On appeal from to the Superior Court, Law Division, Morris County.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
ALBIN, J., writing for a majority of the Court.
In this capital case, the Court decides whether to disqualify one of two public defenders representing defendant Jimenez because of her previous one-day representation of a client who was questioned during the investigation but found to have no connection to the murder.
On May 20, 2001, ten-year-old Walter Contreras attended a local carnival and did not return home. A subsequent search for the boy ended tragically on May 22, 2001, with the discovery of his body near the Whippany River in Morristown. Walter Contreras had suffered multiple stab wounds, and his head had been bludgeoned with a garden tool. He also had been sexually assaulted, and evidence of semen was found in his underpants.
A thorough and extensive investigation in which "hundreds of people" were interviewed ultimately led the police to defendant Jimenez. During that investigation, a search of a playground approximately one mile from where the body of the murdered boy had been found led to the discovery of a distinctive sweater stained with what was presumed to be human blood. Viewing the sweater as a possible link to the murder, the police showed photographs of the sweater to numerous people in the Morristown area. At least fourteen people were identified as possibly wearing the sweater found near the playground, one of which was defendant Jimenez and another of which was a Ray Hughes.
On May 28, 2001, the Morristown Police secured two warrants, one authorizing the search of defendant's residence and the other the taking of DNA samples from defendant. Defendant's DNA samples matched the semen found in the young boy's underpants. On June 7, 2001, defendant was arrested and in a lengthy confession, gave details of the murder. In September 2001, he was indicted for murder, kidnapping, attempted aggravated sexual assault, and possession of a weapon for unlawful purposes. On October 22, 2001, the State signaled its intent to seek the death penalty by filing a Notice of Aggravating Factors. The Office of the Public Defender assigned First Assistant Public Defender Joseph Krakora and Deputy Public Defender Dolores Mann to represent defendant.
During the course of the murder investigation, police questioned Ray Hughes, one of the several persons identified as having worn the sweater found near the playground. When the police questioned Hughes, he had a knife in his possession, which investigators later determined could not have inflicted any of the wounds on the victim. Hughes consented to a polygraph test that proved to be inconclusive. On May 30, 2001, eight days after the discovery of the victim's body and eight days before defendant's arrest, Hughes threatened to kill a woman apparently because she gave information to the police that led to his interrogation in the murder investigation. Hughes was arrested and later indicted for uttering terroristic threats. On July 18, 2001 he pled guilty to the downgraded petty disorderly persons offense of harassment and was sentenced that same day to the fifty days he had already served in the county jail. Dolores Mann represented Hughes at that plea and sentencing. The State made no motion at that time to disqualify Mann from representing Hughes, despite its knowledge that she also represented defendant Jimenez on the murder charges.
On December 20, 2001, the State filed a motion to disqualify Mann as counsel for defendant because of her one- day representation of Hughes, arguing that there was an objective basis on which to assert a defense of third-party guilt against Hughes and that Mann therefore would be impaired in her representation of defendant. The State made it clear that it neither believed nor had evidence that Hughes was in any way involved in the murder. Furthermore, the State did not view Hughes' terroristic threats as a sign of consciousness of guilt, but rather attributed it to his unpleasant personality and to his resentment at having been involved in the murder investigation. Nevertheless, the
State took the position that there was sufficient evidence for defense counsel to argue that Hughes committed the murder based on the testimony of witnesses who allegedly saw Hughes wearing the distinctive sweater, coupled with Hughes' terroristic threats to the woman who gave his name to the police. The State expressed the concern that Mann's prior representation of Hughes precluded her from properly considering the defense of third-party guilt, thereby creating an actual conflict of interest and an appearance of impropriety that would threaten the integrity of a capital conviction of defendant on appeal.
The defense took that position that there was no evidence connecting the sweater directly to the murder and, therefore, no evidence tying Hughes to the crime, despite the claims by witnesses that Hughes wore the distinctive sweater. In light of the forensic evidence and defendant's confession, the defense maintained that any objectively reasonable attorney would know that to attempt to implicate Hughes falsely would fail and would work to the detriment of the defendant. Thus, the defense saw no potential claim of third-party guilt involving Hughes.
The motion judge denied the State's application to disqualify Mann, noting that neither the State nor the defense intended to call Hughes as a witness. The judge further found Hughes' involvement so attenuated that there was no reasonable basis to claim an appearance of impropriety. Finally, at the hearing, the judge addressed defendant directly on the issue of his choice of counsel and satisfied himself that defendant consented to continued representation by Mann.
