Commonwealth v. Dew ( 2023 )

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SJC-13356
COMMONWEALTH vs. ANTHONY DEW.
Suffolk. February 8, 2023. - June 15, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Constitutional Law, Assistance of counsel. Due Process of Law,
Assistance of counsel. Practice, Criminal, Assistance of
counsel. Attorney at Law, Conflict of interest, Attorney-
client relationship. Conflict of Interest.
Indictments found and returned in the Superior Court
Department on March 11, 2015.
A motion for a new trial, filed on September 20, 2021, was
heard by Janet L. Sanders, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Edward B. Gaffney for the defendant.
Adam Murphy, of New York (Catherine Logue, of New York,
also present) for NAACP Legal Defense & Educational Fund, Inc.,
& another.
Ana M. Francisco (Mirian Albert also present) for Council
on American-Islamic Relations -- Massachusetts & others.
Paul B. Linn, Assistant District Attorney, for the
Commonwealth.
Stanley Donald, pro se, amicus curiae, submitted a brief.
2
WENDLANDT, J. The defendant, Anthony J. Dew, is a Black
man of the Muslim faith. Indigent and facing multiple felony
charges, the defendant was appointed counsel who openly posted,
on his social media account, his vitriolic hatred of and bigotry
against persons of the Muslim faith; his unabashed anti-Muslim
rants were matched only by his equal scorn for and racism
against Black persons. Some of these postings occurred while
counsel was representing the defendant. Indeed, counsel's
intolerance and prejudice seeped into his representation of the
defendant. At least twice, counsel chastised the defendant for
wearing religious garb, demanding that the defendant not wear
"that shit" again; once, he refused to speak to the defendant
because the defendant was wearing a kufi prayer cap in
contravention of counsel's directive. At their final meeting,
counsel advised the defendant to accept a plea deal, which the
defendant did. Several years later, counsel's bigotry came to
the attention of the Committee for Public Counsel Services
(CPCS), which suspended him for no less than one year as a
result. After learning of counsel's anti-Muslim, racist
postings, the defendant filed a motion to withdraw his guilty
plea and obtain a new trial on the ground that his court-
appointed counsel had an actual conflict of interest.
We conclude that the conflict of interest inherent in
3
counsel's bigotry against persons of the defendant's faith and
race, which manifested during counsel's representation of the
defendant, deprived the defendant of his right to effective
assistance of counsel -- a right upon which our entire system of
criminal justice depends to ensure a "fair trial." See Gideon
v. Wainwright, 372 U.S. 335, 344 (1963). See also Lavallee v.
Justices in the Hampden Superior Court, 442 Mass. 228, 235
(2004), citing Strickland v. Washington, 466 U.S. 668, 685
(1984). No additional showing of "prejudice" is required. The
motion judge's conclusion to the contrary was in error; we now
vacate the defendant's convictions and remand for a new trial.1
1. Background. The following facts, found by the motion
judge, are largely undisputed.2 The defendant is a Black man of
the Muslim faith. In March 2015, the defendant was indicted on
nineteen charges, including five counts of trafficking a person
for sexual servitude, in violation of G. L. c. 265, § 50 (a)
1 We acknowledge the amicus briefs submitted by the Council
on American-Islamic Relations -- Massachusetts, the Muslim
Justice League, Lawyers for Civil Rights, Massachusetts Black
Women Attorneys, the Massachusetts Law Reform Institute, the
Hispanic National Bar Association, Citizens for Juvenile
Justice, and the Justice Resource Institute; NAACP Legal Defense
& Educational Fund, Inc., and the New England Innocence Project;
and Stanley Donald.
2 "In examining the defendant's claim that his counsel was
ineffective, we accept the motion judge's subsidiary findings of
fact absent clear error." Commonwealth v. Smiley, 431 Mass.
477, 481 (2000), citing Commonwealth v. Yesilciman, 406 Mass.
736, 743 (1990).
4
(trafficking charges); and one count of rape, in violation of
G. L. c. 265, § 22 (b) (rape charge).3 In February 2016, Richard
Doyle was appointed to represent the defendant.
During one of the first encounters between the defendant
and Doyle, the defendant was wearing a kufi prayer cap. Doyle
demanded that the defendant remove his religious garb,
instructing him, "Don't come in this room like that ever."4 At a
meeting approximately two weeks later, Doyle left without
speaking with the defendant upon seeing that the defendant again
was wearing a kufi. Doyle again met with the defendant at the
court house shortly before the scheduled trial date in May 2016.
At this meeting, Doyle chastised the defendant, in front of a
3 The defendant was also indicted on two counts of assault
and battery by means of a dangerous weapon, in violation of
G. L. c. 265, § 15A (b); one count of assault and battery, in
violation of G. L. c. 265, § 13A; one count of a second and
subsequent offense of possession of a class A substance with
intent to distribute, in violation of G. L. c. 94C, § 32 (b);
six counts of distributing a class A substance, in violation of
G. L. c. 94C, § 32 (a); and three counts of distributing a class
B substance, in violation of G. L. c. 94C, § 32A (a).
