Petition — Coody v. Louisiana

83-25

IN THE

SUPREME COURT OF THE UNITED S|

— 4

Office-Supreme Court, U.S.

oN Be ae

JUN 14 i992

FATES

ALEXANDER L. STEVAS,

a

NUMBER

WANDALL W. COODY

AND

ALLCN BROWN

CO-PETITIONERS

VERSUS

STATE GF LOUISTANA

RESPONDENT

PETITION FOR WRIT OF CERTIORAR!

To THE SupRemME CourT oF LOUISIANA

KIDD AND KIDD

Oop STREET

ox 5168

JERRY &, JONES PAUL HENRY KIDD

po: hoop vis

» U- BOX

Moneoe . LA 49310 Bot

ATTORNEY FOR MONROE

ALLEN BROWN ATTORN

(318) 325-393] HANA

318)

INTRODUCTION

Petitioners Wandall W. Coody and

Allen Brown, through the undersigned

counsel, request that a writ of

certiorari issue to review the judgment

of the Supreme Court of Louisiana

entered on April 15, 1983, denying

review of the opinion of Court of Appeal

of the Second Circuit, in and for the

State of Louisiana,

QUESTIONS PRESENTED) FOR REVIEW

(I.) Whether a criminal defendant, after

a judicial determination of an

actual conflict of interest on the

part of his chosen defense attorney,

may knowingly and intelligently

waive his right to counsel free

of conflicting interests?

(II.) Whether the trial court may, in

evaluating the potential or actual

conflict of interest, subject

defendants and their attorneys to

cross-examination which is likely

to invade the attorney-client

privilege?

AND T OF AUTHO

LES

Introduction

Questions Presented for Review

Table of Contents and Table of

Authorities

Reference to Opinion Below

Statement of Jurisdiction

Constitutional Provisions and

Statutes Involved

Statement of the Case

Argument

A. The Constitutional

Standard

B. Waiver Standards

C. Federal Constitutional

Considerations

D. The Defendants'

to Free Choice

Conclusion

Certificate

aie

Right

27

29

Adams v. United States ex

rel McCann, 317 U.S. 269,

280, 603 o.Ct. 236, (1942)

Boykin v. Alabama, 395 U.S. 239,

By S.ce. I709, (1969)

Brady v. United States, 397 U.S.

742, 748, 90 S.Ct.

1463 (1970)

Cuyler v. Sullivan, 446 U.S.

33a, see Scot. 1708,

(1980)

Faretta v. California, 422

U.S. 800, 95 S.Ct.

2525, (1975)

Gideon v. Wainwright, 372

“Gans tone eees Cs BCE,

792, (1963)

Glasser v. United States,

SLS Usts OU, Pas

62 §.Ct. 457, (3942)

Holloway v. Arkansas, 435 U.S.

Sid, 02, 96 aoece. 1173,

(1978)

Johnson v. Zerbst, 304 U.S.

q5u, 58 S5.ct. 1019, (1938)

McMann v. Richardson, 397 U.S.

759, 770, 90 S.Ct. 1441,

(1970)

Schneckloth v. Bustamonte, 412

U.B. 4240, 93 Scce. 204i,

(1973)

19

Oy

18

16

18

17

18

16

19

Scott v. Illinois, 440 U.S.

367, 99 S.ct. 1158,

(1979)

State v. Wandall W. Coody

and Allen Brown, No.

15,382 KW

State v. Wandall W. Coody

and Allen Brown, No.

K8 2-726

State v. Wandall W. Coody

and Allen Brown, No.

83-KK-0576

United States v. Alvarez,

550 F.2G ldo, 1200,

(Sth Cir. 1978)

United States v. Armedo-

Sarmiento, 524 F.2d

op na Cir. 1975)

United States v. Garcia,

DL) Vsae- ales are,

(Sth Cis: 1975)

United States v. Hobson, 672 F.

2d 825, (llth Cir. 1982)

United States v. Mahar, 550 F.

2a i003, L040, (Sth Cir.

1977)

United States v. Villarreal,

S Fe 2 cH Gals

1977)

hie

10

15

22

20

19,20,22,

29

24

23

20

Zuck v. State of Alabama, 23

588 F.2d 436, (5th

Cir. 1979)

U.S. Const., Amend. VI 9

REFERENCE TO OPINION BELOW

The decision of the Supreme Court

of the State of Louisiana denying review

of the opinion of the Court of Appeal for

the Second Circuit is unreported at the

time of preparation of this brief, but is

numbered as 83-KK-0576 on the docket of

the Supreme Court of the State of

Louisiana. (La. April 15, 1983).

STATEMENT OF JURISDICTION

As more fully articulated in the

factual statement of the case, petitioners

are charged through separate bills of

information with various criminal

offenses relating to malfeasance in

office. On or about November 22, 1982,

the State filed documents in the trial

court captioned "Request of Court to

Insure Defendants' Constitutional Rights,"

alleging a conflict of interest due to the

alien

joint representation of multiple de-

fendants. On December 1, 1982, the trial

court heard evidence in the matter and

proceeded to personally address each

defendant as to the waiver of conflict-

free multiple representation, ultimately

concluding that each defendant had

personally waived his right to conflict-

free multiple representation. The State

of Louisiana applied for writs of

certiorari to the Court of Appea.. for the

Second Circuit to review the ruling of

the trial court. On January 17, 1983, the

Court of Appeal for the Second Circuit

granted the writ application for the

limited purpose of directing the trial

court to conduct a further hearing of the

conflict question. See: State v.

Wandall W. Coody and Allen Brown, No.

