Have you ever wondered what happens when a lawyer’s personal commitment to another lawyer to keep a secret denies his client a fair trial?  We now have an answer, courtesy of Judge Victoria Graffeo and the Court of Appeals:  Nothing.

As reported in the New York Law Journal,

A drug dealer was not denied effective assistance of counsel because his lawyer did not seek to tell him, the judge or the jury prior to a verdict that his brother, a co-defendant, had acknowledged solely committing one of the crimes of which both were accused, the Court of Appeals decided yesterday.

It’s always bad news when a story beings with the words, “a drug dealer.”  The news just got worse from there.

“The People’s failure to turn over Aaron’s statement would be material if there is a ‘reasonable possibility’ that the non-disclosure contributed to the verdict,” Judge Victoria A. Graffeo wrote in People v. Ennis, 168. “That standard is not met because, had the statement been turned over, there would have been no avenue for defense counsel to admit it into evidence, either in the joint trial of the Ennis brothers or in a separate trial of defendant had severance been granted.”

The prosecution?  What about his own lawyer, who knew all about the brother’s statement but kept it to himself as a matter of personal honor.  After all, why should he be concerned about his client’s 43 1/3 to 60 years in prison when he promised to keep a secret.  After all, a promise is a promise, right?

The Ennis case embodies so many bad things that it’s a struggle to figure out where to start.

During the trial, Mr. Cooper was told about exculpatory statements Aaron made to prosecutors during a proffer session with the district attorney’s office. Aaron said he shot Mr. Moody and that Sheldon was not present. The prosecution never turned over the statement as Brady material.

Isn’t that a problem?

The Court noted that Sheldon had two bases for his ineffective assistance argument: that Mr. Cooper’s representation was compromised by a conflict of interest when he was told about Aaron’s statements and that Mr. Cooper’s failure to act appropriately on that information contributed to Sheldon’s conviction.

Isn’t that a problem too?

The Court of Appeals rejected both lines of reasoning.

It held that the “personal dilemma” Mr. Cooper described facing was “markedly different” from more traditional conflicts of interest, where, for instance, a counsel becomes a witness against a defendant or where defense counsel had a previous or concurrent representation of a client whose interests conflicted with those of the defendant on trial.

Here, the purported conflict “does not arise from objective facts or circumstances external to defense counsel,” the Court said. Rather, it suggested that Mr. Cooper was “torn” between keeping a promise not to disclose the information and acting in his client’s best interests.

It’s not often that a single decision gets to emasculate the Constitution and legal ethics at the same time.  The Brady aspect seems less disconcerting, since no experienced lawyer has any real expectation of legitimate Brady disclosure, it being the goofiest and most toothless of constitutional concepts.  Had the Supremes been serious in Brady v. Maryland, they would have included a procedure for ascertaining Brady material and turning it over at a time when it might be useful, and remedy for failure to do so.  This glaring omission makes Brady one of best lawyer jokes around.

But to question whether there is a conflict, because it doesn’t fall into the “more traditional” conflicts, is just utterly absurd.  Keeping information from your client, the judge, the jury, that you know that another person has openly admitted that he, and not your client, committed the crime, isn’t a conflict?  On what planet?  Well, planet New York, apparently.

Cooper, the trial attorney whose “personal dilemma” prevented him from fulfilling his ethical and legal responsibilities during the trial, felt badly afterward and tried to make it up by submitting an affirmation acknowledging his bad decision.  That, of course, implicated yet another problem, that being that he knew the problem during the trial, failed to raise the Brady objection, and thus waived it.  Amazing how each additional act of ineffective assistance undoes the import of prior and subsequent acts.  And they say two wrongs don’t make a right.

Worst of all is the assumption that had Cooper’s conflict not happened, it would have made no difference to the conviction of a man for a crime he didn’t commit.  With all due respect to the judges of the Court of Appeals, this is a leap they are not qualified to make.  That they cannot see an easy path to introduce evidence of innocence does not mean that it could not be effectively used, some way, somehow.  Rather, this is a circular argument, since there was no attempt to use proof of innocence at trial, it could not have been used at trial.  I bet that any good, conflict-free lawyer would have found a way to get this before a jury, whether by convincing the client’s brother to save his own flesh and blood from wrongful conviction to moving to be relieved as counsel so that the attorney could take the stand as a witness to the confession, to moving to recuse the prosecutor as a witness to the proffer.  And that’s just off the top of my head.

Somehow, innocence has to come in.  Somehow, innocence has to matter.  Even when the defendant happens to also be a drug dealer.

At least that seemed to be the case before this decision.