4 The motion judge found that, at this meeting, Doyle said
"not to wear that shit in a courtroom." The record supports
that Doyle made this statement; however, at the hearing on his
motion, the defendant testified that Doyle made the statement
not to "wear that shit in court at all" at a later meeting
during which he advised the defendant to accept the plea offer
and said, "Don't come in this room like that ever," at this
initial meeting. Accordingly, we defer to the motion judge's
finding as to Doyle's statements; however, the additional
finding as to when the statements were made was clearly
erroneous. See Smiley, 431 Mass. at 481.
5
court officer, not to wear "that shit" -– an apparent reference
to the defendant's kufi -- in court. Doyle also advised the
defendant to accept a plea offer and informed him that any
attempt to seek new appointed counsel would likely be futile on
the eve of trial.
In June 2016, the defendant pleaded guilty to all but the
rape charge as part of a plea agreement pursuant to which the
prosecutor agreed to dismiss the rape charge.5 The trial judge
conducted a colloquy during which the defendant stated that he
was satisfied with counsel's representation and that no one had
pressured him into pleading guilty. As was recommended in the
agreement, the trial judge sentenced the defendant to concurrent
terms of from eight to ten years in State prison for four of the
five counts of trafficking a person for sexual servitude, in
violation of G. L. c. 265, § 50 (a), and the count charging a
5 The prosecutor summarized the facts supporting the charges
as follows: "The [d]efendant . . . organiz[ed] and r[an] a
human trafficking and drug distribution operation . . . out of
two apartments in Dorchester . . . [between] sometime in 2014
and January 15, 2015." The defendant allegedly attempted to
recruit one victim "to work for him as a prostitute," offering
to provide her housing and heroin. The prosecutor alleged that
the defendant assaulted this victim and that the defendant had
multiple persons "prostituting for him" in exchange for illegal
drugs. A search of the defendant's home pursuant to a search
warrant, the prosecutor described, led to the discovery of
several items, including heroin, a digital scale, and certain
"indicia of prostitution." The prosecutor considered it "a
strong case for the government" because, inter alia, the
complaining witnesses were willing to testify.
6
second and subsequent offense of possession of a class A
substance with intent to distribute, in violation of G. L.
c. 94C, § 32 (b). On the remaining counts, the judge sentenced
the defendant to seven years of probation from and after his
incarceration.
Unbeknownst to the defendant, from at least 2014 through
2017, including during the time Doyle represented the defendant,
Doyle made and shared6 numerous racist and bigoted public7
postings on his social media account, reflecting prejudice
against Black persons and persons of the Muslim faith. These
posts, which we set forth in the margin,8 included a variety of
anti-Muslim slurs and statements calling for violence against
and celebrating the death of persons of the Muslim faith,9 posts
6 A "shared" post occurs when a user shares on his or her
own page (or "Feed") a post originally written and posted by
someone else; shared posts can be preceded by the user's own
commentary. See Facebook Help Center, How Do I Share a Post I
See on My Feed on Facebook, https://www.facebook.com/help
/163779957017799 [https://perma.cc/NX9V-RFAL].
7 Doyle's account was "public"; accordingly, his posts were
available to anyone using the social media platform regardless
of whether Doyle had designated the viewer as a "friend."
Additionally, CPCS determined that some of Doyle's approximately
700 "friends" were former clients.
8 We include descriptions of the posts because Doyle's own
words best capture the depth of his bigotry.
9 Doyle's anti-Muslim posts included the following:
1. A shared post of a photograph of a pig with engorged
7
mocking Black individuals,10 and comments, some apparently made
testicles, captioned, "Dear Muslims . . . Kiss our big
bacon balls";
2. A post stating, "I just became a bigger Hockey fan
. . . I guess Canadians want to protect their citizens, I
wish our government would . . . ," accompanying a
photograph of a Canadian hockey announcer, with a
quotation: "If hooking up one raghead terrorist prisoner's
testicles to a car battery to get the truth out of the
lying little camel shagger will save just one Canadian life
then I . . .";
3. A shared post of a picture of a pointing military
officer, captioned, "You tell those goat fuckers with the
laundry on their heads that it's wash day, and we're
bringing the fucking Maytag!";
4. Doyle's statement, "Allah be praised. Go meet your 72
fat, smelly virgins, asshole," accompanying a shared post
of a video recording apparently depicting the death of a
man while attempting to use an explosive device, with a
description saying, "When goat fuckers use mortar hahaha";
5. A shared post stating, "In Islam, you have to die for
Allah. The God I worship died for me";
6. A shared post depicting a cartoon figure of a man
sitting at a desk, captioned, "Let's not jump to
conclu. . . aaaaand it's Muslims"; and
7. A shared post of a drawing of a man stating, "When
liberals aren't busy bashing peaceful Christians, they're
making excuses for Muslims cutting people's heads off."