15,382 KW. Petitioners immediately filed

timely notice of intent to seek writs of

=, a

certiorari or review to the Supreme

Court of the State of Louisiana to review

the ruling of the Court of Appeal for

the Second Circuit. Following timely

application for writs of certiorari or

review, the Supreme Court of Louisiana

on April 15, 1983, denied certiorari.

Petitioners then notified both the

Court of Appeal for the Second Circuit

and the Supreme Court of the State of

Louisiana of their intention to apply

to this Honorable Court for a writ of

certiorari. On or about May 2, 1983,

the trial court issued an order staying

the proceedings pending petitioners'

application for writ of certiorari to

this Court. Petitioners invoke the juris-

diction of this Honorable Court pursuant

to Rule 17.1(c) of the rules of the

Supreme Court.

CONSTITUTIONAL PROVISTONS AND STATUTES

INVOLVED

U.S. CONST., AMEND. VI, PROVIDES:

IN ALL CRIMINAL PROSECUTIONS, THE

ACCUSED SHALL ENJOY THe RIGHT TO

A SPEEDY AND PUBLIC TRIAL, BY

AN IMPARTIAL JURY OF THE STATE

AND DISTRICT WHEREIN THE CRIME

SHALL HAVE BEEN COMMITTED, WHICH

DISTRICT SHALL HAVE BEEN PRE-

VIOUSLY ASCERTAINED BY LAW, AND

TO BE INFORMED OF THE NATURE AND

CAUSE OF THE ACCUSATION; TO BE

CONFRONTED WITH THE WITNESSES

AGAINST HIM; TO HAVE COMPULSORY

PROCESS FOR OBTAINING WITNESSES

IN HIS FAVOR, AND TO HAVE THE

ASSISTANCE OF COUNSEL FOR HIS

DEFENSE.

STATEMENT OF THE CASE

Sheriff Wandall W. Coody of

Morehouse Parish is charged by three

separate bills of information with mal-

feasance in office having to do with

allegedly requiring inmates of the parish

jail to perform maintenance work on a

privately owned building. A fourth

bill of information charges injuring

public records by allegedly entering

on office financial records as expenses

of the office items of cost incurred by

the Sheriff in connection with the work

performed on that privately owned building.

A fifth bill of information charges theft

in regard to the alleged use of employee

salary raises to pay personal obligations.

Defendant Allen Brown is separately charged

by a two-count bill of information with

malfeasance and injuring public records.!

lBrown was charged with defendant

Coody in connection with an incident

involving the alleged destruction of

arrest records relating to the Reese

brothers. While these charges against

Brown are still outstanding, the State

has attempted to prosecute Coody. Venue

in the matter was transferred to Rapides

Parish, where the ruling of the trial

judge quashing the two-count information

was upheld by the Court of Appeal for

the Third Circuit on May 17, 1983.

See: State of Louisiana v. Wandall W.

Coody and Allen Brown, No. K82-726.

Defendant Allen Brown initially re-

tained the undersigned counsel, Kidd, as

his attorney in connection with the crimi-

nal charge against him. During the

pendency of the criminal proceedings

against Sheriff Coody in Rapides Parish,

defendant Coody dismissed his previous

counsel of record and retained the under-

signed counsel to represent him in con-

nection with all criminal charges pending

against him. The undersigned counsel

accepted representation of defendant

Coody with the full knowledge and consent

of defendant Brown, who waived his attorney-

client privilege.

Prior to the preliminary examination

in the charges pending against defendants

in Morehouse Parish, the State filed a

Request of Court to Insure Defendants'

Constitutional Rights, which raised

the possibility of conflict of interest

-ll-

due to the joint representation of

multiple defendants. On December l,

1982, the Fourth Judicial District

Court, the Honorable Robert T. Farr,

heard evidence in the matter and per-

sonally addressed each defendant as to

the possible conflict of interest

created by joint representations.

Specifically, the district court advised

each defendant of the possible adverse

consequences of multiple representation

in view of the facts of the case, and

obtained the waiver of each defendant

of conflict-free representation. Sub-

sequent to the hearing the district

court issued a written finding of fact

and opinion. The finding of fact and

Opinion concluded as follows: .

"(1) Heretofore, there have existed

substantial differences between

the three principals as to both

factual accounts and subjective

analysis of motivation and in-

tent (if not culpability), as

atti

(2)

(3)

(4)

well as disagreements as to

responsibilities and authority.

Therefore, there have existed

both actual and potential con-

flicts of interest among them,

and their joint counsel have

been attempting to represent

conflicting interests.

After participating in the

discussions with counsel before

the hearing on December 1 (as

represented to the Court during

the hearing), they sought to

resolve those conflicts by agree-

ment and common approach under

the guidance of joint counsel

and apparently believed that

they had achieved their pur-

pose.

However, after being interrogated

and instructed by the Court in

the hearing, and after conferring

with counsel in the succeeding

two weeks, the principals and

the attorneys have recognized at

least that joint representation,

If continued, would quite likely

expose one or the other to con-

flicts which could not be re-

solved and would delay the

proceedings if not create other

problems from which they could

not extricate themselves.

The principals have now volun-

tarily, intelligently and thus

legally waived and surrendered,

in all future proceedings in

PY =

these and any related matters,

the attorney-client privilege

heretofore existing as stated

in their written letters.

(5) With regard to any and all

circumstances which occur in

any future proceedings in these

and any related matters which

have been expressly pointed out

Or suggested to the principals

by the Court, as well as any

other circumstances reasonably

foreseeable as a result of the

hearing and discussions with

counsel thereafter, the three

principals have voluntarily,

intelligently and thus legally

waived and surrendered their

constitutional right to "effective

counsel unfettered by conflicting

interests" among these parties;

and they have deliberately chosen

to proceed with the attorneys

designated despite the conflicts."

