Warren E. Burger: The arguments next in 71-5172, Dukes against the Warden.
Speaker: Warden.
Warren E. Burger: The Warden.
Speaker: That was a very good invitation for me. Don't you know. That's all I need in the Court of law. Merely well that I have done my interview. His fairly young but he is not so -- not quite as long as he looks he demands his point. Who is that think it was all who so ever. Yes. They can do anything to.
Warren E. Burger: Mr. Wade, you may proceed whenever you are ready.
James A. Wade: Mr. Chief Justice may it please the Court. I was intrigued this morning to hear the comments of the Court regarding the Right to Counsel and the Need of Counsel in the way that cases and I'm like save primarily that I've related to Mr. Wade that this Court didn't realized. But the reason I was interested was that this case I think the issue raised herein focuses on the need to have the undivided loyalty of counsel throughout every stage of criminal case. If I could recite briefly the facts here and because I feel the very important to set a proper framework. My client is to do he was arrested in hard of March 1967 with charge of violation of Connecticut's uniform narcotics theft. He retained at Hartford Attorney by the name of Zaccagnino, who was the Senior Partner in law firm by the name Zaccagnino, Linardos and Delaney to represent him and that office entered and confirmed appearance in the lower Court for preliminary hearing on the arrest of the charge. Down May 9, 1967, when the Mayor was set down for trial in the Hartford Superior Court, Mr. Dukes appeared with his Attorney, Mr. Zaccagnino, and at that time Mr. Zaccagnino moved that he be permitted to withdraw from the action. As Counsel for Dukes' because as he put it to the Court at that time he has slight conflict with his client. In that matter was argued by before the trial Judge at that point and the Court denied the motion for Mr. Zaccagnino's withdrawal but continued the case 24 hours to give Dukes a chance to get another lawyer.
William H. Rehnquist: Mr. Wade, what are on your -- the basic view of the point where the records is the third interpretation of Mr. Zaccagnino's remark to the trial judge to end something of a kind of its called.
James A. Wade: My judgment would be that that he was trying to convince Dukes to plead guilty and that Dukes didn't want to plead guilty. And that this was conflict these are the Zaccagnino and Dukes. I can't say fairly that at that point Mr. Zaccagnino was trying to appraised the Court but there was some other conflict other than that would be my best judgment, Unknown Speaker Rehnquist. In any case, when my Dukes left the Court room on May 19, he went out the hallway of the Court and was rearrested by the Hartford Police and taken to the Hartford Police Station on a unrelated charge. And he -- while he was at the Police Station took some pills and became sick and he was taken to a hospital and stayed there for a week. And then came back in the Court on May 16th with Mr. Zaccagnino's Law partner Mr. Delaney and at that time entered a plea of guilty to the narcotics charge in a minute to the information charging into larceny receiving stolen goods. At that time, the Trial Judge made an inquiry about the voluntariness of the plea. The matter was sat down for June 2nd for sentencing but on the 2nd pre-sentence report was not ready on the Dukes matter and so the case was continued again. Mr. Zaccagnino was in Court with his client Mr. Dukes for sentencing but it went over another two weeks. But on the second, Mr. Zaccagnino appeared before Judge Demon, the Hartford Superior Court, with two girls whom he was representing on charges that were entirely unrelated to Mr. Dukes' charge. But I might say that Mr. Dukes had been arrested in that case as a codefendant and was represented by another Hartford Attorney in that case.
Speaker: Was that a narcotics case also?
James A. Wade: No, that was the.
Speaker: Was that Question against him?
James A. Wade: Conspiracy to take money but is also pretense to the check case, Your Honor. So at the time of sentencing, the girls by the way they have said guilty earlier to the charge, Mr. Zaccagnino stood up to make remarks on sentencing on the behalf of the bureaus and the fact that goes for a moment here to read in page 68 of the Appendix. During a remarks on sentencing, Mr. Zaccagnino in speaking on behalf of the girls said, "That both of them came under the influence of Charles Dukes." Now, how they could get in a position to come under the influence of somebody like him, that Your Honor please, face the problem here that I think is the cause of the whole situation and then the last part of the last paragraph there, "As the result of their willingness to cooperate with the State Police, they can officially dope in the making if plea." I think Your Honors, since I was on both sides of the case having been on the other side of the other case. I can tell Your Honor that with these girls that because of there refusal, it is not refusal, not to cooperate with Dukes and to testify against him that could pixilated him undertaken a plea, he will shortly been remove from society. And on page 70 of the Appendix, once again referring to the girls and their cooperation with the police, Mr. Zaccagnino said the Court, "It is obvious in looking at the report, who the most capable person is because he have all the instruments with which the Dukes these girls." Then.
Speaker: Which way was Mr. Zaccagnino referring to of Dukes. Was it the plea in the conspiracy case?
James A. Wade: No, in this case Your Honor.
Speaker: In the narcotics case.
James A. Wade: That's correct. And then on June 16th, two weeks later, Mr. Zaccagnino and Dukes was back on trial, same trial judge, Judge Dillon would heard these remarks about the girls, they're back infront of that time. Now, at this point Dukes himself move to Court as guilty plea they would make him and he wanted to go another lawyer and he did not want Mr. Zaccagnino to continue represent him. Well, the Court denied that permission and ordered the case go forward and they are find him pose to sentence of not less than five but more than 10 years on Mr. Dukes. Now, is it our contention to that counsel for Dukes at that time was such as to render the entire proceeding including the guilty plea invalid. Its our contention that he was denied the effect of assistance of counsel.
Speaker: Could I ask you within the other proceeding that where he was codefendant was some girls. Had he been sentence in that proceeding?
James A. Wade: No, not at that point Your Honor. He had.
Speaker: What was it later?
James A. Wade: That was those were later disposal of. If I'm not mistaken.
Speaker: He pleaded guilty in that proceeding?
