Young v. State

Decision Date29 September 1983
Docket NumberNo. 153,153
Citation465 A.2d 1149,297 Md. 286
PartiesClarence Leo YOUNG v. STATE of Maryland.
CourtMaryland Court of Appeals

Gary W. Christopher, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Valerie V. Cloutier, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

MURPHY, Chief Judge.

The issue before us is whether all of the prosecutors in a county State's Attorney's office are disqualified from prosecuting a defendant in a criminal case where one of their number, prior to appointment as an Assistant State's Attorney, acted as counsel to the defendant.

Clarence Leo Young was indicted in the Circuit Court for St. Mary's County for the theft of goods worth over $500 in violation of Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 342. Richard D. Fritz, then an Assistant Public Defender, was assigned to represent Young. Discussions between Young and Fritz concerned "everything [Young] knew about the case." Before the case was tried, Fritz was appointed Assistant State's Attorney for St. Mary's County; accordingly, his appearance for Young was stricken, and another Public Defender was assigned to represent the defendant.

Young filed a motion to dismiss the charges against him, alleging that he "imparted to Mr. Fritz various information regarding his charges in a confidential relationship protected by the attorney-client privilege" and that prosecution of Young "by Richard D. Fritz or any of his associates in the St. Mary's County State's Attorney's Office constitutes a conflict of interest with the prosecution of [Young] in these criminal proceedings." Young prayed that the court "[a]ppoint an Assistant Counsel for the State for any further proceedings by the State of Maryland against the defendant" and "[e]njoin the State's Attorney and Assistant State Attorneys from any communication with any parties, including an Assistant Counsel for [the] State, regarding these or subsequent proceedings." At a hearing on the motion, the prosecutor assigned to try the case stated that Fritz had "no contact at all in the preparation of this case" and that "no prejudice towards Mr. Young based on Mr. Fritz's association with the State's Attorney's Office" was demonstrated. The trial judge (Mattingly, J.) held that "in view of the proffer of [the prosecutor] that he has not discussed this case with Mr. Fritz ... the motion will be denied" and instructed the prosecutor not to discuss the case with Fritz.

Upon Young's conviction, an appeal was taken to the Court of Special Appeals. That court affirmed the conviction, refusing to adopt the per se rule urged by Young, which mandates disqualification of an entire State's Attorney's office under the factual circumstances present in this case. Young v. State, 52 Md.App. 550, 450 A.2d 1323 (1982). The court reasoned that

"[s]hould we adopt the per se rule urged by Young, considerable difficulties could arise in the prosecution of any case in which a former defense counsel has later joined the prosecutorial staff, despite lack of participation in the prosecution by the former defense counsel, and despite lack of any disclosure of confidential information." Id. at 553, 450 A.2d 1323.

The court concluded:

"Weighing the public interest in prompt and effective prosecution of criminal cases against the also important public interest of confidence in the impartiality of the prosecution, ... [the] possibility of the mere appearance of impropriety, such as existed here, does not mandate appointment of assistant counsel for the State; cf. Lykins v. State, supra, 288 Md. at 85, 415 A.2d [1113] at 1119. Instead, when it appears that former defense counsel is presently employed in the prosecutor's office the trial court should make inquiry as to whether the former defense counsel has in any manner participated in the pending prosecution, and as to whether he has revealed to the prosecutors any information obtained from his erstwhile client; see Wiener v State, 290 Md. 425, 434-439, 430 A.2d 588, 594-596 (1981)." Id. at 554-55, 450 A.2d 1323.

We granted certiorari to consider the important issue of first impression presented by the case.

I

Before us, Young maintains that "when his appointed attorney, to whom he had divulged in confidence 'everything [Appellant] knew about the case,' became a member of the prosecution staff of the St. Mary's County State's Attorney's Office, that office should have been barred from further prosecution of the case." Young contends that this per se rule of disqualification "should follow from the very close watch which this Court has maintained generally over the consequences of an attorney changing sides in the course of a particular litigation." He urges that our concern "for the integrity of the Maryland bar and for public confidence in the criminal justice system should require resort in circumstances such as this to supplantation of the local prosecution staff."