Defendants have no exception to the

finding of fact or relevant law applied to

facts by the district court. On or about

January 14, 1983, the State applied to the

Second Circuit Court of the State of

Louisiana for Writs of Certiorari or

Review, to review the district court's

ruling on the conflict of interest

question, and have the undersigned

alia

counsel disqualified. On January 27, 1983,

the Second Circuit Court of Appeal issued

an order granting the writ for the limited

purposes of requiring the district court

to hold a hearing at which the defendants

are to be placed under oath and subjected

to cross-examination as to their under-

standing of their "purported waivers."

Petitioners immediately notified

the Court of Appeal for the Second Circuit

of their intention to apply to the Supreme

Court of Louisiana for writs of certiorari

or review. Following timely writ appli-

cation, the Supreme Court of the State of

Louisiana denied certiorari without a

written opinion. See: State of Louisiana

v. Wandall W. Coody and Allen Brown, No.

83-KK-0576.

ARGUMENT

A. The Constitutional Standard

It is well settled that representation

-15-

by counsel in a criminal proceeding is

"fundamental and essential to a fair trial."

Gideon v. Wainwright, 372 U.S. 335, 342, 83

S.Ct. 792, (1963). As well, "it has been

long recognized that the right to counsel

is the right to the effective assistance of

counsel." McMann v. Richardson, 397 U.S.

759, 770, 90 S.Ct. 1441, (1970). Earlier

precedents of this Court have consistently

recognized that the assistance of counsel

is critical, "not only to equalize the

sides in an adversary criminal process,

but also to give substance to other con-

stitutional and procedural protections

afforded criminal defendants." Scott v.

Tllinois, 440 U.S. 367, 99 S.Ct. 1158,

(1979), (Brennan, Jr., dissenting at 377).

Thus, the Sixth Amendment right to "adequate

legal assistance" applies -- without "dis-

tinction between retained and appointed

counsel" -- at all state-conducted "trials

aiG=

at which persons .... face incarceration."

Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct.

1708, (1980).

The right to effective assistance of

counsel includes the right to counsel

"untrammeled and unimpaired" by the

representation of "conflicting interests."

Holloway v. Arkansas, 435 U.S. 475, 482,

98 S.Ct. 1173, (1978). This Court has

unequivocally stated that "....a lawyer

forced to represent co-defendants whose

interests conflict cannot provide the

.

adequate lega? assistance required by the

Sixth Amendment." Cuyler v. Sullivan,

supra., 446 U.S. at 345. But, the joint

representation of co-defendant “is not

per se violative of constitutional guaran-

tees of effective assistance of counsel."

Holloway v. Arkansas, supra, 435 U.S. at

482. In many instances "joint representa-

tion is a means of insuring against

reciprocal recrimination," for a "common

a

defense often gives strength against a

common attack." Glasser v. United States,

315 U.S. 60, 92, 62 S.Ct. 457, (1942),

(Frankfurther, J., dissenting).

B. Waiver Standards

A defendant may dispense with con-

stitutional guarantees, so long as his

waiver represents "an intentional

relinquishment or abandonment of a known

right." Johnson v. Zerbst, 304 U.S. 458,

58 S.Ct. 1019, (1938). Just as an accused

may completely forego all of his con-

stitutional rights by pleading guilty and

confessing guilt, Boykin v. Alabama, 395

U.S. 239, 89 S.Ct. 1709, (1969), or waive

his right to counsel in favor of self-

representation, Faretta v. California,

422 U.S. 806, 95 S.Ct. 2525, (1975), he

is free to make personal decisions bearing

upon the presentation of his best defense.

All our Constitution requires is that

-18-

waivers of fundamental rights be “knowing,

intelligent acts done with sufficient

awareness of the relevant circumstances

and likely consequences." Brady v. United

States, 397 U.S. 742, 748, 90 S.Ct. 1463,

(1970). To hold otherwise would transform

the procedural safeguards of the Bill of

Rights into mechanical rigidities and

"discriminate against one right in favor

of another when the Constitution does not

so require." United States v. Garcia,

oat ©.26 272, 276, (Sth Cir. 1975). Of

course, this is not to dispute that

",...a Strict standard of waiver has been

applied to those rights guaranteed to a

criminal defendant to insure that he will

be accorded the greatest possible opportu-

nity to utilize every facet of the con-

stitutional model of a fair criminal trial."

Schneckloth v. Bustamonte, 412 U.S. 218,

93 S.Ct. 2041, (1973).

ate

C. Federal Constitutional Considerations

The lower federal courts have con-

sistently held that the right of the

criminal defendant to participate in

decisions critical to his defense allows

him to execute a knowing and informed

waiver of the right to conflict-free

representation.

",..the right to manage one's

own defense is at the heart of

the Sixth Amendment guarantees...

the client may waive his Sixth

Amendment rights to effective

assistance of counsel and to con-

frontation of witnesses, just as

he may knowingly and intelligently

waive any constitutional right."

United States v. Armedo-Sarmiento,

524 F.2d 591, (2nd Cir. 1975).

The Fifth Circuit has repeatedly

held that "...a defendant may choose to

be represented by counsel with possible

or real conflicts." United States v.

Villarreal, 554 F.2d 235, (5th Cir. 1977).

