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One Reason to Seek a New Trial: Your Lawyer Is a Stalker
Convict claims his attorney, facing his own penal proceedings, gave ineffective assistance
New Jersey Law Journal
October 24, 2007
Imagine being convicted of murder and later finding out that during the trial, your lawyer was preoccupied with his own criminal prosecution.
It happened to a Newark, N.J., man, Mylee Cottle, and he's seeking a new trial on the ground that the lawyer's penal proceedings -- involving the same county prosecutor -- made for a conflict of interest as well as ineffective assistance of counsel.
The appeal, in State v. Cottle, A-111-06, was argued Monday at the New Jersey Supreme Court.
An Essex County jury convicted Cottle of the April 19, 1995, shooting death of Darren Williams during a traffic altercation.
Before Cottle's trial, his lawyer, Irvington solo Steven Olitsky, was indicted in Essex County for stalking -- a fourth-degree crime carrying a sentence of up to 18 months in state prison and a fine of up to $10,000 -- and was admitted into a pretrial intervention program.
Olitsky was also under investigation by the Office of Attorney Ethics for commingling business and personal funds to avoid a tax levy by the Internal Revenue Service and for failing to communicate with clients.
Olitsky eventually was thrown out of the PTI program for failing to live up to his promise to perform 200 hours of pro bono service. He was later disbarred.
Cottle's appellate lawyer, Hoboken solo Paul Casteleiro, told the court that Olitsky's criminal woes led to a sub-par performance at Cottle's trial, especially since the Essex County Prosecutor's Office was in charge of both cases.
"When an attorney is being prosecuted by the same office [that is prosecuting one of his clients], that represents a per se conflict of interest," Casteleiro told the court.
"It's very clear that the attorney is compromised. He's beholden [to the prosecutor] in some sense. There are emotional and psychological barriers created by that situation."
Casteliero said Olitsky's PTI situation made it impossible for him to discuss with Essex County prosecutors whether Cottle, a minor at the time of the shooting, should have been tried as an adult.
Olitsky failed to produce key evidence, to call certain witnesses and to allow Cottle, who denied any involvement in the shooting, to testify in his own defense, Casteleiro added.
He said those shortcomings can be traced to Olitsky's reluctance to tangle with prosecutors while his own future was clouded by legal troubles. "He was incapable of negotiating with that office," he said.
Casteleiro said Olitsky should have at least told Cottle about his legal problems before the trial began and given Cottle the opportunity to seek new counsel.
Justice Barry Albin asked whether Olitsky was required as part of his admission into PTI to tell his clients about his situation.
That may have been the case, said Casteleiro, but the fact was that Cottle wasn't told. "There was never an acknowledgment," he said.
When Albin asked what the remedy should be, Casteleiro replied, "It should be an automatic reversal. There is the presumption of prejudice."
Jeffrey Mandel, arguing on behalf of the amicus curiae Association of Criminal Defense Lawyers of New Jersey, said the court should adopt a bright-line rule.
"An attorney should not represent a defendant in the same county where he is facing criminal charges," said Mandel, of Florham Park's Day Pitney. "It goes to the perception of our court system."
Essex County Assistant Prosecutor Lucille Rosano told the court there was no need for a new trial because there had been no showing that Cottle was the victim of ineffective assistance of counsel.
Olitsky, she said, had been admitted into PTI months before Cottle's trial began and, at the time, was not facing dismissal from the program.
"There was no conflict of interest at the time of the trial," said Rosano. "There was no per se prejudice here. All of this was unrelated."
Under questioning from Albin and Chief Justice Stuart Rabner, Rosano acknowledged that "the best practice" would have been for Olitsky to disclose to Cottle his situation beforehand.
"He did tell him something on the eve of trial about being 'disturbed' about a personal matter," she said. "But the information was simply not disseminated."
Rosano did not agree with the justices' suggestion that perhaps the prosecutor's office should have told Cottle about his lawyer's troubles. "The Essex County Prosecutor's Office had no legal obligation to request that Mr. Olitsky have each of his clients sign an acknowledgment," she said.
