COMMONWEALTH vs. DANIEL DOWNEY (and a companion case [Note 1]).

BERRY, J. These companion cases involve the extraordinary and legally portentous circumstance of two defense counsel for two defendant brothers on trial for murder in the first degree entering into an arrangement with the film company Lion Television Limited (Lion), in which, without the consent of their clients, the lawyers undertook to wear concealed microphones tied to recording devices during the course of a criminal trial. The attorneys' communications with their clients during trial were within range of the hidden microphones and were captured, if the microphones were not shut off, or if the recording system was not muted. As shall be seen, the microphones remained active during most of, if not all of, the trial and did, in fact, record privileged attorney-client communications, certain of which were later broadcast on television and published in print. As noted, all of this was done without the consent or, initially, the knowledge of the accused clients being tried. [Note 2]

The trial judge was also unaware that defense counsel were equipped with hidden microphones and that the attorneys' voices and communications with their clients were being recorded. [Note 3] Thus, unbeknownst to the trial judge and without the consent of the defendants, the broadcast recording arrangement not only

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reached public speech and acts in the courtroom, but also intercepted private and privileged conversations between the lawyers and clients on trial. [Note 4]

In our opinion, as confirmed by the additional evidence developed in an evidentiary hearing conducted on remand from a prior appeal to this court (see infra), the recording arrangement that defense counsel entered into constituted a direct, actual conflict of interest. For the accused clients on trial, the unconsented-to broadcast agreement infringed Federal and State constitutional rights to legal representation and a fair trial unfettered by any divided allegiances on the part of defense counsel. [Note 5]

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For the trial lawyers conducting the defense of the accused on trial, the broadcast agreement breached the attorneys' ethical and representational obligations to conduct the defense in a criminal proceeding to the fullest extent of the attorneys' advocacy skills unencumbered by any competing allegiances. [Note 6], [Note 7], [Note 8]

This is the third time the case has come before this court. First, on direct appeal, the convictions were affirmed. Commonwealth v. Downey, 56 Mass. App. Ct. 1111 (2002) (Downey I). Second, posttrial, there was an appeal from the denial of a new trial motion by defendant Daniel Downey, which new trial motion and ensuing appeal were predicated upon the constitutional flaws in legal representation arising out of the defense attorneys' broadcast arrangement. Commonwealth v. Downey,

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58 Mass. App. Ct. 591 (2003) (Downey II). [Note 9] In Downey II, we remanded for an evidentiary hearing to determine the facts concerning whether (a) the defendants had in any way consented to their trial attorneys' recording and broadcast arrangement [Note 10]; (b) if there was not such consent, the recording deal by the attorneys posed an actual conflict in the legal representation of the defendants in the trial on the murder indictments; and (c) the defendants' constitutional rights to effective assistance of counsel and a fairly conducted trial were otherwise impaired. Id. at 592. [Note 11]

Having conducted an evidentiary hearing on remand, the Superior Court judge (who also had presided over the original murder trial) issued orders and a comprehensive memorandum, which set forth detailed factual findings directed to these central questions. Given the evidence adduced before him, the judge decided that a new trial was warranted. In the present third appeal in our court, the Commonwealth challenges the new trial orders. We affirm.

We begin with the fundamental precepts that govern criminal trials in the American system of justice. "The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the 'ample opportunity to meet the case of the prosecution' to which they are entitled." Strickland v. Washington, 466 U.S. 668, 685 (1984), quoting from Adams v. United States ex rel. McCann, 317 U.S. 269, 275 (1942). Integral to the preservation of constitutional representation rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights is that a defendant must be able to seek the advice

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and guidance of his attorney and must be able to rely on the undivided loyalty of his counsel to present the defense case with full force and zealousness. "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel . . . . [A defendant] lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him." Gideon v. Wainwright, 372 U.S. 335, 344-345 (1963), quoting from Powell v. Alabama, 287 U.S. 45, 68-69 (1932). The evidence presented at the remand hearing, confirmed by the judge's findings, [Note 12] makes clear beyond any question that these constitutional rights of fair and full legal representation were violated and, accordingly, that a new trial is compelled.

1. The absence of the defendants' consent. Based on the evidence presented at the remand hearing, the judge's findings and answer to the question whether the defendants had consented to their lawyers wearing microphones and recording privileged conversations during trial was unequivocal:

"[I]t is abundantly clear that neither Daniel nor Joseph voluntarily, knowingly and intelligently consented to the agreement which his attorney reached with Lion to wear a body microphone . . . . Moreover, even if their silence about the issue could be construed to be consent, it is clear that neither [attorney for the defendants] explained to them the potential pitfalls of the microphone arrangement and therefore that their consent was not voluntarily, knowingly, and intelligently given."

Given the lack of consent, we turn then, as did the Superior Court judge, to the ensuing questions whether the attorneys' wearing of the microphones under their recording arrangement with Lion gave rise to an actual conflict of interest that undermined the attorney-client relationship, disclosed confidences and client secrets, and yielded constitutionally inadequate representation.