10 Doyle's racist posts included the following:
1. A shared post of a poster for the movie "The WaterBoy,"
with the name and face of Colin Kaepernick, a Black
football player and civil rights activist;
2. A shared post of a collage of three photographs -- one
of Black men wearing shirts with the words, "Trump &
Republicans Are Not Racist," one of a Black man in a "Make
8
at a State court house,11 seemingly referring to Doyle's clients
as "thugs"12 and suggesting that Doyle's nonwhite clients were
criminals.13
America Great Again" hat, and one of two Black men wearing
cowboy hats and a shirt and bandana with the confederate
flag -- captioned, "5 minutes after Trump legalizes weed in
all 50 states"; and
3. A shared post of two photographs, one depicting Black
men posing with guns captioned, "Don't glorify shooting
people," and the other showing distraught Black men
captioned, "Then cry like a bitch when someone you love
gets shot."
11Some posts indicate that Doyle's "check in" location was
a State court house. "A . . . check in is a post linked to a
location . . . ." John, How to Check in on Facebook from a
Desktop or Mobile Device, Bus. Insider (Apr. 29, 2019),
https://www.businessinsider.com/guides/tech/how-to-check-in-on-
facebook [https://perma.cc/9WHS-5FAE].
12The term "thug" has been described by one linguist as a
"nominally polite way of using the N-word." The Racially
Charged Meaning Behind the Word "Thug," NPR (Apr. 30, 2015),
https://www.npr.org/2015/04/30/403362626/the-racially-charged-
meaning-behind-the-word-thug [https://perma.cc/34K5-VD4C].
13 Doyle's court house posts included the following:
1. Doyle's statement referencing winning a trial for a
seventy-six year old Italian national stopped for speeding,
followed by Doyle's comment stating, "I can walk away from
this one without feeling dirty. Doesn't happen much," and
Doyle's reply of "Hell yeah" to a comment asserting, "U
love bathing in the filth, as long as it's green";
2. Doyle stating, "Beat another gun case today," followed
by a comment stating, "It was someone else's shotgun.
Client not a bad guy," and Doyle's response
"Absofuckinglutely right, Chief! Job security in the
Roxbury District Court" to a comment that stated, "Don't
worry he'll be retaining you again soon";
9
In 2017, CPCS investigated a complaint against Doyle and
concluded, based on the social media posts, that Doyle violated
his duty of loyalty to his Muslim and "other non-Caucasian"
clients; CPCS suspended Doyle from criminal case assignments for
a period of one year and required Doyle to take ethics and
cultural competency courses.14
The defendant was unaware of Doyle's bigotry until 2021,
well after his agreement to the plea deal, when he was shown
Doyle's posts; prior to that time, the defendant did not
attribute Doyle's comments regarding the defendant's religious
garb to racism or to animus against persons of the Muslim faith.
3. Doyle's statement, "Not Guilty. Firearm. Makes you
feel a whole lot safer, huh?" along with a series of
comments in which Doyle stated, "I went to the dark side,"
"Between you and me, he should stop gang-banging," and "He
wanted his cell phones (with business contacts, no doubt)
and his baseball hats back. I told him to go home and
Jerry off. . . . Jerk off, that is";
4. A "check in" by Doyle at "Suffolk County Superior
Court," stating, "Poor, misguided children," and a comment
by Doyle stating, "Waaaaaahhhhhh!!!!!!";
5. A "check in" by Doyle from "Suffolk County Courthouse,"
stating, "Assorted thugs and bad guys"; and
6. Doyle's statement, "Yesterday, a 21 y.o. punk client
told me: 'I don't like your attitude, Doyle,'" followed by
Doyle's comments saying, "I told him to come back with a
new lawyer or a toothbrush," and ". . . soap on a rope for
a going away present . . . ."
14Doyle died in March 2021, before the defendant filed his
motion for a new trial.
10
After learning of the posts, the defendant filed a motion for a
new trial and for leave to withdraw his guilty pleas; he
claimed, inter alia, that Doyle had an actual conflict of
interest and thus Doyle's representation of him violated his
right to the effective assistance of counsel under art. 12 of
the Massachusetts Declaration of Rights and the Sixth Amendment
to the United States Constitution.
After an evidentiary hearing, the motion judge denied the
motion. She concluded that absent a showing of prejudice or
"any showing that [Doyle's] views affected [his] representation
of the defendant," the defendant was not entitled to withdraw
his guilty plea.15 Rejecting the defendant's argument that
15Applying the usual framework to assess claims of
ineffective assistance of counsel, which requires determination
"whether there has been serious incompetency, inefficiency, or
inattention of counsel -- behavior of counsel falling measurably
below that which might be expected from an ordinary fallible
lawyer -- and, if that is found, then, typically, whether it has
likely deprived the defendant of an otherwise available,
substantial ground of defence," Commonwealth v. Saferian, 366
Mass. 89, 96 (1974), the motion judge found no evidence to
suggest that the defendant was coerced into accepting the plea
or that the plea offer was unreasonable. Notably, the
trafficking charges carried a minimum sentence of five years in
State prison and a maximum sentence of twenty years. G. L.
c. 265, § 50 (a). The rape charge, which was dismissed pursuant
to the parties' plea deal, would have carried a term of "not
more than twenty years" in State prison. G. L. c. 265,
§ 22 (b). See Commonwealth v. DeJesus, 468 Mass. 174, 183
(2014), quoting Commonwealth v. Clarke, 460 Mass. 30, 47 (2011),
abrogated in part by Chaidez v. United States, 568 U.S. 342(2013) (typically prejudice prong requires showing that "there
is a reasonable probability that a different plea bargain . . .
