Case o' The Week: Ninth, Conflicted - Walter-Eze and "Actual" Conflicts of Interest

Actual conflict = actual presumed prejudice?

Actually, not this time.  

United States v. Sylvia Ogbenyeanu Walter-Eze, 2017 WL 3648511 (9th Cir. Aug. 25, 2017), decision available here.

Players: Decision by visiting D NY DJ Amon, joined by CJ Thomas. Concurrence (only in judgement) by Judge Nguyen.

Facts: Walter-Eze was charged with health care fraud. Id. at *2. Court-appointed counsel received three trial continuances. Id.

  Two weeks before trial, retained counsel appeared. Id. The district court allowed the substitution after receiving commitments to proceed on an agreed-upon trial date. Id. Nonetheless, on the first day of trial, counsel filed an emergency motion to continue, explaining they were not prepared. Id. at *3.

   The court agreed to continue if counsel agreed to pay witness and jury fees. Id. Defense counsel worried that this might get reported to the California State Bar, so agreed to proceed to trial. Id.

   On appeal, Walter-Eze chronicled defense counsel’s failure to review government exhibits, failure to prepare jury instructions, complete a PowerPoint presentation in time for closing, failure to secure attendance of defense witnesses, or give the government a timely list of witnesses or experts. Id. at *10.

  Walter-Eze was convicted and sentenced to ninety-seven months. Id.

Issue(s): “Walter-Eze raises challenges to her conviction . . . [on the ground that] a conflict of interest created by the district court when it conditioned an adjournment on counsel’s paying jury costs and witness fees violated her Sixth Amendment right to counsel.” Id. at *2.

Held: “[F]or the purposes of Sullivan’s presumption of prejudice, we hold that under the circumstances present here, both the threat of fees and the threat of potential sanctions created a conflict of interest that adversely affected counsel’s performance.” Id. at *6.

  “In this case, the conflict was concretely manifest in real time, as Darden was called upon to choose between being fined and potentially facing a bar investigation or going to trial even though he and his co-counsel repeatedly indicated on the record that they were unprepared. For this reason, the government is wrong to assert that Darden was faced with only a ‘possible’ conflict. In fact, the existence and impact of the conflict could not have been clearer.” Id. at *7.

  “[U]nder the facts of this case, Walter-Eze must show that she was prejudiced by this actual conflict, and because she is unable to do so, we do not disturb the verdict.” Id. at *8.

Of Note: In the 1980 Sullivan decision, the Supreme Court presumed prejudice when defense counsel had an actual conflict – thereby avoiding the prejudice requirements of “normal” Strickland challenges. The real issue in Walter-Eze is whether the Ninth will presume prejudice after it finds an “actual conflict” on these particular facts.

  In an important (albeit confusing) holding, DJ Amon relies on the 2002 Mickens Supreme Court decision and concludes that – despite a clear finding of an “actual conflict” – prejudice will not be presumed in this case. Id. at *5.

  Judge Nguyen doesn’t understand this analysis: in her concurrence, she questions how the majority finds an actual conflict that does not trigger the presumption of prejudice. Id. at *18.

  Practically speaking, the Walter-Eze decision may effectively limit “presumed prejudice” to cases where defense counsel represents multiple clients in the same case. However, as Judge Nguyen complains, this outcome is a fact-entangled “rule” that seems ripe for further exploration.

How to Use: Whatever its shortcomings, Walter-Eze is an exhaustive discussion of conflicts. Id. at *5 -*7. Conflicts are a fuzzy field – at a minimum, the opinion is a helpful compilation of authority.

                                        

For Further Reading: Can you avoid a Ninth Circuit decision, just because mandate has been stayed? No – and neither can judges. As the Ninth just concluded, “Notwithstanding this high threshold, petitioners have demonstrated that the judges within the District of Arizona who found that Sanchez-Gomez was not binding on them committed clear error.” See Ord. here. 

  A remarkable win in the righteous shackling saga – congrats to D. Az. AFPD Dan Kaplan.

Image of “Conflict of Interest” from http://freedomradio91.com/wp-content/uploads/2016/05/Article-Conflict-of-Interest.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website available here.