James A. Wade: If I'm not mistaking, I think Mr. LaBelle can verify this. I believe those where denied at a later date after the plea on, after the sentencing of this case.
Speaker: Denied against him?
James A. Wade: Yes, Your Honor.
Speaker: Eventhough he'd already pleaded guilty?
James A. Wade: No he hadn't pleaded that point you see. The girls at that point have said guilty but he had not. I might also point out that there were several case pending against him.
Speaker: I see.
James A. Wade: And most of these other merits were consolidated a later point and through the State's Attorney could advice him but I think many of them.
Speaker: Was there any, I'm just-- the real reason for my question was where there any elements of bargain between the prosecutor and the Dukes with respect to these two proceedings going on?
James A. Wade: No question at this point. He got the sentence that the Court strike that the State and Mr. Zaccagnino had bargain about. That's one thing that's pointed out.
Speaker: And was part of the bargain that the other the charge would be denied?
James A. Wade: That I can't answer Your Honor. I was permitted to those when negotiations. I was not representing at that time and I simply do not know.
Warren E. Burger: Was the prosecutor at the same prosecutor?
James A. Wade: Yes, Mr. LaBelle is the same prosecutor.
Warren E. Burger: The reasonable to assume that there was some connection between the two?
James A. Wade: I would ask, I will let Mr. LaBelle to answer that Unknown Speaker whether or not. But I don't prove.
Byron R. White: Let's assume there was and they become contrary to fact. But let's assume there was and they're be very little that Zaccagnino could do the hurt to Mr. Dukes.
James A. Wade: Well, I think the differ Mr. Justice White. First reason I differ is I don't think at this point that the laws we should can appoint where negotiations between a prosecutor and a defense counsel from pointing on the Court.
Byron R. White: Oh, I agree with that.
James A. Wade: Well, this can.
Byron R. White: I agree with that but if Dukes wasn't going to get heard there in the other proceeding anyway, Zaccagnino's remarks at that time didn't heard much did it?
James A. Wade: Well, I would differ the Court then to the reasoning of the Pennsylvania Court in Commonwealth against Collin. That was a situation where the defendant, codefendants, represented by a single counsel received after the sentence that had been bargain for. But Pennsylvania's Supreme Court reversed same to date, the review of the prejudicial conflict of interest. They felt that it headed all the way back to the guilty plea and decide, what is he getting adequate advice that the time in entered the guilty plea. Did Mr. Zaccagnino have Mr. Dukes' interest at heart? Was he giving him proper information? Indeed, with another counsel who was in there independently with Mr. Zaccagnino. Now look at the evidence these girls might be willing to give based with the Dukes and advice his clients with the admission of the evidence was either admissible or not admissible. I think that Your Honor has to look to the fact that we're not looking at the sentence here. We are going back to the guilty plea and question whether or not at that point he was denied the effect of existence of counsel and we submit that beyond the records statement of Mr. Zaccagnino is what manifest that conflict of interest that did exist. Now, this Court is not really spoken to this point since 1942, when a classic proceeding was handed at and that was situation where the defendant itself was an Attorney. And there were two, it was single counsel representing him at another codefendant the defendant Glassier here was a former United States Attorney, existing United States Attorney charged with conspiracy of violent between before the United States Government. This point and that point was very explicit point out that in a formal proceeding that the defendant should have representing him, a person whose interesting are untrammeled by possible conflicts of interest. And the Court laid down a touchtone which the lower Court said well done as far as I can see. Since 42, they laid down as a touchtone to determine whether or not that assistance of counsel wasn't paneled. Was whether or not it was effected as it might have been? Was the assistance of Counsel as effective as it would have been had their not been this conflict. Now, I submit in this case clearly Mr. Zaccagnino's representation was not as effective as it might have been. The obvious reason is that he was appearing before a trial judge on June 2nd, he can blame upon hi client shoulders, on behalf of the girls saying that this poor girls would let down the fact of provision by Dukes and then two weeks later, he had to appear before the same judge and implore mercy for his client whom the adjusted story in two weeks before. I've submitted the very least of Mr. Zaccagnino have credibility problem with the trial judge who was sitting and listening to his arguments.
Warren E. Burger: But what if this was all true?
James A. Wade: I beg your pardon?
Warren E. Burger: What if these observations of Mr. Zaccagnino where all true?
James A. Wade: Well, if that's the case and Mr. Chief Justice, it would seem to me that the arguments of counsel were meaningless.
Warren E. Burger: provision of the doctrine happened within a sentencing process, a lawyer, and an effort to present mitigating circumstances will make a lot of discouraging statements upon his clients in by way of confession and avoidance.
James A. Wade: Yes! About his client. This is the situation where he was saying on the behalf of another client.
Warren E. Burger: I'm speaking of the sentencing of the particular client of this particular man. What is so different about making that comparison in these context, does it happen here two weeks earlier?
James A. Wade: Well, Mr. Chief Justice if I can answer that this way. It seems to me from a reading of many cases, the lower Court cases have Government issue, that they gone so far to say even if the trial counsel ignores one of his clients and in this situation where a lawyer representing two defendants get self at sentencing says a nice things about one individual. It doesn't say anything at all about the other. The Courts had held that to be conflict interest that the client who receive no attention from his lawyers. He's not getting the representation that he his entitled too. In other words, it is not as effective as it might have been had the conflict not existed. Now, Mr. LaBelle in his brief in this Court two questions had raised that the issue of prejudice must to show prejudice. Well, I submit that because the Attorney-Client relationship is what it is and that the Attorney is taken into the confidence of his client. That it should not be the burden of the defendant here, in the ordinary sense to have to show the prejudice that may have resulted. Mr. Justice White raised the question whether or not the sentence was the result of a bargain, and then the logic that forwards that is because bargain what he is complaining about. But I said earlier, that bargain certainly wasn't minding the trial judge. Are there permissible penalties couldn't been hidden down. The whole question of how the Trial Court looked upon Dukes' before his eyes. It seems to me, that something can't be answered in this Court because we don't have that trial wasting for us.
