COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia
HERBERT W. LUX, JR.
OPINION BY
v. Record No. 1304-96-2 JUDGE LARRY G. ELDER
APRIL 22, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
H. Selwyn Smith, Judge Designate
Muriel-Theresa Pitney, Senior Assistant
Public Defender, for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Herbert W. Lux, Jr. (appellant) appeals an order of the
trial court revoking his suspended jail sentence from a previous
conviction. He contends that the trial court erred when it
denied his motion to disqualify the Commonwealth's attorney. For
the reasons that follow, we reverse and remand.
I.
FACTS
In January, 1994, a jury convicted appellant of "grand
larceny by false pretenses" and "grand larceny -- mechanic's lien
fraud" and acquitted him of "construction lien fraud." Appellant
represented himself pro se at his trial but received assistance
from a public defender assigned to his case. After he was
convicted but before he was sentenced, appellant dismissed the
public defender as his counsel. In March, 1994, the trial court
sentenced appellant to nine months in jail but suspended this
sentence on the condition that appellant pay restitution to the
victims of his larcenies. Appellant appealed his convictions to
both this Court and the Virginia Supreme Court, and his petitions
were denied. Appellant then filed notice of his intent to appeal
to the United States Supreme Court.
On July 1, 1995, the public defender who assisted appellant
at his trial was hired to work in the Commonwealth's Attorney's
office. The office purportedly established a "chinese wall"
procedure that prohibited the public defender from participating
in any of the proceedings against appellant. The Commonwealth's
attorney made this assertion during his argument at the hearing
on appellant's motion to disqualify but offered no evidence
proving the existence or nature of the screening procedures
utilized.
On January 4, 1996, before the time had expired for the
filing of appellant's appeal to the United States Supreme Court,
the Commonwealth moved the trial court to revoke appellant's
suspended jail sentence. At a show cause hearing, the trial
court found that appellant had violated the conditions of his
suspended sentence by not paying restitution to his victims. The
trial court continued the matter for sentencing at a date after
the conclusion of appellant's appeal to the United States Supreme
Court.
On January 11, 1996, appellant, acting pro se, filed a civil
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action in federal court against the Commonwealth's attorney and
one of the victims of his larcenies. In his civil complaint,
appellant alleged that the Commonwealth's attorney and the victim
had violated 42 U.S.C. § 1983 by conspiring to maliciously
prosecute him for construction lien fraud, the charge of which he
was acquitted at his trial in 1994.
On January 25, 1996, the time period expired for appellant
to file his petition for a writ of certiorari to the United
States Supreme Court pertaining to his 1994 convictions.
Appellant had failed to perfect his appeal.
On April 15, 1996, while appellant's federal civil action
was pending, appellant moved the trial court to disqualify the
Commonwealth's attorney and appoint a special prosecutor.
Appellant argued that the Commonwealth's attorney's status as a
party in civil litigation involving appellant and the employment
by the Commonwealth's Attorney's office of appellant's former
trial counsel created an unconstitutional conflict of interest.
The trial court denied appellant's motion and continued the
revocation proceeding until June 5. On June 5, the trial court
concluded that appellant was still in contempt of its restitution
order and ordered him to serve the remaining seven months of his
jail sentence.
II.
DISQUALIFICATION OF COMMONWEALTH'S ATTORNEY
Appellant contends that the trial court committed reversible
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error when it denied his motion to disqualify the Commonwealth's
attorney. Appellant argues that the Commonwealth's attorney was
disqualified by virtue of his personal interest in appellant's
federal civil action and by the conflicting interest imputed to
him by the employment in the Commonwealth's Attorney's office of
appellant's former counsel. We hold that appellant's § 1983
action against the Commonwealth's attorney did not create an
unconstitutional conflict of interest but that the trial court
abused its discretion when, under the circumstances presented, it
failed to disqualify the Commonwealth's attorney based upon the
Commonwealth's Attorney's employment of appellant's former
counsel.
A.
Prosecuting attorneys have broad discretionary power over
criminal defendants at several stages of the criminal process.
See Wayte v. United States, 470 U.S. 598, 607, 105 S. Ct. 1524,
1530, 84 L.Ed.2d 547 (1985). Within limits, prosecutors decide
whether or not to prosecute an individual, determine the exact
charges for which an individual will be tried, and, if the
individual is convicted, recommend the magnitude and nature of
the individual's sentence. Id. (citing Bordenkircher v. Hayes,
434 U.S. 357, 364, 98 S. Ct. 663, 668, 54 L.Ed.2d 604 (1978)).
"There is no doubt that the breadth of discretion that our
country's legal system vests in prosecuting attorneys carries
with it the potential for individual and institutional abuse."
