VIII. Miscellaneous
A. Trial Court Abused Discretion in Failing to Disqualify Codefendant's Counsel on Motion of Defendant (State Cases Only)
State v. Sanders, 616 A.2d 1345 (N.J. Super. Ct. App. Div. 1992).
Trial court in drug case erred in failing to disqualify counsel, who had
previously represented defendant in pretrial bail hearing from
representing codefendant with adverse interests during joint trial.
Defendant and codefendant were arrested following a traffic stop during
which cocaine was discovered in the car. Each of the defendants claimed
that the drugs belonged to the other. Prior to trial, defendant moved to
disqualify his codefendant’s counsel because counsel had represented
defendant at a bail reduction hearing and had engaged in confidential
discussions with defendant concerning the charges. The trial court
denied the motion. During trial, the codefendant’s counsel vigorously
cross-examined defendant and asserted that the drugs belonged to the
defendant. The appellate court held that the codefendant’s counsel
should have been disqualified due to the prior representation of
defendant in the same proceedings, which is prohibited by ethics rules.
Prejudice presumed.
B. Trial Court Did Not Abuse Discretion in Failing to Disqualify Counsel on Motion of State (State Cases Only)
2003: *State v. Jimenez, 815 A.2d 976 (N.J. 2003).
Counsel did not have a conflict that required disqualification, over the
defendant’s objection, in capital murder case where state sought to
disqualify counsel. Following the sexual assault and murder of a young
boy, hundreds of people were interviewed. One of those people questioned
as a possible suspect was cleared as a suspect but then charged with
threatening to kill the woman who provided the information that led
police to interrogate him. He pled guilty to charges from that
represented by counsel, who was also representing the capital defendant.
Counsel only represented the other suspect for one day, during his
plea.
C. Trial Counsel Should Not be Appointed as Appellate Counsel (State Cases only)
2002: Alvarez v. State, 79 S.W.3d 679 (Tex.
Ct. App. 2002). Court held that trial counsel should not be appointed to
represent defendant on appeal where claims of ineffective assistance of
counsel could be asserted.
1998: Commonwealth v. Torres, 721 A.2d 1103
(Pa. Super. Ct. 1998). Court held that member of the same public
defender office that represented defendant at trial could not represent
defendant on appeal where claims of ineffective assistance of counsel
could be asserted.
1994: State v. Jones, 888 P.2d 935 (N.M. Ct.
App. 1994). Apparent conflict of interest was created on appeal when
public defender raised ineffectiveness claim, where trial counsel was
also public defender. This required public defender either to file
waiver of conflict by each defendant, make showing why no conflict
existed, or move to withdraw as appellate counsel.
1992: People v. Bailey, 12 Cal. Rptr.2d 339
(Cal. Ct. App. 1992). Trial counsel should not be appointed as appellate
counsel due to inherent conflict. Defendant was convicted in drug case
and appealed. His trial counsel was appointed as appellate counsel.
Appeals court held that there is an inherent conflict in this situation,
even when client signs declaration under penalty of perjury that he does
not believe that there is any reason for another lawyer to review
records of case for potential ineffectiveness issues.
D. Trial Counsel Should Not Be Appointed as Post-Conviction Counsel (State Cases only)
1993: Murphy v. People, 863 P.2d 301 (Colo. 1993). Counsel who was subject
of post-conviction movant’s ineffectiveness claim could not be appointed
as counsel for movant in post-conviction proceedings, due to inherent
conflict and appearance of impropriety. It was irrelevant whether movant
had a right to appointed counsel. In making such appointment, district
court by its own action created situation in which appointed counsel was
forced to litigate against himself.
1989: McCall v. District Court, 783 P.2d 1223
(Colo. 1989). Counsel in appellate division of statewide public defender
office could not be appointed in appeal of post-conviction claims
asserting ineffective assistance of counsel against counsel in trial
division of the same public defender office even though they were in
separate divisions and locations.
1987: Carter v. State, 293 S.C. 528, 362
S.E.2d 20 (1987). Trial counsel should not be appointed in
post-conviction proceedings unless the applicant was specifically
advised of hazards and waived the issue.
1985: People v. Morrow, 478 N.E.2d 25 (Ill.
App. Ct. 1985). Post-conviction court erred in failing to appoint
separate counsel where petitioner was asserting ineffective assistance
against trial public defender and the court appointed public defender in
post-conviction.
1982: Commonwealth v. Delker, 452 A.2d 766
(Pa. Super. Ct. 1982). Public defender office could not be appointed in
post-conviction case where petition alleged ineffective assistance
against the same public defender office.