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A judge’s courtroom ultimatum to O.J. Simpson co-prosecutor Christopher Darden created a conflict of interest for the now criminal defense attorney, but his client wasn’t prejudiced by it so her fraud convictions stand, the Ninth Circuit held ( United States v. Walter-Eze , 2017 BL 298978, 9th Cir., No. 15-50315, 8/25/17 ).
To decide whether the choice the judge gave Darden and his co-counsel—start a trial or face fines and possible bar sanctions—could upend Sylvia Walter-Eze’s convictions, the circuit court had to examine the effect of U.S. Supreme Court decisions on the conflict at issue in this case.
The Ninth Circuit had to figure out whether the Supreme Court’s 1980 decision in Cuyler v. Sullivan—which said prejudice is presumed when conflicts arise in the context of jointly representing multiple defendants—applies here in light of the Supreme Court’s 2002 decision in Mickens v. Taylor, which questioned the practice of applying Sullivan outside the context of joint representations.
There was obviously a conflict, because Darden had to choose between financial and professional hardship and being prepared for trial as an attorney, the circuit court said.
But the presumed-prejudice rule from Sullivan doesn’t apply here, because the appeals court could pinpoint where the conflict occurred in this case—the specific threat related to the potential continuance—as opposed to situations where conflicts infect the entire proceedings like joint representation of defendants in Sullivan, it said.
The decision by the U.S. Court of Appeals for the Ninth Circuit prompted a concurrence that argues the majority opinion is confusing. The ruling also sparked an impending appeal from the defendant and claims of unfairness from Darden by way of the conflict he—and the Ninth Circuit majority—says the trial judge put him in.
Darden was co-defense-counsel at trial in 2015 for multi-million-dollar health-care fraudster Walter-Eze.
The morning of Walter-Eze’s trial, the defense asked for a continuance due to co-counsel Oma Nkele’s inability to prepare for trial “as a result of an illness and alleged problems with the discovery materials,” the circuit court said.
But the trial court had already granted multiple defense adjournments—Darden and Nkele weren’t Walter-Eze’s first lawyers, they were retained shortly before the trial—and the judge thought the request might have been a delay tactic, so he would only grant the latest adjournment request if the defense lawyers paid for witness and jury fees prompted by the delay.
Darden expressed concern at the time that he risked a bar investigation and sanctions if fees were imposed.
The lawyers forewent the fees and forged ahead with trial, conditioned on the judge’s concession of a two-day-continuance after the jury was selected. Darden said he would use the short break to get up to speed on Nkele’s part of the trial that she planned on handling, in case she was unable to come to court, the circuit court said.
The trial went forward after the short reprieve—Nkele was able to do her part during the trial—and Walter-Eze was convicted of several counts. She was sentenced to over eight years in prison and ordered to pay close to $2 million in restitution to account for her fraud.
The Ninth Circuit’s discussion of the conflict focused on Darden rather than Nkele. There’s a section of the circuit court’s opinion called “Darden’s Conflict.”
But Darden was the second-chair to Nkele at the trial, he told Bloomberg BNA. He was ready to try the case but Nkele wasn’t, he said.
So it was unfair for Darden to face sanctions despite the fact that he was ready for trial, he said.
Nkele couldn’t immediately be reached for comment.
When asked why he thought the Ninth Circuit’s opinion focused on him, Darden answered, after a pause, “Because I’m Darden,” referring to the notoriety that has followed him in the aftermath of the Simpson case in which the former football star and actor he prosecuted was acquitted of murder in 1995.
Still, Darden is glad the Ninth Circuit recognized the conflict he was presented with at trial, because that was an issue he wanted to preserve for the record on a potential appeal, he said.
Darden had never been confronted with a conflict like that in his 37 years of practice, he said.
A call for comment to the courtroom of U.S. District Court Judge R. Gary Klausner, the trial judge in the case, was not immediately returned.
Since there wasn’t automatic prejudice based on the conflict, Walter-Eze had to show prejudice under the regular ineffective assistance analysis set out by the Supreme Court’s 1984 decision in Strickland v. Washington. She doesn’t come close to doing so, the circuit court said. It rejected her additional claims and affirmed her convictions and sentence.
U.S. District Court Judge Carol Bagley Amon, sitting by designation from the Eastern District of New York, wrote the majority opinion, joined by Chief Judge Sidney R. Thomas.
Judge Jacqueline H. Nguyen concurred in the judgment only. The majority’s reasoning may create confusion, she said.
By requiring a defendant to prove prejudice despite finding a conflict of interest, the majority creates a new rule that conflicts with prior cases in the circuit, she said. Nguyen agreed with the majority’s conclusion—that Walter-Eze can’t prove ineffective assistance—because no actual conflict existed and so prejudice isn’t presumed in her favor. Walter-Eze wasn’t prejudiced under the regular Strickland analysis either, Nguyen said.
Walter-Eze will appeal the Ninth Circuit’s decision, her appellate lawyer David Jay Bernstein of Deerfield Beach, Fla., and Ileana Haedo, paralegal with Bernstein’s firm who works on the case with him, told Bloomberg BNA.
Walter-Eze was definitely prejudiced by the conflict, they said, citing, among other things, the fact that Walter-Eze was the only witness called by the defense at trial.
Bernstein and Haedo were both surprised with the Ninth Circuit’s decision in light of the oral argument that preceded it, because, they said, at least one judge on the panel seemed to recognize, during the argument, that Walter-Eze suffered prejudice due to the conflict.
The Department of Justice, which represented the government, declined comment beyond their filings in the case, spokeswoman Nicole Navas Oxman told Bloomberg BNA.
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