Douglas v. United States

DOUGLAS, Appellant, Bruce STATES, Appellee.

UNITED

No. 82-1048. Appeals.

District of Columbia Court

Argued Sept. 1983.

Decided Feb.

to ineffective assistance did not com- promise ability represent appel- Kane’s effectively lant at trial. The conclud- ed, nonetheless, that inquiry Bar Counsel’s in itself created an insurmountable conflict of interest between Kane client. Hannon, therefore, Judge declared mis- sponte. trial sua that, Appellant contends because court declared a without mistrial exploring ways to accommodate his ex pressed desire to continue with Fitch, Anthony W. Public Defender Ser- trial rights second will violate his under the vice, Washington, D.C., whom A. double clause of the Fifth Amend Jr., Burgess, Franklin Public Defender Ser- agree. We ment. That bars a sec clause vice, D.C., Washington, at the time the prosecution ond unless the defendant con filed, brief, appel- brief were on for was happen sents to mistrial —which did lant. here—or to demon able Peterson, A. Atty., Bruce U.S. Asst. stopping strate “manifest for necessity” Washington, D.C., Stanley with whom S. Perez, the first trial. Harris, D.C., Atty., U.S. Washington, at the (9 Wheat.) 579, 580, 6 L.Ed. 165 filed, time the brief was and Michael W. Although provided Bar inquiry Counsel’s Farrell, Hetherton, Judith Robert F. ample inquire reason for the trial court to O’Neill, Asst. Attys., Washington, ability provide appellant into Kane’s D.C., brief, appellee. were on the assistance, with effective it not consti did automatic declaring tute an basis for NEWMAN, Before FERREN and BEL- Appellant apparently willing mistrial. was SON, Judges. Associate waive constitutional to effective FERREN, Judge: Associate counsel, i.e., lawyer assistance to a un hindered a conflict of interest. trial Appellant challenges a order court, therefore, obliged investigate January pretrial denying his possibility less drastic alterna motion to dismiss the indictment on —this rejecting appellant’s request tive—before grounds of jeopardy. During go forward with the trial. The court’s Judge before in Septem- first trial Hannon obligation explore was en waiver appellant’s ber retained Ger- moreover, hanced, by another constitution Kane, аld received a letter from Office ally protected right appel at issue here: Counsel informing appel- of Bar Kane that right to lant’s counsel of Without choice. filed complaint against lant had a him and waiver, possible consideration of the there Counsel, opening that Bar was accordingly, fore, trial court had no reasonable basis inquiry Appellant an into Kane’s conduct. concluding for there was “manifest necessi lodged complaint Bar had Counsel with ty” appellant a mistrial. Accordingly, for alleged several weeks before trial. It time; prosecuted may not a we second Kane had not made a effort sufficient vacating have no alternative to the chal reduction; a obtain bond it was unrelated lenged directing order and dismissal preparation performance. trial to Kane’s or indictment. appellant unambiguously Both and Kane a

expressed desire for the to continue and TRial I. Facts CouRt PROCEEDINGS Kane as counsel. Judge with Hannon ac- knowledged, 12, 1979, hearing, July after a that Kane’s Appellant was arrested on challenged $5,000 pretrial posting conduct did amount and detained lieu of surety charges appellant bond in post connection with Because was unable crimes, arising separate from two an arm- bond, awaiting he remained incarcerated robbery. grand ed assault an A and armed During spring early trial. and summer jury later returned a count indictment five 1981, appellant sent a number of letters charging appellant one with count armed them, Judge Hannon’s In chambers. he §§ kill, assault intent 22- with D.C.Code explanation offered for his failure to (1973); -3202 one count of armed as- appear for his scheduled court date and §§ rob, 22-501, sault with intent id. requested a reduction of bond. While the -3202; robbery, one count of armed id. appellant’s first letters did two not mention §§ 22-2901, -3202; carrying one count of attorney, each of three later letters con- § pistol license, 22-3204; without a id. appellant’s tained some reference to belief vehicle, one count of unauthorized use of exerting that Kane was not sufficient ef- § 1978).1 (Supp. id. 22-2204 V fort to obtain bond reduction. At no arrest, Soon appellant after his retained however, point, appellant did indicate that Kane, Gerald a member of the District of attorney he Kane wanted removed or Columbia Bar. Kane ap- first entered his that he appoint wanted the court to new pearance preliminary hearing at a July on did, fact, counsel. Kane file a motion to 18, 1979, and one week later filed a bond July reduce on bond 1981. That motion appellant’s review motion for release into was denied. party third custody. The trial court denied At hearing July a status on placed this motion and appellant in a De- partment Scott, Judge halfway substituting Judge Corrections house. Han- 8,1980, May On granted the court non, a second informed appellant’s Kane of com- bond review motion filed Kane and re- plaints about his failure to obtain a reduc- appellant pending leased trial into the third appellant’s Judge tion of bond. Scott then party custody parents. of his questioned appellant and ascertained that wished to September continue to trial with appellant failed to appear date; for a scheduled court Kane as his attorney. Judge Scott conclud- court issued a bench warrant for his arrest. finding ed that there was no basis for Appellant apprehended on March ineffective assistance of he charged violating provisions with permitted Kane to appellant’s remain as (BRA), of the Bail Reform Act D.C.Code Scott, nonetheless, attorney. Judge did in- § Although the court ini- dicate that he appellant’s would refer com- tially joined charge the BRA appel- plaints about Kane to the Office of Bar charges, lant’s earlier charge the BRA was Counsel. later severed and is not аt issue in this July hearing, After the 13 status and at appeal. Appellant’s assigned case was Judge request, Scott’s the Office of Bar Hannon, Judge $25,000 imposed who appellant, asking contacted Counsel he surety bond and Septem- scheduled trial for complaint against wished to file a Kane. appeared appellant’s ber 1981. Kane Appellant complaint, alleging princi- filed a behalf at a proceedings number of related pally diligent that Kane had failed to make charge setting to the BRA to the pretrial efforts for release. Neither Kane bond, and represent appellant continued to charges on the nor the trial court was informed original contained in the about this indictment. complaint began. before trial vehicle, prohibiting 1. D.C.Code -2901 and -3204 §§ were unauthorized use of a has incorporated into the D.C.Code without been amended and is now codified at D.C.Code change. statutory provision providing (Supp.1984). The addi- 22-3815 Because the events § penalties committing statutory tional for a crime while issue in this case occurred before these amendments, amended, armed has been but remains at D.C. the amendments are not relevant 1984). (Supp. § Code Section here. appellant’s techniques The reached case for court discredit the witness’ testimo- trial on September pro 1981. Before ny. Following testimony, court ceeding selection, jury Judge with Hannon adjourned for day. appellant’s raised the issue of dissatisfac morning day On the second Kane, tion with as reflected the letters trial, Kane informed the court that he had to the court several months earlier. Al just received letter from the Office of though Judge previously Scott ques had notifying Counsel him of appellant’s Bar letters, tioned appellant about Judge these complaint. The stated letter that Bar hearing, Hannon decided to pur conduct was opening inquiry Counsel an into suant to holdings this court’s v. Monroе conduct, Kane’s States, that Kane had a (D.C.), United 389 A.2d 811 choice, his and that Kane should (1978), L.Ed.2d 683 Farrell submit ten days response within written (D.C.1978), 391 A.2d 755 to deter appellant’s grievances. mine “pretrial representa whether Kane’s Appellant that he confirmed had filed a tion was range competence ‘within the complaint with Bar Counsel several weeks ” attorneys demanded of in criminal cases.’ indicated, however, before trial. He that Farrell, 391 A.2d at (quoting McMann he had understood Bar Counsel would not Richardson, 759, 771, notify complaint Kane of the an until after (1970)). In re conducted, investigation had been and that sponse questions to a series of from the complaint existence of the not would court, appellant indicated he and Kane Appellant interfere his trial. in- had fully discussed the case and that he proceed keep wished to formed the court: “I would like Mr. to trial with Kane his as Judge attorney. Hannon, finding po- that Kane—and continue this trial.” Kane’s Kane prepared was to render rep effective sition before the unequivo- also resentation at ordered my that, humanly cal: “It’s candid desire go forward. possible, go for the trial to forward.” jury After a had been selected and Judge Hannon responded develop- to this sworn, government both the and defense by noting ment that commencement of the presented opening statements. Kane’s Bar inquiry presented Counsel issues “sub- opening statement set forth defense stantially different” those considered theory, arguing that govern- one at the hearing previ- Monroe/Farrell appellant’s ment’s principal for- witnesses— day. ous Although he reaffirmed earli- girl mer friend —had committed the crimes ruling er pretrial Kane’s did conduct charged attempting and was now to frame not constitute ineffective assistance did exculpate order to herself. compromise ability not Kane’s to continue called as its first witness trial,2 Judge with the Hannon concluded onе of complainants, the two who testified inquiry that the Bar Counsel amounted to that he had been victim an armed “adversary proceeding” appel- between robbery. This witness did make an lant and Kane and thus created a conflict appellant, in-court identification of and his outset, of interest for Kane. At the testimony concerning attempted two out-of- court noted that this conflict of interest procedures court identification reflected se- simply appel- could not be resolved uncertainty because rious ability to the witness’ recognize lant retained ability his assailant. confidence Kane’s On cross-exami- nation, impeachment Kane used represent several him at trial. The court stated “it Judge rights stated Douglas fully Hannon he was "satisfied that the protect- of Mr. would did, indeed, yesterday matter that was resolved ed in trial of this case with Mr. as his Kane put Doug- attorney," whatever conflict existed between Mr. if it were not the Bar Counsel Kane, lawyer, las and Mr. rest and that matter. is entirely [cjourt clear to this that... so and the Office of Bar Counsel. That is long adversary proceeding against as that exists clear conflict of interest that’s all Counsel, Bar this you the Office of the I the canons of ethics that and have go alternative, case cannot forward with Mr. Kane read; and I have no sir. ever representing matter; options [the defendant].” I no have that’s all there is to that. Judge recognized Hannon next conducting any inquiry into Without wheth- Monroe Farrell holdings this court’s appellant er wished waive ordinarily require hearing” “full when a making conflict-free and without potential issue of ineffectiveness of counsel matter, any finding Judge on this fact brought Upon is to the court’s attention. sponte Hannon sua declared a mistrial.3 consideration, however, further he decided ques- We are thus confronted with the hearing purposeless that a would be in this appellant brought tion can whether case; he felt he had no alternative to de again. trial claring a mistrial: inquiry matter kind of an what

