Justia Legal Ethics Opinion Summaries

Defendant was charged with lewd and lascivious conduct with a child after his girlfriend’s daughter reported molestation. The prosecutor told the defender (Hinman) that the People would accept a settlement offer for a prison term of eight years. Defendant was unwilling to settle, but Hinman continued to attempt to persuade defendant. The prosecutor stated that he was considering refiling the charges to allege penetrative acts, which carried a possible life sentence and provided Hinman with a translation of defendant’s police interrogation, which had been conducted in Spanish. The translation contained additional lines, fabricated by the prosecution: “[DEFENDANT]: I know. I’m just glad she’s not pregnant like her mother.” Hinman informed defendant it included an admission of penetration. Defendant denied making the incriminating statements. Hinman sought to uncover why the incriminating lines were not present in the translation prepared by his office. Days later, Hinman requested “the exact CD reviewed by [the People’s] transcriber/interpreter,” but got no response. Later that day, the proscutor admitted to falsifying the transcript. The trial court dismissed, finding the conduct “egregious, outrageous, and … shocked the conscience.” The court of appeal affirmed, finding that defendant’s constitutional right to counsel was prejudiced by the prosecutor’s misconduct. View "People v. Velasco-Palacios" on Justia Law

Defendant was charged with first-degree murder. The district court appointed two attorneys from the Des Moines adult public defender’s office to represent Defendant. When the two attorneys discovered that other attorneys in their office had previously represented three of the State’s witnesses on unrelated matters, the attorneys requested a determination whether a conflict of interest existed requiring their disqualification. After a hearing, the district court concluded that a conflict of interest disqualified all attorneys employed at the public defender’s office from serving as Defendant’s counsel in this case. The Supreme Court reversed, holding that the prior representations of the witnesses in unrelated matters by other members of the public defender’s office did not represent an actual conflict or a serious potential conflict that justified disqualification of the attorneys. View "State v. McKinley" on Justia Law

After a jury trial, Defendant was found guilty of one count of first-degree statutory sodomy. Defendant appealed, arguing that the trial court erred by (1) denying his motion to disqualify the entire Newton County Prosecuting Attorney’s Office (NCPAO) due to a conflict of interest, and (2) entering a written judgment reflecting convictions of two counts of first-degree statutory sodomy when, in fact, Defendant was convicted of only one count of that offense. The Supreme Court affirmed the judgment as to one count of first-degree statutory sodomy and vacated the judgment as to the second count of first-degree statutory sodomy, holding (1) the trial court did not abuse its discretion in overruling Defendant’s motion to disqualify the entire NCPAO; and (2) because the written judgment erroneously stated that Defendant was found guilty on two counts of first-degree statutory sodomy, the written judgment must be corrected to reflect what actually occurred. View "State v. Lemasters" on Justia Law

Defendant and others were charged with conspiring to distribute and conspiring to possess with intent to distribute cocaine, 21 U.S.C. 846, 841(a). He originally was appointed counsel, but later retained new counsel. Unsatisfied, defendant retained a third attorney, Rozan. Represented by Rozan, defendant pleaded guilty. He was sentenced to 151 months’ imprisonment. The Eighth Circuit upheld the conviction and sentence. The Supreme Court denied certiorari. Defendant then filed a pro se motion to vacate his conviction under 28 U.S.C. 2255, claiming ineffective assistance of counsel at the trial and appellate levels. Defendant argued that Rozan did not disclose that in 2004 and 2005, Rozan was privately reprimanded by the State Bar of Texas; in 2007, he was publicly reprimanded; and in 2009, while representing defendant on appeal, he was suspended from practice in Texas for five years, effective January 1, 2010. The Texas Supreme Court ordered Rozan to provide written notice of his suspension to every client and to every court officer in every court in which Rozan practiced. The Eighth Circuit affirmed denial of relief. It was defendant’s responsibility to investigate the disciplinary past of his attorney; the required notification occurred after defendant’s sentencing, and defendant did not show how he was prejudiced by Rozan’s silence. View "Ghost Bear v. United States" on Justia Law