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Bordenkircher, 434 U.S. at 365, 98 S. Ct. at 669.
In order to protect prosecutorial impartiality, a trial
court has the power to disqualify a Commonwealth's attorney from
proceeding with a particular criminal prosecution if the trial
court determines that the Commonwealth's attorney has an interest
pertinent to a defendant's case that may conflict with the
Commonwealth's attorney's official duties. See People v.
Hamilton, 46 Cal.3d 123, 141, 249 Cal.Rptr. 320, 328, 756 P.2d
1348, 1357 (Cal. 1988), cert. denied, 489 U.S. 1040, 109 S. Ct.
1176, 103 L.Ed.2d 238 (1989); 63A Am.Jur.2d Prosecuting Attorneys
§ 30-32 (1984); 27 C.J.S. District and Prosecuting Attorneys
§ 12(6) (1959); see generally T.J. Griffin, Disqualification of
Prosecuting Attorney on Account of Relationship with Accused, 31
A.L.R.3d 953 (1970). A Commonwealth's attorney's duties include
the impartial prosecution of those accused of crime and the duty
to see that an accused is accorded a fair trial. See
Commonwealth v. Kilgore, 15 Va. App. 684, 693, 426 S.E.2d 837,
842 (1993); Cantrell v. Commonwealth, 229 Va. 387, 393, 329
S.E.2d 22, 26 (1985).
Criminal defendants are afforded constitutional protection
against prosecutors who are partial to interests beyond their
official duties. The due process rights of a criminal defendant
under both the Virginia and United States Constitutions are
violated when the defendant is prosecuted by a Commonwealth's
attorney who has a conflict of interest relevant to the
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defendant's case. 1 See Cantrell, 229 Va. at 394, 329 S.E.2d at
26-27 (holding that "[a] conflict of interest on the part of the
prosecution" violates the Due Process Clause of the Virginia
Constitution); Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir.
1967) (holding that an attempt by a prosecuting attorney to serve
two masters violates the Due Process Clause of the Fourteenth
Amendment). The specific due process right implicated when a
Commonwealth's attorney has a conflict of interest is the
defendant's right to the "fair minded exercise of the
prosecutor's discretion." Ganger, 379 F.2d at 712.
The decision whether to disqualify a Commonwealth's attorney
in a particular case is committed to the sound discretion of the
trial court. Hamilton, 46 Cal.3d at 140, 249 Cal.Rptr. at 328,
756 P.2d at 1356. The issue generally arises in at least two
situations:
[t]he first is where the prosecutor has had
some attorney-client relationship with the
parties involved whereby he obtained
privileged information that may be adverse to
the defendant's interest in regard to the
pending criminal charges. . . . A second
[situation] is where the prosecutor has some
direct personal interest arising from
animosity, a financial interest, kinship, or
close friendship such that his objectivity
and impartiality are called into question.
Nicholas v. Sammons, 178 W.Va. 631, 633, 363 S.E.2d 516, 518
1
Due process protections apply to post-conviction
proceedings to revoke a defendant's suspended sentence. See
Copeland v. Commonwealth, 14 Va. App. 754, 756, 419 S.E.2d 294,
295 (1992).
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(1987). A trial court should grant a criminal defendant's motion
to disqualify under circumstances where it can be reasonably
inferred that the Commonwealth's attorney has either a personal
interest in the outcome of the prosecution or an interest arising
from his or her former representation of the defendant that
conflicts with the fair minded exercise of his or her
prosecutorial discretion. See Kilgore, 15 Va. App. at 694-95,
426 S.E.2d at 843; State v. Knight, 168 W.Va. 615, 625, 285
S.E.2d 401, 407 (1981); Ganger, 379 F.2d at 712-13, 714. 2
We hold that the trial court did not abuse its discretion
when it determined that appellant's § 1983 action against the
Commonwealth's attorney failed to warrant the Commonwealth's
attorney's disqualification. At the time appellant filed the
civil action on January 11, the revocation proceeding had already
been initiated and partially litigated. Thus, the danger posed
by appellant's lawsuit was the possible conflict between the
Commonwealth's attorney's interest in avoiding financial loss and
2
Virginia courts have identified three scenarios in which
a Commonwealth's attorney has an unconstitutional conflict of
interest precluding his prosecution of a criminal defendant. In
Cantrell, the Virginia Supreme Court held that a special
Commonwealth's attorney unconstitutionally attempts to serve two
masters when he or she prosecutes a criminal defendant after
undertaking representation of the crime victim in a civil action
against the defendant. 229 Va. at 394, 329 S.E.2d at 26. In
Kilgore, we held that a Commonwealth's attorney violates a
defendant's due process rights if he or she participates in the
defendant's prosecution after either (1) representing the
defendant in the same matter or (2) working as a member of a firm
in which a partner represented the accused in the same matter.
