Ninth Circuit Agrees to En Banc Review of Ruling That Threw Out Conviction on Basis of Attorney Conflict

Wednesday, October 27, 2004

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Ninth Circuit Agrees to En Banc Review of Ruling That Threw Out Conviction on Basis of Attorney Conflict

By a MetNews Staff Writer

An en banc panel of the Ninth U.S. Circuit Court of Appeals will revisit the issue of whether a convicted burglar is entitled to a new trial based on his lawyer’s alleged conflict of interest.

In a brief order, Chief Judge Mary M. Schroeder said a majority of the court’s unrecused, active judges had voted to reconsider the Sept. 4, 2002 decision in Campbell v. Rice, 99-17311.

The defendant, Anthony Campbell, is serving a 14-year sentence for multiple burglaries. He claims that his right to counsel was violated because his attorney, Maureen McCann, had a conflict of interest because she was being prosecuted by the Santa Clara District Attorney’s Office at the same time he was.

McCann was charged with attempting to bring methamphetamine through the metal detector at one of the county’s criminal justice facilities.

In its first decision in the case, filed in September 2001, the three-judge panel, comprised of Judges Harry Pregerson and Michael Daly Hawkins and Senior Judge Warren J. Ferguson, ruled that a conflict existed and that Campbell was entitled to a new trial.

“As a criminal defense attorney,” the panel said, “McCann had a duty to maintain an adversarial relationship with the prosecution to vigorously represent her client.” But as a defendant, she had an interest in staying on good terms with the prosecution.

The trial judge, the panel said, had a duty to “inquire further” and to advise Campbell of the conflict once the jurist became aware of it. The panel noted that the only discussion of the conflict between the judge and counsel came in chambers with Campbell absent.

The government sought reconsideration, and the court put the case on hold pending the outcome of Mickens v. Taylor, 535 U. S. 162 (2002).

Mickens involved an attorney whose client—charged with murder—did not know that the lawyer was representing the victim on assault and weapons charges at the time of the killing. The Supreme Court ruled that there was no rule of automatic reversal, contrary to the holding of the Ninth Circuit panel, and upheld the conviction on the ground the defendant did not show that the attorney’s performance was actually affected by the conflict.

The Ninth Circuit panel, however, threw out the conviction a second time in its 2002 decision. Notwithstanding Mickens, the panel said, the conviction was invalid because Campbell was excluded from the hearing at which the conflict was discussed.

This was structural error, Pregerson wrote, “because Campbell would have been able to ‘influence the process’ in a significant way had he been present at the hearing.”