11
nonetheless he was entitled to withdraw his plea because Doyle
had an actual conflict of interest in representing Black, Muslim
individuals, the judge explained that defense counsel and his or
her client need not "share the same worldview," that "criminal
defense attorneys often have to represent people who in their
opinion have committed reprehensible acts," and that "a lawyer
who expresses racist views in his personal life" is not
"presumed ineffective any time that he or she represents a
client of color."16 The defendant timely appealed, and this
court granted his application for direct appellate review.
2. Discussion. a. Standard of review. "[W]e review a
judge's denial of a defendant's motion for a new trial to
determine whether there has been a significant error of law or
other abuse of discretion." Commonwealth v. Tate, 490 Mass.
501, 505 (2022), quoting Commonwealth v. Caldwell, 487 Mass.
370, 374 (2021). "Where an evidentiary hearing is conducted on
a motion for a new trial, we 'accept the [judge's] findings
where they are supported by substantial evidence in the record,'
could have been negotiated at the time"). The defendant does
not challenge this conclusion on appeal.
16The judge found "[p]erhaps most important" that "the
defendant himself did not draw a connection between Doyle's
expressed distaste for his wearing a kufi and any advice that
Doyle gave him in accepting a plea," concluding that "no matter
how disturbing Doyle's personal views were, there [was] no
indication in the factual record . . . that they influenced
Doyle's representation of the defendant."
12
and we 'defer to the judge's assessment of the credibility of
witnesses.'" Tate, supra, quoting Commonwealth v. Jacobs, 488
Mass. 597, 600 (2021). However, we "make an independent
determination as to the correctness of the judge's application
of constitutional principles to the facts as found." Caldwell,
supra, quoting Commonwealth v. Tremblay, 460 Mass. 199, 205
(2011).
b. Effective assistance of counsel. It is difficult to
overstate the essential importance of the right to counsel17 in
our adversary system of criminal justice. See United States v.
Cronic, 466 U.S. 648, 653 (1984) (accused person's right to
counsel "is a fundamental component of our criminal justice
system"). The procedural and substantive safeguards that define
our criminal justice system and are designed to assure that the
accused receives fair proceedings and a fair trial largely would
17 The fundamental right to counsel has "deep roots in
Massachusetts history": "[a]s early as the 1790s, this court
began appointing defense counsel for defendants in capital cases
tried before it." Carrasquillo v. Hampden County Dist. Courts,
484 Mass. 367, 371 & n.4 (2020), citing Commonwealth v. Hardy, 2
Mass. 303, 303 (1807). The right to counsel is secured both by
the Sixth Amendment to the United States Constitution, which
provides that "[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his
defence," and by art. 12 of the Massachusetts Declaration of
Rights, which provides that "every subject shall have a right
. . . to be fully heard in his defense by himself, or his
counsel at his election." We have often noted that art. 12
provides "greater safeguards" than those provided by the Sixth
Amendment. See Commonwealth v. Hodge, 386 Mass. 165, 169
(1982).
13
be for naught if the accused were left to fend for him- or
herself without the assistance of counsel to navigate and
exercise his or her rights. Gideon, 372 U.S. at 344-345. See
Cronic, supra at 653-654 ("Of all the rights that an accused
person has, the right to be represented by counsel is by far the
most pervasive for it affects his ability to assert any other
rights he may have" [citation omitted]; counsel's assistance is
"the means through which the other rights of the person on trial
are secured"). The right to be heard, and even the right to a
trial itself, "would be, in many cases, of little avail if it
did not comprehend the right to be heard by counsel." Powell v.
Alabama, 287 U.S. 45, 68-69 (1932). See Cronic, supra at 653
n.8, quoting Powell, supra at 69 (accused person "requires the
guiding hand of counsel at every step in the proceedings against
him").18
"The very premise of our adversary system of criminal
18See United States v. Ash, 413 U.S. 300, 307 (1973) ("The
function of counsel as a guide through complex legal
technicalities long has been recognized by this Court");
Argersinger v. Hamlin, 407 U.S. 25, 31 (1972) ("The assistance
of counsel is often a requisite to the very existence of a fair
trial"). See also Commonwealth v. Leiva, 484 Mass. 766, 779
(2020) ("The right to counsel is critical to secure a
defendant's right to a fair trial"); Abodeely v. County of
Worcester, 352 Mass. 719, 723 (1967) ("The defence and trial of
a criminal case today is a complicated and time-consuming
business. If we are to provide proper prosecution we must also
provide appropriate defence under the Constitution as it has
been interpreted").