[N]o before [c]ourt a conflict as the Gerald Kane as an of the defendant... ^[******] can make at this time.... adversary proceeding of interest between the Office of Bar attorney. and the Counsel, is rights pending there is so rights long be tried twice for the same offense has found western civilization.” Bartkus v. been described as “one of the oldest ideas II. Fifth Amendment PROTECTION ment Double principle op Jeopardy “Manifest that a defendant and the Necessity” Require- may Against not ings [Defendant] [Kane]. ant] ^[******] are before the Bar But, not may very keep so long him. well want to as those Counsel, proceed- [defend- keep long Illinois, dissenting). established Greek and Roman before this Nation’s 3 L.Ed.2d 684 359 U.S. “Its the common law of origins 121, 151, times, (1959) (Black, J., can be traced to and it became independence.” England 784, 795, Maryland, Benton v. I am 395 U.S. going adversary pro- to let an (1969) ceeding S.Ct. your between client and the (footnote omitted). go The American formula- you forward here with representing principle him while there’s an adver- tion of this the dou- —embodied sary proceeding pending you jeopardy clause the Fifth Amend- between ble Contrary position hearing ap- jury”), to its at the the first 439 U.S. motion, pellant's govern- L.Ed.2d S.Ct. Judge ment now concedes that Hannon de- many Unlike cases in which the defendant is sponte, appellant's clared the mistrial sua not at presented requesting choice between request. Although eventually acquiesced Kane continuing mistrial or error, with a tainted in the court’s decision to terminate the he Dinitz, e.g., United States v. Judge did not do so until after repeatedly Hannon had 1075, 1080, (1976), 47 L.Ed.2d upon called him to ask for a mistrial appellant but a here was left with no choice and had stated that a mistrial would be declared circumstances, appellant Under these mistrial. Moreover, with or without his consent. both to a cannot be understood to mistrial, consented already and Kane had informed the by the and the rule that “a motion they wanted to continue with the trial ordinarily for mistrial is assumed defendant possible. Sedgwick Superior if at all Contrast reprosecution,” United remove barrier to Columbia, U.S.App.D.C. Court District 470, 485, Jorn, S.Ct. States (1978) (mistrial opinion), (plurality having not be treated as will been declared over Dinitz, inapplicable. 424 U.S. at objections defense where did not "defendant Cf. (double protects against jeopardy clause at 1081 express obtaining an interest in a verdict from long ment4 —has been understood not with the selection swearing merely finality panel to ensure the jurors. any criminal For rea- number of sons, judgments against protect may perceive and to a defendant the to multiple jury punishments offense, sympathetic be for to his case at the outset. the same but also Indeed, the fre- safeguard to a extensive time and effort obvious defendant’s interest quently spent screening veniremen in attest avoiding a prose- the burdens of second importance to the empaneling attached to a cution when his first trial was aborted—un- receptive jury. 2 A. B. See AMSTERDAM, necessarily Perez, judgment. —before Segal MilleR, 580; Bretz, U.S. at & M. TRIAL Manual De- Crist FoR see U.S. § (1971). 2156, 2161, fense Criminal 98 S.Ct. Of Cases 57 L.Ed.2d 24 This a retaining jury may interest chosen (1978). intensify the proceeds, as trial de- the For Fifth purposes, Amendment fendant is going senses the trial and well jeopardy attaches as jury soon the is leaning the factfinder is acquittal. toward empaneled sworn, or, trial, nonjury and in a case, present example, the for as soon as the to begins hear evi apparently every had reason to believe dence. United States v. Martin Linen progressing favorably; Co., 564, 569, Supply 430 U.S. 97 S.Ct. frameup had announced a theory to the 1349, 1353, (1977). 51 L.Ed.2d 642 Once jury substantially and had undermined the jeopardy attaches, gains the defendant a ability identify first witness’ to “ ‘valued to completed have his trial appellant as his assailant. ” by particulаr a tribunal.’ Braxton v. Second, when a defendant is forced States, (D.C. United 395 A.2d to progress undergo abandon a trial in 1978) (quoting Hunter, Wade v. retrial, a prospects acquittal may an 684, 689, 834, 837, 93 L.Ed. 974 be lessened “the risk that an innocent (1949)). Consequently, unless a defendant may defendant may be convicted” en be mistrial, attempt consents to a begin hanced. Washington, Arizona v. prosecution a second is vulnerable to dis 497, 504, missal under the jeopardy clause. (1978). opportunity present The government’s case a may per second time A. Underlying Jeopar- Policies Double prosecutor compensate mit the for weak dy Against Clause Protection a exposed during nesses first cor Second Prosecution mistakes, generally rect strengthen There are why several reasons this government’s presentation. This “second right” “valued protec merits constitutional jury crack” especially significant is First, tion. a defendant has an interest when there is an is assailant-identification able, all, “being once and for to conclude sue, as in this case. Courts have observed society through confrontation with that government be frequently witnesses verdict of a might tribunal he believe to be come definite in testimony more their favorably disposed to fate.” United more prosecution favorable to the with suc Jorn, 470, 486, States v. trips cessive to the stand. Carsey (plurality U.S.App.D.C. 205, 208- Crist, opinion); see prose S.Ct. at in retaining 2160-61. This interest may having cutor also benefit ob potentially jury initially favorable strategies arises served defense at the first trial.5 judicial prosecutorial prosecutor or actions "intended to It is not inconceivable would provoke” mistrial). deliberately provoke gain a defendant’s to a consent a mistrial in order to subject the benefits and disadvantages the defendant any person subject 4. “[N]or shall be for the preceding para- discussed put Thus, same offense be twice of life graphs. prosecutor might intentionally оr V. limb.” U.S. amend. Const, purpose removing seek a for the mistrial to re defendant’s valued to have his trial

Finally, the defendant’s sup is judgment ceive a at the first trial completed by particular tribunal must inherently— ported by the realization that some circumstances be subordinated prose regard without to the merits of the public’s designed interest fair trials ” grossly cution—“a second [trial] just judgments.’ (quoting end in Id. unfair. It increases the financial and emo 837). Wade, 336 U.S. at 69 S.Ct. at accused, pro tional burden on the [and] reason, when courtroom errors or For longs period stigmatized he ‍​‌​‌‌‌​​‌‌‌​​​‌‌‌‌​​‌​‌‌​‌‌​​​‌‌‌​‌‌‌​‌‌‌‌​‌‌‌​​‍which developments just make a other at trial wrongdo accusation of unresolved judgment impossible, public’s ing.” Arizona, 98 434 U.S. maintaining integrity of the criminal at 829.6 Because these of S.Ct. burdens justice system outweigh will the defend- delay, expense, personal anxiety will judgment, a and the ant’s to obtain inevitably reprosecu associated a with may terminate the trial without the tion, regardless of whether the defendant defendant’s consent and without foreclos- innocent, ultimately guilty is found or a ing reprosecution. defendant need not demonstrate other Story first prejudice seeking to a retrial on Justice articulated Perez when bar jeopardy grounds. apply Illinois v. Som the standard a trial court must erville, 458, 471, 1066, 93 S.Ct. determining whether circumstances war- 1073, objection: rant a mistrial over defense think, nature, that in all cases of this We Justifying B. Policies Declaration aof justice the law has invested Courts of Mistrial, Retrial, over Defense discharge authority jury a with Objection verdict, whenever, giving any from Despite significant these consid opinion, taking circumstanc- their all the weighing against erations declaration of a consideration, es into there manifest objection, mistrial over defense a defendant act, for the or the ends of necessity does not have an to dismiss absolute public justice would otherwise be defeat- simply judge al of an indictment because a ed. the first trial abоrts without defense con added). (9 Wheat.) (emphasis at 580 “readily apparent sent. It is a me Although Story Justice instructed that a prohibiting rule chanical retrial whenever may discre- trial court “exercise a sound compel discharge circumstances of a standard, he applying tion” in this nonethe- jury without the defendant’s consent would power less that the to terminate a advised high price pay be too a for the added the defendant’s consent trial without personal security assurance of and freedom “ought greatest used cau- to be with government harassment such a which circumstances, tion, urgent and for Jorn, under provide.” mechanical rule would 400 “ 480, Rather, causes.” Id. very plain U.S. at 91 S.Ct. at 554. ‘a and obvious by judge harassing acquittal-prone jury, bad-faith conduct or case from an of of the threat of Jorn, repeated prosecutions, prosecutor." a defendant with or of U.S. at 91 S.Ct. at gaining advantages tactical increase the showing While a likelihood conviction. strengthen such deliberate misconduct would 187- v. United 6. See Green claim that double bars a defendant’s 221, 223-24, S.Ct. L.Ed.2d Oregon Kennedy, second ("the power State with all its resources 2083, 2089, (1982), repeated at- be allowed to make should not by a de- we note that the detriments incurred alleged tempts an individual for to convict of a mistrial be the fendant the result offense, thereby subjecting embarrass- him to mis- same even in the absence ment, compelling expense him and ordeal and reason, “signifi- For this a defendant's conduct. anxiety continuing state of to live in a not to interest in the decision whether or cant insecurity”). jury” "independent exists take the case from the 1033, 1034, Accordingly, ne “manifest 10 L.Ed.2d Perez is “a command cessity” States Cool standard (1963) (quoting judges to trial not to foreclose the defend idge, 25 Fed.Cas. (C.C.D.Mass. option ant’s continue until a [to trial] 1815) (No. 14858) J.)), (Story, where it be scrupulous judicial exercise of discretion impossible jury comes for the to reach an leads to the conclusion that the ends of verdict, impartial improper there is con or public justice would not be served duct of such a nature a conviction Jorn, proceedings.” continuation Som likely appeal. would be reversed on satisfy 400 U.S. at at 557. S.Ct. To erville, 1070; 410 U.S. at 93 S.Ct. at command, this engage a trial court must Bristol, United States v. 325 A.2d two-step inquiry. (D.C.1974).7 First, the court must determine whether Second, high degree even when there is a “ development gives ‘high a trial rise to a necessity ordinarily justify that would degree’ necessity” to terminate the trial. mistrial, must determine Braxton, Arizo- (quoting 395 A.2d at 769 whether an alternative measure —less dras na, 831). 434 U.S. at Al- prob tic than a mistrial —can alleviate the though require standard “does not lem so that the trial can continue to an necessity,” demonstration absolute Jorn, impartial verdict. 400 U.S. at Braxton, 395 A.2d at the reasons for 487, Coleman v. United 558; 91 S.Ct. at aborting a trial must sufficient to over- States, 327, (D.C.1982). 449 A.2d 329 jeopardy ride the defendant’s double inter- judge adopt While the trial Id. A mistrial without defense con- need not ests. “ directly alternative runs counter to a justified sent is ‘only very therefore policy,” Somerville, extraordinary “legitimate striking and circumstanc- state 410 ” States, Downum v. United es,’ 469,8 1073, 372 U.S. U.S. at 93 at S.Ct. entitled), denied, 966, approve findings 7. Decisions which of manifest which it was cert. U.S. 425 1751, necessity particular turn on the 96 S.Ct. facts of the case escape meaningful categorization. and thus Somerville, Somerville, In the court declared a mistrial ‘464, 410 U.S. at 93 S.Ct. at 1070. upon discovering that the indictment was defec- Nevertheless, a consideration of these decisions impossible tive and that state law made it to types is useful to illustrate the of matters that by Supreme cure the defect amendment. The traditionally "high degree” necessity create a of that, limiting Court held because the state law (prejudicial for a mistrial. comment Arizona the use of amendments to cure defective indict- during opening defense counsel’s statement "legitimate policy” ments served the state (indictment jury); Somerville discovered to be protecting grand jury process, the state court charge insufficient a crime and not amenda- constitutionally required was not to alter state law); Carolina, ble under state Brock v. North permit law and an amendment in order to avoid 424, 349, U.S. 344 73 S.Ct. 97 L.Ed. 456 protect jeopardy a mistrial and interests. (two important government witnesses invoked 468-71, 410 U.S. at 93 S.Ct. at 1072-74. Courts rights testify); Fifth Amendment and refused to however, not, permitted judges Hunter, 684, 834, Wade v. 336 U.S. 69 S.Ct. 93 reject less drastic alternatives when the state (1949) (military L.Ed. 974 court-martial in field policy compelling at issue is less or can be discharged Army’s when advance made attend- protected resorting E.g., without to a mistrial. impractical); Thompson ance of witnesses v. Coleman, (mistrial granted 449 A.2d at 329 — States, United S.Ct. 155 15 39 L.Ed. problem regarding when Bruton arose use of a (1894) (juror grand 146 found to have served on justified codefendant’s confession—is not under defendant); jury which indicted Simmons v. standard, necessity manifest because trial court States, United 142 U.S. 12 S.Ct. 35 step severing failed to consider less drastic (1891) (letter published newspa- trial; L.Ed.2d 968 continuing defendant’s case and with dou- doubtful); per juror’s impartiality rendered Per- outweigh general ble interests rule that verdict); (jury unable to reach a unanimous charged jointly committing ez defendants with a (D.C.1976) Wright Bristol, v. United 365 A.2d jointly); 365 crime are to be tried 325 A.2d (defense improper (no counsel’s remarks before permitted following at 187 n. 4 retrial mis- trial); jury preparation and lack of sponte trial declared sua in reaction to defense (D.C.1975) behavior, Sedgwick, admittedly unprofessional States v. (mistrial 345 A.2d 465 counsel's "[ojther part based on court’s reasonable belief that because means of and censure discipline attorneys] denied defense was access to information to are available which do [of

