Criminal – Ineffective Assistance – Conflict Of Interest – Defense Attorneys – Witness Harassment

Although defendant, who was charged with rape and forcible sodomy of his six-year old daughter, contends that a conflict of interest prevented his defense attorneys from providing him effective assistance of counsel because the attorneys had been threatened with disciplinary action for their alleged harassment of a material witness, the child’s mother, and consequently the attorneys limited their cross-examination of the mother, the evidence supports the trial court’s finding that defense counsel had no conflict of interest which rendered their representation ineffective.

Defendant argues the attorneys perceived that they needed to compromise their investigation and examination of the material witness in order to avoid having an ethics complaint filed and to protect their own professional careers. Thus, because of the threat of disciplinary action against the attorneys, they protected themselves at the expense of conducting an adequate defense for defendant. He contends he has demonstrated that his defense was prejudiced by his attorneys’ ineffectiveness in failing to ask relevant questions of the witness to ascertain why she revoked her consent to obtain the victim’s psychological records and whether the Department of Social Services had encouraged her to file a spurious complaint.

No factual basis supports defendant’s argument that his attorneys had a conflict of interest. The judge and prosecutor in defendant’s case knew of the complaint by the witness that defense counsel harassed her. The prosecutor alerted the judge to the perceived misconduct, and the issue was addressed at the hearing that was convened for the purpose of considering whether the witness had revoked the records release that she had given defense counsel.

At the hearing, the witness and the defense attorneys recounted the entire incident surrounding the request for the records release that gave rise to the prosecutor’s accusations of ethical misconduct. Any misconduct that may have occurred, insofar as the record then indicated, had been disclosed prior to trial and so could not have been a conflict of interest that impeded counsel in their representation of their client.

No proof exists of any undisclosed misconduct by defense counsel that constituted a conflict of interest that prevented them from vigorously defending their client.

The fact that defense counsel chose to limit their examination of the mother at trial and not to confront her was not based upon a conflict of interest, but rather was done to avoid the appearance of being hostile toward the witness or to avoid the consequences at trial that the prosecutor or judge might question the propriety of their action before the jury.

We find that the evidence supports the trial court’s determination that defense counsel had no conflict of interest that rendered their representation of defendant ineffective.

Carter v. Commonwealth (Coleman) No. 1073-91-4, Mar. 9, 1993; Loudoun County Cir.Ct. (Jennings) Paul A. Morrison for appellant; Thomas C. Daniel, AAG, for appellee. VLW 093-7-127, 11 pp.