STATE OF LOUISIANA * NO. 2021-K-0230
VERSUS * COURT OF APPEAL DARIAN BROWN * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 551-138, SECTION “A” Honorable Laurie A. White, Judge ****** Judge Regina Bartholomew-Woods ****** (Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods)
LOBRANO, J., CONCURS IN THE RESULT
Elisabeth Ford Sgro Orleans Public Defenders 2601 Tulane Ave., Ste. 700 New Orleans, LA 70119
COUNSEL FOR RELATOR/DEFENDANT
Jason Rogers Williams District Attorney G. Benjamin Cohen Chief of Appeals ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE 619 S. White Street New Orleans, LA 70119
COUNSEL FOR RESPONDENT/STATE OF LOUISIANA
WRIT GRANTED, REVERSED
April 27, 2021 RBW
SCJ
This Court is in receipt of an emergency supervisory writ filed by Relator-
Defendant, Darian Brown. The issue before this Court, is whether the district court
has the authority to assign a specific attorney to represent an indigent defendant.
Factual/Procedural Background1
On December 3, 2020, Relator-Defendant was charged by bill of
information with two counts of battery on a dating partner in violation of La. R.S.
14:34.9 and two counts of violation of protective orders while committing a battery
in violation of La. R.S. 14:79(C)(1) against Ms. Linda Williams (“Ms. Williams”).
The Orleans Public Defenders Office (“OPD”) was appointed to represent Relator-
Defendant.
Separately, Ms. Williams faces a pending charge of aggravated battery in
violation of La. R.S. 14:34 against Defendant-Relator. No bill of information has
1 The information is based on the application and exhibits filed with the current writ.
1 been filed and a rule to show cause is scheduled for June 5, 2021. On April 6,
2021. OPD was appointed to represent Ms. Williams.
OPD, in anticipation that both parties would remain indigent and require the
continued services of OPD, made provisional assignments. Ms. Williams was
assigned OPD attorney Mark Balfe, and Mr. Brown was assigned to OPD’s
conflict panel.
On April 19, 2021, Relator-Defendant appeared for his arraignment and the
district court affirmed the magistrate court’s finding of indigency and requested a
public defender represent him. The district court was informed that Defendant-
Relator would be assigned an attorney from the conflict panel. The State informed
the district court that Ms. Williams’ charges were still pending in magistrate court
and were neither accepted nor refused by the State.
The district court determined there was no conflict of interest because Ms.
Williams had yet to be indicted and therefore there was no need to appoint the
conflict panel; consequently, the district court ordered an OPD staff attorney rather
than a conflict attorney to represent Relator-Defendant.
From this decision by the district court, OPD orally noticed its intent to seek
a writ. The district court set a return date of Friday, April 23, 2021 at 4:00 p.m.
This writ followed.
Analysis
A criminal defendant has a constitutional right to effective assistance of
counsel pursuant to the Sixth Amendment to the United States Constitution and
Article 1, § 13 of the Louisiana Constitution. Strickland v. Washington, 466 U.S.
668, 680; State v. Peart, 621 So.2d 780, 783 (La. 1993). Included in this
constitutional right is the right to be represented by conflict-free counsel. State v.
2 Singleton, 2015-1099, p. 13 (La. App. 4 Cir. 5/25/16), 216 So. 3d 985, 993
(citation omitted). Conflicts arise in cases where an attorney is appointed to jointly
represent defendants in the same matter. Id. “As a general rule…, Louisiana courts
have held that an attorney laboring under an actual conflict of interest cannot
render effective legal assistance to the defendant she is representing. State v. Cisco,
2001-2732, p. 17 (La. 12/3/03), 861 So. 2d 118, 129 (citing State v. Franklin, 400
So.2d 616, 620 (1981)), See also La. Rules of Prof’l Conduct R. 1.7(a)(2).2 “In a
pretrial context, regardless of how the conflict of interest issue arises, the trial court
has two options to avoid a conflict of interest: appoint separate counsel or take
adequate steps to ascertain whether the risk of a conflict of interest is too remote to
warrant separate counsel.” Id. at 130 (citing State v. Tart, 94-0025, p. 19-20 (La.
2/9/96), 672 So.2d 116, 125. Failure to do one or the other requires reversal. Id
(citing Holloway v. Arkansas, 435 U.S. 475, 480 (1978); State v. Carmouche, 508
So.2d 792, 805 (La. 1987)).
In the current case, OPD has an actual conflict because the two defendants
are at odds with each other given that both sets of charges list either defendant as
the aggrieved party. Once the district court was made aware of the conflict, it had a
choice to either assign separate counsel or adequately determine whether the risk
was so remote that a conflict was unlikely to warrant separate counsel. The district
court failed to perform either of these tasks. Specifically, the district court denied
the appointment of the conflict panel without stating why the risks were so remote
that the appointment of the conflict panel was unnecessary. Specifically, the 2 [A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
3 district court stated at arraignment3, “You all are making decisions without judges
to determine who represents someone, and I'm not allowing it. If it’s only an
appointment at Magistrate then you all cannot direct what judges can and who they
can appoint.” The district court seemingly reasoned that the initial appointment at
the magistrate level had ended, and since Ms. Williams was yet to be indicted,
OPD had not been appointed and therefore, no conflict existed. The district court
further offered its opinion that OPD was attempting to unload its casework using
conflicts as an excuse.4 Ultimately, the district court stated there was no conflict
and continued with the arraignment and bond hearing appointing OPD, who
objected to the appointment. The district court abdicated its responsibility to
determine the extent of the conflict in favor of pushing forth its own agenda
regarding how OPD should operate.