133 alternative, not resort to a some a long should mistrial when less drastic as is other course of action or cure determination reasonable. mitigate can See Somer ville, 1068; at S.Ct. at prejudice thereby the trial accommo- Sedgwick, 345 A.2d in retain- date both defendant’s interest (D.C.1975), ing particular jury society’s (1976); Cole just judgments. defensible man, 449 A.2d 329. This is true even that, reviewing court is when the aware Scope C. Review Dec- Sponte Sua question presented in the first laration a Mistrial instance, judges other trial the review —or We next turn to the standards ing might persuaded court well be itself— reviewing apply which court must when Arizona, with the trial. to continue jeopardy.9 a claim confronted of double 509-10, 832-33; U.S. at S.Ct. at attempting prosecu In bring a second Sedgwick, A.2d at 472. granted tion after mistrial defense over evaluating of a reasonableness objection, a heavy bears decision, mistrial the level of ac- deference justify burden the mistrial decision. Ar corded the trial court’s will determination izona, 434 U.S. at at 830. depend particular “the con- problem appropri “The words ‘manifest necessity’ fronting judge.” Arizona, ately characterize the magnitude [this] (footnote 98 S.Ct. at omit- Thus, determining Id. wheth burden.” ted). Supreme Court recognized has barred, reviewing is er a retrial “spectrum problems that there is of trial must “resolve doubt ‘in of the favor ” mistrial,” may warrant a which Downum, liberty citizen.’ problems “vary amenability these in their 738, 83 (quoting U.S. at S.Ct. at 1035 Unit appellate scrutiny.” Id. at Watson, (S.D. ed States Fed.Cas. instance, at 833. For when a mistrial is N.Y.1868) (No. 16651)). Reviewing courts jury declared because deadlocked obligated are mistrial deci “scrutiniz[e]” verdict, and unable to deliberations reach a sions, Somerville, 410 U.S. at or a courtroom the because of error that 1069-70, “satisfy S.Ct. at themselves judge trial irrepara- believes result in judge the trial that... exercised ‘sound dis bias, jury reviewing generally ble a court Arizona, in declaring cretion’ a mistrial.” highest degree should “the re- accord of 514, 434 at (quoting 98 S.Ct. at 835 spect” judge’s trial to the determination Perez, 580). 22 U.S. at 511, necessity.” Id. at S.Ct. “manifest 98 say reviewing This is not to 833; 509-11, a at 832- at see id. 98 S.Ct. at engage court de novо consideration heightened 33.10 for this defer- The reason A necessity” of the “manifest re issue. ence “the trial court is in the best is that accept court viewing ordinarily will a trial all position to assess the factors which “high making necessarily is a judge’s determination that there a must be considered mistrial, the degree necessity” regarding for a without determination” discretionary “reviewing jeopardy] rights court” standards forth here not affect of a de- 9. The set [double 1336, fendant"); Crist, guide appellate v. 1347 both trial and courts 546 F.2d should Bretz decision, 2156, Cir.1976), 28, (9th aff'd, S.Ct. an earlier mistrial 437 U.S. asked to evaluate (1978) (mistrial prosecu- granted a as to both order determine whether second 57 L.Ed.2d jeopardy grounds. of indictment discovered on double counts when it was tion is barred typographical II rendered error in Count defective; necessity” case, course, no type that count "manifest even “[i]f Of support I because judge existed mistrial on Count that the trial has failed record reveals alone, him, proceeded I could have on Count trial 'sound discretion’ entrusted to exercise the only policy weighing against this alter- by appellate with the ... deference the reason for being litigat- Arizona, “the state's convenience native n. disappears.” 434 U.S. at 510 court unit"). ing 28, case as a 832-33 n. 28. 98 S.Ct. at jury’s ability impartial to render an necessity. verdict. Brax- termination manifest 28, ton, Id. at 510 n. S.Ct. 832-33 n. 28. Accordingly, 395 A.2d at 769.13 When, however, a mistrial decision reviewing is based court should look at the record on uniquely factors that are not in determining within the as a whole whether the mis- purview court, trial reviewing trial justified by was necessity.” “manifest court need defer Id. judge’s not to the trial

reasoning and conclusions.11 sum, In reviewing court “ satisfy order to require itself that should ‘the for the basis trial sound discretion was declaring exercised in judge’s mistrial adequately dis order [be] ” mistrial, reviewing Id. court should not closed Arizo (quoting the record.’ na, exclusively focus trial judge’s 517, 836). rea 434 U.S. at 98 S.Ct. at While or expressed sons on a laсk of reasons. judge trial need not set forth reason ing, clause does not man reviewing unless the court is able to judge findings date that a trial make “[p]recise discern from the record justi specific fact or set forth Arizo reasoning. mistrial, fied reasons” for the a second na, 434 U.S. at prosecution 98 S.Ct. at 835-36. permitted. should not be Bris Thus, ‍​‌​‌‌‌​​‌‌‌​​​‌‌‌‌​​‌​‌‌​‌‌​​​‌‌‌​‌‌‌​‌‌‌‌​‌‌‌​​‍tol, specific findings absence of or 325 A.2d at 187. This means that the reasoning in the regarding record “mani support (1) record must both a reasonable necessity,” fest or the lack of less drastic conclusion that the events at trial were alternatives, does not necessarily mean sufficiently serious to override the inter to exercise failed ests of the in completing defendant Id.12 “sound discretion.” Alternatively, a determination that there judge’s when a trial declaring reasons for a were no “measures short of mistrial” that placed record, are mistrial on the “might a review mitigate have sufficed to or cure ing prohibited looking any is not perceived prejudice.” undue Braxton, behind these if they 773; reasons to see accu 395 A.2d at Brady Samaha, rately reflect the support 224, record and (1st de- 667 F.2d Cir. Braxton, 11.Compare (where (4th Cir.1979), denied, 1025, 395 A.2d at 769-73 cert. reviewing court was able (1980); to determine from the 62 L.Ed.2d 659 attorneys record that conduct of Sanders, defense (9th Cir.1979); 591 F.2d “in ordinary,” sense out of the id. (3d McKoy, United States v. 591 F.2d rejected it trial court determination that Cir.1979); Hogan, (2d Dunkerley v. F.2d defense counsel’s behavior threatened to under Cir.1978), counsel) mine effective assistance of with Gori (1979); United States v. Star v. United (5th ling, Cir.1978). (1961) (where mistrial was granted judge’s based on trial assessment that Braxton, 13.See A.2d at 17: 773 n. prosecutor’s questioning might unfairly line of upon The issue review ... is not whether bias, jury reviewing result court refused to sound discretion inwas fact exercised but sharp "scrutinize with surveillance the exercise say whether the record we can discretion"). judge’s] of [the sound discretion was exercised. Where the Reviewing give special courts also should undisрuted upon facts which decision was [a] scrutiny to mistrial decisions when there is compel made a conclusion that there was prosecutor provoked some reason to believe the mistrial, necessity manifest for a a mistrial in an effort to harass or to achieve presumed bewill to have exercised his Arizona, advantage tactical over the accused. reaching only legally sound discretion in 434 U.S. at 98 S.Ct. at 831. correct decision. Con- [Citation omitted.] versely compels where the record a conclu- 12.Although judge’s place a trial failure to rea- inap- sion that a declaration of mistrial was determinative, on the sons record is not review- propriate, the means which the decision ing frequently judge’s courts have found that the was reached is irrelevant. [Citation omitted.] failure to less discuss drastic alternatives has a extremes, however, these Between we must bearing significant on whether discre- "sound rely upon Braxton, indications of record that the deci- tion” exercised. See 395 A.2d at 773; judicial Samaha, sion Brady (1st resulted from an exercise of dis- v. F.2d Cir.1981); [Emphasis original.] Young, cretion. Harris 607 F.2d 1981); during Dunkerley the remainder of the trial. There- Hogan, (2d Cir.1978); fore, reasonable, unless a less drastic alter- available, 59 L.Ed.2d the trial court was native was (2) declaring

justified in a mistrial. Given (A) FIFTH AMEND- III. INTERACTIONOF THE expressed appellant’s and Kane’s desire to Against Jeop- MENTPROTECTION Double go court should forward with ARDY, (B) The Sixth Amendment GuaR- alternative to a have considered feasible antee of Assistance of Effective knowing, intelligent, mistrial: a and volun- Counsel, (C) The Fifth and Sixth tary right to conflict-free waiver Right Amendment to Retain Counsel (3) provides counsel. The record no basis of Choice concluding that a conflict-free waiver of Emphasizing appellant’s unavailing, espe- Sixth Amend- counsel would been right cially light appellant’s ment to effective assistance of coun- of constitutional sel, government argues right there was to counsel оf choice. necessity”

