Mimesis Law
24 April 2017

Prosecutors Are Concerned About Defense Attorney’s Ethical Duties…Or Maybe Not

July 8, 2016 (Fault Lines) — Few things that prosecutors do are more offensive than those that interfere with the attorney-client relationship of the people they’re prosecuting. In most instances, trying to get the defense lawyers kicked off of a case is as bad as it gets. That’s what they’re doing in the case of Hope Perdue:

A long-ongoing Franklin County murder case hit another potential speed bump this week as prosecutors filed a motion that, in part, asks that the defense team be disqualified.

Admittedly, it’s impossible to know what goes on in the minds of prosecutors when they do something like that. It may be the desire of the prosecution to get competent defense lawyers off a case. Removing highly effective defense lawyers might open up the possibility of plea negotiations or perhaps allow the state to push ahead with a much simpler, less contested trial.

Like when prosecutors file pleadings about where the defendant got the money to hire a lawyer, another prosecutorial tool that interferes with a defendant’s choice of counsel, there are often less than honorable reasons for a prosecutor to attack a specific defense lawyer. It isn’t always that they care so deeply about the purity of the funds or a supposed conflict of interest, but rather occasionally just that they’d like to make their lives a little easier. On the other hand, they may genuinely believe there exist grounds for disqualification.

In Hope Perdue’s case, it’s hard to say exactly what’s happening. Consider the facts:

Commonwealth’s Attorney A.J. Dudley submitted his request last week in the case of Hope McVey Perdue, the Glade Hill woman charged with killing a 3-year-old child she was looking after.

Callen Mullins died of injuries he suffered early May 12, 2015, while at Perdue’s home. As deputies and rescue crews responded to the scene, Perdue went missing. She was located about 12 hours later in a garage on Byrds Mill Road.

Dudley’s motion says the garage was at the residence of a man named Jason Perdue. While the document does not specify if the two are related or if they knew each other beforehand, it does say Jason Perdue maintains that she asked him not to call the police and that she told him she needed a lawyer.

The case is both tragic and serious; there’s a dead child and a defendant who ran. Hope Perdue is charged with murder.

Given the fact they share the same last name and she ended up at his house, I suspect Hope Perdue and Jason Perdue are in fact related. Regardless, he’s a witness. On top of that, he’s clearly a witness for the state. Hope Perdue asking him not to call the police is probably coming in at trial, and that’s not going to be a good thing for her. Neither is her request for a lawyer, though in a perfect world that would be precluded. Moreover, Virginia apparently allows for a flight jury instruction, one where the jury would be told it can consider the facts and circumstances of her flight as evidence against her.

Jason Perdue seems to have pretty much nothing to offer Hope Perdue’s defense, but he has quite a bit to offer the prosecution. That’s where things get tricky:

Instead, he summoned police and she was arrested, the motion claims. The following day, on May 13, 2015, Rocky Mount attorney David Furrow was appointed to defend Hope Perdue.

At the time of that appointment, as it turns out, Furrow was also representing Jason Perdue on a separate drug charge. Just a month earlier, Jason Perdue had been indicted in Franklin County on one count of cocaine possession.

Furrow’s overlap did not last long — also on May 13, the commonwealth’s attorney’s office asked the court to drop the charge against Jason Perdue, a request that was granted seven days later, according to court records.

So cops found Furrow’s new murder client, Hope Perdue, in a garage belonging to Furrow’s existing drug possession client, Jason Perdue, after the former client didn’t obey current client’s wishes and got the cops involved. That was over a year ago, however, and Furrow only represented Jason Perdue for at most a month and seven days.  He’s represented Hope Perdue for almost fourteen months at this point.

What would really be baffling is if the prosecution either failed to realize that Furrow represented Jason Perdue or failed to see the issue at some point since last May. It’s hard to believe that, however. He’s their witness, after all, and they’re the ones who charged him in the case where Furrow represented him. They’re the ones who dismissed it after he ended up a witness in Hope Perdue’s case. It reeks of prosecutorial gamesmanship.

Still, the prosecution makes a decent point: 

On Friday, Dudley said he discovered Furrow’s prior standing as Jason Perdue’s attorney “within the past month,” and he said Hope Perdue’s prosecution began several months before he took office as commonwealth’s attorney on Jan. 1.

But he wrote in his motion this week that Furrow’s current representation of Hope Perdue, combined with Dudley’s intent to call Jason Perdue as a prosecution witness, created “an insolvable paradox.”

