State v. White

114 S.W.3d 469 (2003)

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Nature of the Case

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Facts

White (D) was indicted for the offenses of attempt to commit first-degree murder, especially aggravated robbery, especially aggravated burglary, and especially aggravated kidnapping. D retained Mark S. McDaniel as his defense counsel. McDaniel represented D at his preliminary and arraignment in the Criminal Court. McDaniel conducted discovery, requested a trial date, and prepared D's defense. During the time McDaniel was serving as D's defense counsel, he was also serving as a part-time prosecutor for the Town of Collierville in Shelby County, Tennessee. In addition, the District Attorney of Shelby County had appointed McDaniel to serve as an assistant district attorney for Shelby County, and he had been sworn in by a Shelby County Criminal Court judge. The appointment was for the purpose of conveying authority upon McDaniel to prosecute state criminal law violations, in addition to municipal law violations, before the Collierville Municipal Court. On July 9, 2001, the Board of Professional Responsibility issued an unpublished advisory opinion addressing the question of whether it is ethically appropriate for a part-time Assistant District Attorney to prosecute and represent criminal defendants within the same judicial district. It held that such representation was unethical because the prosecutor's duties to the public and the criminal defense lawyer's duties to the accused are inherently antagonistic and cannot be waived by the public. P filed a motion in the Criminal Court to disqualify McDaniel from representing D. McDaniel conceded that while prosecuting cases in the Collierville Municipal Court on behalf of both the State of Tennessee and the Town of Collierville, he had engaged in a private law practice, which included the defense of individuals charged with committing criminal offenses in the Shelby County General Sessions and Criminal Courts. D testified that he was aware of McDaniel's position as a part-time assistant district attorney general, and he agreed to waive any actual or perceived conflicts of interest. The court found a perceived conflict of interest. It then held that even if the above facts do not give rise to an actual conflict of interest, P has met its burden of proving that a perceived conflict of interest exists which could not be waived by D without P's consent. The court discounted D's claim that he would be prejudiced if forced to retain new counsel and instead determined that D's right to 'fair and impartial representation' would actually be fostered by McDaniel's removal. The court of appeals affirmed and D appealed.