“manifest for a mistrial because Attorney A. Interest and investigation appellant’s Bar Counsel’s Conflicts of Necessity complaint against necessarily Kane under- Manifest adequacy appellant’s mined legal outset, during At the we note that representation. gone Had the trial for- discussion before his declaration of a mis- ward, says government, resulting trial, Judge expressly Hannon never made would conviction have been vulnerable on fact, finding necessity.” of “manifest In appeal. at no time did he evince a concern for the possible jeopardy consequences Appellant responds first, ways: in three decision; appel- he never referred to he inquiry denies that Bar Counsel’s into protected constitutionally lant’s pretrial dispute compro- bond reduction having jury the trial concluded before the mised Kane’s ability provide effective must, nonetheless, already empaneled. We Second, representation at trial. he stresses review the record as a whole to determine that, conflict-free, even Kane were not investigation whether Bar Counsel’s creat- Judge completely ignored Hannon arbi- —or required high degree necessity ed the trarily rejected, without serious considera- support a mistrial. tion—the less permit- drastic alternative of ting knowing, intelligent, voluntary guarantees Amendment Sixth appellant’s right waiver to effective as- prosecutions, all criminal the ac “[i]n Finally, sistance of counsel. appellant as- enjoy right... cused shall have the Judge serts that Hannon’s decision to dis- for his defence.” Assistance of Counsel qualify objection necessarily Kane over in- CONST, giving amend. content VI. fringed on his Fifth and Sixth Amendment safeguard, Supreme has to this Court right to retain counsel of choice. While right repeatedly emphasized that “the acknowledging that the to counsel of assist counsel is the to the effective absolute, choice is not appellant stresses E.g., ance of counsel.” McMann v. Rich significant enough pre- ardson, n. rejecting vent the trial court from a crimi- n. nal defendant’s waiver conflict-free omitted). (citations ele The “first essential solely per- because the court itself of counsel” is ment of effective assistance ceives that a waiver would willingness “to advo ability counsel’s defendant’s best interest. fearlessly effectively” on behalf cate Hurt, (1) 177 sup-

We conclude that: The record of his client. States v. United 20-21, 162, 15, 167- ports finding U.S.App.D.C. that 543 F.2d Kane’s conflict inter- (1976); 386 compromised ability California, est could have to v. 68 see Anders 1396, 1400, 744, 18 738, render effective to 87 S.Ct. assistance U.S. 136 (1967); States, inquiry

L.Ed.2d 493 Tate v. United an reveals that an actual conflict of 261, 269, U.S.App.D.C. 245, exists, 123 359 F.2d objects interest and the defendant (1966). reason, importance For this representation by continued the conflict- ensuring that defense counsel is not attorney, burdened new counsel must be subject any Indeed, conflict of interest which appointed. appoint a failure to might loyalty dilute to the accused has counsel new under these circumstances will long consistently recognized: been lead to a reversal of conviction ob- right guaranteed Arkansas, counsel Holloway tained at trial. “[t]he v. contemplates Constitution 487-91, services of 435 U.S. 98 S.Ct. 1180- attorney solely an devoted to the interests 55 L.Ed.2d 426 Even in cases Gillies, of his client.” v. Von Moltke object where a defendant does not at trial 708, 725, 316, 324, 68 S.Ct. 92 L.Ed. attorney’s representation, to an a Sixth (1948); accord v. Strickland Wash warranting Amendment violation reversal — U.S. -, ington, 104 S.Ct. will be established a convicted defendant (1984) (defense 80 L.Ed.2d 674 counsel on appeal demonstrates that “an actual “owes the duty loyalty, duty client a adversely conflict of interest affected his interest”) (citation avoid conflicts of omit lawyer’s performance.” Cuyler, 446 U.S. ted); 261, 271, Georgia, (footnote Wood v. 450 U.S. at 100 S.Ct. at 1718 omit- 1097, 1103, ted).16 S.Ct. 67 L.Ed.2d 220 (the gives Sixth Amendment rise to a “cor here, In applying these standards we representation relative that is free note that as soon as Kane learned of Bar interest”).14 from conflicts of pursue investiga- Counsel’s intention to an appellant’s complaint, tion of protect acquired he

To to conflict- personal way interest in the he free the trial court has an affirma conducted appellant’s “duty inquire” indepen- tive into the defense—an interest effectiveness of, respects of counsel dent and in possibility whenever “the of a some conflict with, conflict” apparent appellant’s obtaining becomes before or dur Wood, ing instance, trial. judgment acquittal. U.S. at For fear- (emphasis original).15 at 1103-04 If such ing appellant’s complaint that to Bar Coun- expressing general States, (D.C.1979) (estab- 14. In addition to concern 402 A.2d 1237 loyalties might compromise lishing that duty inquiry divided trial court's to conduct representation, findings possibility zealousness of courts have ex- make on the record when pressly recognized brought that a conflict of interest ineffective assistance of counsel is may jeopardize trial). an accused’s to effective trial court’s attention before when, case, present counsel as in the the de- attorney acquires independent person- fense an 16.Although object a defendant who fails to pecuniary al or interest in the verdict or in the trial must demonstrate that "a conflict of inter- manner in which the defense case is conducted. actually adequacy repre- est affected the of his Corona, E.g., People Cal.App.3d sentation” in order to succeed ineffec- (1978) (defense Cal.Rptr. negotiates counsel appeal, tive assistance claim on he or she need royalty agreement property rights to defend- go preju- so far as to show that the conflict see, story); e.g., (appellate ant’s life Hurt Cuyler, diced the outcome case. permitted should bе to withdraw when defend- (constitutionally 100 S.Ct. at 1718-19 brings charg- ant’s former trial counsel law suit defective conflict of interest is never harmless ing appellate appeal counsel’s brief on error); Strickland, (defense see at 2067 libelous). gives counsel’s conflict of interest rise to a limit- Moreover, presumption prejudice). ed cer- Sullivan, 335, 347, Cuyler “personal 15. See tain of interest” so conflicts] (1980) (inquiry attorney’s ability S.Ct. undermine an to render ade- quate representation they require should be initiated court “knows or whenever reversal reasonably particular regard object- should know that a con without to whether the defendant exists"); States, flict appeal Monroe v. United ed at trial or is able to show on cf. (D.C.), A.2d 811 adverse effect resulted from the conflict. See (1978); Cancilla, Farrell v. Unit United States v. (D.C.1978); (2d Cir.1984). ed 391 A.2d 755 Pierce v.

