Opinion
No. CR08-623550
January 9, 2009
MEMORANDUM OF DECISION IN RE STATE'S MOTION TO DISQUALIFY ATTORNEY
By Motion dated November 6, 2008, the State of Connecticut moves to disqualify Attorney Gerald Klein from representing the defendant in the above-captioned matter. In support of its motion, the State contends that Attorney Klein's representation of a potential witness for the state in the instant matter creates a conflict of interest for Attorney Klein, and that this conflict warrants his disqualification as counsel for the defendant. The defendant, through Attorney Klein, objects to this motion and the relief it seeks, arguing that any concerns can be adequately addressed if the defendant waives any potential conflict, and agrees to retain separate counsel for the purpose of cross-examining the witness in question at trial. After consideration of the parties' competing claims, and notwithstanding the court's general reluctance to interfere with a defendant's right to counsel of his choice, the court, for the reasons set forth below, hereby grants the State's motion to disqualify.
FACTS AND PROCEDURAL HISTORY
Although the parties dispute the legal conclusions to be drawn therefrom, the following facts and procedural history do not appear to be in substantial dispute. On September 14, Elizabeth Bonilla was arrested on charges related to the seizure of narcotics from a home she shared with her boyfriend, Hector Colon. Shortly after Bonilla's arrest, Attorney Klein filed an appearance on her behalf. During the pendency of Bonilla's case, the State alerted Attorney Klein that it believed that Bonilla may have information concerning a series of residential burglaries that were then under investigation. Specifically, the State advised Attorney Klein that Bonilla's boyfriend, Colon, and a number of his associates, were suspects in these burglaries, and that Bonilla could have relevant information concerning these individuals and their joint criminal activities. Indeed, the State advised Attorney Klein that Bonilla, because of the knowledge she might possess, could well be in a position to benefit from her cooperation by potentially receiving a more favorable disposition of her pending case.
Although there is general agreement as to the facts and circumstances that follow in the text, the parties may not be in accord as to "who knew what and when," But insofar as the matter before the court is concerned, it is the existence of these facts and circumstances that is important, not the date upon which the information became known to counsel.
After Attorney Klein was made aware of the State's interest he and his client, Bonilla, met with investigators on at least two, and perhaps three, occasions. While the State and Attorney Klein disagree over whether the name of Carlos Torres, the defendant here, was specifically mentioned during the course of these interviews, there is no dispute that Bonilla discussed in detail the activities of Colon and his associates. It is also not in dispute that Bonilla, in addition to these two or three meetings at which Klein was in attendance, had other communications with authorities without Attorney Klein being present, and that Bonilla at some point did provide information concerning the activities of the defendant. The information provided by Bonilla about the defendant was viewed by authorities as quite useful, both in establishing a relationship between the defendant and his alleged co-conspirators, as well as in tying the defendant to a particular weapon a laser-sighted firearm — which the State alleges was wielded by the defendant during the course of the burglary for which he now stands charged.
Attorney Klein had given prosecutors and law enforcement personnel permission to contact and speak to Bonilla directly, and outside his presence. Objection, pp. 2-3.
In other words, although Attorney Klein may dispute the State's claim that the defendant was mentioned by Bonilla during the debriefing sessions at which Klein was present, Attorney Klein does not dispute the fact that Bonilla did discuss the defendant with investigators at some point, and specifically referred to the defendant's possession of this unique type of weapon.
On or about May 19, 2008, Bonilla appeared before the court, Ward, J., in connection with her pending criminal matter and applied to the court for admission into the Accelerated Rehabilitation (AR) program. Because of the extent of Bonilla's cooperation, the State did not oppose the AR application. The court, Ward, J., then granted the application, placing Bonilla on eighteen months' probation with a specific condition that she "continue to cooperate with the State in their investigation." Objection, p. 2.
Although the defendant's Objection to Motion to Disqualify Attorney (Objection) refers to a "May 17th Accelerated Rehabilitation motion;" Objection, p. 2; the clerk's records indicate that the Accelerated Rehabilitation application was heard and ruled upon on May 19, 2008.
In his Objection, the defendant contends that the State's Motion to Disqualify Attorney (Motion) attempts to mislead the court into believing that the State's decision not to oppose the AR application was based upon information Bonilla provided specifically about Carlos Torres. The court does not read the State's Motion to suggest that at all. The Motion states only that the State did not object to AR "[i]n light of the fact that Ms. Bonilla had cooperated with authorities." Motion, p. 2. There is nothing in this language indicating the identity of any individuals who Bonilla may have discussed during the course of her cooperation. In any event, what is significant for present purposes is not the precise nature of her cooperation, but the fact (which is largely undisputed) that Bonilla may be deemed to have received more favorable treatment from the State and the court as a result of her cooperation.
