The right to effective assistance of counsel is protected by the sixth amendment to the United States Constitution, made applicable to the states through the fourteenth amendment, and by art. 1, sec. 7, of the Wisconsin Constitution. Cuyler v. Sullivan, 446 U.S. 335, 344 (1980); State v. Franklin, 111 Wis.2d 681, 686, 331 N.W.2d 633, 636 (Ct.App. 1983). Counsel for a criminal defendant is per se ineffective if counsel faced a conflict of interest and continues to represent a defendant. Franklin, 111 Wis.2d at 686-87, 331 N.W.2d at 636-37.
There simply is “an intolerable risk that the attorney might sacrifice the goals of his client to serve selfish ends or the interests of another.” State v. Franklin, 111 Wis.2d 681, 687, 331 N.W.2d 633, 637 (Ct. App. 1983) (footnote omitted). An actual conflict or serious potential for conflict of interest imperils the accused’s right to adequate representation and jeopardizes the integrity of the adversarial trial process and the prospect of a fair trial with a just, reliable result. State v. Miller, 160 Wis. 2d 646, 467 N.W.2d 118 (1991).
Given that basic law it was amazing to read the dissent in a criminal case by U.S. Supreme Court Justice Sonia Sotomayor. Holcombe v. Florida, 595 U. S. ____ (2022), https://www.courthousenews.com/wp-content/uploads/2022/02/holcombe-fla.pdf. Justice Sotomayor was the only justice on Feb. 28, 2022 to publicly reject the court’s decision not to accept for review a Florida case in which one attorney represented all four co-defendants in a racketeering case. The trial court refused defense counsel’s offer to withdraw from representing the cooperating codefendants and neglected to conduct a detailed inquiry into the nature and extent of the conflict. The case went to trial, and defendant Holcombe’s attorney cross-examined his two cooperating clients, whose sentences depended on the quality of the testimony they provided against Holcombe. Holcombe was convicted.
The Florida Court of Appeal affirmed the conviction. It concluded that an attorney’s simultaneous representation of both a criminal defendant and two prosecution witnesses, and his cross-examination of those witnesses, does not, without more, create an actual conflict for the purpose of the Sixth Amendment. The Florida Fifth District Court of Appeal affirmed Holcombes’ convictions and sentences in September 2020 and James’ motion for rehearing was denied the following month. The Florida Supreme Court declined to hear the case in February 2021.
Justice Sotomayor concluded the Florida courts “failed to protect that core constitutional guarantee” of effective assistance of counsel. She gave a practical explanation of the nature of the conflict: “The codefendants’ pleas put defense counsel in an impossible dilemma: If the attorney successfully undermined the codefendants’ testimony, he would aid Holcombe’s defense, but potentially jeopardize the codefendants’ ability to obtain lenient sentences. Holding back against the codefendants, on the other hand, would improve their chances at sentencing, but allow the State’s key witnesses to provide damning evidence against Holcombe.”
Justice Sotomayor wrote it is the court’s responsibility “to assure that criminal defendants are not deprived of their right to the effective assistance of counsel by joint representation of conflicting interests.” Under these circumstances the attorney’s representation, Justice Sotomayor concluded, constituted an “unwaivable” conflict of interest, especially when two of the defendants subsequently accepted plea deals and provided testimony on behalf of prosecutors that incriminated their fellow defendants.