14
justice is that partisan advocacy on both sides of a case will
best promote the ultimate objective that the guilty be convicted
and the innocent go free."19 Herring v. New York, 422 U.S. 853,
862 (1975). "Unless the accused receives the effective
assistance of counsel, 'a serious risk of injustice infects the
[criminal] trial [process] itself.'"20 Cronic, 466 U.S. at 656,
quoting Cuyler v. Sullivan, 446 U.S. 335, 343 (1980). See
United States v. Ash, 413 U.S. 300, 309 (1973), quoting Johnson
v. Zerbst, 304 U.S. 458, 462-463 (1938) (right to counsel
"minimize[s] the imbalance in the adversary system" and
"embodies a realistic recognition of the obvious truth that the
average defendant does not have the professional legal skill to
protect himself when brought before a tribunal with power to
take his life of liberty, wherein the prosecution is presented
by experienced and learned counsel"). In short, lawyers in
criminal cases are "necessities, not luxuries." Cronic, supra
19See Polk County v. Dodson, 454 U.S. 312, 318 (1981) ("The
system assumes that adversarial testing will ultimately advance
the public interest in truth and fairness"); Gardner v. Florida,
430 U.S. 349, 360 (1977) (plurality opinion) (affirming "belief
that debate between adversaries is often essential to the truth-
seeking function of trials").
20Relevant to the issues presented by this case, the right
to effective assistance of counsel attaches well before trial
and applies to the plea-bargaining process. See Commonwealth v.
Fernandes, 390 Mass. 714, 715 (1984) ("the plea is valid only
when the defendant offers it . . . with the advice of competent
counsel"). See also Lafler v. Cooper, 566 U.S. 156, 162 (2012)
(right to counsel "extends to the plea-bargaining process").
15
at 653, quoting Gideon, 372 U.S. at 344. See Gideon, supra (it
is "an obvious truth" that "in our adversary system of criminal
justice, any person haled into court, who is too poor to hire a
lawyer, cannot be assured a fair trial unless counsel is
provided for him").21
c. Conflict of interest. Given the primacy of counsel
towards the realization of fair proceedings and a fair trial in
our adversarial system, the constitutional guarantee entitles an
accused person "to the untrammeled and unimpaired assistance of
counsel free of any conflict of interest and unrestrained by
commitments to others" and other causes (citation omitted).
Commonwealth v. Hodge, 386 Mass. 165, 167 (1982). See
21Because of the special value we place on the role of
counsel in ensuring that the accused receives the benefits of
the procedural and substantive safeguards that define our
criminal justice system, the "constitutional guarantee of the
assistance of counsel 'cannot be satisfied by mere formal
appointment.'" Lavallee, 442 Mass. at 235, quoting Avery v.
Alabama, 308 U.S. 444, 446 (1940). Instead, the constitutional
right to counsel "entitle[s] a defendant to the effective
assistance of counsel" (emphasis added). Commonwealth v.
Perkins, 450 Mass. 834, 850 (2008), quoting Commonwealth v.
Martinez, 425 Mass. 382, 387 (1997). See Strickland, 466 U.S.
at 686, quoting McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970) (right to counsel in criminal case is "right to the
effective assistance of counsel"). In other words, "[a]n
accused is entitled to be assisted by an attorney, whether
retained or appointed, who plays the role necessary to ensure
that the trial is fair." Lavallee, supra, quoting Strickland,
supra at 685. "To hold otherwise, 'could convert the
appointment of counsel into a sham and nothing more than a
formal compliance with the Constitution's requirement that an
accused be given the assistance of counsel.'" Cronic, 466 U.S.
at 654, quoting Avery, supra.16
Strickland, 466 U.S. at 688 ("Counsel's function is to assist
the defendant, and hence counsel owes the client a duty of
loyalty . . ."); Commonwealth v. Perkins, 450 Mass. 834, 850
(2008) (defendant must "be able to seek the advice and guidance
of his attorney and . . . to rely on the undivided loyalty of
his counsel to present the defense case with full force and
zealousness" [citation omitted]). See also Commonwealth v.
Leiva, 484 Mass. 766, 779 (2020) ("That foundational proposition
tying partisan advocacy to just results demands an accused's
access to defense counsel who projects [t]he manifest appearance
of a believer in the defendant's chosen plea of 'not guilty'
. . . and delivers on the constitutional guaranty that a
defendant need not stand alone against the State at any stage of
the prosecution . . . where counsel's absence might derogate
from the accused's right to a fair trial" [quotations and
citations omitted]).
Accordingly, "under art. 12, if a defendant establishes an
actual conflict of interest,[22] he is entitled to a new trial
22An actual conflict of interest arises where "the lawyer
has a competing interest or responsibility that 'will materially
interfere with the lawyer's independent professional judgment in
considering alternatives or foreclose courses of action that
reasonably should be pursued on behalf of the client.'"
Perkins, 450 Mass. at 851-852, quoting Comment [4] to Mass. R.
Prof. C. 1.7, 426 Mass. 1330 (1998). See Perkins, supra at 854(counsel had actual conflict of interest where he agreed to wear
wireless microphone during trial permitting documentary producer
17
without a further showing; he need not demonstrate that the
conflict adversely affected his lawyer's performance[23] or
resulted in actual prejudice," Commonwealth v. Mosher, 455 Mass.
