152 Conn.App. 44
Conn. App. Ct.2014Background
- Kareem Hedge was tried and convicted in Bridgeport for drug and related offenses; attorney Richard Silverstein represented him at trial. Hedge later filed a habeas petition alleging ineffective assistance and due process violations.
- Silverstein had two prior drug-related arrests (1999 and January 2003); the 2003 matter resulted in entry into an accelerated rehabilitation program and dismissal after completion.
- A New Haven grievance panel and Judge Silbert ordered Silverstein to notify clients in writing of the pending charges and to offer clients the option to have him disclose the charges during voir dire. Silverstein did not give Hedge written notice.
- On the eve of jury selection Hedge learned of Silverstein’s 2003 charges and expressed concern; the trial court told him he could require Silverstein to disclose the charges to prospective jurors, but Hedge never requested such disclosure and no juror said they recognized Silverstein.
- The habeas court denied Hedge’s fourth amended petition (claims: actual conflict, inadequate trial performance, trial-court canvass failure, and appellate counsel ineffectiveness) and the Appellate Court affirmed as to the conflict and due process claims on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Silverstein had an actual conflict of interest rendering assistance ineffective | Hedge: Silverstein’s pending criminal matters created an "impermissible risk" jury would impute counsel’s conduct to client (Phillips standard) | Commissioner: Publicity was minimal, Silverstein was not convicted, different judicial district, and trial protections existed; no actual conflict | No actual conflict; habeas court’s factual findings affirmed |
| Whether habeas court should have considered a potential conflict inquiry | Hedge: Court should have assessed potential (not actual) conflict | Commissioner: Claim not raised below; appellate review barred | Claim not considered on appeal as it was not raised below |
| Whether trial court’s canvass/inquiry violated due process by failing to secure a knowing waiver of conflict-free counsel | Hedge: Inadequate canvass deprived him of ability to waive conflict-free representation | Commissioner: Moot because no actual conflict existed; no waiver required absent conflict | Dismissed as immaterial—no conflict existed, so no due process violation |
| Whether prejudice must be shown where an actual conflict is alleged | Hedge: Actual conflict existed so prejudice is presumed | Commissioner: Argued facts insufficient to show actual conflict | Court applied Phillips/Strickland line: if actual conflict, prejudice is presumed; but held no actual conflict existed so presumption did not apply |
Key Cases Cited
- Phillips v. Warden, 220 Conn. 112 (1991) (establishes "impermissible risk" standard for counsel’s personal circumstances creating an actual conflict)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance of counsel; prejudice standard)
- Rodriguez v. Commissioner of Correction, 312 Conn. 345 (2014) (applies Phillips; acquittal/no publicity/different facts can negate actual conflict)
- State v. Vega, 259 Conn. 374 (2001) (recognizes prejudice is presumed where counsel has an actual conflict)