Douglas v. United States

*146BELSON, Associate Judge,

dissenting:

To use his words, defense counsel found himself “in an adversary relationship with Mr. Douglas (his client) and ... also in an adversary relationship due to the gravamen of the complaint against [him] by Mrs. Douglas (his client’s mother) because she, in fact, paid the fee.” Counsel added “it seems to me I’d also be in a conflict of interest.” Counsel made those statements during a hearing held on the second day of what was to have been a lengthy trial. The hearing was held for the purpose of determining how to resolve the problems that defense counsel had brought urgently to the attention of the court upon his learning that his client had lodged a written complaint against him with Bar Counsel over the manner in which counsel was handling the very case on trial. The trial judge, appreciating that defendant’s complaint against retained counsel had burdened counsel with a serious conflict of interest, declared a mistrial. I think he acted within his discretion in doing so. Therefore I dissent.

A few observations about the facts are in order. The problem that led to the mistrial was not raised, sua sponte, by the trial judge. Instead, it was raised by defense counsel, Mr. Kane, who requested a meeting with the judge in his chambers before the commencement of the second day of trial. The Assistant United States Attorney was invited to attend, and did so. While no court reporter was present, the unchallenged statement of the prosecutor a short time later in open court was that defense counsel had moved in chambers to withdraw from the case. After a brief discussion, the judge and counsel entered the courtroom and, in the presence of the defendant, the judge stated the problem for the record. After doing so, the judge said that he had a “pretty strong notion myself regarding what’s required,” but asked defense counsel to address the matter. Counsel said “I wouldn’t want to have a hearing per se; but I would like to have my client make a statement exactly what his position is vis a vis myself, both my client and his mother.”

Defendant discussed the background of the matter and said that he “would like to keep Mr. Kane” as defense counsel, “and continue this trial.” The trial judge replied that defendant could not keep Mr. Kane so long as the matter was pending before Bar Counsel. After further colloquy, Mr. Kane stated his position as follows: “As the court pointed out, I’m involved in an adversary proceeding with my client. At the same time my client indicates he wants me *147to continue in the case. It’s my candid desire that, if humanly possible, for the trial to go forward.” After Mr. Kane again noted that he was in an adversary relationship and acknowledged the conflict of interest, the trial court informed him that either he could move for a mistrial and have a continuance during which the situation might be resolved, or the court could sua sponte declare a mistrial.1 After a recess during which counsel spoke to his client and his client’s mother, Mr. Kane moved for a mistrial. He prefaced his motion for mistrial with the following statement:

First of all, I’d like to thank the Court very much for your kindness in this matter. I deeply appreciate it. I would say, also, my position in this case is such that being in an adversary relationship with both my client and the prosecutorial forces as the result of representing my client, I find it difficult to make a motion because I wonder if, in fact, I have standing to make a motion on behalf of my client. But, if I do have standing to make a motion on behalf of my client, I do so move to have this matter resolved.

Although both Mr. Kane and appellant had earlier expressed a preference for proceeding with trial, neither voiced an objection to the grant of mistrial.

The foregoing facts serve to illustrate the roles played by defense counsel and appellant in the discussions leading up to the mistrial. They show especially the concern defense counsel felt over his status and his ambivalence about the practicality and propriety of his continuing with the trial. With respect to appellant, it is worth adding the specific language of the complaints that he made against his attorney. These complaints were made in writing by appellant less than a month before the mistrial was declared:

(1) My lawyer has failed to contact me while I have been incarcerated. He only manages to see me on the day of my court appearances.
(2) My lawyer did not seem to be prepared for my bond reduction hearing.
(3) My lawyer calls my mother to tell her about what he has done and when my mother calls the court she finds out that the lawyer’s statements are in fact, not true. This has been happening constantly during my six-month incarceration.
(4) My lawyer failed to explain to the judge why the army was taking me away from the court, as a result the court gave me a B.R.A. which increased my bond. The judge was very angry with my lawyer and the result was a much larger bond, which I cannot pay.
(5) Had my lawyer been doing his job with the least bit of competence, I would have been to trial and out of jail, and as his client this is a gross injustice to me. What has he done? I would like to see the work, if he has not prepared this case properly I would like a portion of his fee returned to me; it is only fair since I am paying for services rendered and receiving nothing.

The letter of Bar Counsel that forwarded the complaints to defense counsel instructed counsel that he was required to submit in duplicate a statement setting forth his position within 10 days of the date of the letter, and advising him that he could be represented by counsel of his choice in the matter.

