Potential Conflicts and Trial Court’s Discretion to Disqualify Defense Counsel
PEOPLE V. CARNCROSS : New York Court of Appeals decided March 25, 2010
2010 NY Slip Op 02435, 2010 WL 1063952
Issue : Whether a trial court can disqualify defense counsel over the defendant’s objection when there is a potential for conflict in that defense counsel had represented witnesses before the grand jury that were also potential witnesses at trial which defense counsel would have to cross-examine and the defendant has been made aware of the conflict and waives the conflict.
Held : Yes, the trial court can disqualify defense counsel where there is a potential for conflict as the trial court has especially broad discretion in balancing the defendant’s rights to his counsel of choice and his right to effective assistance of counsel free of conflicts.
While on a felony probation the defendant did not have permission from his probation officer to own or operate a motor vehicle. Defendant was spotted by a New York state trooper speeding on his motorcycle. The trooper activated his emergency lights and the defendant, rather than pulling over, took off. A chase ensued at a high rate of speed. The trooper, at one point, was on able to negotiate a turn in the road, lost control of his vehicle, collided head-on into a tree and was killed immediately. The defendant told both his father and girlfriend about the high speed chase with a police officer.
Three days after this incident and after consulting with his attorney, the defendant turned himself in at a New York state police barracks and gave an inculpatory statement.
The defendant was indicted on one count of reckless driving, one count of aggravated manslaughter in the second degree, and aggravated criminally negligent homicide. He was convicted of reckless driving and aggravated criminally negligent homicide.
When the case was presented to the grand jury the prosecutor called defendant’s father and girlfriend as witnesses. One of the defendant’s attorneys at trial represented these witnesses before the grand jury while they gave their testimony and was present with them in the grand jury room.
At trial the prosecution moved to disqualify the defendant’s attorney due to a conflict of interest because defendant’s trial counsel had represented witnesses in the grand jury. The argument was that trial counsel had a conflict of interest because they represented witnesses before the grand jury that they potentially would have to cross examine at trial.
The court-appointed independent counsel to advise defendant with respect to the conflict of interest and the independent counsel informed the court that the defendant understood the conflict and was willing to waive it. However, the trial court granted the People’s motion, holding that the defense counsel must be disqualified in order to protect the defendant’s right to effective assistance of trial counsel and a fair trial free of any conflict of interest.
The witnesses before the grand jury, which were represented by trial counsel never actually testified at the trial.
The New York Court of Appeals noted that when examining a defense counsel’s possible conflict of interest, a court must balance the defendant’s constitutional right to the effective assistance of counsel against the defendant’s right to be defended by counsel of his own choosing. A lawyer simultaneously representing two clients whose interests actually conflict cannot give either client undivided loyalty. Although the Court should not arbitrarily interfere with the attorney-client relationship, the Court has a duty to protect the rights of the accused to effective assistance of counsel. When the court is informed of the potential conflict it must ascertain, on the record, whether the defendant was aware of the potential risks for conflict.
The court of appeals relied heavily on two cases: People v. Gomberg , 38 N.Y.2d 307 (1975) and People v. Ortiz , 76 N.Y.2d 652 (1990).
In Gomberg the court of appeals noted that it is difficult to assess comflicts before the court is fully aware of the evidence and trial strategy. Therefore, a defendant’s willingness to waive the conflict at an early stage of the trial does not end the trial court’s inquiry. The presumption in favor of the defendant’s counsel of choice is not an absolute right and the court may decline to honor the defendant’s waiver of a conflict.
In this case the defense had indicated that it was possible they would proceed with the theory that defendant was not the person who had been driving the motorcycle. It was highly likely that the prosecution would call the defendant’s father and his girlfriend to testify that defendant had admitted to driving a motorcycle. If that were the case defense counsel would have been required to cross-examine them while at the same time being obligated to maintain the confidence of the father and girlfriend as defense counsel had represented them before the grand jury.
The Court of Appeals noted that this created a conflict because defense counsel might choose a trial strategy least likely to cause the prosecution to call them as witnesses and thereby avoid the need to cross examine them.
The Court of Appeals held that the trial court acted within the bounds of its discretion when it decided that allowing counsel to continue as defendants trial counsel would severely undermine the defendants ability to present a cogent defense. The trial court was under no obligation to wait until trial to see if the father and girlfriend would testify.
The Court of Appeals found that at times circumstances are such that the attorney for defendant chooses is also conflicted, in which case the right to effective assistance of counsel in the right of a criminal defendant to choose his own attorney are rights which may not be enforced in perfect harmony. Thus the trial court’s discretion is especially broad when the defendant’s actions with respect to counsel placed the court in a dilemma of having to choose between undesirable alternatives, either one of which would theoretically provide the defendant with a basis for appellate review.