by Anthony W. Accurso

The Supreme Judicial Court of Massachusetts upheld a trial court’s order for a new trial after it concluded that defense counsel had a conflict of interest where counsel could potentially be called to testify about the events that occurred during a voluntary police interview that formed the basis of an ineffective assistance of counsel claim against defense counsel.

Jordan Baskin was found stabbed to death on April 14, 2013, on his covered porch in Milton. He had sought emergency medical attention for withdrawal symptoms that day and reported that he and some friends had sought to purchase drugs. The police identified an SUV associated with Nathaniel Brown leaving the scene and later connected several pieces of incriminating evidence to Brown, including fingerprints and a cellphone at or near the crime scene.

Upon learning that the police were interested in the SUV, Brown engaged a criminal defense attorney (“Trial Counsel”). Brown told her that the police wanted to speak with him and were interested in the SUV. She advised him that if there was any evidence of a crime in the SUV, it would be bad for him, but he assured her there was nothing incriminating in the vehicle. She contacted police to arrange for the voluntary surrender of the SUV and for Brown to speak with investigators at the police station. She never asked the police the reason they were interested in the SUV or why they wanted to speak with Brown. She believed that speaking with the police “would be to [Brown’s] benefit, because it would be exculpatory in nature if he went and cooperated.”

Investigators began the meeting by announcing it was in connection with a homicide investigation. Upon learning that it was a homicide investigation, Trial Counsel did not stop the interview nor request to speak privately with Brown to inquire about the specifics of the case or advise him of the risks in speaking to the police.

Trial Counsel refused to allow a recording of the interview. Brown signed a Miranda form, which he did with his right hand. During the course of the interview, Brown “denied knowing the victim after being shown a picture of him, denied ever going to the victim’s house, denied ever owning a cell phone, and denied any association with three specific cell phone numbers.” Trial Counsel became concerned with Brown’s responses regarding the phone numbers because she recognized one of the numbers. She stopped the interview and spoke with Brown in the hallway.

Instead of ending the interview, Trial Counsel and Brown reentered the interrogation room and resumed the interview. During this period of time, Brown admitted that “Nasty” was his nickname since childhood. An investigator noticed a bandage on Brown’s right index finger, and upon removing it, a cut was visible. The investigator asked to take a picture of the cut, but Trial Counsel terminated the interview at that point.

Brown was indicted for murder and retained Trial Counsel for the murder case. During pretrial proceedings, both the prosecutor and judges raised concerns that Trial Counsel had a potential conflict of interest because it was possible that she would have to testify in the event a dispute arose about what occurred during the police interview. See Commonwealth v. Patterson, 739 N.E.2d 682 (Mass. 2000), overruled on other grounds by Commonwealth v. Britt, 987 N.E.2d 558 (Mass. 2013) (Trial Counsel had actual conflict of interest once it became apparent trial counsel ought to be called to testify at trial to dispute key detail in police account of defendant’s counseled police interview). Despite several colloquies to confirm that Brown understood the nature and implications of the potential conflict of interest and that he had a right to appointed counsel, Brown made it clear that he wanted Trial Counsel to continue representing him.

At trial, the prosecution argued that Brown killed the victim during a drug transaction that “went wrong,” and as proof, it introduced evidence obtained during the police interview of Brown accompanied by Trial Counsel. As evidence of consciousness of guilt, the prosecution introduced the fact Brown falsely denied (1) knowing the victim, (2) visiting the victim’s home, (3) owning a cellphone, and (4) using any of the three phone numbers identified during the police interview. The prosecution also introduced evidence that Brown had a cut on his right index finger and that he was righthanded as evidenced by which hand he used to sign the Miranda form. Finally, the prosecution introduced evidence that Brown confirmed that his nickname was “Nasty,” which matched the name of a contact in the victim’s cellphone.

The jury convicted Brown in 2016 of murder in the first degree on the theory of extreme atrocity or cruelty.

In 2019, Brown obtained a new lawyer (“New Counsel”), who filed a motion for a new trial based on a claim of ineffective assistance of counsel. In 2023, the motion judge granted the motion for a new trial on two grounds. First, the judge determined that Brown received ineffective assistance of counsel during the police interview based on the fact Trial Counsel failed to end the interview or at least pause it to speak with Brown once police advised that they were investigating a homicide as well as Trial Counsel’s failure to immediately terminate the interview when she realized Brown was lying about not recognizing the phone numbers. Second, the judge determined that Trial Counsel had an actual conflict of interest with respect to a possible motion to suppress evidence from the police interview because of her own ineffective performance during the interview. The Commonwealth timely appealed.

