The People, Respondent,v.Paul Cortez, Appellant.BriefN.Y.October 15, 2013 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - PAUL CORTEZ, Defendant-Appellant. BRIEF FOR AMICI THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AND THE NEW YORK STATE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS LEVITT & KAIZER 40 Fulton Street, 23rd Floor New York, New York 10038 (212) 480-4000 (tel.) (212) 480-4444 (fax) Attorneys for The National Association of Criminal Defense Lawyers and The New York State Association of Criminal Defense Lawyers September 20, 2013 i TABLE OF CONTENTS STATEMENT OF INTEREST…….………………………………………………1 STATEMENT OF FACTS……..…………………………………………………..2 ARGUMENT…….…………………………………………………………………4 I. INTRODUCTION…..………………………………………………..4 II. THE PRESENT STATE OF NEW YORK LAW……………………4 III. SECOND CIRCUIT PROCEDURE..……………………………….10 IV. APPLICATION TO CORTEZ TRIAL.……………………………..12 CONCLUSION.…………………………………………………………………..15 ii TABLE OF AUTHORITIES Glasser v. United States, 315 U.S. 60 (1942)………...……………………………………………………..5 People v. Caban, 70 N.Y.2d 695 (N.Y. 1987)…...………………………………………………..6-7 People v. Crampe, 17 N.Y.2d 469 (N.Y. 2011)….…………...………………………………………8 People v. De Sarno, 239 A.D.2d 74 (3d Dept. 1998)…..………………………………………………6 People v. Lloyd, 51 N.Y.2d 107 (N.Y. 1980)...……………...……………………………………..6 People v. Florio, No. 01711-2006 (N.Y. Sup. Ct. (New York Co.))……….………………………2 People v. Gomberg, 38 N.Y.2d 307 (N.Y. 1975)...…………………………………………………..5-8 People v. Novak, 38 Misc. 3d 1231(A) (N.Y. Co. Ct. 2013)…..……………………………………8 People v. Providence, 2 N.Y.3d 579 (N.Y. 2004)…..…………………...……………………………….8 People v. Solomon, 20 N.Y.3d 91 (N.Y. 2012).……………………………………………………..7-8 United States v. Basciano, 384 Fed. Appx. 28 (2d Cir. 2010).………………………………………………11 United States v. Buissereth, 638 F.3d 114 (2d Cir. 2011)…………………………………………………….11 United States v. Curcio, 680 F.2d 881 (2d Cir. 1982)…..………………………………………..4, 8-13, 15 iii United States v. Garcia, 517 F.2d 272 (5th Cir. 1975)…..………………………………………………..10 United States v. Graham, 493 Fed. Appx. 162 (2d Cir. 2012)….…………………………………………..11 United States v. Iorizzo, 786 F.2d 52 (2d Cir. 1986)….……………………………………………….12-13 United States v. Levy, 25 F.3d 146 (2d Cir. 1994)...……………………………………………………12 United States v. Rodriguez, 968 F.2d 130 (2d Cir. 1992)...…………………………………………………..10 United States v. Williams, 372 F.3d 96 (2d Cir. 2004)..…………………………………………………11-12 United States v. Wisniewski, 478 F.2d 274 (2d Cir. 1973)...……………………………………………………5 Williams v. Meachum, 948 F.2d 863 (2d Cir. 1991)...…………………………………………………..12 1 STATEMENT OF INTEREST The National Association of Criminal Defense Lawyers (“NACDL”) is the preeminent organization in the United States advancing the mission of the nation’s criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct. A professional bar association founded in 1958, NACDL’s almost 13,000 direct members – and 94 state, local, and international affiliate organizations with another 35,000 members – include private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors, and judges committed to preserving fairness within the United States’ criminal justice system. The New York State Association of Criminal Defense Lawyers (“NYSACDL”) – an affiliate of NACDL – is a non-profit membership organization of more than 750 criminal defense attorneys practicing statewide, and is also the largest private criminal bar association in New York State. Its purpose is to provide assistance to the criminal defense bar to enable its members to better serve their clients and to enhance their professional standing. NYSACDL is committed and dedicated to ensuring the protection of individual rights and liberties for all. As criminal defense organizations, amici have an abiding interest in assuring that defendants enjoy the effective assistance of counsel, and understand that this 2 fundamental right can be irreparably compromised by attorney conflict. Amici believe this Court should use the instant case to establish a protocol to assure that conflict hearings are conducted in a manner sufficient to inform defendants of the nature and possible consequences of attorney conflicts, and permit them to make a knowing and intelligent decision whether or not to waive them. Through such a standardized procedure our courts can better balance a defendant’s constitutional right to counsel of choice on the one hand, with the right to conflict-free counsel on the other, and also assure that a sufficient record is made to permit adequate appellate review. STATEMENT OF FACTS We respectfully adopt Appellant’s statement of facts. In brief, one of Cortez’s two trial attorneys, Dawn Florio, was freighted with an undisputed conflict of interest, stemming from her pending felony drug prosecution for allegedly smuggling drugs to a different client in jail (A232-33;1 see People v. Florio, No. 01711-2006 (N.Y. Sup. Ct. (New York Co.))). She was being prosecuted by the same district attorney’s office that was prosecuting her client Cortez for murder. Cortez’s other trial attorney, Laura Miranda, had already been held in contempt of court by Justice Carol Berkman before Cortez’s trial had even 1 References to “A__” refer to Appellant’s Appendix. 