COMMONWEALTH vs. WILLIAM GERAWAY.
364 Mass. 168
Supreme Judicial Court of Massachusetts
October 11, 1973
Norfolk. November 7, 1972. — October 11, 1973.
Present: TAURO, C.J., REARDON, QUIRICO, BRAUCHER, & WILKINS, JJ.
Order reversed.
Practice, Criminal, Assistance of counsel, New trial, Capital case. Conflict of Interest.
Where members of a law firm, other than a member who was the attorney for a defendant tried for first degree murder, represented in unrelated matters persons who became important prosecution witnesses at the murder trial and where the insistent inquiries by the defendant of his attorney as to the existence of conflicts of interests were ignored or summarily put to rest, there was a “miscarriage of justice” under
TAURO, C.J., and BRAUCHER, J., dissenting.
Where this court, following an appeal from a decision by the Superior Court denying a motion for a new trial of a capital case filed after rescript affirming a judgment of conviction, decided on new matter not considered by it previously that there had been a miscarriage of justice requiring a new trial it also concluded that it was unnecessary to remand the case to a single justice under
INDICTMENT found and returned in the Superior Court on September 29, 1967.
Following the decision by this court reported in 355 Mass. 433, denial of a motion for a new trial by the Superior Court, and an appeal therefrom, the case was reviewed by this court under
John P. Connor, Jr., Assistant District Attorney (Richard W. Barry, Special Assistant District Attorney, with him) for the Commonwealth.
REARDON, J. The defendant was indicted on September 29, 1967, for murder in the first degree of David Martin Sidlauskas on April 24, 1966, and after a twelve day trial was, on February 20, 1968, convicted and sentenced to life imprisonment. He appealed to this court, assigning as error the admission of eyewitness identification testimony and the exclusion of evidence implicating another person in the crime. We affirmed the judgment. Commonwealth v. Geraway, 355 Mass. 433 (March 7, 1969).
On November 10, 1970, the defendant filed a motion for a new trial alleging, inter alia, that newly discovered evidence revealed a “conflict of interest on the part of the law firm that represented petitioner at trial so severe that it resulted in a denial of the right to effective counsel as guaranteed in the 6th Amendment of the Constitution of the United States, and the right to equal protection of the law, as guaranteed in the 14th Amendment.”
After an evidentiary hearing the trial judge denied the motion.1 The defendant excepted to the denial and claimed an
We summarized the factual framework of the trial in our opinion cited above. In essence, the case against the defendant consisted of certain eyewitness testimony given by two persons who identified him as a man they had seen in a yellow car near the site where the victim‘s body was discovered on the day of the murder, and the testimony of six other witnesses to admissions by the defendant that he had perpetrated it. It appeared at the hearing on the motion that four of these latter witnesses, and members of their immediate families, were represented, or had been represented, in various civil and criminal matters by the firm of Crane, Inker & Oteri. These witnesses were Carol Davies (sometimes referred to as Miss Kennedy), the defendant‘s ex-wife; her brother, Edward Kennedy; her sister, Michelle LeClair; and one William Dennett, a friend of the defendant.
The relationships between several members of this firm, the defendant, and certain witnesses at his trial can be summarized as follows. On May 9, 1967, Mr. Oteri, a member of the firm, wrote to the defendant, then incarcerated in Indiana, notifying him of one murder indictment against him, and the possibility of another, and suggesting a meeting “in order that we can prepare to defend against this charge.”2 Two days later Mr. Oteri again wrote to the defendant and indicated that he had asked Mr. Inker of his firm to be counsel “with me functioning as his associated counsel,” and instructed the defendant to ask the Chief Justice of the Superior Court to appoint Mr. Inker as counsel. Mr. Oteri noted, “We are prepared to represent you through the trial,
Mr. Oteri testified that “I had William Dennett a number of times on various criminal charges in Massachusetts and he would call me at times when he would be arrested outside of Massachusetts and I would attempt to counsel him as to what he should do.” His representation of Dennett included at least one case in May, 1966, shortly after the Sidlauskas murder. Although Mr. Oteri testified initially that “I don‘t have any memory of ever talking to Dennett after he went to Michigan and became involved with the district attorney‘s office in certain testimony that I think he gave against Mr. Geraway,” he later testified that he did remember talking to Dennett in Michigan and consulting with him about a case in that jurisdiction involving checks. In a communication to Boston police Lt. Ingenere on March 14, 1967, Dennett referred to Mr. Oteri as his counsel.