The Supreme Judicial Court observed defendants have a right to the effective assistance of counsel under both the Sixth Amendment and Article 12 of the Declaration of Rights. Commonwealth v. Perkins, 883 N.E.2d 230 (Mass. 1997). But defendants’ right to counsel under the Sixth Amendment “attaches only at the initiation of adversary criminal proceedings.” Davis v. United States, 512 U.S. 452 (1994). Additionally, defendants have a Fifth Amendment right to “consult with an attorney and to have counsel present during questioning” during a custodial interrogation. Id. The United States Supreme Court has declared that these Miranda rights are “indispensable to the protection of the Fifth Amendment privilege” against compelled self-incrimination. Miranda v. Arizona, 384 U.S. 436 (1966).

The Court explained that with respect to the “distinct right against self-incrimination in art. 12, this court has placed even ‘greater’ emphasis on ensuring that the right to speak with an attorney during a custodial interrogation is ‘actualize[d]’ and ‘substantively meaningful.’” Commonwealth v. Celester, 45 N.E.3d 539 (Mass. 2016). The Celester Court held that the right to counsel under art. 12 “in connection with a prearraignment, custodial interrogation is a right to the effective assistance of counsel” because the right to counsel is not “substantively meaningful” if counsel does not provide “at least minimally competent advice.” Defendants have a right to the “unimpaired assistance of counsel free of any conflict of interest.” Commonwealth v. Hodge, 434 N.E.2d 1246 (Mass. 1982); see also Strickland v. Washington, 466 U.S. 668 (1984) (counsel’s “basic duties” include “a duty to avoid conflicts of interest,” because “[c]ounsel’s function is to assist the defendant, and hence counsel owes the client a duty of loyalty”).

The Court observed that it has long held that, where counsel had an actual conflict of interest, the defendant does not have to show that the conflict “had an adverse impact on the defendant.” Commonwealth v. Martinez, 681 N.E.2d 818 (Mass. 1997). That is, the conflict alone “renders assistance ineffective.” Commonwealth v. Rondeau, 392 N.E.2d 1001 (Mass. 1979). In contrast, the Sixth Amendment requires a defendant to show that an actual conflict adversely affected counsel’s representation. See Cuyler v. Sullivan, 446 U.S. 335 (1980). The Court stated that under art. 12, once an actual conflict of interest has been established, the conviction must be reversed unless the defendant waived the conflict. Commonwealth v. Perkins, 883 N.E.2d 230 (Mass. 1997).

The Court stated that counsel is under an actual conflict of interest in those situations where the “independent professional judgment” of counsel is impaired by either their own interests or those of another client. Perkins. An actual conflict exists where “no impartial observer could reasonably conclude that the attorney is able to serve the defendant with undivided loyalty.” Commonwealth v. Mosher, 920 N.E.2d 285 (Mass. 2010). The defendant bears the burden of explaining “the precise character of the alleged conflict.” Martinez. In deciding whether such a conflict exists, courts look to the applicable codes of professional ethics and the specific “facts and circumstances surrounding the claimed actual conflict.” Commonwealth v. Cousin, 88 N.E.3d 822 (Mass. 2018).

Turning to the present case, the Court agreed with the motion judge’s conclusion that Trial Counsel was burdened by an actual conflict of interest by representing the defendant because doing so forced Trial Counsel to decide whether to move to suppress evidence derived from the defendant’s counseled interview with police based on Trial Counsel’s own ineffective assistance.

According to the Court, Mass. R. Prof. C. 1.7 provides that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” Such a conflict exists where there is a “significant risk” that the lawyer’s own personal interest will “materially” limit representation of the client. Id. Further, comment 10 to rule 1.7 contemplates the type of conflict at issue in the present case—“if the probity of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice.” Thus, the Court ruled that the defendant is “entitled to a new trial under art. 12 without a further showing of prejudice.” Commonwealth v. Tate, 192 N.E.3d 1034 (Mass. 2022).

Accordingly, the Court upheld the motion court’s grant of a new trial based on defense counsel’s actual conflict of interest and remanded the case for a new trial with an unconflicted defense counsel. See: Commonwealth v. Brown, 236 N.E.3d 780 (Mass. 2024). 

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