3 begun, for failing to appear for the first three scheduled trial days and for other misconduct in Cortez’s case. (A226-27, 238-39, 244.) In the page-and-a-half discussion devoted to Florio’s conflict, which did not occur until the second actual day of trial, Justice Berkman downplayed the conflict’s existence, nature, and significance by telling Cortez that (a) she “never quite know[s] what to say about that” (A520); (b) there was an “argument” that Florio’s pending felony drug prosecution by the same district attorney’s office that was prosecuting Cortez for murder “in some fashion constitutes a conflict of interest” (A520); (c) Florio “might, for some reason, be more interested in her own matter than yours” (A520); (d) “I’m not quite sure I see it factually, frankly. But, it really isn’t up to me to make that decision” (A520-21); and (e) “I don’t know what the status of [Florio’s] case is at this point. But, it’s particularly serious because if there were to be a conviction, she could lose her license to practice law” (A521). Justice Berkman did not address Miranda’s possible conflict of interest. In addition to downplaying Florio’s serious conflict, the trial judge did not inform Cortez of his right to conflict-free counsel, or explain how that conflict might prejudice him. Nor did the court give Cortez time to consider whether to keep Florio or change attorneys; offer him a chance to discuss the situation with independent counsel; or inform him that he was entitled to have conflict-free counsel appointed to represent him. 4 ARGUMENT I. INTRODUCTION The colloquy in this case was inadequate, but not uniquely so. The collective experiences of amici, whose members are criminal law practitioners, is that conflicts of interest in state court prosecutions are often not sufficiently addressed in open court. Although New York law requires that hearings be conducted whenever a credible claim of possible conflict is raised, this Court has not established a clear protocol for the conduct of such hearings, resulting in rulings that are not supported by sufficient evidence upon a record that is not adequate for meaningful appellate review. The lack of guidance regarding the conduct of conflict hearings in our state courts is a serious deficiency, which compromises defendants’ right to effective assistance of counsel. We propose that this Court adopt the well-known and effective protocol for conflict hearings established by the Second Circuit Court of Appeals in United States v. Curcio, 680 F.2d 881 (2d Cir. 1982). This protocol has been adopted, explicitly or in substance, by numerous other state courts and federal courts of appeal. II. THE PRESENT STATE OF NEW YORK LAW New York has not established a clear procedure for the conduct of conflict hearings, a deficiency that is traceable to the Courts’ traditional reliance on defense 5 counsel to meet their ethical obligation to fully explain potential conflicts to their clients. In People v. Gomberg, 38 N.Y.2d 307 (N.Y. 1975), this Court considered the defendant’s claim that he was prejudiced by his attorney’s conflicted joint representation of three defendants. The Court recognized that defendants are constitutionally entitled to conflict-free counsel, but observed that this right might on occasion be in tension with the defendant’s right to counsel of choice. Thus, the court held, where a conflict or potential conflict exists, the trial court is required to “ascertain, on the record, whether [the] defendant has an awareness of the potential risks involved . . . and has knowingly chosen” to waive them. Gomberg, 38 N.Y.2d at 313-14 (citing United States v. Wisniewski, 478 F.2d 274, 285 (2d Cir. 1973); Glasser v. United States, 315 U.S. 60, 71 (1942)). Rather than establish a standardized procedure for exploring a possible conflict and its potential impact, however, the Court focused the inquiry on the representations of defense counsel, who said he had met his ethical obligation to determine whether his clients understood and wished to waive the potential conflicts. 38 N.Y.2d at 314.2 And so, in Gomberg, this Court approved the trial court’s reliance on defense counsel’s representation that “he had discussed the problem with his clients only three or 2 “It is appropriate, under such circumstances, for the court to place great weight upon counsel’s representation that there is no conflict in his joint representation. Similarly, the court may rely upon counsel's assurances that he had fully discussed the potentiality of conflict with his clients and received their continued approbation.” Id. 6 four days before and that all three defendants ‘said they had confidence in our firm to handle it.’” 38 N.Y.2d at 315. The Gomberg Court encouraged reliance on defense counsel’s out-of-court conversations with the client, but did not further explicate how the trial judge is to “ascertain” either the defendant’s “awareness” or