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THE STATE OF NEW HAMPSHIRESUPREME COURT
No. 2015-0446
State of New Hampshire
V.
Carlos Gonzalez, III
Appeal Pursuant to Rule 7 from Judgmentof the Rockingham County Superior Court
BRIEF FOR THE DEFENDANT
Christopher M. JohnsonChief Appellate DefenderAppellate Defender Program10 Ferry Street, Suite 202Concord, NH 03301NH Bar # 15149603-224-1236(15 minutes oral argument)
TABLE OF CONTENTS
Page
Table of Authorities ii
Question Presented 1
Statement of the Case 2
Statement of the Facts 4
Summary of the Argument 8
Argument
I. THE COURT ERRED IN DISQUALIFYING GONZALEZ’SCHOSEN LAWYERS, WALTER AND ALEXANDRIAJACOBS 9
A. The disqualification of Gonzalez’s chosen lawyersviolated his constitutional rights to counsel 19
1. No conflict of interest existed 25
i. The Rule 1.9 duties-to-former-clients concern 26
ii. The Rules 3.4 and 3.7 lawyer-as-witnessconcern 28
2. Gonzalez’s right to counsel of choice outweighedwhatever potential conflict existed 30
B. The court erred in resolving factual disputeswithout an evidenuaiy hearing 33
Conclusion 35
Supplement Supp. 1-12
1
TABLE OF AUTHORITIES
Page
Cases
State ex rel. Blake v. Hatcher,624 S.E.2d 844 W.Va. 2005) passim
Caplin & Dnrsdale, Chartered v. United States,491 U.S. 617 (1989) 19
Fuller v. Diesslin,868 F.2d 604 (3rd Cir. 1989) 20
Galvin v. Specialized Loan Senricin LLC,No. 15-cv-386-JL (D.N.H. December 9, 2015) 22
Goodrich v. Goodrich,158 N.H. 130 (2008) 26, 27
Horaist v. Doctor’s Hospital of Opelousas,255 F.3d 261 (5th Cir. 2001) 29
Kaley v. United States,571 U.S._, 134 S.Ct. 1090 (2014) 22, 30, 31
Leis v. Flynt,439 U.S. 438 (1979) 20
Luis v. United States,— U.S. —, 136 S.Ct. 1083 (2016) 22
Powell v. Alabama,287 U.S. 45 (1932) 19
State v. Ehlers,631 N.W.2d 471 (Neb. 2001) 30,31,32
State v. Goldsberry,18 A.3d 836 (Md. 2011) 24, 34
State v. Peeler,828 A.2d 1216 (Conn. 2003) 24,31,33
State v. Van Dyck,149 N.H. 604 (2003) 29
11
Sullivan Cnty. Reg. Refuse Dist. v. Town of Acworth,141 N.H. 479 (1996) 27
U.S. Football League v. Nat’l Football League,605 F.Supp. 1448 (S.D.N.Y. 1985) 27
United States v. Collins,920 F.2d 619 (10th Cir. 1990) 20
United States v. Diozzi,807 F.2d 10 (1st Cir. 1986) 23
United States v. Gonzalez-Lopez,548 U.S. 140 (2006) 19, 25
Wheat v. United States,486 U.S. 153 (1988) 19, 21, 22
Statutes
RSA21-M:8-k 11
Constitutional Provisions
New Hampshire Constitution, Part I, Article 15 19
United States Constitution, Sixth Amendment 15, 19
Rules
N.H. Court Rules Annotated, Rules of Professional ConductRule 1.7 11Rule 1.9 passimRule 1.9, cmt. [3] 27Rule3.4 11,13,28Rule3.7 13,28Rule 4.4 12
N.H. Court Rules Annotated, Superior Court RulesRule 19 12, 17, 18Rule 19W) 9, 14, 21
111
Rule19(c).13, 14
Other Authorities
Bruce A. Green, “Through a Glass, Darkly”: How the Court SeesMotions to Disqualify Criminal Defense Lawyers, 89 Colum.LRev. 1201 (1989) 32
iv
QUESTION PRESENTED
Whether the court erred in disqualifying Gonzalez’s chosen lawyers,
Walter and Alexandria Jacobs.
Issue preserved by defense and prosecution pleadings, the hearings on
the issue, and the court’s rulings. A1-A13, A19-A26, A70-A120; Supp. 1-12;
Hi 3; H2 4-10; H4 3-18; 1-16 3-1O.
‘ Citations to the record are as follows:“A” refers to the Appendix flied under separate cover with this brief:“Supp.” refers to the Supplement flied under the same cover with this brief:“HI” refers to the transcript of the hearing held on December 12, 2013:[12” refers to the transcript of the hearing held on April 25, 2014:
“113” relèrs to the transcript of the hearing held on May 22, 2014:“114” refers to the transcript of the hearing held on June 6. 2014:“115” refers to the transcript of the hearing held on August 12, 2014:“[16” refers to the transcript of the hearing held on September 15, 2014:“117” refers to the transcript of the hearing held on May 11, 2015;“T” refers to the consecutively paginated transcript of trial proceedings held on May 12-14,2015;“5” refers to the transcript of the sentencing hearing held on June 18, 2015.
1
STATEMENT OF THE CASE
A Rockingham County grand jury returned fifteen indictments alleging
that Carlos Gonzalez committed the crime of aggravated felonious sexual
assault (“AFSA”) in Salem against L.J., a girl under the age of thirteen, in that
he purposely touched her genitalia by rubbing against her under
circumstances that can reasonably be construed as being for the purpose of
sexual arousal or gratification. T 25-3 1. Because the alleged offenses preceded
the passage of the statute authorizing pattern AFSA charges, each indictment
referred to a single act. T 363. The indictments differed only with respect to the
time period alleged in each.
The first indictment, with respect to the time period it covered, alleged an
offense between May 1 and November 1, 1992. T 26. A second indictment
alleged an offense between November 1, 1992, and April 30, 1993. T 26. Eleven
indictments alleged an act occurring in a single calendar month such that
those indictments cumulatively covered the eleven-month period from May
1993 through March 1994. T 26-3 1. A fourteenth indictment referred to the
following month-and-a-half period between April 1 and May 15, 1994. T 31.
Those fourteen indictments thus cumulatively alleged offenses occurring in
uninterrupted and non-overlapping’ periods between May 1, 1992, and May
15, 1994. A fifteenth indictment constituted a kind of catch-all in that it alleged
the same offense and the entire time period between May 1, 1992, and May 15,
1994. T 25.
‘Except that the day of November 1, 1992, is included in both of the first two above-describedindictments.
2
Gonzalez stood trial over three days in May 2015. After the State rested,
the Court Rvageling, J.) narrowed the charges in certain respects. Noting that
the indictments did not allege, and that the State had not proven, that
Gonzalez and L.J. were not married, and noting also that the statute
eliminating the need to allege and prove a lack of a marital relationship became
effective on January 1, 1993, the court dismissed the charge alleging the May
to November 1992 period. T 363-64. The court further modified the two other
indictments that specified a period beginning in 1992, so that the beginning of
each such indictment’s alleged period was re-stated as January 1, 1993. T 364.
The jury acquitted Gonzalez on all remaining counts except for the two
that alleged a period ending on May 15, 1994. T 394-98. Thus, the jury
convicted only on the catch-all count reframed as alleging an offense between
January 1, 1993, and May 15. 1994, T 394. and on the count alleging an
offense between April 1 and May 15, 1994. T 395.
On the count referring to the period between April 1 and May 15, 1994,
the court sentenced Gonzalez to a stand-committed term of seven to fifteen
years. 5 33-34. On the count referring to the period between January 1, 1993,
and May 15, 1994, the court pronounced a consecutive, suspended sentence of
five to ten years. S 34-35.
3
STATEMENT OF THE FACTS
In the early 1990’s, Carlos Gonzalez married Brenda Chamorro Jimenez2
and became the step-father of her two daughters, L.J. (d/o/b November 8,
1981) and Lisa. T 53-54, 119, 121, 275, 279. For a number of years, the family
lived in Salem, and Jimenez worked at the office of an optometrist while
Gonzalez worked as a police officer in Lawrence, Massachusetts. T 55-59, 119-
27, 276-80. Jimenez also sewed in the Army National Guard, and often spent
one weekend a month working at Otis Air Force Base on Cape Cod. T 61, 125-
26, 278-79. In addition, every year she had to spend two weeks on duty
wherever the Army sent her. T 61, 106, 126, 278.
Jimenez’s brother, Andreas Chamorro, his wife Dominga, and their two
children lived on Cape Cod near Otis Mr Force Base. T 6 1-62, 105, 297, 305.
Jimenez stayed with the Chamorros during her weekends at the base, and
sometimes would bring L.J. and Lisa with her. T 62, 280-8 1, 296-97, 306. On
other occasions, L.J. and Lisa would stay in Salem with Gonzalez. T 63, 280.