It is also worth referring to the role of the government in bringing about the mistrial. There was none. Indeed, the government had brought Mr. Douglas be*148fore the court for trial on the charges against him, except the Bail Reform Act violation, on Friday, September 5, 1980, almost a year before the mistrial in question here. The jury was selected but not sworn. Appellant was returned over the weekend into the third-party custody of his parents. He absconded rather than reappearing for trial and a bench warrant issued on September 8. The following day the jury was discharged. After the bench warrant for appellant’s arrest was executed, the government again prepared for trial and the trial was proceeding as described above until appellant’s complaints concerning his defense counsel were brought to the attention of the court.2

The majority opinion is especially critical of the trial judge for having failed to consider, as an alternative to mistrial, giving the defendant an opportunity to waive his right to independent counsel and to go forward with Mr. Kane despite their conflict of interest and adversary relationship.3 [majority opinion at 139 et seq.'] The majority concludes that “Judge Hannon either overlooked the need to. consider the waiver alternative or erroneously assumed that such a waiver was impossible as a matter of law and accordingly dismissed this alternative out of hand.” [majority, supra, at 139] Asserting that the trial court admitted its failure to consider any alternative when at least one possible alternative existed, the majority concludes that “we owe no deference to the trial court in evaluating whether the waiver alternative should have been adopted.”4 Id.., at 139.

I disagree entirely that we can say fairly that the trial judge failed to exercise discretion in his determination of the necessity of a mistrial simply because he was quick to size up the stark nature of counsel’s actual conflict of interest and acted decisively after hearing from counsel in chambers and *149discussing the matter at some length on the record. It is not difficult to hypothesize many other examples of conflicts so serious that they would lead a trial judge to conclude correctly that they warrant a mistrial even in the face of appellant’s willingness to waive them.5 The majority’s analysis apparently proceeds from the view that if the defendant, having been adequately informed of relevant considerations, knowingly and intelligently had waived the conflict of interest, that would have concluded the matter — the trial judge would have had to accede to defendant’s waiver. The majority seems to take the view that if the trial judge could not have been reversed on appeal for having accepted the waiver, it follows that he was required to accept it. I think that premise is faulty.

In my view, the gravity of the conflict of interest and its subtlety warranted the trial judge’s action. While it might have been difficult to explain effectively to a defendant, it was undoubtedly obvious at once to the trial judge that a conflict of the type involved here would alter the relationship between counsel and client and could lead in varied and unpredictable ways to changes in the manner in which defense counsel would conduct the trial. It could affect the openness of communications between counsel and client. It could lead counsel to try to make a record which would protect counsel rather than vindicate his client. Even if his client would have withdrawn his charges, counsel could well have anticipated that a client who had made and withdrawn such charges before would make them again.

The majority states that “[i]f the right to counsel of choice conflicts with the right to an attorney of undivided loyalty, the choice as to which right shall take precedence must be left to the defendant, properly informed of that choice.” [majority, supra, at 144]

I disagree. This court has previously held that a “trial court need not accept the defendant’s attempt to waive his right to a counsel who is free of ethical violations.” Lewis v. United States, 430 A.2d 528, 530 (D.C.), cert. denied, 454 U.S. 1081, 102 S.Ct. 635, 70 L.Ed.2d 615 (1981). In Lewis, we affirmed a trial court’s restriction of a defendant’s choice of counsel, without a hearing, because it was “apparent ... on the facts of this case, [that] the trial judge could reasonably conclude without a formal inquiry that [counsel] would be unable to surmount his violation of the ... ethical precepts [adequate preparation and competency] ...” Id. at 531. We recognized in Lewis that although the trial court normally would conduct a hearing to assess the ethical violation, disruptive effect, and offered waiver, in some circumstances the court may restrict without a hearing the defendant’s right to a particular attorney in view of “the court’s obligation to protect defendants from their chosen attorney’s violation of ethical rules designed to protect the defendant.” Id. at 530.

Similarly in United States v. Dolan, 570 F.2d 1177 (3d Cir.1978), the United States Court of Appeals for the Third Circuit held that a trial court is not required to accede to a waiver of a conflict of interest when faced with an actual, as distinguished from potential, conflict on the part of an attorney representing two codefendants. Again, in United States v. Flanagan, 679 F.2d 1072 (3d Cir.1982), rev’d on other grounds, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984),6 the Third Circuit stated as follows:

*150It does not follow, however, that because defendants may waive the right to separate representation free from potential .conflicts, they have an absolute right, constitutional or otherwise, to have such waivers accepted by a court. A truly knowing and intelligent waiver accepted by the court will insulate a conviction from later attack. But the perspective of a trial court judge need not be limited to a concern not to have a conviction overturned.

Id. at 1076 (footnote omitted). Referring to its earlier opinion in Dolan, supra, the court added: “In addition to the trial judge’s interest in being free from post-conviction attacks, we mentioned the court’s concerns about breaches of professional ethics and about respect for the integrity of the court.” Id. at 1076 (footnote omitted). See also United States v. Helton, 471 F.Supp. 397, 401 (S.D.N.Y.1979) (conflict too strong to permit waiver). Such considerations are not limited to situations where a single attorney represents multiple eodefendants. Hurt, supra, 177 U.S.App.D.C. at 19, 543 F.2d at 166.

