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Commonwealth v. Cousin

Supreme Judicial Court of Massachusetts, Suffolk

January 11, 2018


          Heard: September 5, 2017.

         Indictments 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.

         The Supreme Judicial Court granted an application for direct appellate review.

          Amanda Teo, Assistant District Attorney (David J. Fredette, Assistant District Attorney, also present) for the Commonwealth.

          Robert F. Shaw, Jr., for the defendant.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Cypher, & Kafker, JJ.

          LOWY, J.

         Following 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.[1] 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 trial.

         1. Prior proceedings and background.

         We 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.

         Following 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.

         Cousin 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 case.

         In the 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.

         The 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.

         a. White and the Federal civil rights cases.

         White 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).

         DRW was 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.

         White 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.

         Cousin's 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.

         i. Robinson's involvement in the Cowans case.

         The 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.

         Stephen 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.[2] 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 vacated.

         Following 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.[3] 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 McLaughlin.

         ii. White's involvement in the Drumgold case.

         White's 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 Callahan.

         Shawn Drumgold was convicted of murder in connection with the 1988 shooting death of a twelve year old girl.[4] 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 2003.

         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.

         In 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 & Associates.

         The 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 ...

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