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