The defendant's Objection states that a one-year period of probation was imposed by the court. However, court records indicate that AR probation was imposed from May 19, 2008 until November 20, 2009-a period of eighteen months.
In fact, Bonilla continued to cooperate with the State not only in a general sense, but particularly in its investigation of this defendant-providing investigators on June 11, 2008 with additional information concerning his activities. Objection, p. 3.
With Bonilla on AR probation and her case therefore still pending, the defendant was arrested on July 29, 2008 in connection with a residential burglary which Bonilla's information and cooperation helped investigators to solve. On September 15, 2008, Attorney Klein entered his appearance on behalf on the defendant. The State almost immediately thereafter expressed concern about Attorney Klein participating as counsel in the instant case, given his representation of Bonilla and the nature of her cooperation in the investigation that led to the defendant's arrest. On November 6, 2008, the State filed a formal motion seeking the disqualification of Attorney Klein. On November 11, 2008, the defendant submitted a written objection to the State's motion. A hearing on the matter was held on November 17, 2008.
DISCUSSION
"[T]he guarantee of assistance of counsel under the sixth amendment to the United States constitution encompasses the right to select one's own attorney." State v. Peeler, 265 Conn. 460, 470 (2003), cert. denied, 541 U.S. 1029, 124 S.Ct. 2094, 158 L.Ed.2d 710 (2004), citing Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932). In line with this guarantee, the defendant is entitled to a presumption in favor of accepting his counsel of choice. State v. Peeler, supra, 265 Conn. 473, citing Wheat v. United States, 486 U.S. 153, 164, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). This presumption, however, may be overcome in certain situations; State v. Peeler, supra, 265 Conn. 473; since "[t]he essential aim of the [sixth] [a]mendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat v. United States, supra, 486 U.S. 159.
"When a defendant's selection of counsel seriously endangers the prospect of a fair trial, a trial court justifiably may refine to agree to the choice. Thus, a trial court may, in certain situations, reject a defendant's choice of counsel on the ground of a potential conflict of interest, because a serious conflict may indeed destroy the integrity of the trial process." State v. Peeler, supra, 265 Conn. 473. Before rejecting a defendant's chosen counsel due to a potential conflict of interest, however, the trial court must determine both the likelihood and substantial nature of the conflict. Id.; see also State v. Crocker, 83 Conn.App. 615, 629, cert. denied, 271 Conn. 910 (2004).
Connecticut courts have recognized that "[t]here are many situations in which a . . . court can determine that disqualification of counsel is necessary." (Internal quotation marks omitted.) State v. Crocker, supra, 83 Conn.App. 627. One of the situations in which a conflict requiring disqualification has been determined to exist is where "counsel for the defendant represents, or has represented, a witness for the state." State v. Gaines, 257 Conn. 695, 707 (2001). In fact, counsel's prior representation of a state's witness has been described as one of the "most typical" situations in which a serious potential conflict has been found to exist and to warrant the disqualification of a defendant's chosen counsel. State v. Crocker, supra, 83 Conn.App. 627.
In the present case, the State moves to disqualify the defendant's counsel of choice, Attorney Klein, on the ground that his representation of Bonilla, who the State asserts will be a witness at the defendant's trial, creates a potential conflict of interest which may interfere with the fairness of the trial proceedings. Before assessing the merit of the State's contention, it is useful to set out what is not in dispute. Importantly, Attorney Klein does not dispute that a potential conflict exists. Objection, p. 1. Rather, he contends that the potential conflict of interest can be "cured" if the defendant waives any such conflict and agrees to retain additional counsel to cross-examine Bonilla when she is called by the State as a witness at trial.
In considering this question, a court should, as the defendant aptly points out, rely upon defense counsel's own assessment as to whether a conflict does or does not exist. Objection, p. 5, citing State v. Gaines, supra, 257 Conn. 709. Attorney Klein has represented as an officer of the court that, at least by implementing the safeguards he has proposed, no conflict of interest will prevent him from representing the defendant here in an ethical and zealous manner. However, while a defense counsel's own assessment of the facts and circumstances should be carefully considered, such consideration does not transfer "to defense counsel the authority of the trial judge to rule on the existence or risk of a conflict." State v. Cruz, 41 Conn.App. 809, 814, cert. denied, 239 Conn. 908 (1996), quoting Holloway v. Arkansas, 435 U.S. 475, 486, 98 S.Ct. 1173, 53 L.Ed.2d 426 (1978). Thus, it is the court that ultimately must decide here whether the admitted potential conflict arising from Attorney Klein's representation of Bonilla can be adequately remedied by the means the defendant has proposed, or whether the seriousness of the conflict (irrespective of any safeguards) compels Attorney Klein's disqualification.
