Thursday, January 11, 2018
The Massachusetts Supreme Judicial Court vacated a new trial order based on an alleged conflict of interest
Following a jury trial in the Superior Court, the defendant, Joseph Cousin (Cousin), was convicted of murder in the second degree. Cousin filed a motion for a new trial, claiming that his trial counsel was ineffective because he was burdened by an actual conflict of interest. A Superior Court judge granted Cousin's motion for a new trial. The Commonwealth appealed, and we allowed its application for direct appellate review. The issue before this court is whether Cousin presented sufficient evidence to establish that his trial counsel was burdened by an actual conflict of interest. Although Cousin has set forth the basis for what may well constitute a potential conflict of interest, we conclude that he failed to meet his burden of demonstrating that his trial counsel was operating under an actual conflict of interest. Therefore, we vacate the allowance of Cousin's motion for a new trial and remand the case to the Superior Court for further proceedings to determine whether there was a potential conflict causing prejudice that would warrant a new trial.
The defendant was convicted at a second trial and asserted a conflict through new counsel
The primary grounds for the alleged actual conflict were the involvement of White and his former law firm in two Federal civil rights lawsuits. Specifically, White and his former law partners defended members of the BPD who were accused of misconduct in the course of other, unrelated criminal investigations.
The judge, who was not the trial judge, held three days of evidentiary hearings before granting Cousin's motion.
The court here
Because Cousin's case and the Drumgold case are unmistakably separate legal actions, involving different BPD officers investigating the killings, and distinguishable claims of police misconduct, a vigorous attack on the police conduct in Cousin's defense would not constitute an attack on all members of BPD's homicide unit. Moreover, Cousin has failed to produce any evidence from the record suggesting that vigorously defending Cousin would be inconsistent with representing Callahan. We are further persuaded that, based on this record, White's representation of Callahan did not create an actual conflict of interest because there is no indication that White acquired confidential information from Callahan that materially limited his representation of Cousin. See Soffen, 377 Mass. at 437-438. See also Mass. R. Prof. C. 1.7.
General economic issues did not create a conflict
In the context of an attorney's economic interest in a representation, we have held that an actual conflict exists "where an attorney has business reasons for preferring a verdict unfavorable to the defendant he or she represents" (citation omitted). Mosher, 455 Mass. at 820. However, an attorney's financial interest in being compensated for providing legal representation, by itself, is generally too attenuated to constitute an actual conflict. We have held that an actual conflict can materialize out of an attorney's financial interest in a representation combined with that attorney's duty of loyalty to another client or a third person. For example, in Hodge, 386 Mass. at 168, trial counsel was burdened by an actual conflict where he was faced with cross-examining a prosecution witness who was, at that time, represented by that attorney's law firm. We held that trial counsel was burdened by an actual conflict caused by his "financial interest in not antagonizing his firm's client by a vigorous cross-examination designed to discredit him, and his duty to consider only [the defendant's] best interest in deciding whether and how to cross-examine" the firm's client. Id. The actual conflict in Hodge did not depend exclusively on trial counsel's financial interest in the representation, but the significant risk that his loyalty would be inherently divided in cross-examining his firm's client. See id.
Cousin has failed to adduce any facts to support his claim that White had an actual conflict because the city paid him to represent Callahan and the detective in the Drumgold case.
We vacate the judge's decision granting Cousin's motion for a new trial and remand the case to the Superior Court for further evidentiary hearings on whether Cousin was prejudiced by potential conflicts of interest.