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Massachusetts Supreme Court: Defense Counsel’s Overt Bias Against Own Client Constitutes Actual Conflict of Interest Requiring New Trial Without Need to Prove Prejudice

by Anthony W. Accurso

The Supreme Judicial Court of Massachusetts ruled defendant’s (a Black man of the Muslim faith) showing that trial counsel harbored bigoted views towards Blacks and Muslims constituted an actual conflict of interest that entitled him to a new trial without the need for a further showing of how the conflict resulted in actual prejudice or affected counsel’s performance.

Anthony J. Dew was indicted for 19 charges in March 2015, including trafficking of a person and rape. The trial court appointed Richard Doyle to represent Dew in February 2016.

During that representation, Doyle repeatedly told Dew not to wear his Muslim kufi prayer cap, saying “don’t come in this room like that ever” and don’t wear “that shit.” At one scheduled meeting, “Doyle left without speaking with the defendant upon seeing that the defendant again was wearing a kufi.”

Doyle arranged a plea deal in which Dew would plead guilty to all the charges except the rape charge. He advised Dew “to accept a plea offer and informed him that any attempt to seek new appointed counsel would likely be futile on the eve of trial.”

During the plea hearing, Dew “stated that he was satisfied with counsel’s representation and that no one had pressured him into pleading guilty.” He was sentenced to 8 to 10 years in prison on most counts to run concurrently and, on the remaining counts, “to seven years of probation from and after his incarceration.”

In 2017, the Committee for Public Counsel Services (“CPCS”) investigated a complaint against Doyle. It established he had made “numerous racist and bigoted postings on his social media account, reflecting prejudice against Black persons and persons of the Muslim faith.” Some postings appeared to have occurred while Doyle was at the courthouse, “referring to Doyle’s clients as ‘thugs’ and suggesting that Doyle’s nonwhite clients were criminals.” CPCS suspended Doyle for a year from criminal case assignments and required him to take ethics and cultural competency courses.

Dew learned of Doyle’s postings sometime in 2021, and he filed a motion for a new trial and leave to withdraw his guilty pleas on the ground that Doyle’s conflict of interest denied him constitutionally adequate counsel.

The judge wrote that “defendant himself did not draw a connection between Doyle’s express distaste for his wearing a kufi and any advice that Doyle gave him in accepting a plea” and ruled that “no matter how disturbing Doyle’s personal views were, there [was] no indication in the factual record … that they influenced Doyle’s representation of the defendant.” The judge denied his motion, and Dew timely appealed, arguing that he didn’t need to demonstrate prejudice for structural errors such as an actual conflict of interest.

The Supreme Judicial Court began by declaring that it “is difficult to overstate the essential importance of the right to counsel in our adversary system of justice.” It quoted the seminal U.S. Supreme Court case United States v. Cronic, 466 U.S. 648 (1984) (accused person’s right to counsel “is a fundamental component of our criminal justice system”): “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have;” counsel’s assistance is “the means through which the other rights of the person on trial are secured.” Lawyers are “necessities, not luxuries.” Gideon v. Wainwright,372 U.S. 335 (1963). In fact, the right to a trial itself “would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” Powell v. Alabama, 287 U.S. 45 (1932).

The primacy of fair proceedings and a fair trial undergirds the Sixth Amendment’s guarantee “to the untrammeled and unimpaired assistance of counsel free of any conflict of interest and unrestrained by commitments to others” and other causes. Commonwealth v. Hodge, 434 N.E.2d 1246 (Mass. 1982); Strickland v. Washington, 466 U.S. 668 (1984).

The Court instructed that “under art. 12 [of the state Constitution], if a defendant establishes an actual conflict of interest, he is entitled to a new trial without a further showing; he need not demonstrate that the conflict adversely affected his lawyer’s performance or resulted in actual prejudice.” Commonwealth v. Mosher, 920 N.E.2d 285 (Mass. 2010). “In conflict of interest cases,” the Court wrote, “the standard from Commonwealth v. Saferian, 315 N.E.2d 878 (Mass. 1974), which generally governs ineffective assistance of counsel claims, is inapt because, where counsel has an actual conflict of interest, the criminal trial process ‘loses its character as a confrontation between adversaries.’” Quoting Cronic.

An ineffective assistance of counsel claim is subject to a two-pronged test: deficient performance and prejudice. Strickland. However, the Court stated that the showing for conflict of interest does not require the defendant to establish prejudice because “the effect of the conflict on the attorney’s representation of the defendant is likely to be pervasive and unpredictable, while the difficulty of proving it may be substantial, particularly as to the things that may have been left not said or not done by counsel.” Mosher. That is, it is impossible to know what different decisions a nonconflicted counsel would have made, and it is similarly impossible to quantify the effect of those different decisions on the outcome of the proceedings, the Court explained. United States v. Gonzalez-Lopez, 548 U.S. 140 (2006); see also Holloway v. Arkansas, 435 U.S. 475 (1978).

Turning to the present case, the Court determined that Doyle’s animus towards Muslims and Blacks was established by his social media posts and treatment of Dew constituted an actual conflict of interest. It noted that “Doyle’s social media postings ‘exhibited an intensity of bias that cannot be squared with neutral decision making.’” Quoting Ellis v. Harrison, 947 F.3d 555 (9th Cir. 2020) (Nguyen, J., concurring).

“The record developed by the defendant,” wrote the Court, “shows more than a few stray social media postings, or comments made in the wake of highly charged emotional or shocking events, untethered to Doyle’s conduct during the defendant’s representation.”

The Court stated: “Where, as the record shows was the case here, council harbors a deep-seated animus for persons of the defendant’s race or religion, we cannot presume zealous advocacy; nor can we ask the defendant to prove how his counsel’s bigotry might have affected the plea deal or otherwise impaired the representation, especially in view of the record that Doyle’s bias reared its head in connection with his treatment of defendant.” It explained that there are “many invisible ways in which counsel’s bias could have affected” the proceeding, see Ellis, and a defendant is not required to engage in “a speculative inquiry into what might have occurred in an alternate universe” had nonconflicted counsel been appointed. Gonzalez-Lopez. Thus, the Court concluded that Dew established that Doyle’s representation was compromised by an actual conflict of interest.

Accordingly, the Court reversed the order denying Dew’s motion for a new trial, vacated his convictions, permitted him to withdraw his guilty plea, and remanded for a new trial. See: Commonwealth v. Dew, 210 N.E.3d 904 (Mass. 2023).   

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