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In an extraordinary ruling, the Connecticut Supreme Court ordered the automatic reversal of a conviction for risk of injury to a minor. A serious error by the trial judge so affected the defendant’s right to a fair trial that no finding of specific harm was necessary to throw out the jury’s verdict. State v. Lopez, No. SC 17123. The problem arose in the judge’s chambers during trial. Hartford Superior Court Judge Kevin E. Booth learned—through an ex parte conversation with the prosecutor—that defense counsel Christopher W. Boylan might testify on his client’s behalf. Booth asked Boylan whether he intended to do so and accepted his denial. The judge concluded that no conflict of interest existed because Boylan wasn’t going to be a witness. To inquire further would be to “pry into defense strategy,” Booth reasoned in his post-conviction memorandum denying defendant Luis Fernando Lopez’s bid for a new trial. But what earned Booth an automatic reversal was the defendant’s absence from the judge’s in-camera conversation with Boylan. Also, Booth never put the conversation with Boylan on the record with the defendant present. The defendant’s absence denied him his right to conflict-free representation, argued the defendant’s new attorney, William M. Bloss of Bridgeport, Conn.’s Koskoff, Koskoff & Bieder. Prior to trial, Boylan had met the minor victim, who was the daughter of the defendant’s live-in girlfriend. Lopez faced sexual assault charges, as well as the risk-of-injury charges on which he was convicted. The victim arrived at Boylan’s Terryville, Conn., law office in the company of her mother and the defendant. They brought with them the victim’s handwritten statement recanting the accusations. Boylan arranged for the recantation to be typed on his letterhead. In doing so, Boylan became a potential material witness, as well as the defendant’s trial advocate. “Boylan’s presence at and involvement in the preparation of the victim’s letter recanting her previous accusations might have: impeded his ability to cross-examine the victim; made him a witness at trial; or exposed him, as it did the victim’s mother, to a charge of witness tampering . . . thereby putting him directly in conflict with the defendant,” Justice Joette Katz wrote for the unanimous court. Although Booth didn’t see the need to delve into “defense strategy,” to Bloss, to a Connecticut intermediate court and to the state high court there was an obvious need to determine whether the defendant was aware of the conflict, and, if so, whether he wished to waive his right to conflict-free representation. According to Bloss, the defendant should have been given the opportunity to retain independent counsel to determine whether he wished to keep Boylan as his lawyer and waive his Sixth Amendment right to conflict-free representation. Boylan is no longer practicing law. He entered an Alford plea in October 2002 to several counts of larceny and forgery involving swindling clients and pretending to win cases. Facing grievance charges, he resigned from the practice of law. A Connecticut intermediate court reviewed the case and reversed the trial verdict not only because of the defendant’s absence and lack of waiver, but because the circumstances of the case seemed to present an actual conflict. The high court, however, didn’t reach the issue of whether there was an actual conflict. The defendant’s absence from the “critical stage” of the case was itself a constitutional violation, it said. Booth’s error fell into the small group of constitutional violations that are per se prejudicial because “the trial process was flawed significantly,” Katz concluded.

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