independent counsel to consult with the defendant on
this matter. Moreover, at no point did the trial court explain the
conflict or advise defendant of his right to conflict-free
representation. Thus, defendant was never given a "clear choice" between
exercising or waiving his right to conflict-free counsel. Moreover, his
answers about whether he desired to continue with this counsel were
equivocal. Because the inquiry was inadequate, there could be no finding
of a knowing and intelligent waiver. Prejudice presumed.
1991: Phillips v. Warden, 595 A.2d 1356
(Conn. 1991). Counsel in sexual assault case had actual conflict that
adversely affected representation where counsel had been convicted of
murder in a highly publicized case, but allowed to continue his law
practice until he had completed the appeals process. Counsel had been a
prominent politician in the local area before he was charged with
murdering his wife. He was convicted, the trial court set aside the
conviction, and then the Supreme Court reinstated the conviction and
counsel was sentenced. He then appealed. During that time there were
numerous headlines in the local papers. He had moved twice for a change
of venue. Following defendant’s arrest, his girlfriend retained
counsel’s former associate for the arraignment and that lawyer
recommended counsel. Defendant was not from the local area and was not
aware of counsel’s convictions. Three days later, defendant’s girlfriend
told him that counsel had been convicted but that his conviction had
been overturned, which was not accurate since counsel’s conviction had
been reinstated by then. Defendant retained counsel anyway on the advice
of his friends and relatives. Counsel did not inform defendant of his
problems until close to trial, but assured him that he could continue as
his attorney. Counsel did not withdraw because he needed the money.
During voir dire, counsel did not question the jurors concerning their
knowledge of his own murder conviction. The court found an inherent
conflict because counsel’s "duties of undivided loyalty and independent
exercise of professional judgment demanded that he withdraw from
representing the [defendant]." Id. at 1371.
Counsel’s representation was adversely affected because counsel had to
choose between inquiring on voir dire about his own murder conviction or
not – "either of which was fraught with peril for the [defendant’s]
right to a fair trial before an impartial jury." Id. Under these circumstances, there was a risk
that the jurors "would transfer to the [defendant] the distaste or
revulsion that they may have felt for his lawyer." Id.
S. Counsel Having Affair With Defendant’s Wife (State
Cases only)
1990: *People v.
Singer, 275 Cal. Rptr. 911 (Cal. Ct. App. 1990). Counsel in
murder case had a conflict that adversely affected representation where
counsel was having an affair with defendant’s wife and also representing
her because she was potentially implicated in crimes. Defendant was
arrested for the murder of his wife’s ex-husband. A first trial ended in
hung jury. Defendant was convicted in the second trial. During both
trials counsel had a sexual relationship with defendant’s wife, which
was disclosed after trial to defendant by counsel’s former employee. The
court noted that an actual conflict must be shown under Cuyler, but California law requires a showing of
a potential conflict if the record "supports ‘an informed speculation’
that appellant’s right to effective representation was prejudicially
affected." Id. at 921. Here, counsel’s affair
with defendant’s wife "introduced deception and duplicity into the
advocate-client relationship, which by definition must be grounded in
trust and fidelity." Id. at 920. Counsel may
have had an interest in defendant being convicted so the affair could
continue or remain undiscovered. Counsel may also have had an interest
in protecting his lover from being implicated in the crimes, especially
where counsel also represented her.