Three indigent men face capital murder charges for the same crime. The chief public defender does not have enough capital-certified lawyers to represent them and does not have enough money to hire outside counsel. What does he do? 

It’s not a trick question. What Jerry D’Aquila, chief defender and supervising attorney for the 18th Judicial District Indigent Defender Board in Louisiana, did was to assign himself and his other certified lawyers to one of the defendants and non-certified lawyers to the other two. He warned the court that his office would go bankrupt if forced to hire outside certified counsel and that the evidence against the two defendants without certified lawyers would be nullified if the state went forward with capital charges against them.

The prosecution, first to warn the trial court of a potential conflict of interest during a pretrial hearing, ultimately reduced the charges against the two defendants without certified lawyers. The other defendant, Michael Garcia, well, he obviously drew the short straw even though he was represented by capital-certified lawyers. Garcia was convicted and sentenced to death.

William Sothern of New Orleans’ Conner & Sothern, counsel to Garcia, is now asking the U.S. Supreme Court to review what he views as egregious conflicts of interest.

Garcia and co-defendant James Nelson, who was arrested first, were the principal death penalty targets, according to the Louisiana Supreme Court.

"In terms of relative culpability, the prosecution could have made a strong argument for pursuing the death penalty against either, and, in the end, that decision was essentially made for it," said Sothern. "By choosing who got the death penalty defense lawyers, Mr. Garcia’s lawyer chose who would face the death penalty.

"This isn’t simply a case where the lawyer has divided loyalty between two clients, but also has an additional burden on his fiduciary duty to his client while he also is obligated to the public fisc and Indigent Defense Board."

SYSTEMIC PROBLEM

The justices will take their first look at Garcia v. Louisiana on June 20, less than two months after they divided, 5-4, in dismissing another Louisiana case in which the four dissenting justices singled out that state’s systemic underfunding of indigent defense as the reason for a seven-year delay in a murder trial.

Boyer v. Louisiana was dismissed as improvidently granted after full briefing and argument. The question that the justices failed to answer was "whether a state’s failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution’s choice to seek the death penalty, should be weighed against the state for speedy trial purposes."

Justice Sonia Sotomayor, joined by justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, dissented from the dismissal, saying, "Because a State bears the ultimate responsibility for funding adequately an indigent’s defense, our precedents require a court to count this delay against the State and not the criminal defendant."

She called the dismissal "especially regrettable" because Boyer’s case did not appear to be an isolated one and the indigent defense system seemed "significantly understaffed."

After the dismissal, Jonathan Boyer’s high court counsel, Richard Bourke of the Louisiana Capital Assistance Center, warned, "The funding crisis in Louisiana continues today and there will only be more cases like the Boyer case in the future until that crisis is resolved."

Although not a case about trial delay, the Garcia conundrum stems from the same systemic underfunding of indigent defense. Former Louisiana Supreme Court Chief Justice Pascal Calogero Jr. and others offered the U.S. Supreme Court detailed studies and first-hand experiences with that problem in amicus briefs in the Boyer case.

Sothern, counsel to Garcia, was appointed to represent him on direct appeal while working at the Capital Appeals Project in New Orleans. He stayed with the case after leaving the project to enter private practice. The project is helping with the high court petition along with the death penalty clinic at the University of California, Berkeley School of Law.

Sothern said the inability to fund capital cases was a routine concern for the Indigent Defense Board in West Baton Rouge. "In this terribly cash-strapped judicial district, this was a perennial concern — that one of these cases would come to this judicial district, and when it did, those financial concerns were overriding about how the case would be prosecuted," he said.

In his petition, Sothern asks the justices to do two things. First, craft a "narrow exception" to a 2002 decision which limits the so-called Holloway rule of automatic reversal to cases in which defense counsel is forced to represent co-defendants over counsel’s timely objection unless the trial court finds there is no conflict. And second, address a split in the circuit courts over the standard for determining whether an actual conflict of interest adversely affected a lawyer’s performance.

Sothern argues that a defense objection should not be the only trigger for the automatic reversal rule. In Garcia’s case, he explained, the prosecution alerted the court to the potential conflict of assigning D’Aquila to represent three co-defendants. The court, nevertheless, delegated a solution to D’Aquila. And when D’Aquila advocated in a way to prevent death penalty charges for two co-defendants, the court failed to intervene.

As for a standard for determining whether a conflict adversely affected a lawyer’s performance, Sothern contends any test should examine the range of tasks performed by counsel over the course of representation, not just at trial, which was the only task examined by the Louisiana Supreme Court.

