Lux v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Fitzpatrick

Argued at Richmond, Virginia

HERBERT W. LUX, JR.

OPINION BY

v. Record No. 1304-96-2 JUDGE LARRY G. ELDER

APRIL 22, 1997

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY

H. Selwyn Smith, Judge Designate

Muriel-Theresa Pitney, Senior Assistant

Public Defender, for appellant.

John K. Byrum, Jr., Assistant Attorney

General (James S. Gilmore, III, Attorney

General, on brief), for appellee.

Herbert W. Lux, Jr. (appellant) appeals an order of the

trial court revoking his suspended jail sentence from a previous

conviction. He contends that the trial court erred when it

denied his motion to disqualify the Commonwealth's attorney. For

the reasons that follow, we reverse and remand.

I.

FACTS

In January, 1994, a jury convicted appellant of "grand

larceny by false pretenses" and "grand larceny -- mechanic's lien

fraud" and acquitted him of "construction lien fraud." Appellant

represented himself pro se at his trial but received assistance

from a public defender assigned to his case. After he was

convicted but before he was sentenced, appellant dismissed the

public defender as his counsel. In March, 1994, the trial court

sentenced appellant to nine months in jail but suspended this

sentence on the condition that appellant pay restitution to the

victims of his larcenies. Appellant appealed his convictions to

both this Court and the Virginia Supreme Court, and his petitions

were denied. Appellant then filed notice of his intent to appeal

to the United States Supreme Court.

On July 1, 1995, the public defender who assisted appellant

at his trial was hired to work in the Commonwealth's Attorney's

office. The office purportedly established a "chinese wall"

procedure that prohibited the public defender from participating

in any of the proceedings against appellant. The Commonwealth's

attorney made this assertion during his argument at the hearing

on appellant's motion to disqualify but offered no evidence

proving the existence or nature of the screening procedures

utilized.

On January 4, 1996, before the time had expired for the

filing of appellant's appeal to the United States Supreme Court,

the Commonwealth moved the trial court to revoke appellant's

suspended jail sentence. At a show cause hearing, the trial

court found that appellant had violated the conditions of his

suspended sentence by not paying restitution to his victims. The

trial court continued the matter for sentencing at a date after

the conclusion of appellant's appeal to the United States Supreme

Court.

On January 11, 1996, appellant, acting pro se, filed a civil

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action in federal court against the Commonwealth's attorney and

one of the victims of his larcenies. In his civil complaint,

appellant alleged that the Commonwealth's attorney and the victim

had violated 42 U.S.C. § 1983 by conspiring to maliciously

prosecute him for construction lien fraud, the charge of which he

was acquitted at his trial in 1994.

On January 25, 1996, the time period expired for appellant

to file his petition for a writ of certiorari to the United

States Supreme Court pertaining to his 1994 convictions.

Appellant had failed to perfect his appeal.

On April 15, 1996, while appellant's federal civil action

was pending, appellant moved the trial court to disqualify the

Commonwealth's attorney and appoint a special prosecutor.

Appellant argued that the Commonwealth's attorney's status as a

party in civil litigation involving appellant and the employment

by the Commonwealth's Attorney's office of appellant's former

trial counsel created an unconstitutional conflict of interest.

The trial court denied appellant's motion and continued the

revocation proceeding until June 5. On June 5, the trial court

concluded that appellant was still in contempt of its restitution

order and ordered him to serve the remaining seven months of his

jail sentence.

II.

DISQUALIFICATION OF COMMONWEALTH'S ATTORNEY

Appellant contends that the trial court committed reversible

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error when it denied his motion to disqualify the Commonwealth's

attorney. Appellant argues that the Commonwealth's attorney was

disqualified by virtue of his personal interest in appellant's

federal civil action and by the conflicting interest imputed to

him by the employment in the Commonwealth's Attorney's office of

appellant's former counsel. We hold that appellant's § 1983

action against the Commonwealth's attorney did not create an

unconstitutional conflict of interest but that the trial court

abused its discretion when, under the circumstances presented, it

failed to disqualify the Commonwealth's attorney based upon the

Commonwealth's Attorney's employment of appellant's former

counsel.

A.

Prosecuting attorneys have broad discretionary power over

criminal defendants at several stages of the criminal process.

