State v. A. B.
Decision Date | 18 November 2022 |
Docket Number | 20-0744 |
Parties | State of West Virginia v. A.B. |
Court | West Virginia Supreme Court |
WOOTON, Justice, dissenting, joined by Chief Justice Hutchison:
The horrific facts of the instant case make it difficult to look beyond the tragedy of baby G.B.'s death and the seeming lack of any defense on the part of the defendant/petitioner A.B., who was G.B.'s mother. Nonetheless, our overarching responsibility in any criminal case is to determine whether the petitioner was afforded his or her constitutional right to a fair trial, a right grounded in the due process protections of article III, section 14 of the West Virginia Constitution. See State v. Thompson, 240 W.Va. 406 411, 813 S.E.2d 59, 64 (2018) () .[1] In the instant case, it is an inescapable conclusion that the petitioner did not receive a fair trial because she was represented by counsel with an actual conflict of interest. Whether or not that conflict resulted in ineffective assistance of counsel - and after reviewing the trial transcript in this case one could easily make that argument - is immaterial, as prejudice should be presumed from the fact of the conflict. See Cole v. White 180 W.Va. 393, 376 S.E.2d 599 (W.Va. 1988) Accordingly, I respectfully dissent.
In syllabus point two of Cole, this Court held clearly and unequivocally that "[w]here a constitutional right to counsel exists under W.Va. Const. art. III, § 14, there is a correlative right to representation that is free from conflicts of interest." 180 W.Va. at 394, 376 S.E.2d at 600, Syl. Pt. 2. We further explained, in State ex rel. Yurish v. Faircloth, 243 W.Va. 537, 847 S.E.2d 810 (2020), that with respect to an accused's right to conflict-free representation, "[a] criminal defendant's 'right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial." Id. at 543, 847 S.E.2d at 816 (citing U.S. v. Cronic, 466 U.S. 648, 658 (1984)). The vast majority of jurisdictions - indeed, all of them, whether they rest their decisions on the Fourth Amendment, the Fourteenth Amendment, or their own state constitutions - agree with this essential principle of law. See, e.g., State v. Duffy, 486 P.3d 197, 202 (Ariz. 2021) () . (citations omitted); Hall v. Jackson, 854 S.E.2d 539, 545 (Ga. 2021) () (citations omitted); West v. People, 341 P.3d 520, 525-26 (Colo. 2015) () (citations omitted); State v. Galaviz, 291 P.3d 62, 68-69 (Kan. 2012) () ; State v. Patterson, 796 N.W.2d 516, 523 (Minn.Ct.App. 2011), aff'd, 812 N.W.2d 106 (Minn. 2012) ( ).
In its simplest formulation, "'[c]onflict-free representation' means 'assistance by an attorney whose allegiance to his client is not diluted by conflicting interests or inconsistent obligations.'" People v. Rhodes, 165 N.E.3d 556, 560 (Ill.App.Ct. 2020) (citation omitted). Such allegiance to an attorney's client - and the zealous advocacy to which the client is entitled - is consistent with our "institutional interest in protecting the truth-seeking function of the proceedings . . . the institutional legitimacy of judicial proceedings . . . [and] a concern to shield a defendant from having his defense compromised by an attorney with divided loyalties." State ex rel. Michael A.P. v. Miller, 207 W.Va. 114, 120, 529 S.E.2d 354, 360 (2000).
In the instant case, it is beyond dispute that the petitioner's counsel had an actual conflict of interest arising from her firm's prior representation of one of the State's key witnesses,[2] K.S., inasmuch as counsel had accessed confidential information from K.S.'s file that had significant impeachment value. Thus, there was nothing "theoretical or speculative" about counsel's conflict of interest that would require her to prove its existence,[3] let alone prove it by disclosing the confidential information and detailing exactly how it would be used to impeach the witness - a truly startling proposition - as the State demanded. Further, as noted by the Bar Office of Disciplinary Counsel when defense counsel consulted lawyer disciplinary counsel about the matter, the conflict was not waivable because K.S., who had formerly been represented by defense counsel's office, was a juvenile.[4]
Succinctly stated, where an attorney represents to a court that he or she has an actual conflict of interest, the court must allow the attorney to withdraw from the representation; anything less is unfair to the attorney's client, whose right to a fair trial is at stake. Significantly, in this regard, the vast majority of our precedents which suggest that the existence of a conflict must be proved are wholly inapposite to the instant case because they involve an attempt to disqualify an opponent's counsel. See, e.g., Yurish, 243 W.Va. at 539, 847 S.E.2d at 812 ( ); State ex rel. Verizon W.Va., Inc. v. Matish, 230 W.Va. 489, 740 S.E.2d 84 (2013) ( ); State ex rel. Blake v. Hatcher, 218 W.Va. 407, 624 S.E.2d 844 (2005) (same); State ex rel. Youngblood v. Sanders, 212 W.Va. 885, 575 S.E.2d 864 (2002) (same); Michael A.P., 207 W.Va. at 116, 529 S.E.2d at 357 (prosecutor's attempt to disqualify juvenile's counsel); Garlow v. Zakaib, 186 W.Va. 457, 413 S.E.2d 112 (1991) ( ). In such a situation, I agree that one side should not be permitted to gain a tactical advantage by "taking out" the other side's lawyer - a lawyer whose client has specifically chosen him or her as counsel - without proof that removal of the lawyer is required under the West Virginia Rules of Professional Conduct.
There are also cases in which a disgruntled litigant alleges, after the fact, that his or her counsel had a conflict of interest and accordingly a new trial is warranted. See, e.g., State v. Jako, 245 W.Va. 625, 638-39, 862 S.E.2d 474, 487-88 (2021) ( ); Postelwaite, 158 W.Va. at 489, 212 S.E.2d at 75 () . Again, I agree that where a litigant seeks to overturn a judgment on the ground - belatedly asserted - that his or her counsel had a conflict of interest, it is entirely reasonable to require that the existence of the conflict be proved.
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