COMMONWEALTH vs. ANTHONY DEW.

WENDLANDT, J. The defendant, Anthony J. Dew, is a Black man of the Muslim faith. Indigent and facing multiple felony charges, the defendant was appointed counsel who openly posted, on his social media account, his vitriolic hatred of and bigotry against

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persons of the Muslim faith; his unabashed anti-Muslim rants were matched only by his equal scorn for and racism against Black persons. Some of these postings occurred while counsel was representing the defendant. Indeed, counsel's intolerance and prejudice seeped into his representation of the defendant. At least twice, counsel chastised the defendant for wearing religious garb, demanding that the defendant not wear "that shit" again; once, he refused to speak to the defendant because the defendant was wearing a kufi prayer cap in contravention of counsel's directive. At their final meeting, counsel advised the defendant to accept a plea deal, which the defendant did. Several years later, counsel's bigotry came to the attention of the Committee for Public Counsel Services (CPCS), which suspended him for no less than one year as a result. After learning of counsel's anti-Muslim, racist postings, the defendant filed a motion to withdraw his guilty plea and obtain a new trial on the ground that his court-appointed counsel had an actual conflict of interest.

We conclude that the conflict of interest inherent in counsel's bigotry against persons of the defendant's faith and race, which manifested during counsel's representation of the defendant, deprived the defendant of his right to effective assistance of counsel -- a right upon which our entire system of criminal justice depends to ensure a "fair trial." See Gideon v. Wainwright, 372 U.S. 335, 344 (1963). See also Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228, 235 (2004), citing Strickland v. Washington, 466 U.S. 668, 685 (1984). No additional showing of "prejudice" is required. The motion judge's conclusion to the contrary was in error; we now vacate the defendant's convictions and remand for a new trial. [Note 1]

1. Background. The following facts, found by the motion judge, are largely undisputed. [Note 2] The defendant is a Black man of the Muslim faith. In March 2015, the defendant was indicted on nineteen charges, including five counts of trafficking a person for

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sexual servitude, in violation of G. L. c. 265, § 50 (a) (trafficking charges); and one count of rape, in violation of G. L. c. 265, § 22 (b) (rape charge). [Note 3] In February 2016, Richard Doyle was appointed to represent the defendant.

During one of the first encounters between the defendant and Doyle, the defendant was wearing a kufi prayer cap. Doyle demanded that the defendant remove his religious garb, instructing him, "Don't come in this room like that ever." [Note 4] At a meeting approximately two weeks later, Doyle left without speaking with the defendant upon seeing that the defendant again was wearing a kufi. Doyle again met with the defendant at the court house shortly before the scheduled trial date in May 2016. At this meeting, Doyle chastised the defendant, in front of a court officer, not to wear "that shit" -- an apparent reference to the defendant's kufi -- in court. Doyle also advised the defendant to accept a plea offer and informed him that any attempt to seek new appointed counsel would likely be futile on the eve of trial.

In June 2016, the defendant pleaded guilty to all but the rape charge as part of a plea agreement pursuant to which the prosecutor agreed to dismiss the rape charge. [Note 5] The trial judge

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conducted a colloquy during which the defendant stated that he was satisfied with counsel's representation and that no one had pressured him into pleading guilty. As was recommended in the agreement, the trial judge sentenced the defendant to concurrent terms of from eight to ten years in State prison for four of the five counts of trafficking a person for sexual servitude, in violation of G. L. c. 265, § 50 (a), and the count charging a second and subsequent offense of possession of a class A substance with intent to distribute, in violation of G. L. c. 94C, § 32 (b). On the remaining counts, the judge sentenced the defendant to seven years of probation from and after his incarceration.

Unbeknownst to the defendant, from at least 2014 through 2017, including during the time Doyle represented the defendant, Doyle made and shared [Note 6] numerous racist and bigoted public [Note 7] postings on his social media account, reflecting prejudice against Black persons and persons of the Muslim faith. These posts, which we set forth in the margin, [Note 8] included a variety of anti-Muslim slurs and statements calling for violence against and celebrating the death of persons of the Muslim faith, [Note 9] posts

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mocking Black individuals, [Note 10] and comments, some apparently made at a State court house, [Note 11] seemingly referring to Doyle's clients as "thugs" [Note 12] and suggesting that Doyle's nonwhite clients were criminals. [Note 13]

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In 2017, CPCS investigated a complaint against Doyle and concluded, based on the social media posts, that Doyle violated his duty of loyalty to his Muslim and "other non-Caucasian" clients; CPCS suspended Doyle from criminal case assignments for a period of one year and required Doyle to take ethics and cultural competency courses. [Note 14]

