When People v. Konstantinides (Ct. App. 12/17/2009) (Read, J.) (4-3) went to trial, the defendant had two attorneys, Attorney #1 and Attorney #2. Attorney #1 was lead counsel and had represented the defendant for many months before Attorney #2 joined the defense team as second seat. During the trial, the People announced that they had been contacted by a witness' wife, L.T., who alleged that Attorney #2 had placed three-way calls with the defendant to her and made numerous threats, trying to suborn perjury of her and her husband. The People moved to disqualify Attorney #2. There was no ruling from the trial court on the motion. At issue on appeal was whether the unresolved allegations of criminal and unethical conduct against Attorney #2 were, by themselves, enough to violate the defendant's right to conflict-free counsel. A divided court held that the defendant's right was not violated.
The majority found no violation for several reasons:
- The defendant was fully informed of the conflict because of the in-court exchange between the prosecutor, trial court, and defense counsel. Neither the defendant nor Attorney #1 complained about Attorney #2's continued participation in the case.
- The defendant was represented by Attorney #1, who was lead counsel and conflict-free.
- Although Attorney #2 presented the defense case (including the direct examination of the defendant), the defendant could not point to any improper questions that were harmful to him or any evidence that should have been presented but was not. The court rejected, as pure speculation, that Attorney #2 should have called a woman named Jennifer, who would have testified that she had an affair with the victim, the victim used drugs on the day of the crime, and the gun in question (the defendant was charged with CPW, among other crimes) belonged to the victim. Jennifer was not on the defense witness list at the beginning of trial and she was not mentioned during the defense opening statement. There was no evidence, in other words, that the mid-trial allegation of subornation of perjury against Attorney #2 was what prompted him not to call Jennifer.
- While it would have been a better practice for the trial judge to have made a more thorough, on-the-record inquiry and made a record of follow-up conversations about the allegations, this did not require reversal since the defendant had the burden of demonstrating a conflict of interest.
- There was no showing of prejudice. The defendant was acquitted of some charges, the jury hung on others, and there was overwhelming evidence of the crimes the defendant was found guilty of (CPW).
- The court rejected a per se rule requiring reversal in cases where attorneys are accused of criminal wrongdoing relating to the representation of the accused.
Three dissenters, in an opinion by Judge Smith, rejected the majority's arguments. Judge Smith's opinion focused on the absence of record evidence to support the majority's argument that the conflict of interest did not impact the defense. This silence in the record should be held against the People, not the defendant, since the defendant and Attorney #1 could not have been expected to fight against Attorney #2. (LC)
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