whether the risks of conflicts have been “knowingly chosen,” forcing trial judges statewide to devise their own disparate waiver procedures on a case-by-case basis, often with wildly varying results. Thus, five years after Gomberg, Judges Jones, Fuchsberg and Meyer, dissenting from the rejection of defendant’s conflict argument in People v. Lloyd, 51 N.Y.2d 107 (N.Y. 1980), lamented that “there was nothing other than the attorney's conclusory statement [that he had discussed the conflict with his clients] on which the trial court could rely in the discharge of its responsibility to defendant.” They expressed concern that the attorney’s statement provided “no assurance that the details of the potential risks involved had been described to them or that they had each made an informed decision to proceed with a single attorney.” Id. at 113 (Jones, J., dissenting, joined by Fuchsberg and Meyer, JJ.). In the ensuing years, other judges have noted the “ambiguity” in the state’s conflict standard, e.g., People v. De Sarno, 239 A.D.2d 74, 82-83 (3d Dept. 1998) (Mikoll, J.P., dissenting), and although this Court has held that a conflict hearing must be “searching” and “thorough[],” People v. Caban, 70 N.Y.2d 695, 696-97 7 (N.Y. 1987) (footnote omitted), the contours of a sufficient Gomberg hearing have not been fleshed out. This continuing lack of specific guidance and clarity is reflected in recent cases such as People v. Solomon, 20 N.Y.3d 91 (N.Y. 2012). There, the defendant was represented by an attorney who also represented, in an unrelated civil matter, a detective who was a principal witness against the defendant. Prior to a Huntley hearing, the attorney informed the court that she represented the detective “in an unrelated matter;” that she had disclosed this to the defendant, and that the defendant “respects the nature of my representation of Detective Kuebler [and] has agreed to waive any conflict in that regard.” The defendant stated, in response to questioning by the court, that this was so. Id. at 94. It would appear that the trial court understood Gomberg to require only counsel’s general statement that she had addressed the conflict with her client. However, this Court agreed with the Appellate Division’s conclusion that the inquiry was “insufficient,” and the defendant’s waiver therefore “invalid,” because the inquiry did not demonstrate that the defendant had “an awareness of the potential risks involved in that course and ha[d] knowingly chosen it.” Id. at 95. The failure of the trial judge in Solomon to understand how to conduct an adequate conflicts hearing is similarly evident in the trial judge’s statement in the present case that she ‘never quite know[s] what to say” to defendants about attorney conflicts (A. 520). 8 Amici doubt that the judge in Solomon would have accepted defense counsel’s general statement of compliance with her ethical responsibilities under Gomberg had New York law coincided with Curcio, which unquestionably would have required a searching hearing under these circumstances. Likewise, the record in the instant case undoubtedly would have looked quite different had the trial court “know[n] what to say” at the hearing. Recognizing this ambiguity in state law, some New York courts are beginning to cite the Second Circuit’s Curcio decision in their analyses of conflict issues. Most recently, in People v. Novak, 38 Misc. 3d 1231(A) (N.Y. Co. Ct. 2013), a court explicitly ordered what it deemed a “Curcio hearing” and directed the appointment of independent counsel to consult with the defendant in response to the People’s claim that defense counsel was conflicted and after concluding, “this case requires more inquiry than that which was had in Gomberg….” Thus, some 38 years after Gomberg was decided, courts are still not sure what it requires, and are searching for the answers that this Court should provide.3 3Although this Court has not provided clear guidance to trial courts for conducting conflict hearings it has taken a different tack with regard to hearings conducted to determine whether a defendant should be permitted to represent him or herself pro se. In such instances, a court must undertake a “searching inquiry” designed to “insur[e] that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel” (People v. Providence, 2 N.Y.3d 579, 582 [2004]), and this inquiry must “encompass[] consideration of a defendant's pedigree, since such factors as age, level of education, occupation and previous exposure to the legal system may bear on a waiver's validity.” People v. Crampe, 17 N.Y.2d 469, 482 (N.Y. 2011) (citing cases). 