811, 819 (2010); the standard from Commonwealth v. Saferian, 366
Mass. 89, 96 (1974),24 which generally governs ineffective
assistance of counsel claims, is inapt because, where counsel
has an actual conflict of interest, the criminal trial process
"loses its character as a confrontation between adversaries,"
Cronic, 466 U.S. at 656-657. See id., quoting United States ex
rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir.), cert.
denied sub nom. Sielaff v. Williams, 423 U.S. 876 (1975) ("While
a criminal trial is not a game in which the participants are
expected to enter the ring with a near match in skills, neither
is it a sacrifice of unarmed prisoners to gladiators"). See
also Commonwealth v. Valentin, 470 Mass. 186, 196 (2014) (such
to record interactions, including privileged discussions, with
defendant). See also Commonwealth v. Mosher, 455 Mass. 811, 820
n.19 (2010) ("Courts frequently consult standards laid out in
applicable codes of professional ethics in considering whether
an actual conflict exists"). The analysis whether an actual
conflict arose is case-specific. See Commonwealth v. Cousin,
478 Mass. 608, 618 (2018), S.C., 484 Mass. 1042 (2020) ("We look
to the attendant facts and circumstances surrounding the claimed
actual conflict").
23By contrast, a defendant asserting an actual conflict of
interest under the Sixth Amendment must show that the conflict
"adversely affected" counsel's representation, although
"prejudice" need not be shown. See Cuyler, 446 U.S. at 349-350.
24 See note 15, supra.
18
errors "render the adversary process itself presumptively
unreliable" such that "a criminal trial [is] fundamentally
unfair or an unreliable vehicle for determining guilt or
innocence" [quotations and citations omitted]); Commonwealth v.
Goewey, 452 Mass. 399, 403 & n.3 (2008) ("relief can be granted
without consideration of the merits of the defendant's
underlying claims" in "limited class of cases" in which "the
attorney abdicated his responsibility as the defendant's
advocate").
A defense counsel makes countless choices, on and off the
record, to protect a defendant's rights, and we rely on
counsel's zealous advocacy, unimpeded by a conflict of interest,
to ensure that no person is punished without fair proceedings;
when a counsel's professional judgment is impaired by an actual
conflict of interest, every action, and inaction, is called into
question, and we cannot be confident that the outcome of the
proceedings is fair and just. "[T]he effect of the conflict on
the attorney's representation of the defendant is likely to be
pervasive and unpredictable, while the difficulty of proving it
may be substantial, 'particularly as to things that may have
been left not said or not done by counsel.'" Mosher, 455 Mass.
at 819, quoting Hodge, 386 Mass. at 170. In other words, "[i]t
is impossible to know what different choices [a nonconflicted]
counsel would have made, and then to quantify the impact of
19
those different choices on the outcome of the proceedings."
Commonwealth v. Francis, 485 Mass. 86, 101 (2020), cert. denied,
141 S. Ct. 2762 (2021), quoting United States v. Gonzalez-Lopez,
548 U.S. 140, 150 (2006). See Holloway v. Arkansas, 435 U.S.
475, 490-491 (1978) (conflict bears on what "the advocate finds
himself compelled to refrain from doing" and so is "difficult to
judge intelligently" because "to assess the impact of a conflict
of interests on the attorney's options, tactics, and decisions
in plea negotiations would be virtually impossible," requiring
"unguided speculation").
In such circumstances, the conflict has "infect[ed] the
defendant's representation to the point where 'prejudice is
"inherent in the situation," such that no impartial observer
could reasonably conclude that the attorney is able to serve the
defendant with undivided loyalty.'" Commonwealth v. Cousin, 478
Mass. 608, 617 (2018), S.C., 484 Mass. 1042 (2020), quoting
Mosher, 455 Mass. at 819-820. See Perkins, 450 Mass. at 850(defendant "must be able to rely on the undivided loyalty of his
counsel" [citation omitted]). See also Commonwealth v. Goldman,
395 Mass. 495, 508, cert. denied, 474 U.S. 906 (1985)
("Counsel's undivided loyalty to the client is crucial to the
integrity of the entire adversary system"). Accordingly,
"[w]here the defendant's counsel has labored under an actual
. . . conflict, . . . we are unwilling to put a defendant 'to
20
the burden, perhaps insuperable, of probing the resolve and the
possible mental conflict of counsel.'"25,26 Mosher, supra at 819,
quoting Commonwealth v. Cobb, 379 Mass. 456, 461 (1980), vacated
sub nom. Massachusetts v. Hurley, 499 U.S. 809 (1980), appeal
dismissed, 382 Mass. 690 (1981). See Cronic, 466 U.S. at 658
25We have acknowledged an actual conflict of interest --
requiring no showing of prejudice -- in several circumstances.
See Commonwealth v. Leslie, 376 Mass. 647, 653 & nn.11, 12, 13
(1978), cert. denied, 441 U.S. 910 (1979). An actual conflict
of interest exists when the attorney represents a codefendant
with inconsistent or contradictory lines of defense. See id. at
653 n.11, citing Commonwealth v. Bolduc, 375 Mass. 530, 540-543
(1978); Bolduc, supra at 540-541 ("The joint representation of
clients with conflicting interests is a denial of Sixth
Amendment rights"). Similarly, a conflict exists when the
attorney maintains an attorney-client or direct and close
personal relationship with a material prosecution witness. See
Leslie, supra at 653 n.13, citing Commonwealth v. Smith, 362
Mass. 782 (1973); Smith, supra at 784 ("An attorney representing
both the defendant and a prosecution witness who is awaiting
sentence may be hindered in the cross-examination of the
witness"). And we have found that a conflict exists when the
attorney has business or personal reasons for preferring a
verdict unfavorable to the defendant. See Leslie, supra at 653
n.12, citing United States v. Hurt, 543 F.2d 162 (D.C. Cir.
