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Counsel – Conflict of Interest – Representation of Defendant by Prosecutor in Prior Case – Pretrial Motion to Disqualify, Timeliness

State v. Christopher M. Medina, 2006 WI App 76
For Medina: Daniel P. Ryan

Issue: Whether a motion to disqualify a prosecutor because of representation of defendant in a prior case, brought immediately before jury selection, may be deemed waived on timeliness grounds.


¶24        We conclude the circuit court may, in the proper exercise of its discretion, deny a motion to disqualify a prosecutor under the substantial relationship standard if the motion is untimely. The circuit court properly exercises its discretion when it applies the correct legal standard to the relevant facts of record and reaches a reasonable result using a rational process. State v. Watson, 227 Wis. 2d 167, 186, 595 N.W.2d 403 (1999) (citations omitted). In the context of a motion to disqualify a prosecutor under the substantial relationship standard, a non-exclusive list of factors to consider in deciding if the motion is timely brought include: when the defendant knew who the prosecutor was and that the prosecutor had previously represented the defendant; whether and when the prosecutor realized he or she had previously represented the defendant; applicable time periods established in scheduling orders; at what stage in the proceeding the motion is brought; reasons why the motion was not brought sooner; prejudice to the State because of the timing of the motion if the motion is granted; and prejudice to the defendant if the motion is denied. SeeBatchelor, 213 Wis. 2d at 256-60.¶25      Applying this standard here, we conclude the circuit court properly exercised its discretion in denying Medina’s disqualification motion on the ground of untimeliness. Although defense counsel had just learned of the prior representation a few days earlier, the court could reasonably infer that Medina knew much earlier in this case who the district attorney was and knew he was the same person who represented Medina at a sentencing three years earlier. In the absence of any explanation why Medina did not bring this to the attention of his attorney earlier, the court could reasonably infer that Medina was raising it just before jury selection for purposes of delay. The court implicitly credited the district attorney’s statement that he had not remembered the prior representation before defense counsel told him, which the court could properly do. The court also properly considered the scheduling orders it had entered and that the jury panel had been called. Finally, nothing presented to the circuit court indicated that there would be any prejudice to Medina in denying the motion: the district attorney could not remember anything from the prior representation and Medina presented little detail about the prior case. We recognize that, as we have described paragraph 17, the substantial relationship standard inquires into the relationship between the two cases, and not into whether confidential information was actually given to the attorney and whether the attorney remembers that information. Nonetheless, the likelihood of an actual conflict of interest is an appropriate factor to take into account in deciding whether to deny as untimely a disqualification motion against a prosecutor based on the substantial relationship standard.

Where “a disqualification motion against a prosecutor based on the substantial relationship standard is properly denied as untimely, the ‘actual conflict of interest’ standard of Love andKalk applies to a postconviction motion claiming a conflict of interest,” which requires that the defendant “show by clear and convincing evidence that the district attorney had an actual conflict of interest, that is, that the district attorney had a competing loyalty that adversely affected Medina’s interests,” ¶¶30-31. The court, however, reserves the possibility of a different showing where counsel knowingly fails to disclose prior representation, ¶31 n. 9.

Judge Lundsten, concurring, discusses an issue that he concedes is gratuitous, ¶40 n. 11, namely whether “a fair and error-free trial” cures an improperly denied pretrial disqualification motion. He would “liken this situation to the rule we apply when an error-free trial follows an erroneous bindover decision. In State v. Webb, 160 Wis. 2d 622, 467 N.W.2d 108 (1991), the court held … that, after an error-free trial, reversing a conviction and returning the parties to the preliminary hearing stage serves no sensible purpose. Id. at 628-31, ¶43. But this analogy assumes that the institutional interests are the same in both contexts—that safeguarding client confidentiality and ethical rules is the same as making sure that a summaryproceeding has done its job. The argument need not be joined, at this point anyway, given that the concurrence is not binding. Indeed, Judge Lundsten “acknowledge(s) that there are differences between the Webb situation and the conflict of interest issue we address today,” and cryptically adds that he would actually explain those differences if only he were writing the majority opinion, ¶46. He isn’t and so he doesn’t. However, his concurrence does highlight the need to seriously consider interlocutory review of a denied disqualification motion. Merely preserving the issue may not be enough in the end.

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