The defendant was unaware of Doyle's bigotry until 2021, well after his agreement to the plea deal, when he was shown Doyle's posts; prior to that time, the defendant did not attribute Doyle's comments regarding the defendant's religious garb to racism or to animus against persons of the Muslim faith. After learning of the posts, the defendant filed a motion for a new trial and for leave to withdraw his guilty pleas; he claimed, inter alia, that Doyle had an actual conflict of interest and thus Doyle's representation of him violated his right to the effective assistance of counsel under art. 12 of the Massachusetts Declaration of Rights and the Sixth Amendment to the United States Constitution.

After an evidentiary hearing, the motion judge denied the

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motion. She concluded that absent a showing of prejudice or "any showing that [Doyle's] views affected [his] representation of the defendant," the defendant was not entitled to withdraw his guilty plea. [Note 15] Rejecting the defendant's argument that nonetheless he was entitled to withdraw his plea because Doyle had an actual conflict of interest in representing Black, Muslim individuals, the judge explained that defense counsel and his or her client need not "share the same worldview," that "criminal defense attorneys often have to represent people who in their opinion have committed reprehensible acts," and that "a lawyer who expresses racist views in his personal life" is not "presumed ineffective any time that he or she represents a client of color." [Note 16] The defendant timely appealed, and this court granted his application for direct appellate review.

2. Discussion. a. Standard of review. "[W]e review a judge's denial of a defendant's motion for a new trial to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Tate, 490 Mass. 501, 505 (2022), quoting Commonwealth v. Caldwell, 487 Mass. 370, 374 (2021). "Where an evidentiary hearing is conducted on a motion for a new trial, we 'accept the [judge's] findings where they are

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supported by substantial evidence in the record,' and we 'defer to the judge's assessment of the credibility of witnesses.'" Tate, supra, quoting Commonwealth v. Jacobs, 488 Mass. 597, 600 (2021). However, we "make an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found." Caldwell, supra, quoting Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011).

b. Effective assistance of counsel. It is difficult to overstate the essential importance of the right to counsel [Note 17] in our adversary system of criminal justice. See United States v. Cronic, 466 U.S. 648, 653 (1984) (accused person's right to counsel "is a fundamental component of our criminal justice system"). The procedural and substantive safeguards that define our criminal justice system and are designed to assure that the accused receives fair proceedings and a fair trial largely would be for naught if the accused were left to fend for him-or herself without the assistance of counsel to navigate and exercise his or her rights. Gideon, 372 U.S. at 344-345. See Cronic, supra at 653-654 ("Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have" [citation omitted]; counsel's assistance is "the means through which the other rights of the person on trial are secured"). The right to be heard, and even the right to a trial itself, "would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel." Powell v. Alabama, 287 U.S. 45, 68-69 (1932). See Cronic, supra at 653 n.8, quoting Powell, supra at 69 (accused person "requires the guiding hand of counsel at every step in the proceedings against him"). [Note 18]

"The very premise of our adversary system of criminal justice

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is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free." [Note 19] Herring v. New York, 422 U.S. 853, 862 (1975). "Unless the accused receives the effective assistance of counsel, 'a serious risk of injustice infects the [criminal] trial [process] itself.'" [Note 20] Cronic, 466 U.S. at 656, quoting Cuyler v. Sullivan, 446 U.S. 335, 343 (1980). See United States v. Ash, 413 U.S. 300, 309 (1973), quoting Johnson v. Zerbst, 304 U.S. 458, 462-463 (1938) (right to counsel "minimize[s] the imbalance in the adversary system" and "embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life of liberty, wherein the prosecution is presented by experienced and learned counsel"). In short, lawyers in criminal cases are "necessities, not luxuries." Cronic, supra at 653, quoting Gideon, 372 U.S. at 344. See Gideon, supra (it is "an obvious truth" that "in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him"). [Note 21]

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c. Conflict of interest. Given the primacy of counsel towards the realization of fair proceedings and a fair trial in our adversarial system, the constitutional guarantee entitles an accused person "to the untrammeled and unimpaired assistance of counsel free of any conflict of interest and unrestrained by commitments to others" and other causes (citation omitted). Commonwealth v. Hodge, 386 Mass. 165, 167 (1982). See Strickland, 466 U.S. at 688 ("Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty . . ."); Commonwealth v. Perkins, 450 Mass. 834, 850 (2008) (defendant must "be able to seek the advice and guidance of his attorney and . . . to rely on the undivided loyalty of his counsel to present the defense case with full force and zealousness" [citation omitted]). See also Commonwealth v. Leiva, 484 Mass. 766, 779 (2020) ("That foundational proposition tying partisan advocacy to just results demands an accused's access to defense counsel who projects [t]he manifest appearance of a believer in the defendant's chosen plea of 'not guilty' . . . and delivers on the constitutional guaranty that a defendant need not stand alone against the State at any stage of the prosecution . . . where counsel's absence might derogate from the accused's right to a fair trial" [quotations and citations omitted]).