This Court is not satisfied with the district court’s reasoning that
representation ended at the magistrate level and therefore there is no conflict
because Ms. Williams has not been indicted. OPD made a reasonable
determination that should the indictment be handed down, that office would be
appointed and a conflict would be created. It was not unreasonable for OPD to
make an assessment of the charges and preemptively appoint the conflict panel to
avoid unjust delays in Relator-Defendant’s trial. Both parties have already been
represented by OPD, and until Ms. Brown’s charges are either accepted or rejected
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STATE OF LOUISIANA * NO. 2021-K-0230
VERSUS * COURT OF APPEAL DARIAN BROWN * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 551-138, SECTION “A” Honorable Laurie A. White, Judge ****** Judge Regina Bartholomew-Woods ****** (Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods)
LOBRANO, J., CONCURS IN THE RESULT
Elisabeth Ford Sgro Orleans Public Defenders 2601 Tulane Ave., Ste. 700 New Orleans, LA 70119
COUNSEL FOR RELATOR/DEFENDANT
Jason Rogers Williams District Attorney G. Benjamin Cohen Chief of Appeals ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE 619 S. White Street New Orleans, LA 70119
COUNSEL FOR RESPONDENT/STATE OF LOUISIANA
WRIT GRANTED, REVERSED
April 27, 2021 RBW
SCJ
This Court is in receipt of an emergency supervisory writ filed by Relator-
Defendant, Darian Brown. The issue before this Court, is whether the district court
has the authority to assign a specific attorney to represent an indigent defendant.
Factual/Procedural Background1
On December 3, 2020, Relator-Defendant was charged by bill of
information with two counts of battery on a dating partner in violation of La. R.S.
14:34.9 and two counts of violation of protective orders while committing a battery
in violation of La. R.S. 14:79(C)(1) against Ms. Linda Williams (“Ms. Williams”).
The Orleans Public Defenders Office (“OPD”) was appointed to represent Relator-
Defendant.
Separately, Ms. Williams faces a pending charge of aggravated battery in
violation of La. R.S. 14:34 against Defendant-Relator. No bill of information has
1 The information is based on the application and exhibits filed with the current writ.
1 been filed and a rule to show cause is scheduled for June 5, 2021. On April 6,
2021. OPD was appointed to represent Ms. Williams.
OPD, in anticipation that both parties would remain indigent and require the
continued services of OPD, made provisional assignments. Ms. Williams was
assigned OPD attorney Mark Balfe, and Mr. Brown was assigned to OPD’s
conflict panel.
On April 19, 2021, Relator-Defendant appeared for his arraignment and the
district court affirmed the magistrate court’s finding of indigency and requested a
public defender represent him. The district court was informed that Defendant-
Relator would be assigned an attorney from the conflict panel. The State informed
the district court that Ms. Williams’ charges were still pending in magistrate court
and were neither accepted nor refused by the State.
The district court determined there was no conflict of interest because Ms.
Williams had yet to be indicted and therefore there was no need to appoint the
conflict panel; consequently, the district court ordered an OPD staff attorney rather
than a conflict attorney to represent Relator-Defendant.
From this decision by the district court, OPD orally noticed its intent to seek
a writ. The district court set a return date of Friday, April 23, 2021 at 4:00 p.m.
This writ followed.
Analysis
A criminal defendant has a constitutional right to effective assistance of
counsel pursuant to the Sixth Amendment to the United States Constitution and
Article 1, § 13 of the Louisiana Constitution. Strickland v. Washington, 466 U.S.
668, 680; State v. Peart, 621 So.2d 780, 783 (La. 1993). Included in this
constitutional right is the right to be represented by conflict-free counsel. State v.
2 Singleton, 2015-1099, p. 13 (La. App. 4 Cir. 5/25/16), 216 So. 3d 985, 993
(citation omitted). Conflicts arise in cases where an attorney is appointed to jointly
represent defendants in the same matter. Id. “As a general rule…, Louisiana courts
have held that an attorney laboring under an actual conflict of interest cannot
render effective legal assistance to the defendant she is representing. State v. Cisco,
2001-2732, p. 17 (La. 12/3/03), 861 So. 2d 118, 129 (citing State v. Franklin, 400
So.2d 616, 620 (1981)), See also La. Rules of Prof’l Conduct R. 1.7(a)(2).2 “In a
pretrial context, regardless of how the conflict of interest issue arises, the trial court
has two options to avoid a conflict of interest: appoint separate counsel or take
adequate steps to ascertain whether the risk of a conflict of interest is too remote to
warrant separate counsel.” Id. at 130 (citing State v. Tart, 94-0025, p. 19-20 (La.
