Saturday, March 22, 2008

Olsziewski's Order and Memorandum

Judge Peter Paul Olsziewski

Judge Peter Paul Olsziewski decided that Attorney Demetrius Fannick can no longer represent Harlow Cuadra in the murder trial of Bryan Kocis... here's why:

AND NOW, this 19th day of March, 2008, at 1:55 o'clock PM, upon review and consideration of the Commonwealth's Motion to Disqualify Attorney Demetrius W. Fannick from representing Harlow Raymond Cuadra, as well as the answer, briefs and supplemental briefs filed in support of and in opposition to said motion, and following hearing and argument held on March 5, 2008 and March 14, 2008, and for the reasons set forth in the attached Memorandum, it is hereby ORDERED AND DECREED as follows:

1. The Commonwealth's Motion to Disqualify Attorney Demetrius W. Fannick from representation of Defendant Harlow Raymond Cuadra is hereby GRANTED, and Attorney Fannick is hereby disqualified from such representation.

2. Attorney Fannick shall, within seven (7) days of the date of the within Order, transfer all Defendant Cuadra's discovery materials to Defendant Cuadra's Court-Appointed Counsel.

3. The Motion of Attorneys Stephen Menn, Paul Galante, and Michael Senape to withdraw from representation of Defendant Cuadra is DENIED AND DISMISSED.




Before the Court is the Commonwealth's Motion to Disqualify Atty. Demetrius W. Fannick from representing Defendant Harlow Raymond Cuadra from the within matter.

Atty. Fannick entered his appearance on behalf of Defendant Cuadra on January 28, 2008. Defendant Cuadra had been represented by Court Appointed Conflict Counsel, namely Stephen Menn, Esq., Paul Galante, Esq., and Michael Senape, Esq.

The Commonwealth alleges, and Atty. Fannick on behalf of Defendant Cuadra admits, he met with Defendant Kerekes on eight (8) separate occasions within the Luzerne County Correctional Facility. The Commonwealth contends that this extensive contact resulted in the formation of an attorney-client relationship between the two, and that privileged information passed from Kerekes to Fannick. These allegations are buttressed by testimony from Luzerne County Deputy Sheriff Eugene Guarneri and Clerk of Courts employee Lindsay McFarland who testified Defendant Kerekes made a certain outburst toward Atty. Fannick prior to a February 20, 2008 hearing. More specifically, the witnesses testified that when Defendant Kerekes was brought into the courtroom prior to the aforesaid hearing, Defendant Kerekes saw Atty. Fannick and shouted "If you try to use anything we spoke about, I'll have you removed".

It is against this backdrop that the Commonwealth contends that a lawyer-client relationship exists between Fannick and Kerekes; that Atty. Fannick has received and must protect confidential and privileged information he received from Defendant Kerekes: that a potential and/or an actual conflict of interest is present should Atty. Fannick continue his representation of Defendant Cuadra; that Atty. Fannick's obligation not to reveal or use any of the confidential information received from Kerekes would compromise Atty. Fannick's ability to vigorously and diligently represent Cuadra and would render his representation of Defendant Cuadra as less than effective. The Commonwealth further alleges that consent by Kerekes to Atty. Fannick's representation of Cuadra and consent of representation and waiver of a conflict by Defendant Kerekes is either unavailable as an option, or virtually impossible to adequately effectuate. Finally, the Commonwealth contends Atty. Fannick's continued representation of Defendant Cuadra constitutes continuing violations of Rules 1.18, 1.6, 1.7, and 1.9 of the Rules of Professional Responsibility.

In response to the Commonwealth’s allegations, Defendant Kerekes testified under oath that his conversations with Atty. Fannick were limited to issues concerning the requested retainer fee. He denied providing Atty. Fannick with any confidential information and further denied engaging in any conversation with Atty. Fannick about his defense or any substantive aspect of the case. He also denied being under any impression that Atty. Fannick represented him in this matter.

On cross-examination Kerekes admitted to making the outburst as outlined above, but attempted to explain it as “an emotional statement”. He denied that the outburst was in any way related to substantive discussions about the case.

Additionally, Defendant Kerekes executed a written Consent allowing Atty. Fannick to represent Defendant Cuadra and answered questions from Atty. Pike and from the lead prosecutor pertaining to said Consent.

Defendant Cuadra, through Atty. Fannick, initially suggested the Commonwealth’s Motion is motivated by bad faith and is being done exclusively for ‘tactical reasons”. Cuadra denies the existence of an attorney-client relationship between Fannick and Kerekes and further argues the prospective attorney-client relationship between Fannick and Kerekes does not warrant disqualification of his representation of Defendant Cuadra.

In his Brief in opposition, Atty. Fannick repeatedly “represents to the Court as an Officer of the Court that discussions of the case with Mr. Kerekes were limited to issues of whether he could obtain the fee for legal representation and there were no discussions of the substance of the case against Mr. Kerekes or any potential defenses”.

Additionally, in paragraph 21 of Defendant Cuadra’s Answer to the Commonwealth’s Motion, Cuadra, through Fannick, admits that Fannick met with Kerekes at the Luzerne County Correctional Facility and further states “By way of further answer, any meetings were limited to a discussion of legal fees necessary for representation in this matter”.

We note that there is no Verification signed by either Atty. Fannick and/or Defendant Cuadra as is required by Pa. R.Crim.P. 575(B)(3)(d). More significantly, although given an opportunity to testify under oath at the March 5, 2008 Hearing, Atty. Fannick declined to do so. Of course, assertions in briefs are just that — mere representations regarding what a party expects or intends the evidence will show - they are not evidence nor substitutes for proof.