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2. The conflict issues and adequate legal representation. The judge found there was an actual conflict of interest:

"[T]he testimony at the hearing on these motions has led me to the conclusion that both [defense counsel] had competing responsibilities. On the one hand, they had a responsibility to their clients to focus their full attention on the trial of the case, and to maintain the confidentiality of their conversations with their clients. On the other hand, they assumed a responsibility to Lion to wear microphones and thus to jeopardize the confidentiality of their conversations . . . . In effect, they obligated themselves to permit an intrusion into the attorney-client relationship."

These findings, amply supported by the evidence at the remand hearing, establish divided loyalty by defense counsel that, as matter of law, posed an actual conflict of interest. Given the attorneys' "extra" allegiances to the broadcasting company, it cannot be gainsaid that the attorneys' trial advocacy for the defendants was not "unrestrained by commitments to others." Commonwealth v. Martinez, 425 Mass. 382 , 388 (1997), quoting from Commonwealth v. Michel, 381 Mass. 447 , 453 (1980). Simply put, the defendants were represented by counsel who had competing interests. [Note 13]

Our State law is settled: where there is an actual conflict of interest, a defendant need not prove specific prejudice. Rather, prejudice is presumed to flow from the conflict. [Note 14] Commonwealth v. Martinez, supra at 388. Commonwealth v. Allison, 434 Mass. 670 ,

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688 (2001). As we observed in Downey II, once there is a conflict of interest in criminal defense representation, a defendant should not be, and is not, required to prove by particularized example the precise manner and means by which the conflict hurt the defense, that is, whether a particular act was not done by trial counsel to the defense, or whether if a particular act was done, it was prejudicially done. Nor, to obtain a new trial, is a defendant required to disclose what matters were not communicated to and from the attorney and the accused client, or what matters were communicated and were, thereby, placed at risk of disclosure because of the attorney's conflicted representation. To demand that a defendant bear such burdens of proof of and concerning what would have been said but was silenced, and what transpired or did not transpire between the accused on trial and his lawyer would, in effect, corrode the overarching metal of the attorney-client structure that rests on the bedrock of the constitutional right to effective representation. To impose such burdens of proof on a defendant, as we said in Downey II, would yield "a Pyrrhic victory for the defendant to gain a new trial if in order to do so he must disclose information or trial strategy previously withheld to protect its confidentiality." Id. at 597 n.12.

Given the foregoing, the new trial motions could have been allowed solely on the basis of the attorneys' actual conflict. The Superior Court judge, however, with commendable diligence, did not rest his decision exclusively on presumed prejudice flowing from the attorneys' actual conflict. Instead, the judge delved deeper during the evidentiary hearing and, in extended findings, ruled that the recording plan, even apart from the legally imposed presumption of prejudice, in reality deprived the defendants of their right to effective assistance of counsel. According to the judge's findings, "there were times during the course of the trial when [the defendants] felt intimidated by the microphones and therefore . . . were not as forthcoming with their attorneys as they otherwise might have been." In our opinion, both the risk and actuality of unauthorized disclosures of privileged communications manifestly undermined the attorney-client relationship and the obligation of counsel to

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advance a vigorous defense. Thus, there was a real and present prospect that confidential information would be, and was, in fact disclosed, piercing the "heart of the relationship of confidence between the defendant and his attorney." Downey II, 58 Mass. App. Ct. at 595.

As demonstrative of the breach of confidences, the judge noted that one such recorded conversation not only was broadcast on the nationwide television program "Frontline," but also was subsequently published in a book. [Note 15] The published conversation involved one trial attorney's advice during the course of trial directed to the prospect of the defendant entering a plea of guilty. Such privileged and confidential communication lies at the heart of confidential and strategic decisions between the accused client and defense counsel -- which is precisely why the law for centuries has protected privileged attorney-client communication. See, e.g., Geders v. United States, 425 U.S. 80 (1976). Wigmore describes the attorney-client privilege as "the oldest of the privileges for confidential communication." 8 Wigmore, Evidence § 2290, at 542 (McNaughton rev. ed. 1961). See Imwinkelried, The New Wigmore: Evidentiary Privileges § 2.2 (2002). The attorney-client privilege "is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences

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or the apprehension of disclosure." Matter of a John Doe Grand Jury Investigation, 408 Mass. 480 , 481-482 (1990), quoting from Hunt v. Blackburn, 128 U.S. 464, 470 (1888).

In the extreme and unusual circumstances of these cases, [Note 16] the intertwined conflict-ridden representation and the open breaches of confidences and privileges splintered true attorney-client relationships and deprived the defendants, who had not consented to this agreement, of the effective legal assistance at trial guaranteed by the Massachusetts and United States Constitutions.

Orders allowing motions for new trial affirmed.