1976), and People v. Corona, 80 Cal. App. 3d 684, 719-727
(1978); Hurt, supra at 166 (appellate counsel argued rehearing
while being sued by trial counsel for libel as to appellate
argument); Corona, supra at 704, 719-720 (trial counsel's
literary contract "called for . . . holding a lengthy and
sensational trial at any price . . . to increase the financial
potential of the acquired publication rights," and to forgo
defenses of mental incompetence or legal insanity).
26 Where no actual conflict exists, "an attorney's personal
interests or obligations may still give rise to a 'potential'
conflict," Mosher, 455 Mass. at 823, which requires reversal
upon an additional showing of "material prejudice," Tate, 490
Mass. at 509, quoting Commonwealth v. Shraiar, 397 Mass. 16, 20
(1986).
21
(representation by conflicted counsel is "so likely to prejudice
the accused that the cost of litigating [its] effect in a
particular case is unjustified").
d. Racist, anti-Muslim animus. Doyle's animus against
persons of the Muslim faith and his racism against Black
persons, demonstrated by his social media posts (some of which
were made at the court house while he was serving clients in his
professional capacity), and manifest in his treatment of the
defendant -- a Black, Muslim man -- during the representation,
presented an actual conflict of interest in this case.27 Doyle's
social media postings "exhibited an intensity of bias that
cannot be squared with []neutral decision making," Ellis v.
Harrison, 947 F.3d 555, 563 (9th Cir. 2020) (Nguyen, J.,
concurring), as his other overt acts during the representation
confirm. The defendant has shown that Doyle's biases infected
his representation of the defendant. The record developed by
the defendant shows more than a few stray social media postings,
or comments made in the wake of highly charged emotional or
shocking events, untethered to Doyle's conduct during the
27We reference these manifestations, as does the defendant,
to demonstrate the defendant's showing of an actual conflict of
interest. Because he has shown an actual conflict of interest,
he need not show any prejudice, as discussed supra. We need not
reach the hypothetical question, raised by the concurring
justice, whether, in the absence of this evidence, a
hypothetical defendant would have met his or her burden to show
an actual conflict.
22
defendant's representation. See id. ("I do not suggest that
every attorney who utters a racial epithet will be unable to
adequately defend clients of a different race"). Instead, the
defendant has shown a pattern of posts reflecting the intensity
of Doyle's bias, coupled with a record that Doyle was unable to
divorce his animus from his conduct as the defendant's counsel.
Although we cannot know with certainty whether Doyle's
actions or inactions during the course of the representation
were "motivated by anything other than [the defendant's] best
interest," Hodge, 386 Mass. at 168, on the record before us, we
cannot credibly assume that Doyle's representation was not
affected by his virulent anti-Muslim and racist views, see
Ellis, 947 F.3d at 562 (Nguyen, J., concurring) (when defense
counsel makes "discretionary decisions in disregard of the
client's interests on account of counsel's racism, the
cumulative effect will be to impair the defense, but there is no
way to pinpoint how it does so"). Importantly, we cannot know
whether an attorney who did not share the animus Doyle harbored
for persons of the Muslim faith and Black persons would have
negotiated a better plea agreement. Nor can we know whether
Doyle's other actions in the case were unaffected by his views
regarding Black, Muslim individuals. Where, as the record shows
was the case here, counsel harbors a deep-seated animus for
23
persons of the defendant's race28 or religion, we cannot presume
zealous advocacy; nor can we ask the defendant to prove how his
counsel's bigotry might have affected the plea deal or otherwise
impaired the representation, especially in view of the record
that Doyle's bias reared its head in connection with his
treatment of the defendant.29 There are "many invisible ways in
which counsel's bias could have affected the [proceeding],"
Ellis, supra at 563 (Nguyen, J., concurring), and the defendant
need not engage in "a speculative inquiry into what might have
occurred in an alternate universe" had he been appointed
unbiased counsel, Francis, 485 Mass. at 101, quoting Gonzalez-
Lopez, 548 U.S. at 150.
28Notably, Gideon and other seminal cases involving the
right to counsel were decided during the heart of the civil
rights era, as courts considered the protection of a broad range
of rights, including the right to equal protection of the law.
See Henning, Race, Paternalism, and the Right to Counsel, 54 Am.
Crim. L. Rev. 649, 649 & n.3 (2017), citing Neuborne, The
Gravitational Pull of Race on the Warren Court, 2010 Sup. Ct.
Rev. 59, 86 ("Decided during the heart of the Civil Rights era,
[Gideon was] implicitly -- although not explicitly -- concerned
about the way [B]lack defendants were treated in the criminal
and juvenile justice systems . . ."). See also Chin, Race and
the Disappointing Right to Counsel, 122 Yale L.J. 2236, 2239 &
n.5 (2013) (collecting scholarship concluding that "Gideon was a
race case" despite Gideon himself being white).