2/9/96), 672 So.2d 116, 125. Failure to do one or the other requires reversal. Id
(citing Holloway v. Arkansas, 435 U.S. 475, 480 (1978); State v. Carmouche, 508
So.2d 792, 805 (La. 1987)).
In the current case, OPD has an actual conflict because the two defendants
are at odds with each other given that both sets of charges list either defendant as
the aggrieved party. Once the district court was made aware of the conflict, it had a
choice to either assign separate counsel or adequately determine whether the risk
was so remote that a conflict was unlikely to warrant separate counsel. The district
court failed to perform either of these tasks. Specifically, the district court denied
the appointment of the conflict panel without stating why the risks were so remote
that the appointment of the conflict panel was unnecessary. Specifically, the 2 [A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
3 district court stated at arraignment3, “You all are making decisions without judges
to determine who represents someone, and I'm not allowing it. If it’s only an
appointment at Magistrate then you all cannot direct what judges can and who they
can appoint.” The district court seemingly reasoned that the initial appointment at
the magistrate level had ended, and since Ms. Williams was yet to be indicted,
OPD had not been appointed and therefore, no conflict existed. The district court
further offered its opinion that OPD was attempting to unload its casework using
conflicts as an excuse.4 Ultimately, the district court stated there was no conflict
and continued with the arraignment and bond hearing appointing OPD, who
objected to the appointment. The district court abdicated its responsibility to
determine the extent of the conflict in favor of pushing forth its own agenda
regarding how OPD should operate.
This Court is not satisfied with the district court’s reasoning that
representation ended at the magistrate level and therefore there is no conflict
because Ms. Williams has not been indicted. OPD made a reasonable
determination that should the indictment be handed down, that office would be
appointed and a conflict would be created. It was not unreasonable for OPD to
make an assessment of the charges and preemptively appoint the conflict panel to
avoid unjust delays in Relator-Defendant’s trial. Both parties have already been
represented by OPD, and until Ms. Brown’s charges are either accepted or rejected
by the State, the OPD attorney appointed for her at the magistrate level, remains
her counsel. As stated in Cisco, “regardless of how the conflict of interest issue
3 Per the transcript submitted in the application to this court. 4 The court stated at arraignment, “[Y]ou all want us judges to accept that it’s a conflict, and other lawyers get the case,” and “… you all are finding new ways to put the criminal defense bar out of business. That’s really what’s going on.”
4 arises…” the district court has two options, appoint new counsel or determine that
the risk of conflict is so remote that separate counsel is not necessary. 861 So.2d at
130 (emphasis added). Cisco, makes the point that the district court’s duty is
triggered by the conflict itself and not how the conflict manifests. Neither Cisco,
nor any other jurisprudence, has created a rule stating a conflict exists only if both
parties are at the arraignment phase. This Court finds that OPD representing two
parties in the same matter, even though the parties are in different phases of their
cases, constitutes a conflict of interest such that the representation of one client
would be directly adverse to the representation of another client such that separate
counsel is warranted in the interest of fair representation.
The district court further erred in its reasoning stating that judges have a say
in who will represent a defendant beyond the appointment of OPD or the conflict
panel. While the district court should be aware of conflicts of interest and act in the
best interest of defendants, it must not run afoul of a. R.S. 15:142(B)(2) which
provides that the public defender system must be free from judicial interference.
See State v. Brasley, 2009-1847 (La. 8/24/09), 17 So. 3d 941.5 OPD has a statutory
and ethical obligation to avoid conflicts of interest, and with that obligation is
invested with the autonomy to determine how best to represent indigent defendants
when a conflict arises. See Id. “The autonomy afforded the public defender’s office
to provide indigent defense counsel militates against the ruling by the trial court …
5 Per the writ application filed in Brasley, the district court removed Defendant Brasley’s assigned conflict attorney and appointed OPD to represent the defendant. The defendant sought supervisory review. This Court denied the writ. The Louisiana Supreme Court granted the writ and reversed the district court.
5 appointing … the Orleans Public Defender's Office to represent defendant.” State
v. Lewis, 2009-1978 (La. 9/23/09), 18 So. 3d 67 (citing Brasley, 17 So.3d 941).6
The administration of the court proceedings is within the purview of the
judge. The administration of representation is within the purview of the lawyers.
See Louisiana Public Defender Act, La. R.S. 15:141 et seq. Judges cannot legislate
from the bench; if the district court has an issue with the autonomy granted OPD in
assigning attorneys, the legislature is the proper venue in which to address that. By
refusing to allow for the appointment of a conflict attorney, the district court
overstepped its authority and failed in its duty to protect Defendant’s sixth
amendment right to conflict-free counsel.
Conclusion
For the foregoing reasons, we grant the writ and reverse the ruling of the
district court.
WRIT GRANTED, REVERSED
6 Per the writ application filed in Lewis, the district court removed the conflict attorney and appointed OPD because the State refused to charge the codefendant and thus eliminated any potential conflict. The Louisiana Supreme Court granted the writ and reversed the district court’s appointment.