Heard: September 5, 2017.
found and returned in the Superior Court Department on
September 4, 2002. The cases were tried before Nancy Holtz,
J., and a motion for a new trial, filed on March 1, 2013, was
heard by Janet L. Sanders, J.
Supreme Judicial Court granted an application for direct
Teo, Assistant District Attorney (David J. Fredette,
Assistant District Attorney, also present) for the
F. Shaw, Jr., for the defendant.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Cypher, &
a jury trial in the Superior Court, the defendant, Joseph
Cousin (Cousin), was convicted of murder in the second
degree. Cousin filed a motion for a new trial, claiming that
his trial counsel was ineffective because he was burdened by
an actual conflict of interest. A Superior Court judge
granted Cousin's motion for a new trial. The Commonwealth
appealed, and we allowed its application for direct appellate
review. The issue before this court is whether
Cousin presented sufficient evidence to establish that his
trial counsel was burdened by an actual conflict of interest.
Although Cousin has set forth the basis for what may well
constitute a potential conflict of interest, we conclude that
he failed to meet his burden of demonstrating that his trial
counsel was operating under an actual conflict of interest.
Therefore, we vacate the allowance of Cousin's motion for
a new trial and remand the case to the Superior Court for
further proceedings to determine whether there was a
potential conflict causing prejudice that would warrant a new
Prior proceedings and background.
briefly indicate the nature of Cousin's criminal case,
followed by a summary of the facts pertinent to Cousin's
conflict claim, as they were found by the judge. We also
reserve certain facts for later discussion.
an investigation by the Boston police department (BPD)
homicide division, Cousin and another man were charged with
murder for the shooting death of a young girl. In 2004,
Cousin and his codefendant were tried jointly for the murder,
and the jury acquitted the codefendant. The jury were
deadlocked concerning Cousin, and eventually a mistrial was
declared. In Commonwealth v. Cousin, 449 Mass. 809,
815-816, 823 (2007), cert, denied, 553 U.S. 1007 (2008), we
determined that double jeopardy did not bar Cousin's
retrial because the prosecutor's inquiry into the
jurors' criminal records during deliberation was not
government misconduct intended to goad the defendant into
moving for a mistrial.
was retried for the murder in 2009, and was represented by
Attorney William White (White). Cousin was convicted of
murder in the second degree, and he was later sentenced to
life in prison. His direct appeal from his conviction to the
Appeals Court has been stayed pending the outcome of this
meantime, Cousin, represented by new counsel, moved for a new
trial, arguing that White was burdened by an actual conflict
of interest. The primary grounds for the alleged actual
conflict were the involvement of White and his former law
firm in two Federal civil rights lawsuits. Specifically,
White and his former law partners defended members of the BPD
who were accused of misconduct in the course of other,
unrelated criminal investigations.
judge, who was not the trial judge, held three days of
evidentiary hearings before granting Cousin's motion. We
present the pertinent facts she found in her written
memorandum of decision and order.
White and the Federal civil rights cases.
joined the law firm of Davis, Robinson & White (DRW) as a
partner in the early 1990s. DRW was comprised of three
partners: White, Willie Davis, and Frances Robinson. White
concentrated primarily on criminal defense, and he and
Robinson intermittently represented police officers in
disciplinary and administrative hearings. An attorney for the
Boston police patrolmen's union occasionally referred
police discipline cases to Robinson; however, there was no
indication that Robinson or DRW had a formal contractual
relationship with the patrolmen's union, the BPD, or the
city of Boston (city).
organized as a limited liability partnership. The partners
did not share profits or fees, and each partner earned only
the money he or she generated. The partners generally worked
independently on cases, particularly their criminal matters.
The partners did, however, share common overhead expenses and
office resources. Occasionally, the DRW partners would meet
to discuss their cases. However, there is no indication that
these informal discussions involved the disclosure of
confidential client information.
left DRW in early 2007 and formed his own law firm, William
White & Associates (White & Associates). Several
years thereafter, White operated White & Associates in
office space he rented in the same building as DRW; however,
his firm was neither connected to, nor was his practice
affiliated with, DRW. At the hearing on Cousin's motion,
White testified that after he left DRW, his former partners
only referred him a limited number of civil litigation
matters. In January, 2009, the same year as Cousin's
second trial, White relocated his firm to a different office
building in Boston.
claim that White was burdened by an actual conflict of
interest focused primarily on the involvement of White and
Robinson in two Federal civil rights cases, Drumgold vs.
Callahan, U.S. Dist. Ct., No. 04-11193-NG (D. Mass.
2004) (Drumgold), and Cowans vs. Boston, U.S. Dist.
