Monday, February 16, 2009

Choice Of Counsel

The Oklahoma Court of Criminal Appeals affirmed the first degree murder conviction of a mother for the death of her six-year old child. The trial court had disqualified retained counsel based on a claimed conflict of interest based on his relationship with the client:

The record reflects that on May 11, 2006, the State moved to disqualify David Christian from representing Appellant on the basis of an inappropriate physical relationship between Mr. Christian and Appellant; the existence of a conflict of interest between Mr. Christian and Appellant resulting from the physical relationship as well as statements made by Appellant to an undercover officer; an improper fee arrangement and improper financial payment; possession of relevant evidence in the form of a book bag belonging to Logan Tucker; and the appearance of impropriety. These reasons were set forth in detail in the State’s Memorandum of Law (O.R. 147-154). 

Mr. Christian filed an objection and attached two sworn affidavits, one from him and one from Appellant. In her affidavit, Appellant listed the statements attributed to her by the State and said that “none of the statements were true.” She further stated, “[a]t the time the statements were made, I was not aware that the person asking me questions was a law enforcement agent. At no time did he ever identify himself as a law enforcement agent.” (Defendant’s Exhibit A).  Appellant also stated that Mr. Christian had fully explained to her that if she felt any of the things said in the State’s recording were true, that she could file a report against him with the Oklahoma Bar Association, and she could have another attorney represent her in the case. In his affidavit, Mr. Christian also refuted and denied the State’s allegations of any conflict or impropriety.   

At the hearing, the parties stipulated that Mr. Christian paid the rent for Appellant’s motel from July 9 -15, 2002 (State’s Exhibit 1), and that he paid for and was listed as a co-applicant with Appellant for an apartment (State’s Exhibit 2). State’s Exhibit 2 also contained a lease agreement for Apartment No. 52, dated July 15, 2002, listing Mr. Christian and Appellant as co-tenants.  Mr. Christian also stipulated that if called to testify, Jamie Hensal would testify that in the summer of 2004 she found a backpack in Mr. Christian’s garage and was told by Mr. Christian that he knew it was there, and she should put it somewhere so he could find it later if needed.  The State alleged the backpack belonged to Logan Tucker [the victim] and that his name was written on it.  Mr. Christian would not stipulate to having any knowledge the backpack belonged to Logan.   

The State then called Investigator Rick Stephens to the stand. Stephens testified that in his capacity as an undercover officer, he moved into an apartment on July 20, 2002, directly across from Appellant’s apartment in the Briarwood Complex in Woodward.  Stephens met Appellant the next weekend and over the next six weeks, the two had numerous conversations. Stephens tape-recorded these conversations.  During these tape recorded conversations, Appellant told Stephens that a movie was going to be made on Logan’s story and that Mr. Christian would be paid from the proceeds of the movie. Appellant also told Stephens that prior to the time they met, she had “made out” with Christian in a motel room. She said Christian told her he “wanted to have sex with her but he wouldn’t because of her status.” She said that at the time the police were executing a search warrant on her home, she and Christian were drinking at the City Limits bar.  Appellant told Stephens she felt that Mr. Christian did not trust her and that he was tape recording her statements. She explained that she didn’t know who to trust, that she couldn’t even trust her attorney. Stephens testified that he turned the tape recordings over to the District Attorney.  Stephens also testified that Appellant did not know he was with law enforcement and he never took her drinking or gave her alcohol. The tape recordings were admitted as State’s Exhibits 4 and 5.

The court found that the trial judge had properly ordered disqualification based on the above evidence. (Mike Frisch)

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