Murder Case Prompts Debate on How to Probe for Conflicts

, New York Law Journal

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But Abdus-Salaam said Lippman was proposing an expansion of Molineux by treating Cortez's bad thoughts the same as bad acts. She said Molineux should be reserved for prior crimes or bad acts, not for a defendant's unfulfilled bad thoughts.

As far as Cortez's conviction was concerned, the legal discussions were academic. All six judges ruled that the potential conflict involving the co-counsel at his trial or the introduction of Cortez's journal entries did not unfairly affect his conviction for killing a woman in 2005.

The ruling affirmed a decision by the Appellate Division, First Department.

Cortez argued that Justice Carol Berkman inadequately inquired whether he wanted to keep Dawn Florio as the second chair at his defense table, even though Florio at that time faced prosecution by the Manhattan district attorney's office for allegedly trying to smuggle drugs to her boyfriend in jail.

During a Gomberg hearing, Berkman admitted that she "never quite know[s] what to say" when inquiring about a potential conflict of interest involving an attorney.

She elicited from Cortez that he knew about the co-counsel's "pending matter" and told the defendant that Florio faced the potential loss of her law license as a result of her prosecution.

The inquiry ended with Berkman asking Cortez "to make explicit that he understood what was 'going on' and that he wished to proceed with co-counsel anyway. Defendant responded, 'Yes. I understand that. And she has not compromised this case on account of her own.'"

A jury convicted Cortez of second-degree murder for stabbing to death a woman he believed he once had a relationship with, Catherine Woods, in her apartment where she was living with her current boyfriend.

On appeal, however, Cortez maintained that his waiver of the co-counsel's conflict was not adequately made out by the colloquy with the judge and that Florio may have been conflicted from presenting a whole-hearted defense in his favor because of considerations over her own prosecution.

Specifically, Cortez argued that Florio, who was in charge of the forensic aspects of the case, failed to rebut expert prosecution witnesses over their analysis of forensic evidence damaging to the defense.

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