Ct. No. 05-11574-GGS (D. Mass. 2005) (Cowans). The
plaintiffs in the Drumgold and Cowans cases
alleged that BPD homicide investigators had committed acts of
police misconduct that led to their erroneous convictions,
which were later overturned. Cousin's motion relies
heavily on the purported similarities between the police
investigations underlying the Drumgold and
Cowans cases and his own.
Robinson's involvement in the Cowans
judge found that Robinson represented Rosemary McLaughlin, a
member of BPD's latent fingerprint unit, who was a named
defendant in the Cowans civil rights lawsuit.
Cowans was convicted of a shooting, in part based on
fingerprints that were recovered from the crime scene and
that McLaughlin, and another member of BPD's latent
fingerprint unit whose work McLaughlin verified, matched to
him. Several years later, items from the
crime scene underwent deoxyribonucleic acid (DNA) testing.
The testing revealed that Cowans's DNA was not present on
any of the items. A further internal investigation also
revealed that a latent fingerprint recovered from the crime
scene had been erroneously individualized to Cowans. Based on
this investigation, in 2004, the Commonwealth joined in
Cowan's motion for a new trial and the conviction was
his exoneration, Cowans filed the Federal civil rights
lawsuit seeking damages against the BPD and certain officers
involved in the investigation, including McLaughlin. Robinson
filed her notice of appearance on behalf of McLaughlin on
April 5, 2006. Cowans's complaint alleged that
McLaughlin had discovered but concealed the fact that his
fingerprints had been erroneously matched to the those
recovered at the crime scene. The claims against McLaughlin
focused exclusively on her involvement in Cowans's
investigation and did not implicate her conduct in other
investigations. Robinson represented McLaughlin until the
Cowans case was resolved in September, 2007.
Although the city paid the settlement in the Cowans
case, it did not pay for Robinson's defense of
White's involvement in the Drumgold
involvement in the Drumgold litigation began in
2006, while he was a partner at DRW. White represented two of
the BPD officers named in the Drumgold case in
succession -- a detective and then Lieutenant Timothy
Drumgold was convicted of murder in connection with the 1988
shooting death of a twelve year old girl. After Drumgold had
been convicted and sentenced, he filed several motions for a
new trial, seeking to have his conviction overturned on
numerous grounds, including that members of the BPD had
coerced witnesses into implicating him in the shooting. There
also were claims that BPD officers failed to provide
exculpatory evidence by not disclosing favorable treatment
given to a prosecution witness. The Commonwealth's
assessment of the investigation concluded that Drumgold had
not received a fair trial, and his conviction was vacated in
2004, Drumgold filed the Federal civil rights lawsuit,
claiming that the BPD officers involved in his investigation
engaged in coercive tactics, pressured witnesses to give
favorable testimony, and withheld exculpatory evidence,
leading to Drumgold's erroneous conviction. Drumgold also
claimed that the BPD encouraged such conduct. The city, as
one of the named parties, retained its own counsel, but hired
White to represent the detective in his individual capacity.
White was later hired to represent Callahan after the
detective had been dismissed from the lawsuit. The city had
agreed to pay for the legal defense of the detective and
Callahan pursuant to an indemnification agreement. Although
that agreement was not produced as part of Cousin's
motion for a new trial, White testified that he had charged
the city for his time representing the detective and Callahan
on an hourly basis, at an agreed rate. White would submit
monthly bills to the city for its review and payment. Over
the course of White's representation of the detective and
Callahan, the city paid White more than $310, 000 for his
work. White testified that despite being compensated by the
city for representing the detective and Callahan, he fully
recognized that his only clients were the two officers, and
his loyalty toward them was undivided.
January, 2008, the detective was dismissed from the lawsuit.
Because White had been involved in discovery and the
litigation in general, White testified that the city asked
him to represent Callahan. White filed his notice of
appearance on behalf of Callahan on January 29, 2008.
Although White was listed as a lead attorney on the docket,
he testified that he was not "asked to become the lead
counsel for Callahan." An attorney who had been the lead
counsel representing Callahan maintained her position, and
she assigned tasks to White. When White began representing
Callahan, he had already left DRW and was practicing at White
judge noted that the course of the Drumgold
litigation and the nature of the lawsuit indicated that the
interests of the city and the individual defendants were
aligned. In the same way that the city had indemnified the
individual defendants for their legal fees, the city also
would be responsible for paying any judgment or settlement
arising from the claims of misconduct against the individual
officers. The judge observed that even though the city had
separate counsel, its liability was contingent on the
liability of the individual defendants. Further, the judge
noted that White had worked ...