Based on the facts and procedural history earlier recited and the appellate court decisions cited and discussed, this court concludes that Attorney Klein's continued representation of the defendant presents a conflict of interest which, regardless of the defendant's waiver or hiring of additional counsel, is substantial enough to impair the integrity of the trial process. In reaching this conclusion, the court recognizes that the law does not go as far as requiring the disqualification of counsel for a defendant whenever that attorney has represented a witness for the state. State v. Cruz, supra, 41 Conn.App. 809 (rejecting claim that counsel's representation of a state's witness five years earlier on an unrelated matter created a conflict). In the court's view, however, the instant case involves the type of state's witness, and the type of representation of that witness, that compels disqualification.
After Bonilla had been arrested and retained Attorney Klein as her counsel, law enforcement authorities made it abundantly clear to Attorney Klein that Bonilla stood to benefit significantly from her cooperation. Having been made aware of that opportunity, Bonilla met repeatedly with the authorities, both with and without Attorney Klein present, and provided information which, at some point and in some part, implicated and incriminated the defendant here. In her interviews, Bonilla not only connected the defendant to Colon — information useful in the State's effort to prove a conspiracy between them — but also directly tied the defendant to a type of weapon which, as noted earlier, the State alleges that the defendant wielded in his commission of the charged offenses.
The significance of the testimony Bonilla will provide at the defendant's trial thus serves to distinguish this situation from that decried by the dissenting Justices in Wheat, where the parties knew in advance that the witness in question "could not have testified about the petitioner's involvement in the alleged [crime]," and "did not know and could not [even] identify the petitioner." Wheat v. United States, supra, 486 U.S. 170 (Marshall, J., dissenting). Nor is the present case one in which "[t]he prosecutor's decision to use [the witness] was an 11th-hour development." Id., 170, n. 3. Here, the State has disclosed both its intention to call Bonilla as a witness, as well as the importance of her testimony, within weeks of the defendant's arrest. By virtue of this early disclosure, the State cannot be accused of identifying Bonilla as a witness for the sole purpose of "manufactur[ing] a conflict in this case" as a maneuver to prevent [Attorney Klein] from representing [the defendant] at trial." See id.
Given this background, it is not enough to say that Attorney Klein merely represented a State's witness in connection with that witness' own criminal case. In point of fact, Attorney Klein advised Bonilla on matters far beyond the confines of her narcotics case. Attorney Klein specifically counseled Bonilla on whether or not she should provide certain information to police. Bonilla thereafter chose to provide that information — the same information that the State will be offering against the individual that Attorney Klein now seeks to represent.
This background also serves to distinguish this matter from State v. Drakeford, 261 Conn. 420 (2002), a case discussed by both parties in their respective written filings. The defendant is correct that the trial court in Drakeford denied disqualification in reliance upon defense counsel's opinion that no conflict of interest arose from counsel's prior representation of a state's witness. The defendant is also correct that the Supreme Court affirmed the trial court's decision. But as the State points out in its Motion, the attorney at issue in Drakeford only briefly represented the state's witness, and "never had appeared in court with [the witness] or engaged in any plea discussions with the state on behalf of [the witness]." Id., 429.
Complicating matters even further, Bonilla's decision to provide this information to police was made with the understanding that she might thereby achieve a more favorable result in her own case — a case which remains pending with Attorney Klein as counsel of record. Indeed, the single special condition of Bonilla's AR probation compels her to continue to cooperate with the State or else face the prospect of a renewed prosecution of the charges against her. Given her AR condition and its unmistakable incentive, Bonilla's interests are thus unquestionably and irrevocably adverse to those of the defendant. See State v. Martin, 201 Conn. 74, 81 (1986) ("[i]t is not representation of more than one client which deprives a defendant of his constitutional right to effective assistance of counsel, it is representation of clients with adverse interests" [internal quotation marks omitted]).
Although the law is clear that a conflict of interest may exist even where counsel represented a witness in a case long ago concluded, the fact that Bonilla's case is still pending makes the conflict here all the more problematic. See State v. Martin, 201 Conn. 74 (1986) (court's failure to investigate potential conflict warranted new trial where defense counsel had advised the court that he was currently representing a state's witness).
