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Counsel – Conflict of Interest – Waiver of Conflict by Defendant, Amounts to Waiver of Claim of Deficient Performance

State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06
For Demmerly: Edward J. Hunt

Issue/Holding:

¶15 Dion contends that he was denied effective assistance of counsel because his counsel’s law firm also represented his co-defendant brother Douglas. … While there is no Wisconsin case law directly on point, the State cites federal cases holding that a defendant cannot assert ineffective assistance of counsel based on a conflict of interest when the defendant validly waived the right to conflict-free representation. …

¶16 The Lowry court provided the rationale for this rule when it stated “[t]o hold otherwise would be to render the waiver meaningless; a defendant would lose nothing by waiving his right and sticking with counsel who had a conflict, since he could always allege ‘ineffective assistance’ if convicted.” Lowry, 971 F.2d at 63. With the caveat discussed below, we adopt the rule established by the Seventh Circuit that a defendant who validly waives his right to conflict-free representation also waives the right to claim ineffective assistance of counsel based on the conflict. Harvey, 11 F.3d 691, 695 (7th Cir. 1993).

¶17 We question whether a valid waiver of a conflict of interest should act to bar all ineffective assistance claims where deficient performance is prompted by the waived conflict of interest. There may be instances in which counsel’s performance is deficient and unreasonably so even in light of the waived conflict of interest. An example will help explain the small door we leave open today.

¶18 … But what if the evidence seriously harms the defendant with no significant corresponding chance of helping the co-defendant? That is to say, what if counsel’s decision is not a reasonable strategic decision, even considering counsel’s conflict of interest? Should a valid waiver defeat all ineffective assistance claims, even when counsel’s choice is objectively unreasonable, taking into account the conflict? We have no occasion to answer this question today.

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