Unwarranted Deference Dooms Criminal Conviction

The Arizona Supreme Court reversed and remanded a conviction due to the trial court’s failure to inquire into a co-defendant conflict of interest

In this case we hold that when a trial court is advised of a potential conflict arising from an attorney’s representation of a codefendant, it must conduct an independent inquiry to confirm that the defendant’s Sixth Amendment right to conflict-free counsel was waived knowingly and voluntarily. Critically, to satisfy its duty, the court must do more than simply credit the attorney’s assurances that the defendants had common defenses and waived any conflict.

A traffic stop led to drug charges after 240 pounds of marijuana was discovered.

[Passenger] Matias initially confessed that she had picked up the marijuana and expected to be paid for doing so. But she maintained that [driver] Duffy did not know about the transaction and was merely driving her. Duffy also claimed that he was unaware of plans to pick up the drugs, explaining that any discussion he overheard was in Spanish, a language he did not understand. Matias later retracted her confession.

Notwithstanding the expressed concerns of the prosecutor, the court permitted the attorney to represent both driver and passenger at trial.

Defense counsel dismissed these concerns, replying that there was “no cognizable issue” as to joint representation of the two defendants because they had “essentially . . . a common defense agreement” and signed a waiver of potential conflict after being adequately advised of their rights.

The court made no further inquiry and did not address the defendants. The judge stated that “[i]t appears that the defendants have been fully advised with regard to this situation,” and that “I will defer to [defense] counsel. I am required [to] do that in any event, but I would, even if not required.

Both were convicted.

The court noted the trial court had some latitude but

Even so, we cannot approve the trial court’s judgment in this case. Although it was on notice of possible conflict, it deferred to defense counsel’s assurances and failed to conduct any meaningful inquiry into the conflict. Recognizing his duty to serve the ends of justice,1 the prosecutor signaled his concern about multiple representation “in a case where there [are] obviously competing defenses.” At a subsequent hearing, the prosecutor repeated those concerns, explaining that “there is at least a potential for adverse defenses,” and that “there are circumstances under which it’s inappropriate to even consider a waiver of the conflict.” Defense counsel responded that the two defendants  shared a common defense and that Duffy had signed a waiver. Without further inquiry or addressing Duffy directly, the trial court approved joint representation, finding Duffy had been “fully advised” and concluding that “I will defer to counsel. I am required [to] do that in any event, but I would, even if not required.”

If the trial court believed it was required to defer to defense counsel, or even permitted to do so once the court was on notice of possible conflict, it was mistaken.

Result

As the State agrees a conflict exists here, we conclude that the failure to conduct an inquiry so thoroughly tainted the trial court proceedings that we must set aside the verdict and remand for a new trial.

(Mike Frisch)