Court: Defendant Should Receive New Trial in Cocaine Conspiracy Case

A downstate defendant whose constitutional right to chose his attorney was violated by a trial judge, should receive a new trial in his cocaine conspiracy case, a federal appeals court ruled Tuesday.

The 7th U.S. Circuit Court of Appeals vacated Roosevelt Turner's conviction and 30-year prison sentence, while also remanding the case for retrial.

Chief U.S. District Judge David R. Herndon of the Southern District of Illinois had presided over Turner's case.

Herndon had disqualified Turner's retained attorney because that lawyer also represented an alleged co-conspirator in sentencing proceedings. Turner's attorney on appeal asserted that Herndon's disqualification of St. Louis lawyer Irl B. Baris violated Turner's Sixth Amendment right to choose a lawyer to represent him.

The 7th Circuit panel agreed that Herndon violated Turner's right to counsel of his choice.

"In short, there is nothing in this record to suggest that the potential conflict of interest identified by the district court had a serious likelihood of maturing into an actual conflict," Judge Diane S. Sykes wrote for the three-judge 7th Circuit panel in Tuesday's decision. "Nor is there anything to support a conclusion that the conflict was sufficiently severe that Turner's right to effective counsel would be jeopardized."

The underlying case arose from the February 2005 indictment of Turner and eight others for conspiring to distribute cocaine in and around Alton.

Another defendant, Anthony Womack, had hired Baris to represent him at sentencing. Womack received a 151-month prison sentence.

Turner was arrested in June 2006, and his family hired Baris, a St. Louis lawyer, to represent him.

Baris has worked as a criminal defense lawyer since 1948 and as an adjunct professor of criminal trial practice and procedure at Washington University School of Law in St. Louis for the past 25 years, according to Tuesday's decision.

Prosecutors did not specifically ask Herndon to disqualify Baris. Instead, prosecutors suggested that Baris' joint representation of Turner and Womack created an insurmountable conflict of interest requiring Baris' disqualification from Turner's case.

Both Turner and Womack waived any conflict of interest by Baris, Tuesday's decision said. Baris also asserted that no conflict existed because neither Turner nor Womack wanted to assist prosecutors.

Herndon's "decision to disqualify was based on the mere possibility that either Womack or Turner might have a change of heart and decide to assist the government against the other," Tuesday's decision said.

"This does not amount to an actual conflict," the decision added.

The 7th Circuit panel noted that the chance for a conflict of interest exists in nearly all cases of joint representation.

Herndon's order was "premised on a mistake regarding the applicable legal standard, which is necessarily and abuse of discretion," the panel said.

Chief Judge Frank H. Easterbrook and U.S. District Judge Virginia M. Kendall, who sat by designation on the 7th Circuit, joined in Tuesday's 19-page opinion. U.S. v. Roosevelt Turner, No. 08-2350.

Christopher J. Coulson, an associate with Kirkland & Ellis LLP, who argued Turner's case on a pro bono basis before the 7th Circuit, said he was pleased with Tuesday's decision. Paul R. Garcia, a Kirkland & Ellis partner, also represented Turner on appeal.

Michael C. Carr, an assistant U.S. attorney in Benton, argued the government's case on appeal. A representative of the U.S. attorney's office for the Southern District of Illinois declined comment about Tuesday's decision.

Reprinted with permission from the Chicago Daily Law Bulletin. All rights reserved.