MEDIA

November 14, 2003

On an Attorney’s Prior Representation of a Cooperating Witness

Published in: New York Law Journal | volume 230
Written by: Peter R. Schlam and Harvey M. Stone

In the U.S. District Court for the Eastern District of New York, Judge Nicholas G. Garaufis held that an attorney’s prior representation of a cooperating witness precluded his representation of a defendant at trial, despite defendant’s claims that there would be no need for the attorney to cross-examine the witness if he testified. Judge David G. Trager denied defendant’s motion for summary judgment with respect to plaintiff’s claims that she, as an African-American, had been the victim of racial discrimination by other African-Americans at a State University of New York (SUNY) agency. In another case Judge Trager, though denying a habeas petition, disagreed with respondent’s strict interpretation of the "relation back" doctrine in applying the statute of limitations. And Judge Jack B. Weinstein issued a 14-inch stack of decisions ruling on habeas challenges to state court convictions.

Attorney Disqualification

In United States v. Massino, 02 CR 307 (EDNY, Oct. 27, 2003), Judge Garaufis disqualified a court-appointed "death counsel" from representing defendant at an upcoming trial because the lawyer’s prior representation of a cooperating witness created conflicts of interest.

In January 1993, Joseph Massino, reputed head of the Bonanno crime family, was indicted on racketeering charges. In August 1993, he was separately indicted for the murder of a Bonanno family captain. The charges have been joined and are set for trial in 2004.

As Mr. Massino is eligible for the death penalty on the murder charge, pursuant to 18 USC § 3006 the court named Ephraim Savitt as death counsel, at the request of Mr. Massino and his other counsel. Mr. Savitt had represented a cooperating witness (CW) from 1998 through the witness’ sentencing in 2003. While representing the CW, Mr. Savitt received oral notice that the government’s § 5K1.1 letter to the sentencing court referred to the CW’s possible testimony against Mr. Massino in the upcoming trial.

The government moved to disqualify Mr. Savitt as Mr. Massino’s death counsel. Mr. Massino responded that he could waive any conflict and still receive effective assistance from Mr. Savitt, his counsel of choice whom the court characterized as a "conscientious and accomplished defense attorney.’

Judge Garaufis found that there is at least a "potential" conflict as to Mr. Massino, and an "actual conflict" as to the CW "based on professional ethics and the attorney-client privilege.’

Given Mr. Savitt’s prior representation of the CW, the court noted, Mr. Savitt cannot cross-examine the CW at Mr. Massino’s trial without the CW’s consent. To avoid obtaining this waiver, Mr. Massino asserted that Mr. Savitt would not cross-examine the CW. But this, in the court’s view, might mean that Mr. Savitt would abandon a particular defense strategy because the canons of ethics impose a continuing duty of loyalty to a former client. In such circumstances, counsel cannot objectively decide whether a potential strategy is sound. The inability to make a conflict-free decision, Judge Garaufis stated, is a "lapse in representation," and the resulting "ineffective assistance" is especially severe in a death penalty case.

Turning to the conflict as it applies to the CW, the court noted that Mr. Savitt had not informed it of any agreement whereby the CW consented to Mr. Savitt’s use at the Massino trial of confidential disclosures made during his representation of the CW. According to Mr. Massino, this should not be a concern since Mr. Savitt’s role on the defense team is that of death counsel and the CW would testify only as to those charges not implicating the death penalty. Judge Garaufis rejected this analysis:

The court … does not believe that Savitt effectively can isolate his knowledge about CW from the defense team, and thus avoid his responsibility to obtain a waiver from CW. As death counsel, Savitt will be involved not only with the death charge itself, but also with preparing the defense strategy in general. His privileged information may provide insights that result at least in part from his representation of CW. This creates a severe and actual conflict that puts at risk CW’s protected communications.

As the court also noted, "[o]nly CW knows if the confidence and secrets he shared with Savitt entirely overlap with those that [CW] reported to the government.’

The court found the conflict here "unwaivable." No one could predict "all of the strategies that might become necessary in order to mount a vigorous defense." Accordingly, the best way to protect the integrity of the trial and secure a just result–interests that go beyond Mr. Massino’s Sixth Amendment rights–is to eliminate the conflict while it remains only potential.

Race Discrimination

In Bryant v. BEGIN Manage Program, 00 CV 6163 (EDNY, Aug. 26, 2003), Judge Trager held that plaintiff, an African-American, had presented sufficient evidence of racial discrimination in her firing to defeat a motion for summary judgment.

From August 1999 until her dismissal in March 2000, plaintiff worked as an Orientation and Assessment Facilitator for the Brooklyn BEGIN Management Program, a federally mandated program that helps welfare recipients return to the workforce. The program was run by the City University of New York until Jan. 3, 2000, when it was taken over by the Research Foundation of State University of New York (Research Foundation). Plaintiff’s job involved informing students of program policy, conducting testing and assessment, facilitating workshops, working with the staff on classroom assignments and referring students for counseling.

