Wednesday, April 4, 2012
Avoiding A Conflict: Supreme Court Of Louisiana Finds No Actual Conflict Of Interest Despite Co-Counsel Being Investigated
Let's say that a defendant is charged with first degree murder. And let's say that one of his appointed attorneys was initially under investigation for an unrelated crime by the same District Attorney prosecuting the defendant. If the District Attorney's office recused itself from investigating or prosecuting the defendant's co-counsel and the state Attorney General's Office took over those duties, is there an actual conflict of interest? According to the recent opinion of the Supreme Court of Louisiana in State v. Carter, 2012 WL 206430 (La. 201), the answer is "no."
In Carter, the facts were as stated above, with Terrance Carter being convicted of first degree murder. After he was convicted, Carter appealed because, inter alia,
one of his two appointed trial attorneys, Daryl Gold, labored under a potential conflict of interest in that counsel himself was facing possible charges in an unrelated criminal offense at the time of defendant's trial— charges that would be prosecuted by the Louisiana Attorney General's Office.
Carter did "not allege any specific actions counsel took or failed to take as a result of the potential conflict of interest; instead, he contend[ed] the risk of a potential conflict was great, such that the trial court inadequately inquired into the conflict and failed to obtain a valid waiver of conflicted counsel...."
In response, the Supreme Court of Louisiana noted that Carter's case was not a typical conflict of interest case but cited Anne Bowen Poulin, Conflicts of Interest in Criminal Cases: Should the Prosecution Have a Duty to Disclose?, 47 Am.Crim. L.Rev. 1135, 1162–77 (2010), for the proposition that
A potential conflict may also arise when counsel himself is under criminal investigation or has been charged with criminal conduct, especially if the suspected or alleged conduct is related to counsel's representation of the defendant or the charges against counsel are being investigated or prosecuted by the same prosecutor who is trying counsel's client.
Of course, as noted, in Carter, Carter's co-counsel was initially being investigated by the same DA's office prosecuting Carter, but that DA's office recused itself from co-counsel's case so that it could be investigated by the state AG's office. According to Carter, this was irrelevant because "the Attorney General oversees the district attorneys, including...the office prosecuting defendant...."
The Supreme Court of Louisiana disagreed, finding that
Although the defendant argues the Attorney General oversees the district attorneys, including...the office prosecuting defendant, any potential conflict of interest remains only that, a potential one, as there was no showing the Attorney General's office had any direct or indirect role in the actual prosecution of defendant on the Red River Parish murder charge. In this case, counsel was under investigation by a different prosecutor and the pending charges against counsel were not related in any way to the murder charge against the defendant or counsel's representation of the defendant; therefore, the risk of a potential conflict of interest was greatly attenuated.
As support for this point, the court again cited Professor Poulin's article, but I'm not sure that the article fully get the court to its conclusion. Here's the key portion of Professor Poulin's article:
By contrast, some circumstances will diminish the risk of conflict. If the investigation of counsel is wholly unrelated to the charges against the defendant, the court is less likely to find a conflict. Similarly, if a different prosecutor's office has jurisdiction over the investigation of counsel, the argument for giving defendant post-conviction relief or for disqualifying counsel is far weaker. For example, in Taylor v. United States, the defendant was prosecuted and convicted in federal court. After his conviction, counsel was indicted on state charges. Given the lack of relationship between the two prosecutors' offices, the defendant was unable to establish the necessary nexus between counsel's own difficulties with the criminal justice system and his representation of the defendant. Consequently, the court held that no conflict of interest interfered with counsel's representation. The appearance of fairness would have been better served had the issue been raised early in the process. If confronted with the issue early in the defendant's case, the court might have been willing to remove counsel, avoiding both the post-conviction challenge and the appearance that counsel may not have been able to provide excellent representation.
It's clear that Carter and his co-counsel were being investigated for 2 completely unrelated crimes, which supports a finding of no actual conflict of interest. But unlike in Taylor, Carter and his co-counsel were not being investigated by two different sovereigns (federal and state). Instead, they were both being investigated by Louisiana state authorities, they were initially being investigated by the same DA's office, and, at the time of trial, co-counsel was being investigated by the office overseeing the office prosecuting Carter. I still probably agree with the Supreme Court of Louisiana that this wasn't enough to create an actual conflict of interest, but I think that it was a closer call than the court's opinion would lead us to believe.