Murder, Media, Maugaotega, and the Rules of Professional Conduct

The HSC Affirmed This Case in a Published Opinion.

State v. Mark (ICA May 8, 2009)

Background. There was an arrest warrant out for Mark for allegedly shooting Paikai and firing shots at Piko. Police responded to a tip that Mark would be at the Baskin-Robbins in Kapolei. Officers responded. They were not in uniform. Officers Gaspar and Sung tried to arrest Mark, but there was a struggle. Mark fired three shots. Officer Gaspar was killed. Two indictments were returned against Mark. The first alleged, among other things, attempted murder in the 2d for Piko and Pakai. The second indictment alleged murder in the 1st for Officer Gaspar and attempted murder in the 1st for Officer Sung. Mark subpoenaed the records of certain police officers involved in the case. The circuit court granted the motion in part and allowed only certain documents to be disclosed. A jury found Mark guilty of murder in the 2d for Officer Gaspar and guilty of attempted murder in the 2d for Pakai, but was hung on the charges related to Piko and Officer Sung.

Before the 2d trial, Mark's attorney--a public defender--learned that a fellow public defender represented Piko in his revocation of probation and resentencing to another term of probation. The public defender filed a motion to withdraw on the grounds that there was a conflict. The circuit court denied the motion. After the 2d trial, the jury found Mark guilty of attempted murder in the 1st for Officer Sung, but was still hung with the charges related to Piko. At sentencing, the State moved for extended terms of imprisonment. The circuit court found that Mark was a persistent and multiple offender and that extended terms were necessary for the protection of the public. Mark was sentenced to life imprisonment without parole.

Media Coverage did not Result in a "Circus" Court. Mark argued that the circuit court erred in refusing to continue his trial until the media coverage died down. When determining whether publicity has rendered a trial presumptively unfair, courts must consider the "amount and timing of" the media coverage, whether the coverage was "primarily factual" and "whether the media accounts contained inflammatory, prejudicial information that was not admissible at trial." State v. Pauline, 100 Hawai'i 356, 366, 367, 60 P.3d 306, 316, 317 (2002). Furthermore, appellate courts consider the thoroughness of the voir dire to determine if presumptive prejudice existed. Id. at 367-68, 60 P.3d at 317-18. According to the ICA, the circuit court questioned jurors about their knowledge of the case from the media. None of the jurors indicated that they were aware of the coverage. The ICA also concluded that the media coverage was primarily factual, and not "passing judgment" or "denouncing and demonizing." Id. at 367, 60 P.3d at 317. And while the media coverage did include inadmissible evidence--like Mark's drug use--the ICA concluded that the record did not establish a "barrage of inflammatory publicity immediately prior to trial amounting to a huge . . . wave of public passion[,]" id. at 366, 60 P.3d at 316, that resulted in "a trial atmosphere that had been utterly corrupted by press coverage." State v. Graham, 70 Haw. 627, 637, 780 P.2d 1103, 1109 (1989).

The Motion to Withdraw: Which Rule of Professional Conduct Applies? The ICA reviewed the denial of Mark's motion to withdraw. The ICA first noted that the office of the public defender in this case was "firm" analogous to any private law firm. The threshold question then was which rule of the Hawai'i Rules of Professional Conduct applied. A lawyer generally cannot concurrently represent two clients who have adverse interests. HRPC Rule 1.7. On the other hand, a lawyer "who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client." HRPC Rule 1.9(a). HRPC Rule 1.9 allows lawyers who have formerly represented a client to represent another with adverse interests so long as the two cases are not the same or substantially related. The ICA concluded that the public defender's representation of Piko and Mark did not involve the same or substantially-related matter, and, thus, the public defender could continue representing Mark so long as Piko was a "former client" at the time of Mark's 2d trial.

