State v. A. B.

Decision Date18 November 2022
Docket Number20-0744
PartiesState of West Virginia v. A.B.
CourtWest 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) ("A fair trial in a fair tribunal is a basic requirement of due process. . . . This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies.").[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) ("The Sixth Amendment guarantees an accused the right to assistance of counsel in all criminal proceedings. U.S. Const. amend. VI. Among counsel's 'basic duties' is 'to avoid conflicts of interest.'") (citations omitted); Hall v. Jackson, 854 S.E.2d 539, 545 (Ga. 2021) ("Jackson need not show actual prejudice, that is, a reasonable probability that the outcome of his motion for new trial or direct appeal would have been more favorable to him if Fleischman had not labored under a conflict of interest. Instead, prejudice is presumed if Jackson 'demonstrate[s] that the conflict of interest existed and that it 'significantly affected [Fleischman's] performance.'") (citations omitted); West v. People, 341 P.3d 520, 525-26 (Colo. 2015) ("Because of the crucial role of impartial and zealous counsel in securing due process, the right to effective assistance of counsel includes the right to conflict-free counsel. . . . 'That a person who happens to be a lawyer is present at trial alongside the accused ... is not enough to satisfy the constitutional command.'") (citations omitted); State v. Galaviz, 291 P.3d 62, 68-69 (Kan. 2012) ("a Kansas criminal defendant has a constitutional right to effective assistance of counsel in a probation revocation proceeding under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. This right includes the right to conflict-free counsel. Even though the source of this right is not the Sixth Amendment to the United States Constitution, cases applying the effective assistance of counsel guarantee of the Sixth Amendment can be used to analyze Fourteenth Amendment ineffective assistance of counsel claims because the governing principles and policies are coextensive."); State v. Patterson, 796 N.W.2d 516, 523 (Minn.Ct.App. 2011), aff'd, 812 N.W.2d 106 (Minn. 2012) (even where defendant waives a conflict of interest, "in cases involving successive representation, disqualification may be required if the defense lawyer previously represented a state's witness by assisting that witness in presenting testimony before a tribunal investigating the subject matter of the current criminal charges against the defendant, and the defense lawyer's obligation to the defendant at trial requires the lawyer to discredit the state's witness's trial testimony that is substantially related to the witness's former testimony.").

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's attempt to disqualify defense counsel); State ex rel. Verizon W.Va., Inc. v. Matish, 230 W.Va. 489, 740 S.E.2d 84 (2013) (defense counsel's attempt to disqualify plaintiff's counsel); 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) (defense counsel's attempt to disqualify plaintiff's counsel). 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) (recognizing that a criminal defendant has a right to representation free from conflict of interest but finding that the record was insufficient to determine whether defense counsel in fact had a conflict); Postelwaite, 158 W.Va. at 489, 212 S.E.2d at 75 ("the evidence in this case, we believe, clearly indicates a decisive and informed choice to unify the defense against the prosecution along the defense lines of credibility and veracity, giving no quarter to admission, defection, or consortium. Under such circumstances, therefore, it is difficult if not impossible to perceive how, other than by conjecture or surmise, defense counsel, by the dual representation, slighted the defense of one defendant in favor of the other."). 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.

In this case, however, no one was trying to gain a strategic advantage by claiming that someone else's lawyer, or a lawyer who had committed the cardinal sin of losing at trial had a conflict of interest. Here, defense counsel consulted the ethics rules consulted lawyer disciplinary counsel, and determined that she had a conflict of interest which ethically required her to withdraw from the representation of her client. The State's demand (to which the circuit court acquiesced) that she prove the existence of the conflict impugned her integrity and...

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