Fifth Circuit Rules on Conflict of Interest Ineffective Counsel Claim: Sheperd

FACTS:  Lawyer represented health care fraud defendant and also government witness on same case

Sheperd was indicted for conspiracy to commit healthcare fraud.  She retained a lawyer and the case was set for trial.  Her hired counsel met with FBI agents and a prosecutor to discuss the case.  However the lawyer was there acting on behalf of a cooperating witness.  The prosecutor, law enforcement and the police were meeting to talk about how the witness was going to testify against Sheperd (again, the defense lawyer represented Witness and Sheperd AT THE SAME TIME).  The prosecutor told the defense lawyer “hey you have a conflict” but the meeting continued.  The government amended the plea deal for WITNESS to receive a 5k1 for the witnesses cooperation.  

Neither Sheperd nor the court were told about the defense lawyer’s conflict.  The government also brought SIX MORE COUNTS OF FRAUD against Sheperd after the meeting.  Eventually the defense lawyer told Sheperd about the conflict.  Sheperd told the lawyer to stop representing her and she hired new counsel on August 27.  

On September 6, new defense counsel asked for a continuance indicating that he needed more trial prep time.  The court denied that request.  The court also failed to rule on a motion to continue the trial and exclude the Witness’ testimony.  

When the government called the witness for trial the defense attorneys objected again.  The court excluded the Witness from testifying.  The judge denied a motion to dismiss the case. The jury found her guilty on all counts and sentenced Sheperd to 30 years.  Sheperd appealed, indicating that there was a conflict of interest.  

Fifth Circuit: Yes there was a conflict, and a hearing should be convened to determine the effect.

The court determined that there was a conflict of interest.  The court also indicated that the defense attorney was obligated to disclose this.  But the court stated that there was not enough information in the record to determine whether the Defense attorney's conflict adversely affected his performance.  There were questions about what advice the defense lawyer gave to Sheperd and what the lawyer did or did not do on Shepard’s behalf.  Further, there were questions as to the defense lawyer’s motives:  

Just as problematically, even if we knew with precision what [defense attorney] did or did not do for Sheperd, this record sheds little light on his motives for doing or not doing it. If Akpaffiong’s motives arose from a mind fettered with concern for [witness], then Sheperd might be correct that her right to counsel was violated. Indeed, some circumstantial evidence already points that way. The Government agreed to a reduced sentence for [witness] based on his cooperation in prosecuting Sheperd. And that deal was enabled, through and through, by [defense attorney].

Citing the need for Effective Assistance of Counsel, the Fifth Circuit indicated that remanding the case back down to the district court was appropriate in order to have that evidentiary hearing.  There were other grounds for appeal as well as this but those were denied.  

The Fifth Circuit REMANDED the case back down to the district court for an evidentiary hearing.  19-20073