L.J. testified that her relationship with Gonzalez was good until shortly
after her first menses, which came when she was ten or eleven years old. T
128, 137, 140-4 1. She testified that, for about a year and a half thereafter on
occasions when nobody else was present, Gonzalez would touch her vagina,
sometimes over and sometimes under her clothes. T 128-37. At times, he
would also position her so that their genital areas rubbed against each other. T
132-33, 142-45, 168-70. L.J. testified that the assaults happened about once a
2 By the time of her trial deposition. Jimenez went by the name Brenda Chamorro. T 274. Forpurposes of clarity, this brief will refer to her as “Jimenez.”
4
month during the latter part of 1993 and early 1994, and less frequently before
then. T 165. In total, she estimated that Gonzalez assaulted her between ten
and fifteen times. T 165-66. Citing the long lapse of time and her efforts over
the years not to think about these events, L.J. could not, with one exception,
describe the alleged assaults in detail. T 236, 252.
The exception involved an event that occurred a week or two before
Jimenez’s May 1994 weekend duty at Otis Mr Force Base. T 240-43. U.
testified that, on that particular occasion, she had just taken a shower and was
alone in the room she shared with Lisa, as Lisa had just gone to the house’s
one bathroom to take her shower. T 56, 241. L.J. recalled that Gonzalez came
into the bedroom, lay down on the bed with her and touched her vagina. T 241-
42.
On the weekend of May 15, 1994, Jimenez, L.J. and Lisa were at the
base on Cape Cod. T 67-68, 145, 281. On that day, Jimenez left L.J. and Lisa
in her car for a number of hours while she reported for duty. T 71, 281. During
that time, L.J. used a sharp object to cut and “destroy” the car’s dashboard
and leather seats. T 69-72, 105, 145-46, 300. When Jimenez returned to the
car and saw the damage, she became angry and drove the girls back to the
Chamorro house. T 72-73, 102-03, 145-47, 282-83. There, after some prodding
for an explanation for L.J.’s destructive behavior in the car and for her seeming
sadness, L.J. disclosed to Dominga that Gonzalez had been molesting her. T
149-50, 216, 3 10-14. Dominga called Jimenez, who returned again from the
base and drove the girls to the home of Jimenez’s sister, Albania Gutierrez, in
5
Lawrence. T 79-83, 153-54, 283-85, 302, 312. There, Jimenez confronted
Gonzalez with the allegation, which he denied. T 84, 153-55, 202, 286-89.
Jimenez then took L.J. to be examined at a hospital in Methuen. T 85-
86, 148, 151, 155, 290. Hospital records from that visit establish the precise
date of L.J. ‘s first allegations. T 264-65. L.J. described the visit to the hospital
as “chaotic,” in that Jimenez seemed intent on a physical examination of L.J.’s
hymen, though L.J. had not claimed penetration. T 155-56. L.J. testified,
though, that no internal examination took place during the hospital visit, and
added that Jimenez seemed to want to cast doubt on the truth of the
allegation. T 156-59, 208-10, 239, 256. In any event, that visit did not result in
a report to law enforcement of the allegation.
L.J. testified that, after the May 15 allegations, Gonzalez never again
touched her sexually. T 135-36. However, L.J., Lisa and Jimenez claimed that
Gonzalez’s attitude toward L.J. changed in that he would belittle and discipline
her in ways that he had not previously done. T 63-65, 89-91, 161, 291. For
example, Gonzalez would refer to L.J. as “the liar in the house,” would
sometimes make her “crawl around the table on her hands and knees and say,
oink, oink, I’m a pig.” and prohibited her from participating in extracurricular
activities at school. T 90-9 1, 107, 29 1-92. Moreover, L.J., Lisa and Jimenez
testified that, after May 15, 1994, Gonzalez treated Lisa much better than he
treated L.J. T 65, 90, 100, 291; but see T 323 (Dominga Chamorro testified
that Gonzalez had always been closer with Lisa and more of a disciplinarian
with L.J., even before the May 1994 event).
6
Around the time of her eighteenth birthday in 1999, L.J. moved out of
the home. T 92-96, 102, 160-61, 172, 193-94. In 2005, she contacted the
police and an officer interviewed her about the allegations. T 211, 243-45, 250.
Jimenez and Gonzalez were then going through a divorce, and in early 2006,
the police interviewed Gonzalez about the allegations. T 342-44. Gonzalez
denied the allegations, attributing them to the “bad divorce” he and Jimenez
were experiencing. T 189, 345-46, 349. Gonzalez also denied ever having heard
before that L.J. had made such allegations against him. T 346-48. In 2011, the
police again interviewed L.J. T 190, 193.
The defense denied the charges. It argued that L.J.’s initial false
allegation could be attributed to a desire to divert attention from the damage
she did to the car, and could have targeted Gonzalez out of a feeling of
resentment about his harsh methods of discipline. T 60, 63, 88, 99, 170, 203,
293, 380-8 1. For example, Lisa testified that Gonzalez would discipline the
children by hitting them and by making them kneel on uncooked rice grains. T
99-100, 108-09. 116-17, 292.
7
SUMMARY OF THE ARGUMENT
The trial court erred in disqualifying Wafter and/or Alexandria Jacobs.
Gonzalez has a right, protected by the United States and New Hampshire
Constitutions, to retain counsel of his choice. The fact that the lawyers would
appear pro hac vice does not diminish that right. The court could only properly
have disqualified them if it would have been proper under the circumstances to
disqualify a New Hampshire lawyer.
None of the reasons given by the court justified disqualification. Neither
lawyer had a conflict of interest requiring their disqualification, because their
representation of Gonzalez would not have violated any duty to a former client,
within the sense of Rule of Professional Conduct 1.9. Moreover, neither was a
necessary witness for the defense, and so their disqualification was not
justified by Rules 3.4 or 3.7. To the extent that some potential conflict existed,
the balance of interests required that the court allow Gonzalez to be
represented by his chosen counsel. Finally, nothing in the circumstances of
Walter’s non-disclosure of his prior discipline as a medical doctor justified his
disqualification. Because the court erred in disqualifying Walter and/or
Alexandria, this Court must reverse Gonzalez’s convictions, as a violation of the
constitutional right to counsel of choice is a structural error not subject to
harmless error analysis.
Even if the circumstances here could justify disqualification, this Court
must nevertheless remand because the trial court did not hold a hearing
adequate to resolve the factual disputes implicated in its reasoning.
8
I. THE COURT ERRED IN DISQUALIFYING GONZALEZ’S CHOSENLAWYERS, WALTER AND ALEXANDRIA JACOBS.
Among the first pleadings filed in the case was a motion, with an
accompanying verified application, seeking permission for Alexandria Jacobs
(hereinafter, “Alexandria”) to appear pro hac vice, along with New Hampshire
lawyer Kurt Olson, as counsel for Gonzalez. A1-A5. The court initially denied
the motion because it asked that Olson be excused from appearing at hearings
in the case, and because it did not provide, as required by Superior Court Rule
19(b)(7), a list of all prior requests made by Alexandria in the preceding two
years to appear pro hac vice in New Hampshire. Al. In due course, she filed an
amended verified application, and the court granted the pro Irnc vice motion.
A6-A8; Hi 3. In March, the defense filed a motion seeking admission pro hac
vice for Walter Jacobs (Walter”), accompanied by a verified application. A9-
A13. Before he practiced law. Walter was a physician. and he is Alexandria’s
father. The court granted that motion. A9.
On April 25, 2014, the day of a scheduled final pre-trial hearing, the
defense filed a number of motions, including one that sought to bar reference
to Walter’s former medical practice and treatment of Gonzalez’s family, AM
Ai6, and another that sought to bar evidence of Walter’s [ormer medical
treatment of Gonzalez, A17-A18. The motions alleged that the past medical
treatment had no relevance to any issue in the case.
At the April 25 hearing, the State raised the issue of Walter’s prior
doctor-patient relationship with the Gonzalez family, describing him as having
been L.J.’s primary care physician. H2 5. Walter acknowledged that he had
9
treated L.J., but said that he did not think that he had been “the primary care.”
H2 6. Moreover, he reported that his treatment of L.J. involved nothing “ever
related to any issues that, are in this case.” H2 6. With respect to Alexandria,
the prosecutor asserted that she had been a “childhood friend” of L.J. and Lisa,
and they “oftentimes would spend the night at each otherl’s housesl.” H2 6.
The prosecutor averred that both L.J. and Lisa had said that “it would be
incredibly intimidating to be cross-examined by either one.” H2 6-7. While
admitting that she could not “find anything in the rules,” the prosecutor
announced that she intended to file a motion barring the Jacobses from cross-
examining L.J. or Lisa. H2 7, 9.
Alexandria responded by describing the former relationship as “an
acquaintanceship due to [her] father and their stepfather being friends. It was
over a decade ago that [she] would have had any type of contact with them.” H2
7. Alexandria further denied ever having been informed by L.J. or Lisa of “any
kind of an allegation” against Gonzalez. H2 7.