Carol Davies, the defendant‘s ex-wife, testified that in March, 1967, she and her sister, Michelle LeClair, and her mother were questioned by Lt. Ingenere about the two murder cases involving the defendant and that she first told the lieutenant she knew nothing. The questioning by the lieutenant continued for about a week. During that period Carol Davies called Mr. Oteri “a few times” to ask his advice about the questioning and was advised by him to tell the lieutenant what she knew. Thereafter she told Lt. Ingenere that the defendant had made certain statements about the Sidlauskas murder, and she testified to that effect at the defendant‘s trial.
Michelle LeClair also gave evidence of questioning by Lt. Ingenere, and further said that she engaged in a discussion with her sister Carol as to whether she should answer his questions, that she was with Carol when she called Mr. Oteri,
Edward Kennedy, a brother of Carol and Michelle, gave evidence that he also was questioned by Lt. Ingenere about the defendant‘s involvement in a murder case about March, 1967. Mr. John P. White, Jr., of the firm of Crane, Inker & Oteri represented him on the first day of the interrogation. Later in that week Edward Kennedy consulted Mr. Oteri. Before talking with Mr. Oteri, Kennedy told Lt. Ingenere that he did not know anything about the subject of the interrogation. Later he said that the defendant had said something relative to the murder. He also testified that the police at the interrogation suggested they might involve him in a current armed robbery investigation, and that at the time of the defendant‘s trial armed robbery charges were in fact pending against Kennedy. He was subsequently acquitted on these charges. At the hearing on the motion, Edward Kennedy testified that what he ultimately told Lt. Ingenere concerning the defendant‘s statement that “I whacked a guy” was untrue.
In addition to counseling these witnesses, the firm of Crane, Inker & Oteri represented various members of their immediate family during the time it was representing the defendant. The firm represented Dennett‘s child and wife (as guardian and next friend) in a tort case which began about 1965 and was not finally disposed of until April 8, 1968. A judgment for $4,500 was eventually entered on a case in which the ad damnum was $250,000.
Beginning in January, 1967, the firm represented Russell Kennedy, the brother of Carol Davies, Edward and Bernard Kennedy, and Michelle LeClair on a homicide charge. This case was disposed of in June of 1967, but the firm continued rendering services relative to it until the summer of 1968. According to statements made by both Mr. Oteri and Edward Kennedy, the whole Kennedy family was involved in retain-
The firm also represented Bernard Kennedy on an assault and battery charge in April, 1967.
In that same month the firm represented Edward Kennedy and his wife Maureen in a tort suit on behalf of their son Stephen, a case which was settled in 1970 on the payment of certain sums. The firm handled another tort suit involving Sheila, another child of Edward and Maureen Kennedy, in 1968, and on this case money was recovered in December, 1969.
It would thus appear from virtually undisputed testimony that Mr. Oteri, as well as other members of the firm, was closely associated with William Dennett at least through the time of the police investigation of the Sidlauskas murder, and served as counsel for many members of the Kennedy family in both civil and criminal matters around the time of the defendant‘s trial.4 Since it appears there was a significant possibility suggested by the evidence that Dennett in fact committed the murder, that various members of the Kennedy clan were in serious trouble with the police during this period, and that the firm was handling several tort cases for close relatives of the witnesses, the situation was replete with potential constraints, both ethical and economic, on the firm‘s representation of the defendant.
The questions raised by the foregoing recitation are made even more acute in that the defendant himself repeatedly questioned the firm‘s interest in representing him. He wrote to Mr. Oteri more than a few times asking why the firm wanted to represent him since he had no money to pay them. To his repeated questions he received no written response.