In United States v. Garcia, supra,

the Fifth Circuit ascertained the correct

standard for the waiver of the right to

-20-

conflict-free representation and further

provided the proper degree of judicial

participation in the decision as follows:

"The Bill of Rights is a

catalog of limitations on govern-

ment, ensuring that certain in-

alienable rights are not to be

infringed by the sovereign. But

the prohibitions of the first ten

constitutional amendments, while

designed for the protection of

individuals, were not intended as

mandatory proscriptions on them.

Individuals are free to waive the

constitutional protections other-

wise afforded them, regardless of

their motivation, so long as the

waiver is voluntary, knowing and

intelligent. To be sure, federal

courts should refrain from casually

finding waiver of vital federal

constitutional guarantees such as

the right to counsel, but the

government's suggestion on appeal

that it is impossible as a matter

of law to waive the Sixth Amendment

right to effective assistance of

counsel in circumstances involving

serious conflicts of interest is

novel and unfounded. If defendants

may dispense with the right to be

represented by counsel altogether,

it would seem that they may waive

the right to have their retained

counsel free from conflicts of

interest.

-2l-

"In accordance with the fore-

going principles, we instruct the

district court to follow a procedure

akin to that promulgated in F. R. Cri

P. 11 whereby a defendant's volun-

tariness and knowledge of the conse-

quences of a guilty plea will be

manifest on the face of the record.

As in Rule 11 procedures, the dis-

trict court should address each

defendant personally and forth-

rightly advise him of the potential

dangers of representation by counsel

with a conflict of interest. The

defendant must be at liberty to

question the district court as to

the nature and consequences of his

legal representation. Most signi-

ficantly, the Court should seek to

elicit a narrative response from

each defendant that he has been ad-

vised of his right to effective

representation, that he understands

the details of his attorney's possi-

ble conflict of interest and the

potential perils of such a conflict,

that he has discussed the matter with

his attorney or if he wishes with

outside counsel, and that he volun-

tarily waives his Sixth Amendment

protections." United States v.

Garcia, supra, 517 F.2d at 276-278,

(citations omitted).

In United States v. Alvarez, 580 F.2d

1251, 1260, (5th Cir. 1978), the Fifth

Circuit reaffirmed Garcia by allowing

the waiver of the right to conflict-free

-22—

representation when the accused had

“knowingly and intelligently made the

decision to proceed with the challenged

counsel." It follows that "when a defendant

opposes disqualification of his or her own

attorney, the district court must take the

necessary steps to impart to the defendant

a full understanding of the consequences

of the decision and to assure that the

defendant's ultimate choice is honored"

United States v. Mahar, 550 F.2d 1005,

1010, (Sth Cir. 1977) (emphasis added).

Pursuant to Fifth Circuit jurisprudence,

nothing may impede the free choice of

the defendant, so long as he is: "(1) Aware

that a conflict of interest existed;

(2) realized the consequences to his de-

fense that continuing with counsel under

the onus of a conflict could have; and,

(3) was aware of his right to obtain other

counsel." Zuck v. State of Alabama, 588

F.2d 436 (Sth Cir. 1979).

=)

It is worth noting that the right

of the defendant to exercise his free

and intelligent choice is inviolable,

unless the actual conflict of interest

is perceived as involving the public

perception of the attorney and the legal

system rather than the attorney's

effective representation of his client.

United States v. Hobson, 672 F.2d 825,

(llth Cir. 1982), (attorney was alleged

to have been involved in the criminal

activity under prosecution). No such

circumstances are remotely alleged in

the instant case and the decision of

the defendants "to retain counsel of

[their] choice is strong and deserves

great respect.” United States v. Hobson,

Supra, 672 F.2d at 828.

D. The Defendants' Right to Free Choice

The question presented does not in-

volve the right to counsel, but instead

a24e

the right of the defendant to exercise

his free and unconstrained choice in

choosing how to exercise his basic

constitutional rights. Defendants have

exercised free choice in obedience to

the dictates of self interest and the

promptings of conscience. To deny the

defendants free choice in these circum-

stances "is to impair the worth of great

constitutional safeguards by treating

them as empty verbalisms." Adams v.

United States ex rel McCann, 317 U.S.

269, 280, 63 S.Ct. 236, (1942). Consid-

ering the vast constitutional guarantees

designed to enable the accused to present

his defense, "to deny him in the exercise

of his free choice the right to dispense

with some of these safeguards....and to

base such denial on an arbitrary rule....

is to imprison a man in his privileges

and call it the Constitution." Id.,

-25-=<

317 U.S. at 280.

This Court must be mindful that

"procedural instruments are means for

achieving the rational ends of justice."

Id., 317 U.S. at 273. To allow a defendant

to waive his right to conflict-free repre-

sentation in order to proceed with counsel

of his choice is "....neither obnoxious

to humane standards for the administration

of justice as these have been written in-

to the Constitution, nor violative of

the rights of any person accused of

crime who is capable of weighing his own

best interests..." Id., 317 U.S. at 280.

It is noteworthy that heretofore, the

District Attorney for the Fourth Judicial

District Court has not been noticeably

preoccupied with preserving or protecting

the constitutional rights of those accused

of crime. (The State acknowledged that

it had not previously filed such a motion.)

=Ve

In the instant case, the prosecuting

authority has attempted to subvert the

essence of the basic right to counsel

in order to disrupt the orderly process

of justice. Defendants respectfully

urge that the fundamental right to

counsel guaranteed by State and

Federal Constitution is not one subject

to the concurrence of the District

Attorney.

CONCLUS TON

The ruling of the trial court is an

enlightened and well reasoned opinion which

promotes "judicial restraint” and resists

"meddling" with those matters properly

within the scope of the attorney-client

privilege. To the contrary, the rather

cryptic opinion of the Court of Appeal

for the Second Circuit is a clear invita-

tion for the courts to involve themselves

in matters which are within the protected

~~)

domain of the attorney and his client.