Accordingly, "under art. 12, if a defendant establishes an actual conflict of interest, [Note 22] he is entitled to a new trial without a further showing; he need not demonstrate that the conflict adversely

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affected his lawyer's performance [Note 23] or resulted in actual prejudice," Commonwealth v. Mosher, 455 Mass. 811, 819 (2010); the standard from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), [Note 24] which generally governs ineffective assistance of counsel claims, is inapt because, where counsel has an actual conflict of interest, the criminal trial process "loses its character as a confrontation between adversaries," Cronic, 466 U.S. at 656-657. See id., quoting United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir.), cert. denied sub nom. Sielaff v. Williams, 423 U.S. 876 (1975) ("While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators"). See also Commonwealth v. Valentin, 470 Mass. 186, 196 (2014) (such errors "render the adversary process itself presumptively unreliable" such that "a criminal trial [is] fundamentally unfair or an unreliable vehicle for determining guilt or innocence" [quotations and citations omitted]); Commonwealth v. Goewey, 452 Mass. 399, 403 & n.3 (2008) ("relief can be granted without consideration of the merits of the defendant's underlying claims" in "limited class of cases" in which "the attorney abdicated his responsibility as the defendant's advocate").

A defense counsel makes countless choices, on and off the record, to protect a defendant's rights, and we rely on counsel's zealous advocacy, unimpeded by a conflict of interest, to ensure that no person is punished without fair proceedings; when a counsel's professional judgment is impaired by an actual conflict of interest, every action, and inaction, is called into question, and we cannot be confident that the outcome of the proceedings is fair and just. "[T]he effect of the conflict on the attorney's representation of the defendant is likely to be pervasive and unpredictable, while the difficulty of proving it may be substantial, 'particularly as to things that may have been left not said or not done by counsel.'" Mosher, 455 Mass. at 819, quoting Hodge, 386 Mass.

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at 170. In other words, "[i]t is impossible to know what different choices [a nonconflicted] counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings." Commonwealth v. Francis, 485 Mass. 86, 101 (2020), cert. denied, 141 S. Ct. 2762 (2021), quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006). See Holloway v. Arkansas, 435 U.S. 475, 490-491 (1978) (conflict bears on what "the advocate finds himself compelled to refrain from doing" and so is "difficult to judge intelligently" because "to assess the impact of a conflict of interests on the attorney's options, tactics, and decisions in plea negotiations would be virtually impossible," requiring "unguided speculation").

In such circumstances, the conflict has "infect[ed] the defendant's representation to the point where 'prejudice is "inherent in the situation," such that no impartial observer could reasonably conclude that the attorney is able to serve the defendant with undivided loyalty.'" Commonwealth v. Cousin, 478 Mass. 608, 617 (2018), S.C., 484 Mass. 1042 (2020), quoting Mosher, 455 Mass. at 819-820. See Perkins, 450 Mass. at 850 (defendant "must be able to rely on the undivided loyalty of his counsel" [citation omitted]). See also Commonwealth v. Goldman, 395 Mass. 495, 508, cert. denied, 474 U.S. 906 (1985) ("Counsel's undivided loyalty to the client is crucial to the integrity of the entire adversary system"). Accordingly, "[w]here the defendant's counsel has labored under an actual . . . conflict, . . . we are unwilling to put a defendant 'to the burden, perhaps insuperable, of probing the resolve and the possible mental conflict of counsel.'" [Note 25], [Note 26] Mosher, supra at 819, quoting Commonwealth v. Cobb, 379 Mass. 456, 461 (1980), vacated sub nom. Massachusetts v.