We accept the findings of the trial judge as true. Thus, although the firm considered as a single entity was involved in a serious conflict of interest, Mr. Inker‘s lack of knowledge of that conflict (finding No. 5) and the competence and vigor with which he conducted the defence (finding No. 8) indicate, as does our independent examination of the trial transcript, that there was slight, if any, possibility of prejudice to Geraway. Although there is doubt whether Federal constitutional principles require that a new trial be granted where a nonprejudicial conflict exists, see Glasser v. United States, 315 U. S. 60 (1942); Hayman v. United States, 205 F. 2d 891 (9th Cir. 1953); Lollar v. United States, 376 F. 2d 243 (D. C. Cir. 1967); Zurita v. United States, 410 F. 2d 477 (7th Cir. 1969); United States ex rel. Williamson v. LaVallee, 282 F. Supp. 968 (E. D. N. Y. 1968), and no State constitutional claim has been argued to us, the requirements of justice would be best served by ordering a new trial under our power set forth in
The defendant was entitled to the undivided loyalty of counsel as defined in the new American Bar Association Code of Professional Responsibility and Canons of Judicial Ethics, Ethical Consideration (EC) 5-14: “Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsis-
It is conceivable that the foregoing facts were produced by utterly inadequate office management; it is tragic that any such inadequacy serves to produce the result of this opinion, causing as it will additional heavy expense to the county in which an otherwise faultless trial was held in which there was strong evidence of the defendant‘s guilt. The situation serves to point up the necessity of the institution by counsel of adequate checking arrangements to prevent a situation similar to that which obtained here.
As was stated in Commonwealth v. Cox, 327 Mass. 609, 614 (1951), which also involved a trial free from error,
Following our opinion in Commonwealth v. Geraway, 355 Mass. 433, a rescript affirming the judgment below was docketed in the office of the clerk of the Superior Court for Norfolk County on March 10, 1969. General Laws c. 278, § 33E, states in part: “[I]f any motion is filed in the superior court after rescript, no appeal shall lie from the decision of that court upon such motion unless the appeal is allowed by a single justice of the supreme judicial court on the ground that it presents a new and substantial question which ought to be determined by the full court.” It is apparent, however, that what is now before us was not before us when we carried
In view of the foregoing we are of opinion that this is an appropriate occasion for the exercise of our power to order a new trial for reasons required by justice. The rescript is withdrawn, the judgment is reversed, the verdict is set aside, and the case is to stand for further proceedings on the indictment.
So ordered.
TAURO, C.J., and BRAUCHER, J., dissenting. We do not agree that “a serious conflict of interest,” in the words of the majority, was shown by evidence, as required by Commonwealth v. Smith, 362 Mass. 782, 784 (1973). In our view any “potential constraints” on the representation of the defendant by his counsel rest in speculation and conjecture. The findings of the trial judge, accepted as true by the majority, show that counsel was not in fact “affected in his judgment or conduct” in his representation of the defendant, that his representation of the defendant was “competent and skillful,” and that the defendant was found guilty “by a jury which had heard a great weight of clear and convincing evidence of his guilt.” Justice therefore does not require a new trial, and the result of the majority opinion by three justices (two of the seven justices having disqualified themselves), which we agree is “tragic,” is an unwarranted application of
This appeal was argued to us primarily on the basis that the defendant was denied his constitutional right to the effective assistance of counsel. The decision of the trial judge on that issue was reviewable on appeal. Earl v. Commonwealth, 356 Mass. 181, 184 (1969). Compare Commonwealth v. Underwood, 358 Mass. 506, 510-512 (1970). The majority opinion does not clearly dispose of that issue. We think that the issue should be decided, and that there was no
1. Where an attorney represents interests that conflict with those of the defendant, it is clear that the defendant has been denied the effective assistance of counsel guaranteed to him by the Sixth and Fourteenth Amendments to the United States Constitution. Glasser v. United States, 315 U. S. 60, 75-76 (1942). Assuming without deciding that the knowledge of Mr. Inker‘s law firm associates can be imputed to Mr. Inker,1 we are confronted with a situation where the defendant is represented by an attorney who simultaneously is representing some of the prosecution witnesses in unrelated civil matters and who has represented in the past some of the prosecution witnesses in unrelated criminal matters. We cannot accept the defendant‘s contention that such a fact situation automatically presents a conflict of interest on his counsel‘s part.
