Q: Does a conflict of interest exist if a prosecutor is related to the "victims" in a criminal case.
The prosecutor Anson Call in Power County Idaho was related to the "victims" of a burglary case. He was also related to a jury member who became the foreman. Niether relationship was disclosed before or during trial.
Conflict of Interest is a serious problem in small counties. The Idaho Rules of Professional Conduct are often consulted by these prosecutors prior to initiating prosecutions, but sometimes it is "overlooked" due to practical considerations, such as money or lack of money to conflict the case to the neighboring county prosecutor. Idaho Rule of Professional Conduct 1.7, specifically says such a family interest, is a conflict of interest:
RULE 1.7: CONFLICT OF INTEREST:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of
interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by the personal interests of the lawyer, including family and domestic relationships.
However, as I said earlier, such conflicts are often "over-looked," but only under the following circumstances:
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and,
(4) each affected client gives informed consent, confirmed in writing.
So, in summary, the prosecutor should have done all 4 of the above:
1. Conduct a self, investigation, to see if he believes he can represent the State of Idaho zealously, when he is related to the victims of a crime he is prosecuting. I don't personally believe his relationship to the victims of a crime, makes him any less able to prosecute zealously, than if the victims had been unknown to him, so on this score I give him a "pass;"
2. The representation is NOT prohibited by any law that I am familiar with;
3. This is not a situation where the victims are represented by other lawyers and the prosecutor's client, who is the State of Idaho, is represented by a different lawyer, the PA is the same lawyer in both situations;
4. I don't believe he has a conflict of interest, as to the victims of a crime he is prosecuting, so he would not be required to get their signed, waiver of his conflict.
His conflict with the juryman who became Foreman, is MUCH more problematic to me. This fact SHOULD HAVE been brought out in Voir Dire by the Court. This makes his prosecution very suspect and subject to a Motion to Dismiss, or a Post-Conviction motion.
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