Metropolitan News-Enterprise


Wednesday, March 9, 2011


Page 1


Court Rejects Defendant’s Claim Based on Alleged Conflict

Panel Says Public Defender’s Performance Unaffected by Prior Representation of Witness




A defendant was not deprived of his right to conflict-free counsel under the Sixth Amendment merely because the public defender office representing him previously defended a prosecution witness in a factually related case, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court affirmed a U.S. district judge’s ruling denying habeas corpus relief to a Nevada defendant who contended that the prior representation was a per se violation of his rights.

In a 2008 decision, the appellate court had granted Steve Houston an evidentiary hearing on his claim that his defense to a charge of conspiring to commit murder was compromised because the witness, Terrence Chadwick, had previously been represented by the Clark County Public Defender’s Office.

Houston’s lawyer, Craig Jorgenson, was with that office but had nothing to do with the representation of Chadwick, who pled guilty to firing a gun into a house. Both that incident, and the incident in which Houston was charged with firing shots at a car, were allegedly part of a feud between Houston and Chadwick’s family.

Senior Judge Stephen S. Trott, writing for the Ninth Circuit, explained that under Ninth Circuit precedent, successive representation of defendants with adverse interests by different lawyers in the same office violates constitutional rights only if counsel’s actual performance is adversely affected.

The jurist rejected the claim that Jorgenson’s statement—in support of his office’s unsuccessful motion to withdraw in the trial court—that his “heart was going to be with Mr. Chadwick,” if he had to examine the former client, was sufficient to show an actual conflict.

Trott noted that in the habeas corpus proceedings before District Judge Roger Hunt, Jorgenson testified that his objective with respect to the motion was to get out of the case because that’s what the client wanted. The conflict was a technical one, he told Hunt, saying he did not feel “actually” or “personally” conflicted.

While Jorgenson testified that the practice was to always move to conflict out if the office previously represented a prosecution witness, he also said his representation of Houston was no different in any way than it would have been had Chadwick not been a public defender client, Trott pointed out.

He added that the lawyer aggressively challenged Chadwick’s credibility and that any deficiency, such as failing to bring out the fact that Chadwick was on parole, was not shown to be related to the asserted conflict.

The opinion was joined by Judge Diarmuid F. O’Scannlain and Senior U.S. District Judge Tena Campbell of the District of Utah, sitting by designation.

The case is Houston v. Schomig, 10-15048.


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