Commonwealth v. CousinCommonwealth v. Cousin
LOWY, J. Following a jury trial in the Superior Court, the defendant, Joseph Cousin (Cousin), was convicted of murder in the second degree. Cousin filed a motion for a new trial,
1. Prior proceedings and background. We briefly indicate the nature of Cousin‘s criminal case, followed by a summary of the facts pertinent to Cousin‘s conflict claim, as they were found by the judge. We also reserve certain facts for later discussion.
Following an investigation by the Boston police department
Cousin was retried for the murder in 2009, and was represented by Attorney William White (White). Cousin was convicted of murder in the second degree, and he was later sentenced to life in prison. His direct appeal from his conviction to the Appeals Court has been stayed pending the outcome of this case.
In the meantime, Cousin, represented by new counsel, moved for a new trial, arguing that White was burdened by an actual conflict of interest. The primary grounds for the alleged actual conflict were the involvement of White and his former law firm in two Federal civil rights lawsuits. Specifically, White and his former law partners defended members of the BPD who were accused of misconduct in the course of other, unrelated criminal
The judge, who was not the trial judge, held three days of evidentiary hearings before granting Cousin‘s motion. We present the pertinent facts she found in her written memorandum of decision and order.
a. White and the Federal civil rights cases. White joined the law firm of Davis, Robinson & White (DRW) as a partner in the early 1990s. DRW was comprised of three partners: White, Willie Davis, and Frances Robinson. White concentrated primarily on criminal defense, and he and Robinson intermittently represented police officers in disciplinary and administrative hearings. An attorney for the Boston police patrolmen‘s union occasionally referred police discipline cases to Robinson; however, there was no indication that Robinson or DRW had a formal contractual relationship with the patrolmen‘s union, the BPD, or the city of Boston (city).
DRW was organized as a limited liability partnership. The partners did not share profits or fees, and each partner earned only the money he or she generated. The partners generally worked independently on cases, particularly their criminal matters. The partners did, however, share common overhead expenses and office resources. Occasionally, the DRW partners would meet to discuss their cases. However, there is no indication that these informal discussions involved the
White left DRW in early 2007 and formed his own law firm, William White & Associates (White & Associates). Several years thereafter, White operated White & Associates in office space he rented in the same building as DRW; however, his firm was neither connected to, nor was his practice affiliated with, DRW. At the hearing on Cousin‘s motion, White testified that after he left DRW, his former partners only referred him a limited number of civil litigation matters. In January, 2009, the same year as Cousin‘s second trial, White relocated his firm to a different office building in Boston.
Cousin‘s claim that White was burdened by an actual conflict of interest focused primarily on the involvement of White and Robinson in two Federal civil rights cases, Drumgold vs. Callahan, U.S. Dist. Ct., No. 04-11193-NG (D. Mass. 2004) (Drumgold), and Cowans vs. Boston, U.S. Dist. Ct. No. 05-11574-GGS (D. Mass. 2005) (Cowans). The plaintiffs in the Drumgold and Cowans cases alleged that BPD homicide investigators had committed acts of police misconduct that led to their erroneous convictions, which were later overturned. Cousin‘s motion relies heavily on the purported similarities between the police investigations underlying the Drumgold and Cowans cases and his own.
i. Robinson‘s involvement in the Cowans case. The judge
Stephen Cowans was convicted of a shooting, in part based on fingerprints that were recovered from the crime scene and that McLaughlin, and another member of BPD‘s latent fingerprint unit whose work McLaughlin verified, matched to him.2 Several years later, items from the crime scene underwent deoxyribonucleic acid (DNA) testing. The testing revealed that Cowans‘s DNA was not present on any of the items. A further internal investigation also revealed that a latent fingerprint recovered from the crime scene had been erroneously individualized to Cowans. Based on this investigation, in 2004, the Commonwealth joined in Cowan‘s motion for a new trial and the conviction was vacated.
Following his exoneration, Cowans filed the Federal civil rights lawsuit seeking damages against the BPD and certain officers involved in the investigation, including McLaughlin. Robinson filed her notice of appearance on behalf of McLaughlin on April 5, 2006.3 Cowans‘s complaint alleged that McLaughlin had discovered but concealed the fact that his fingerprints had
ii. White‘s involvement in the Drumgold case. White‘s involvement in the Drumgold litigation began in 2006, while he was a partner at DRW. White represented two of the BPD officers named in the Drumgold case in succession -- a detective and then Lieutenant Timothy Callahan.
