V. Court Erred in Accepting Waiver of Unwaivable Conflict
A. Simultaneous Representation of Jointly Tried Codefendants (U.S. Court of Appeals Cases only)
2000: United States v. Hall, 200 F.3d 962 (6th Cir. 2000).
Trial court erred in accepting waiver in drug conspiracy case where
counsel represented both defendants, who were brothers. The court held
that the "younger brother, Stanley Hall, was obviously led astray by his
older brother." And, although both defendants "waived their rights to
separate counsel, this is one of the unusual cases where the court
should have stepped in to ensure an adequate legal defense for Stanley
Hall." Id. at 963. Government counsel raised the issue and the
conflict was discussed repeatedly. In a hearing just prior to trial,
counsel stated that he had represented the older brother for years and
would represent only him if the dual representation was not allowed. The
younger brother indicated he would continue with counsel, "but the
record remains cloudy as to whether Stanley understood the full
ramifications of what he was doing." Id. at
964. During the trial, the older brother asserted that he was working
undercover as an informant for the government, which he had done in the
past but there was no evidence of in this case. The younger brother
asserted that he had been informed by his brother that he was assisting
in an undercover operation. Both were convicted. The conflict of
interest was evident in Stanley Hall's case by counsel’s failure to
successfully negotiate a plea agreement for the younger brother. Prior
to trial, both brothers entered into plea agreements which were signed
but withdrawn at the last moment. Under the plea agreement, the older
brother, who had two prior convictions, would have received a life
sentence and the younger brother, who had no prior convictions, would
have been sentenced to between three years and ten months and four years
and nine months rather than receiving the mandatory minimum sentence of
ten years. While the older brother’s interest was to go to trial, the
younger brother’s interest was clearly better served by entering into
the plea agreement. Likewise, during the trial, counsel focused only on
the older brother’s defense, even when questioning the younger brother.
And, while counsel did not focus on the lack of evidence connecting the
younger brother to a portion of the drugs, the jury even sent out a
question noting that there was no direct evidence of the connection,
only counsel’s concession. This was clear evidence not only of the
conflict, but that the conflict had prejudiced Stanley Hall. The trial
court should have intervened and severed Stanley Hall’s trial from that
of his brother with unconflicted counsel.
B. Simultaneous Representation of Codefendants in Pleas Negotiations (U.S. Court of Appeals Cases only)
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.
C. Counsel Retained by Third-Party With Adverse Interest in Litigation (U.S. Court of Appeals Cases only)
2002: United States v. Schwartz, 283 F.3d 76 (2d Cir. 2002). Counsel had unwaivable
conflict in case where police officer was convicted of violating the
civil rights of Abner Louima, who was sodomized with a stick in an NYPD
restroom. Four officers were charged. One plead guilty and admitted
committing the sexual assault . Louima testified that the other officer
that drove him to the police station was also present during the attack,
but could not identify him. The Policeman’s Benevolent Association
(PBA), the police officers’ union, hired two outside attorneys to
represent Schwartz and another defendant to avoid any conflicts of
interest that might arise if the union’s regular retained law firm were
to represent multiple defendants. After Schwartz was indicted, however,
the two attorneys formed a firm that soon entered into a two-year, ten
million dollar retainer agreement with the PBA to represent all police
officers in administrative, disciplinary, civil, and criminal matters.
At the government’s urging, the district court held a hearing to explore
conflicts issues. The government argued that the conflicts flowing from
the retainer agreement were so serious as to be unwaivable, but the
district court disagreed and allowed Schwartz to waive the right to
conflict-free counsel. Represented by new counsel on appeal, Schwartz
argued that the loyalties owed by his trial counsel to the PBA and trial
counsel’s pecuniary interest in the retainer created an actual conflict
of interest that deprived him of his Sixth Amendment right to effective
assistance of counsel. The appeals court agreed. Counsel’s
representation of Schwartz was in conflict not only with his ethical
obligation to the PBA as his client, but also with his own substantial
self-interest in the two-year, ten million dollar retainer agreement his
newly formed firm had entered into with the PBA. Counsel’s conflict so
permeated the defense that no rational defendant in Schwartz’s position
would have knowingly and intelligently desired counsel’s representation.
Therefore, the conflict was
unwaivable.