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Arizona Supreme Court: Trial Court’s Failure to Protect Defendant’s Right to Conflict-Free Counsel May Be Raised on Direct Appeal 16 Massachusetts Supreme Court: Error to Exclude Expert Testimony on Significance of Tattoo to Support Claim of Self-Defense

The Supreme Court of Arizona affirmed a decision of the Court of Appeals (“COA”) holding that the issue of a trial court’s failure to adequately protect a defendant’s right to conflict-free counsel—as opposed to issues broadly raised as ineffective assistance of counsel—may be raised on direct appeal.

Police recovered over 240 pounds of marijuana from an SUV driven by David Joseph Duffy. In a police interview, his passenger, Dora Matias, told officers that she had picked up the marijuana, expected to be paid for doing so, Duffy was only her driver, and he knew nothing about the marijuana. However, before trial, Matias retracted her confession. Duffy and Matias were both indicted on several drug-related counts.

At Duffy’s arraignment, the prosecutor spoke of his “real concern about one attorney representing both codefendants in a case where there [are] obviously competing defenses.” He further informed the trial court there were possible “competing interests” and “at least a potential for adverse defenses.”

Defense counsel dismissed these concerns in stating there was “no cognizable issue” as to joint representation because the two defendants had “essentially ... a common defense agreement” and both had signed a waiver of potential conflict after being advised of their rights.
The trial court made no further inquiry and did not address the defendants. The judge said “[i]t appears that the defendants have been fully advised with regard to this situation,” and “I will defer to [defense] counsel. I am required [to] do that in any event, but I would, even if not required.”

The jury convicted both defendants on all counts. On appeal, Duffy argued his right to conflict-free counsel was denied. In a split decision, the COA held that the joint representation presented an actual conflict that violated Duffy’s Sixth Amendment right to conflict-free representation, vacated his conviction, and remanded for a new trial. The Arizona Supreme Court granted further review.

The Court, citing State v. Moore, 222 Ariz. 1 (2009), agreed with the COA that “unlike a claim that an attorney was ineffective brought pursuant to Strickland v. Washington, 466 U.S. 668 (1984), there is generally a sufficient record on direct appeal to determine whether a trial court adequately protected a defendant’s Sixth Amendment right to conflict-free counsel.”

Turning then to the merits of Duffy’s claim, the Court observed “[a]mong counsel’s ‘basic duties’ is ‘to avoid conflicts of interest.’” Strickland. While representation of multiple criminal defendants by the same attorney may sometimes be strategically warranted, it may raise conflict risks. Wheat v. United States, 486 U.S. 153 (1988). But these risks, by themselves, cannot sustain a challenge because “multiple representation does not violate the Sixth Amendment unless it gives rise to a conflict of interest.” Cuyler v. Sullivan, 486 U.S. 153 (1988).

Ordinarily, the attorney representing multiple defendants is in the best position to assess whether a risk of conflict exists and that the defendant wishes to proceed regardless. Holloway v. Arkansas, 435 U.S. 475 (1978). A defendant may waive his right to conflict-free representation as long as he “knows what he is doing and his choice is made with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. 269 (1942). Thus, “[a]bsent special circumstances,” trial courts may assume that multiple representation entails no conflict and that the client knowingly accepts such risks. Cuyler.

However, when a prosecutor puts a court on notice of a potential conflict, it triggers the trial court’s duty to make an independent inquiry. Wood v. Georgia, 450 U.S. 261 (1981). And while an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court. Johnson v. Zerbst, 304 U.S. 458 (1938). “This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.” Id. “In those cases where the potential conflict is in fact an actual one, only inquiry will enable the judge to avoid all possibility of reversal by either seeking waiver or replacing a conflicted attorney.” Mickens v. Taylor, 535 U.S. 162 (2002). The best way for the court to determine whether a waiver is knowing and voluntary is to conduct a colloquy with the defendants. State v. Cornell, 179 Ariz. 314 (1994).

In the instant case, the prosecutor alerted the trial court to the possibility of conflict by the attorney representing two defendants with opposing or adverse defenses. The trial court did not conduct a colloquy with the defendants but instead stated its belief that it was required to rely on the statements of defense counsel that no conflict existed and that defendants had waived any potential conflict.

The Arizona Supreme Court rejected the trial court’s determination. The Court concluded that by failing to conduct the requisite inquiry, it failed to uncover how the actual conflict adversely affected Duffy, e.g., counsel was prevented from emphasizing Matias’ involvement in the crime or seeking a plea bargain on behalf of Duffy. Because the trial court conducted no inquiry, the record before the Court was insufficient to conclude Duffy knowingly and intelligently waived his right to conflict-free counsel.

Accordingly, the Court affirmed the decision of the COA. See: State v. Duffy, 486 P.3d 197 (Ariz. 2021). 

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