# Petition — Coody v. Louisiana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0028%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 846 ## Text 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 Pe A. ‘ wR > ° . ¥ a pea ls Gs de A> rae! Pa be 5.