Both State and Federal courts have agreed that such dual representation by defence counsel may be perfectly proper. “One attorney can certainly represent clients, all of whom know each other, in unrelated matters and still render adequate professional service to all. . . . An attorney can represent or know all the culprits and still render effective representation” (emphasis added). Wirth v. United States, 348
(a) Mr. Inker (treating Mr. Inker and firm members as one) was simultaneously representing some of the prosecution witnesses (the Kennedys) in unrelated civil matters. Since this aspect of Mr. Inker‘s dual representation was simultaneous with his defence of Geraway, Mr. Inker owed an ongoing duty of individual loyalty to both Geraway and the Kennedys. However, there is nothing in the record to suggest that the Kennedys’ interests in completely unrelated civil tort suits conflicted with Geraway‘s interests in defending himself against the Commonwealth‘s criminal charge. The only possible contention of conflicting loyalties on Mr.
(b) The more serious allegation of a conflict is based on the fact that Mr. Inker (or members of his firm) had represented a prosecution witness (Dennett) in unrelated criminal cases in the past. The potential conflict of interest that may arise in this situation was described by Judge Waterman in Olshen v. McMann, 378 F. 2d 993, 994 (2d Cir. 1967): “Unlike the situation in Glasser v. United States, 315 U. S. 60 . . . appellant‘s counsel here did not simultaneously represent at trial codefendants with competing interests. Nor was a con-
Thus, we are faced with a potential conflict similar to the one alleged in Commonwealth v. Smith, 362 Mass. 782 (1973). In that case, Smith alleged that his attorney‘s ability to give him effective assistance of counsel was impaired by a conflict of interest arising from the fact that Smith‘s attorney had represented the prosecution‘s chief witness (Reed) on an unrelated criminal proceeding five days before Smith‘s trial commenced. The nature of the dual representation in the Smith case presents a far more compelling possibility of conflicting interests than in the instant case, yet no conflict was found.
Smith and Reed were both arrested for a heroin transaction which occurred on December 26, 1969. Reed pleaded guilty and received a suspended sentence. Smith was represented on this charge by a Mr. Crowley commencing February 10, 1970, and continuing through Smith‘s trial. Before Smith‘s trial, Reed was arrested again for unlawful possession of heroin. On June 11, 1970, the court appointed Smith‘s attorney (Mr. Crowley) to represent Reed on this new offence. Reed was tried, convicted, and sentenced on June 11, 1970. On June 15, Reed withdrew an appeal from his conviction. On June 16, 1970, Smith went to trial and Reed appeared as the prosecution‘s chief witness. In denying Smith‘s claim that he did not receive effective assistance of counsel, we noted that, since Mr. Crowley‘s representation of the Commonwealth‘s witness had ended with Reed‘s sentencing prior to Smith‘s trial, there was no fear that Smith‘s
Thus, the only potential source of a conflict was the possibility that Smith‘s attorney had been given confidential information by Reed which served to restrict Mr. Crowley‘s cross-examination of Reed. See Olshen v. McMann, 378 F. 2d 993 (2d Cir. 1967). We noted in the Smith case that no showing of such a problem had been made and that its possibility “was extremely unlikely” because Reed‘s defence “concerned an event which had no connection with Reed‘s alleged transaction with Smith on December 26, 1969.” After reviewing the trial transcript and the evidence at the hearing on the motion for a new trial, we concluded that Smith‘s contention that his attorney “was inhibited in his cross-examination of Reed, because of confidential communications by Reed or for any other reason, is no more than speculation. A conflict of interest such as to deny a defendant the effective assistance of counsel must be shown by evidence.” 362 Mass. at 784 (1973).