137 20-21, Accordingly, include F.2d at 167-68. might expanded sel later to at 543 be trial, at appellant of ineffective assistance if had refused to his claims waive interest in Kane have an inordinate means would to conflict-free no other conducting calcu- the defense in a manner negative con- curing effects of this any opportunity post minimize for lated to available, finding a trial flict were could criticism of his efforts. This hoc necessity for have manifest a mistrial would judgment compromise professional Kane’s appropriate. been defending this the best means of about case; encourage the particular it could as B. Waiver Counsel of Conflict-Free or trial strate- most standard conservative Drastic a Mis- a Less Alternative to well as deci- gy, as overcautious tactical courtroom Further- sions and demeanor. Next, whether, determine at the we must more, pending investi- concerns about mistrial, declared a there time the court might gation impede communications be- were short of mistrial” “measures might appellant and Kane. Kane tween “might mitigate sufficed to or cure” have sharing appellant about apprehensive arising problems from Kane’s conflict behind tactical deci- the reasons defense 773; Braxton, see of interest. 395 A.2d at appel- refrain to disclosing sions and Coleman, A.2d particular, 449 at 329. In unexpected problem any lant that arose argues appellant that he re- should have during course of Appellant, trial.17 opportunity ceived waive his turn, might question be reluctant to Kane’s pre- independent thereby counsel and alienating trial decisions fear of further con- serve interests midst of trial. tinuing the trial with Kane as counsel. Thus, the circumstances at time of Supreme coop- recognized the mistrial were not The Court has conducive to spirit singlemindedness pur- erative that “a defendant waive his pose ordinarily should a de- underlie of an attorney the assistance unhindered fendant/attorney relationship. Additional- by Holloway, a conflict of interests.” 435 ly, Judge because Hannon had a firsthand (citing 98 U.S. at 483 n. S.Ct. at 1178 n. 5 opportunity relationship to observe the be- States, Glasser v. 315 appellant tween and Kane course over the (1942)); 62 86 L.Ed. 680 see S.Ct. months, give of several we def- substantial Wood, 273-74, U.S. at 101 at finding erence to that the conflict of jurisdiction, as 1104-05. Case law this would adversely affected jurisdic and other well as in federal state ability Kane’s to render effective assist- tions, See, same effect. Lollar e.g., is to the ance to at trial. U.S.App.D.C. v. United (1967); An F.2d 244-46 short, Judge simply had Hannon § (1981); not., A.L.R. Fed. at Bar ignored investigation Counsel’s and al §§ Annot., A.L.R. 4th repre trial to lowed the continue with Kane Furthermore, rules ethical appellant, con senting it is reasonable Judge upon legal profession, which clude that conviction as a obtained deciding to terminate Hannon relied ap result would have been vulnerable accept attorney allow an expressly pealed grounds. Sixth Amendment employment though his or continue even Columbia, A.2d or v. District Scott (D.C.1953), may imрair independent, her own interests U.S.App.D.C. aff'd (1954); judgment, long it Hurt, professional F.2d 860 as U.S.App.D.C. matters, lawyer law- client on such American Bar Association Standards for 17. attorney require yer keep Justice that a law- Criminal defense a record of “the is instructed reasons, stragegic "after make all tactical and decisions yer’s and the conclusions advice 4-5.2(b) with the client." 4-5.2(c). consultation Standard reached.” Id. 1979). (2d disagreement If between ed. there is disadvantages... client that the record “with the consent of so will [or her] op doing after full disclosure.” Model Code Pro- that he is establish ‘he knows what Responsibility 5-101(A) fessional DR eyes and his choice is made with his ” (1981); (1978).18 California, D.C.App.R. ‍​‌​‌‌‌​​‌‌‌​​​‌‌‌‌​​‌​‌‌​‌‌​​​‌‌‌​‌‌‌​‌‌‌‌​‌‌‌​​‍X Faretta v. open.’ 422 806, 835, 2525, 2541, 45 95 L.Ed.2d relinquishment As with the Adams v. United (quoting 562 important rights, other constitutional waiv McCann, ex rel. 269, 279, States 317 U.S. ers of conflict-free counsel must be “know 236, 242, (1942)). 87 L.Ed. 268 63 S.Ct. ing, intelligent sufficient acts done with Thus, accepted before a waiver is of the relevant circumstances awareness conduct, record, on the an should Brady v. Unit consequences.” likely and inquiry sufficient to establish that the de States, ed 742, 748, 1463, 397 U.S. 90 S.Ct. fendant is aware of the to conflict- 1469, (1970) (footnote omit representation; free understands the na Zerbst, see ted); 458, Johnson 304 U.S. potential ture of the risks and the adverse 464-65, 1019, 1023, 58 S.Ct. 82 L.Ed. 1461 foregoing right; effects of that and knows States, Hsu v. United (1938); 972, 392 A.2d that, convicted, he or she will not be able (D.C.1978). 981-87 The court “must in complain appeal that the defense at on dulge every presumption reasonable the conflict. compromised by trial was against unimpaired the waiver of the as Lollar, Campbell U.S.App.D.C. v. United counsel,” 126 376 sistance States, United States Curcio 245-46; 143, 144-45, F.2d at U.S.App.D.C. 122 352 (Curcio I), 359, (1965), 881, (2d 680 F.2d 888-90 Cir. F.2d 360-61 and ensure that 1982).19 Moreover, dangers the defendant “aware of the and the informed and volun- is 1081, 635, (1981); 18. See also American Bar Association Standards 102 S.Ct. Justice, (requiring 969; Agosto, for Criminal Standard 4-3.5 F.2d at v. Curcio 881, (Curcio I), (2d Cir.1982); criminal defense counsel with a conflict of in- 680 F.2d 887 n. 3 independent terest to disclose his or her Armedo-Sarmientо, F.2d United States v. oppor- to the defendant the earliest feasible "[a]t (2d Cir.1975); Special In re 592-93 see also withdrawal). tunity,” requiring not but 366, 374, Investigation A.2d No. 295 Md. arguing disqualification necessary was (1983) (“The Code of Professional Re case, in this also cites DR 5- guidance sponsibility is established for the 105(A) 4-101(C)(4). 5-105(A), and DR DR legal profession protection and attorney's which restricts a conflict-burdened intended, however, public. It is not to be a tool ability accept employment with the consent prosecutor may which a convert into sword clients, only applies of his to situations in which thwarting purpose for the one of the most representation conflict of two or arises from precious rights, of our constitutional that of more clients who have adverse interests. This choice.’’). being represented by counsel of one's present rule is therefore irrelevant to the case. 4-101(C)(4) permits attorney an DR to reveal de- Some courts have recommended that the 19. against client confidences in order to defend given opportunity to confer with fendant be wrongful accusations of conduct. While this independent, counsel before such a outside may rule be useful to Kane if the Bar Counsel See, accepted by e.g., the court. Cur- waiver is pursue appellant’s complaint should decide to further, I, Although practice this cio 680 F.2d 890. implications ex- and its should be knowing always prerequisite be a to a plained before waiver of Kane's waiver, intelligent that it will we believe way suggests accepted, conflict is disqualification it in no ensuring frequently be a valuable means of necessary here. eyes open." acting the defendant "with his Respon We note that the Code of Professional Adams, at 242. 317 U.S. at 63 S.Ct. sibility will be relevant to a trial court's determi attorney nation of whether an should be dis Additionally, must take whatev- the trial court criminal, civil, qualified as well as cases. steps necessary er are to ensure that the defend- E.g., Agosto, United States v. 675 F.2d importance competent appreciate ant is cases, however, Cir.1982). (8th In criminal grav- particular right surrendered and the on, guided focus and be court’s decision must ity See Westbrook v. of the waiver decision. rights: by, the defendant’s Sixth Amendment Arizona, 16 L.Ed.2d both the to effective assistance curiam); (1966) (per Frendak v. 429 States, right to counsel of choice. See Lewis v. United (D.C.1979). A.2d (D.C.) curiam) (per A.2d C.J., (Newman, dissenting), cert. tary impossible character of the waiver should be as a matter of law accord- “ ‘clear, unequivocal, un- manifested ingly dismissed alternative out of ” ambiguous language.’ United States v. hand. Garcia, (5th Cir.1975) case, Whichever was the inference of (quoting Equipment National Rental v. stronger a lack of sound discretion is even Szukhent, than in where trial here cases court is 423, 11 (1964)). L.Ed.2d merely regarding possible, silent less Because an effective waiver of conflict- supra drastic note alternative. See any free counsel would barred subse- case, court, in this admitted its quent Sixth claim Amendment based failure to consider alternative to a mis- interest, Kane’s of conflict well as elimi- yet can we see from the record nated appellant concern that was possible that at least one alternative indeed accept forced adequate repre- to less than circumstances, existed.21 Under these we sentation, it awas reasonable to alternative to owe no deference the trial court in evalu- a mistrial which the court should ex- have ating whether the waiver alternative plored appellant once indicated a desire to adopted. should have been supra continue the trial with Kane’s assistance.20 pages 133-134. We may per- therefore mit only a retrial the record reveals a Judge Hannon’s comments at persuasive why rejection clear and reason mistrial, however, of time make clear that appropriatе of that alternative was on the gave he never serious consideration to the particular presented. facts waiver alternative. inquiring Without into appellant’s competence to waive effective Right C. Constitutional to Counsel counsel, assistance of explor and without Choice; Relationship to Waiver ing specific negative nature of ef Assistance Counsel Effective fects he might believed the conflict have performance during Kane’s the remainder We next must government’s address the trial, Judge Hannon concluded: “I appellant have contention that could not waive alternative, no options sir. I no have right given his to conflict-free matter; and that’s all there is to that.” government argues facts this case. The Judge Hannon either overlooked the need by that the conflict of interest created Bar to consider the waiver alternative or erro investigation ap- Counsel’s so threatened neously assumed that such a pellant’s waiver was to right Sixth Amendment effec- may 20. There quired declaring occasions when the trial court a mistrial —whether —before conflict, perceives client-attorney indicates an appellant pursue complaint still to wished his to reason, inclination to declare a for that no, mistrial appellant Bar Counsel. If were have said to present and—unlike the case—does not receive could Counsel the court have summoned Bar to attorney. Questions resistance from client or whether, circumstances, determine under the may arise as to whether is there consent to delaying closed the matter could be without mistrial, impos- or whether informed consent is agreed, any trial. If Bar Counsel were to have inquiry sible absent trial into whether possible necessity a mistrial have been could the defendant wishes a mistrial or wishes to obviated. proceed waiving counsel. conflict-free We need possi- prеmise opinion Rather than on the questions not address these here. bility appellant that would have withdrawn his Kane, 21. There have been al- against proceeded another reasonable complaint we have Appellant’s complaint ternative to a mistrial. to question appellant presented: with whether Kane, Judge by Bar Counsel about facilitated right had the to waive conflict-free counsel at Scott, pertained pretrial representation. to continuing grievance pursue while his However, Judge Judge both Scott and Hannon attorney’s pretrial conduct. On this about concluded, inquiries, not after that Kane did record, appears willing it that render ineffective before assistance trial. waiver; proceed evidence with a there is no Therefore, properly recognizing while that his Counsel, complaint drop Bar he wished to ruling pretrial own did not cure the conflict explored. since the issue was arising problem inquiry, from Bar Counsel’s Judge in- Hannon nonetheless could have the trial court would to counsel whose effectiveness is unim- tive assistance required reject paired by loyalty. the waiver been divided consideration, alternative, even after full (Curcio II), United States v. Curcio protect public jus- “the ends of order (2d Cir.1982); see Lewis v. F.2d Perez, tice.” U.S. at 580.22 States, (D.C.) United 430 A.2d curiam) C.J., (Newman, (per dissenting), While the correct pointing out that the trial court has a “seri responsibility” weighty

ous and to safe In order to resolve guard a criminal defendant’s constitutional rights, these two it is conflict between legal “comports assistance which necessary explore fully origins more compe least the minimum level of represent and the nature of the to be tence consistent with our standards of of choice. ed Monroe, fair justice,” administration of Many recognized courts have McMann, (citing A.2d at 816 to retain counsel of choice de 1449), only 90 S.Ct. at this is not the protection. Harling serves constitutional right of constitutional dimension to be con (D.C. 387 A.2d in determining rejection sidered whether Alabama, 1978) (citing Powell v. necessary. the waiver alternative is 55, 58, (1932)); 77 L.Ed. 158