Almanza was charged with nonforcible lewd or lascivious act on a child under age 14 (Pen. Code, 288(a)), forcible sodomy (286(c)(2)), and forcible lewd or lascivious act on a child under age 14 (288(b)(1)) with respect to his girlfriend’s daughter. At one point the victim stated that she had lied about the molestations because she was angry about having been disciplined. The court was aware, before trial, that the prosecutor threatened to prosecute the defense investigator and insinuated that defense counsel could also be prosecuted, for hiring and revealing the victim’s name to an investigator who was not licensed. After a bench trial, Almanza was found guilty of the lewd-act counts but not guilty of the sodomy counts and was sentenced to 16 years in prison. The court of appeal affirmed, despite finding that the prosecutor precipitated a serious conflict of interest between defendant and defense counsel, that “the trial court did little to try to remedy and that defense counsel could have done more to address.” The court noted the evidence of guilt and cited the California Supreme Court’s statement that prejudice will be presumed only when counsel is representing multiple defendants concurrently and a conflict of interest arises from that circumstance. View "People v. Almanza" on Justia Law

During 2002 and 2003, a Colorado state public defender with the Mesa County Regional Office represented defendant Thomas West after the victim's mother, D.S., informed police that she discovered West lying in bed next to her six-year-old daughter with his genitals exposed. D.S. and her ex-husband, D.E.S., both testified at trial for the prosecution. Colorado public defenders had represented D.S. approximately 23 times over the eight years preceding West's case. Although West's trial counsel had never himself represented D.S., the Mesa County Office represented her seven times between 1998 and 2001. D.S. was also a client of the El Paso County Regional Office, where she had an open case during West's trial at issue here. In addition, the Mesa County Office represented D.S.'s ex-husband, D.E.S., five times between 1999 and 2002. West's trial counsel had filed an entry of appearance in one of these cases, although the prosecution dismissed that case four days after that entry of appearance. West's trial counsel did not inform West or the trial court about these possible conflicts of interest. There was no record regarding the conflict at trial. The jury convicted West of sexual assault on a child. Following his trial, West filed a Crim. P. 35(c) motion, alleging that his trial counsel labored under a conflict of interest. The trial court found no conflict and denied the motion. The court of appeals reversed, holding that an actual conflict of interest arose from the public defender's dual role as prior and current counsel for D.S. and as prior counsel for D.E.S. The issue this case presented for the Colorado Supreme Court's review centered on the analytical framework a trial court should use to resolve a criminal defendant's post-conviction claim of ineffective assistance of counsel based on alleged conflicts of interest arising from concurrent or successive representation of witnesses against the defendant. The Court shared petitioners' contention that, under "Colorado v. Castro," (657 P.2d 932 (Colo. 1983)), they should not be required to demonstrate a separate "adverse effect" in addition to a conflict of interest in order to receive new trials. In order to prevail on an ineffective assistance of counsel claim predicated on trial counsel's alleged conflict of interest arising from concurrent or successive representation of trial witnesses against a defendant, the Court held that a defendant must show by a preponderance of the evidence both a conflict of interest and an adverse effect resulting from that conflict. View "West v. People" on Justia Law

In 1999, Christeson was convicted of three counts of capital murder and sentenced to death. The Missouri Supreme Court affirmed Christeson’s conviction and sentence and denial of his post-conviction motion for relief. Under the one-year limitations period imposed by the Antiterrorism and Effective Death Penalty Act, 28 U. S. C. 244(d)(1), Christeson’s federal habeas petition was due on April 10, 2005. Nine months before that deadline, the court appointed attorneys Horwitz and Butts to represent Christeson, 18 U. S. C. 599(a)(2). The attorneys subsequently acknowledged that they failed to meet with Christeson until six weeks after his petition was due. There is no evidence that they communicated with him at all. They finally filed the petition 117 days late. The district court dismissed; the Eighth Circuit denied a certificate of appealability. Christeson, who has severe cognitive disabilities, relied entirely on his attorneys, and may not have known of the dismissal. About seven years later, the attorneys contacted attorneys Merrigan and Perkovich to discuss Christeson’s case. Christeson’s only hope for merits review was to move under FRCP60(b) to reopen final judgment on the ground that AEDPA’s statute of limitations should have been equitably tolled. Horwitz and Butts would not file that motion, premised on their own malfeasance. In 2014, Merrigan and Perkovich unsuccessfully moved to substitute counsel. The Eighth Circuit dismissed, reasoning that they were not authorized to file on Christeson’s behalf. The Missouri Supreme Court set an October 29, 2014 execution date. The district court denied a second motion as untimely, stating that Horwitz and Butts had not “abandoned” Christeson, and reasoning that allowing the motion would permit “‘abusive’” delays in capital cases. The Eighth Circuit affirmed. The Supreme Court stayed execution and reversed, stating that the denials contravened its 2012 decision, Martel v. Clair, concerning the “interests of justice” standard, and noting the obvious conflict of interest with respect to the original attorneys. View "Christeson v. Roper" on Justia Law