Like Defendant Kerekes, Defendant Cuadra executed a written “Consent-Waiver” as well as a ‘written colloquy” affirmatively indicting his desire for Atty. Fannick to represent him despite all the circumstances of this case.

He also provided sworn answers to questions posed to him by both his Counsel and lead prosecutor.

Initially we note that the issue of Atty. Fannick’s potential disqualification is both sensitive and most serious. These Defendants are charged with Capital Murder, If successful in obtaining First Degree Murder convictions the Commonwealth will request the jury to impose a sentence of death. With Defendant Cuadra’s life literally on the line, we know of no other circumstance where a Defendant’s selection of counsel can be more sacred.

Additionally, this Court is well aware that an erroneous decision in either disqualifying Atty. Fannick or in failing to disqualify Atty. Fannick is clearly reversible error.

Significant consequences are the inevitable result of any judgment in this matter. In United States v. Bradford, 121 F. Sup.2d 454 (W.D. Pa.2000), the District Court clearly acknowledges that the Sixth Amendmentto the United States Constitution guarantees a criminal defendant the right to have assistance of counsel for his defense. Because the purpose of the Sixth Amendment is to ensure that a defendant receives a fair trial, the proper consideration for a court weighing the issue of disqualification of counsel relates to the adversarial process, not on the defendant’s choice of counsel. The Bradford Court cites Wheat v.United States, 486 U.S. 153, 158, 108 S.Ct. 1692, 100 L.Ed. 2d. 140(1988) for this proposition:

Thus, while the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.

Wheat, 468 U.s. at 159, 108 S.Ct. 1692. The presumption in favor of defendant’s choice of counsel “may be overcome not only by ademonstration of actual conflict but by a showing of a sedous potential for conflict. The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court.” United States v. Stewart, 185 F.3d. 112, 121-122 (3dCir. 1999). (alteration in original), quoting Wheat, 486 U.S. at 164,108 S.Ct.1692 (1988).

The trial court confronted with the duty of evaluating whether disqualification is warranted also “has an institutional interest in protecting the truth-seeking function of the proceedings over which it is presiding by considering whether the defendant has effective assistance of counsel, regardless of any proffered waiver.” Stewart, 185F.3d. at 122, quoting United States v. Moscony, 927 F.2d 742, 749 (3dCir. 1991). “Moreover, to protect the critically important candor that must exist between client and attorney, and to engender respect for the court in general, the trial court may enforce the ethical rules governing the legal profession with respect to both client-attorney communications and to conflict-free representation, again, regardless of any purported waiver.” “Finally, the court has an independent interest to protect a fairly rendered verdict from trial tactics that may be designed to generate issues on appeal.” Id. at 748. Bradford, 121F.Supp. at 455.

Thus, the Sixth Amendment’s guarantee to counsel of one’s choosing is not absolute. It is qualified by the constitutional mandate that a defendant is represented by an effective advocate as well as the court’s solemn obligation to protect the truth-seeking function of the proceedings. It is obviously this Court’s duty to enforce the ethical rules governing the legal profession. It is our inviolate duty to ensure a fairly rendered verdict.

For the purpose of this Memorandum, we believe it unnecessary to outline the relevant Rules of Professional Responsibility. They were explained in credible detail by the Commonwealth’s expert witness, Robert H.Davis, Jr., Esq.

Fannick and Defendant Kerekes are most critical. If no confidential information passed between them, and if indeed the eight (8) conversations were strictly limited to the requested fee, disqualification would not be required, and waivers and consents by the two (2) Defendants could be crafted to ensure quality representation. On the other hand, if confidential information did indeed pass from Kerekes to Fannick, if there were discussions about allegations, defenses, possible cooperation, possible plea terms, character evidence and/or mitigating circumstances in a penalty proceeding, the ability to successfully and appropriately waive conflicts and to ensure unfettered representation becomes more dubious.

We have no desire or inclination to deprive this Defendant, or any defendant, of his or her choice of counsel. Such a proposition is self evident. Neither do we desire to deprive an able, skilled and experienced advocate — Atty. Fannick — of appropriate compensation. We are acutely aware of the weighty consequences of this decision which was made after much reflection, deliberation and candidly angst. But we will not shirk our obligation to make the decision and have done so in order to promote and protect the truth seeking function of the judicial system.

Defendant Kerekes’ explanation that the aforementioned outburst was “an emotional statement” not meant to convey an impression that substantive conversations took place, fails miserably. White emotion may well have precipitated his statement, it is simply inconceivable that emotion resulted in the substance of the words attributed to him. Said differently, emotion may well have been the motivation for the statement, but being overcome by emotion certainly did not result in an untruthful message. Clearly, Kerekes’ admissions in this regard belie his testimony that no substantive discussions took place. We find his explanation regarding the substance of the outburst unpersuasive and his protestations to the contrary during direct examination unconvincing.

Had Atty. Fannick testified under oath that no substantive discussions occurred, today’s ruling may well be different. That Atty. Fannick elected not to do so made this Court’s decision clear.

Under all of these circumstances we find that confidential and privileged information passed from Kerekes to Fannick. Fannick must protect that information and not repeat it or use it in any way, and thus his ability to vigorously cross-examine Defendant Kerekes is effectively hampered. We find that both potential and actual conflicts of interest exist and that this situation cannot be corrected by waivers and/or consents.

We find that the Commonwealth has met its high burden that disqualification of Atty. Fannick is required.