Shawn Drumgold was convicted of murder in connection with the 1988 shooting death of a twelve year old girl.4 After Drumgold had been convicted and sentenced, he filed several motions for a new trial, seeking to have his conviction overturned on numerous grounds, including that members of the BPD had coerced witnesses into implicating him in the shooting. There also were claims that BPD officers failed to provide exculpatory evidence by not disclosing favorable treatment given to a prosecution witness. The Commonwealth‘s assessment of the investigation concluded that Drumgold had not received a fair
In 2004, Drumgold filed the Federal civil rights lawsuit, claiming that the BPD officers involved in his investigation engaged in coercive tactics, pressured witnesses to give favorable testimony, and withheld exculpatory evidence, leading to Drumgold‘s erroneous conviction. Drumgold also claimed that the BPD encouraged such conduct. The city, as one of the named parties, retained its own counsel, but hired White to represent the detective in his individual capacity. White was later hired to represent Callahan after the detective had been dismissed from the lawsuit. The city had agreed to pay for the legal defense of the detective and Callahan pursuant to an indemnification agreement. Although that agreement was not produced as part of Cousin‘s motion for a new trial, White testified that he had charged the city for his time representing the detective and Callahan on an hourly basis, at an agreed rate. White would submit monthly bills to the city for its review and payment. Over the course of White‘s representation of the detective and Callahan, the city paid White more than $310,000 for his work. White testified that despite being compensated by the city for representing the detective and Callahan, he fully recognized that his only clients were the two officers, and his loyalty toward them was undivided.
In January, 2008, the detective was dismissed from the
The judge noted that the course of the Drumgold litigation and the nature of the lawsuit indicated that the interests of the city and the individual defendants were aligned. In the same way that the city had indemnified the individual defendants for their legal fees, the city also would be responsible for paying any judgment or settlement arising from the claims of misconduct against the individual officers. The judge observed that even though the city had separate counsel, its liability was contingent on the liability of the individual defendants. Further, the judge noted that White had worked closely with the city while defending both the detective and Callahan, as evinced by the defendants’ multiple joint filings and the conduct of the
Concerning the structure and mechanics of the Drumgold trial, a judge in the United States District Court for the District of Massachusetts ordered that the trial be divided into three phases. The first phase would address the liability of the individual officers, including Callahan. The second phase would address the liability of the city and the BPD. If the jury determined that there was a constitutional violation in either of the first two phases, then the third phase would address damages. The first phase of the trial took place in March, 2008, where White participated in defending Callahan. The jury found that Callahan was liable for one of the civil rights claims against him, relating to his failure to disclose that he gave “substantial amounts” of money to a witness for the Commonwealth. The parties then agreed to conduct the damages phase of the trial concerning the money Callahan had given to the witness, but the jury were unable to reach a verdict. On March 31, 2009, the judge ordered a retrial that was specifically limited to Callahan‘s conduct regarding the witness, which was scheduled for September, 2009.6
b. White‘s representation of Cousin. White was appointed to represent Cousin in 2008. Davis, White‘s former law partner at DRW, had represented Cousin during his first trial. After the appeal concerning Cousin‘s mistrial concluded, Davis withdrew as Cousin‘s counsel and recommended that White be appointed as successor counsel.7 White was no longer working at DRW at this time and he did not have a referral relationship with his former firm. Cousin initially indicated that he intended to retain private counsel for his second trial, but after meeting White in the Nashua Street jail, Cousin agreed to
Much of Cousin‘s claim that White was operating under an actual conflict of interest depended on the similarities he alleged between his case and the Drumgold and Cowans cases.
