Murder Case Prompts Debate on How to Probe for Conflicts

, New York Law Journal

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Judges Susan Phillips Read (See Profile) and Eugene Pigott Jr (See Profile) joined in Abdus-Salaam's concurrence.

Six-Question Approach

Abdus-Salaam noted that the Gomberg approach developed so that a defendant would not be compelled to reveal "details of the defense conferences, or strategies" while still giving the judge enough information to decide the effects a potential conflict could pose to the right to adequate representation.

But Lippman wrote that the federal approach embraced by the U.S. Court of Appeals for the Second Circuit in United States v. Curcio, 680 F.2d 881 (1982), appears to be "well-designed" to produce the kind of searching inquiry he said was absent under the state's use of unscripted inquiries under Gomberg.

Curcio requires trial judges to ask six questions about an attorney's potential conflicts, including the court's duty to inform the defendant of his right to conflict-free representation, to instruct the defendant of the dangers of the potential conflict and to give the defendant time to decide whether to retain counsel.

"It is an approach that has proved workable ... and which would be prudently followed in our criminal courts where there is doubt, as there evidently was in this [Cortez]case, as to how a conflict waiver inquiry should proceed," Lippman wrote.

Berkman's inquiry "simply does not provide the necessary assurance that co-counsel's conflict and its risks were understood and freely assumed by defendant in the context of a choice essentially defined by the entitlement to conflict-free representation," he added.

Lippman was joined by judges Victoria Graffeo (See Profile) and Robert Smith (See Profile).

In an amici curiae brief prepared by Levitt & Kaizer of Manhattan, the National Association of Criminal Defense Lawyers and the New York State Association of Criminal Defense Lawyers argued that Berkman failed to properly inform Cortez of his right to a conflict-free attorney, explain how a conflict involving his attorney might prejudice him or give him enough time to mull over whether to keep Florio on his defense team.

The inquiry in Cortez's case would have been handled more thoroughly and fairly if it had been under the federal rules of Curcio, the groups argued.

Assistant Manhattan District Attorney David Cohen represented the prosecution.

Marc Fernich of Manhattan, who argued for Cortez, said the ruling presented the unusual situation where the court agreed that the trial judge's inquiry of the potential conflict of interest was flawed and the use of Cortez's journal entries should not have been allowed into evidence. Yet his client gets no relief.

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