Speaker: Well, I suppose part of your claim as it any of Zaccagnino.
James A. Wade: Zaccagnino.
Speaker: Zaccagnino had not a conflict, he had might made a better bargain?
James A. Wade: That's possible. And he might have won the trial. You have to remember Your Honor that throughout this proceeding, Dukes have been saying I'm not guilty. I do not want it pleading not guilty. I do not want go forward. He did it in the first instance and the original trial date, he then plead guilty. He came back and said I want vacate my plea. He keeps saying "I'm not guilty."
Speaker: I see in your brief, you say that on Zaccagnino was talking in the other case, you said that the "He pointed out because of that cooperation with State Police they capitulated Dukes into pleading guilty?
James A. Wade: That's correct.
Speaker: So he had pleaded guilty in the other case for the time he was.
James A. Wade: In this case. So, the girls have been involve to Dukes so over a serious of events. The girls have been arrested on a particular charge that they were arrested on. But they were cooperating with the Police not only on that case but on the one we are now discussing.
Speaker: You mean, he did actually discussed the case that we have here when he was talking at the sentencing of the bureau through the other case.
James A. Wade: That's correct.
Speaker: He mentioned this case?
James A. Wade: That's correct. When he was doing as he said he had both sides of the case, Mr. Zaccagnino did. So, he knew what the girls was going to say. He knew what they are going to testify to him and how they would be utilized by the State in evidence against Dukes of he and his partner, Mr. Delaney, kept trying to convince Dukes to plead guilty because they knew that these girls are going to come in and say things about it on this case. And that's why as Mr. Zaccagnino says, "he was capitulated into taken a plea."
Speaker: Is the end result of your position that there must be a separate Counsel for each of multiple defendants?
James A. Wade: Yes, it is my position yes it is.
Warren E. Burger: Mr. Wade it is.
Speaker: In all cases?
James A. Wade: Yes, it is.
Warren E. Burger: Eventhough Counsel is retained and not appointed?
James A. Wade: Yes. There is a Campbell versus United States the Fourth Circuit I believe it was said there was no distinctions been retained at appointed Counsel. That there must not be conflict but the conflict exist is not the irrelevant whether it is retained or appointed.
William H. Rehnquist: What if two defenses would insist they wanted to have one counsel and they were only advises that counsel conflict nonetheless to hear that decision.
James A. Wade: Alright. Well, that can be handled Mr. Justice Rehnquist by adequate examination by the Trial Court. but he should point out to the defendant, all the possible ramifications that that follows from that and if they once again there is annoying intelligent waiver of his Sixth Amendment Rights to separate effected Counsel then I would submit the defendant can so Dukes.
William H. Rehnquist: Why is it the states responsibility, if a man goes into the retains counsel that the counsel reach with the common of ethics in some way. How is the state deny that amenity.
James A. Wade: Well, in my understanding of the criminal procedures, if the state is not interested in convictions. They are interested in justice and the State has the same interest at hard as the defense counsel. The truth, they are looking for the truth.
Warren E. Burger: Or they approach it into somewhat different way though.
James A. Wade: Obviously because of the adversary State of our law. But the point is, is that if the State is concern only with convicting guilty persons and they too are concern with insuring that all of his constitutional rights are protected regardless of whether that Attorney, that defense lawyer, as if you say preaching the candidates of ethics. That's a concern of the state also, to make sure that is not being done and therefore the trial judge who sits there, he's the referee and even if the State does not raise it as they probably would not because of the adversary of circumstances. Internal Court has a responsibility.
Thurgood Marshall: Do you think that trial judge could say, "I don't think this lawyer should pay a thousand dollars who can do the job?"
James A. Wade: As Mr. Justice White said, in McMahon versus Richardson, a year ago which was a truly of few cases involving guilty pleas. At that time he said he would plead to the trial Courts. The responsibility of insuring the standards of confidence of trial Attorney representing the defendants before the Courts of the various States.
Thurgood Marshall: No, I'm saying you said that trial judge should say I don't think this man is confident.
James A. Wade: I think.
Thurgood Marshall: And the man is hired paying him or gave him a thousand bucks.
James A. Wade: Yes, Mr. Justice.
Thurgood Marshall: But what happens?
James A. Wade: Well, I think you have to take on a case like this.
Thurgood Marshall: So, what happens?
James A. Wade: In that situation?
Thurgood Marshall: Yes.
James A. Wade: Where the -- I think that if the defense counsel is incompetent and it is before the trial judge.
Thurgood Marshall: Who decides this competent in that?
James A. Wade: Well, I think the trial judge [Voice Overlap]
Thurgood Marshall: Why did he take the bar exam?
James A. Wade: I beg your pardon?
Thurgood Marshall: Why do you take the bar exam?
James A. Wade: Who?
Thurgood Marshall: The Judge don't pay us on qualifications of trial lawyers now?
James A. Wade: Well, all I can say in response to that is like, I try to this law firm that has some 35 lawyers in it. But on that number, I'd say 30 have not been in a trial Court since they pass the bar exam. They are simple not trail lawyers. They don't handle criminal defense cases.
Thurgood Marshall: Well, this man is picked up its lawyer. This is his lawyer, "counsel on his choice", and is paid in good cash money the judge said, "Ah-ah".
James A. Wade: Well, all I can say is.
Thurgood Marshall: Does the judge give him a better liaison?
James A. Wade: No, he may not do that. He might decide that public defenders are should be there in the case.
Thurgood Marshall: And make the man take the public defender?
James A. Wade: That's correct.
Thurgood Marshall: He doesn't want the public defender.
James A. Wade: If on the facts.
