Thursday, December 17, 2009

One Plus Two Equals No Relief

The New York Court of Appeals affirmed a conviction in the face of charges of conflicts of interest by one of two counsel in a criminal case. The court refers to counsel as "attorney number one" and "attorney number two." Mr. One was on the case from the start. Mr. Two joined the defense at trial. A wife of a key state witness accused Mr. Two  of suborning perjury and bribery prior to the testimony of the witness. The matter was brought to the court's attention by the prosecutor.

The trial court allowed Mr. Two to stay in the case. Mr. One cross-examined the witness. Mr. Two handled the direct of the defendant. The defendant was convicted on weapons charges, acquitted of kidnapping and got a hung jury on attempted murder charges, which were later dismissed.

The court here concluded that the resolution of a conflict of interest is a mixed question of law and fact. The defendant was "fully informed of the potential conflict." There was record support for the trial court's conclusion "that defendant failed to establish that the conflict operated on the defense."

There is a dissent:

Where a defendant claims that his lawyer was conflicted, but the record contains no evidence of a conflict, that evidence must be supplied in a post-trial motion. But here, the record shows both the conflict and an error by the trial court in dealing with it, as the majority essentially concedes ( address the issue on the record "surely would have been the better practice"). For me, the only difficult issue is what remedy for this error defendant is entitled to. I am prepared to hold that he is not entitled to a new trial, but only to a hearing on the issue of how, if at all, the apparent conflict affected his representation. But I find the majority's holding that he is entitled to no remedy indefensible. (citations omitted).

(Mike Frisch)

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