Ryan v. Dist. Ct.
| Decision Date | 11 October 2007 |
| Docket Number | No. 49114.,49114. |
| Citation | 168 P.3d 703 |
| Parties | Kelly RYAN, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, In and For the COUNTY OF CLARK, and The Honorable Jackie Glass, District Judge, Respondents, and The State of Nevada, Real Party in Interest. |
| Court | Nevada Supreme Court |
Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, and Robert J. Daskas, Deputy District Attorney, Clark County, for Real Party in Interest.
BEFORE THE COURT EN BANC.
This is an original petition for a writ of mandamus challenging the district court's order denying petitioner Kelly Ryan's motion to substitute counsel. Kelly Ryan and her husband Craig Titus are accused of brutally murdering their roommate, stuffing her body in the trunk of their Jaguar, and setting the car on fire to cover up the alleged crimes.
Ryan seeks to have Michael Cristalli of Cristalli & Saggese represent her at trial. Cristalli's partner, Marc Saggese, already represents codefendant Titus, raising the specter of dual representation and the accompanying potential for conflicts of interest at trial.
The primary issue raised in the petition is whether the district court manifestly or arbitrarily and capriciously abused its discretion when it refused to substitute in Michael Cristalli as Ryan's counsel of choice. We grant Ryan's petition and issue a writ directing the district court to canvass both defendants to determine whether they knowingly, intelligently, and voluntarily waive their right to conflict-free representation. In doing so, we conclude that a court must honor a criminal defendant's voluntary, knowing, and intelligent waiver of conflict-free representation so long as the conflicted representation will not interfere with the administration of justice. We also conclude that for a waiver of conflict-free representation to be effective, the defendant must also specifically waive the right to a mistrial as a result of her attorney's potential or actual conflict of interest depriving her of her right to effective assistance of counsel arising from the dual representation. Finally, we conclude that before engaging in dual representation, the attorney must advise the criminal defendant of her right to consult with independent counsel to review the potential conflicts of interest posed by the dual representation. If the defendant chooses not to seek independent counsel, then the defendant must expressly waive her right to do so before the defendant's waiver of conflict-free representation can be valid.
In March 2006, the State obtained an indictment against Ryan and Titus, charging both defendants with the crimes of: (1) murder with the use of a deadly weapon, (2) kidnapping, (3) accessory to murder, and (4) third-degree arson. The charges related to the brutal murder of their roommate, Melissa Ann James. According to the State, Ryan and Titus may have implicated themselves and each other in the murder.
In September 2006, Ryan dismissed her counsel of record and substituted in Gregory Denue, Esq. The same month, Titus dismissed his lawyers and retained Marc Saggese, Esq., of Cristalli & Saggese. In February 2007, Denue filed a motion to substitute counsel, wherein Denue agreed to substitute in Michael Cristalli of Cristalli & Saggese as Ryan's defense counsel. Cristalli filed a memorandum of points and authorities in support of his firm's dual representation of Ryan and Titus. Cristalli relied on the dissenting opinion in Wheat v. United States1 as support. Cristalli contended that in certain circumstances the trial court has discretion to allow dual or multiple representation, particularly where there are no apparent conflicts and the codefendants waive conflict-free representation.
The State filed an opposing memorandum of points and authorities. In summary, the State argued that (1) there was an actual conflict of interest because Ryan and Titus implicated themselves and each other in the crimes charged, (2) it would be impossible to predict what other potential conflicts of interest may arise during trial, (3) creating an artificial wall of conflict-free representation between Ryan and Titus would not remedy the conflict of interest, (4) any waiver by Ryan or Titus was likely invalid, and (5) Cristalli & Saggese's dual representation would create a built-in ineffective-assistance-of-counsel issue.
The district court held a hearing on Ryan's motion for substitution. Cristalli explained that once he learned that Ryan sought to hire him as counsel, he immediately explained to her the "particulars" of his firm representing both defendants in the case.
Cristalli also submitted to the court a conflict-waiver letter drafted by Cristalli & Saggese and signed by both Ryan and Titus. The letter states, in pertinent part, that (1) neither defendant has implicated the other in the crimes charged; (2) after a thorough review of discovery and lengthy discussions with multiple counsel, neither defendant intends to plead guilty or cooperate with the State; (3) a joint defense agreement has been prepared to be executed by both defendants and both attorneys;2 (4) either defendant's decision to cooperate with the State might change the firm's ability to continue representation; (5) in the event of a serious conflict or disagreement, the firm would be required to withdraw and represent neither defendant; and (6) the firm's withdrawal would be "inconvenient and potentially adverse to each [defendant]," but the defendants understood that the "present benefits of dual representation outweigh this contingent problem."
At the hearing, Cristalli argued that a future conflict could only arise if either Ryan or Titus decided to cooperate with the State, which he believed would not occur although he acknowledged that "theoretically, anything could happen." Cristalli argued that there was no conflict because there was a joint defense, but he stated, At the conclusion of the hearing, the district court indicated that it would appoint advisory counsel to speak with Ryan regarding the potential conflicts of interest.
A few days later, the district court held another hearing on the motion for substitution. It indicated that it had appointed attorney William B. Terry to speak with Ryan about the dual representation, that Terry had spent a significant amount of time with Ryan, and that Terry had no meaningful dialogue with Ryan about the dual representation because it appeared that her mind was already made up.
Denue indicated that he had been approached by both Titus's mother and Titus's attorney and had been asked to sign a joint defense agreement.3 Denue stated that he had refused to sign a joint defense agreement because he thought he would be harming his client if he did so.
The State contended that the Sixth Amendment guarantees an effective advocate, not necessarily an advocate of one's choice. It argued that an inherent problem with dual representation is that the codefendants may be precluded from asserting their best defenses. The State criticized Cristalli's suggestion that he would deal with a conflict when it arises, because both Cristalli and Saggese would have to withdraw at trial and such a conflict would likely result in a mistrial. The State noted that because Ryan's statements indicated that Titus was involved in actually lighting the car on fire, Ryan's best defense would be that Titus committed the arson, not her.
The district court then canvassed Ryan on the ramifications of dual representation:
The district court then canvassed Titus on whether he understood the ramifications of dual representation:
THE COURT: All right. Mr. Titus, now I get to ask you a question. You've just heard the same questions that I spoke to Ms. Ryan about.
And you've been provided a copy of the February 22nd affiliated-representation letter as well as the February 22nd joint-defense agreement; is that correct?
The district court then stated that it had reviewed the briefs, the Nevada Rules of Professional Conduct, and the Wheat case. The district court noted that it strongly believed in an individual's right to choose their own counsel, but that the district court had an "obligation to make sure that this case goes to trial, that there is effective and fair representation of all parties, and, hopefully, we have an error-free record, so that we only have to do this one time."
The district court then quoted a few paragraphs from Wheat, which provided that district courts had broad...
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