See Wayte v. United States, 470 U.S. 598, 607, 105 S. Ct. 1524,

1530, 84 L.Ed.2d 547 (1985). Within limits, prosecutors decide

whether or not to prosecute an individual, determine the exact

charges for which an individual will be tried, and, if the

individual is convicted, recommend the magnitude and nature of

the individual's sentence. Id. (citing Bordenkircher v. Hayes,

434 U.S. 357, 364, 98 S. Ct. 663, 668, 54 L.Ed.2d 604 (1978)).

"There is no doubt that the breadth of discretion that our

country's legal system vests in prosecuting attorneys carries

with it the potential for individual and institutional abuse."

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Bordenkircher, 434 U.S. at 365, 98 S. Ct. at 669.

In order to protect prosecutorial impartiality, a trial

court has the power to disqualify a Commonwealth's attorney from

proceeding with a particular criminal prosecution if the trial

court determines that the Commonwealth's attorney has an interest

pertinent to a defendant's case that may conflict with the

Commonwealth's attorney's official duties. See People v.

Hamilton, 46 Cal.3d 123, 141, 249 Cal.Rptr. 320, 328, 756 P.2d

1348, 1357 (Cal. 1988), cert. denied, 489 U.S. 1040, 109 S. Ct.

1176, 103 L.Ed.2d 238 (1989); 63A Am.Jur.2d Prosecuting Attorneys

§ 30-32 (1984); 27 C.J.S. District and Prosecuting Attorneys

§ 12(6) (1959); see generally T.J. Griffin, Disqualification of

Prosecuting Attorney on Account of Relationship with Accused, 31

A.L.R.3d 953 (1970). A Commonwealth's attorney's duties include

the impartial prosecution of those accused of crime and the duty

to see that an accused is accorded a fair trial. See

Commonwealth v. Kilgore, 15 Va. App. 684, 693, 426 S.E.2d 837,

842 (1993); Cantrell v. Commonwealth, 229 Va. 387, 393, 329

S.E.2d 22, 26 (1985).

Criminal defendants are afforded constitutional protection

against prosecutors who are partial to interests beyond their

official duties. The due process rights of a criminal defendant

under both the Virginia and United States Constitutions are

violated when the defendant is prosecuted by a Commonwealth's

attorney who has a conflict of interest relevant to the

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defendant's case. 1 See Cantrell, 229 Va. at 394, 329 S.E.2d at

26-27 (holding that "[a] conflict of interest on the part of the

prosecution" violates the Due Process Clause of the Virginia

Constitution); Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir.

1967) (holding that an attempt by a prosecuting attorney to serve

two masters violates the Due Process Clause of the Fourteenth

Amendment). The specific due process right implicated when a

Commonwealth's attorney has a conflict of interest is the

defendant's right to the "fair minded exercise of the

prosecutor's discretion." Ganger, 379 F.2d at 712.

The decision whether to disqualify a Commonwealth's attorney

in a particular case is committed to the sound discretion of the

trial court. Hamilton, 46 Cal.3d at 140, 249 Cal.Rptr. at 328,

756 P.2d at 1356. The issue generally arises in at least two

situations:

[t]he first is where the prosecutor has had

some attorney-client relationship with the

parties involved whereby he obtained

privileged information that may be adverse to

the defendant's interest in regard to the

pending criminal charges. . . . A second

[situation] is where the prosecutor has some

direct personal interest arising from

animosity, a financial interest, kinship, or

close friendship such that his objectivity

and impartiality are called into question.

Nicholas v. Sammons, 178 W.Va. 631, 633, 363 S.E.2d 516, 518

1

Due process protections apply to post-conviction

proceedings to revoke a defendant's suspended sentence. See

Copeland v. Commonwealth, 14 Va. App. 754, 756, 419 S.E.2d 294,

295 (1992).

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(1987). A trial court should grant a criminal defendant's motion

