right to counsel – Beesquared

A suspect charged with driving under the influence of alcohol cannot keep the results of a blood-alcohol test out of court because he did not have an opportunity to consult with an attorney before taking the test, a state appeals court in Brooklyn has ruled.

Whether to suppress evidence of a blood-alcohol test because the suspect was deprived of his right to counsel depends on whether the attorney “entered” the case before the test was given, the Appellate Division’s Second Department ruled on Jan. 11.

An attorney enters a criminal matter and triggers the right to counsel when either a suspect asks to speak with an attorney or the attorney or his or her professional associate notifies police that the suspect is represented by counsel, Judge Randall Eng noted on behalf of the four-judge panel.

“Because the record does not establish that counsel ‘entered’ the case before the test was given, the [trial court] erred in finding that the blood-alcohol test was given in violation of the defendant’s limited right… to consult with counsel,” he wrote. “Notification given to the police by a third party, such as a member of the defendant’s family, is not sufficient to establish counsel’s entry into the case.”

The appeal arose from a prosecution that began on August 26, 2013, when the defendant allegedly got into a fight with a friend at late-night party in North Massapequa. The friend drove away and the defendant got into a car and chased him, before allegedly ramming his car into the back of his friend’s car.

The police arrived, arrested the defendant and took him to the hospital. At 2:35 a.m. the suspect consented to a blood-alcohol test. Three minutes later, the police learned the name and telephone number of an attorney for the suspect, but the record did not establish how they obtained the information. (A police officer testified he did not remember how he learned it.)

At 2:49 a.m., police administered the test. At 3:30 a.m., the suspect was advised of his rights and made a statement to police that implicated him in several crimes arising from the incident.

At trial, the defendant asked the court to suppress both the result of the blood-alcohol test and his statement. The trial court sided with the defendant, holding that police violated his right to consult with an attorney about whether to take the test.

The Appellate Division, disagreed, noting that by law, any person who operates a motor vehicle in New York “shall be deemed to have given consent” to a test of his or her breath, blood or urine to determine the driver’s blood alcohol level. Drivers who refuse the test face automatic revocation of their license to drive and admissibility at trial of evidence that the driver refused to take the test, provided that the police have warned the driver in advance of the consequences of his or her refusal.

When deciding whether to refuse to take the test, a defendant may wish to consult with counsel, said the court, adding that by law police have no duty to warn a defendant of this limited right before asking the defendant to submit to the test.

Still, “when an attorney has actually entered the case, a defendant who had not asked to speak with an attorney must be made aware of the attorney’s entry into the case so that he or she may decide whether to consult with counsel before making a refusal decision,” Eng wrote.

Criminal defendants in New York have an indelible right to counsel, which the state’s highest court has held to mean that a defendant in custody in connection with a matter for which he is represented by counsel may not be questioned by police in the absence of his attorney with respect to that matter or an unrelated matter unless he waives the right to counsel in the presence of his attorney.

When does a rule that prevents your lawyer from defending someone whose interests may be adverse to yours conflict with your right to assistance of counsel in a criminal case?

That was the question before a New York appeals court that recently overturned the conviction of Lawrence Watson, who was convicted in 2010 of possessing a loaded firearm and resisting arrest and sentenced to 20 years in prison. When approached by police, both Watson and Toi Stephens, a fellow suspect, ran away though both were later stopped and arrested.

In court on the eve of trial, Watson found himself in a three-way conversation with his attorney, Robert Fisher of New York County Defender Services, a nonprofit firm that represents indigent defendants, and Judge Richard Carruthers, a state trial judge in Manhattan.

Fisher told the court that he had a conflict of interest. He learned during pretrial discovery that another attorney in his office represented Stephens, whose case had ended. Though Fisher had received no information about Stephens, Watson, if necessary, would have to waive his ability to call Stephens as a witness because Fisher’s office already represented Stephens. Discussion ensued:

The court (to Fisher): You have a very difficult ethical problem if you were to stay on the case and they (prosecutors) call him (Stephens).

