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A man who claimed he was coerced by his lawyer into pleading guilty to a bribery charge may get a chance to withdraw that plea following a decision by the 2nd U.S. Circuit Court of Appeals. Danny Davis is facing more than four years in prison for allegedly bribing a city official to avoid paying taxes. He claims that his attorney was laboring under a conflict of interest when representing Davis at a hearing on the defendant’s request to withdraw a guilty plea on the bribery charge. The 2nd Circuit said it was “close to the line” whether the attorney’s conflict adversely affected his performance at the hearing. The appeals court vacated the denial of Davis’ motion to withdraw, and remanded the case, United States v. Davis, 99-1246, to the U.S. District Court for the Eastern District of New York. Davis pleaded guilty on Aug. 19, 1999, to a single count of bribing a public official. U.S. District Judge Bernard J. Friedman of the U.S. District Court for the Eastern District of Michigan, who was sitting by designation, sentenced Davis to 51 months in prison. Two months later, Davis moved pro se to withdraw the plea, claiming it was offered under duress. In a letter to the judge, he claimed that his attorney said, “This is not about right or wrong … you have to take the plea or lose everything … don’t fight the government … this case has been decided already.” Judge Friedman refused the request, but, on renewal of Davis’ motion, the court agreed to hold a hearing in March 1999. At that hearing, Davis told the court he had asked his attorney to investigate his arrest, and the lawyer responded, “I am not going to investigate this case. I am not submitting pretrial motions in this case. The only thing I am interested in is you taking a plea.” With his hands tied by his obligation to his client under the canons of ethics, the attorney was unable to contradict Davis with his own version of events. Asked by the court to address the allegations, the attorney answered, “I am always uncomfortable being in an adversarial position with my client. It is inappropriate and I prefer not to.” Friedman responded, “I agree. That is why I didn’t ask you to speak before.” Writing for the 2nd Circuit, Chief Judge John M. Walker Jr. said, “We agree that Davis was entitled to effective assistance of counsel at his plea withdrawal hearing, and that counsel suffered from an actual conflict of interest.” And because the appeals court could not determine whether the conduct of the attorney at the hearing was “adversely affected as a result of the conflict,” the court remanded the case for another hearing on the merits of Davis’ motion to withdraw the plea, and a decision on whether Davis is entitled to the presumption that he was prejudiced by the conflict. Judge Walker noted first that many of Davis’ allegations do not amount to a conflict. For example, the belief of the attorney, Kevin Keating, that Davis would be found guilty at trial and might be in danger of “losing everything,” Walker said, “might constitute nothing more than competent advice.” “However, Davis also makes particularized allegations that counsel had threatened not to investigate his case and not file pretrial motions if Davis did not accept the plea,” Walker said. “These allegations are sufficient to create an actual conflict of interest.” While Keating’s statements at the hearing “did not directly contradict Davis,” Walker said, “neither did they support him.” “Defense counsel’s silence at this stage of the proceedings illustrates his actual conflict,” Walker said. Judges Guido Calabresi and Robert Katzmann joined in the opinion. Robert L. Moore, of Quesada & Moore, represented Davis on the appeal. Assistant U.S. Attorneys Emily Berger and Daniel R. Alonso represented the government. COMMON PROBLEM Roy Simon, professor of ethics at Hofstra University School of Law, said the case illustrates a common problem for criminal lawyers. “It puts lawyers and it puts the system in a very uncomfortable position,” he said. “Because you don’t want to mandate lawyers to contradict their clients and yet you don’t want to let clients, particularly those that are desperate, just make up a story out of whole cloth.” Simon said Keating was not required to stay silent if Davis invented the allegations. “He acted quite nobly,” Simon said. “He could have put his interests first and said ‘Hey, I’m not going to take that kind of allegation.’ Instead he decided, in the best interests of his client, to remain silent.”

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