9 Amici therefore believe – based both on the case law and their own extensive experience – that the present ad hoc system fails to adequately assure that conflicts are fully addressed and that waivers are entered knowingly and intelligently. Reliance on defense counsel’s ethical obligation to address these issues with their clients out of court is no substitute for a thorough inquiry by the trial court. Although we would like to believe that defense counsel consistently meet their obligation to explore conflicts with their clients, we know that compliance is neither uniform nor uniformly adequate. It is not uniform because there is no standardized inquiry attorneys must make of their clients to assure that the clients understand and knowingly waive (or not waive) a possible conflict. And it is not uniformly adequate because the same conflict that requires inquiry may compromise the attorney’s ability or willingness to fully address the conflict with the client. This is so, for example, where one attorney represents two or more clients and therefore has a financial stake in the conflicted multiple representation. Furthermore, reliance on counsel’s out-of-court conversations with the client results in a record that often is not adequate for appellate review. For these reasons, amici believe that this Court should take this opportunity to provide clear guidance for the conduct of conflict hearings, and we respectfully suggest that the procedure established by the Second Circuit in Curcio is a good model to emulate. 10 III. SECOND CIRCUIT PROCEDURE In United States v. Curcio, 680 F.2d 881 (2d Cir. 1982), the Circuit Court set forth the following procedure for ensuring that attorney conflict waivers are knowingly and intelligently made: [T]he trial court should (1) advise the defendant of his right to conflict-free representation, (2) instruct the defendant as to the dangers arising from the particular conflict, (3) permit the defendant to confer with his chosen counsel, (4) encourage the defendant to seek advice from independent counsel, (5) allow a reasonable time for the defendant to make his decision, and (6) determine, preferably by means of questions that are likely to be answered in narrative form, whether the defendant understands the risks and freely chooses to run them. United States v. Rodriguez, 968 F.2d 130, 138-39 (2d Cir. 1992) (citing Curcio, 680 F.2d at 888-90). The benefit of the Curcio protocol is that it provides a standardized set of guidelines that, if followed, assures that a defendant understands a conflict, has the opportunity to consult with independent counsel, considers his options in an unrushed atmosphere, and makes an informed decision whether or not to waive the conflict. The process is further enhanced by the Second Circuit’s direction that the trial court explore the defendant’s understanding of the conflict through questions that require a narrative answer, rather than through leading questions that elicit “yes” or “no” answers. Curcio, 680 F.2d at 889 (citing United States v. Garcia, 517 F.2d 272, 277-78 (5th Cir. 1975)). 11 Because it is clear and thorough, and creates a full record for appellate review, the Curcio protocol has been adopted, explicitly or implicitly, in numerous other state and federal jurisdictions. See Brief for Defendant-Appellant, dated November 30, 2012, at 17-19 & n.7 (citing cases). The Second Circuit has consistently followed Curcio, reversing or affirming convictions based on the lower courts’ compliance with Curcio and its progeny. The relative lack of cases finding conflict hearings – and therefore waivers – inadequate attests to the success of the Curcio decision in establishing an enforceable regime for addressing possible conflicts. Compare United States v. Graham, 493 Fed. Appx. 162 (2d Cir. 2012) (finding waiver sufficient after “lengthy” Curcio hearing); United States v. Buissereth, 638 F.3d 114, 117 (2d Cir. 2011) (citing Curcio hearing, court holds, “the record reveals that the District Court properly ensured that Buissereth was fully informed of the potential conflict of interest involving one of his attorneys and that Buissereth’s subsequent waiver of this issue was both ‘knowing’ and ‘intelligent.’”); and United States v. Basciano, 384 Fed. Appx. 28 (2d Cir. 2010) (“Although the colloquy was not designed to elicit the preferred “narrative statement” from the defendant [citing Curcio], Basciano's answers to the district court's inquiries, viewed in context, ‘leave no doubt that [he] understood his choice,’ and knowingly and intelligently waived any conflict….” [citation omitted]), with United States v. Williams, 372 12 F.3d 96, 109 (2d Cir. 2004) (defendant’s waiver of counsel not knowing because defendant not informed of the full extent of attorney’s conflict and “there is no evidence that Williams knew how these facts translate[d] into a conflict of interest); and United States v. Iorizzo, 786 F.2d 52, 59 (2d Cir. 1986) (conflict inquiry of defendant, conducted largely by defense counsel, did not satisfy Curcio “steps” and required reversal of certain counts). These holdings reflect the centrality of the trial court’s role in explaining the conflict to the defendant and assuring that any waiver is entered knowingly and intelligently. See United States v. Levy, 25 F.3d 146, 158 (2d Cir. 1994) (citing Rodriguez, 968 F.2d at 138-39; Williams v. Meachum, 948 F.2d 863, 866-67 (2d Cir.1991); Iorizzo, 786 F.2d at 59; Curcio, 680 F.2d at 888-90) (“In numerous cases, we