Thurgood Marshall: He doesn't want a public defender.
James A. Wade: Well, if on the facts, if we have here. The lawyer is.
Thurgood Marshall: We're not talking about the defense here. You went out on is not in this case.
James A. Wade: Yes.
Thurgood Marshall: And other the facts hang on.
James A. Wade: You're saying that where the counsel himself is yet is incompetent the trial judge thinks he is.
Thurgood Marshall: No. I didn't say. I said the trial judge said, "I think you're incompetent". So, you can't defend this man.
James A. Wade: Yes, I would submit that he has a duty to ensure that he is getting fair and adequate representation. That's effective representation.
Thurgood Marshall: Maybe the judge who represent himself.
James A. Wade: Well, I think at some part we have to add somewhere there who's going to argue.
Thurgood Marshall: I think that you've gone mighty far feel on this case? But understand this thing from myself.
James A. Wade: Yes. All I can is that.
Thurgood Marshall: Is that any charge here that this man is less incompetent?
James A. Wade: No, no! Far from that.
Thurgood Marshall: Where do we get to the incompetent point?
James A. Wade: All I'm saying, he is very competent lawyer. All I'm saying is in this case, he had a conflict of interest. That destroys his effectiveness, not that his incompetent but his effective assistance of counsel went out the window when he had the interest of these girls crimple the interest of his own client, Mr. Dukes. How could he, Mr. Zaccagnino stand up and laid his burden to blame on the man that he himself was to suppose to represent. That's all I'm saying in this situation.
Speaker: What if where a simple action Mr. Wade since the breach of ethics that taken place. When the client paid for the preservation of ethics in a constitutional claims that go beyond the state of order come here?
James A. Wade: Well, I don't think the constitutional claim because I don't think the Sixth Amendment protection there would apply. Simply because the Sixth Amendment guarantees as I understand it is intended to protect a citizen from activities by the state against him. So, in the civil claim they are the client might have a civil remedy against his attorney assuming he could show some sort of activity on his part that down graded his own case and hereby remove the Attorney from a superior proper representation.
Speaker: Remove them a due process of claimant before he could committed just because the State conducted the trial?
James A. Wade: No, I don't think it would be sufficient State action there in order to bring it and that would be my opinion. I have no law to support that and I don't think that there be a sufficient State action, simply because the state permitted its facilities to be utilized and its judge to hear the matter to raise a due process argument on that situation. Now, Mr. LaBelle and his brief has also raise the issue that types of conflicts that might exist and that the true conflict of interest cases arises whether at the same defendants being represented of the same arrest. While I submit it to the Court cases in which its been held that simply isn't true. There is a situations where a lawyer has represented a defendant in a burglary case and quite parenthetic that he represented the victim of the burglary an entirely unrelated civil transaction had nothing to do with the particular burglary in question, and there the Court held that that was a conflict of interest to that lawyer to be in that case representing this particular criminal defendant when he had represented the victim of the burglary elsewhere.
Speaker: The Court or the constitutional violations?
James A. Wade: Yes. Relying on Balasic, the fact with the assistance to counsel once began Sixth Amendment right. Assumingly this is case I decided Ken against, Whitaker against the State of, excuse me. In which the defendant was charge of statutory rape and the complainant was the mother of the girl from a separate marriage, previous marriage. She brought complain against her own husband. Having done so, she went and hired a lawyer and out of hers is going to pay the lawyer's fee. They went to the lawyer and they said "Look we want this case taken care of us quickly and as quietly as possible with no fuss." The lawyers said "Fine" took his retainer and appear in a criminal action and plead the man guilty of at the time of sentencing there was, he said virtually nothing about his reported client. It was not who hadn't hired it. They report once again so that the lawyer was looking to another interest other than his own client for his retainer for his responsibility for his duty. Obviously in the Whitaker case, the lawyer was doing what his retainer has tell him to do. Handle it quickly and quietly with no fuss. But that isn't the point, the point is the defendant is entitle to representation this of being himself because he is the one who stands before the bar of the State. But the State bringing in action against him. He starts answerable to his wife in the criminal sense. He is answerable to the State and in criminal sense.
Speaker: Dismissal whose parent with this Counsel. I supposedly under your brief it would be a conflict of interest there? I think the father wants to thing has stop thinking it from the best interest of the juvenile, and yet excluded the juvenile separate lawyers and did come along and say, "Well, this man should have be in the trial and perhaps demanded and file not good?"
James A. Wade: That possibility does exist. I don't quarrel with that, and it happens frequently in the civil side obviously, when civil litigation takes place and a child is say injured in a automobile accident. Then a guardian had likely disappointed for the child, and not infrequently, if one of the defendants happens to be a parent, then that child has a particular financial interest that is represented throughout. Indeed, under our practice in Connecticut probate for has to be intervening in cases of settlements about certain figures to ensure that the settlement is proper. So, it is a possibility that in a juvenile action, the Court would have to scrutinize with more care to make sure that conflict does not pressed.
Speaker: We've got your juvenile action we have thoroughly before reaching implication.
James A. Wade: Very clearly, I don't quarrel that at all. But as I said earlier, this Court has not really dealt with this subject since 1942. All the case laws.
Speaker: Did that, I suppose Dukes knew that Zaccagnino represented the girls when he hired?
James A. Wade: Oh. Yes. We don't quarrel with that.
Speaker: And Zaccagnino, in one of the early proceedings tried to withdraw before the judge?
James A. Wade: Yes.
Speaker: And at that time, Dukes subjected to the withdraw.
James A. Wade: No, no. He wanted him to get out. At that time, Dukes was saying, I don't want Mr. Zaccagnino, he stood up on open Court and said it himself. I want another lawyer, and the trial judge.
Speaker: Was enough?