The Appellate Division denied the State's motion for leave to appeal. The State then moved for leave to appeal to the Supreme Court. While that motion was pending, the State filed another motion to disqualify Mann based on assertions in a defense brief in support of a motion to suppress the DNA evidence and the confession. The defense had challenged the sufficiency of the affidavit in support of the warrants authorizing the search of defendant's home and the taking of the DNA samples because that affidavit had identified only the two people who saw defendant wearing the distinctive sweater and had not mentioned the names of the other numerous people, including Hughes, who had been seen wearing a similar sweater. The State viewed the defense position as an admission that the assertion of third-party guilt was a viable option. The defense continued to deny that a reasonable basis for asserting third-party guilt existed, noting a distinction between arguing that there was no probable cause on which to base the issuance of the warrants and arguing that there was no basis for a theory of third-party guilt involving Hughes.
The motion judge again denied the State's motion to disqualify Mann, noting that the defense simply was saying that Hughes' involvement in the investigation should have been included in the affidavit as part of the probable cause determination for the issuance of the warrants. He continued to find the appearance of impropriety as no more than a "fanciful possibility."
The Supreme Court granted the State's motion for leave to appeal. The Court also granted the motion of the Attorney General to appear as amicus.
HELD: Defense counsel representing the defendant in a capital murder case, who also represented for one day a client who was questioned during the investigation but found to have no connection to the murder, need not be disqualified from continued representation of the capital defendant, as that continued representation neither presents an actual conflict of interest under the Rules of Professional Conduct nor an appearance of impropriety.
1. An accused is guaranteed the right to the assistance of counsel in a criminal proceeding. Although there is a constitutional presumption in favor of counsel of one's choice, a defendant cannot insist on representation by an attorney where there is an actual conflict of interest or an appearance of impropriety - both of which would threaten not only a defendant's interests, but also the integrity of the trial process. (pp. 9-10)
2. Mann's representation of both Hughes and defendant Jimenez implicates RPC 1.9 and RPC 1.7, both of which raise questions regarding the propriety of Mann's representation, the answers to which are fact sensitive. The overriding issue is whether Mann is so impaired by her previous representation of Hughes that she will be unable to perform her adversarial role in representing defendant Jimenez. (pp. 10-12)
3. Although the right to the defense of third-party guilt is of constitutional dimension, there must be some evidence of third-party guilt to permit the defense to argue the point. That evidence need not show substantial proof of a probability that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt. (pp. 12-17)
4. In the circumstances of this case, a viable claim of third -party guilt will trigger an actual conflict of interest and an appearance of impropriety. However, there is no evidence linking Hughes to the crime that would permit an argument for third-party guilt. (pp. 17-21)
5. There is no actual conflict of interest or appearance of impropriety in Mann's serving a co-counsel to defendant Jimenez. An ordinary knowledgeable citizen acquainted with the facts of this case would not have any reasonable basis to believe that there is a plausible third -party guilt case involving Hughes. Therefore, Mann's remaining as counsel in this case will not disserve the interests of defendant Jimenez, Hughes, or the public. (p. 23)
6. Although the rationale of the Court's decision does not require consent under the Rules of Professional Conduct, given the interests at stake in this capital case, prudence dictates that the judge should conduct a colloquy on the record and determine that defendant knows the full circumstances of Mann's prior representation of Hughes, the specifics of how and why Hughes became involved in the investigation, and an explanation for defense counsel's intent not to pursue a defense of third-party guilt involving Hughes. With a complete knowledge and understanding of the import of these facts, defendant Jimenez may then voluntarily consent to have Mann continue to represent him. (pp. 23-24)
7. The Rules of Professional Conduct cannot compel the removal of an attorney because, as a tactical matter, she should keep open the option of a third-party guilt defense where there is no reasonable basis to assert the defense. (p. 24)
Judgment of the motion judge is AFFIRMED and the matter is REMANDED for consideration in accordance with this opinion.
JUSTICE LONG has filed a separate dissenting opinion in which JUSTICE COLEMAN and JUSTICE LaVECCHIA join. Justice Long believes that when Mann represented Hughes at the plea and allowed him to place on the record a benign explanation for his terroristic threats against the woman who involved him in the investigation, his actions directly contravened the interests of defendant Jimenez. She further believes that Mann's subsequent position that she would not use the third-party guilt defense involving Hughes in her representation of Jimenez highlighted her conflict of interest. At the very least, Justice ...