The 7th U.S. Circuit Court of Appeals has reversed defendant Roosevelt Turner's cocaine-conspiracy conviction. Chief Judge David R. Herndon of the Southern District of Illinois presided in the trial court.

The defendant was indicted in February 2005 with eight others for conspiring to distribute cocaine in Alton. The defendant, however, wasn't arrested until June 2006; by that time, many of the alleged co-conspirators had pleaded guilty and cooperated with the government.

One exception was Anthony Womack, whose first trial ended in a hung jury. On retrial, Womack was convicted and he was awaiting sentencing when the defendant was arrested. During this period, Womack hired a new attorney — Irl Baris — to represent him at sentencing.

Once in custody, the defendant initially was represented by appointed counsel but his family soon hired Baris as his attorney. The government questioned whether this joint representation was permissible, suggesting that the joint representation presented an insurmountable conflict of interest because one might decide to cooperate with the government against the other.

Baris countered that there was no actual conflict because neither client wanted to assist the government and prosecutors hadn't shown the slightest interest in securing either defendant's testimony against the other. In addition, both defendants waived any conflict of interest.

The district court focused on the "possibility" that one defendant might provide information or testimony against the other and held that this was sufficient to create an "absolute" conflict of interest. The district court, therefore, disqualified Baris as the attorney for Turner. A jury later convicted Turner of conspiracy and he appealed, challenging the judge's disqualification of his chosen counsel.

The appeals court agreed with the defendant and reversed. The court said that the Supreme Court recognizes a presumption in favor of the defendant's choice of counsel, although this presumption may be overridden if there is an actual conflict of interest or a "serious potential for conflict." The court said that joint representation is not a per se violation of the right to the effective assistance of counsel.

In this case, the district court disqualified Baris based on the possibility that Womack might cooperate against Turner or that Turner might testify against Womack. "But this possibility for conflict is present in nearly every case of joint representation. The district court's analysis disregarded the presumption in favor of the defendant's chosen counsel and imposed what amounts to a per se rule against joint representation. As such, the court's disqualification order was premised on a mistake of law and violated Turner's right to counsel of his choice," the appeals court said.

The appeals court said that there was nothing in the record to suggest that the potential conflict of interest identified by the district court had a likelihood of maturing into an actual conflict. "At bottom, the judge disqualified Baris because one or the other of his clients 'might' change his mind about cooperating with the government but that possibility for conflict of interest 'inheres in almost every instance of multiple representation,'" the appeals court said, quoting from a 1988 U.S. Supreme Court decision.

In addition, the appeals court said that the U.S. legal system presumes that one attorney may effectively represent multiple co-defendants. In view of the minimal risk that joint representation would have undermined either Turner's or Womack's right to the effective assistance of counsel, the district court had other options available that would have respected Turner's right to his chosen counsel and protected his right to effective counsel.

U.S. v. Roosevelt Turner, No. 08-2350. Judge Diane S. Sykes wrote the court's opinion with Chief Judge Frank H. Easterbrook and U.S. District Judge Virginia M. Kendall (sitting by designation) concurring. Released Feb. 2, 2010.