The above holdings do not deal with double jeopardy claims. Nevertheless, their recognition that a trial judge may reject proffered waivers of conflicts of interest is at odds with the majority’s conclusion that acceptance of an intelligent and informed waiver by appellant would have been obligatory. The trial judge in this case was faced not with a potential conflict of interest but with a serious actual conflict of interest. In my view, if appellant had offered to waive the conflict after further hearing, the trial judge would not have been required to accept it. Rather, he acted within his discretion in concluding that the circumstances necessitated mistrial. See United States v. Perez and Wade v. Hunter, supra, note l.7

The sum of the situation before us is this. The people are being deprived of their day in court on the charges against appellant. They are being thus deprived first by reason of appellant’s abscondance from his first trial and secondly because the differences between appellant and his counsel at the time of the second trial led the trial judge to declare the mistrial that the majority deems erroneous. I respectfully dissent. The precedents do not call for what is, in an almost literal sense, a miscarriage of justice.

. The court did not include completion of the trial as one of defendant’s options, and for that reason the government's brief concedes that the court’s action in declaring a mistrial should be deemed to have been taken sua sponte. That concession does not preclude us from considering in our “manifest necessity" analysis that defense counsel initiated the discussion, moved in chambers to withdraw and acknowledged both his adversary relationship with his client and his conflict of interest. See United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824) (Story, J.) (court considers all the circumstances to determine manifest necessity for mistrial); Wade v. Hunter, 336 U.S. 684, 689-90, 69 S.Ct. 834, 837-38, 93 L.Ed. 974 (1949) (same).

. Where mistrial is declared because of the conduct of the government, for example, in not being able to go forward with its case, we apply strict scrutiny to the decision to declare a mistrial. Arizona v. Washington, 434 U.S. 497, 508, 98 S.Ct. 824, 831, 54 L.Ed.2d 717 (1978); Routh v. United States, 483 A.2d 638, 642, 645 (D.C.1984). This is not such a case. To the contrary, since the mistrial was declared for the benefit of defendant, a deferential review is appropriate. United States v. Sedgwick, 345 A.2d 465, 470-71 (D.C.1975) (discussing Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), and Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973)), cert. denied, 425 U.S. 966, 96 S.Ct. 1751, 48 L.Ed.2d 210 (1976).

. The majority also invokes three policy reasons to support reversal. On analysis, they furnish little support for that result. The first is the defendant’s right to conclude the trial before a jury he believes to be favorably disposed toward him. Neither defendant nor his counsel expressed the view that the jury was so disposed. The majority also indicates that this interest intensifies as the trial proceeds. But the trial here had proceeded only through opening statements and the testimony of one witness.

The second policy reason stated is that prospects for acquittal may be lessened upon retrial. There is no real indication in the record that the government would benefit any more than the defense from having heard one another’s opening statements and examining the first witness. The defense gained discovery of that witness’ testimony. The government may or may not have profited by the reference to a frame up in the defense counsel’s opening statement. It is, in any event, entirely clear that the government did not seek to provoke a mistrial to gain any such advantage.
The third policy consideration is derived from the increased financial and emotional burden upon defendant, and the prolonging of the period of his stigmatization as an accused. In this case, the defendant caused considerable prolongation of his status as an accused by fleeing his first trial. He demonstrated little interest in lifting any emotional burden the charges imposed on him. His flight resulted directly in the financial burden imposed by his incarceration.

.The majority opinion states that at no time did the trial judge evince a concern for the double jeopardy consequences of a mistrial, (pp. 135— 145) The opinion also states that the trial judge never referred to the appellant’s constitutionally protected interest in having the trial concluded before the jury that was already impaneled. Those statements are unwarranted for two reasons. The first is that we can safely assume that the trial judge was well aware of these elementary concepts. Secondly, in his colloquy with counsel and the defendant before ordering the mistrial, the judge adverted to the fact that the jury had been sworn, and the trial had begun.

. For example, in the listing of conflict situations set forth in United States v. Hurt, 177 U.S.App.D.C. 15, 19 n. 21, 543 F.2d 162, 166 n. 21 (1976), the court refers to a defense counsel who, in a separate civil proceeding, was representing his client’s victim.

. The Supreme Court reversed the Third Circuit’s decision in Flanagan on the ground that the appellate court lacked jurisdiction over a pretrial disqualification of defense counsel in a criminal prosecution because such an appeal is not within the narrow collateral order exception. 465 U.S. 259, 104 S.Ct. 1051, 1055-56, 79 L.Ed.2d 288. On remand from the Supreme Court, the Third Circuit dismissed the appeal. 730 F.2d 945 (3d Cir.1984). Although the opin*150ion reported at 679 F.2d 1072 lacks precedential value, the reasoning on the nonjurisdictional waiver issue is helpful.

. I think it would be requiring too much of the trial judge to ask that he would have thought of and pursued whatever possibility there was that Bar Counsel might have been in a position to come to the courthouse and, upon appellant’s withdrawal of his complaint, close the proceedings against defense counsel. It is by no means certain that Bar Counsel would have taken such action, or indeed would have been available promptly to attend at court to do so. [majority, supra, at 139 n. 21]