29That the defendant here had a particularly thick skin and
did not recognize Doyle's bigotry at the time is of no import.
The standard for a conflict of interest is whether "no impartial
observer could reasonably conclude that the attorney is able to
serve the defendant with undivided loyalty." Mosher, 455 Mass.
at 819-820.
24
We recognize that "[c]riminal defense attorneys are
accustomed to representing individuals who commit reprehensible
acts, and we assume that they can set aside any personal
distaste for such clients during the representation."30 Ellis,
947 F.3d at 563 (Nguyen, J., concurring). Here, however, Doyle
did not leave his deep-seated bigotry at the court house door,
despite his duty of loyalty to the defendant; to the contrary,
consistent with his contemporaneous anti-Muslim, anti-Black
social media postings and his court house "check ins," Doyle
ordered the defendant to stop wearing his religious garb and
refused to meet with the defendant, choosing instead to forgo
the opportunity to discuss the merits of the criminal case, upon
seeing that the defendant was wearing his kufi. Our confidence
that the defendant was afforded a constitutionally fair process
is necessarily undermined. See id. at 562 (Nguyen, J.,
concurring) ("A trial is fundamentally unfair if defense counsel
harbors extreme and deep-rooted ill will toward the defendant on
account of his race"). Given Doyle's treatment of the
defendant, we conclude that the defendant has more than met his
burden to establish that Doyle's representation of him was
30Doyle did not simply adhere to a different "worldview" or
merely dislike the offenses the defendant was accused of
committing. Racism and bigotry -- here, disdain for persons
because of their race and religion -- are different in kind from
disapproval of a person's actions or opinions.
25
impaired by an actual conflict of interest. See Commonwealth v.
Shraiar, 397 Mass. 16, 20 (1986) (defendant bears burden to
establish actual conflict of interest).
3. Conclusion. The order denying the defendant's motion
for a new trial is reversed.31 The defendant's convictions are
vacated, the defendant is to be permitted to withdraw his guilty
plea, and the case is remanded for a new trial.
So ordered.
31Because we hold that defense counsel had an actual
conflict of interest mandating reversal, we need not address the
defendant's alternative arguments that the appointment of Doyle
violated his rights to equal protection and due process.
CYPHER, J. (concurring). The numerous, severe, and cruel
racist and anti-Muslim social media posts and commentary by
Attorney Richard Doyle recited by the court easily establish an
actual conflict of interest that deprived the defendant of his
constitutional right to effective assistance of counsel. I
agree with the court that no impartial observer reasonably could
conclude that counsel was able to serve the defendant with
undivided loyalty. See Commonwealth v. Mosher, 455 Mass. 811,
819-820 (2010).
I write separately to emphasize that once an actual
conflict has been established there is no need to prove that the
actual conflict prejudiced the defendant. There is a clear line
between actual and potential conflicts of interest and Attorney
Doyle's behavior toward the defendant, which, while adding
context to the discussion, is not necessary to determine whether
there was an actual conflict. Cf. Ellis v. Harrison, 947 F.3d
555, 563 (9th Cir. 2020) (Nguyen, J., concurring) ("I do not
suggest that every attorney who utters a racial epithet will be
unable to adequately defend clients of a different race").
Where the defendant has demonstrated an actual conflict of
interest, art. 12 of the Massachusetts Declaration of Rights
requires neither a showing of prejudice nor a showing that the
conflict adversely affected counsel's performance. Commonwealth
v. Holliday, 450 Mass. 794, 806 (2008). See Commonwealth v.
2
Cousin, 478 Mass. 608, 617 (2018) (actual conflict requires no
showing of prejudice by defendant because prejudice is
inherent). Compare Commonwealth v. Watkins, 473 Mass. 222, 235
(2015) ("If a defendant establishes only a potential or tenuous
conflict of interest, however, the conviction will not be set
aside unless the defendant demonstrates that the conflict
resulted in actual prejudice" [emphasis added]), with Mosher,
455 Mass. at 819 (where defendant "establishes an actual
conflict of interest, he is entitled to a new trial without a
further showing").
I also write separately because the nature of this conflict
and its potential scope require that we recognize that not only
the defendant is affected. Public confidence in the integrity
of the criminal justice system is essential to its ability to
function. See Georgia v. McCollum, 505 U.S. 42, 49 (1992). We
must be aware of and concerned with the confidence of not just
this defendant, and not just all Black and Muslim clients
represented by Attorney Doyle, but rather all Black persons and
members of the Muslim faith in our community, not simply those
who have come into contact with the criminal justice system.
See Commonwealth v. Goldman, 395 Mass. 495, 508 (1985) (defense
counsel's undivided loyalty to client is crucial to integrity of
entire adversarial system). In fact, all of the people of the
Commonwealth can be affected by a loss of confidence in the
3
justice system in circumstances such as these when they come to
light. The court's decision today serves to encourage us all
that the court system is able to respond in a manner that
strengthens that confidence.