The prosecutor suggested that the Jacobses “could potentially be
witnesses,” citing their “firsthand knowledge” of Gonzalez’s divorce from
Jimenez. H2 7-8. When Walter denied that the divorce had any relevance in
this case, the prosecutor responded that it had been brought up in cross-
examination in a florida trial in which Gonzalez had been charged with, but
acquitted of, assaulting another girl. H2 8, 11. The court expressed concern
about the prior relationships, and asked Walter about his treatment of L.J. H2
8-9. Walter responded that he would have to check his records, and added that
10
he did not intend to cross-examine L.J. H2 9. The hearing then turned to a
discussion of other matters.
Within days of the April 25 hearing, the State flied a motion to preclude
Walter and Alexandria from cross-examining “key witnesses.” A19-A23. In the
motion, the State alleged that Alexandria’s friendship with L.J. and Lisa had
been “extremely close,” and contemporaneous both with the assaults and with
L.J.’s May 1994 allegations. A19. The State further alleged that Walter served
as physician to all members of the family during that time. Id. According to the
prosecutor, during the contentious divorce of Gonzalez and Jimenez, “the
defense attorneys were privy to deeply personal information and remained
allied with” Gonzalez. A20. Summing up, the prosecutor said that L.J. and Lisa
“have expressed the extreme discomfort they wouid feel with having their
former physician and/or a close childhood friend, cross-examine them during
trial. From a simply practical common sense perspective, such intimidation
should not be allowed.” A20.
With respect to the legal basis for the cross-examination motion, the
State cited provisions of the Victims’ Bill of Rights that codil5r ‘the right to be
treated with fairness and respect for their dignity and privacy . . .11 the right to
be free from intimidation . . .[‘ andj the right. to have inconveniences associated
with participation in the criminal justice process minimized.” A20 (citing RSA
2l-M:8-k). With respect to Walter’s former physician-patient relationship with
L.J., the State also cited Professional Conduct Rule 1.7 relating to conflicts.
A20-A21. On the authority of Professional Conduct Rule 3.4, the State
11
contended that Walter and Alexandria could both be witnesses, and citing Rule
1.9, the prosecutor argued that they should not represent a client in the same
or a substantially related matter in which the new client’s interests are
materially adverse to the interests of the former client. A21-A22. Finally, the
State cited Professional Conduct Rule 4.4, relating to respect for the rights of
third parties. A22. The motion concluded by suggesting that Olson should
cross-examine U., Lisa, and Jimenez. A22.
Two days later, the State filed a motion to vacate X\•’alter’s pro hac vice
adnflssion. A24-A26. The State alleged that Walter had omitted relevant
information from his pro hac vice documents, in that he had not disclosed
disciplinary proceedings related to his prior profession as a doctor. A24; see
A27-A64 (detailing charges and resolution). The State contended that Superior
Court Rule 19’s requirement of disclosure of any disciplinary proceeding
brought Thy any disciplinary authority in any other jurisdiction” covered such
matters, and was not limited to disciplinary investigations initiated by a Bar or
other authority charged with the regulation of lawyers. A24-A25.
On May 1, 2014, without any further hearing arid before the defense’s
deadline for responding had passed, the court entered an order disqualil5flng
both lawyers from representing Gonzalez. Supp. 1-7. In the order, the court
made a number of factual findings. Supp. 2-3. These included: that Walter had
served as the family’s primary care physician; that Alexandria was a “close
friend” of L.J. during the relevant time; and that L.J. and the other witnesses
had expressed ‘extreme discomfort” and claimed that they would feel
12
“extremely intimidated” by the prospect of being cross-examined by either
Walter or Alexandria. Supp. 2-3.
In disqualifying the lawyers, the court first relied on Professional
Conduct Rule 3.4(e) which, among other prohibitions, bars lawyers from
asserting personal knowledge of facts in issue. Supp. 3. The court cited
Walter’s statement that L.J. had never disclosed any allegations to him during
the time he treated her, and concluded that Walter’s testimony to that effect
could make him a material witness in the case.3 Supp. 3. Later in its analysis,
citing Professional Conduct Rule 3.7, the court made essentially the same point
with respect to both Alexandria and Walter. Supp. 5-6. Because of the lawyers’
status as material witnesses and because it would not permit them to cross-
examine three important State witnesses, the court concluded that Gonzalez
could not show that the disqualification of the lawyers imposed a “substantial
hardship” on him or prejudiced his defense. Supp. 6-7.
The court next analyzed the situation under Superior Court Rule 19(c)’s
specification of the factors to be considered in deciding whether to allow
attorneys to appear pro hac vice. Supp. 3-4. The court reasoned that because
the Jacobses would be barred from cross-examining three important witnesses,
their representation of Gonzalez “would likely be inadequate.” Supp. 4. The
court further found that the interest in the “fair administration of justice”
In a footnote, and without any citation to a rule or other authority, the court also stated thatWalter’s disclosure of that fact “presents a possible violation of Ihis) obligation to maintainphysician-patient confidentiality.” Supp. 3.
13
would not be sewed by allowing a witness’s “former primary care physician
and/or close personal friend” to cross-examine that witness.
With respect to the State’s motion to vacate Walter’s pro hac vice
admission, the court noted that it could not “find any support for the
proposition that disciplinary proceedings, as used in this rule, refers to non-
legal discipline.” Supp. 5. Thus, the court did not find that Walter had violated
the disclosure obligations imposed under Superior Court Rule 19(b).
Nevertheless, the court ruled that “this fact is some evidence from which the
court could have evaluated Walter Jacobs’s fitness for the practice of law in
New Hampshire in this case.” Id.
Alter the court had entered that May 1 order, but apparently before
counsel received it, the defense filed pleadings in opposition to the State’s
motion to preclude them from cross-examining any witnesses. A70-A89. The
defense contradicted a number of the factual findings on which the court’s
analysis rested. Thus, the defense denied that Walter had been the “family
physician to all three witnesses during the time frame of the assaults.” A71,
A75, A91. Insofar as the prosecutor had insinuated that the Jacobses had
behaved improperly in cross-examining witnesses in Gonzalez’s Florida trial,
they noted that another lawyer had conducted those cross-examinations. A72,
A80. In answer to the claim that the Jacobses were material witnesses, the
defense noted that the State had not listed them as witnesses on any witness
list, and denied that Walter or Alexandria had ever been close friends of any of
the State’s witnesses. A73-A75, A94-A95, A98. The motion denied that the
14
lawyers were material witnesses to the circumstances of Gonzalez’s divorce
from Jimenez, and denied the relevance of that divorce to the case. A75-A76.
Finally, the defense denied the relevance of whatever feelings L.J., Lisa, and
Jimenez might have about who should represent Gonzalez. A76.
With respect to the legal analysis, the defense cited Gonzalez’s
constitutional right to representation by counsel of his choice. A76-A77, A85-
ASS. The defense answered the citation to the Victims’ Rights Bill by arguing
that its provisions could not trump Gonzalez’s Sixth Amendment right to
counsel, and would not be violated in any event by the appearance of the
Jacobses as counsel for Gonzalez. A76-A77. The defense denied any conflict of
interest, citing the fact that neither Waiter nor Alexandria had ever represented
L.J., Lisa, or Jimenez. A77. Moreover, in an affidavit that accompanied the
pleadings, Gonzalez declared that Walter and Alexandria were his counsel of
choice, and that he waived any potential conflict that might exist in their prior
acquaintance with the State’s witnesses. A77, A90-A91: see also H6 8-9 (at
subsequent hearing, Gonzalez said that the Jacobses were his counsel of
choice). Finally, the defense denied any intention to elicit the testimony of
Walter or Alexandria. A78-A79, A81.
After receiving the court’s May 1 order, the defense filed a motion to
reconsider. AlOO-A1 10. The motion repeated the claim that the dismissal of the
lawyers had violated Gonzalez’s constitutional right to counsel of choice, and
complained that the court had ruled without holding a hearing. Al01-A102.
The motion also repeated the factual claims previously made in the pleadings
15
relating to cross-examination of the State’s key witnesses. A102-A105. With
respect to the concern that Walter had violated a duty of confidentiality by
telling the court that L.J. had made no disclosures to him, the motion stated
that Walter’s representation was based on the discoven’ — U. had not claimed
to have disclosed anything to Walter about the assaults. A106, A109. The
motion also complained that the court had vacated Alexandria’s pro hoc vice
status, though the State had not requested that relief. A106.
The State objected to the defense motion to reconsider, and filed
memoranda from a prosecution investigator summarizing interviews with L.J.,
Lisa, and Jimenez about their past connections with, and feelings about, the
Jacobses. Al 11-Al 19. In response to Gonzalez’s claim of a constitutional right
to counsel of choice, the State emphasized that that right is not “absolute.”
Al 14. The State argued that the Jacobses’ status as non-New Hampshire
lawyers defeated Gonzalez’s claim. Al 14. With respect to the dispute about the
nature of the former friendship, the State argued that the victims’ perspective
on that friendship should control. Id. As to the status of the Jacobses as
potential witnesses, the State disavowed any intention to call them. Al 15.
Rather, the State expressed concern that they may have exculpatory evidence,
and in a footnote observed that, after their disqualification, their names had
appeared on a defense witness list. Al 15.