Unlike the waiver of most constitu see, Agosto, 675 F.2d e.g., United States v. rights,23 tional the waiver of a criminal Perini, 965, (8th Cir.1982); Linton v. 969 defendant’s conflict-free counsel is but Cir.1981), cert. 207, (6th 656 F.2d 209-11 by right tressed a constitutional to retain denied, 1162, 1036, 102 71 454 U.S. S.Ct. right counsel of one’s own choice—a inde v. Lau (1982); United States L.Ed.2d 318 of, with, pendent and sometimes in collision ra, 52, (3d Cir.1979); Unit F.2d 56-57 607 right one’s to effective assistance of coun Burton, 327, ed v. States U.S.App.D.C. 189 Accordingly, in determining sel. whether a denied, 485, (1978), cert. 332, 584 F.2d 490 right waiver of the to conflict-free counsel 1069, 837, 439 U.S. 59 L.Ed.2d 34 possible was a alternative to a mistrial Dinitz, v. (1979); United States 538 F.2d here, recognize we must that cert. 1214, (5th Cir.1976) (en banc), 1219 denied, 1133, dealing garden-variety we are not with a 429 51 “waiver”,... (1977); States case of but rather with a L.Ed.2d 556 Gaines, (7th Cir.1976); rights, conflict of to F.2d 1043 two constitutional Armedo-Sarmiento, wit, to United States v. right the of a criminal defendant (2d Cir.1975); represented by be counsel of his own F.2d Inman, (4th right choice and the of such a defendant Cir. arguing potential In addition to that the dan- are not before this court and that discussions 22. gers unequivocally expressed open connected with Kane's conflict of interest court his Kane waiver, permit too substantial the were to desire to continue with the trial. government suggested argument at oral Judge may appel- Hannon have concluded that Although rights may most constitutional 23. right competent lant was not to waive his to waived, person does not mean that a has a this conflict-free counsel. There is little in the right accept to insist that a court such a waiver and, speculation support record to this accord treatment other than that or that absence indication the trial court of See, right. the consistent with the exercise of concern, appellant’s competency was a we re- 24, 34-38, e.g., Singer v. United properly fuse to conclude that waiver was 783, 789-791, S.Ct. ground. rejected on that also (ability right by jury not to waive to trial does argued has that Kane had discussions with Thus, trial). right upon nonjury create to insist Judge Hannon off the record before a mistrial reject a trial court decision to a waiver of declared, during and that these discussions right ordinarily infringe constitutional does not continuing Kane indicated reservations about any protected give or rise to a claim representation appellant. of We need note judicial error. Id. only that the contents of these off-the-record 1973), waiving right ant to insist on the (1974).24 Courts have conflict-free counsel. related, distinct, looked two but constitu Faretta, Supreme In the Court formulating norms in the basis for tional held that the Sixth Amendment contains protection. this implied right constitutional to waive the implied Most courts that an have held upon assistance of counsel and to insist “part to right choose one’s counsel is self-representation discerning at trial. parcel right of the the to assistance of right, first the the Court looked to expressly guaranteed” by the Sixth plain language the structure of II, 26; Amendment. Curcio F.2d at Sixth Amendment concluded: “[t]he Harling, see at 1104. A.2d These merely provide Sixth Amendment does not reasoned, more specifically, courts that a defense shall be made ac for the light Anglo-American concept cused; grants personally it accused of the role of an attorney within our adver right make defense.” 422 U.S. system justice i.e., attorneys sarial Simply put, S.Ct. at “[t]he — “personal agents” litigants, serve right personal.” defend is Id. at Faretta, 422 U.S. at 820 n. 95 S.Ct. at underlying S.Ct. at 2540-41. Given this n. agents not as of the state —an constitutional for a concern defendant’s right implied to select counsel free from right to personally, control the defense undue interference by the court is an es dispense Court held that the corollary express right sential to the represent counsel and oneself fol assistance counsel under the Sixth Although naturally. lows self- Amendment. representation literally expressed is language Constitution, it A number of recognized, courts have among rights those which are “essential addition, that to counsel of choice process adversary due of law a fair general is embodied within the more Sixth process” properly and is therefore accorded process right Amendment due of a criminal constitutional status. Id. at 819 & n. decide, limits, defendant “to type within S.Ct. 2533 & n. 15. he Laura, defense wishes to mount.” 56; II, F.2d at 607 see 694 Curdo F.2d at The Court Faretta was careful 25; Garcia, 517 F.2d n. way at 276-77 3. Both stress that it in no intended to dimin- Supreme Court this importance and court have ish the of the Sixth Amendment recognized importance right counsel, 832-33, “the of permitting a at at id. 95 S.Ct. 2539-40, defendant to make decisions central to the a but instead motivated defense,” who, Frendak v. firm United 408 conviction that defendant — all, (D.C.1979); Faretta, 375 personal A.2d see 422 after “will bear conse- 818-35, quences at 95 at “free S.Ct. 2532-41.25 We of a conviction”—must be find for right personally particu- this constitutional basis to decide whether in his particularly advantage.” to counsel of choice in- lar to his Id. to be case counsel is determining “[Wjhatever whether at else formative a defend- 95 S.Ct. at 2541. Tennessee, protecting addition In criminal defend 25. See also v. Brooks choice, right 612-13, 1891, 1895-96, ant’s to select and hire counsel of 358 92 S.Ct. 32 L.Ed.2d right protects indigent right (state an defendant's requiring rule criminal defendants appointed arbitrarily to have counsel re testify either to at outset of defense case or serving attorney “once moved an under a testifying altogether due refrain violates appointment by attorney- and an valid ability process a defendant’s because it restricts relationship established." client has been Har case, plan interferes with defense 1105; ling, Slappy, A.2d 387 at see Morris v. 461 decision, important prevents a tactical 1, 16, 23, 1610, 1618, 1622, 103 S.Ct. 75 exercising tim- control over the defendant from J., (1983) (Brennan, concurring); L.Ed.2d defense). ing of a "critical elеment” of the Court, Superior Cal.2d Smith Cal.Rptr. P.2d may controlling said of those who the Bill of important be wrote interest defense Rights, surely there can be no doubt that may outweigh society’s decisions they understood the inestimable worth of promoting concept jus- “some abstract free choice.” Id. by ensuring enjoys tice” defendant .at (footnote omitted). Moreover, even panoply the full of defense-oriented consti- though “may the defendant conduct his rights. tutional 408 A.2d at 378. own ultimately defense to his own detri- ment, his choice must be honored out of Because the selection of an attor respect ‘that for the individual which is the ney important is often “the most decision a ” lifeblood of the law.’ Id. defense,” shaping defendant makes in Allen, (quoting at 2541 Illinois v. 397 U.S. Laura, 56,27 607 F.2d at we conclude that 337, 350-51, 1057, 1064-65, among defendant’s choice of counsel is (1970) (Brennan, J., L.Ed.2d 353 concur- fundamental defense decisions constitution ring)). ally protected under Faretta and Frendak. This means that the constitutional status Frendak, recognized this court right accorded to counsel of choice de teachings logical that the of Faretta have right rives both from the Sixth Amendment compelling implications that reach be Harling, to assistance of see yond the context of the Sixth Amendment A.2d at and from the to make self-representation. Frendak re decisions central to the defense which is quired accept competent a trial court to inherent the structure of the Sixth knowing intelligent defendant’s waiver pro Amendment and in our notions of due defense, insanity “holding that re cess under the Fifth Amendment. spect per for a defendant’s freedom as a permitted son mandates that he or she be represented by to be to make fundamental decisions about choice, however, is not absolute. proceedings.” course of the 408 A.2d at Although place a defendant’s decision “to Faretta, holding, 376. This like that liberty possibly his life in the hands rigidly reflects both desire tо avoid a attorney may of an of his choice not be paternalistic competent attitude toward a with,” Laura, lightly tampered 607 F.2d at ability defendant’s to determine his or her such a decision overridden in interests,26 abiding respect own best and an id.; certain limited situations. See dignity individual and free will of (8th Shepard, States v. 675 F.2d irrespective an accused that exists Cir.1982); likely Cunningham, whether the accused is to act so as to (2d Cir.1982). acquittal. further the chances of an None theless, types 408 A.2d at 376-78. two Frendak therefore restrictions substan that, proposition for the tially stands at least limit a trial court’s discretion to dis circumstances, certain qualify under a defendant’s a defendant’s chosen counsel. 96, 108-09, Michigan Mosley, Attorneys fungible, eggs, apples v. 26. 423 U.S. are not as are Cf. 321, S.Ct. 46 L.Ed.2d oranges. Attorneys may 96 (White, 313 differ as to their J., ("unless concurring) an individual is strategy, oratory style, impor- their or the incompetent, rejected past we have in the they give particular legal tance to issues. protecting paternalistic rule a defendant from differences, range These all within the of ef- intelligent voluntary his decisions about his competent advocacy, may fective and be im- [Citing criminal own case. To do so Faretta.] portant development of a defense. It is ”) ‘imprison privileges.’ be to a man in his would generally the defendant’s to make a omitted) (footnote (quoting Adams v. United choice from the available counsel in the devel- McCann, 269, 280, ex States rel. 317 63 S.Ct. reality, opment of his defense. Given this a 236, 242, (1942)). L.Ed. 87 268 particular to a at- defendant's select decision torney type becomes critical to the of defense Laura, 27. See 607 F.2d at 56: he will make and thus falls within the ambit reject reality sug- We would if we were to of the sixth amendment. lawyers homogeneous gest group. a are

143 First, procedural placed only there are re limitation be “[t]he strictions on a power trial court’s to inter right to retained counsel of choice is ferе with a defendant’s selection of coun impede or the client’s selection sel. denying Before request a defendant’s orderly jus administration of disrupt the to waive proceed effective assistance and (citation Harling, 387 A.2d at 1104 tice.” representation by chosen a Poulack, omitted); see United States trial court ordinarily must hearing “hold a Cir.) 83, (1st (“the right of an F.2d to assess the attorney’s extent of the ethi to choose his own counsel cannot accused violation, cal disruption delay or upon in a manner that will be insisted procedures courtroom by unquali caused orderly procedure”), obstruct reasonable representation, fied and whether the de 986, denied, 434 U.S. t. cer fendant’s attempted waiver is made know 613, (1977). L.Ed.2d 480 Under S.Ct. ingly Lewis, and intelligently.” 430 A.2d guideline, permit rep a court need not this (citations omitted); at 531 see Morris v. by person properly resentation a who is not Slappy, 1610, 461 U.S. it,29 qualified practice by or a before 1623, (1983) (Brennan, J., qualified attorney conduct threatens whose concurring) (trial obligation court has orderly progress disrupt of the tria inquire possible into means of accommodat necessarily a abuse its l.30 Nor does court ing counsel). defendant’s choice of Al though by refusing interrupt a trial or hearing may dispensed discretion be with in cases, Lewis, certain rare see 430 A.2d at grant a motion for continuance to facilitate reject a decision to a defendant’s cho Also, defendant’s choice counsel.31 sen counsel without findings or reasoned orderly justice” may “the administration of support generally will constitute error. require attorney disqualified that an be See, Laura, e.g., 607 F.2d at 57-58.28 legitimate protect interests of some

person party or other than the defendant. instance, For a defendant’s interest re Second, a trial court decision taining particular attorney may out be denying a representation defendant by weighed -by the interests of one of that counsel of choice will proper only if motivated legitimate attorney’s certain former clients who seeks dis- concerns: menced, 28. Because of question the context in which the replace in order to allow defendant to case, express arises we no view as to the present attorney with counsel who was total degree shown, prejudice any, that must be ly suffering unfamiliar with the case and from a when a defendant first raises the issue of an physical seriously affliction that would have im erroneous denial of the to counsel of paired trial); ability to function at Giacalone post-conviction choice in a appeal. Lucas, (6th Cir.1971) 445 F.2d 1240-44 (pretrial request denial of for indefinite continu Wilhelm, E.g., 29. United States v. 570 F.2d problems ance to accommodate medical of cho (3d 1978) (defendant Cir. is not entitled to be improper sen counsel not where such counsel’s represented by lay person); United States v. trial), prepared go associate was forward with Grismore, (10th Cir.1976) 546 F.2d denied, rt. (court may ce attorney exclude disbarred (1972); Grow, L.Ed.2d 793 United States v. it). practicing before (4th Cir.) (right F.2d to choose counsel See, e.g., Wright v. United A.2d permit delay does not defendant "to obtain (D.C.1976) (defense attorney’s prepara lack of denied, caprice”), his whim and improper jury tion for trial and remark before A trial justified counsel); appoint mistrial to new Unit court’s failure to take measures to allow a de Dinitz, (5th ed States v. fendant to continue at trial with his retained Cir.1976) (repeated disruptive instances of con however, may, under other circum attorney duct warranted removal of defense Gandy stances constitute reversible error. See case), cert. 97 S.Ct. Alabama, 1318, (5th v. 569 F.2d 1323-38 Cir. 1133, (1977). 51 L.Ed.2d 556 1978); States, 298, v. United 288 F.2d Releford 528, (9th Cir.1961). E.g., Lewis v. 31. United A.2d 299-302 (D.C.1981) curiam) (trial (per 529-31 court did continuance, denying not err in after trial ‍​‌​‌‌‌​​‌‌‌​​​‌‌‌‌​​‌​‌‌​‌‌​​​‌‌‌​‌‌‌​‌‌‌‌​‌‌‌​​‍com- choice”; qualification prevent “fully capable making or dis- the misuse that closure of confidential information.32 rejected therefore should not waiver ab- reаson”).33 Thus, “adequate long

