Trial counsel was ineffective because he had an actual conflict of interest arising from his dual representation of both Villareal and a defense witness who had testified at Villarreal’s first trial (which ended in a hung jury ) and who, before the second trial, was accused of committing perjury during the first trial.
The witness was Villarreal’s sister, Sara, and her testimony was a key part of Villarreal’s defense at his first trial because she supplied motive evidence explaining why the alleged victim would falsely accuse Villarreal, and there is no dispute that it was important to Villarreal that she testify at the second trial consistently with the above testimony at the first trial. (¶¶12-13). The issue arose because, following Villarreal’s first trial, an investigating officer accused Sara of having given perjured testimony. This investigation prompted Villarreal’s lawyer to suggest that he should represent both Villarreal and his sister Sara. The investigating officer sought to question Sara, and counsel advised Sara to meet with the officer. The meeting took place, with counsel in attendance, five months prior to Villarreal’s second trial. (¶13). This created an actual conflict of interest:
¶15 To the extent that Sara was motivated to protect her brother and, thus, wanted to testify consistently with her statements at the first trial, Sara’s and Villarreal’s interests may have been aligned. However, when Sara learned that she was being investigated for committing perjury at the first trial, her interest was potentially at odds with Villarreal’s interest. Villarreal’s interest was in having Sara testify consistently at the second trial. Sara’s interest was in not being successfully prosecuted for perjury.
¶16 The potential for a conflict of interest was transformed to an actual conflict of interest that adversely affected [trial counsel]’s representation when [trial counsel] advised Sara to cooperate and be interviewed by the investigator who had accused her of perjury. We agree with the concession the prosecutor made before the circuit court. The prosecutor aptly explained:
The mere act of [Sara] giving another statement to the police adversely affected [Villarreal] as it potentially gave the State more to cross-examine [Sara] about at the second trial.
¶17 Whether Sara had perjured herself during the first trial or not, advising Sara to cooperate and be interviewed by the investigator appears to have been in Sara’s interest. If Sara was telling the truth, the interview gave her an opportunity to convince the investigator that she should not be charged with perjury. If Sara was not telling the truth, cooperating with the interview was at worst a calculated risk that she could avoid perjury charges by being cooperative. However, although participating in an interview with the investigator was in Sara’s interest, it was not in Villarreal’s interest.
¶19 …[F]rom Villarreal’s perspective, the interview with the police officer had no significant upside and a serious potential downside because of the likelihood that it would produce additional inconsistent statements that could be used to impeach Sara at a second trial. It is hard to imagine that a lawyer only concerned with Villarreal’s interests would have advised a witness to submit to a police interview between the two trials.
The standard for raising a conflict of interest claim after trial is more onerous than that applied when the issue is raised before trial. (¶¶8-9). After trial, it is not enough to show a mere possibility of a conflict; instead the defendant must show an actual conflict of interest that adversely affected counsel’s performance. State v. Love, 227 Wis. 2d 60, 594 N.W.2d 806 (1999); Cuyler v Sullivan, 446 U.S. 335, 348 (1980). The “effect” that a defendant needs to show should not be confused with the usual ineffective assistance requirement of prejudice because the required “effect” is on the attorney’s performance, not the outcome of the proceeding. Thus, if a defendant demonstrates an actual conflict of interest that adversely affects his or her attorney’s performance, prejudice is presumed. (¶10). A concurrence by Judge Lundsten agrees with the majority’s legal and factual analysis, but “question[s] whether this test makes sense when the identified conflict of interest has no effect on the fairness of the trial or other proceeding at issue.” (¶25). As he acknowledges, however, if this is a problem with existing law, it occurs only infrequently, and it’s a problem the state supreme court can’t fix it because of controlling federal law. (¶¶31, 33).