On June 6, 2014, the court convened a hearing on the motion to
reconsider. H4 3-18. At the hearing, the defense renewed Gonzalez’s claim of a
constitutional right to counsel of choice, citing the United States and New
Hampshire Constitutions. H4 4-5. As an alternative to disqualification, the
defense suggested that it would abide by a ruling not to have either Walter or
Alexandria cross-examine the witnesses in question. H4 5, 14. The defense
argument otherwise tracked the arguments previously made in pleadings. H4
5-14, 18. The State maintained its position in support of the court’s prior
order, again focusing on the out-of-state licensure of the lawyers as
undermining Gonzalez’s claim of a constitutional right to representation by
them as his counsel of choice. H4 14-18.
The court denied the motion to reconsider. Supp. 8-12. The court
reasoned that it did not have to find an ethical conflict to revoke permission for
a lawyer to appear pro hac vice. Supp. 9. With respect to the dispute about
whether Walter served as the family’s primary care physician, the court
concluded that the detail did not matter, given the admitted fact that Walter
had in the past treated L.J. and other members of the family in some capacity
as a doctor. Supp. 9. With respect to Walter’s non-disclosure of his medical
disciplinary record, the court did not nile that Rule 19 required disclosure of
that record; rather, it declared, without explanation, that Walter’s failure to
disclose that record was “relevant to [his] ability to comply with this Court’s
rules and New Hampshire’s rules of professional conduct Supp. 9-10.
With respect to Alexandria, the court confirmed its prior finding that she
had been a “close friend of the victim’s during the time period in which the
victim alleges she was assaulted Supp. 10. In the courVs view, that
relationship “may make Alexandria Jacobs a material witness to the victim’s
17
behavior, disclosure, or nondisclosure during the relevant time.” Id. Citing a
provision of the pro huc vice rule, the court concluded that any relationship of
the sort between the victim and Alexandria would justify the court in revoking
Alexandria’s pro hac vice admission. Supp. 10-11.
Finally, the court rejected the alternative request that the court not
disqualify Alexandria if co-counsel conducted the cross-examination of the
witnesses in question. Supp. 11. The court concluded that such a resolution
would impairl] the efficiency of the defense and the administration ofjustice.”
Id. The court closed with an observation about what it regarded as the
materiality of the lawyers’ potential exculpatory testimony: “The Court is simply
not convinced that failure to call Alexandria and Walter Jacobs as witnesses in
support of Defendant’s defense is not ineffective assistance of counsel.” Supp.
12.
The defense subsequently asked the court to authorize an interlocutory
appeal of issues associated with the disqualification. A121-A125. The State
objected. A126-A128. The trial court denied the request. H6 4-6; A121.
On appeal, Gonzalez advances two claims. First, this Court should
reverse because the court erred in dismissing Walter and/or Alexandria Jacobs
from the case, as the record and the law do not support the court’s
justifications for doing so. This brief presents that claim in Section A below.
Second, even if the trial court’s reasons could potentially justify removing the
lawyers, this Court must vacate and remand because the ruling rested on
18
findings about disputed facts made without the benefit of an exidentiaiy
hearing. The brief presents that claim in Section B.
A. The disqualification of Gonzalez’s chosen lawyers violated hisconstitutional dht to counsel.
Indigent criminal defendants do not have a constitutional right to the
appointment of any particular lawyer. Caplin & Divsdale. Chartered v. United
States, 491 U.S. 617. 624 (1989). However, when a defendant does not enlist
the court’s assistance by seeking the appointment of counsel, the right to
counsel guaranteed by the Sixth Amendment to the United States Constitution
and Part 1, Article 15 of the New Hampshire Constitution encompasses a right
to representation by a willing lawyer whom the defendant has chosen. United
States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006); Wheat v. United States,
486 U.S. 153, 159 (1988); see also Powell v. Alabama, 287 U.S. 45, 53 (1932)
(“It is hardly necessary to say that the right to counsel being conceded, a
defendant should be afforded a fair opportunity to secure counsel of his own
choice”).
Indeed, that “right to select counsel of one’s choice [is] the root meaning
of the constitutional guarantee” of the Sixth Amendment. Gonzalez-Lopez, 548
U.S. at 147-48. The Sixth Amendment thus promises “a defendant the right to
be represented by an otherwise qualified attorney whom that defendant can
afford to hire, or who is willing to represent the defendant even though he is
without funds.” Caplin & Diysdale, 491 U.S. at 624-25 (1989), Here, the record
makes unmistakably clear that the Jacobses were Gonzalez’s preferred lawyers,
and that they were willing to represent him.
19
The court erred in applying a different standard on the ground that the
Jacobses sought to appear pro hac vice. Gonzalez does not rely on any
supposed right of the lawyers to represent him. Cf. Leis v. Flynt, 439 U.S. 438,
44 1-43 & n.4 (1979) (rejecting claim brought by out-of-state lawyers that they
had property right entitling them to pro hac vice admission; for procedural
reasons, not reaching claim of constitutional violation in denial of defendant’s
right to counsel of choice). Instead, Gonzalez asserts his own constitutional
right to counsel of choice.
The fact that they were not licensed New Hampshire lawyers does not
negate Gonzalez’s constitutional right to choose them as his counsel, unless
the court had some proper reason to deny Gonzalez his choice. “Once admitted,
pro hac vice counsel cannot be disqualified under standards and procedures
any different or more stringent than those imposed upon regular members of
the district court bar.” United States v. Collins, 920 F.2d 619, 626-27 (10th
Cir. 1990); see also Fuller v. Diesslin, 868 F.2d 604, 607 (3rd Cir. 1989) (“New
Jersey advances no argument why, and we see no reason why, a request for
counsel pro hac vice should be treated any differently by a trial court than any
other request for counsel of choice”). If the court had a proper reason to
dismiss the Jacobses, it could do so even if they had been New Hampshire
lawyers. And if the court had no sufficient reason to dismiss them, the fact that
they would have appeared pro hac vice does not mitigate the court’s error.
The appeal therefore turns on the soundness of the court’s reasons for
disqualifying the Jacobses. Here, the court relied principally on its findings
20
about the nature of the former relationships between the Jacobses and L.J.,
Lisa, and Jimenez, emphasizing the possibilities that those relationships
created a disqualifiable conflict and/or that the Jacobses would be necessary
defense witnesses. To some extent, with respect to Walter, the court further
relied on a finding that Walter’s record of professional discipline as a doctor, or
his failure initially to disclose that record, justified disqualifying him. For the
reasons set out below, none of those considerations support the court’s rulings.
First, the matter of Walter’s medical disciplinary record cannot justify the
court’s disqualification of him. The State did not cite, nor did the court find,
any support for the proposition that Superior Court Rule 19(b)(5)’s disclosure
obligation extends beyond disciplinary proceedings brought by an authority
charged with the regulation of lawyers. Because the court did not find that
Walter had an obligation to disclose that disciplinary record in his motion and
verified application, the court could not properly have held against him the
failure to do so. Moreover, the court did not explain how the content of Walter’s
prior disciplinary record would justify disqualifying him, even if he were a New
Hampshire lawyer. Thus, the court violated Gonzalez’s right to counsel of
choice insofar as it disqualified Walter on the basis either of the content or the
non-disclosure of his prior disciplinary record, under circumstances that would
not have disqualified a New Hampshire lawyer.
The court’s conflict of interest rationale warrants more extended
discussion. In Wheat v. United States, 486 U.S. 153 (1988), the Court held that
the right to counsel of choice does not prevent a court from disqualifying a
21
lawyer who has a conflict of interest. ‘Thus, where a court justifiably finds an
actual conflict of interest, there can be no doubt that it may decline a proffer of
waiver Id. at 162; see also Luis v. United States, — U.S. —, 136 S.Ct.
1083, 1089 (2016) (plurality opinion) (“A defendant has no right, for example,
to an attorney who is not a member of the bar, or who has a conflict of interest
due to a relationship with an opposing party”); Kaley v. United States, 571 U.S.
—, 134 S.Ct. 1090, 1107 (2014) (Roberts, C.J., dissenting) (acknowledging
“impermissible conflict of interest” limitation on right to counsel of choice).
This Court has not yet addressed the question of who bears the burden
with respect to proving or disproving an alleged conflict of interest, when a
party seeks to disqualify opposing counsel. However, as a federal district court
recently observed in an unpublished opinion in Galvin v. Specialized Loan
Senricin LLC, No. 15-cv-386-JL (D.N.H. December 9, 2015), courts in other
jurisdictions
appear to be uniform in assigning the burden ofdemonstrating a conflict to the party seeking todisqualify opposing counsel. See Cole v. Ruidoso Mun.Schs., 43 F.3d 1373, 1384 (10th Cir.1994); Kaselaan& D’Anelo Assocs., Inc. v. D’Anelo, 144 F.R.D. 235,238 (D.N.J. 1992); Kevlik [v. Goldstein], 724 F.2d [844]at 851 [(1st Cir. 1984)] (quoting T.C. Theatre Corp. v.Warner Bros. Pictures, Inc., 113 F.Supp. 265, 268(S.D.N.Y. 1953)).
