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Judge’s lax inquiry leads to new trial

A man convicted of transporting more than 240 pounds of marijuana in Cochise County with another person will get a new trial because he didn’t have his own attorney.

The Arizona Supreme Court acknowledged that David J. Duffy did consent to being represented by Ivan Abrams even though Abrams was representing co-defendant Dora Matias.

But Justice Clint Bolick, writing for the unanimous court, said Cochise County Superior Court Judge James Conlogue should never have allowed that, at least not without further review. Bolick said that precluded some defense options for Duffy.

Court records show Duffy was driving his vehicle in Cochise County in 2017 with Matias in the passenger seat.

During a traffic stop, an officer noticed burlap-wrapped bundles in the back seat. After placing the pair under arrest, the testing showed the bundles had more than 240 pounds of marijuana.

In a separate interview, Matias initially confessed she had picked up the marijuana and expected to be paid for doing so. But she maintained that Duffy did not know about the transaction and was merely driving her.

He separately claimed to be unaware of plans to pick up drugs, explaining that any discussion he overheard was in Spanish, which he did not understand.

Matias later retracted her confession.

Both were indicted on charges of conspiracy, possession and transportation of marijuana for sale.

At the arraignment, the prosecutor said he had “real concern” about one attorney representing both “in a case where there are obviously competing defenses.”

But Abrams dismissed those concerns, saying they essentially had “a common defense agreement” and had signed a waiver of potential conflict after being advised of their rights. Bolick said the trial judge made no further inquiries.

Both were convicted, with Duffy sentenced to three concurrent prison terms, the longest of which is six years.

Bolick said that conviction cannot stand.

“Representation of multiple criminal defendants by the same attorney sometimes may be strategically warranted, but it raises conflict of interest risks,” he wrote.

The justice also said the Sixth Amendment right to legal counsel — and a conflict-free legal counsel — can be waived.

But Bolick said that requires a finding the defendant “knows what he is doing and his choice is made with eyes open.” And that, he said, places an obligation on the trial judge to conduct a meaningful inquiry into the conflict, something that did not happen here, even after the prosecutor raised the issue.

“Here, had the court conducted the requisite inquiry, it likely would have discovered the nature of the conflict and how it would have adversely affected Duffy,” Bolick wrote.

For example, he noted, joint representation prevented Duffy’s counsel from emphasizing Matias’ involvement in the crime. And it also precluded Duffy from exploring a plea bargain, possibly in exchange for testimony against Matias.

“Rather, the joint representation forced Duffy to rely on the implausible theory that both defendants were ‘set up,’ which contradicted statements Matias made to police on the night of the arrest and other relevant evidence,” Bolick wrote. “For that reason, unless Duffy was aware of the nature of the conflict and yet chose to waive his right to conflict-free counsel, the joint representation violated that right.”

And here, he said, the trial judge did little more than accept the attorney’s avowal that Duffy was advised on the dangers of joint representation.


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