Conflict Waived, Conviction Affirmed

The Georgia Supreme Court affirmed the conviction of a former law student

Jennifer Rosenbaum appeals her convictions for felony murder and numerous counts of aggravated assault, aggravated battery, and cruelty to children in connection with the death of her two-yearold foster child, Laila Daniel, and the physical abuse of then four-year-old M. P., Laila’s biological sister who was also Rosenbaum’s foster child. Rosenbaum contends that her trial counsel provided ineffective assistance by failing to request a jury instruction on the law of justification and by laboring under an unwaivable, actual conflict of interest. For the reasons explained below, we affirm.

Alleged conflict

Rosenbaum also contends that trial counsel’s joint representation of both her and [co-defendant] Joseph gave rise to an unwaivable, actual conflict of interest that made it impossible under the Sixth Amendment and applicable ethics rules for counsel to represent both co-defendants at trial, and that counsel was constitutionally ineffective due to the alleged unwaivable conflict of interest. However, the trial court did not abuse its discretion in denying Rosenbaum’s motion for new trial on this ground. Any potential conflict of interest was waivable, and the evidence shows that Rosenbaum did waive her right to conflict-free counsel and that her waiver met the applicable constitutional requirements. For these reasons, we need not address whether counsel developed an actual conflict of interest at trial.

The court

Trial counsel represented both Rosenbaum and Joseph from the beginning. At the hearing on their motions for new trial, counsel testified that “in order that they both be represented [in] the best way possible, it seemed that they had to be joined,” that separate attorneys “might pressure one or the other to testify against one or the other,” and that the “will to get a plea and move on” might supplant the “will of the client.” Counsel explained that both clients wanted to present a “unified front” and were “adamant about not testifying against each other” and that Rosenbaum herself initially came up with the idea of joint representation. Rosenbaum – a third year law student whom counsel considered to be “very, very intelligent” – was “very involved” and would research and “constantly” discuss all of the issues with counsel as part of a collaborative process. Joseph also was involved in preparation of the defense. Counsel frequently discussed potential conflicts of interest with her clients together and with each separately. Counsel would often pause and consider whether there was a potential conflict such as antagonistic defenses. And she concluded that their defenses were not antagonistic.

Notably

In June 2017, the State filed a motion to disqualify trial counsel from joint representation. At the hearing on that motion, counsel presented written, signed waivers of any conflict from both clients and stated in her place that each client had consulted with independent counsel and were ready to be questioned by the trial court if the court so desired.

After the motion was denied

Soon after the hearing and order on the motion to disqualify, counsel sent Rosenbaum and Joseph a letter, at the trial court’s suggestion, that reviewed the relevant ethics rule and its requirements regarding waivers of conflicts of interest. At the hearing on the motions for new trial, Rosenbaum’s expert on the ethical and practice requirements of the Rules of Professional Conduct testified that in signed responses to the letters, each client acknowledged that he or she actually sought guidance from independent counsel about any potential conflicts, that each of them wished to waive the conflicts and pursue a joint defense despite the risks, that both parties were innocent of the charges and wished to present a united front, and that neither of them had any information that could be potentially useful or incriminating against the other. Counsel testified that she did not draft her clients’ responses to her letter. The trial judge directed trial counsel to let him know as soon as any conflict developed, and as the trial drew near, counsel updated the court on whether there was any potential for antagonistic defenses. Counsel testified that no conflict developed between the June 2017 denial of the motion to disqualify and the 2019 trial, and neither Rosenbaum nor Joseph ever indicated any concern about a conflict even though counsel consulted them frequently and separately about the issue throughout the case.

The court cited to defendant’s legal training in concluding that the waiver was knowing, voluntary and intelligent.

Our prior coverage of the case and oral argument is linked here. (Mike Frisch)