The State contends that under Maryland law the question of the disqualification of a prosecuting attorney is a discretionary matter for the trial judge. It claims, therefore, that a per se vicarious disqualification of an entire State's Attorney's staff is not the rule in this State. While recognizing the principle "that a lawyer who represents a client in litigation should not thereafter represent an adversary in the same case," the State argues that "a logical basis as well as compelling practical reasons [exists] for distinguishing the practice of private law firms from that of the state's attorney's office." Among the reasons cited by the State for disfavoring vicarious disqualification are the resulting unreasonable impairment of the functioning of the State's Attorney's office and the fact that the prosecutor's duty is to seek justice, which thereby reduces the chance that prosecutors will engage in unethical behavior.

II

The question of the recusal of an entire prosecutorial office from trying a criminal case, based on one member's prior representation of the defendant, has been considered by a number of our sister states. Some jurisdictions follow a per se rule of disqualification. State v. Latigue, 108 Ariz. 521, 502 P.2d 1340 (1972), involved the prosecution of a defendant by a County Attorney's office whose Chief Deputy had represented the defendant in the same case prior to taking a position in the prosecutor's office. Despite the fact that the Chief Deputy had taken no part in the prosecution, the Supreme Court of Arizona refused to permit any other member of the office to prosecute the case. The court reasoned that the Chief Deputy had "supervisory powers and duties over the assistant county attorney who is prosecuting," and that the staff had "frequent meetings to discuss cases, and even without meetings, staff members often talk about their cases with one another." 502 P.2d at 1342. The court stated further that even if the attorney involved were not the Chief Deputy, the "office would have to divorce itself from the prosecution in this case, because even the appearance of unfairness cannot be permitted." Id.

In People v. Shinkle, 51 N.Y.2d 417, 415 N.E.2d 909, 434 N.Y.S.2d 918 (1980), the Court of Appeals of New York vacated a defendant's conviction because the attorney who had represented him in the beginning stages of the case subsequently joined the prosecutor's office and remained there during the course of the trial. The court so held, despite the fact that "means were designed and scrupulously pursued to insulate" the defendant's former counsel from prosecution of the case. 434 N.Y.S.2d at 920, 415 N.E.2d at 910. The court held:

"The fact that the attorney who had initially represented defendant and participated actively in the preparation of his defense was chief assistant in the office of the prosecutor in the months preceding and during defendant's trial inescapably gave both defendant and the public the unmistakable appearance of impropriety and created the continuing opportunity for abuse of confidences entrusted to the attorney during the months of his active representation of defendant." Id.

While recognizing that application of a per se rule of disqualification would impede the transfer of attorneys between the prosecutor's and public defender's offices, the court stated:

"This circumstance ... affords no basis to deny defendants the right to both the fact and appearance of unswerving and exclusive loyalty on the part of attorneys who represent them." Id., 434 N.Y.S.2d at 921, 415 N.E.2d at 911.

In State v. Chambers, 86 N.M. 383, 524 P.2d 999 (Ct.App.), cert. denied, 86 N.M. 372, 524 P.2d 988 (1974), an attorney who represented the defendant in a criminal case which ended in a mistrial was appointed as an assistant district attorney prior to the second trial. The attorney withdrew from representing the defendant and was ordered by the trial court not to "associate as counsel for the State." 524 P.2d at 1000. The trial court also denied the defendant's motion to disqualify the district attorney's office from prosecuting the case because it

"saw nothing in any ground advanced that would cause [it] to feel that there is any impropriety on the part of the district attorney's office to continue in this case, nor anything that is prejudicial to the rights of the defendant." Id.

The Court of Appeals of New Mexico reversed the denial of defendant's motion to disqualify the office, believing itself compelled to so hold by "the fair and impartial administration of justice." Id. 524 P.2d at 1004. The per se disqualification rule was also adopted in State v. Cooper, 63 Ohio Misc. 1, 409 N.E.2d 1070 (1980), and People v. Stevens, Colo.App., 642 P.2d 39 (1981), cert. denied (1982). Cf. Love v. Superior Court, 111 Cal.App.3d 367, 374, 168 Cal.Rptr 577 (19...

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