15 Va. App. at 694-95, 426 S.E.2d at 842-43.
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damage to his professional reputation and the impartial exercise
of his discretion in recommending a sentence.
We cannot say that the trial court abused its discretion
because appellant's § 1983 action did not create an actual
conflict of interest for the Commonwealth's attorney. The
Commonwealth's attorney was absolutely immune from any liability
for the actions complained of by appellant in his civil suit. In
suits against executive officials under § 1983, these officials
are afforded either qualified immunity or absolute immunity. See
Buckley v. Fitzsimmons, U.S. , , 113 S. Ct. 2006, 2613,
125 L.Ed.2d 209 (1993). Under qualified immunity,
government officials are not subject to
damages liability for the performance of
their discretionary functions when "their
conduct does not violate clearly established
statutory or constitutional rights of which a
reasonable person would have known."
Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.
2727, 2738, 73 L.Ed.2d 396 (1982)). With absolute immunity,
government officials have "absolute protection from damages
liability." Id. While state prosecutors have qualified immunity
from liability under § 1983 for actions performed in their
administrative and investigative functions, id. at , 113
S. Ct. at 2615-16, 3 they enjoy absolute immunity from monetary
3
Administrative and investigative functions for which
prosecuting attorneys are entitled to qualified immunity include
giving legal advice to the police, making statements to the
media, and engaging in the preliminary investigation of an
unsolved crime. See Burns v. Reed, 500 U.S. 478, 496, 111 S. Ct.
1934, 1944-45, 114 L.Ed.2d 547 (1991) (legal advice to police);
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judgments for actions "intimately associated with the judicial
phase of the criminal process," including "initiating a
prosecution and . . . presenting the state's case." Imblar v.
Pachtman, 424 U.S. 409, 430-31, 96 S. Ct. 984, 995, 47 L.Ed.2d
128 (1976). This absolute immunity includes a prosecutor's
involvement in an alleged conspiracy to initiate a malicious
prosecution. See Elder v. Athens-Clarke Cty., Ga. through
O'Looney, 54 F.3d 694, 695 (11th Cir. 1995); Rose v. Bartle, 871
F.2d 331, 347 (3rd Cir. 1989). Because the dismissal of the
§ 1983 action on immunity grounds was assured, the Commonwealth's
attorney had no personal interest in the lawsuit that might
interfere with his decision to recommend either a partial or
total revocation of appellant's suspended jail sentence.
B.
Appellant contends that the employment of his former counsel
by the Commonwealth's Attorney's office also disqualified the
Commonwealth's attorney from prosecuting the motion to revoke
appellant's suspended sentence. Appellant argues that the former
public defender was disqualified because he represented appellant
in the same matter and that this conflict of interest should be
imputed to other members of the Commonwealth's Attorney's office.
We agree because the Commonwealth failed to prove that it
utilized effective screening procedures to prevent improper
Buckley, U.S. at , 113 S. Ct. at 2616-17, 2617
(investigating unsolved crimes and making statements to media).
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contact between appellant's former counsel and the Commonwealth's
attorney handling the revocation proceeding.
Appellant presents an issue of first impression in Virginia:
whether an entire Commonwealth's Attorney's office is
disqualified from prosecuting a case against a defendant when an
attorney who previously counseled the defendant in a related
matter joins the office. It is well established that "a due
process violation occurs when, subsequent to the establishment of
an attorney-client relationship, the attorney participates in the
prosecution of his former client." Kilgore, 15 Va. App. at 694,
426 S.E.2d at 843; see also Thompson v. State, 246 So.2d 760, 763
(Fla. 1971). A different question is presented, however, when
the defendant's lawyer-turned-prosecutor has knowledge of
relevant client confidences but is screened from participating in
the defendant's prosecution.