Further judicial inquiry will serve no

useful purpose, as petitioners have

participated in a hearing conforming to

Garcia and its progeny, and waived their

right to conflict-free representation.

Considering such, the office of the

District Attorney for the Fourth Judicial

District should not be allowed to obstruct

the rights of the defendants to free and

unconstrained choice.

For the aforestated reasons, this

Honorable Court should grant a writ of

certiorari to review the decision of

the Court of Appeal for the Second Cir-

cuit.

Respectfully submitted,

JERRY L. JONES PAUL HENRY KIDD

No. 1 Wood Street KIDD AND KIDD

P. O. Box 3168 No. 1 Wood Street

Monroe, LA 71210 P. O. Box 3168

ATTORNEY FOR Monroe, LA 71210

ALLEN BROWN ATTORNEY FOR

WANDALL W. COODY

oMin

a ,

I hereby certify that I have

furnished an exact copy of the foregoing

Petition for Writ of Certiorari to

Honorable Allen Harvey, Assistant

District Attorney, Morehouse Parish,

by placing same in the U.S. Mail,

postage prepaid, on this day of

June, 1983,

OF COUNSEL

SWORN TO AND SUBSCRIBED before me,

the undersigned Notary, on this

day of June, 1983.

NOTARY PUBLIC

-29-

‘STATE OF LOUISIANA * PARISH OF MOREHOUSE *

FOURTH DISTRICT COURT

STATE OF LOUISIANA FILED:

VERSUS NOS. 82-2035A, 82-2036A,

82-2037A, 82-2038A, 82-2039A

WANDALL W. COODY

AND

STATE OF LOUISIANA

VERSUS NO. 81-2865A

ALLEN BROWN DEPUTY CLK. OF CT.

RULINGS ON CONFLICTS OF INTEREST

Defendant ‘Coody, Sheriff of Morehouse

Parish, is charged in three separate bills

with malfeasance in office having to do

with allegedly requiring inmates of the

parish jail to perform work on a pri-

vately owned building. An additional

bill charges injuring public records by

allegedly entering on office financial

records as expenses of the office items

of cost incurred by the sheriff for the

1-A

work on that private building. The

fifth bill charges theft in regard to

alleged use of employee salary raises

to pay personal obligations. There re-

main at this time unresolved charges

against Sheriff Coody of malfeasance

and/or injuring public records arising

out of the alleged alteration of the

arrest book for the benefit of two

brothers named Reese who had been arrested

by deputies and "booked" for theft. The

latter charges were earlier transferred

to Rapides Parish for trial pursuant to

ruling on a motion for change of venue.

Defendant Brown is also separately

charged in Number 81-1865A for his

alleged part in the arrest book episode

involving the Reese brothers, which

occurred while he was serving as chief

criminal deputy under Sheriff Coody.

The five charges captioned above were

filed against Sheriff Coody long after

the bills against him and Brown were

filed in the Reese affairs. No motion

for change of venue has been filed in the

instant Coody cases or in the Brown case.

From proceedings and filings of

record in the six captioned cases and

the transferred case, the following

events and facts are summarized in rough-

ly but perhaps not precisely chrono-

logical order of occurrence:

When information surfaced concerning

the crash of a small plane in Morehouse

Parish and alleged activities of Deputy

Brown with respect thereto, the Dis-

trict Attorney began an investigation.

Brown employed Mr. Paul Kidd of Monroe

as his attorney. When investigation

attention was turned to the Reese matter

and involved both Coody and Brown, Kidd

continued to represent Brown; and Coody

employed Mr. O. N. Hamilton of Oak

Grove as his attorney. Both officers were

charged in the Reese affair, in separate

bills.

By the time the motion for change

of venue was heard in the earlier Coody

case, Brown had been discharged from

his employment by Coody and Harvey High,

the chief civil deputy, was ultimately

made acting chief criminal deputy.

Nothing in the way of court activity

occurred in the Brown case; but in a

separate bench trial the Reese brothers

were convicted of theft charges arising

out of the original arrest which led to

the first charges against Coody and the

instant charge against Brown.

Sheriff Coody then engaged the law

firm of Mr. Camille Gravel in Alexandria

to represent him in the case transferred

to Rapides Parish. It is not clear from

the instant records whether Hamilton was

dismissed or remained temporarily as co-

counsel with Gravel. In any event, while

the original charges against Coody were

being handled in Rapides Parish, the

district attorney's office began investi-

gating information concerning the work on

the private building in Bonita in the

northern part of Morehouse Parish.

Deputy Brown, who was then working

elsewhere, gave a recorded statement to

the district attorney's investigator,

with the consent and approval of his

attorney, Kidd, who was present during at

least part of the interrogation. Deputy

High was not then represented by counsel,

but he also gave a recorded statement to

an investigator for the district attorney

after having received Miranda warnings

and having waived constitutional rights

against self-incrimination and to counsel.

5<-A

Both these statements were to some extent

self-incriminating and also contained facts

which, if adduced in court, could be con-

sidered to incriminate Sheriff Coody in

regard to all of the charges against him.

In addition, Brown's statement was some-

what incriminating of High, and vice versa.

Thereafter, Sheriff Coody dismissed

the attorneys previously representing him

and employed Kidd as his counsel. Kidd

filed pleadings which were heard and ruled

on in Rapides Parish and which are on appeal.

Thereafter, the five captioned bills were

filed against Coody. Kidd remained en-

rolled as counsel for Brown and has to date

represented Coody in these five cases.

