9th Circuit finds potential conflict of interest, criticizes Judge Mosley's canvass re: conflict
The Ninth Circuit Court of Appeals issued a decision this morning in Houston v. Schomig, an appeal from the denial of a habeas petition based upon a Nevada judgment of conviction. The Circuit remanded the case for an evidentiary hearing on the issue of prejudice after finding that Clark County District Court Judge Donald Mosley did not perform an adequate canvass of the defendant regarding a potential conflict of interest by his trial attorney.
Houston was convicted of conspiracy to commit murder, three counts of attempted murder with use of a deadly weapon and three counts of discharging a firearm out of a motor vehicle. He contended that his Sixth Amendment rights were violated because he was represented by the Clark County Public Defender's Office and that same office represented the State's star witness, who was an alleged victim, in a prior related proceeding. The Ninth Circuit rejected the findings of Judge Mosley and the Nevada Supreme Court that Houston's right to conflict-free counsel was not violated. The Court noted that Judge Mosley obtained a waiver of the conflict from the alleged victim but did not obtain a waiver from Houston, despite the fact that trial counsel explained that the two cases were related, that counsel's heart was going to be with the alleged victim, he believed that the alleged victim had not committed the crimes in the earlier case, .and he was concerned that the alleged victim would admit to facts on cross-examination which would expose him to criminal liability or impact his parole status.
"In this case, after Chadwick waived his attorney-client privilege, the trial judge concluded that no conflict existed,
without ever inquiring into the impact the prior representation may have had on Houston or on [trial counsel's] performance. Indeed, the judge saw "no conflict here whatsoever" and failed to see "how Mr. Houston has a right to waive anything." Because any conflict that existed was Houston's either to waive or to assert, the trial judge's exclusive focus on Chadwick was misplaced, rendering the conflict inquiry inadequate. See Lockhart v. Terhune, 250 F.3d 1223, 1232-1233 (9th Cir. 2001). Similarly, the Nevada Supreme Court failed to reach the issue of whether Jorgenson acted adversely to his current client, or whether his performance prejudiced Houston."
The Circuit remanded the case for an evidentiary hearing on the issue of whether trial counsel acted adversly to Houston or whether his performance prejudiced Houston.
Congratulations to Anne Traum, former Assistant Federal Public Defender and now faculty member at the Boyd School of Law.