Erroneous Advice Conflict No Basis To Vacate Conviction

A criminal conviction was affirmed by the District of Columbia Court of Appeals

In this appeal, appellant James Blackmon claims that he is entitled to reversal of his convictions and a new trial because his appointed counsel had a continuing conflict of interest as a result of an error made in the course of considering the government‟s plea offer. We conclude that the trial court recognized the actual conflict of interest that was presented and addressed it in an appropriate manner by appointing other counsel to advise concerning the plea offer, and that the record does not support that there was a realistic possibility of lingering conflict that required a mid-trial hearing or appointment of new counsel for trial. Thus, we affirm the judgment of conviction.

The issue

Before appellant’s second trial, the government offered a plea agreement: in exchange for a plea of guilty to all the charges, the government would recommend that appellant receive no more than 25 years of incarceration. One of appellant‟s attorneys, Jason Downs, advised appellant that if he rejected the plea offer and was convicted at a second trial, he could not be sentenced to incarceration for more than the 34 years he had received in his first trial. Appellant rejected the plea. On the first day of trial, realizing his mistake,  Downs disclosed his error to the court and requested “that the Court appoint independent counsel to speak with [appellant].” Downs made clear that he was not withdrawing from the case but felt that he should not be the person to explain appellant‟s options in light of his erroneous advice. Appellant also addressed the court at an ex parte hearing at the bench. He said that he “was basically misled . . . [he] thought that not going back to trial, [he] would . . . just get the original sentence. . . . [He] never thought [he] could get more time.” He added, “[i]f you can get the original . . . plea back[,] I‟ll take it” and asked that the court “sentence [him] today” because he did not “want to come back to this courthouse anymore.”

The trial court appointed counsel to advise the client regarding the plea offer

The trial court recognized the inherent conflict of interest in having Downs advise appellant regarding his options after discovering Downs‟s error and therefore appointed new counsel, Michael Madden, to avoid the conflict. Madden consulted with appellant and repeatedly represented to the court appellant‟s wish to accept the first plea offer, with the sentencing recommendation of 25 years. Once Madden replaced Downs as counsel with respect to the plea and the trial court rejected the argument he presented on appellant‟s behalf, Downs continued to represent appellant as trial counsel.

While the mistake damaged the attorney=client relationship to the extent that counsel sought a mistrial

A breakdown in communication — even a hostile relationship — between counsel and client is not the same, however, as a conflict of interest that leads counsel to act with less than complete zeal and loyalty to his client…

Nor does the record support that the defense strategy was influenced by any conflict perceived by counsel. Originally, appellant and counsel had agreed to argue that the government had the opportunity to plant the DNA evidence. A week prior to trial, however, they jointly decided to instead argue that the DNA evidence was unreliable. After realizing his attorney‟s error in advising him concerning the plea, however, appellant no longer trusted his counsel‟s advice and wanted to proceed under the initial theory that the government could have planted the DNA evidence. Counsel proceeded at trial with the theory that the DNA evidence presented by the government was unreliable, arguing to the jury that mistakes were made in the DNA testing: an expired rape kit was used and the vaginal swab tested — a key piece of evidence — was lost. Counsel also argued that the science of DNA testing has advanced sufficiently so that a new test on the lost vaginal swab could yield different results.

As to the trial court

…appellant argues that the trial court had an affirmative duty to inquire into the effectiveness of counsel because of the possibility of a conflict of interest. Appellant asserts that the trial court failed to conduct an inquiry and, as a result, the potential conflict of interest at issue — “the divergence of [appellant‟s] and defense counsel‟s interests because of the possibility that counsel might face some consequence for his incorrect legal advice” — was never explained to appellant and he was, therefore, not in a position to waive the conflict.

The trial court did not deny the request for new counsel, however, on the assumption that appellant had waived a conflict of interest. The trial court recognized there was a conflict as it related to Downs‟s ability to effectively communicate his error to appellant and to advise appellant about his options in light of that error. The trial court addressed this conflict of interest by appointing independent counsel to advise appellant on that issue.

Thus

In conclusion, defense counsel‟s acknowledged erroneous advice concerning the first plea offer was appropriately addressed by the trial court‟s appointment of special counsel to advise appellant concerning his plea options. Our review of the record persuades us that the error in counsel‟s advice did not affect counsel‟s representation of appellant at trial. On this record, the trial court did not need to hold a hearing to decide whether to grant a mistrial and appoint new counsel based on an asserted conflict of interest.