Friday, January 27, 2006

Nebraska Supreme Court affirms Trial court's disqualifying defense counsel for co-defendants when State filed intention to drop charges against one in return for giving full testimony against the other codefendantState v. Kawa, 270 Neb. 992 January 27, 2006. Nos. S-05-768, S-05-769. When prosecuting attorney filed notice that he would offer the testimony of a co defendant against the principal defendant in a mail fraud scheme he also asked the court to disqualify defense counsel. The court found an actual conflict and even though the defendants waived conflicts, the court still ordered disqualification. the Supreme Court affirms disqualifying counsel as to both defendants. A trial court must recognize a presumption in favor of a defendant's counsel of choice, but that presumption may be overcome by a demonstration of actual conflict or a showing of a serious potential for conflict. Disqualification in such cases is necessary because when a defendant is represented by an attorney who has an actual or potentially serious conflict, the defendant may be deprived of effective assistance of counsel. State v. Ehlers, 262 Neb. 247, 631 N.W.2d 471 (2001). It has generally been found to be an actual and serious conflict of interest when a lawyer represents two codefendants, one of whom pleads guilty pursuant to an agreement to testify against the other.. it is evident that the successful conclusion of a plea agreement for Flanagan will require that Flanagan offer evidence prejudicial to Kawa. This unavoidable prejudice to either one defendant or the other places defense counsel in a conflict between the interests of the two... a court is not required to accept a defendant's waiver in all circumstances. The presumption in favor of a defendant's counsel of choice may be overcome by a demonstration of actual conflict, and the trial court's conclusion that an actual conflict is present in this case is supported by the evidence and not clearly wrong. Disqualification is necessary in this case, to protect both the defendants' constitutional rights and the court's independent interest in the fairness of the proceedings and ethical standards of the profession. The defendants did not ask the court to narrow its remedy by ordering withdrawal fromrepresenting only one defendant: that the defendants have neither assigned as error nor argued in their appellate brief that defense counsel should have been permitted to withdraw from representation of one of the defendants, but continue to represent the other defendant. We therefore do not consider whether the conflict of interest present in the instant case would have been resolved by counsels' withdrawal to single representation.

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