The judge found that on June 29, 2002, the victim was shot and killed while playing at a park in the Roxbury section of Boston. The perpetrator fired the fatal shot from a vehicle that was in the vicinity of the park. Cousin‘s fingerprints were recovered from the exterior of that vehicle. Additional fingerprints were also recovered from the vehicle. Several of those fingerprints were individualized to two other individuals, including Cordell McAfee; other fingerprints were not initially matched to any individual. The same fingerprint analyst who examined fingerprints in the Cowans case also examined the fingerprints recovered from the vehicle, and McLaughlin verified the reports that the analyst generated. Shortly before Cousin‘s second trial, Rachel Lemery, another forensic examiner with the BPD latent fingerprint unit, reviewed those fingerprint reports. Based on her analysis of other fingerprints recovered from the
The Richardson fingerprint match also is applicable to Cousin‘s claim that the lead detective in his case, Daniel Keeler, engaged in misconduct leading to Cousin‘s conviction. Specifically, Cousin contended that Keeler had used coercive techniques during his interrogation of Cordell McAfee, whose fingerprints had been found inside the vehicle and whose recorded statement implicated Cousin and his codefendant. The issue with McAfee‘s recorded statement was that at least the first hour was not recorded, and Keeler did not take notes or generate a report summarizing the interview. Further, at Cousin‘s first trial Keeler admitted that, prior to activating the recording device, McAfee had been shown certain photographic arrays that included photographs of Cousin and his codefendant and had not identified either individual. Moreover, McAfee confessed that he had been in the vehicle during the shooting,
2. Discussion. We review the disposition of a motion for a new trial “to determine whether there has been a significant error of law or other abuse of discretion. . . . When, as here, the motion judge did not preside at trial, we defer to that judge‘s assessment of the credibility of witnesses at the hearing on the new trial motion, but we regard ourselves in as good a position as the motion judge to assess the trial record” (citations omitted). Commonwealth v. Grace, 397 Mass. 303, 307 (1986). “While we will not disturb a judge‘s subsidiary findings which are warranted by the evidence, ‘ultimate findings and conclusions of law, particularly those of constitutional dimensions, are open for our independent review.‘” Commonwealth v. Walter, 396 Mass. 549, 553-554 (1986), quoting Commonwealth v. Mahnke, 368 Mass. 662, 667 (1975), cert. denied, 425 U.S. 959 (1976).
a. Actual conflict of interest. The Commonwealth contends that the judge erred in concluding that White was burdened by an actual conflict of interest while representing Cousin. Specifically, the Commonwealth asserts that White‘s involvement in the Drumgold litigation and his former partner‘s representation of McLaughlin in the Cowans case, whether
“Under the Sixth and Fourteenth Amendments to the Constitution of the United States and
Given that representations marred by actual conflicts of interest exude the egregious and readily apparent divided loyalty of counsel, the circumstances where we have found an actual conflict have typically been limited to “[1] where an attorney represents codefendants with inconsistent or contradictory lines of defense; [2] where an attorney or an associate maintains an attorney-client or direct and close personal relationship with a material prosecution witness; or [3] where an attorney has business [or personal] reasons for preferring a verdict unfavorable to the defendant he or she represents.” Mosher, 455 Mass. at 820, quoting Walter, 396 Mass. at 554-555. Actual conflicts are present in these situations because they epitomize the facial repugnance of an attorney‘s divided loyalty, which places an unmistakable stain on the attorney-client relationship. See Mosher, supra at 819. These limited categories also stand in stark contrast to the multitude of situations that may give rise to a potential conflict of interest. Id. at 823. Because a potential conflict of interest involves a more tenuous conflict, a defendant‘s conviction “will not be reversed except upon a showing of
The defendant carries the burden of proving both the existence and precise character of the alleged conflict of interest. See Walter, 396 Mass. at 554; Soffen, 377 Mass. at 437. To satisfy this burden, we require “demonstrative proof detailing both the existence and the precise character of this alleged conflict of interest; we will not infer a conflict based on mere conjecture or speculation.” Commonwealth v. Stote, 456 Mass. 213, 218 (2010), quoting Shraiar, 397 Mass. at 20. We look to the attendant facts and circumstances surrounding the claimed actual conflict. See Commonwealth v. Martinez, 425 Mass. 382, 392 (1997) (consideration of all facts concerning defendant‘s claim of conflict including attorney‘s relationship with prosecution witness, ethical problems, and undenied allegations of broken client confidence). There is no substitute for meeting this burden other than sufficient, concrete evidence demonstrating an attorney‘s divided loyalty such that prejudice is inherent in the representation. For this reason, we have never held that a defendant can establish an actual conflict of interest by cobbling together a collection of potential conflicts. In determining whether an actual conflict exists, we do not consider potential conflicts in the aggregate, even in a representation plagued by potential conflicts; nor do we accept that potential conflicts have a synergistic effect
The circumstances surrounding Cousin‘s claim that White had an actual conflict involve what appear to be, at first glance, a morass of factually similar cases, obscured connections between attorney-client relationships, and a thread of disturbing allegations of police misconduct. Our review of the record reveals that these connections are in fact discretely compartmentalized aspects of unrelated cases. Although the circumstances in this case, as they were developed at the hearing on the motion for a new trial, do not amount to an actual conflict, White‘s representation of Cousin nonetheless presents troubling issues that may constitute a potential conflict of interest. However, we do not address the issue of a potential conflict because the only issue that was considered at the hearing on the motion for a new trial was whether there was an actual conflict.11
b. White‘s involvement in the Drumgold case. The focal point of the judge‘s decision that White had an actual conflict was his involvement in the Drumgold civil rights lawsuit. The judge construed White‘s involvement as embodying two problematic
i. The Callahan representation. The judge‘s conclusion that there was a substantial risk that White‘s loyalty may have been divided between Callahan and Cousin was based on her view that, “[t]o vigorously defend Cousin, White would necessarily have to take a position that was not in the interest of his client Callahan in the Drumgold [F]ederal suit . . . .” This conclusion assumed that the Drumgold and Cousin cases were inextricably intertwined to the point where there were competing interests, such that White would be inhibited from zealously representing Cousin.