Slip op. at 2. The First Circuit has held that “disqualification of defense counsel
should be a measure of last resort. In moving to disqualify [a defendant’s]
chosen counsel, the government bears a heavy burden of establishing that
22
disqualification is justified.” United States v. Diozzi, 807 F.2d 10, 12 (1st Cir.
1986).
In State cx rd. Blake v. Hatcher, 624 S.E.2d 844 (W.Va. 2005), the West
Virginia Supreme Court, citing “substantial” and “persuasive” case law from
other jurisdictions, set forth an analysis for when the State seeks to disqualify
a criminal defendant’s lawyer of choice on the basis of a connection between
the lawyer and a prosecution witness. Id. at 854. After acknowledging the
State’s “heavy burden” and the “presumption in favor of a defendant’s choice of
counsel,” the court held that the State must first demonstrate the existence of
“an actual conflict of interest or the significant potential for a serious conflict of
interest.” Id.
If it demonstrates such a conflict, the State must next show that the
conflict should overcome the presumption in favor of the defendant’s counsel of
choice. “In determining whether a conflict of interest should overcome the
presumption in favor of defendant’s choice of counsel,” a court balances the
following factors:
(1) the defendant’s right to be represented by counselof choice; (2) the defendant’s right to a defenseconducted by an attorney who is free of conflicts ofinterest; (3) the court’s interest in the integrity of itsproceedings; (4) the witness’s interest in protection ofconfidential information; (5) the public’s interest in theproper administration ofjustice; (6) the probabilitythat continued representation by counsel of choice willprovide grounds for overturning a conviction; and (7)the likelihood that the State is attempting to create aconflict in order to deprive the defendant of hiscounsel of choice.
23
Id. The court continued by identifying factors a trial court “should weigh in
conducting this balance.” Id. These include, but are not limited to:
(1) the potential for use of confidential information bydefendant’s counsel when cross-examining the State’switness; (2) the potential for a less-than-zealous cross-examination by defendant’s counsel of the State’switness; (3) the defendant’s interest in having theundivided loyalty of his or her counsel; (4) the State’sright to a fair trial; and (5) the appearance ofimpropriety should the juiy learn of the conflict.
Id. The court concluded that “these factors are to be considered in light of the
individual facts and circumstances of each case.” Id.; see also State v. Peeler,
828 A.2d 1216 (Conn. 2003) (similar analysis); State v. Goldsberrv, 18 A.3d
836 (Md. 2011) (similar analysis). On appeal, the court applied an
unsustainable exercise of discretion standard. Hatcher, 624 S.E.2d at 854-55.
When presented with a motion to disqualify a chosen defense lawyer on
such grounds, a court should consider two questions. First, the Court must
determine whether there exists an actual conflict of interest, or the serious
potential for a significant conflict of interest. If not, the court must deny the
motion to disqualify a defendant’s chosen defense lawyer. In sub-section (A)(1)
below, Gonzalez contends that he prevails at this stage of the analysis, as there
was no such actual or potential serious conflict.
Second, if an actual or potentially serious conflict exists, the court must
next weigh all relevant factors to determine whether, on balance, the actual or
potential conflict outweighs the deprivation of the right to counsel of choice to
the extent of requiring disqualification. Here, Gonzalez contends that, even if
there was such a conflict, the State failed to carry its burden of showing that
24
that conflict outweighed his right to counsel of choice. Sub-section (A)(2)
presents that argument.
If the court en-ed in dismissing one or both of the Jacobses, this Court
must reverse Gonzalez’s convictions. An erroneous denial of a criminal
defendant’s right to counsel of choice is a structural error, not subject to
harmless error review. Gonzalez-Lopez, 548 U.S. at 150.
1. No conflict of interest existed.
The court found that a disqualifiable conflict existed as to both Walter
and Alexandria. To sustain that ruling, therefore, this Court would have to
uphold the finding of a conflict as to each lawyer. If the trial court en-ed in
disqualifying either, this Court must reverse Gonzalez’s convictions, because of
the deprivation of his right to counsel of choice as to that lawyer.
The court advanced two conflict-related concerns. First, with regard to
Walter, the court expressed the concern that he would violate his former
doctor-patient relationship if he represented Gonzalez in this case. To a lesser
extent, the court also expressed a concern that Alexandria would violate the
sanctity of the former friendship if she represented Gonzalez in the case. This
brief addresses those concerns in sub-section (i) below. Second, the court
voiced the separate concern that Walter and Alexandria could assert personal
knowledge of facts in issue or othenvise become witnesses in the case. This
brief addresses that concern in sub-section (ii) below.
25
i. The Rule 1.9 duties-to-former-clients concern.
The court based Walter’s disqualification on the fact that he had formerly
treated L.J. in the context of a doctor-patient relationship. The court did not
describe any specific terms of the doctor-patient privilege. Also, the court did
not analyze whether, .or under what circumstances, a former doctor-patient
relationship should prevent the patient’s former doctor from participating as a
lawyer in a case in which the patient is a witness. Counsel has found no case
precisely on point.
However, in the trial court the State suggested an analogy in the law
governing the extent to which a lawyer can participate as an advocate in a case
in which one of the lawyer’s former clients is a witness or adverse party. A21-
A22. In Goodrich v. Goodrich, 158 N.H. 130 (2008), this Court described that
analysis. It begins with Professional Conduct Rule 1.9(a) which provides:
A lawyer who has formerly represented a client in amatter shall not thereafter represent another person isthe same or a substantially related matter in whichthat person’s interests are materially adverse to theinterests of the former client unless the former clientgives informed consent, confirmed in writing.
In Goodrich, this Court stated the following test for determining whether
a disqualifying conflict exists, arising out of the fact that a lawyer represents in
litigation a party adverse to the interests of a former client:
First, there must have been a valid attorney-clientrelationship between the attorney and the formerclient. Second, the interests of the present and formerclient must be materially adverse. Third, the formerclient must not have consented, in an informedmanner, to the new representation. Finally, the
26
current matter and the former matter must be thesame or substantially related.
Goodrich, 158 N.H. at 135-36 (quoting Sullivan Cnty. Re. Refuse Dist. v. Town
of Acworth, 141 N.H. 479, 481-82 (1996)).
Here, applying that analysis to the former doctor-patient relationship
between Walter and L.J., this Court must find the fourth condition not
satisfied. That is, the concerns addressed in that former doctor-patient
relationship were not the same as, nor substantially related to, the matters at
issue in the prosecution of Gonzalez. The comments to Rule 1.9 indicate that
[m]atters are ‘substantially related’ for purposes of thisRule if they involve the same transaction or legaldispute or if there otherwise is a substantial risk thatconfidential factual information as would normallyhave been obtained in the prior representation wouldmaterially advance the client’s position in thesubsequent matter.
N.H. R. Prof. Conduct 1.9, cmt. [31. The substantial relationship test focuses on
“whether facts which were necessary to the first representauon are necessary
to the present litigation.” U.S. Football Leaue v. Nat’l Football League, 605
F.Supp. 1448, 1459 (S.D.N.Y. 1985).
Here, even viewing the former doctor-patient relationship in the light
most favorable to the State’s motion to disqualify, one must conclude that the
prior doctor-patient relationship did not involve the same or a substantially
related matter as was at issue in this prosecution of Gonzalez. The State did
not claim that L.J. had ever spoken with Walter, in his capacity as her doctor
or othenvise, about the alleged assaults. At no point, therefore, did the prior
doctor-patient relationship concern the allegations L.J. made against Gonzalez.
27
For that reason, her prior medical care and the prosecution of Gonzalez did not
involve the same or a substantially related matter.
With respect to Alexandria, the State offered only that the childhood
friendship, as described by L.J. and Lisa, would make them uncomfortable
facing Alexandria as a defense lawyer in this case. Neither the court nor the
State offered any analysis or cited authority for the proposition that such
discomfort justifies the disqualification of a lawyer. The alleged childhood
friendship does not create a legally-cognizable privilege protecting any
communications made to Alexandria by L.J. or Lisa.
Moreover, there is nothing in the record to suggest that either L.J. or Lisa
ever spoke to Alexandria, during the childhood friendship. about the alleged
assaults. Thus, like Walter, Alexandria had no information about the assaults.
For the reasons stated above, the court erred in concluding that any concern
sounding in Rule 1.9 could justify disqualification of either lawyer.
H. The Rules 3.4 and 3.7 lawyer-as-witness concern.
In addition to the concern based in Rule 1.9, the court also cited Rules
3.4 and 3.7, which address the possibility that a lawyer will prove to be a
necessary witness. Here, the court suggested that L.J.’s failure to make
statements reporting the assaults to the Jacobses could itself make them
exculpatory witnesses. For that reason, the court proposed that their
participation as counsel could harm Gonzalez because lawyers may not testify
in a case in which they also appear as counsel. Two considerations defeat the
court’s reliance on that concern.
