Murder Case Prompts Debate on How to Probe for Conflicts

, New York Law Journal

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Editors' Note: This article has been updated to reflect a Correction.

ALBANY - The state Court of Appeals fell one vote short Tuesday of adopting a formal system of deciding whether defense counsel is too conflicted to provide adequate representation.

Chief Judge Jonathan Lippman (See Profile) and two of his colleagues wanted New York judges to start using a method similar to one used in federal courts, where trial judges ask six explicit questions to determine if counsel has a conflict of interest and if the defendant understands the implications of that conflict.

But three other judges said the state's judiciary should continue using the method set forth by the Court of Appeals in 1975 in People v. Gomberg, 38 NY2d 307, where trial judges decide whether conflicts exist on a case-by-case basis as long as they are primarily "satisfied" that a defendant's waiver of a potential attorney conflict was informed.

Judges are not required to ask specific questions about potential conflicts under the current system, largely for fear of divulging privileged communications between defendants and their attorneys, according to the Court of Appeals' ruling in People v. Cortez, 225.

Judge Sheila Abdus-Salaam (See Profile), writing in support of the current system, said Lippman's approach "retreats from decades of New York law, which requires 'no prescribed catechism that [trial courts] must follow in ascertaining a defendant's understanding'" of their choices about retaining potentially conflicted attorneys.

"Given that trial judges are in the best position to evaluate these case-by-case circumstances, they should be permitted to employ common sense rather than 'catechisms,' and should not be constrained by a conflict inquiry that is formulaic rather than adaptive to the conditions of the specific case," Abdus-Salaam wrote in a concurrence to People v. Cortez.

The Lippman camp and the Abdus-Salaam camp engaged in a lengthy discussion over the attorney conflict inquiry in Tuesday's ruling, in which the seventh and potentially tie-breaking judge on the court, Jenny Rivera (See Profile), took no part. Judges do not indicate why they do not participate in cases.

The two camps also differed over the admission of evidence during a murder trial in Manhattan Supreme Court from diaries in which Paul Cortez said two former girlfriends betrayed him and he wanted to harm them with knives.

Lippman held that the introduction of bad thoughts that never developed into criminal behavior should be subject to the same established restrictions of other bad acts under People v. Molineux, 168 NY 264 (1901). Molineux prohibits an inference of guilt from evidence probative of no more than predisposition to a kind of behavior.

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