James A. Wade: Right! He said, "I'll give you 24 hours to get another lawyer. But we're ready to start this case tomorrow morning." That's when Dukes went out, one on his way to get another lawyer and rounded back in the Hartford jail on another arrest. You see and so, that's the key here is that.
Speaker: And that Zaccagnino said at the time that there was a conflict between his client and himself and it wasn't financial?
James A. Wade: Yes. That's correct. And in fairness of the State and Mr. Zaccagnino, I don't believe at that point he was trying to say that Court, "I have this conflict event these two girls." I think what he was trying to say was that, "My client and I are arguing over whether you should plead guilty and therefore he wants me out of the case."
Thurgood Marshall: Would it be that arguing about who compare you what money?
James A. Wade: No, I don't believe so because my, this is not on the record of course, but the money have been paid. Dukes had paid his fee.
Thurgood Marshall: By whom?
James A. Wade: By himself.
Thurgood Marshall: Did the girls pay?
James A. Wade: I have no knowledge of that. In summary, what I would urge upon this Court is that if as you said this morning that the right to counsel in the Duties of Counsel are important throughout every stage of criminal case. But we have missing in this case, was that very important element. We have a lawyer who did not have his own and exclusive, his own client's and his exclusive heart. He had the interest of another client in there and to me, this is a clear case of the conflict of interest of this Court may ever see. I can't concede of the situation where on the record. You'll have a lawyer, in one case standing up before the trial judge and pinning the blame on his own client with another action because of the conduct of another client. It seems to me that if this Court in this case, finds no conflict of interest, then in need no case would you ever find the conflict of interest. And therefore, we would urge that the guilty plea that Mr. Dukes has entered be set aside and to matter be remanded back to the State Court for whatever proceedings are appropriate.
Warren E. Burger: Mr. LaBelle?
John D. Labelle: Mr. Chief Justice, visitor of the Court. The petitioner here, we supports these two things. He assumed that there's a conflict of interest, in many cases his whole arguing on that and he also presupposes that there was prejudice to the petition. Neither of these exists. In order to have a conflict of interest, it requires more than just joint representation. It also requires that there be antagonistic interest between the people jointly represented. Now, you don't have that worked who have two separate cases, one in the Narcotics License Case, one the girl's case. Now, let me give you the actual background here. So, that the Court will understand just what happened and you will see that there is no conflict of interest here nor and never was. In this check case with the girls, Dukes was involved. He was using these girls going on all over the State in Connecticut, cashing checks. The girls cashed the checks that he would furnish to him, some where traveler's checks, somewhere money order, somewhere stolen checks with names imprinted. He gave his drivers licenses and other identifications, and this went around in most of the towns of Hartford New County, into the New Haven County, in the Fairfield County. Now, the State Police go on with this investigation in November and December 1966, and as a result it, if the girls were picked up and when were they pick up they told the State Police the whole story, verse by verse. It gave statements, affidavits, the whole things and a s a result of that, of course they were arrested. And by the way, they were four girls and another man involved in this besides Dukes. Consequently, a warrant was issued for the arrest of the girls in December of 1966. A warrant was issued for Dukes. Now in the warrant for the arrest of Dukes, one of the affidavits supporting that warrant was a statement from the girls or one of the girls about Dukes involvement in the check case. So, Duke knew it from the arrest warrant. In Duke's case also, there were two other charges added into his warrant that had nothing to do with the check case. Two are the narcotics sales. Alright, that case it's into the Superior Court. The girls have cooperated; they got Mr. Zaccagnino to represent them. He was representing the girls and Dukes knew it. Dukes also knew his involvement with the girls. While Mr. Zaccagnino is representing the girls in the check case, Mr. Duke went to him and said "Will you represent me in the narcotic case." A new narcotic case, not the one that was involved in the bench warrant, because on March 14th, Dukes got arrested again for selling narcotics, and this is the case in the appendix. This is the case that in the appendix where the search warrant is there, where they went in with the search warrant. They had made purchase from Dukes did before the warrant is executed. They went in his house and found all kinds of narcotics, a perfectly group solid cold case and also found stolen goods. That is the two counts that he pleaded. Now, when these cases all came in the Court and I have some more cases in the Supreme Court against Dukes. I looked at the files and I set the case to try. Is the last narcotic case. The one where there was a search warrant. What we had a cold case, Dukes was second offender, he was warned above and I set the case down for trial, and told Mr. Zaccagnino to be ready as soon as we go to the Court. The record shows Mr. Zaccagnino was there and this by the way was the 2nd of May, the week of the 2nd of May 1967. Mr. Zaccagnino was there and he hang around for that week and on May 9, he came on, we've got a Court room. And now we've come to the proceedings in the Court on May 9th. Meanwhile, the girls case has been going separately. They wasn't any connections to this narcotics case. The girls were witnesses on it. They have nothing to do with it. It's never been claimed that had anything to do with it. The girls have pleaded guilty, and their case were waiting to be sentenced. And there's no connection whatsoever with this case which was right for trial. Now, when he got ready for trial, he had to be pin him that in order to get the plea, and that's when we there's conflict to which we came up between Mr. Zaccagnino and Mr. Dukes. And it says in colloquia on May 9th, this is like conflict between my client maybe because Mr. Zaccagnino with his best judgment was advising him, "You've got to plead guilty", you've got all these cases pending against you. He have warrants outstanding on the check charges in New Haven in Fairfield County. He had this good case that we were getting ready to try, which was a cold case and Mr. Zaccagnino knew it. And so, he was saying to Dukes, "Your only chance here is to plea guilty and wipe out all these cases at once." And our Board of the States Attorney and get a recommendation, which he did. It didn't go on May 9th because it was continued because of this Zaccagnino advising him and he hadn't taking his advice and it was continued for one day, then it was postponed for a week, went over to May 16th. On May 16th, Dukes came back in the Court with Mr. Delaney, Mr. Zaccagnino's partner, and the same thing happened all over again. I was ready on Court with the Courtroom and a Jury and the witnesses to put the narcotics case on. And finally, after a lot of negotiations during the morning, Mr. Dukes pleaded guilty and the proceedings of May 16th show that and this is when Judge Johnson, now is the judge.
