Scholarship@WashULaw

Document Type

Article

Language

English (en)

Publication Date

2023

Publication Title

Criminal Justice (ABA Criminal Justice Section)

Abstract

Whether a defense lawyer being biased against the accused on the basis of race and religion renders assistance of counsel ineffective is an unanswered question. One court will decide that issue when the Massachusetts Supreme Judicial Court renders a decision in Commonwealth of Massachusetts v. Dew. In this case, a court-appointed attorney, Richard Doyle, made over 20 bigoted and racist social media posts while representing his Black Muslim client, Anthony Dew. These public postings, made from 2014 through 2017, contained highly disparaging references to Muslims and Black people, including comments about Doyle’s own Black clients as “[a]ssorted thugs and bad guys” and reference to a specific client’s “gangbanging.” These and other bigoted and racists posts were discovered after Dew was convicted in 2016.

Conflict of interest issues arise in criminal cases in many contexts, but this appears to be the first case to address whether a defendant has the right to unbiased counsel. Typical conflicts of interest involve conflicts between two or more current or former clients. There are few reported instances of a conflict of interest between the personal interests of the lawyer and the client’s interests in criminal cases. One such example is a defense lawyer having sex with a client while a case is pending, which, if discovered, will lead to the lawyer being taken off the case. The attorney is prevented from continuing the representation because the risk is too high that the lawyer’s personal interest will impair the representation, effectively denying the client the right to counsel.

Is the risk that a lawyer’s racial and religious biases against certain clients similarly so high that it should be treated as effectively denying the right to counsel? In this paper, we examine the policies behind conflict of interest rules and explore the likelihood that the Massachusetts high court will determine that the right to counsel demands unbiased counsel.

Keywords

Bias, Right to Counsel, Ethics, Professional Responsibility, Sixth Amendment

Publication Citation

Peter A. Joy & Kevin C. McMunigal, The Right to (Unbiased) Counsel Ethics, 38 Crim. Just. 58 (2023)

Download

Share

COinS