See also Rules of Professional Conduct 1.7, which states in relevant part: "(a) . . . a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client . . ."
Having already counseled Bonilla as to whether she should place herself in a precarious position dependant upon her continued cooperation, Attorney Klein now asks this court to allow him to jettison her legal interests (not to mention his duty to ensure that Bonilla extricates herself favorably from her current legal limbo), in favor of the interests of an individual against whom Bonilla is obligated to cooperate. The court refuses to grant Attorney Klein's request. Notwithstanding the presumption to be afforded a defendant's choice of counsel and the court's general deference to defense counsel's own opinion as to the existence and impact of a conflict, the conflict of interest that arises from Attorney Klein's representation of the defendant is not only a substantial and serious one, but one likely to impair the fairness of the trial process. As such, disqualification of counsel is not only advisable in this case, it is required as a matter of law.
Of course, the court's decision in this regard must be made "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." Wheat v. United States, supra, 486 U.S. 162. Moreover, in making its decision, the court "face[s] the prospect of being `whipsawed' by assertions of error no matter which way [it] rule[s]." Id., 161. Given that the court has determined that the conflict here warrants Attorney Klein's disqualification, the defendant can later claim that the court's ruling deprived him of his constitutional right to counsel of choice. On the other hand, had the court instead determined that the conflict here did not warrant disqualification, then the defendant would have been able later to claim that he was deprived of the effective assistance of counsel because of Attorney Klein's conflict of interest.
Although the court understands that the defendant is willing to waive any conflict caused by Attorney Klein's representation of Bonilla, the conflict here cannot be adequately remedied by waiver. Courts have "rejected the notion that a defendant's waiver cures the problem related to a conflict of interest;" State v. Crocker, supra, 83 Conn.App. 626; and have therefore empowered trial judges to refuse a waiver. Wheat v. United States, supra, 486 U.S. 162. When an attorney's potential conflict "may result in the inadequate representation of a defendant or jeopardize the court's institutional interest in the rendition of a just verdict, a trial judge has the discretion to disqualify an attorney or to decline a proffer of waiver." State v. Crocker, supra, 83 Conn.App. 631. Given the nature of the conflict that arises from Attorney Klein's past and ongoing representation of Bonilla — and in particular the fact that a potential favorable disposition for Bonilla was negotiated by Attorney Klein and may well hinge on the nature of the testimony she provides against the defendant here — it is the prerogative, if not the duty, of the court to decline the waiver and to order disqualification.
A proffered waiver of the right to conflict-free representation should be viewed with caution. Such a waiver requires the understanding of "imponderables [that] 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 . . . [Moreover] the willingness of an attorney to obtain such waivers from his clients may bear an inverse relation to the care with which he conveys all the necessary information to them." Wheat v. United States, supra, 486 U.S. 163.
The court also declines the defendant's invitation to adopt the solution he proposes whereby separate counsel would be retained to cross-examine Bonilla. Granted, separate counsel may prevent Attorney Klein from having to cross-examine his client, Bonilla, in court. However, Attorney Klein's conflict of interest exists not only during cross-examination, it exists now. Moreover, because of Klein's divided loyalties, it will continue to exist during pretrial proceedings and through the entirety of the trial itself, even if another lawyer is charged with the formal task of cross-examining Bonilla at trial. In other words, the "solution" proposed by the defendant at best remedies just one of the problems created where counsel for the defendant represents a witness for the state.
In addition, although the defendant refers in his Objection to a trial in which this practice was utilized, the court can find no reported Connecticut decision in which the suggested remedy is approved of or, for that matter, even discussed. However, the practice has been considered in at least two opinions by a federal Court of Appeals, United States v. Guerrero, United States Court of Appeals, Docket No. 08-40120 (5th Cir. October 17, 2008) and United States v. Gharbi, 510 F.3d 550 (5th Cir. 2007), decisions which this court find instructive.
The defendant states only that the case was " State v. Luis Banks-circa 1996" and that the separate counsel arrangement was "approved by" the judge presiding over the matter, the Honorable John F. Mulcahy, and the Chief State's Attorney's Office. Objection, p. 1. The court was not provided with any details regarding the nature of the conflict at issue in Banks, when the conflict was first discovered (i.e. during or just prior to trial, or, as here, immediately upon counsel's filing of an appearance) or the circumstances that led up to the state's agreement to, and the court's approving of, the practice. Regardless of these factors, this court, for the reasons stated in the text of this decision, is not persuaded that the proposal adequately addresses the problems created by the conflict here.
