Gatewood v. State

Dissenting Opinion by BATTAGLIA, J. which BELL, C.J., joins. I respectfully dissent. In this case we have been asked to decide whether the trial judge was required to disqualify the State’s Attorney 1 who, while employed as an Assistant Public Defender, previously had represented the defendant in two criminal cases unrelated to the present case. The majority here affirms the trial court’s ruling and holds that, ⁵⁵⁵ [wjhere the potential conflict of interest with a former client in a criminal case arises out of a substantially unrelated charge (although similar to the current ones for which the former client was being tried), and the trial court makes an appropriate inquiry into potential prejudice to the defendant in the current prosecution from the risk of disclosure of any confidential information that may have been imparted during the previous representation, but finds none, the court is not compelled to disqualify the prosecutor.

Maj. op. at 532, 880 A.2d at 325. I depart from the majority, however, because I do not believe that the trial judge’s decision to disqualify the State’s Attorney was discretionary. The majority confuses and conflates the standards to be applied when a conflict of interest is alleged and thereafter, when the sanction arising from the conflict is determined, i.e., either the indictment should be dismissed and the prosecution barred or the State’s Attorney should be disqualified. When, as here, the State’s Attorney had a conflict of interest because of his personal representation of the defendant in another criminal case, we utilize a de novo standard to assess whether the trial judge correctly evaluated the allegations of conflict of interest on the part of the State’s Attorney, and then, apply an abuse of discretion standard to determine whether the sanction imposed was appropriate.

In Sinclair v. State, 278 Md. 243 , 363 A.2d 468 (1976), this Court considered whether the State’s Attorney could “initiate or participate in a prosecution when he ha[d] a conflicting private interest in a civil matter.” Id. at 244 , 363 A.2d at 469-70 . We held that “unresolved nonfrivolous allegations of specific prosecutorial conflicts of interest,” mandated a remand to the trial court to determine if the defendant’s conviction should be overturned, as well as whether the Information filed against him was valid, without regard to proof of actual prejudice to the defendant. Id. at 255 n. 8, 260, 363 A.2d at 475 n. 8, 478 (noting, “We, unlike the trial court in this case ... conclude that the defendant need not prove actual prejudice because, on the basis of public policy, it will be presumed to exist as a matter of law.”). In reaching this result, Judge ⁵⁵⁶ Dudley Digges, writing for the Court, relied upon Derlin v. Derlin, 142 Md. 352, 364 , 121 A. 27, 31 (1923): “An attorney at law who has once been retained and received the confidence of a client, is thereafter disqualified from acting for any other person adversely interested in the same general matter, however slight such adverse interest may be.

Nor does it matter that the intention and motive of the attorney are honest. This rule is a rigid one, and designed not alone to. prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests, rather than to enforce to their full extent the rights of the interest which he should alone represent.” Sinclair, 278 Md. at 253-54 , 363 A.2d at 474-75 (internal citation omitted) (emphasis added). The Sinclair Court recognized a pivotal principle of our criminal justice system, that the functions of a State’s Attorney are so essential to the fair and equal administration of justice that he or she must be, or appear to be, impartial in the exercise of his or her duty. The conflict of interest in Sinclair was so important that the possibility of a contaminating influence on the prosecution subjected an elected State’s Attorney to scrutiny, which would have resulted in a disqualification of his whole office.

The importance of avoiding a conflict of interest was reinforced in Lykins v. State, 288 Md. 71 , 415 A.2d 1113 (1980), in which an attorney who had represented the defendant in a civil matter later became the State’s Attorney who presented evidence against the defendant to a grand jury that returned an indictment. Id. at 72 , 415 A.2d at 1114 . In Lykins , the issue was not whether a conflict of interest existed or if the trial judge had committed error in his determination that there was a conflict of interest. Rather, the only issue was whether the indictment should be dismissed in lieu of supplanting the prosecutor. ⁵⁵⁷ In our review of the record, this Court accepted the trial court’s determination that the circumstances were so grave as to adversely affect the administration justice.

Id. at 84 , 415 A.2d at 1121 . In so doing, we held that: the proper action to be taken by a trial judge, when he encounters circumstances similar to those in the case at bar which he determines to be so grave as to adversely affect the administration of justice but which in no way suggest the bringing of a prosecution for improper motives (as was the case in Sinclair), is to supplant the prosecutor, not to bar the prosecution. Of course, a trial judge may determine that the facts presented to him are not sufficiently grave to require even this action. Normally, the evaluation of such circumstances is left to the sound discretion of the trial judge who is upon the scene and able to sense the nuances of that before him.

Ordinarily an appellate court will not interfere with his conclusion as to the proper course of action to be followed in the absence of a showing of an abuse of discretion upon the part of the trial judge. Id. at 85 , 415 A.2d at 1121 . In Lykins , it is noteworthy that the State’s Attorney testified that he did not remember if confidential information had been disclosed during his prior representation of the defendant. Id. at 74-75 , 415 A.2d at 1115-16 .

The majority in this case, however, commingles the standards used in the determination of a conflict of interest and its appropriate sanction into one standard and relies on Young v. State, 297 Md. 286 , 465 A.2d 1149 (1983), for the proposition that “Young reflects our continuing reluctance to require disqualification when merely an appearance of impropriety is shown to exist.” Maj. op. at 546-47, 880 A.2d at 334. In Young , the only issue was “whether all of the prosecutors in a county State’s Attorney’s office [were] disqualified from prosecuting a defendant in a criminal case [where] one of their number, prior to appointment as an Assistant State’s Attorney, acted as counsel to the