High also engaged Kidd, although no charges

have yet been filed against him.

The state moved for and scheduled pre-

liminary examinations in the instant Coody

cases and issued subpoenas for Brown and

High as witnesses. The latter two, through

6-A

Kidd, filed motions to quash the subpoenas,

contending that forcing them to testify

would violate the attorney-client privilege

existing between them and Kidd (presumably

by requiring them to reveal information

discussed with their attorney or by sub-

jecting them to cross-examination by their

own counsel). Simultaneously, Kidd filed

for Coody motions to quash the scheduled

preliminary examinations on the ground

that the state would thereby be permitted

to engage in impermissible discovery by

forcing Brown and High to testify on

matters discussed among all defendants

with their counsel.

On the date the preliminary exami-

nations were to be heard, the state filed

in each of the captioned cases a pleading

called “Request of Court to Insure

Defendant's Constitutional Rights.”

Attached to one or the other of these

pleadings were what purported to be

7-A

transcriptions of the recorded statements

of Brown and High given earlier to the

district attorney's staff. The state took

the position that there exist now obvious

conflicts of interest onthe part of the

attorneys representing the two defendants

and High (a witness and potential defen-

dant), as well as future situations which

would bring the conflicts into focus, all

to the detriment of one or all of the

defendants. The Court was requested to

"take all appropriate measures to insure

defendants’ constitutional rights and

cure any appellate prejudice, if necessary

or possible."

These filings were made so late that

counsel for defendants were not prepared

to proceed on that date, and neither the

state nor the Court was prepared to

suggest or determine the nature and

scope of any hearing necessary. It was,

however, obvious that if there were

any avoidable danger to defendants' rights,

those matters should be resolved before any

other steps were taken or hearings held.

The Court therefore re-scheduled all the

pending matters for hearing the following

week on December l.

Prior to that hearing, Kidd filed

on behalf of Coody a motion to quash all

the charges on the ground of prosecutorial

misconduct. In that motion and/or in the

brief in support thereof, Kidd referred

to a number of meetings and agreements with

the prosecutor and otherwise revealed dis-

cussions and activities involving all three

of the persons represented.

When the matters came on for hearing

on December 1, the Court called up as the

first order of business the filings con-

cerning alleged conflicts of interest.

To that point, some of the pleadings filed

had been signed by Kidd and some by Mr.

Jerry Jones, who has or has had an

association of unrevealed nature and scope

with Kidd. The Court was assured by both

attorneys and the three principals that

Kidd and Jones were co-counsel or fully

associated in the representation of all

three principals and that there was no

distinction in the representation by each

attorney.

The Court then instructed and inquired

of the three principals, both separately

and jointly, as to several constitutional

rights and factors creating conflicts of

interests. The state declared its in-

tention to file charges against High

and possibly to offer immunity to one or

more of the principals so as to require

their testimony. Upon determining that

some of the matters covered had not been

fully considered and discussed (including

separate and specific arrangements for

10-A

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rae! Pa be 5. <a j . . ee a ae 7 LrPaciee ly on

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Bx

fees), the Court instructed the three

principals to file with the Clerk no

later than December 15 separate written

statements in which each stated for the

record whether or not he elected to

proceed with the same counsel and, if so,

an assurance that he has a specific and

separate agreement concerning fee with

the attorneys.

On December 15, there were left at

this Court's chambers five letters which

were forwarded by the Court to the Clerk

for filing, including: (1) a cover

letter signed by Kidd addressed to the

Court; (2) one signed by Brown, addressed

to Kidd; (3) one signed by Coody addressed

to Jones; (4) one signed by High addressed

to Kidd; and (5) one signed by High

addressed to Jones. Read together,

these letters reveal: that Kidd has with-

drawn (or will do so) as counsel for Brown

1ll-A

3 3 4 -

ee”

and High and will represent Coody; that

Jones has withdrawn (or will do so) as

counsel for Coody and High and will

represent Brown; that High will engage

separate counsel; that Coody waives the

attorney-client privilege with respect

to Jones as his former counsel; that Brown

waives the attorney-client privilege with

respect to Kidd as his former counsel;

and that High waives his attorney-client

privilege with respect to both Kidd and

Jones as his former attorneys. The

letters do not explain the relationship

(if any) which exists between Kidd and

(1)

Jones.

(1)phis Court does not know, nor does

this record reveal, the precise nature of

the relationship. The Court only knows

that at times in the past, Jones has

occupied office space in Kidd's building

and that on numerous occasions Jones has

appeared in Kidd's behalf in regard to

chambers orders, pre-trial conferences

and in the courtroom. The only inference

drawn from these facts is that in the past

there has been an apparent identity of

12-A

Although the two attorneys are now

at least nominally separated and each of

the three participants has waived the

attorney-client privilege arising out of

past representations, the legal issues

presented are not entirely moot. Not only

is the appearance of past association

between Kidd and Jones--at least in their

previous joint representation of all three

principals--still unresolved, but future

developments may surface circumstances which

bring past conflicts of interest into

focus. Accordingly, the Court must now

decide the issues presented.

(Footnote No. 1 Continued:)

representation or a close and frequent

association, both in the instant cases and

in others. In planning the civil docket,

the Court just recently reviewed a record

filed in Ouachita Parish wherein a pleading

is signed: “Kidd & Jones, Attorneys at

Law, No. 1 Wood Street, Monroe, Louisiana.

71210, by Jerry L. Jones.” That pleading

was filed October 5, 1982.