In 2009 defendant was sentenced to 24 months in prison, with 3 years of supervised release, as a felon in possession of a gun. After his 2011 release, he violated probation and was sentenced to five months in prison plus 30 months more of supervised release. After subsequent violations, the judge ordered 45 days of home confinement with electronic monitoring and enrollment in a mental health treatment program. In 2013, the probation officer advised the judge that defendant had committed five traffic offenses in one day. The judge revoked supervised release, imposing a five-month sentence of imprisonment with two more years of supervised release. He was released; his probation officer advised the court that defendant had again violated. Although the recommended range was 5 to 11 months, the government asked for 15 months. Counsel noted that defendant had young children and that prior employers would rehire him. The judge sentenced him to 15 months with no more supervised release. After supplemental briefing, the Seventh Circuit vacated, after learning that the prosecutor in an earlier matter involving the defendant became the judge who sentenced him. The possibility that a conscious or unconscious recollection influenced the sentence cannot be excluded. View "United States v. Smith" on Justia Law

In 2006 Bey was convicted for making false statements in a bankruptcy proceeding and received a below-guidelines sentence of three months. The Seventh Circuit affirmed her conviction found that the sentence was too low and remanded for resentencing. After remand by the Supreme Court, the district court resentenced Bey to 24 months in prison and ordered her to self-surrender. After the second extension, Bey’s lawyer, Anderson, mailed her a letter enclosing the court’s order resetting her surrender date to December 2008. When Bey did not surrender, an arrest warrant was issued. After a year, she was arrested and charged with knowingly failing to surrender to serve her sentence, 18 U.S.C. 3146(a)(2). Bey moved to dismiss her indictment and to suppress evidence that attorney Anderson notified her of the self-surrender date because, she asserted, it was a privileged communication. The district court denied the motion. At trial Bey objected to testimony from Anderson about any conversations they had and to the admission of his letter to Bey. The judged redacted part of the letter, admitting three sentences from it. The Seventh Circuit affirmed. A lawyer’s communication of the defendant’s surrender date is not a privileged communication. View "United States v. Bey" on Justia Law

Holt threw eggs on the Katheiser driveway to frighten Kartheiser and his 6 year old daughter. Represented by counsel, she entered a negotiated guilty plea to resisting a peace officer. The other charge was nol-prossed. She was sentenced to 12 months of probation and was ordered to provide documentation of treatment. The court admonished Holt that the agreement involved a “conviction.” Days later, she filed a pro se motion to vacate, stating that she “was told there would be no conviction” and “never had the chance to testify.” Her counsel was allowed to withdraw. The circuit court granted the motion to withdraw the plea and appointed the public defender. The next day, Holt filed a pro se “Petition to Quash … the police report,” claiming tampering with the record, police brutality, and that her children were missing. After several more incidents, Holt was placed in a mental health center. She filed notice of appeal and a “Demand Letter for Formal Correction,” seeking to “hold Tim Brown accountable for ‘Bearing FALSE Witness’ the 8th Great Commandment and for Defamation.” The appellate court affirmed, reasoning that Holt had been found fit to stand trial during the pendency of the appeal so that whether she received effective assistance of counsel during proceedings below was moot. The Illinois Supreme Court affirmed, stating that public interest exception applies to warrant review. Where the evidence clearly indicates that defendant is unfit to stand trial, but a defendant contends that he is fit, counsel is not obligated to argue for a finding of fitness. In doing so, counsel would be violating his duty to the client and suborning a violation of due process. View "People v. Holt" on Justia Law