to disqualify under circumstances where it can be reasonably

inferred that the Commonwealth's attorney has either a personal

interest in the outcome of the prosecution or an interest arising

from his or her former representation of the defendant that

conflicts with the fair minded exercise of his or her

prosecutorial discretion. See Kilgore, 15 Va. App. at 694-95,

426 S.E.2d at 843; State v. Knight, 168 W.Va. 615, 625, 285

S.E.2d 401, 407 (1981); Ganger, 379 F.2d at 712-13, 714. 2

We hold that the trial court did not abuse its discretion

when it determined that appellant's § 1983 action against the

Commonwealth's attorney failed to warrant the Commonwealth's

attorney's disqualification. At the time appellant filed the

civil action on January 11, the revocation proceeding had already

been initiated and partially litigated. Thus, the danger posed

by appellant's lawsuit was the possible conflict between the

Commonwealth's attorney's interest in avoiding financial loss and

2

Virginia courts have identified three scenarios in which

a Commonwealth's attorney has an unconstitutional conflict of

interest precluding his prosecution of a criminal defendant. In

Cantrell, the Virginia Supreme Court held that a special

Commonwealth's attorney unconstitutionally attempts to serve two

masters when he or she prosecutes a criminal defendant after

undertaking representation of the crime victim in a civil action

against the defendant. 229 Va. at 394, 329 S.E.2d at 26. In

Kilgore, we held that a Commonwealth's attorney violates a

defendant's due process rights if he or she participates in the

defendant's prosecution after either (1) representing the

defendant in the same matter or (2) working as a member of a firm

in which a partner represented the accused in the same matter.

15 Va. App. at 694-95, 426 S.E.2d at 842-43.

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damage to his professional reputation and the impartial exercise

of his discretion in recommending a sentence.

We cannot say that the trial court abused its discretion

because appellant's § 1983 action did not create an actual

conflict of interest for the Commonwealth's attorney. The

Commonwealth's attorney was absolutely immune from any liability

for the actions complained of by appellant in his civil suit. In

suits against executive officials under § 1983, these officials

are afforded either qualified immunity or absolute immunity. See

Buckley v. Fitzsimmons, U.S. , , 113 S. Ct. 2006, 2613,

125 L.Ed.2d 209 (1993). Under qualified immunity,

government officials are not subject to

damages liability for the performance of

their discretionary functions when "their

conduct does not violate clearly established

statutory or constitutional rights of which a

reasonable person would have known."

Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 2738, 73 L.Ed.2d 396 (1982)). With absolute immunity,

government officials have "absolute protection from damages

liability." Id. While state prosecutors have qualified immunity

from liability under § 1983 for actions performed in their

administrative and investigative functions, id. at , 113

S. Ct. at 2615-16, 3 they enjoy absolute immunity from monetary

3

Administrative and investigative functions for which

prosecuting attorneys are entitled to qualified immunity include

giving legal advice to the police, making statements to the

media, and engaging in the preliminary investigation of an

unsolved crime. See Burns v. Reed, 500 U.S. 478, 496, 111 S. Ct.

1934, 1944-45, 114 L.Ed.2d 547 (1991) (legal advice to police);

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judgments for actions "intimately associated with the judicial

phase of the criminal process," including "initiating a

prosecution and . . . presenting the state's case." Imblar v.

Pachtman, 424 U.S. 409, 430-31, 96 S. Ct. 984, 995, 47 L.Ed.2d

128 (1976). This absolute immunity includes a prosecutor's

involvement in an alleged conspiracy to initiate a malicious

prosecution. See Elder v. Athens-Clarke Cty., Ga. through

O'Looney, 54 F.3d 694, 695 (11th Cir. 1995); Rose v. Bartle, 871

F.2d 331, 347 (3rd Cir. 1989). Because the dismissal of the

§ 1983 action on immunity grounds was assured, the Commonwealth's

attorney had no personal interest in the lawsuit that might

interfere with his decision to recommend either a partial or

total revocation of appellant's suspended jail sentence.

B.

Appellant contends that the employment of his former counsel

by the Commonwealth's Attorney's office also disqualified the

Commonwealth's attorney from prosecuting the motion to revoke

appellant's suspended sentence. Appellant argues that the former

public defender was disqualified because he represented appellant

in the same matter and that this conflict of interest should be

imputed to other members of the Commonwealth's Attorney's office.

We agree because the Commonwealth failed to prove that it

utilized effective screening procedures to prevent improper

Buckley, U.S. at , 113 S. Ct. at 2616-17, 2617

(investigating unsolved crimes and making statements to media).

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contact between appellant's former counsel and the Commonwealth's

attorney handling the revocation proceeding.

Appellant presents an issue of first impression in Virginia:

whether an entire Commonwealth's Attorney's office is

disqualified from prosecuting a case against a defendant when an

attorney who previously counseled the defendant in a related

matter joins the office. It is well established that "a due

process violation occurs when, subsequent to the establishment of

an attorney-client relationship, the attorney participates in the

prosecution of his former client." Kilgore, 15 Va. App. at 694,

426 S.E.2d at 843; see also Thompson v. State, 246 So.2d 760, 763

(Fla. 1971). A different question is presented, however, when

the defendant's lawyer-turned-prosecutor has knowledge of

relevant client confidences but is screened from participating in

the defendant's prosecution.