Our holding in the Smith case is dispositive of the problem before us in the instant case. As in the Smith case, Geraway‘s counsel had represented one prosecution witness (Dennett) in prior unrelated criminal matters which had no connection or bearing on the charges against Geraway.3 Thus, there is no reason to infer that Mr. Inker received any confidential communications from Dennett which would have restricted his cross-examination of Dennett when he testified at Geraway‘s trial. To the contrary, our review of the trial transcript indicates that Mr. Inker vigorously attacked Dennett‘s cred-
Thus, no conflict of interest existed in the instant case. As in the Smith case, supra, the defendant‘s contention that his attorney was inhibited in his cross-examination of prosecution witnesses because of confidential communications, divided loyalties, or for any other reason is no more than unsubstantiated speculation. Our conclusion that no actual conflict of interest existed during Geraway‘s trial is supported by State and Federal cases where similar types of dual representations by defence counsel were involved. See Hayman v. United States, 205 F. 2d 891 (9th Cir. 1953), cert. den. 346 U. S. 860 (1953); Weaver v. United States, 263 F. 2d 577 (8th Cir. 1959); Olshen v. McMann, 378 F. 2d 993, 994 (2d Cir. 1967), cert. den. 389 U. S. 874 (1967); Harrison v. United States, 387 F. 2d 614 (5th Cir. 1968); United States v. Alberti, 470 F. 2d 878 (2d Cir. 1972), cert. den. sub nom. Alberti v. United States, 411 U. S. 919 (1973); United States ex rel. Kachinski v. Cavell, 311 F. Supp. 827, 829 (M. D. Pa. 1969), affd. 453 F. 2d 581 (3d Cir. 1971); Wirth v. United States, 348 F Supp. 1137 (D. Conn. 1972);5 Montgomery v. Maryland, 15 Md. App. 7 (1971); People v. Wilkins, 28 N. Y. 2d 53 (1971).
The other cases the defendant relies on where conflicts were found involved situations, unlike that in the present case, where the defence attorney‘s representation of one who consented to be a government witness had not ended because the witness testified prior to his own sentencing. See United States v. Hayman, 342 U. S. 205 (1952); United States ex rel. Platts v. Myers, 253 F. Supp. 23 (E. D. Pa. 1966); United States ex rel. Williamson v. LaVallee, 282 F. Supp. 968 (E. D. N. Y. 1968); People v. Ware, 39 Ill. 2d 66 (1968); State v. Ebinger, 97 N. J. Super 23 (1967).
2. “Since we have found that no conflict of interest exists, we have no reason to decide whether, a conflict having been proven, prejudice must be shown.” Commonwealth v. Smith, supra, at 784 (1973). However, our review of the record leads us to conclude that the defendant enjoyed the services of a thorough and competent attorney who vigorously represented the interests of his client.6 There is no evidence that the defendant was prejudiced by the fact that some of Mr. Inker‘s associates represented some of the prosecution witnesses in unrelated matters.
Our power to award a new trial without regard to technical rules of law should be exercised with primary focus on ultimate justice in the particular case. This means to us that we must concern ourselves primarily with the particular defendant and the particular facts, and hence that we must place primary reliance on the trial judge who has seen and heard the evidence of the live witnesses and the oral contributions of counsel. If there is an aroma of unfairness in the trial, it can be detected far more reliably by the trial judge than by appellate judges reading between the lines of a stale transcript. It is for this reason, we believe, that the trial judge has the unreviewable power to award a new trial, and that we have traditionally been very reluctant to order a new trial when the trial judge has refused to do so.