"What we want is adequate funding," said Sothern. "We don’t expect the court to address that broad systemic issue nor do we think it needs to reach that issue to resolve Mr. Garcia’s case. But it provides important background for how a conflict like this could manifest. I don’t feel we’re asking the court to issue a sweeping ruling addressing indigent defense in Louisiana."

AN ETHICAL STORM

Sothern has drawn expert ethics assistance from Lawrence Fox, partner in Philadelphia’s Drinker, Biddle & Reath and founder and supervising attorney of the Ethics Bureau at Yale Law School.

In an amicus brief, Fox tells the justices that D’Aquila faced five "grave" conflicts of interest:

"First, during crucial pre-trial proceedings, Mr. D’Aquila simultaneously acted as lawyer for all three co-defendants, owing each co-defendant an unfettered duty of loyalty. Second, even if one were to conclude, contrary to the applicable rules, that the co-defendants became former clients of Mr. D’Aquila, the conflicts continued because Mr. D’Aquila took positions directly adverse to his former clients. Third, Mr. D’Aquila’s relationships with his colleagues created a non-waivable conflict of interest whose prejudicial effects were highly harmful to Mr. Garcia. Fourth, Mr. D’Aquila labored under a debilitating conflict of interest between his obligation to pursue Mr. Garcia’s best interests and his duty, as Chief Defender, to conserve the resources of the IDB. Fifth, Mr. D’Aquila’s conflicts must be imputed to the lawyers for Mr. Garcia’s co-defendants, and the conflicts of the lawyers for Mr. Garcia’s co-defendants must be imputed to Mr. D’Aquila."

Fox, whose students stayed past the school term to work on the brief, called the conflicts in Garcia "pretty close to a perfect storm." He explained, "Here we have the same law office representing three defendants; the same supervisor supervising himself and two others; a refusal to take on private lawyers because he doesn’t have $40,000 in his budget, and a situation in which he gets to choose who gets to face the death penalty.

"The excuses they’ve come up with are absurd — that the other lawyers are independent contractors," he added. "Well, they’re not so independent that this guy doesn’t supervise them. They have a relationship with each other — they want to get the next case. This whole idea that the supervisory role is an administrative one contradicts the rules of professional conduct."

And as for the trial judge, Fox said, he initially sounded in the pretrial hearing as if he would address the conflict, "and then he doesn’t address it at all."

OPPOSING REVIEW

Antonio Clayton, chief felony prosecutor of West Baton Rouge Parish’s 18th Judicial District, counters that the Holloway automatic reversal rule does not apply to the Garcia case. "Michael Garcia was not tried alongside his co-conspirators," writes Clayton. "He did not share the same counsel as his co-conspirators. There is no conflict that has or can be articulated which would have impaired counsel’s performance. Most notably here, there was no objection by any of the co-conspirators’ counsel regarding the alleged conflict.

"Further, the decision in Holloway ascribes credibility to counsel’s decision to object to a potential conflict; likewise, counsel’s choosing not to object should be given some confidence since he, as an officer of the court, is in the best position professionally and ethically to determine when conflict of interest exists or will probably develop in the course of trial."

Clayton further argues that during a hearing on a remand from the Louisiana Supreme Court, it was determined that each of the public defenders for Garcia’s co-defendants was a contract lawyer whose representation was independent of the next.

"Even assuming that the multiple representation provided by the Public Defender’s Office for the Eighteenth Judicial District presented a potential conflict by virtue of the attorneys’ employment status, petitioner has failed to establish how it adversely affected his counsel’s performance," he wrote. "The mechanisms, procedures and ethical considerations employed by the public defenders of the district insure that there would be no adverse effect on counsel’s performance notwithstanding their employment as public defenders. Thus, without an adverse effect on counsel’s performance, any finding of a potential conflict is immaterial in a Sixth Amendment analysis."

However, Fox called the jurisprudence on conflicts a "disaster" and said that lower courts are "hopelessly confused." He explained, "They all start from the wrong basis — potential conflicts versus actual conflicts. There are only conflicts of interest. Whether it causes injury is another question. There’s nothing in the rules about potential or actual. And it’s when I’m starting a representation and there are issues that would cause me to be in conflict. So much happens before trial — plea bargaining, decisions about dedication of resources to investigation, negotiations about indictments.

Garcia, added Fox, is a "fascinating window" into how the most serious of cases is handled. "This is brain surgery and it would be the last place you should ever tolerate professional responsibility lapses. Unless we can convince the court to be less niggardly about addressing conflict-of-interest situations, we won’t get anywhere. We just keep knocking on the door."

Contact Marcia Coyle at mcoyle@alm.com.