“Mr. Furrow’s duty to advocate for his current client (Hope Perdue) encourages him to challenge the credibility of a former client (Jason Perdue) through questions relating in time and substance to Mr. Furrow’s contemporaneous representation of that former client,” Dudley wrote.

Furrow has specific ethical duties when it comes to former clients, and in an ideal situation, he wouldn’t represent Hope Perdue at all.

The judge may try to make the conflict go away by precluding the defense from asking Jason Perdue about his cocaine possession case and its dismissal. That would be seriously detrimental to Hope Perdue and no doubt influenced by Furrow’s conflict. Also, Furrow may claim he never really dealt with Jason Perdue much. Indeed, depending on the specific circumstances of what happened in that case, like if Furrow never actually spoke with Jason Perdue, read the discovery, had any dealings with prosecutors, or played any role in achieving a dismissal following his involvement in Hope Perdue’s case, he may get to continue to represent Hope Perdue. That may be to Jason Perdue’s detriment.

The entire duty a lawyer owes a client isn’t contained in the ethics rules. Even if they allow it in this case based on the court’s interpretation of the rules and understanding of the facts, the mere idea that a defense lawyer would cross-examine a former client on the stand about drug use and the suspicious dismissal of a drug case in which that lawyer represented that client makes me squirm. It might be great for one Perdue, but what about the other?

“The Commonwealth views Jason as being truthful as to the statement he assigns to Hope and his view that no ‘deal’ links the above-concerned testimony to the dismissal of the narcotics charge,” Dudley wrote in the motion.

Clearly, the prosecution is worried that Furrow will elicit from Jason Perdue information that suggests their dismissal of the drug case was somehow part of a “deal” for his help in Hope Perdue’s case. That sort of evidence could take a lot of the sting out of Jason Perdue’s testimony against Hope Perdue. Timing alone, the fact his case was dismissed the day after he became a witness, certainly suggests that may a line of effective defense questioning. Moreover, prosecutors would obviously prefer that Furrow avoid bringing up the drug charge altogether, which is what they’re asking as their first choice.

Unfortunately, if Furrow has information that helps Hope Perdue as a result of his representation of Jason Perdue, then he should be taken off the case. Although it’s great for Hope Perdue that her lawyer might have some inside information to tear apart a state’s witness, that’s exactly why the ethics rules about conflicts of interest exist. Given the current status of the case, that may be a somewhat bitter pill to swallow:

This new wrinkle came in a week that also saw some forward movement in the case. On Wednesday, after months of effort by the defense, a representative for the Department of Social Services agreed to release a portion of some confidential records long sought in the case.

The whole situation is a mess that could’ve been prevented long ago. Now, there’s a defense lawyer who’s got a year of work under his belt and seems to be doing a good job for his client but who, following a hard fought victory on an unrelated issue, now finds himself potentially facing removal from the case.

It’s impossible to know what’s motivated the prosecutors, but that isn’t the real issue. A conflict is a conflict. Virginia may intentionally not prohibit an appearance of impropriety in its conflict rules, but the situation with Furrow is simply too troublesome to let stand. Whether prosecutors raised the issue in bad faith or because they actually care about privileged information Furrow got from Jason Perdue or the potential Furrow might let his relationship with Jason Perdue limit his representation of Hope Perdue, they’re right to ask that Furrow be removed.

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  • Moreover
    8 July 2016 at 11:31 am - Reply

    Smart prosecutors know that any conviction that might be obtained in these circumstances would be vulnerable on appeal. As a result, there’s often a third possible motive: the prosecutor may not be trying to protect anyone’s sixth amendment rights, and may not be trying to get rid of defense counsel. They could just want the defendant to be advised of his sixth amendment rights and to get a valid waiver on the record.

    • TMM
      8 July 2016 at 4:32 pm - Reply

      In my experience, a lot of prosecutor’s faced with dual representation, practice “defensive prosecution” by having the conflict discussed on the record so that there is a clear record that the client has consented. That type of hearing is no different than a Fry hearing to put the plea offer on the record or requiring a defendant to personally disclose which constitutional right (the right to remain silent or the right to testify) that he wishes to knowingly and intelligently waive at trial.

      Outside of the dual representation case, the only time that I can remember as a prosecutor ever asking for the defense attorney to recuse was when we had information suggesting that the defense attorney had advised his client to destroy evidence before the police could get a search warrant.