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No harm where the defendant’s lawyer was also the judge who bound him over for trial

State v. Keith C. Henyard, 2019AP548-Cr, District 2, 7/8/20 (recommended for publication); case activity (including briefs)

The State charged Henyard with 8 crimes potentially leading to 157 years in prison. Commissioner Parise engaged Henyard in a colloquy, accepted his waiver of a preliminary hearing, and bound him over for trial. Parise left the bench and 5 months later sold his professional services to Henyard to get him a better deal. The majority denied Henyard’s ineffective assistance of counsel claim for lack of a prejudicial “actual conflict of interest.” Judge Reilly, in another Emperor’s New Clothes moment, dissented expressing concern about the integrity of a judiciary that obscures errors and shifts blame to defendants.

The majority, written by Gundrum and joined by Neubauer, relied mostly on State v. Street, 202 Wis. 2d 533, 541, 551 N.W.2d 830 (Ct. App. 1996) and State v. Love, 227 Wis. 2d 60, 71, 594 N.W.2d 806 (1999). Street concerned a lawyer  representing a criminal defendant, who was separately the divorce lawyer for the detective working against the defendant. Love involved a defense lawyer at a revocation proceeding who had previously served as prosecutor at the defendant’s original sentencing.

The majority held that because Henyard did not object to Parise’s representation during his plea and sentencing, Street and Love required him to prove by clear and convincing evidence that Parise was actively representing a conflicting interest that adversely affected his performance as a lawyer. Opinion, ¶16.

Parise testified  that he ran a conflicts check, which showed a conflict, but he didn’t catch it. Also, he did not remember presiding over Henyard’s probable cause hearing. Opinion, ¶18.

According to the majority, Henyard failed to carry his burden of proof because he could not specify how Parise’s work as a commissioner adversely affected his defense representation. Opinion, ¶19.

Reilly pointed out that when defense counsel is burdened by an actual conflict of interest, he breaches a duty of loyalty that is hard to measure, so prejudice is presumed. Cuyler v. Sullivan, 446 U.S. 335, 345-350 (1980).  Parise had an “actual” conflict because SCR 20:1.12(a) says that a lawyer “shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer.” The comments to the code say this type of conflict is so serious it cannot be waived. Dissent, ¶37.

Wondering how the majority got around this point? It claimed to be reviewing a conviction, not a code of judicial ethics violation. Opinion, ¶16 n.11. It also repeatedly said that its hands were tied. It could not overrule Street and Love, which dictated the result in this case. Opinion, ¶20 n.5, ¶25 n.9.

Not so, said Reilly. Neither case involved a non-waivable conflict of interest involving a judge. Dissent, ¶42. He also voiced a larger concern about the integrity of the judiciary:

¶45 My concern lies with a judiciary that obscures errors and ignores violations meant to protect defendants and the integrity of the judicial system by creating ever-expanding rules of harmless error, lack of prejudice, lack of adversely affected representation, waiver, and forfeiture that we apply on a daily basis to avoid answering for our wrongs or the wrongs of the government. We shade our mistakes by imposing the burden of proof upon the one whose only wrong was being the recipient of our bad acts. We must have the fortitude to admit that we are the wrong-doers in this case, and we must have the integrity to accept the blame rather than force the one who did not err to prove that our mistake did not hurt him.

The conflict of interest overshadowed another interesting issue in this case. Henyard argued that he was entitled to resentencing because the judge who sentenced him was biased against heroin and drug delivery offenses (the types of crimes involved here). During sentencing the judge went on about the need to impose serious penalties in drug cases. He explained that Singapore became one of the safest places in the world after it started imposing the death penalty for drug crimes. Opinion, ¶7 Henyard’s postconviction motion quoted similar statements made by the judge in other cases and in the press.

The court held that a judge’s general comments that certain types of crimes deserve stiff sentences does not demonstrate actual bias or “great risk of actual bias” under State v. Herrmann, 2015 WI 84, ¶46, 364 Wis. 2d 336, 867 N.W.2d 772.

 

 

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