In this case, we must face the findings of the trial judge: “Mr. Inker, at all times material . . . was unaware” that members of his firm “had ever acted as attorneys for any of the witnesses. . . .” He “was not affected in his judgment or conduct . . . by the legal representation” of the witnesses . . . by attorneys in his firm. His “legal representation of Mr. Geraway in the preparation for trial and the trial of this indictment was competent and skillful. . . . Mr. Geraway was found guilty at the trial of this indictment by a jury which had heard a great weight of clear and convincing evi-
The majority of three “accept . . . as true” these detailed findings made by the judge after hearing sworn testimony on the motion for a new trial. These findings completely and effectively negate all allegations (a) that there was impropriety on the part of counsel; (b) that the defendant was not effectively represented by competent counsel; (c) that the defendant was prejudiced in any way; and (d) that the defendant did not receive a fair trial. On the basis of the record it was virtually impossible for the majority to conclude that the judge had abused his discretion in denying a motion for a new trial. Of course, the majority do not so base their decision.
Rather, with obvious disregard of facts established by the record and the judge‘s findings, the majority decide to grant a new trial under the extraordinary powers of the court as provided in
The majority opinion, on the basis of “potential constraints,” the “web of circumstances and overlapping relationships here,” and the defendant‘s “insistent inquiries about the possibility of a conflict,” uses this case as a vehicle to convey a message to the bar as to “the necessity of the institution by counsel of adequate checking arrangements.” We do not deny that rules of law may sometimes properly serve such a prophylactic purpose, although even in deciding issues of law we should never lose sight of the ultimate purpose to acquit the innocent and convict the guilty. But in exercising a power to do justice without regard to technical rules of law, we should be especially careful to avoid sacri-
In any event, the majority opinion chooses means which do not fit the end. To teach lawyers a lesson in office management, guilty defendants are offered a second chance to escape justice. But the “inadequate office management” was that of a lawyer requested by the defendant. The lesson is to be driven home by awarding a victory to the defendant and his offending lawyer. There is nothing to indicate that the prosecutor or the judge had any part in the offence, but their efforts suffer defeat and frustration, and the public, as usual, sustains the greatest loss. We do not believe that § 33E was ever intended to be used in such circumstances.
4. Unfortunately, the decision of three justices has effectively disposed of the instant case. However, we voice grave doubts whether the power of the court under
Notes
However, imputation of knowledge for purpose of disqualification is based on a presumption of a free information flow between associates of the same firm, a presumption which can be rebutted by evidence in a specific case that there was in fact no free flow of information between law firm members. See People v. Wilkins, supra, 56-57. In such cases where the presumption of free flow of information is rebutted by evidence to the contrary in the record, no conflict of interest will be found “[a]bsent a showing that the particular staff attorney [or particular member of a law firm] who defended the defendant knew of a potential conflict and was inhibited or restrained thereby during trial.” People v. Wilkins, supra, at 57.
On direct examination, Miss Kennedy testified that she went to Chestnut Hill with Geraway when he rented a yellow Ford Falcon automobile. Later Geraway told her that he had “killed a guy” because he thought the man was William Dennett‘s wife‘s boyfriend. After the murder, Geraway stayed at Miss Kennedy‘s apartment because he was fearful that he would be identified by eyewitnesses who had seen him in the vicinity of the murder.
On cross-examination, Miss Kennedy admitted that she had divorced Geraway after two years of marriage and that he was not the greatest husband. He had hit her on one occasion and had been cruel to her because her daughter was not his child, although he knew she had the child before they were married. Miss Kennedy had continued to see the defendant since their divorce though he often bothered her and was a pest. She indicated that Geraway was a liar and a teller of fanciful tales and that she seldom believed what he said. As a result of such testimony Miss Kennedy was presented to the jury as someone who might well harbor deep seated grievances against the defendant and might have a strong motive for wishing him convicted.
Mr. Inker also elicited her admission that for about ten days after the killing she had repeatedly told Lt. Ingenere that she knew nothing about the shooting. Although she had read that another man (Jackman) had been indicted and tried for this murder, she did not volunteer any information about Geraway to the police. She had, in fact, written to Geraway telling him to stop the police from questioning her and stating that she knew nothing of the events. Finally, Mr. Inker examined discrepancies in her testimony before the Norfolk County grand jury, her statement to Lt. Ingenere and her present testimony.