28
First, to the extent that it could be exculpatory to present witnesses
whose testimony would amount only to a description of their relationship with
L.J. and the assertion that she never told them of the assaults, the Jacobses
were by no means unique in affording that opportunity. As the State surely
knew, L.J. would testify that, during her childhood, she never told anyone of
the assaults other than the people informed during the May 1994 disclosure. T
143, 160, 2 15-17, 245-46. Therefore, every other one of L.J.’s doctors,
teachers, and childhood friends could say the same. See Horaist v. Doctor’s
Hospital of Opelousas, 255 F.3d 261, (5th Cir. 2001) (finding no grounds for
disqualification of plaintifFs lawyer in fact that plaintiff and lawyer had a prior
sexual relationship, noting that “each item of information that [lawyer] could
provide is already available from another source,” and [b]ecause his testimony
is cumulative, [lawyer] is not a necessary witness. His testimony corroborates
[his client’s], so she has no interest in discrediting it”).
In State v. Van Dyck, 149 N.H. 604. 606 (2003), this Court held that a
lawyer should not be disqualified from a representation on the basis of being a
witness unless the lawyer is a “necessary” witness. The Court defined a
“necessary” witness as one whose testimony would be “relevant, material, and
unobtainable elsewhere.” Id. At the conclusion of its opinion, the Van Dyck
Court “admonish[edj trial courts to review motions to disqualify defense
counsel in criminal cases cautiously to minimize the potential for abuse of the
advocate-witness rule and the risk that a criminal defendant will be deprived
unnecessarily of his chosen counsel.” Id. at 607-08. By that standard, the
29
Jacobses were not “necessary” witnesses and thus were not disqualifiable by
virtue of being potential witnesses.
Second, given the relative insignificance of the Jacobses’ potential
exculpatory testimony, Gonzalez could waive the opportunity to present it. “A
defendant can waive his or her right to assistance of counsel unhindered by a
conflict of interest, provided that the waiver is knowing and intelligent.” State v.
Ehlers, 631 N.W.2d 471, 480 & 484 (Neb. 2001). Gonzalez did not seek to have
the Jacobses serve both as lawyers and as witnesses in his case, and if they
acted as counsel, they thereby would disqualify themselves as potential
exculpatory witnesses.
Because neither Walter nor Alexandria had an actual or potential serious
conflict of interest, the court erred in concluding otherwise. In the absence of
any such conflict of interest, the court had no grounds to disqualify either
lawyer. The ruling disqualifying them was, thus, reversible error.
2. Gonzalez’s right to counsel of choice outweighed whateverpotential conflict existed.
Alternatively, even if both Walter and Alexandria had an actual or
potential serious conflict of interest, the court still erred in disqualifying them
because the risks and harms associated with their conflicts did not outweigh
the harm implicit in the denial of Gonzalez’s counsel of choice. This Court may
find the factors identified in Hatcher to be useful in balancing the interests.
The analysis begins by acknowledging the importance of the
constitutional right to counsel of choice. That right involves a “vital interest.”
Kaley, 134 S.Ct. at 1102. “Different lawyers do all kinds of things differently,
30
sometimes affecting whether and on what terms the defendant plea bargains,
or decides instead to go to trial — and if the latter, possibly affecting whether
she gets convicted or what sentence she receives.” Id. (quotation marks
omitted). As a result, for defendants, “having the ability to retain the counsel
they believe to be best — and who might in fact be superior to existing
alternatives — matters profoundly.” Id. at 1102-03 (quotations omitted). The
presumption favoring the right to counsel of choice “means that a trial court
may not reject a defendant’s chosen counsel on the ground of a potential
conflict of interest without a showing that both the likelihood and the
dimensions of the feared conflict are substantial.” Peeler, 828 A.2d at 1224.
Because of the relatively insubstantial nature of the conflict here, the
other factors have little, if any, weight, and so cannot overcome that
presumption. Gonzalez risked little, in terms of his interest in a lawyer free of a
conflict, because the Jacobses had no current relationship with L.J., Lisa or
Jimenez. L.J.’s interest in the confidentiality of privileged information and the
concern that the lawyers might use such information had no force under the
circumstances here, as the Jacobses had obtained no relevant privileged
information during their former relationships with her. “When the evidence
presented shows that no confidences were imparted to the defense attorney
that created an actual or potentially serious conflict affecting cross
examination, deference should be given to the defendant’s choice when that
choice is made knowingly and intelligently.” Ehlers, 631 N.W.2d at 484.
31
While it may be uncommon for a criminal defense lawyer to have a prior
personal or professional relationship with a prosecution witness, the
circumstance is not unheard of, and in small communities, it may often be
unavoidable, More importantly, unless the prior relationship inhibits the zeal of
the lawyer’s advocacy for the criminal defendant, or risks the disclosure of
information related in confidence by the witness during the prior relationship,
the mere existence of the prior relationship poses no threat to the integrity of
the judicial proceedings or to their appearance of fairness. Here, as noted,
neither of those concerns applies, and for that reason, no likelihood of an
appellate reversal on conflict grounds existed.
On the contrary, under the circumstances here, the interest in the
integrity of the judicial proceedings weighed in favor of Gonzalez’s right to
counsel of choice. As the Nebraska Supreme Court has observed:
When the evidence shows that an actual conflict doesnot exist and that any potential conflict is not seriousbut is, instead, highly remote, there is no concern thatthe interests of the judicial system will becompromised. Rather, under such circumstances, thedisqualification of a defendant’s counsel of choicewould raise concerns of compromising the judicialsystem by denying the defendant a constitutional rightand forcing him or her to start anew with counsel whowill be less familiar with the case and may have lesstime to prepare for trial.
at 484 (citing Bruce A. Green, ‘Through a Glass, Darkly”: How the Court
Sees Motions to Dtsqual[y Criminal Defense Lawyers, 89 Colum. L.Rev. 1201
(1989)).
32
Thus, even if this Court concludes that a hypothetically serious conflict
existed, that conflict, under the circumstances of this case, could not outweigh
Gonzalez’s constitutional right to his counsel of choice. At most, the court
should have resolved any potential conflict by adopting the proposal that
Olson, rather than either of the Jacobses, would cross-examine the witnesses
in question. To the extent that the witnesses’ concern about being cross-
examined by Walter or Alexandria could justify any action by the court, that
measure would have addressed that concern. The court therefore erred in
disqualifying the lawyers, and this Court must reverse the convictions.
B. The court erred in resolving factual disputes without anevidentian’ heafln.
Alternatively, if this Court were to conclude that the circumstances
describe a disqualifiable conflict, it would still be necessary to remand for an
evidentiaiy hearing. ‘To overcome the presumption in favor of a defendant’s
choice of counsel, a disqualification decision by the trial court must . . . be
based upon a reasoned determination on the basis of a fully prepared record.”
Peeler, 828 A.2d at 1225 (citations and quotation marks omitted). Here, no
hearing adequate to support a finding about disputed facts occurred.
In State ex rel. Blake v. Hatcher, the court emphasized the importance of
a hearing adequate to develop the facts bearing on the State’s motion to
disqualify a defendant’s lawyer. Hatcher, 624 S.E.2d at 855. The court wrote
that before a trial court
disqualifies a lawyer in a case because the lawyer’srepresentation may conflict with the Rules ofProfessional Conduct, a record must be made so that
33
the circuit court may determine whetherdisqualification is proper. Furthermore, this Court willnot review a circuit court’s order disqualifying a lawyerunless the circuit court’s order is based upon anadequately developed record. In the alternative, if thecircuit court’s order disqualifying a lawyer is basedupon an inadequately developed record, this Court,
under appropriate circumstances, may remand a caseto the circuit court for development of an adequaterecord.
Rh: see also Goldsberrv, 18 A.3d at 850 (“We hold that, before a trial court is
permitted to disqualify a criminal defendant’s privately obtained counsel.
the court must conduct a hearing on the matter, scrutinize closely the basis for
the claim, and make evidence-based findings to determine . . . whether there is
an actual or serious potential for conflict that overcomes the presumption the
defendant has to his or her counsel of choice”).
Here, the State’s motion to disqualify asserted facts about L.J.’s prior
relationships with the Jacobses. In significant respects, the Jacobses denied
those factual claims. The parties disputed the description of Walter as the
primary care physician, and disputed the characterization of Alexandria’s
relationship with L.J. and Lisa as a close friendship, involving frequent
overnight stays at each other’s houses. Therefore, to the extent that those
factual disputes matter to the legal issues, if this Court rejects the claim
advanced in Section A above, it must nevertheless vacate and remand because
the court did not hold a hearing adequate to resolve the factual disputes.
34
CONCLUSION
WHEREFORE, Mr. Gonzalez respectfully requests that this Court reverse
his convictions on the authority of the arguments presented in Section A. In
the alternative, should he not prevail on the Section A arguments, the Court
must vacate and remand on the strength of the Section B arguments.
Undersigned counsel requests fifteen minutes of oral argument before a
full panel.
The appealed decision is in writing and is appended to the brief.