Current v. Former Clients. The ICA held that at the start of Mark's 2d trial, Piko was a "former client" and thus, HRPC Rule 1.9 applied instead of HRPC Rule 1.7. According to the ICA, the words "former client" are undefined and it was unclear when a client becomes a "former client." Here, the ICA held that Piko was a "former client" and, thus, the public defender could represent Mark. The ICA explained that Piko's revocation and resentencing occurred three months prior to Marks' trial. Nothing was pending in Piko's case at the time of Mark's trial and Piko's file was closed by the internal system at the public defender's office and that it would not be reopened, "absent some unforeseen future event." According to the ICA, "[t]he mere possibility that such a[n] event could occur is insufficient to convert what would otherwise be former representation into concurrent representation for the purposes of the HRPC."

So when is a Case Pau? A Hypothetical. Piko was resentenced to another term of probation. This, according to the ICA, meant that his case was closed. Of course, at any time during the probationary period, Piko could return to court to modify the terms of probation or to defend against allegations of a violation of the probation conditions. It would seem that while the public defender's office "closed" its file, Piko could easily find himself in court in need of representation again. But these all appear to be "unforeseen future events." If such an unforeseen event were to occur, what happens then? What if Piko is revoked and resentenced again? The tables had turned and the court would have to examine whether Mark was a "former client." So what if Mark's trial had ended and he was represented by appellate counsel? That is a question for the future.

After-the-fact Representation is Irrelevant . . . at Least here. The ICA rejected Marks' contention that while he was waiting for his 2d trial and while Piko awaited his revocation and resentencing, there was concurrent representation which warranted withdrawal. The ICA explained that the public defender's office had no idea there was concurrent representation, and it could not have had an effect on the dual representation. Thus, HRPC Rules 1.7 and 1.9 "do not require after-the-fact representation." In a footnote, the ICA cautioned that its holding was not intended to suggest "that a lawyer will always avoid disqualification in circumstances where the lawyer was unaware of a potential conflict." The ICA also emphasized the "importance of having effective procedures in place to timely identify potential conflicts before the representation is undertaken."

Still a Troubling Situation. It seems that the ICA recognized that there was a period of time when there was in fact concurrent representation. That meant that if the office of the public defender knew about the concurrent representation and if it brought the motion at that time, HRPC Rule 1.7 would have applied and the motion would have undergone a different analysis. Does this boil down to a question of timing? Perhaps so. But that did not have an effect on the ICA's analysis here. The ICA noted on one hand that because the lawyer's office did not discover the conflict, there could be no prejudicial effect. On the other hand, the ICA cautioned that its reasoning should not be used to encourage lawyers to avoid checking for conflicts. It is unclear what it means at this point. A lawyer's office is not going to be held to answer to after-the-fact representation, but it should be encouraged to scrutinize potential clients to avoid conflicts. The best path, thus, lies some place in between.

State Concedes to Unconstitutional Sentence. After two trials and a potpourri of issues, the ICA vacated Mark's sentence. The circuit court sentenced Mark pursuant to the extended sentencing laws at the time. The circuit court made express findings that Mark was a "persistent" and "multiple" offender and that it was "necessary for the protection of the public" to impose the extended sentence. HRS § 706-662. Mark argued--and the State conceded--that in making these findings, the circuit court violated his constitutional rights. The findings pursuant to HRS § 706-662 must be found by a jury. State v. Maugaotega, 115 Hawai'i 432, 437, 168 P.3d 562, 567 (2007). The ICA held that the findings made by the circuit court were unconstitutional. Accordingly, the ICA vacated the judgment and remanded for sentencing. The ICA noted that after Maugaotega, the Legislature amended the sentencing laws to allow a jury to make these findings. The amendments apply retroactively and allow prosecutors to request a resentencing when the extended sentence is set aside pursuant to Maugaotega. So on remand, the State has a choice to either seek extended sentencing with a jury or sentencing without the extended sentencing laws.

Several Other Issues. This case is 62 pages long. Mark raised a number of issues. The ICA rejected all of Mark's claims and found no reversible errors throughout the course of the two trials. The issues concern a motion to quash, the admission of certain evidence, the appearance of possible prejudice concerning a sheriff's escort in front of the venire, the jury instructions relating to the defense of others, prosecutorial misconduct, and other prejudicial issues. These issues are varied, but the analyses are relatively short. I have not provided them here.


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