sent impede as the conflict of interest will not court, however, A trial should not progress adversely the smooth of the interfere with a defendant’s choice of coun legitimate par- affect the of third interests solely purpose protecting sel for the ties, “disrupt orderly or otherwise ad- right defendant’s to effective assistance of Harling, justice,” ministration of 387 A.2d counsel —even when effective assistance is 1104, a trial court should not force a by If threatened a conflict of interest. competent forego representa- defendant right to counsel of choice conflicts with the choice, by tion counsel of even when dis- right attorney loyalty, of an of undivided qualification per- would further court’s right the choice as to which shall take ception of the defendant’s best interest.34 defendant, precedence must be left to the contrary holding patronizing A would be properly informed of that choice. Cun II, 1073; toward defendants and would them of rob ningham, see Curcio 672 F.2d at I, 22, 25; right freely present their to choose how to Curcio F.2d at F.2d at 888; Garcia, 276-77; see also only the law. Not 517 F.2d at themselves before Agosto, of Faretta (although 675 F.2d at 976 court principles would it subvert Frendak, questioned advisability of defendant’s right which underlie the by choice, choice of a counsel a conflict burdened counsel of it would also stand the interest, it reasoned that defendant was right Sixth Amendment to effective assist- 971, 974-76; E.g., Agosto, attempts right 32. 675 F.2d at United involved to waive the to conflict- Ostrer, (2d Cir.1979); brought States v. F.2d that were free counsel to the attention Kitchin, pretrial; they United States v. 592 F.2d 903-04 of the trial court and ruled on denied, (5th Cir.), independent cert. therefore did not consider the limi- (1979); placed 62 L.Ed.2d United v. States tations on trial court’s discretion Kauf man, (2d Cir.), requirement 429 F.2d clause and its Second, necessity.” 400 U.S. (1970). "manifest to the extent should, course, suggest The trial court make these cases that a trial court over- every сompetent effort such a case to accommodate the ride a defendant’s informed choice solely interests of both the former client and the de of counsel based on the court’s determi- fendant, possible. Cunningham, 672 F.2d at nation that the defendant’s best interests would by substituting reject new we 1071. be served contrary principles them as Faretta permitting In addition to the reasons for dis- right Frendak which underlie the to counsel of qualification in the of chosen counsel discussed choice. text, consistently held a trial it has been enjoys appointing noting right It is effec- court wide latitude counsel also worth indigent E.g., defendants. United States v. tive assistance and the to counsel of choice Davis, (7th 1979); ordinarily complement 604 F.2d 478-79 Cir. see will each other. Annot., cases, generally 66 A.L.R.3d 996 Once most the defendant will want to have attorney- gladly appointment valid is made and an effective assistance of counsel and will established, relationship acquiesce replace client has been how- trial court’s efforts ever, attorney. relatively indigent precisely incompetent defendant has an In those an upon representa- particular where a rea- to insist continued few cases defendant has same wanting represented by as does a defendant who retains counsel. sons for to be counsel tion Harling, interest, "respect for the A.2d at 1105. with a conflict of integrity of the court” which concerned the recognize the Third Circuit has We Flanagan Third Circuit in and Dolan will be problem giving adopted approach to this adequately preserved by the trial court’s insis- and, greater consequent- fully discretion — tence that the defendant’s waiver be in- deciding ly, less discretion —in the defendant voluntary. formed rights predominate will of these two which II, (government’s represented by to be 34.See Curdo 694 F.2d at a defendant chooses when seeking disqualifica- "appropriate has a conflict of interеst. See concern” who Flanagan, protect tion of counsel to defendant’s 679 F.2d 1075- (3d Cir.1982), grounds, representation rev’d on other is limited to "avoid- conflict-free ing 76 259, (1984); obtaining interruption trial and ... Dolan, appreciable convictions free from threat of suc- States attack”). Cir.1978). (3d We first note that these cases cessful by limiting continuing on jeopardy anee its head defendant’s ble interest in with the ability at to make or her own case trial. proceeding. Jeopardy his attached had with Adams, at 242 See swearing jury; and of the selection (“What protections as for were contrived strategy unusual had somewhat defense the accused not be turned into fet- should opening argument; in been revealed ters.”). presented counsel had elaborate defense govern- of the cross-examination of one sup- provides The record in this case no witnesses, resulting complaining in port Judge for interference with ment’s Hannon’s appellant’s Appellant’s counsel of choice. that the witness uncertainty substantial complaints Bar assailant; to Counsel dealt with identify appel- could his and both appellant’s pretrial Kane’s efforts to obtain go expressed lant and counsel desire to release, Judge specifically and Hannon trial with trial. The court was forward preparation per- found that Kane’s for and significant required acknowledge this prevent formance at trial not con- could jeopardy deciding in wheth- representation. note supra tinued See 2. mistrial, permitted er to declare Nor is there that contin- evidence Kane’s “option appellant’s go to the foreclose representation appellant ued have would only scrupulous jury” first after “a exer- disrupted proceeding the trial or threat- judicial Jom, cise discretion.” of a More- party. ened interests third S.Ct. at 556-57. record over, repeated aside from his assertions that this was not done. The trial reveals investigation that the Bar Counsel made evincing court declared the mistrial without representation appel- Kane’s continued any concern for the double conse- impossible, Judge lant made no Hannon quences appellant’s of its actions or for the findings gave no reasoned explanation choice, constitutional to counsel of why a waiver of effective assistance was giving adequate and without consideration improper. circumstances, Under those we less drastic alternative —waiver of cannot conclude that the waiver alternative appears conflict-free counsel—that inappropriate. would been the record to have been Accord- available. ingly, the indictment in this case must be IV. SUMMARY dismissed.35 mistrial, At the time the court declared a

appellant developed significant had dou- So ordered. Basically, dissenting colleague ing our would conflict to the court in chambers before Judge sponte sustain day Hannon’s sua declaration asked to the second had withdraw mistrial, ground of a necessi- manifest supra but see the fact note re- ty, because of a that should belief this court acknowledges ap- mains —as dissent —that grant greater deference to trial court discretion pellant court, unequivocally, open thereafter asked we, majority, than conclude Constitu- to continue Kane the trial with as his permits tion on the facts of this We be- case. attorney, unquestionably and Kane acceded to response lieve a order. is in request. wrong plainly The dissent is that place, colleague incorrectly appellant eventually imply In the first our Kane short, premises perception away position. his dissent on a that the from that backed altogether any respect acquies- sponte trial court did of defense act sua is not in case record, declaring perсeption only the mistrial —a cence in a mistrial. On this acknowledges justification for a would have to be itself is not true. mistrial objection. supra way, colleague necessity note 3. Put another over defense As our manifest however, apparently opinion, some- there was believes this case falls we elaborate our necessity request where in a mis- trial court consid- between a defense no manifest absent necessity appellant’s right trial and over waive conflict-free manifest for a mistrial eration objection, authority defense counsel. event, Second, that, any says court to declare a mistrial under circum- the dissent such legal authority stances. The cites no could not have waived conflict-free dissent situation, disagree. recognizing hybrid on the We We such a facts here. why obliged court was event there is no in the facts for such a have elaborated basis Kane, attorney option perception. explore that the circumstances Even if in disclos- under

BELSON, dissenting: day of Judge, the commencement second Associate The Assistant Attor- trial. United States words, found To use his defense attend, so. ney was invited to and did relationship “in with adversary himself reporter present, the While no court was (his client) in an Douglas Mr. ... also unchallenged prosecutor a statement of the gravamen adversary relationship due to the later in that open short time court was complaint against by of the Mrs. [him] she, (his mother) to Douglas client’s counsel had in chambers because defense moved fact, paid in the added “it fee.” Counsel from the After a brief withdraw case. seems to me I’d be in a conflict of also discussion, judge the and counsel entered interest.” statements Counsel made those and, presence the courtroom the during hearing day of held on the second defendant, judge problem for the stated the lengthy what was to have trial. been a so, doing judge After the said the rеcord. hearing purpose was for the held “pretty strong myself he had a notion that determining problems how resolve the regarding required,” what’s but asked de- brought urgently that defense counsel had counsel to matter. Coun- fense address the upon to the attention of his learn- the court hearing “I wouldn’t to have a sel said want ing lodged that his client a written had se; per my I would have client but like to complaint against Bar Counsel him with exactly position a statement make what the manner in han- over which counsel was myself, my a vis client and his is vis both dling very the trial. The trial case on mother.” judge, appreciating com- that defendant’s background of Defendant discussed the plaint against had retained counsel bur- matter and said he “would like to dened counsel with conflict of the a serious interest, counsel, declared a I think he keep mistrial. Mr. Kane” as defense “and doing acted within discretion so. replied judge continue this trial.” The trial I dissent. Therefore keep could Mr. Kane so that defendant not the matter Bar long pending as was before A facts are in few observations about the colloquy, After Mr. Kane Counsel. further problem order. The that led to the mistrial position stated his as follows: “As the raised, sponte, sua by not was out, Instead, pointed I’m in an adver- court involved it defense judge. was raised Kane, sary proceeding my with client. At the requested Mr. a meet- who ing my before time client he wants me his chambers same indicates dissent, presented. simply supra We add that the dens. See Part These are risks for II.A. discounting defendant, option, (or the waiver relies on cases not for the trial court inapposite court),

that are do not address the unfairly and/or to evaluate. mini- The dissent constitutional considerations that should inform significance appellant’s expressed mizes the analysis. supra notes 31 and dis though desire to continue with the trial. Even cussing A.2d Lewis United through proceeded only “the trial here had (D.C.), testimony opеning witness,” of one statements and the (1981); States v. Flana post at explained 148 n. we have (3d Cir.1982), gan, F.2d 1072 rev’d on other why appellant perceived have that events grounds, during day full it the first of trial made desir- (1984); Dolan, L.Ed.2d 288 for him to waive counsel and able proceed conflict-free (3d Cir.1978). F.2d supra pages to verdict. See Finally, lip pays to a de- the dissent service By asking go trial, appellant forward with the post at double interests. See fendant's preserved right to have the trial court con- mistrial, appellant prevent was To n. 3. option. sider that implies, prove required, dissent dissent, sum, emphasizing trial court underlying policy this Fifth reasons discretion, does not the critical fact focus on were, respects, any or all Amendment appellant unequivocally an- Kane applicable specifically case. This consti- to his desire the trial. nounced their to continue with against protect exists one tutional legal grips central Nor does it come with the jury, losing favorably disposed of less- risk of appellant's jeopardy interests and issues: ening prospects acquittal for second choice. his constitutional to counsel of increasing and financial bur- emotional and of my continue in the It’s candid case. less than a month before mis- that, possible, desire humanly trial was declared: go forward.” After Mr. Kane (1) My lawyer has failed to me contact again noted adversary that he in an I only while have been incarcerated. He relationship acknowledged the conflict manages day my to see me on the interest, the trial court informed him appearances. that either he could for a move mistrial and lawyer My prepar- did not seem to be during a continuance which the situa- my hearing. ed for bond reduction might resolved, tion or court could (3) My lawyer my calls mother to tell her sua sponte declare a mistrial.1 After a my what has about he done when during recess spoke which counsеl to his mother calls the court she finds out that mother, client and his client’s Mr. Kane fact, lawyer’s the statements are in not prefaced moved for a mistrial. He his mo- happening true. This been has constant- following tion for mistrial with the state- ly during my six-month incarceration. ment: (4) lawyer explain to My failed to the all, First of I’d like to thank the Court judge why army taking away the was me very your much for kindness in this mat- court, gave as from the a result the court I deeply appreciate ter. say, it. I would my me a B.R.A. which increased bond. also, my position in case is such that my judge very angry The with was law- being in adversary relationship with yer larger and the result was a much my prosecutorial