have repeatedly emphasized the trial court's central role in apprising a defendant of his lawyer's conflicts in order to obtain an effective waiver[.]”). IV. APPLICATION TO CORTEZ TRIAL The need for this Court to establish the Curcio – or similar – protocol is illustrated by the trial court’s colloquy in the instant case, which was entirely inadequate to establish Cortez’s knowing and intelligent waiver of the very serious conflict under which defense counsel labored. The trial court’s two-page colloquy with Mr. Cortez shows that virtually none of Curcio’s required procedures were followed, resulting in a waiver in which this Court should place no confidence, and 13 which would unquestionably be rejected by the Second Circuit. See, e.g., Iorizzo, where the Second Circuit rejected a waiver after a conflict hearing dominated by defendant’s conflicted counsel: None of the [Curcio] steps was taken in the present case. The inquiry was conducted not by the court, but by the very attorney whose capacity to act in the defendant's interests was under challenge. The risks of forgoing relevant cross-examination of Tietz were not explained to the defendant, and the questions that were asked called only for a “yes” or “no” answer. Finally, Iorizzo had to decide on the spot, without time to consider the matter or to seek the advice of independent counsel, a possibility that was never mentioned to him. Iorizzo, therefore, did not validly waive his rights. Iorizzo, 786 F.2d at 59. Here, not only was the trial court’s inquiry in this case deficient, but many of the trial court’s comments likely had the effect of giving the defendant the erroneous impression that the conflict was not sufficiently serious to require new counsel. In particular: • The trial judge never advised Cortez of his right to conflict-free representation; • The trial judge never informed Cortez of the dangers arising from Ms. Florio’s particular conflict, except for weakly stating: “There is an argument that in some fashion constitutes a conflict of interest, that she might, for some reason, be more interested in her own matter than yours. I’m not quite sure I see it factually, frankly” (A520-21 (emphasis added)); 14 • The trial judge did not encourage Cortez to seek advice from independent counsel; • The trial judge did not allow reasonable time for Cortez to make his decision, and did not give him time to discuss the matter with Ms. Florio (A520-22); and • The trial judge did not determine whether Cortez understood the risks of proceeding with conflicted counsel and had freely chosen to accept them, much less pose questions likely to elicit narrative answers. All that the trial judge advised Cortez was that Ms. Florio’s pending matter was “particularly serious because if there were to be a conviction, she could lose her license to practice law,” and that “[t]here is an argument that in some fashion constitutes a conflict of interest, that she might, for some reason, be more interested in her own matter than yours. I’m not quite sure I see it factually, frankly” (A520-21 (emphasis added)). Furthermore, far from asking questions of Cortez in narrative form in order to elicit his real understanding of the risks involved and his choice to accept them, the trial judge did just the opposite: When Cortez began to describe his understanding and choice, the court cut him off, stating, “I don’t need you to describe that to me. Just so long as you understand [the seriousness of the matter pending against Ms. Florio] and you want to go along with that.” (A521). The transcript, therefore, reveals that the trial court did virtually nothing to ensure that Cortez understood - at the least - that his attorney had a strong incentive to ingratiate herself with the prosecutorial office that was simultaneously prosecuting both her and her client, much less did the trial court establish that Cortez knowingly and intentionally waived this conflict. Had the Curcio protocol been followed, Cortez may well have decided to obtain new counsel, whereas, had the Curcio inquiry elicited a knowing, intelligent and voluntary waiver of such conflict, there would have been no need for this appeal. CONCLUSION For the foregoing reasons, The National Association of Criminal Defense Lawyers and The New York State Association of Criminal Defense Lawyers respectfully urge this Court to adopt the standards and procedures for accepting attorney conflict waivers currently in force in the United States COUl1 of Appeals for the Second Circuit and numerous other state and federal courts. Dated: New York, New York September 20, 2013 Levitt & Kaizer 40 Fulton Street, 23 rd Floor New York, NY 10038 (212) 480-4000 15 16 JOEL B. RUDIN Vice Chair, Amicus Committee National Association of Criminal Defense Lawyers 200 W. 57th Street, Suite 900 New York, NY 10019 (212) 752-7600 RICHARD WILLSTATTER Amicus Committee New York State Association of Criminal Defense Lawyers 200 Mamaroneck Avenue, Suite 605 White Plains, New York 10601 (914) 948-5656 On the Brief: Richard Ware Levitt Dean M. Solomon