Respectfdmy su mitted,
BYt JChdWf er M. Johnsoi , #15149Chief Appellate DefenderAppellate Defender Program10 Ferry Street, Suite 202Concord, NH 03301
CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Brief have been mailed,postage prepaid. to:
Criminal BureauNew Hampshire Attorney General’s Office33 Capitol StreetConcord, NH 03301
Christopher M. Johnson
DATED: August 15, 2016
35
SUPPLEMENT
SUPPLEMENT - TABLE OF CONTENTS
Page
Order on State’s Motion to Preclude Supp. 1-7
Order on Del’s Motion to Reconsider Supp. 8-12
A
r , ‘ y —
iaa 2 cbi
ROCKINGHAM COUNTY SuP2moR COURT
State of New Hampahiro
Carlos Gonzale?:, li
Docket No. 218-2013-CR-57’i
ORDER 01.1 STATE’S JiOtQ TO PRECLUDE. ANJMOTbDN TO VACtTE ADa’ilSSiON PRO HAC V’C.E
‘)efendantis charged with fourteen counts of sg.ravaied Talorlous sexua
assault of the minor femae. L.J.Z Thai is scheduled to begin with jury seleodon on
Monday, May 5, 2014. At the tin& pietri converence. heid Friday, AprH 25. 20’14, the
State moved on the record to, in essence, disqusH’rj twc’ of Defendants sftorneys. On
April 28, 2014, the State flIed a written motion to preclude the same two attorneys from
cross eaminng certain State witnesses. in ight of the timing of the State’s motion n
relation to the commencement cf thai, the Court cannot wait ten days to hear
Defendants objection beyond what was stated during the final pretria conference, As
such, for the reasons discussed herein, the Sates motion to preciude defense counsci
from cross examining certain State wtnesses is GRANTED, and defense counsel,
Walter Jacobs and Alexandria Jacobs, are further disqualified entirely because ther pro
hac vice admission are sticken as explained further below.
Supp. 1
FACTS
Some bacicaround facts are necesssrj o understand the pending moicn and
the Courts rullnq. Defendant is currant represented by: Wafteriscobs, Alexanorta
Jacobs. and Kurt Olson. Walter and Alexandria Jacobs are Massachusetts ttomeys
who have been admitted pm hac lice for this case. Waiter ,Jacobs is Asxandria’s
father. Olson is their affiliated local counsel.
Li. is the complaining witness in this case. In 1992 and 1993, LJ. was nine
twelve years old. Defendant is L.J.’s former step-ftner. ln the early lQGOs Defendant
L.J., L.J.’s mother (Brenda Chamorro), arc LJ.’s sister (Lisa Garcia), all cohab[tated
n Derbrdant as a am, J s ramlv was “a irr enciy h uare J2r025 p.r
Alexandria Jacobs. Walter Jacobs was a medical doctor before ha became a lawyer. in
fact, he was the alleged victim’s and nerfarnily’s pmsry care physiclm in 1992 and
1993. Similarly, Alexandria Jacobs and Li. were close friends during this time frame.
Eventually, Brenda Chamorro and Defendant divorced, but Walter Jacobs and
Alexandria Jacobs remained friends with Defendant. The Stale has identified that t will
call Brenda Chamorro, L.J., and Usa Garcia. as witnesses in this case.
As noted above, 1./alter Jacobs seR’ed as these witnesses’ orimary care
physician during ins relevant time period. These witnesses have sxpressec( extreme
discomfort with the prospect of a former close personal friend—,Slexandria Jacobs—or
their prirnaly care physician and former obse friend—Walter Jacobs—cross examining
them in this case, These witnesses have also expressed that they would feel extremeiy
The Um.e frame cf the aIasons ms cese.
I
Supp. 2
intimidated by such cross examination. As such, the State has moved to preclude both
Alexandria Jacohs and Wslter Jacohs from cross examinina these witnesses,
ANALYSIS
New Hampshire Rule of Professional Conduct 34(e prohibits attorneys from
asserting their personal know!edqe of facts in issue except when testifyng as
witnesses. In this case, both Jacobs attorneys will likely he assertinp their personal
knowledge of the facts and circumstances surrounding LI. and Defendant’s relationship
anc lives during the relevant time period when Li. alleges Defendant molested her. For
example, on April 25, 2014 at the final pretrial hearing, Wafter Jacobs asserted to the
Court the fact that L.J. never disclosed her sexual assaults to him in his capsofty as her
physician. He shared these facts on the record for the purpose of demonstrating that he
has no conflict in representing Defendant in this case Attorney Walter Jacobs
representation is based upon his personal knowledge of the undedying facts aithis
case and presents material facts potentially relevant to Defendants defense in this
case.L It is unbellevable to this Court that Attorney Waaer Jaoobs and Attorney
Alexandria Jacobs would not have similar persona! infOrmation through their close
relationship with the alleged victim and her family such that they would become a
material witness in the case. For these reasons, the Court will gnant the State’s mohor
to preclude Walter Jacobs and Alexandiie Jacobs [morn cross exsmininq the States
witnesses listed above.
Attorneys Waiter Jacobs’ and Alexandria Jacobs’ re resentation siso raises
issues under Superior Court Rule 19(c), appllcabie in criminal cases. This rule sets
This renresentalion also presenis a poenal voiation of V(alter Jacobs’ obh2ahon to maintain physicnpabent ccnridentsdity.
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forth the factors for courts to consider when evaluating requests For pm hac vice
admission. Rule 19(c) states:
The court has discretion as to whether to grant appHcaUons for admissonpro hac vice An ppii.abon ordrn2nlv should be ga’ted uness fle courtfinds reason to believe that:
{I)_uch admission may be detrimental to the prompt, fair andeffident administratbn of justice:1)_such &drnssion may be oct n,enaI a letmtimte ,nterestscTnartieso he oroceechngs otner than the chent(s) the coplirarnoroooses to represent(3) one or more of the clients the soplicant proposes to reoresentmay be at risk of rec&vinc inadeuate reoresentston and cannot
or(4) the appNcant has engaged in such frequent appearances as toconstitute common practice in this State.
(Emphasis added). Because the Jacobs attorneys will be unable to cross examine three
key witnesses their representation of Defendant would likely be nac$equate. Also, the
Couit finds that it would not be a ‘fair adn’.inistration of justice” to sHow the former
primary care pliysican and/or dose personal friend of a witness (an alleged rape victim)
with personal knowledge of the witness during the time frame at issue, to cross examine
the witness during a trial.
On Aprii 30, 2014, the Court received the State’s Motion to Vacae Admission
Pro Hac Vice of Walter Jacobs. In this motion, the State explains that Wafter Jacobs
omftted material information in his affidavit seeking pm hat vice admission. The material
information the State references are discipflnarj actions by the Massachusetts Board of
Registration of Medicine (Massachusetts Board”) and the New Hampshire St3te Board
of Medicine (NH Board’). Walter Jacobs is no longer a licensed physician in either
state, but the NH Board censured him in 2012 s a resua of his failure to disclose to it
that he had been investigated and as a result resigned his medical license in
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c
fviassacriusetts Superior Court Rule 19(b, appicable in c;miial cases, sets forth the
reoufree elements of an attorney aflc;avt supoing a reqaest for pro hac :-e
j admission Paragraph five requires appicants to deta’
{Wjhethe any formal w-theu discio1:nay pocssonq has eve oeenDrought agalnsL The apphcan: by any oisclpilnarj authoty in any othei
juflSOICtiO within t•e last ‘ive yeai s and, as to each scn procseoing :Iie;arure of the aIega:ons, the name of :Se r authority bringingsuch pioceedings the data the proceecing were initiateo and finallycociuded tne style of the proceedings, and tns findings made andactions taken in connection uqh those proceedings
The Court cannot fno any support for t’e ornoostici that ciscip1inarv po:aedngs as
used i’ tha rule refers to r.on’egal discipine Nortetheidss :nis fec; ;s some evidence
from which the Court could have evaluated Walter Jacobs f4ness for the practice of law
in New Hampshire in this case Walter Jacobs did not disclose this fact to the Coi.ft Just
ike ne do not osolose his pa::ent — physicari r&e:ionshp w th the a1egeo victim
Addition& rules ace CISC relevant zc this Cours analsas of the appropriateress
of the Waiter and Alexandria Jacobs representing Defendant As noted earlier, because
both attorneys also necessarily possess faclual infccmaion that could become
beneficial to the defense, tiese attorneys may he called as wtnesses in lght of tnis
New Hampenire Rule of Professional Conduct 3.7 s imp!cated which states
(a) A lawyer shall not act as advocate at a trial in which the awyer is likelyro he a necessary witness unless
(flinetestirnon, iclates to an uncortes:ec asus
2 tne testimony relates to the nature and vaue of legal seMces
rendee in the case or3) disquatJ:cation of the a’ervjould wok unreasonable hsidsr.ip
on the client(b) A lawyer may act as advocate in a trial in Ljhich anotier lawyer n thelawyers firm is likely to be cafled as a wrness unless Drecluded fromdorng so oy Ruie 1 7 or Rule 1 9.