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Case o' The Week: Right to Fire Sparks Ninth's Ire - Brown and the Sixth Amendment Right to Counsel

 Brown, with no Green, results in a colorful decision.

United States v. Brown, 2015 WL 2215899(9th Cir. May 13, 2015), decision available here.

Players: Decision by Judge Berzon, joined by Judges Reinhardt and Gould. Big win for D. Nev. AFPD Jason Carr.  

Facts: Brown was charged with a number of child-porn-related offenses. Id. at *1. Weeks before trial, retained counsel filed a motion to withdraw from the case and substitute a public defender. Id. 

  After a hearing, the Honorable District Judge Robert Clive Jones denied the motion, explaining to Brown “he would not receive nearly as good a defense were the court to appoint a public defender.” Id. at *4. 

  Trial was continued, Brown was convicted, and he was sentenced to 180 months.

Issue(s): Were there sufficient reasons to deny Brown’s right to discharge his retained counsel and be appointed CJA counsel?

Held: “We now reiterate Rivera–Corona’s intertwined rules: (1) A defendant enjoys a right to discharge his retained counsel for any reason ‘unless a contrary result is compelled by ‘purposes inherent in the fair, efficient and orderly administration of justice,’ Rivera–Corona, 618 F.3d at 979 (quoting United States v. Ensign, 491 F.3d 1109, 1115 (9th Cir.2007)), and (2) if the court allows a defendant to discharge his retained counsel, and the defendant is financially qualified, the court must appoint new counsel for him under the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A. Because no sufficient reason justified the district court’s denial of Richard Carl Brown's right to discharge his retained lawyer or its refusal to appoint counsel, we vacate Brown's convictions and remand for a new trial.” Id. at *1.

Of Note: In what has quickly became the most e-mailed footnote in history, Judge Berzon valiantly defends the Defenders: “[W]e completely disagree with the district court's assessment of federal public defenders, who, in our experience, typically provide the highest quality representation . . . . Nor are we alone in that opinion: A survey of 457 federal district and appellate judges, published as part of an article co-authored by Judge Posner of the Seventh Circuit, rated advocacy by public defenders in federal court significantly higher than that provided by privately retained attorneys . . . and even prosecutors.” Richard A. Posner & Albert H. Yoon, What Judges Think of the Quality of Legal Representation, 63 Stan. L.Rev. 317, 322, 327 (2011).”

How to Use: Footnote 5 has received the (well-deserved) attention, but the entire opinion is a welcome and important decision on indigent defense. Judge Berzon carefully discusses the Ninth’s key Rivera-Corona holding, and works through the ramifications when retained counsel is fired and Mr. Green is no longer in the case. See id. at *6 & n.3 (discussing CJA appointment of previously retained counsel).  

  Brown a worthy read for both retained counsel (who occasionally must part ways with their clients), and for CJA counsel (who may inherit that client). The key principle in this specific scenario is that in this context, “the extent-of-conflict review is inappropriate.” Id. at *5. Put differently, clients have the right to fire their retained counsel, “for any reason or [for] no reason.” Id. at *5. (NB: that’s a constitutional right, to boot. Id. at *5) This is a very different rule than the conflict analysis for appointed counsel. 

   Brown is a thorough and well-written decision that gives clear guidance to both retained and CJA counsel in these unfortunate appointment scenarios.

                                               

For Further Reading: Ninth Circuit Judge Stephen Reinhardt (on the panel) and Nevada's District Judge Jones have crossed paths before. The jurists have exchanged candid views regarding their respective decisions in Nevada’s ballot option. See article here.  

  This Townley v. Miller election litigation is an interesting backdrop to this Brown case (particularly Judge Reinhardt’s concurrence to the September 5, 2012 order). See order here. 

Image of “Mr. Green” from http://tapestry-assets.s3.amazonaws.com/scbs/7/d/0/7d0a03f6f6c5336e65dbbbb503f3db16 Imageof the Honorable Judge Stephen Reinhardt and the Honorable District Judge Robert Jones from http://abovethelaw.com/2012/09/benchslap-of-the-day-the-district-court-strikes-back/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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