13-A

THE LAW

The Sixth Amendment to the

Constitution of the United States guaran-

tees to any person accused of crime the

right to counsel. This same guarantee is

set forth in Article 1, Section 13 of the

Louisiana Constitution. This concept

originated, no doubt, in the desire to

force government to permit the appearance

of counsel for an accused, since history

taught that the frequent approdch of

despots was to ban the presence of

attorneys or other spokesmen for the

accused. However, the right to counsel

has been expanded substantially by

judicial interpretations and legislation.

The right is now considered to contemplate

not only the assistance vel non of an

attorney, but one whose best efforts and

exclusive dedication to his client's

interests is unfettered by divided loyalty

14-A

- Ts

or conflicting or adverse interests.

For example, Rule 44 of the Federal

Rules of Criminal Procedure speaks of

the "right to effective assistance of

counsel, including separate representation"

(emphasis supplied). That rule enjoins the

federal trial court (pre-trial, apparently)

to “take such measures as may be appropriate”

to protect each person's "right to counsel"

when two or more are jointly charged or

joined for trial and are represented by the

same attorney or by attorneys "who are

associated in the practice of law...”

Following that mandate, federal judges

have held hearings for the purpose of

attempting to determine whether conflicts

of interest exist or may exist, or have

sought to avoid conflicts or have found

waivers. See, for example, United States

v. Davenport, 478 F.2d 203; United States

v. Partin, 601 F.2d 1000; United States v.

Garafola, 428 F.Supp. 620. The judge in

the Garafola case went so far as to prepare

a form for execution by attorneys jointly

representing two or more defendants in a

case, and ordered one defendant to retain

another attorney after his co-defendant

voluntarily decided to do so, thus "“de-

posing" the original attorney from all

representation.

The American Bar Association, purport-

ing to speak for its tens of thousands of

members, has adopted several documents which

‘address the professional conduct and re-

sponsibilities of attorneys and deal with

actual and potential conflicts of interest

between clients. Its Code of Professional

Responsibility enjoins an attorney to weigh

carefully the possibility of divided loy-

alty or impaired judgment in potent con-

flict situations and to “resolve all

doubts against the propriety of

16-A

. es og

the representation." Its Standards

Relating to The Defense Function speak

of the gravity of potential conflicts

with multiple representations, urge

“careful investigation" by the attorney,

and recommend that such representation not

be undertaken except in unusual situations

when no conflict is likely to develop and

when informed consent of all clients is

obtained.

Louisiana has no such statute as fed-

eral Rule 44, nor are there any pre-trial

guidelines provided by statute or appellate

decision. However, our state does have its

own Code of Professional Conduct for

attorneys which speak with the force of

law in Ethical Consideration 5-14 and

Disciplinary Rule 5-105 on the subject

of multiple representation. Moreover,

our Supreme Court has reversed criminal

convictions because of conflicts of

17-A

interest arising from multiple repre-

sentation. See, State v. Franklin, 400

So.2d 616; State v. Ross, 410 So.2d 1388;

State v. Rowe, 416 So.2d 87. In State v.

Bosworth, 415 So.2d 912, a reversal sought

on that ground was refused because the

Supreme Court concluded that no actual

conflict existed despite multiple

representation. The attorney-client privi-

lege loomed large in all these cases.

The three reversals occurred in cases

in which attorneys were appointed to

represent indigent co-defendants, wherein

one pleaded guilty and testified at the

trial of the other. The attorney-client

privilege of the witness-defendant was

not waived, and in two of the cases, the

attorney sought to withdraw as counsel for

the remaining defendant on the ground of

conflicting interests. In the third

case, no motion to withdraw was made, nor

18-A

was any objection to representation

asserted until post-conviction relief

was sought. In the latter case (State

v. Ross), the majority of the Supreme

Court found an actual conflict of interest

despite the absence of such plea pre-

trial or at trial by either the convicted

defendant or his counsel.

The basic constitutional guarantee

of effective counsel unfettered by

conflicting representation is clearly via-

ble and not infrequently urged in

Louisiana, as are strong ethical and dis-

ciplinary rules governing attorneys in

such circumstances; but we have no

pre-trial procedures for avoiding the

(2)

results. Even though none of the

(255 State v. Franklin, the author

of the Supreme Court's majority opinion

suggested the possibility of barring joint

representation in every case. In State v.

Ross, the majority opinion strongly implies

that even without any such issue having

been raised, the trial judge should have

'19-<A

principals in these matters is jointly

charged with any of the others and there

is no indication of joint trial, the.

prospect of one or more being called ©

to be a prosecution witness against

another is not only most likely but has

been forecast by subpoenas issued for the

preliminary examinations in the Coody

case and by the state's declaration of

future intentions. Moreover, despite the

waiver of attorney-client privileges by all

principals and the fact that each now has

separated himself from joint representation

by the same attorneys, there remains the

effect or possible results of the pre-

vious joint representation during which

it was clear that if conflicts did not

(Footnote No. 2 continued:)

taken “steps” to ascertain whether con-

flicts existed. Yet, all courts, beth

federal and state, continue to hold

that joint or multiple representation

is not per se a violation of defendants’

rights.

20-A

then exist, they were virtually certain

to appear. The attorneys themselves have

now belatedly recognized this fact; and

there also remains the suggestion of

some kind of association or relation-

ship between Kidd and*Jones in their

general practices--at least in the recent

past.

CONCLUSIONS

Clearly, all potential problems

created by the joint representation have

not been completely resolved. Yet, the

principals have been thoroughly informed

of their rights, as well as potential

developments; and they have made in-

tentional choices as to retained counsel.