Although this is the current and official citation, at a later date the case will be reported, subject to change, at 546 F.3d 328 (5th Cir. 2008).
In Guerrero, the defendant's attorney attempted to represent the defendant and a cooperating government witness. The witness was set to testify against the defendant in exchange for a reduction in his sentence. United States v. Guerrero, supra, United States Court of Appeals, Docket No. 08-40120. The attorney obtained a waiver from the defendant and the witness and asserted that at trial he would hire other counsel to cross-examine the witness. Id. In Gharbi, the defendant attempted to obtain co-counsel who had represented his daughter in a plea bargain under which she agreed to testify against him. United States v. Gharbi, supra, 510 F.3d 552. Primary counsel obtained waivers from Gharbi and his daughter. Id., 552. Counsel assured the district court that "a Chinese Wall" had been erected between himself and proposed co-counsel and that no confidential information would be shared. Id.
In each case, the Fifth Circuit upheld the district court's decision to refuse the proffered waiver and to deny the defendant's counsel of choice. The Circuit Court noted in each case that there existed an "irreconcilable conflict of interest," in that if the cooperating witness was called to testify, the "defense team" might either go easy on the witness during cross-examination, thus providing ineffective assistance to the defendant; or, alternatively, attack or discredit the witness, thus potentially jeopardizing the witness' arrangement with the state. United States v. Guerrero, supra; United States v. Gharbi, supra, 510 P.3d 553. The court went on to say that this "serious potential for conflict . . . could not be resolved by [defense counsel's] proposed arrangements . . . [and that in] order to protect the rights of all parties and preserve the appearance of fairness . . . [the defendant and witness] needed separate and independent counsel." United States v. Gharbi, supra, 510 F.3d 553-54; see also United States v. Guerrero, supra.
As in Guerrero and Gharbi, the court here is not convinced that proposed co-counsel could adequately cross-examine Bonilla without endangering her rights or those of the defendant, or the prospect of a fair trial. At trial, and particularly in the eyes of the jury, Attorney Klein and co-counsel would not be separate entities — they would be a defense team, working solely on behalf of the defendant. See United States v. Guerrero, supra; United States v. Gharbi, supra, 510 F.3d 553. When Bonilla is called to testify, it would be "impossible to guess whether [the defendant's] combined defense team would pull punches on cross-examination, thereby providing ineffective assistance to [the defendant]." United States v. Gharbi, supra, 510 F.3d 553. There would also exist "the opposite risk, that [defendant's joint] counsel could attack [Bonilla] with great detail and thereby jeopardize [the terms of her AR] agreement." See id. In addition to these risks, there is also a risk that the jurors may experience confusion from the sudden appearance of a new lawyer for the defense, who cross-examines one witness and then is never seen or heard from again. For a court to allow such an uncommon and potentially confusing practice to occur serves only to invite jurors to engage in the type of speculation that can so easily undermine the fairness of the trial. For all of these reasons, the defendant's "proposed solution" is not a solution at all. Even if the defendant's proposal were to be implemented, the fairness of the defendant's trial could not be assured, and the defense team's shared loyalty to the defendant still could not be reconciled with Attorney Klein's concurrent, and therefore divided, loyalty to Bonilla.
Attorney Klein proposed that co-counsel could in fact return to deliver that portion of the closing argument related to Bonilla's testimony; however, in the court's view, co-counsel's extremely brief reappearance would only add to the confusion.
CONCLUSION
In sum, the sixth amendment right to choose one's own counsel is a qualified one and does not ensure that the defendant will be represented by the lawyer whom he prefers. Wheat v. United States, supra, 486 U.S. 159. In the present case, Attorney Klein not only represents Bonilla, a state's witness, in her own criminal matter — a matter that remains pending — but in the course of that representation, he provided Bonilla with advice concerning her cooperation as a witness, attended sessions at which she spoke to authorities, and negotiated a plea disposition for Bonilla which is contingent upon her ongoing cooperation. Having assumed such a comprehensive role in Bonilla's representation, and because Bonilla's best interests are so diametrically and irrevocably opposed to those of the defendant, Attorney Klein will be forced to labor under divided loyalties if he is allowed to continue as the defendant's counsel. In light of those divided loyalties, neither a waiver from the defendant, nor his proposal to retain additional counsel, sufficiently protects the defendant's right to effective representation and the court's institutional interest in the rendition of a just verdict. In this case, these vitally important interests can only be preserved by the remedy of disqualification.
Based on the foregoing, the court disqualifies Attorney Klein from further representing the defendant in the above-captioned matter. The State's Motion to Disqualify Attorney is therefore granted.