Premature Claim Of Conflict

The North Dakota Supreme Court affirmed the convictions of a husband and wife for the exploitation of the wife's vulnerable parents. The court rejected a claim of error based the admission of videotaped statements of both parents when they were deemed incompetent to testify at trial. Both defendants had been represented at trial by the same lawyer; the court found no error in the alleged failure of the judge to inquire into conflicts of interest.

The conflict claim was as follows:

Represented by separate counsel on appeal, the Keeners argue they were denied effective assistance of counsel because their trial attorney had a conflict of interest and divided loyalties. Asa Keener claims his attorney could not effectively pursue a viable defense to the conspiracy charges because pursuing that defense would have implicated Laurie Keener, who was also his attorney's client. Asa Keener contends his attorney should have argued he was not guilty of conspiracy because Laurie Keener made the financial arrangements with the Whiskers, Laurie Keener led him to believe her parents promised to reimburse their expenses and had authorized them to receive significant amounts of money for the Whiskers' care, and Laurie Keener duped or mislead him. Laurie Keener also argues she was denied effective assistance of counsel because her attorney had divided loyalties, however, she does not agree that she mislead or duped Asa Keener.

The court concluded that there was an insufficient record to resolve the contention on direct appeal:

We are unable to determine from this record why certain trial strategies were used and whether there was an actual conflict that adversely affected counsel's performance. Furthermore, Laurie Keener fails to even allege how there was an actual conflict that adversely affected counsel's performance as it related to her. We conclude the record is not adequate to determine the Keeners' ineffective assistance of counsel claims. Those claims may be pursued in a post-conviction proceeding.

(Mike Frisch)