Tuesday, September 16, 2008

A Familiar Face

A defendant who was convicted of a delivery or sale of cocaine was given a suspended sentence and placed on probation. When the defendant was charged with violation of the probation, an attorney was appointed to represent him. The appointed attorney had been the prosecutor in the original case. After admitting the violation (he had been charged with a positive cocaine test and violation of curfew), the defendant appealed and contended that the finding should be vacated due to the conflict of interest.

The North Carolina Court of Appeals rejected the claim:

Defendant offers no evidence of a conflict of interest outside of Moody's status as a prosecutor more than two years prior to her representation of defendant in the instant case. However, assuming arguendo that a conflict of interest did exist, defendant fails to show how counsel's performance at his probation violation hearing was adversely affected.
    The record reflects that the 7 September 2007 hearing was defendant's third probation violation hearing on his fourth violation report. The hearing was originally scheduled for 4 September 2007. Defendant's probation officer testified that a surveillance officer attempted to serve defendant with a violation report, defendant ran from the officer and later failed to be present for a hearing in July. Defendant was arrested and presented before the court for the hearing on 7 September. The probation officer recommended that defendant's probation be revoked. Attorney Moody addressed the court in defendant's defense and argued that there was mis-communication between the probation department and defendant as to a change in defendant's residence, that defendant had attended some classes at the Day Reporting Center but had transportation issues, and that defendant turned himself in to the Ahoskie Police Department. Defendant was then given an opportunity to address the court during which he acknowledged that he suffered from a drug addiction but that he was working.    Defendant maintains that this representation was inadequate, yet offers no evidence of adverse effects based on the performance of his appointed counsel. Accordingly, defendant's assignment of error is overruled.

Clearly, the probation matter was either the same or substantially related to the cocaine charges. If I were the defendant, I would find it difficult to feel fairly treated in a matter where the prosecutor who had obtained my conviction became my champion when charged with the probation violation. (Mike Frisch)


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Would that be Cape Fear, N.C.? Of course there is a conflict of interest and no one should be forced or allowed to be defended by their former prosecutor in the same matter (maybe a closer call in a different one, but still should this just be treated like a simple successive conflict in private practice?); to me, this is clear just for systemic and public perception reasons. It is also a conflict as to the prosecutor's former client, us. I hope the N.C. Supreme Court states that a fair hearing demands more than such an old-Soviet style defense appointment.

In a sense, this is what Cuyler v. Sullivan has wrought. A mechanical review for adverse effect on the rep. But I don't think that analysis should apply just because the defendant might not have objected. I can think of several bad reasons (bad for defendant and bad for us) why they thought they wanted the ultimate insider.

Posted by: Alan Childress | Sep 16, 2008 6:50:47 AM

Mike, the more I think about it, the more I think it is a matter of concurrent conflict of interest, and less about the "substantial relationship" SCOI test (though it being the same or so related, here, makes it worse to me). The prosecutor is in the intolerable position of undoing his handiwork from the prior case or of reaffirming it. A really effective strategy would involve reassessing facts from the initial conviction, or at least to support or tear down what kind of a person he is. The prosecutor really does have a conflict of interest, and one of the ways it may have affected the representation is by leading the lawyer not to explain to the client why using him is a bad idea. I don't put much stock, then, in the lack of objection. It comes across as forcing a person to be represented by conflicted counsel, more like Halloway v Arkansas than like Cuyler. Just for administrative reasons, if not regard for this client, I would hope the next court to declare this impermissible. I also think there is a real SCOI problem toward the public "client."

Posted by: Alan Childress | Sep 16, 2008 11:01:26 AM

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