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Defendant, because he has not had the oppcduaky to in wrlt!ng. has not
assened that any attorney testimony t!ts en exception enumerated in Rule 3.7(a).
lowever, ft would appear to the Court that any testimony the Jacobs attorneys could
offer would relate to a contested Issues — whether U. was assaulted or exhibited
characteristics of a youth that had been assaulted, Further, because the .Jacobs
attorneys have now been precluded from cross examining certain State witnesses, it
woWd be difficult for Defendant to demonstrate hardship if the Court precludes the
Jacobs attorneys from representing hL-n as a result of their likely material testimony.
Defendant likewise cannot dairn substantial hardship because New Harnpshre Ruls
19(d), applicable in criminal oases, states:
flThieJ in-State Attorney who is co-counsel or counsel of record for thatziient [in proceedings In which a nonmember attorney is elso participating)remains responsible to the client and responsible for the conduct of theproceeding before the court or agency. It is the duty of the In-StateAttorney to advise the client of the In-State Attorney’s Independenttidgment on contemplated acUons in the proceeding if that judgmentdiffers from that of the Nonmember Attorney.
As such, Defendant cannot seriously argue that striking his nonmember attorneys’
appearances substanha!ly prejLdIces his defense, *iere he retains a New Hampshire
defense attorney who has, by court ada, been advising Mm all &ong.
If the Court allowed the Jacobs attorneys to rethain on the case but restricted
their ability to cross examineS critical witnesses, Attorney Olsen and the Jacobs would
have to coordinate examinations in this case. Mditional!y, because the Jacobs
attorneys will likely be relevant and material fact witnesses, they may be sequestered
for part of lila1. Although Defendant is entit!ed to repr9sentation of his choosing, the right
is not without any bounds. The Icgist’cs of coordinating couns& when two of the
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2torneys are prohibited from cross e;carninng certain State witnesses and may he
euuest red for parts of trial further demonstrates that their pro hat vice admission in
his case is detrimental to the prompt and fair adrnitustraticn of lustce. As such, The
Court strikes their appearance.
Neither Walter nor Aiexendria Jacobs will be permhhed to represent Defendant in
this action.
Lastly, because tiSi is set to be:in on May 5, 2014, There sre thirLy penc3ng
IimThe motions, and the Court has just stricken ttvo of Defendants chosen couns&, the
Court wilt entertain a defense request for continuance, but Dafendant must flrat waive
his speedy mel ri3hts.
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Marguerite L WagélingDresidinQ Jstics
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‘CIr $tat2 of cfu Thtiiijmlrite
ROCKINGHAM COUNTY SUPERIOR COURT
State of New Hampshire
V.
Carlos Gonzales, III
Docket No. 218-2013-CR-571
ORDER ON DEFENDANT’S MOTION TO RECONSIDER
On May 1, 2014, this Court issued a ruling revoking pro hac vice admission to
two Massachusetts attorneys, Walter and Alexandria Jacobs. Then, on May 5, 2013,
Defendant submitted a substantive, written objection to the State’s motion to strike pro
hac vice admission for Walter Jacobs, Also on May 5, 2014, Defendant moved for
reconsideration of the May 1 ruling. The State objects to the motion for reconsideration
with respect to Walter Jacobs. Because the May 1 ruling did not consider Defendant’s
narrative objection to the motion to strike pro hac vice admission, the Court will consider
it along with Defendant’s Motion for Reconsideration.1 Additionally, the Court held a
hearing to consider this motion on June 6, 2014.
A motion to reconsider may be granted only if a court has overlooked or
misapprehended any point of law or fact. See Super. Ct. R., applicable in criminal
cases, 59-A (2013) (“Rule”).
In moving to reconsider this Court’s May order, Defendant argues that the
Jacobs attorneys have no ethical conflict preventing them from representing Defendant.
1 The Court does not distinguish between the narrative objection and the motion to reconsider in ruling onthe motion, but it does evaluate the arguments contained in each.
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Defendant also argues that the Court’s revocation of Walter Jacobs’ pro hac vice
admission without a hearing and Alexandria Jacobs’ admission sua sponte
demonstrates bias. Defendant’s arguments do not acknowledge that the Jacobs
attorneys were only ever admitted to practice in New Hampshire under Rule 19.
Because this rule applies, the Court need not find an ethical conflict to revoke an
attorney’s admission. The rule itself sets a lower bar for admission of attorneys to
practice before this Court. Rule 19.
With respect to Walter Jacobs, the Court found that it would be inefficient to
require that someone other than the victim’s former physician cross examine her. The
Court also noted medical disciplinary proceedings involving Walter Jacobs that he failed
to disclose as required by Rule 19(b)(5).
In moving for reconsideration, Defendant does not contend that Walter Jacobs
never treated the victim. Rather, he asserts that Walter Jacobs did not serve as the
victim’s primary care physician. This is a distinction without a difference in the Court’s
reasoning. The Court will not permit a former physician of a child victim to serve as
Defendant’s attorney for all the reasons set forth in the Court’s May 1 order.
Additionally, the Court finds that such representation would be inefficient to the
administration of justice because, at a minimum, the Court would not permit Walter
Jacobs to cross examine the victim.
Similarly, Defendant does not contend that Walter Jacobs was not disciplined in
Massachusetts relating to his medical license, which he failed to report in New
Hampshire and was disciplined in New Hampshire for failing to report. Rather, he
asserts that Rule 1 9(b)(5) does not relate to medical discipline. The Court finds it
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relevant to Walter Jacobs’ ability to comply with this Court’s rules and New Hampshire’s
rules of professional conduct that Walter Jacobs failed to disclose his medical board
discipline in applying for pro hac vice admission.
In these ways, the Court did not overlook or misapprehend any facts or law when
it revoked Walter Jacobs’ pro hac vice admission.
Turning next to the motion to reconsider striking Alexandria’s Jacobs’ pro hac
vice admission. Defendant contends that merely being friends with the victim does not
create a conflict of interest. The Court does not dispute this argument. However, that
was not the basis for the Court’s revocation. As set forth in the May 1 ruling, Alexandria
Jacobs was a close friend of the victim’s during the time period in which the victim
alleges she was assaulted by Defendant. This may make Alexandria Jacobs a material
witness to the victim’s behavior, disclosure, or nondisclosure during the relevant time
period.
Defendant argues that Alexandria Jacobs does not now and never did consider
the victim to be a close friend, and in any event, Alexandria Jacobs was so young at the
time of the alleged assault(s) that she could not have any material knowledge. Further,
Defendant contends that Alexandria Jacobs is not on either party’s witness list.
It may be true that Alexandria does not have any material information to offer this
case and would not be called as a witness. Nonetheless, whether Alexandria Jacobs
remembers being close friends with the victim is irrelevant to the victim’s memory of
being close friends with Alexandria Jacobs. Defendant admits that the Jacobs family
was close to the victim’s family, so it is undisputed that the victim and Alexandria
Jacobs had some relationship. Additionally, the Court may also consider whether
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Alexandria Jacobs’ representation is detrimental to the fair administration of justice and
whether it infringes legitimate interests of parties other than Defendant, N.H. Super. Cr.
R. 19(c)(1—2). The Court finds that it does.
Defendant argues that whether the victim may be uncomfortable with Alexandria
Jacobs cross examining her is not a factor the Court should consider, but the Court
disagrees. Although being friends with the victim might not create a conflict, it is relevant
for the Court to consider that the purpose of trial is truth seeking, not as Defendant
argued, to make the witness uncomfortable and to intimidate witnesses into making
mistakes in testimony. The victim has stated that she would feel intimidated having
Alexandria Jacobs cross examine her. This fact combined with Alexandria Jacobs’
factual relationship to the underlying events giving rise to this litigation informs the Court
that Alexandria Jacobs’ representation would not be fair to the truth seeking function
that it is the Court’s obligation to administer.
Defendant offered as an alternative to striking Alexandria Jacobs’ pro hac vice
admission, that the Court could simply preclude her from cross examining the victim.
The Court finds that such a proposal is directly contradictory to Rule 1 9(c)(1) because it
impairs the efficiency of the defense and the administration of justice.
Finally, Defendant highlights that a pending i/mine motion seeks to preclude any
mention of Walter Jacobs’ having treated the victim during the relevant time period.
Defendant emphasizes this motion for the purpose of demonstrating that neither Walter
nor Alexandria Jacobs intends to use their personal factual knowledge of the
circumstances surrounding the alleged assault(s) at issue in this case during trial.
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The Court is simply not convinced that failure to call Alexandria and Walter
Jacobs as witnesses in support of Defendant’s defense is not ineffective assistance of
counsel.
As such, for purposes of fairness to Defendant as well as the victim, see Rule
19(c)(3), the Court finds that it has not overlooked or misapprehended any facts or law,
and the Motion for Reconsideration is DENIED in its entirety.
There remain numerous pending Iin7ine motions. At the June 6, 2014 hearing, the
parties informed the Court that they may be able to narrow the list of limine motions.
The parties are hereby instructed to inform the Court regarding the status of the I/mine
motions and whether a hearing is required and on which motions within ten (10) days of
this order.
\, r/ II IL ——
Date MargUerite L. WagelingPresiding Justice
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