Conflict of Interest

Michigan Court of Appeals Says a Two Person Prosecutor’s Office Can Effectively Screen for Conflict

Typically, where one lawyer in a firm previously represented an opposing party, the entire firm was disqualified (“vicarious disqualification”). Case law, however, gradually developed an exception where protective measures were in place. The most common measure was called a Chinese Wall. A Chinese Wall is a formal procedure used by law firms to segregate the effected attorney from the source material . Chinese Walls have only been upheld where the firm was large enough to effectively manage the same. In a clear departure from these principles, the Michigan Court of Appeals upheld this situation where this happened two in a two person prosecutors office. People v Davenport.Trial counsel was also not ineffective in recommending a waiver trial or in allegedly “rushing” the case to trial. Nothing in the record suggests that she rushed the case to trial, and it was reasonable to recommend a bench trial in light of the allegations against defendant (involving sexual assaults on a child). Defense counsel was ineffective in failing to interview witnesses prior to trial, but defendant was not prejudiced. Had they been interviewed, none of the witnesses would have testified differently. Although two witnesses might have testified that the victim made up stories to get out of trouble, this minor credibility question would not have made a difference in light of the overwhelming evidence of guilt. The trial court did not improperly score OV 4 (psychological injury to victim) at 10 points. The prosecutor presented a receipt for counseling services and informed the court that the victim had begun another series of counseling sessions with Catholic Human Services. Moreover, there was evidence of defendant's “systematic, repeated abuse” of the child over a period of years.

Sixth Circuit Reverses Conviction Based on Actual Conflict of Interest

The Sixth Circuit reversed a habeas petitioner’s murder conviction where he was denied his right to effective assistance of counsel was violated at trial and on appeal because of his state attorney’s actual conflict of interest. Boykin v Webb, Sixth Circuit No. 06-5775.

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