Saturday, March 8, 2008

Disqualifying Fannick: Wheat v. United States

In Wheat v. United States 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140(1988), the Supreme Court held (5 to 4) that the district court was within its discretion in rejecting defendant’s waiver of his right to conflict-free counsel and in refusing to permit defendant’s proposed substitution of attorneys. Two days before trial, defendant asked to be represented by the lawyer who was representing others charged in a series of cases against an alleged drug conspiracy. The government objected on the grounds that defendants in some cases would be witnesses in others. If the same lawyer represented them all, he would be restricted in his cross-examination of his clients when they were witnesses and would lay the predicate for a later claim of ineffective assistance of counsel. “Not only the interest of a criminal defendant but the institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by unregulated multiple representation.”

In some cases, a defendant will raise a claim that his counsel’s multiple representation results in a conflict of interest that deprives the defendant of his Sixth Amendment right of effective assistance of counsel. In other cases, the prosecution will challenge the defense counsel’s multiple representation because the prosecutor has an interest in securing valid convictions, that is, convictions that are consistent with the Sixth Amendment. If a court finds that a defense counsel’s representation of multiple interests has created a constitutionally inadequate representation, then the court will overturn the conviction. Reversals of criminal convictions to enforce conflict rules are not an everyday occurrence, but they can hardly be called a unique event.

The presumption in favor of defendant’s choice of counsel “may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict U.S. v. Bradford 121 F.Supp.2d 454(W.D. Pa., 2000); See Wheat v. United States, 486 U.S. 153, 158, 108S.Ct. 1692, 100 L.Ed.2d 140 (1988).