Speaker: At that time, had you have conversation with Zaccagnino?
John D. Labelle: Sure, then a recommendation was to be made. This was an agreed recommendation and that was.
Speaker: That the other cases where voice out?
John D. Labelle: With all the other cases including.
Speaker: Including the girls case?
John D. Labelle: It was to get to current sentences including the New Haven in Fairfield County cases. These appears in the minute in the last.
Speaker: Yes. Alright.
John D. Labelle: So, he pleaded guilty. Now, Judge Johnson who makes the inquiry. Now, you want to here last week with Mr. Zaccagnino, and there seem to be some doubt in your mind about whether you wanted Mr. Zaccagnino when you were looking to get other Councel. Are you satisfied today with his partner, Mr. Delaney? And you can see all of these in the May 16th transcript and the questions, you know you're giving up your right to trial now. The state is ready to go forward today, you know that. And so on. And all went in the guilty plea was accepted and it was referred for a pre-sentence report. It was assigned for June 2nd for disposition? Mr. Zaccagnino in accordance with the plea bargain arrangement with me asked me asked me cases consolidated from Fairfield County in New Haven County. Plus all the cases we had in Hartford County. And you know, from the appendix in the respondent's brief that in order to consolidate those cases, it's required that guilty pleas be entered. Both States Attorneys have to agree with the consolidation and the statute says, "He must plead guilty to all cases." Which he was going to do. It went to June 2nd, the date it was assigned for disposition, and you'll see there is a short proceeding on June 2nd where Mr. Zaccagnino says, "This case Your Honor has to be postpone because the consolidated cases from the other Counties haven't got here, also the pre-sentence report wasn't ready." So, it was put down for disposition now to June 16th. Now, that morning in Court on June 2nd, Mr. Zaccagnino then appeared with the girls in the check case because it happen to be that the check case was set down for disposition of the girls, the same day. Now, I don't claim that Mr. Dukes was in Court, when the girls where sentenced. He probably wasn't, because he couldn't be there for the continuous and not stayed for the girls part. But on June 2nd when the girls were sentenced, Mr. Zaccagnino made these remarks about the girls, in the girl's case about their involvement with Dukes. Now this is what happened, those remarks where before the Court in the pre-sentence is required on the girls. The whole thing in stage was laid up to the judge. The prosecutor when he got up said, "These girls got into this thing because of Dukes." The girls statements was attached to the probation reports. Said the Judge Devon now, the sentencing judge, had before him everything about the girl's in the check case. And in that information it said that Dukes have used them to cash these checks. No secret. All these was a set of facts that Mr. Zaccagnino had. And he didn't do anything about manufacturing them. He didn't do anything about them all. He simply said, "Your Honor this is it."
Speaker: Do we have the probation report?
John D. Labelle: And on the girl's, no. But it is seen in the record that Supreme Court in Connecticut looked up on him, and it says in its opinion specifically, that postpone that thing was laid out before the Court in the girls probation reports. So, what Mr. Zaccagnino was saying to Judge Devon about the girls, was before him anyway? Now let's look at this, this is a conflict of interest. Supposing the girls were represented on that day by another lawyer, not Mr. Zaccagnino. Wouldn't that other related happen have been say about Dukes, that he is responsible for the girls be in this trouble? He would have said it in stage, would he? You can't say that in that situation, in two weeks later Judge Devon couldn't say Mr. Dukes -
Speaker: At that time it was the agreement crystallize?
John D. Labelle: Yes! That has been crystallized back on May 16th when Dukes pleaded guilty.
Speaker: But if you did not have the arrangement, if Dukes is punished in the girl's case was still in question. Zaccagnino representing the girls in Dukes - in another case wouldn't be about to say that about Dukes. I mean he shouldn't anyway. He-
John D. Labelle: Yes, that's correct Your Honor. If for instance we came in and put Dukes on in the check case later on, and Zaccagnino was representing him there, then he would have conflict.
Speaker: Of course, But it didn't happened that way and it hasn't happened?
John D. Labelle: There was an arrangement that there was to be concurring sentences that's in the record. See that there is a 120 to 123 of the appendix that this was a recommendation was to get up concurrent sentences with a blocking all these cases. Now.
Speaker: But that was only in the recommendation.
John D. Labelle: Oh, yes!
Speaker: Right?
John D. Labelle: Judge Demon was not bound by it of course. But it is significant that on June 16th, when Dukes is sentenced in the narcotics case. He got the Judge Devon filed the recommendation. Now on June 16, its significant that there was nothing before Judge Devon to remind him about the Dukes being involved with the girls. It wasn't in the probation report, the Dukes probation report, it wasn't mentioned? Nobody mentioned it to Judge Devon and now Counsel says, "What Judge Devon heard in two weeks ago, he probably remembers it."
Speaker: But did the, didn't the arranged include washing out or doing something with Dukes' penalty and the girls check case?
John D. Labelle: Yes, it did. And on June 16 -
Speaker: Whether that takes judicial concurrent?
John D. Labelle: No, because we never brought those cases up to Judge Devon for disposition.
Speaker: It probably cause.
John D. Labelle: I did that afterwards because on June 16th, Dukes refused to plead to the cases that where being consolidated, and refused to plead anything else. He changed his mind. Then Judge Devon he ask that had his case postponed and I use to have a chance to get new counsel, and Judge Devon said, you had a whole month to make up your mind about this, since May 16th to June 16th, you haven't done anything about it? This is simply a ploy to get delaying your sentencing.
Speaker: So, did you know if pass all the other cases?