As a threshold matter, in considering an alleged actual conflict stemming from an attorney‘s simultaneous representation of multiple clients who are not codefendants, the presence of an actual conflict has generally been limited to situations where the defendant‘s trial counsel simultaneously represents a prosecution witness who testifies against the defendant. See
Cousin endeavors to recast the circumstances of his case
In analyzing Cousin‘s claim that White was saddled by a conflict of interest due to an overlapping representation, our analysis is aided by
The concern reflected in
The Drumgold and Cousin criminal cases involve the tragic shooting deaths of children. The BPD homicide division investigated both cases. Each case also involved claims of misconduct against the BPD officers who investigated the
The record before this court establishes that Callahan was not involved in the investigation or prosecution of Cousin. Moreover, there is no connection between the allegations of police misconduct in those cases. Cousin claims that Detective Keeler conducted a coercive interrogation of McAfee, the individual who eventually implicated Cousin in the shooting and, as detailed above, failed to reveal exculpatory evidence that McAfee provided. Beyond Detective Keeler‘s conduct, Cousin also points to the analyst‘s failure to match fingerprints recovered from the vehicle to Richardson, and McLaughlin‘s verification of that faulty report. The failure to originally individualize the fingerprints recovered from the vehicle to Richardson precluded Cousin from exploring a viable avenue in his defense.
When White was representing Cousin at his retrial in September, 2009, the claims against Callahan in the Drumgold
Because Cousin‘s case and the Drumgold case are unmistakably separate legal actions, involving different BPD officers investigating the killings, and distinguishable claims of police misconduct, a vigorous attack on the police conduct in Cousin‘s defense would not constitute an attack on all members of BPD‘s homicide unit.14 Moreover, Cousin has failed to produce
ii. White‘s economic and personal interests. The judge also concluded that White had an actual conflict of interest stemming from his economic and personal interest in the Drumgold litigation. In the judge‘s view, “White had an economic or personal interest, at the time he represented Cousin, in remaining on good terms with the BPD, thus creating a substantial risk that the manner in which he represented Cousin could materially and adversely be affected.” Beyond White‘s financial compensation for his representation of the individual officers in the Drumgold case, the judge emphasized that, “[a]s the entity that paid the bills, the city was essentially White‘s largest paying client in the year leading up to Cousin‘s second trial.” On appeal, Cousin endorses this reasoning and further asserts that because the city was White‘s client, White was
Much like an actual conflict arising from the competing interests of clients, an attorney‘s own interests can impair his or her independent professional judgment to the point of causing an actual conflict. See Commonwealth v. Perkins, 450 Mass. 834, 852 (2008);
In the context of an attorney‘s economic interest in a representation, we have held that an actual conflict exists “where an attorney has business reasons for preferring a verdict unfavorable to the defendant he or she represents” (citation omitted). Mosher, 455 Mass. at 820. However, an attorney‘s
Cousin has failed to adduce any facts to support his claim that White had an actual conflict because the city paid him to represent Callahan and the detective in the Drumgold case. The fact that White was paid more than $310,000 for his representation, without more, does not provide a basis to
Cousin‘s claim that White had an actual conflict because the city was essentially his client is equally unsupported by the record. Significantly, Cousin relies on speculation and conjecture to support his allegation that White was constrained from vigorously defending him through an attack on the alleged police misconduct in Cousin‘s defense because it could have exposed the BPD, and ultimately the city, to greater liability.15
The circumstances in Schwarz, particularly the existence of an agreement that the attorneys in Schwarz represented the PBA directly, highlight the infirmities in Cousin‘s claim that White had an actual conflict due to his relationship with the city. There is no indication that White represented the city, a police union, or anyone other than Murphy and Callahan in the Drumgold case. Indeed, White testified at the hearing on the motion for a new trial that he only represented Murphy and Callahan in the Drumgold litigation. Moreover, White testified that he understood his loyalty was exclusively to the detective and Callahan.16 Although White‘s agreement with the city to represent the individual officers was not produced at the hearing on the motion for a new trial, Cousin has failed to put forth evidence to controvert White‘s testimony that he only represented the detective and Callahan. Contrast Schwarz, 283 F.3d at 96 (attorney‘s firm had $10 million retainer agreement with PBA to represent all police officers in variety of legal proceedings).
