Premature Claim Of Conflict
The North Dakota Supreme Court affirmed the convictions of a husband and wife for the exploitation of the wife’s vulnerable parents. The court rejected a claim of error based the admission of videotaped statements of both parents when they were deemed incompetent to testify at trial. Both defendants had been represented at trial by the same lawyer; the court found no error in the alleged failure of the judge to inquire into conflicts of interest.
The conflict claim was as follows:
Represented by separate counsel on appeal, the Keenersargue they were denied effective assistance of counsel because their trial attorney had a conflictof interest and divided loyalties. Asa Keener claims his attorney could not effectively pursue aviable defense to the conspiracy charges because pursuing that defense would have implicatedLaurie Keener, who was also his attorney’s client. Asa Keener contends his attorney should haveargued he was not guilty of conspiracy because Laurie Keener made the financial arrangementswith the Whiskers, Laurie Keener led him to believe her parents promised to reimburse theirexpenses and had authorized them to receive significant amounts of money for the Whiskers’care, and Laurie Keener duped or mislead him. Laurie Keener also argues she was deniedeffective assistance of counsel because her attorney had divided loyalties, however, she does notagree that she mislead or duped Asa Keener.
The court concluded that there was an insufficient record to resolve the contention on direct appeal:
We are unable to determine from this recordwhy certain trial strategies were used and whether there was an actual conflict that adverselyaffected counsel’s performance. Furthermore, Laurie Keener fails to even allege how there was anactual conflict that adversely affected counsel’s performance as it related to her. We conclude therecord is not adequate to determine the Keeners’ ineffective assistance of counsel claims. Thoseclaims may be pursued in a post-conviction proceeding.
(Mike Frisch)