John D. Labelle: Then after the appeal, the direct appeal was finished. I now pass all my other cases and I asked each attorneys in Fairfield, New Haven County to null this. This is after the direct appeal on this case. This was some 2 years afterwards I agree, but I carried all our bargain completely. Now, you must remember that he took the direct appeal and he never mentioned any conflict of interest? He had another lawyer at that time, and he did not mention conflict of interest. We brought it habeas corpus in Federal Court and he did not mention conflict of interest? And when you look at the transcript in this case, to the State Dukes doesn't claim that Mr. Zaccagnino gave him anything but good service. As a matter of fact, the plea bargain he got. If you look at the record in all these cases, he got a good result and Mr. Zaccagnino did a fine job for him. Now, there is the situation that comes up. Now, let me suggest other two things why they don't have in there Sixth Amendment violations or Fourteenth Amendment violations. In the first place, the reason is showing of an antagonistic interest between the parties here, was represented by Mr. Zaccagnino in the particular case, because there was nothing to do in the narcotic case to which Dukes plead in the sentence with the girls. They didn't appear with it, they never appeared in it, and there was no connection to it, nothing at all. Mr. Zaccagnino never bargain off the girls and saying that, I'm going to say to Dukes, "If you don't plea guilty on our narcotics case, these girls are going to testify against you." That was wrong says no by Dukes. It was known way back in December that they were going to cooperate in Mr. Zaccagnino refuse. But that never came up.
Speaker: But may I respect the suggested judge did know it until the lawyer told him?
John D. Labelle: Right. Now, that's very important here on the other element. If Mr. Dukes wanted to claim this conflict of interest on the day he was sentenced on June 16th, he should have said something to the Court. He asked for the counsel, he was given plenty of opportunities by the judge to settle something. He asked why he wanted another counsel. What was the matter with Mr. Zaccagnino and he never got this out him? He did ever say to Judge Devon, I have bad day by Mr. Zaccagnino, or any complain, and he doesn't complain toward to this day. He didn't even in his testimony in the habeas corpus trial. Now, aren't you fix--
Speaker: You know a colleague there a moment ago said that on page seven of his brief he said so that on June 16th that Zaccagnino said, "He pointed out because the cooperation with the State Police , they capitulated Dukes into pleading guilty." Now, if the girls didn't know anything about the narcotic case. Could they have capitulate him in the pleading guilty in the narcotic's case?
John D. Labelle: No, that is not.
Speaker: Capitulated the pleading guilty on the?
John D. Labelle: I don't know what he meant by that, except for the fact that he had ask for the other check cases to be consolidated for Fairfield in New Haven County. That they were going to.
Speaker: But he wasn't talking about the narcotics case?
John D. Labelle: He couldn't be because there was never any connection. Never any connection. No, I wouldn't do that with Mr. Dukes on the cross examination in the habeas corpus and I asked him, "Where you talking about the narcotics case?" And he said, "Well, I don't think I couldn't have been looking at my remarks." But there wasn't any discussion [Voice Overlaps].
Speaker: In what case he is pleaded guilty to?
John D. Labelle: He pleaded guilty on the narcotics and the larceny case.
Speaker: At that time?
John D. Labelle: He never pleaded on the check case and he never was said so.
Speaker: When he was making that speech to the judge, he was talking about what? Are the girls persuading in the plea guilty in the narcotics case.
John D. Labelle: By what he seems to say but that couldn't [Voice Overlaps]
Speaker: But he pleaded guilty to anything else?
John D. Labelle: No, just the narcotics case.
Speaker: All he agreed to plead guilty.
John D. Labelle: He had a agreed and then change his mind the last day, on June 16th but he don't say it.
Speaker: But he agreed on the other case, isn't?
John D. Labelle: Yes. In this whole case you'll see that both Mr. Delaney and Mr. Zaccagnino were interested in wrapping up all the charges. Its indicates that the State's Attorney was going to recommend concurrent sentences that appears. Now.
Speaker: What was the idea that you know about him?
John D. Labelle: Not less than five more than 10 years on narcotics count. Two years on the larceny count, making effective sentence on not less than five and more than 12. Now, it's significant that in the narcotics charge.
Speaker: Ha had some other cases too, didn't he?
John D. Labelle: Yes and with all the other cases, we have been nullied. And that seems what he wouldn't have got if he had pleaded to all of them.
Speaker: What is the maximum exposure to that he had?
John D. Labelle: While, he was the second offender in on the narcotic case. It is a mandatory minimum of five years and a maximum of 10, if he is the first offender, and as a second offender, that was doubled. So, he had on the narcotics case along that exposure of not less than 10 or more than 20. And he had an addition of that, what could be added on five years more for the larceny. So, he had an exposure at that point when we were going to trial in the narcotics case of 10 to 20 on the narcotics, if he was convicted in the charge as a second offender, plus the 10 years on the larceny.
Speaker: So, you didn't charge he was the second offender?
John D. Labelle: I have him warned and I didn't charge him, because he pleaded.
Speaker: I'm saying that he got five to?
John D. Labelle: He got five to 10 and the five was a mandatory minimum on the narcotics charge under our statute. On the narcotic charge, it was required that he got atleast five, unless it was suspended. But he has to get five and with this kind of case of course, it could be suspended. Now, there's one other key to these whole case, and I'm might respectful to ask the Court just to bare with me. There is a duty on the partition here if he was not satisfied with his Counsel to have told Judge Devon about it. He didn't do that and Counsel has said for the petitioner, that he couldn't do that, because he didn't know what Dukes had said about it or what Zaccagnino had said about him the day the girls was sentenced. Nobody bothered me all through this case but I finally found it out a few days ago. The first place when this habeas corpus was started, long after the direct appeal now, and after Federal habeas corpus and nothing was said. He started the habeas corpus from the person and he mentioned the conflict of interest. Well, I would then have wonder how could he hadn't known about that at this time in prison. And then right after he started the action and before Mr. Wade was appointed for him under articles conviction proceedings. He wrote a letter to the clerk of the Court. He then give the letter to the clerk of the Court, this is in the files. He said, "Would you please send me your transcript of what Mr. Zaccagnino said about me and the girl's case, said that you would on wouldn't bail me." Now, it's obviously he had ignored what they said because he started his habeas corpus action before this. Because he says in the letter, "I want to use this transcript in my habeas corpus hearing that is coming up." So, that made he had to ignore about it himself. Now, since he have to ignore about it, he must to know about on June2nd and that's the day on June 16th, two weeks later, that he knew about it, he should have told Judge Devon, that I'm not being properly represented because of a conflict of interest. What's for?