both client and the bond, pay. which I cannot forces as representing my the result of (5) my lawyer doing job Had been his client, I find it to difficult make a motion competence, with the least bit of I would if, fact, because I wonder in I have stand- jail, to trial and and been out ing to make a on my motion behalf of gross injustice his to client this is me. But, if client. I standing do have has What he done? I to see would like client, make a on my motion behalf of I work, prepared the if he has not this case do so move to have this matter resolved. I properly portion would like a of his fee me; it I only returned is fair since am Although both Mr. appellant Kane and had paying for services rendered and receiv- expressed preference earlier proceed- for ing nothing. ing objection neither voiced an grant the of mistrial. The letter Bar Counsel that forwarded complaints the to defense counsel instruct- foregoing The facts serve to illustrate ed required counsel that he was to submit played the roles defense and in duplicate setting a statement forth his leading up in the discussions position days within 10 of the date the They especially the mistrial. the show con- letter, advising him he could cern defense counsel felt over his status represented by counsel of his choice the and his ambivalence practicality about the matter. propriety continuing of his with the respect appellant, referring trial. With it is worth role It is also worth the adding specific language government bringing of the com- about the mis- Indeed, plaints against attorney. that he made trial. There was none. complaints writing by brought Douglas These were made in Mr. be- had acknowledged completion court 1. The did not include of the to withdraw and chambers options, relationship adversary one of client trial as defendant’s and for that both his with his government's reason brief concedes that the conflict of interest. See United States v. Perez, (9 Wheat.) 579, declaring action in 6 L.Ed. 165 court’s a mistrial should be (court J.) (Story, sponte. to have been sua considers all the cir- deemed taken That necessity preclude for concession does us from consider- cumstances to determine manifest mistrial); Hunter, 684, 689-90, necessity" analysis ing in our “manifest Wade v. discussion, 834, 837-38, (1949) (same). counsel initiated moved 93 L.Ed. 974 defense adversary relationship.3 charges fore the for trial on the him, [majority opinion Act against except Bail Reform seq.'] 139 et The ma- violation, Friday, September either “Judge Hannon jority concludes that ques- year the mistrial almost before to. consider the waiver the need overlooked jury here. The selected but not tion was erroneously or assumed alternative over the Appellant sworn. was returned impossible as a matter such a waiver was third-party custody weekend of his into alter- accordingly dismissed this of law and reap- parents. He absconded rather than [majority, supra, at out of hand.” native pearing for trial and a bench warrant is- Asserting that the trial court admit- 139] following day September sued on 8. The consider alternative ted its failure to jury discharged. was After the bench possible alternative exist- when at least one appellant’s for arrest was exe- warrant ed, that “we owe no majority concludes cuted, govеrnment again prepared for evaluating deference to the trial court proceeding trial and as de- should have the waiver alternative whether complaints appellant’s scribed until above adopted.”4 Id.., been at 139. concerning counsel were his defense brought say fairly to the attention of the court.2 disagree entirely I that we can judge to exercise discre- that the trial failed majority opinion especially critical necessity tion his determination having of the trial failed to con- simply quick he was a mistrial because sider, mistrial, giving as an alternative to actual up size the stark nature of counsel’s opportunity to waive his the defendant an decisively and acted af- conflict of interest right independent go counsel and to for- hearing ter from counsel chambers despite with Mr. Kane their conflict ward having open- defense from heard one another’s 2. Where mistrial is declared because of the con ing examining the first witness. government, example, statements and of the for in not duct case, discovery gained witness’ go apply defense of that being The testimony. able to forward with its we government may may or The scrutiny declare a mis strict to the decision to up by 497, 508, profited reference to a frame the Washington, v. 434 U.S. trial. Arizona is, opening It statement. 824, 831, the defense counsel’s (1978); Routh 98 S.Ct. 54 L.Ed.2d 717 event, government any entirely clear that the States, (D.C. A.2d 645 v. United 483 any provoke gain a mistrial to did not seek to 1984). contrary, This is not such a case. To advantage. such the mistrial was declared for the benefit since defendant, policy consideration is derived from The third appropriate. a deferential review is burden the increased financial and emotional 465, Sedgwick, A.2d defendant, peri- prolonging upon and the States, (D.C.1975) (discussing Gori v. United stigmatization In this od of his as an accused. (1961), S.Ct. U.S. case, prolon- considerable the defendant caused Jorn, S.Ct. United States v. by fleeing gation оf his status as an accused Somerville, (1971), 27 L.Ed.2d and Illinois v. little interest first trial. He demonstrated L.Ed.2d 425 charges lifting any im- burden the emotional denied, (1973)), cert. flight directly posed resulted on him. His (1976). 48 L.Ed.2d imposed incarceration. financial burden majority policy also invokes three reasons 3. The majority opinion no time did 4.The states that at support analysis, they reversal. On furnish judge the double trial evince a concern for support for that result. The first is the little mistrial, (pp. jeopardy consequences of a 135— right the trial before a defendant’s to conclude 145) opinion also states that the trial The favorably disposed jury to be toward he believes appellant’s judge constitu- never referred to ex- Neither defendant nor his counsel him. having tionally protected the trial jury disposed. pressed the view that the was so already jury im- before the that was concluded majority indicates that this interest also paneled. are unwarranted for Those statements proceeds. trial But the trial intensifies as the safely can The first is that we two reasons. only through opening proceeded state- here had judge aware of assume that the trial was well testimony and the of one witness. ments Secondly, elementary concepts. in his these pros- policy colloquy before reason stated is that and the defendant The second mistrial, ordering judge acquittal may upon adverted to the pects be lessened retrial. for sworn, jury and the trial had been indication in the record that the fact that There is no real begun. had would benefit more than discussing length precedence the matter at some on as to which shall take defendant, hypothe- properly must left to the the record. It is not difficult to many examples [majority, size other of conflicts so informed of that choice.” su- pra, at they judge that serious would lead a 144] correctly they

to conclude warrant a disagree. previously I This court has appellant’s mistrial evеn in the face of will- accept that a “trial held court need not ingness majority’s to waive them.5 The attempt defendant’s to waive his analysis apparently proceeds from the view counsel who is free of ethical violations.” defendant, having if the ade- been 430 A.2d Lewis United quately informed of relevant considera- (D.C.), tions, knowingly intelligently had Lewis, In interest, waived conflict of that would we affirmed a trial court’s restriction of a judge have concluded the matter —the trial defendant’s choice of without a would have had to accede to defendant’s hearing, “apparent because it was ... on majority waiver. The seems to take the case, judge the facts of this the trial [that] judge view that if the trial could not have reasonably could conclude a formal without appeal having accept- been reversed on inquiry that would be unable to [counsel] waiver, ed the it follows that he was re- surmount his violation of the ethical ... quired accept premise it. I think that precepts [adequate preparation compe faulty. tency] recognized ...” at 531. Id. We view, my gravity although of the conflict of Lewis the trial court normal interest and subtlety ly its warranted the trial would hearing conduct a to assess the judge’s violation, might effect, action. While it disruptive have been ethical and of explain waiver, difficult to effectively to a defend- fered in some circumstances the ant, it undoubtedly at once hearing obvious restrict without a type particular that a conflict of the attorney defendant’s to a involved here would relationship obligation protect alter the in view of “the court’s attorney’s between counsel and client and could lead defendants from their chosen vi unpredictable ways varied and designed protect olation of ethical rules changes in the manner which defense the defendant.” Id. at 530. counsel would conduct the trial. It could Dolan, Similarly in United States v. openness affect the of communications be- (3d Cir.1978), F.2d 1177 the United States counsel tween and client. It could lead Appeals Court of for the Third Circuit held try counsel to to make a record which required that a trial court is not to accede protect

would counsel rather than vindicate conflict of interest when to a waiver of a his client. Even if his client would have actual, distinguished faced with an charges, withdrawn his counsel could well potential, part conflict on the of an attor- anticipated have that a client who had ney codefendants. representing two charges made withdrawn such before Again, Flanagan, again. them would make Cir.1982), (3d F.2d 1072 rev’d on other grounds, majority

The states that “[i]f (1984),6 stat- of choice the Third Circuit counsel conflicts with the to L.Ed.2d attorney loyalty, of undivided the choice ed as follows: jurisdiction example, listing appellate lacked over 5. For of conflict situa- Hurt, pretrial disqualification tions set forth in United States v. U.S.App.D.C. of defense counsel in 19 n. 166 n. appeal prosecution such an criminal because (1976), counsel 21 who, the court refers to a defense excep- order not within the narrow collateral separate proceeding, repre- in a civil tion. 465 U.S. senting his client’s victim. Supreme On remand from L.Ed.2d 288. Court, appeal. the Third Circuit dismissed Supreme 6. The Court reversed the Third Cir- Cir.1984). (3d Although opin- 730 F.2d 945 Flanagan ground that cuit’s decision in on the however, follow, oblig- by appellant It does not that be- waiver would have been cause atory. judge defendants waive The trial in this case was separate representation poten- free from potential faced not with a conflict of inter- .conflicts, they tial have an absolute est but with a serious actual conflict of otherwise, right, constitutional or to have view, my of- appellant interest. had accepted by such waivers a court. A fered to waive the conflict after further truly knowing intelligent ac- waiver hearing, judge the trial would not have cepted by the court will insulate a convic- Rather, required accept it. he act- been perspec- tion from later attack. But the concluding ed within his discretion judge tive a trial court need the circumstances necessitated mistrial. limited to a concern not to convic- See United States Perez Wade v. tion overturned. Hunter, supra, note l.7 (footnote omitted). Referring Id. at 1076 The sum of ‍​‌​‌‌‌​​‌‌‌​​​‌‌‌‌​​‌​‌‌​‌‌​​​‌‌‌​‌‌‌​‌‌‌‌​‌‌‌​​‍the situation us is before Dolan, opinion supra, to its earlier people being deprived The this. are “In court added: addition to the trial day charges against their in court on the judge’s being post- free from appellant. They being deprived are thus attacks, conviction we mentioned the appellant’s by first reason of abscondance profes court’s concerns about breaches of secondly from his first trial and because respect sional ethics and for the in about the differences between and his (footnote tegrity court.” Id. at 1076 at the time of the second trial led omitted). See also United States v. Hel to declare the mistrial that ton, (S.D.N.Y.1979) F.Supp. majority respect- deems erroneous. I (conflict waiver). strong permit too fully precedents dissent. The do not call considerations are not limited situa Such is, sense, for what in an almost literal single attorney represents tions where a miscarriage justice. multiple Hurt, supra, eodefendants. U.S.App.D.C. at 543 F.2d at 166. holdings do above not deal with dou- Nevertheless,

ble claims. their

recognition judge may that a trial reject

proffered waivers conflicts of interest is majority’s

at odds conclusion that

acceptance intelligent of an and informed and, reported precedential upon appellant’s ion F.2d 1072 lacks come to the courthouse value, reasoning nonjurisdictional on the complaint, proceed- withdrawal of his close the helpful. waiver issue is ings against defense counsel. It is no means certain that Bar Counsel would have taken such requiring

I7. think it would be too much of the action, or indeed would have been available thought to ask that he would have promptly [majority, to attend at court to do so. pursued possibility whatever there was that supra, at 139 n. 21] might position Bar Counsel have been in a

Case Details

Case Name: Douglas v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Feb 13, 1985

Citation: 488 A.2d 121

Docket Number: 82-1048

Court Abbreviation: D.C.