Courts in other jurisdictions are divided as to whether the

presence of a criminal defendant's former counsel in a

prosecutor's office automatically precludes the entire office

from proceeding against the defendant in a related matter. The

majority of jurisdictions do not per se disqualify the entire

prosecutor's office solely because one member of the staff had

represented the defendant in a related matter. Instead, these

jurisdictions permit another prosecutor to handle the case if the

defendant's former counsel has been effectively screened from

participating in the prosecution. See State v. Pennington, 851

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P.2d 494, 498 (N.M. 1993), cert. denied, 852 P.2d 682 (citing

cases in 20 states and 2 federal circuits that follow the

majority rule). These courts hold that a prosecutor's public

duty to seek justice rather than profits in combination with an

effective "chinese wall" provides an adequate safeguard against

the improper disclosure of a defendant's confidences. See id. at

498-500; In re Grand Jury 91-1, 790 F.Supp. 109, 112 (E.D.Va.

1992) (citing United States v. Caggiano, 660 F.2d 184, 191 (6th

Cir. 1981)). These courts also hold that a per se rule results

in the unnecessary disqualification of prosecutors in cases where

the risk of a breach of confidentiality is slight and inhibits

the ability of prosecuting attorney's offices to hire the best

possible employees. Pennington, 851 P.2d at 499; State v.

Camacho, 406 S.E.2d 868, 874 (N.C. 1991).

Jurisdictions that follow the minority rule prohibit

screening to remedy imputed conflicts and per se disqualify the

entire prosecutor's office, regardless of the good faith intent

and motivation of the prosecutors involved. See State v.

Latigue, 108 Ariz. 521, 522-23, 502 P.2d 1340, 1341-42 (1972);

Younger v. Superior Court, 77 Cal.App.3d. 892, 896, 144 Cal.Rptr.

34, 37 (Cal. Ct. App. 1978); People v. Stevens, 642 P.2d 39, 41

(Colo. Ct. App. 1981); State v. Cooper, 63 Ohio. Misc. 1, 6-7,

409 N.E.2d 1070, 1073 (1980); People v. Shinkle, 51 N.Y.2d 417,

420-21, 434 N.Y.S.2d 918, 920, 415 N.E.2d 909, 910-11 (1980).

Courts in these jurisdictions hold that a per se rule is required

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to preserve public confidence in the criminal justice system by

eliminating any appearance of impropriety. See Stevens, 642 P.2d

at 41 (citing Shinkle, 51 N.Y.2d at 420-21, 434 N.Y.S.2d at 920,

415 N.E.2d at 910).

We hold that the employment of a criminal defendant's former

counsel in a Commonwealth's Attorney's office does not per se

disqualify the entire office from handling the prosecution of the

defendant's case in a related matter. Instead, whether the

apparent conflict of interest created when a criminal defendant's

former counsel joins a Commonwealth's Attorney's office justifies

the disqualification of other members of the office is a matter

committed to the exercise of discretion by the trial court.

Pennington, 851 P.2d at 500. We believe that a more flexible,

case-by-case approach enables a trial court to protect a criminal

defendant from the due process concern at issue -- the disclosure

of confidences revealed to his attorney during the

attorney-client relationship -- while avoiding unnecessary

disqualifications and other disruptive effects that a per se rule

would have on Commonwealth's Attorney's offices.

We are mindful of the opinion of the Virginia State Bar's

Standing Committee on Legal Ethics and Unauthorized Practice of

Law that holds that "chinese walls" or other screening procedures

do not cure imputed conflicts within a Commonwealth's Attorney's

office. See Virginia State Bar Standing Committee on Legal

Ethics and Unauthorized Practice of Law, Opinion No. 1020 (Jan.

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21, 1988) (holding that the plan for erecting a "chinese wall"

within a Commonwealth's Attorney's office does not eliminate any

potential imputed conflicts arising under Rules of the Supreme

Court of Virginia Pt. 6, § II, DR 5-105). While we agree that an

ethical rule that strives to avoid the appearance of impropriety

is a worthy standard for professional conduct, a criminal

defendant's constitutional right to due process does not entitle

him to a prosecution free of such appearances. Cf. Cuyler v.

Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 1718, 64 L.Ed.2d

333 (1980) (stating that a defendant's Sixth Amendment right to

counsel is not violated when his lawyer has a "possible" or

"potential" conflict of interest). Instead, a criminal defendant

is denied due process only when his former counsel joins a

Commonwealth's Attorney's office and is not effectively screened

from contact with the Commonwealth's attorneys who are handling

the defendant's case on a related matter. 4 See Thompson, 246

4

Screening procedures such as "chinese walls" are utilized

in other contexts in the criminal process. For example, in Welsh

v. Commonwealth, the defendant in a state criminal proceeding was

granted immunity from federal prosecution and compelled to

testify before a federal grand jury and at a federal criminal

trial. 246 Va. 337, 341-42, 437 S.E.2d 914, 915-16 (1993). In

order to prevent the state prosecution from being

unconstitutionally tainted by information obtained from the

defendant under his federal grant of immunity, the Commonwealth's

attorneys in Welsh established a "chinese wall" between

themselves and the information known to federal prosecutors

regarding the defendant's immunized testimony. Id. at 346-47,

437 S.E.2d at 918-19. This chinese wall was an integral

component of the Commonwealth's case to show that its prosecution

of the defendant was based on information wholly independent from

his immunized testimony. Id.

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So.2d at 763 (holding that a defendant's due process rights are

violated only if his former lawyer prosecutes him on a matter

related to the representation or discloses client confidences to

other prosecutors); United States v. Goot, 894 F.2d 231, 236-37

(7th Cir. 1990), cert. denied, 498 U.S. 811, 111 S. Ct. 45, 112

L.Ed.2d 22 (1990) (holding that defendant's right to due process

was not violated by the employment of his former counsel in the

U.S. Attorney's office where the former counsel recused himself

and was screened from the prosecution of defendant's case).

Although the decision to disqualify an entire Commonwealth's

Attorney's office is committed to the exercise of the trial

court's discretion, we also hold that, in light of due process

considerations, a trial court should grant a criminal defendant's

motion to disqualify when the circumstances indicate that the

defendant's former counsel in a related matter has not been

effectively screened from contact with the Commonwealth's

attorneys who are prosecuting the defendant. See Pennington, 851

P.2d at 500-01; Camacho, 406 S.E.2d at 875 (citing Young v.

State, 297 Md. 286, 297, 465 A.2d 1149, 1155 (1983)). In a

hearing on a defendant's motion to disqualify, the defendant has

the burden of proving that a member of the Commonwealth's

Attorney's office counseled him on a matter related to the

pending criminal case. See Pennington, 851 P.2d at 500-01. If

the defendant satisfies this burden, a presumption arises that

the employees of a Commonwealth's Attorney's office share

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confidences with respect to matters handled by the office. See

id. at 501 (citing Goot, 894 F.2d at 234-35). The Commonwealth

then must rebut this presumption by proving that the defendant's

former lawyer has been effectively screened from contact with the

Commonwealth's attorneys working on the defendant's case. See

id.

Based on the circumstances of this case, we hold that the

trial court abused its discretion when it denied appellant's

motion to disqualify. The record established that appellant's

counsel at trial had joined the Commonwealth's Attorney's office

prior to the initiation of the proceeding to revoke appellant's

suspended sentence. The revocation proceeding is related to

appellant's initial trial because they arose from the same matter

and the confidences that appellant disclosed to his counsel in

preparation for the trial could be highly relevant to the attempt

to revoke his sentence. Additionally, the Commonwealth failed to

meet its burden of proving that appellant's former counsel had

been effectively screened from contact with the Commonwealth's

attorney handling the revocation proceeding. Although the

Commonwealth's attorney asserted during argument that he had

erected a "chinese wall" between himself and appellant's former

counsel, the Commonwealth's attorney offered no evidence, such as

affidavits by him and appellant's former counsel, regarding the

existence and effectiveness of the screening procedures actually

utilized. See State ex. rel. Tyler v. MacQueen, 191 W.Va. 597,

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600, 447 S.E.2d 289, 292 (1994) (indicating that affidavit by

prosecuting attorney and member of office who previously

represented defendant was sufficient evidence to prove existence

of effective screening procedures). Because the Commonwealth did

not meet its burden of proving that it had implemented effective

screening procedures to prevent the disclosure of appellant's

confidences, we hold that the trial court abused its discretion

when it denied appellant's motion to disqualify the

Commonwealth's attorney.

For the foregoing reasons, we reverse the order of the trial

court revoking appellant's suspended sentence. We remand this

case to the trial court for further proceedings consistent with

this opinion if the Commonwealth be so advised.

Reversed and remanded.

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