c. Robinson‘s representation of McLaughlin. In determining that White was burdened by an actual conflict, the judge considered, at least in part, Robinson‘s representation of McLaughlin, one of the fingerprint analysts in Cousin‘s case. Robinson defended McLaughlin, in the Cowans case, while White and Robinson were law partners at DRW, against a claim that McLaughlin had concealed an erroneous fingerprint match that had implicated Cowans in a shooting. Cousin contends that White continued to owe a duty of loyalty to his former partner‘s past client that prohibited White from representing Cousin, thus amounting to an actual conflict. We discern no such conflict.
At the outset, it is uncontroverted that neither White nor Robinson was representing McLaughlin at the time of Cousin‘s trial. Robinson‘s representation of McLaughlin ended in September, 2007, when the Cowans case settled. White left DRW in 2007 and began his own firm, White & Associates. He filed his notice of appearance on behalf of Cousin approximately one
Even were we to assume that McLaughlin may have testified as a prosecution witness against Cousin, despite her no longer being a member of the latent fingerprint unit, we have generally held that terminating that conflicting representation prior to the defendant‘s trial “obviat[es] the risk of simultaneous representation.” Martinez, 425 Mass. at 389. Because Robinson‘s representation of McLaughlin ended approximately two years before Cousin‘s trial, White was not burdened by an actual conflict. See Mosher, 455 Mass. at 821-823 (no actual conflict resulted from representation terminated one month prior to trial); Patterson, 432 Mass. at 775-776 (no actual conflict resulted from previously terminated representation); Fogarty, 419 Mass. at 459-460 (no conflict where defense counsel‘s associate ended representation of prosecution witness prior to defendant‘s retaining defense counsel); Commonwealth v. Smith, 362 Mass. 782, 783-784 (1973) (no conflict where defense counsel‘s representation of prosecution witness ended before defendant‘s trial commenced).
The fact that neither White nor Robinson was representing
An attorney who leaves a law firm to take a position at another law firm may have a continuing duty of loyalty to his or her former firm‘s past clients.
Although McLaughlin was a past client of White‘s prior law firm, White testified at the hearing on the motion for a new trial that he was uninvolved in Robinson‘s representation of McLaughlin, and he did not acquire any confidential information about McLaughlin. There is nothing in the record that contradicts White‘s testimony that the partners at DRW generally handled their cases independently. To the extent that White and his law partners at DRW discussed cases generally, the record is insufficiently developed to support an inference that general discussion about cases indicates that White acquired confidential information about McLaughlin from Robinson.18 There was no indication that White was restrained from challenging McLaughlin‘s work as a fingerprint analyst in Cousin‘s case.19
3. Conclusion. Based on the foregoing, we discern that there was insufficient evidence to establish that White was burdened by an actual conflict. We vacate the judge‘s decision granting Cousin‘s motion for a new trial and remand the case to the Superior Court for further evidentiary hearings on whether Cousin was prejudiced by potential conflicts of interest.
So ordered.
Notes
[W]e have found an actual conflict only where (1) at the time of trial, the defense attorney continued to represent a prosecution witness who furnished material testimony concerning a critical issue in the case against the defendant; or (2) the defense attorney had previously represented a prosecution witness in a matter related to the defendant‘s criminal case who furnished material testimony concerning a critical issue in the case against the defendant.