Unlike those circumstances in which the

government is providing free counsel by

appointment, when the accused has no real

choice in the selection of counsel, this

Court is here dealing not only with legal

theory regarding rights of accused

21-A

persons, but with their free and informed

personal decisions in choosing retained

attorneys.

The present circumstances therefore

oblige the Court to seek and to draw

an extremely fine line between the per-

formance of serious judicial responsi-

bilities and judicial meddling--between

judicial "activism" and judicial

restraint. It may as well be said at the

outset that legally, philosophically,

intellectually and by nature, this Court

is "for" restraint and "against" meddling.

Although not expressly stated, the

state seems rather clearly to be con-

tending that the only ruling which can

completely eliminate the effects of the

joint representation and avoid “appellate

prejudice" (meaning reversal on appeal in

the event of convictions) is an order

requiring all principals to discharge

22-A

both Kidd and Jones and employ new,

totally separate counsel. In the con-

text presented, this Court must decline

the implied invitation to meddle with the

free choice of the principals.

Having advised the principals fully,

the Court now accepts their assertions

in open Court and their written findings

at face value. From those representations

by them, the Court holds that:

(1) Heretofore, there have existed

substantial differences between

the three principals as to both

factual accounts and subjective

analysis of motivation and intent

(if not culpability), as well

as disagreements as to respon-

sibilities and authority. There-

fore, there have existed both

actual and potential conflicts of

interest among them, and their

23-A

=

bow 7

(2)

(3)

joint counsel have been attempting

to represent conflicting interests.

After participating in the dis-

cussions with counsel before the

hearing on December 1 (as repre-

sented to the Court during the

hearing), they sought to resolve

those conflicts by agreement and

common approach under the guidance

of joint counsel and apparently

believed that they had achieved

their purpose,

However, after being interrogated

and instructed by the Court in the

hearing, and after conferring with

counsel in the succeeding two weeks,

the principals and the attorneys

have recognized at least that joint

representation, if continued, would

quite likely expose one or the other

to conflicts which could not be

24-A

—

(4)

(5)

resolved and would delay the pro-

ceedings if not create other pro-

blems from which they could not

extricate themselves.

The principals have now volun-

tarily, intelligently and thus

legally waived and surrendered,

in all future proceedings in these

and any related matters, the

attorney-client privilege hereto-

fore existing as stated in their

written letters.

With regard to any and all cir-

cumstances which occur in any

future proceedings in these and

any related matters which have

been expressly pointed out or

suggested to the principals by

the Court, as well as any other

circumstances reasonably foresee-

able as a result of the hearing and

25-A

discussions with counsel there-

after, the three principals have

voluntarily, intelligently and thus

legally waived and surrendered their

constitutional right to "effective

counsel unfettered by conflicting

interests" among these parties; and

they have deliberately chosen to

proceed with the attorneys designated

despite the conflicts.

These and related proceedings will now

proceed pursuant to these conclusions and

rulings.

S/

ROBERT T. FARR, JUDGE

26-A

COURT OF APPEAL, SECOND CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA NO. 15,382-KW

vs. FILED: January 17,

1983 pm 1-14-83

WANDALL W. TCOODY

& ALAN BROWN

On application of the State of Louisiana

for writs of certiorari and review

82-2035A; 82-2039A

in No. 82-2865A on the docket of the

4th Judicial District Court, Parish of

Morehouse, State of Louisiana, Hon.

Robert T. Farr, Judge.

Allen Harvey Counsel for:

Assistant District Plaintiff-Applicant

Atty.

Paul Henry Kidd Counsel for:

Defendant-Respondent

Jerry Jones Counsel for:

Defendant-Respondent

BEFORE PRICE, FRED W. JONES AND

SEXTON, JJ.

WRIT GRANTED for the limited purpose

of directing tne trial judge to hold a

hearing, conducted in a manner considered

appropriate by him, at which the State and

the defendants shall be afforded an

opportunity to present evidence through

1-B

witnesses, who shall be placed under oath

and shall be subject to cross-

examination, relating to the purported

waivers by the defendants of their right

to counsel free from any conflict of

interest and of their attorney-client

privilege, and dealing specifically with,

but not limited to, the following ques-

tions:

(1) The nature of any working

relationship between Attorney

Paul Kidd and Attorney Jerry

Jones pertaining to the

practice of law, and the

knowledge of defendants on

that subject, and

(2) The understanding of the

defendants with reference to

the practical implications of

their purported waivers.

After considering the evidence

presented at this hearing, the trial

judge's ruling shall be guided by the

legal principles set forth in State v.

Rowe, 416 So.2d 87 (La. 1982); State

Vv. Franklin, 400 So.2d 616 (La. 1981);

and U.S. v. Partin, 601 F.2d 1000 (C.A.

9th, 1979).

Shreveport, Louisiana, this 27th day of

January, 1983.

S/ Fred J S/._0.E;P. .:. S/'°P,C;S.

Filed January 27, 1983

S/ Bob W. Schulman

CLERK

THE SUPREME COURT OF THE STATE OF LOUISIANA

STATE OF LOUISIANA NO. 83-KK-0576

Vs

WANDALL W. COODY

AND

ALLEN BROWN

In Re: Wandall W. Coody and Allen Brown,

applying for Writ of Certiorari

or Review, to the Fourth Judicial

District Court, Nos. 82-2035A,

82-2039A, and 82-2865A; Parish of

Morehouse, Second Circuit Court of

Appeal, No. 15-382-KW.

April 15, 1983

Denied. JCW

JAD

PFC

WFM

JLD

FAB

HTL

Supreme Court of Louisiana

April 15, 1983.

S/ Frans J. Labranche, Jr.

Clerk of Court for the Court

1-c