Watson: I don’t want to relieve Mr. Fisher because he’s been my lawyer through the whole case and I feel that if I was to obtain another attorney, I want to go to trial, it pushes back time and I’m ready to proceed and get this matter over with as soon as possible.

The court: Believe me, I sympathize with that but we want to get it done correctly. Trials can take turns that no one can anticipate and it might happen that Mr. Stephens will become a relevant witness, will be found, will be brought to court by the prosecution and then that would put you in a very difficult position. Certainly it would put your lawyer in a very difficult position and these are things that can happen. No one can predict with certitude that it will happen but it could happen. So the best thing to do as a matter of caution is to relieve Mr. Fisher and to appoint new counsel to represent you.

With that Carruthers appointed a new lawyer to represent Watson, who asserted on appeal that the court erred in finding a conflict because Fisher had no contact with Stephens or, for that matter, know Stephens’ whereabouts.

The appeals court agreed. While noting that the law affords trial judges wide latitude to determine whether a conflict exists, the Appellate Division found none. “Indeed, Fisher acknowledged that he would be barred from viewing his office’s file on Stephens or using the address on file to try to locate Stephens,” Justice Barbara Kapnick wrote for the majority in a decision published Thursday.

The appeal entangles two principles of law. One is the Sixth Amendment to the Constitution, which guarantees criminal defendants the right to be represented by a lawyer regardless whether they can afford one.

The other principle comes from ethical standards that govern lawyers, who cannot represent differing interests or disclose confidential information from one client for the advantage of another.

In 1988, the Supreme Court upheld the conviction of a man who sought to be represented by the same lawyer who represented two of his fellow defendants in an alleged conspiracy to distribute thousands of pounds of marijuana throughout California.

As in Watson’s case, the possibility of a conflict arose before trial, which influenced the court’s view. As Chief Justice William Rehnquist wrote for the majority:

Unfortunately for all concerned, a district court must pass on the issue whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pretrial context when relationships between parties are seen through a glass, darkly.

The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials. It is a rare attorney who will be fortunate enough to learn the entire truth from his own client, much less be fully apprised before trial of what each of the Government’s witnesses will say on the stand. [citation omitted]

A few bits of unforeseen testimony or a single previously unknown or unnoticed document may significantly shift the relationship between multiple defendants. These imponderables are difficult enough for a lawyer to assess, and even more difficult to convey by way of explanation to a criminal defendant untutored in the niceties of legal ethics.

For these reasons we think the district court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.

Of course, a criminal defendant cannot choose whomever he would like to represent him. As the court noted, an advocate who is not a member of the bar may not represent anyone besides himself. Nor may a defendant insist on a lawyer he cannot afford or one who turns down the representation.

For his part, Watson wanted to retain Fisher as his lawyer despite the conflict. The discussion before Carruthers continued:

Watson: One more question.

The court: Sure.

Watson: I’m not sure but [is it] up to my discretion if I really want to relieve Mr. Fisher?

The court: You see, we are in a difficult position now where I see him being placed in a position where he just would not be able to effectively represent you. I have, ultimately, the responsibility to see that trials are conducted fairly and without any impediment to either side.

Watson: Even if I waive the conflict?

The court: Even then, when I see there is a real conflict that might not be able to be overcome, you see. I would like to keep Mr. Fisher on but at this point, I just don’t see how I can do it. I sympathize with you being put in this position. There will be some delay. We will try to get an attorney who will represent you who will be able to take up the matter quickly.

That’s what the trial court did. Watson did not contend that the lawyer appointed to represent him was ineffective.

According to the appeals court, Watson’s predicament differed from precedent. As Kapnick wrote, “It is crucial to recognize that here, unlike in other right to counsel cases, the proper initial inquiry is not whether defendant’s waiver should have been accepted, but whether there was even a conflict or potential conflict of interest to waive in the first place.”