Courts in other jurisdictions are divided as to whether the
presence of a criminal defendant's former counsel in a
prosecutor's office automatically precludes the entire office
from proceeding against the defendant in a related matter. The
majority of jurisdictions do not per se disqualify the entire
prosecutor's office solely because one member of the staff had
represented the defendant in a related matter. Instead, these
jurisdictions permit another prosecutor to handle the case if the
defendant's former counsel has been effectively screened from
participating in the prosecution. See State v. Pennington, 851
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P.2d 494, 498 (N.M. 1993), cert. denied, 852 P.2d 682 (citing
cases in 20 states and 2 federal circuits that follow the
majority rule). These courts hold that a prosecutor's public
duty to seek justice rather than profits in combination with an
effective "chinese wall" provides an adequate safeguard against
the improper disclosure of a defendant's confidences. See id. at
498-500; In re Grand Jury 91-1, 790 F.Supp. 109, 112 (E.D.Va.
1992) (citing United States v. Caggiano, 660 F.2d 184, 191 (6th
Cir. 1981)). These courts also hold that a per se rule results
in the unnecessary disqualification of prosecutors in cases where
the risk of a breach of confidentiality is slight and inhibits
the ability of prosecuting attorney's offices to hire the best
possible employees. Pennington, 851 P.2d at 499; State v.
Camacho, 406 S.E.2d 868, 874 (N.C. 1991).
Jurisdictions that follow the minority rule prohibit
screening to remedy imputed conflicts and per se disqualify the
entire prosecutor's office, regardless of the good faith intent
and motivation of the prosecutors involved. See State v.
Latigue, 108 Ariz. 521, 522-23, 502 P.2d 1340, 1341-42 (1972);
Younger v. Superior Court, 77 Cal.App.3d. 892, 896, 144 Cal.Rptr.
34, 37 (Cal. Ct. App. 1978); People v. Stevens, 642 P.2d 39, 41
(Colo. Ct. App. 1981); State v. Cooper, 63 Ohio. Misc. 1, 6-7,
409 N.E.2d 1070, 1073 (1980); People v. Shinkle, 51 N.Y.2d 417,
420-21, 434 N.Y.S.2d 918, 920, 415 N.E.2d 909, 910-11 (1980).
Courts in these jurisdictions hold that a per se rule is required
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to preserve public confidence in the criminal justice system by
eliminating any appearance of impropriety. See Stevens, 642 P.2d
at 41 (citing Shinkle, 51 N.Y.2d at 420-21, 434 N.Y.S.2d at 920,
415 N.E.2d at 910).
We hold that the employment of a criminal defendant's former
counsel in a Commonwealth's Attorney's office does not per se
disqualify the entire office from handling the prosecution of the
defendant's case in a related matter. Instead, whether the
apparent conflict of interest created when a criminal defendant's
former counsel joins a Commonwealth's Attorney's office justifies
the disqualification of other members of the office is a matter
committed to the exercise of discretion by the trial court.
Pennington, 851 P.2d at 500. We believe that a more flexible,
case-by-case approach enables a trial court to protect a criminal
defendant from the due process concern at issue -- the disclosure
of confidences revealed to his attorney during the
attorney-client relationship -- while avoiding unnecessary
disqualifications and other disruptive effects that a per se rule
would have on Commonwealth's Attorney's offices.
We are mindful of the opinion of the Virginia State Bar's
Standing Committee on Legal Ethics and Unauthorized Practice of
Law that holds that "chinese walls" or other screening procedures
do not cure imputed conflicts within a Commonwealth's Attorney's
office. See Virginia State Bar Standing Committee on Legal
Ethics and Unauthorized Practice of Law, Opinion No. 1020 (Jan.
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21, 1988) (holding that the plan for erecting a "chinese wall"
within a Commonwealth's Attorney's office does not eliminate any
potential imputed conflicts arising under Rules of the Supreme
Court of Virginia Pt. 6, § II, DR 5-105). While we agree that an
ethical rule that strives to avoid the appearance of impropriety
is a worthy standard for professional conduct, a criminal
defendant's constitutional right to due process does not entitle
him to a prosecution free of such appearances. Cf. Cuyler v.
Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 1718, 64 L.Ed.2d
333 (1980) (stating that a defendant's Sixth Amendment right to
counsel is not violated when his lawyer has a "possible" or
"potential" conflict of interest). Instead, a criminal defendant
is denied due process only when his former counsel joins a
Commonwealth's Attorney's office and is not effectively screened
from contact with the Commonwealth's attorneys who are handling
the defendant's case on a related matter. 4 See Thompson, 246
4
Screening procedures such as "chinese walls" are utilized
in other contexts in the criminal process. For example, in Welsh
v. Commonwealth, the defendant in a state criminal proceeding was
granted immunity from federal prosecution and compelled to
testify before a federal grand jury and at a federal criminal
trial. 246 Va. 337, 341-42, 437 S.E.2d 914, 915-16 (1993). In
order to prevent the state prosecution from being
unconstitutionally tainted by information obtained from the
defendant under his federal grant of immunity, the Commonwealth's
attorneys in Welsh established a "chinese wall" between
themselves and the information known to federal prosecutors
regarding the defendant's immunized testimony. Id. at 346-47,
437 S.E.2d at 918-19. This chinese wall was an integral
component of the Commonwealth's case to show that its prosecution
of the defendant was based on information wholly independent from
his immunized testimony. Id.
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So.2d at 763 (holding that a defendant's due process rights are
violated only if his former lawyer prosecutes him on a matter
related to the representation or discloses client confidences to
other prosecutors); United States v. Goot, 894 F.2d 231, 236-37
(7th Cir. 1990), cert. denied, 498 U.S. 811, 111 S. Ct. 45, 112
L.Ed.2d 22 (1990) (holding that defendant's right to due process
was not violated by the employment of his former counsel in the
U.S. Attorney's office where the former counsel recused himself
and was screened from the prosecution of defendant's case).
Although the decision to disqualify an entire Commonwealth's
Attorney's office is committed to the exercise of the trial
court's discretion, we also hold that, in light of due process
considerations, a trial court should grant a criminal defendant's
motion to disqualify when the circumstances indicate that the
defendant's former counsel in a related matter has not been
effectively screened from contact with the Commonwealth's
attorneys who are prosecuting the defendant. See Pennington, 851
P.2d at 500-01; Camacho, 406 S.E.2d at 875 (citing Young v.
State, 297 Md. 286, 297, 465 A.2d 1149, 1155 (1983)). In a
hearing on a defendant's motion to disqualify, the defendant has
the burden of proving that a member of the Commonwealth's
Attorney's office counseled him on a matter related to the
pending criminal case. See Pennington, 851 P.2d at 500-01. If
the defendant satisfies this burden, a presumption arises that
the employees of a Commonwealth's Attorney's office share
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confidences with respect to matters handled by the office. See
id. at 501 (citing Goot, 894 F.2d at 234-35). The Commonwealth
then must rebut this presumption by proving that the defendant's
former lawyer has been effectively screened from contact with the
Commonwealth's attorneys working on the defendant's case. See
id.
Based on the circumstances of this case, we hold that the
trial court abused its discretion when it denied appellant's
motion to disqualify. The record established that appellant's
counsel at trial had joined the Commonwealth's Attorney's office
prior to the initiation of the proceeding to revoke appellant's
suspended sentence. The revocation proceeding is related to
appellant's initial trial because they arose from the same matter
and the confidences that appellant disclosed to his counsel in
preparation for the trial could be highly relevant to the attempt
to revoke his sentence. Additionally, the Commonwealth failed to
meet its burden of proving that appellant's former counsel had
been effectively screened from contact with the Commonwealth's
attorney handling the revocation proceeding. Although the
Commonwealth's attorney asserted during argument that he had
erected a "chinese wall" between himself and appellant's former
counsel, the Commonwealth's attorney offered no evidence, such as
affidavits by him and appellant's former counsel, regarding the
existence and effectiveness of the screening procedures actually
utilized. See State ex. rel. Tyler v. MacQueen, 191 W.Va. 597,
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600, 447 S.E.2d 289, 292 (1994) (indicating that affidavit by
prosecuting attorney and member of office who previously
represented defendant was sufficient evidence to prove existence
of effective screening procedures). Because the Commonwealth did
not meet its burden of proving that it had implemented effective
screening procedures to prevent the disclosure of appellant's
confidences, we hold that the trial court abused its discretion
when it denied appellant's motion to disqualify the
Commonwealth's attorney.
For the foregoing reasons, we reverse the order of the trial
court revoking appellant's suspended sentence. We remand this
case to the trial court for further proceedings consistent with
this opinion if the Commonwealth be so advised.
Reversed and remanded.
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