Metropolitan News-Enterprise


Monday, May 23, 2005


Page 1


Ninth Circuit Revives Conviction, Rejects Conflict of Interest Claim

Fact That Lawyer Was Being Prosecuted in Unrelated Case Did Not Hamper Defense, Court Rules En Banc


By KENNETH OFGANG, Staff Writer/Appellate Courts


An en banc panel of the Ninth U.S. Circuit Court of Appeals ruled Friday that a convicted burglar is not entitled to a new trial based on his lawyer’s alleged conflict of interest.

In a 9-2 decision, the judges said that Anthony Campbell was not entitled to a new trial based on the fact that his lawyer was—apparently without his knowledge— being prosecuted by the Santa Clara District Attorney’s Office at the same time he was. McCann, who still practices in San Jose, was facing charges of attempting to bring methamphetamine through the metal detector at one of the county’s criminal justice facilities.

A three-judge panel ruled in September 2002 that Campbell, sentenced to an aggregate 14 years in prison for 18 burglaries, was denied his constitutional right to conflict-free counsel, and was denied due process when he was excluded from a chambers conference at which the conflict was discussed.

The panel, comprised of Judges Harry Pregerson and Michael Daly Hawkins and Senior Judge Warren J. Ferguson, held that the violations constituted a structural defect in the proceedings, rendering harmless-error analysis unnecessary.

In its first decision in the case, filed in September 2001, the three-judge panel, 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 at the chambers conference.

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

No Automatic Reversal

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 in Campbell’s case, and upheld the conviction on the ground the defendant did not show that the attorney’s performance was actually affected by the conflict.

On reconsideration, however, the Campbell panel threw out the conviction again, distinguishing Mickens on the basis of Campbell’s exclusion from the chambers conference.

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

But Judge Richard Clifton, writing Friday for the en banc court, said the decision of the Sixth District Court of Appeal, which affirmed the convictions and denied habeas corpus relief, was entitled to deference under the Antiterrorism and Effective Death Penalty Act of 1996.

“The approach adopted by the court of appeal”—which assumed that a conflict existed, but found that it did not hamper McCann’s defense—”...was not contrary to clearly established federal law,” the judge wrote, nor was it an unreasonable application of Supreme Court precedent to the facts of the case.

No Structural Error

The high court, Clifton explained, has held that a defendant’s involuntary absence from a portion of the proceedings is a due process violation only if the defendant’s presence “would contribute to the fairness of the procedure.” Nor, he added, has the court ever held that the exclusion of a defendant, even at a critical stage of the proceedings, is structural error.

Chief Judge Mary M. Schroeder and Judges Pamela Ann Rymer, Andrew J. Kleinfeld, Barry G. Silverman, Susan P. Graber, Kim M. Wardlaw, Ronald M. Gould and Jay S. Bybee concurred in Clifton’s opinion.

Ferguson, the only member of the three-judge panel to be drawn for the en banc rehearing, dissented, joined by Judge Stephen Reinhardt.

“This case is astonishing,” Ferguson declared. “The prosecutor deliberately prevented the trial judge from determining defense counsel’s true criminal history and current legal problems” and thus prevented Campbell from learning of the conflict and making an informed decision about whether to seek new counsel.

In a footnote to the majority opinion, Clifton said the record did not support Ferguson’s insinuation of prosecutorial misconduct. There was no showing that information was deliberately withheld from the judge or that the prosecutor and defense counsel colluded to keep information away from Campbell.

The case is Campbell v. Rice, 99-17311.


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