Yesterday, a federal appeals court reversed the conviction of NYPD officer Charles Schwarz for torturing Abner Louima. One of the bases for the reversal is that Schwarz was denied the effective assistance of counsel because his lawyer had a conflict of interest in representing him. But Schwarz was warned of his lawyer's conflict of interest and signed an affidavit stating that he waived the conflict. How could the appeals court reverse the conviction when both the client and his lawyer had agreed to go forward?
Blame the trial court judge.
Stephen Worth represented Schwarz. Worth's law firm also had a $10 million retainer agreement with the Policeman's Benevolent Association, the police officers' union, to represent all police officers in administrative, disciplinary, criminal, and civil matters.
On appeal, Schwarz, represented by new counsel, argued that Worth had put his own financial interests in the PBA representation ahead of his duty to zealously defend Schwarz. The 2nd Circuit Court of Appeals agreed.
While ordinarily a client's waiver of a conflict of interest will defeat his claim to ineffective assistance of counsel, courts will set a waiver aside if "the conflict is so severe as to be unwaivable." Unwaivable conflicts come about when the lawyer is so compromised that the waiver cannot be deemed reasonable, even if the defendant knew what he was doing and understood the risks.
The 2nd Circuit was unimpressed with the trial court judge's determination that Schwarz's waiver was valid. This, despite the fact that the judge held a separate hearing on the matter and apparently concluded Worth could somehow put Schwarz's interests first. The court of appeals, reviewing Worth's trial strategy and assessing his financial interests in protecting the PBA, felt that Worth simply had too much of a personal stake in protecting the PBA.
Is the moral of the story that criminal defendants should hire either incompetent or conflicted lawyers in order to have their convictions reversed? It's a pretty risky strategy. And Schwarz wasn't found innocent. He simply earned the right to a new trial with competent counsel. He still has to prove to a jury that he didn't do it.
[Correction, March 3, 2002: Schwarz does not, of course, have to prove he's innocent. The law presumes that already. He will only have to show a jury there's enough doubt about his guilt to acquit him.]