Speaker: Can you mathematically rule out the possibility that you could have thought about somewhere between June 16th after?
John D. Labelle: Well I agree Your Honor that I said earlier, that I couldn't guarantee you, is that the problem when that had happened? When I count you at but I finally found it. It is on page of 163 of the appendix and I'm asking him about being in Court on June 2nd. I was trying to establish and he must of heard the girls when they're sentenced. He says, he was but now listen to this, at the top of the page 163. This is his answer, "I'm trying to think of the day that the girls got sentenced, because I was not in Court the day they got sentenced. Because I knew and I wasn't in Court that specific day because, that's when I was told what was said about me." So there it is, that's the key to the whole case. He knew that he what he was said about him, he never complained, he never troubled Judge Devon about it on June 16,and if he wanted to, he should have raised it then and he have plenty of opportunities because the record in the case, Judge Devon gave him every chance to speak, and tell him what his trouble was. Now in his plea, that if you're going to allege this kind of a conflict of interest, there's a duty of notifying the Trial Court, and give the Trial Court a chance to rule on it. Here you have what we're saying in this case, if this case is reversed. We're going to reverse Judge Devon for something that he never knew about? And for something that he hasn't ruled on and he didn't know one thing about.
Speaker: He certainly do that in fact Zaccagnino was representing both the girls and Dukes?
John D. Labelle: I think so. You must presume that if you remember what happened two weeks before. I'm not sure of that. I don't know that he this was busy Court. He have a lot of other cases, whether or not he remembered the girls case that this was the same Dukes, I don't know.
Speaker: On June 2nd, he heard from Zaccagnino about Dukes and on June the 2nd he heard from Zaccagnino about the girls.
John D. Labelle: No, it was June 16th, it was two weeks later and a lot of things happen in between.
Speaker: No, but wasn't there was a short proceeding on June 2nd. In this case, Zaccagnino was there.
John D. Labelle: Yes, just continuance.
Speaker: Alright, and then either before after that on the same day. Zaccagnino is representing the girl.
John D. Labelle: Right.
Speaker: And makes his remarks.
John D. Labelle: Yes.
Speaker: And then in Dukes.
John D. Labelle: Yes. I'm not saying that Judge Devon may not have remembered. But what is done here if you have this specifically called his attention, is presuming that he took into the consideration in sentence a Dukes on the narcotic case. Some other information he had from outside and you can't presume that a Trial Judge is doing something wrong unless his been notified about it. And in this instance, Judge Devon certainly didn't do anything other than follow the State's recommendation. The agreed recommendation, the plea bargain recommendation, so that you can't say that even if you remember the Dukes case. That he had done anything that was proper advice following the recommendation. He doesn't say one word about in his remarks at the time of sentencing, Judge Devon does. So, that the key to the case is that Dukes knew about this remarks by Zaccagnino on June 2nd in the girls case. He didn't think anything about it, or tell the judge about it at any time and you're asking this Court to overrule Judge Devon in the matter that he never had a chance to rule on. When it was never called to his attention when there was a duty and on Counsel and on the petitions, if you want to raised it to say so.
Warren E. Burger: You have just one minute Mr. Wade?
James A. Wade: Yes, Mr. Chief Justice if I just address myself to remarks that Mr. LaBelle raised. The first is that he said everything was in the pre-sentence report and Judge Devon had them all before many way and so what difference that it make with Mr. Zaccagnino said. I say in response to that, "That's when you need your own lawyer." He's got an information before him. You should have your own lawyer there, who is atleast answering those charges and pre-sentence report to the Trial Judge. And that Mr. Zaccagnino did not do indeed. What he do was compound them. The second letter.
Speaker: Let's suppose to take your hypothetical event, there have been two separate lawyers. Are you suggesting that on that day that this man was entitled to have a lawyer there to hear what's been said about him?
James A. Wade: No, I don't claim that at all. What I'm saying -
Speaker: I think so.
James A. Wade: What I'm saying, obviously, is that the Pennsylvania Court said, "You've got to go back to the date of the guilty plea itself." Would they only type of advice that the defendant was getting from his lawyer at that point, not at the time of sentencing. The time of sentencing is merely symptomatic. What happened two weeks earlier, when by Mr. Zaccagnino is on a mission and Mr. Delaney is on admission, they were working on Dukes to convince him to plea. But Dukes keeps on saying, I don't want to plea, I'm not guilty. And so here was a lawyer who did not have the exclusive interest of that individual at heart but instead, was pressing for some other reason form to plea. So, I will submit that the Court has to look carefully at the present to be creative. If you do not find the conflict of interest in this case.
Warren E. Burger: I take it that the Court consumed this man to fully advise this man that he wins his case, he might be back and have 4 or 5 cases with an act get it up as I calculated to 25 years.
James A. Wade: His cognitive about it at the time of habeas hearing there was on the record examination. But Trial Judge a habeas hearing us to the implications of seeking to have his guilty plea overturn. And I have talked to him about this as well Mr. Chief Justice.
Warren E. Burger: Very well. Thank you gentlemen. The case is submitted.