After the Research Foundation took over the program, Iesha Sekou, a black woman, became the program director. Ms. Sekou wore what plaintiff described as "Afrocentric" attire and wrapped her hair in an African hair dress, while plaintiff wore a business suit and had short, curly dyed-blond hair. Beginning in January, Ms. Sekou allegedly derided plaintiff for her choice of clothing and her dyed-blond hair, referring to her to other employees as a "want to be"–an insult in the black community. Additionally, Ms. Sekou excluded plaintiff from staff meetings by scheduling them when she had classes scheduled, and often failed to notify plaintiff of the meetings.

On March 16, 2000, along with all the other teachers, plaintiff released her students early to enable them to attend an "open school afternoon" for their school-aged children. Ms. Sekou singled out plaintiff for reprimand and recommended her termination, complaining to the director of personnel that plaintiff was insubordinate and disregarded program policy by failing to attend staff meetings and releasing her students early. Although plaintiff had requested a transfer to a different part of the program, she was terminated before the transfer was consummated.

Judge Trager found that plaintiff had established a prima facie case of race discrimination under Title VII. She belonged to a protected group and suffered an adverse employment action when she was excluded from staff meetings and ultimately terminated. She demonstrated that she was qualified for the job because the program coordinator of another department was willing to have plaintiff work for her. She also alleged an adverse employment action in that, as a black woman, she was not only pressured to dress in a manner demanded by her supervisor, even though the dress code was flexible as to all other employees, but also ridiculed for her hairstyle and choice of clothing. Plaintiff was allegedly terminated for failing to change her hair and clothing.

As Judge Trager noted, the fact that her supervisor was also black did not place plaintiff’s claim outside the scope of Title VII.

In response, the Research Foundation met its burden of articulating a legitimate, nondiscriminatory reason for terminating plaintiff. The Research Foundation claimed that she was terminated because she released students early in violation of the federal mandate, was insubordinate and failed to arrange her schedule so that she could attend staff meetings. In support of its claim, the Research Foundation submitted evidence in the form of a contemporaneous unflattering evaluation of plaintiff and an e-mail from Ms. Sekou setting forth the reasons for plaintiff’s termination.

As Judge Trager also found, however, plaintiff’s evidence could support a finding that the Research Foundation’s alleged reasons were pretextual. For example, plaintiff submitted evidence that a memorandum drafted by Ms. Sekou regarding the early release of the students was never handed to plaintiff; that, although all the teachers released their students early that day, she was singled out for reprimand; and that she had been deliberately excluded from staff meetings. In addition, plaintiff provided independent evidence that the supervisor who recommended her termination had exhibited prohibited animosity.

Judge Trager dismissed plaintiff’s retaliation claim because she did not complain about the alleged discrimination until after Ms. Sekou sent the e-mail recommending that she be terminated. Thus, there was no causal connection between the protected activity (a complaint of discrimination) and the adverse employment action (termination).

Habeas Corpus

In Rodney v. Miller, 98 CV 2384 (EDNY, Sept. 18, 2003), Judge Trager, adopting a report and recommendation of Magistrate Judge Robert M. Levy, rejected respondent’s argument that an amended § 2254 habeas petition should be viewed as untimely because, under Rule 15(c)(2), FRCivP, the additional claims do not "relate back" to the original petition.

As Judge Trager observed, though a habeas petition is a civil action, the applicability of the Federal Rules of Civil Procedure is discretionary in the habeas context. In exercising its discretion, moreover, the court must consider that the case arises from a criminal prosecution.

Here, respondent was "in no position to claim financial or other reliance on the running of the statute of limitations." Nor, the court added, has respondent been prejudiced by the additional passage of time. In fact, the arguments raised in the amended petition are each based on evidence in the trial record. Thus, Judge Trager saw no need for a stringent application of the "relation back" doctrine. "The situation might be different," the court noted, "if the issues required an investigation of matters dehors the record, when a claim of prejudice might be viable.’

The court nevertheless concluded, in agreement with Magistrate Judge Levy, that petitioner’s claims raised no constitutional issue warranting collateral relief.

Expedited Processing

In a previous column we summarized Judge Weinstein’s memoranda explaining the important policy calling for expedited dispositions of habeas petitions challenging state court convictions. In an effort to continue implementing this policy, Judge Weinstein issued some 150 separate decisions between Aug. 13, 2003 and Oct. 22, 2003, thoroughly analyzing and ruling on habeas petitions.

Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan.

[This article is reprinted with permission from the November 14, 2003, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]