Friday, October 12, 2007

A Waivable Conflict?

A husband and wife are "accused of brutally murdering their roommate, stuffing her body in the trunk of their Jaguar, and setting the car on fire to cover up the alleged crimes." The wife dismissed her attorney and sought representation from the law partner of her husband's attorney. The prosecution objected on the basis that the defendants "may have implicated themselves and each other in the murder." When the district court refused to permit the substitution, the wife filed a writ of mandamus with the Nevada Supreme Court.

The court held that the district court abused its discretion. Both defendants must be "canvass[ed]... to determine whether they knowingly, intelligently and voluntarily waive their right to conflict-free representation so long as the conflicted representation will not interfere with the administration of justice." Both must also specifically waive the opportunity to seek a mistrial as a result of an actual or potential conflict. "[T]here is a strong presumption in favor of a non-indigent criminal defendant's right to choose counsel... the defendant may waive the right to conflict-free counsel."(Mike Frisch)

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