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Hurley, 499 U.S. 809 (1980), appeal dismissed, 382 Mass. 690 (1981). See Cronic, 466 U.S. at 658 (representation by conflicted counsel is "so likely to prejudice the accused that the cost of litigating [its] effect in a particular case is unjustified").

d. Racist, anti-Muslim animus. Doyle's animus against persons of the Muslim faith and his racism against Black persons, demonstrated by his social media posts (some of which were made at the court house while he was serving clients in his professional capacity), and manifest in his treatment of the defendant -- a Black, Muslim man -- during the representation, presented an actual conflict of interest in this case. [Note 27] Doyle's social media postings "exhibited an intensity of bias that cannot be squared with []neutral decision making," Ellis v. Harrison, 947 F.3d 555, 563 (9th Cir. 2020) (Nguyen, J., concurring), as his other overt acts during the representation confirm. The defendant has shown that Doyle's biases infected his representation of the defendant. The record developed by the defendant shows more than a few stray social media postings, or comments made in the wake of highly charged emotional or shocking events, untethered to Doyle's conduct during the defendant's representation. See id. ("I do not suggest that every attorney who utters a racial epithet will be unable to adequately defend clients of a different race"). Instead, the defendant has shown a pattern of posts reflecting the intensity of Doyle's bias, coupled with a record that Doyle was unable to divorce his animus from his conduct as the defendant's counsel.

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Although we cannot know with certainty whether Doyle's actions or inactions during the course of the representation were "motivated by anything other than [the defendant's] best interest," Hodge, 386 Mass. at 168, on the record before us, we cannot credibly assume that Doyle's representation was not affected by his virulent anti-Muslim and racist views, see Ellis, 947 F.3d at 562 (Nguyen, J., concurring) (when defense counsel makes "discretionary decisions in disregard of the client's interests on account of counsel's racism, the cumulative effect will be to impair the defense, but there is no way to pinpoint how it does so"). Importantly, we cannot know whether an attorney who did not share the animus Doyle harbored for persons of the Muslim faith and Black persons would have negotiated a better plea agreement. Nor can we know whether Doyle's other actions in the case were unaffected by his views regarding Black, Muslim individuals. Where, as the record shows was the case here, counsel harbors a deep-seated animus for persons of the defendant's race [Note 28] or religion, we cannot presume zealous advocacy; nor can we ask the defendant to prove how his counsel's bigotry might have affected the plea deal or otherwise impaired the representation, especially in view of the record that Doyle's bias reared its head in connection with his treatment of the defendant. [Note 29] There are "many invisible ways in which counsel's bias could have affected the [proceeding]," Ellis, supra at 563 (Nguyen, J., concurring), and the defendant need not engage in "a speculative inquiry into what might have occurred in an alternate universe" had he been appointed unbiased counsel, Francis, 485 Mass. at 101, quoting Gonzalez-Lopez, 548 U.S. at 150.

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We recognize that "[c]riminal defense attorneys are accustomed to representing individuals who commit reprehensible acts, and we assume that they can set aside any personal distaste for such clients during the representation." [Note 30] Ellis, 947 F.3d at 563 (Nguyen, J., concurring). Here, however, Doyle did not leave his deep-seated bigotry at the court house door, despite his duty of loyalty to the defendant; to the contrary, consistent with his contemporaneous anti-Muslim, anti-Black social media postings and his court house "check ins," Doyle ordered the defendant to stop wearing his religious garb and refused to meet with the defendant, choosing instead to forgo the opportunity to discuss the merits of the criminal case, upon seeing that the defendant was wearing his kufi. Our confidence that the defendant was afforded a constitutionally fair process is necessarily undermined. See id. at 562 (Nguyen, J., concurring) ("A trial is fundamentally unfair if defense counsel harbors extreme and deep-rooted ill will toward the defendant on account of his race"). Given Doyle's treatment of the defendant, we conclude that the defendant has more than met his burden to establish that Doyle's representation of him was impaired by an actual conflict of interest. See Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986) (defendant bears burden to establish actual conflict of interest).

3. Conclusion. The order denying the defendant's motion for a new trial is reversed. [Note 31] The defendant's convictions are vacated, the defendant is to be permitted to withdraw his guilty plea, and the case is remanded for a new trial.

So ordered.

CYPHER, J. (concurring). The numerous, severe, and cruel racist and anti-Muslim social media posts and commentary by Attorney Richard Doyle recited by the court easily establish an actual conflict of interest that deprived the defendant of his constitutional right to effective assistance of counsel. I agree with the

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court that no impartial observer reasonably could conclude that counsel was able to serve the defendant with undivided loyalty. See Commonwealth v. Mosher, 455 Mass. 811, 819-820 (2010).

I write separately to emphasize that once an actual conflict has been established there is no need to prove that the actual conflict prejudiced the defendant. There is a clear line between actual and potential conflicts of interest and Attorney Doyle's behavior toward the defendant, which, while adding context to the discussion, is not necessary to determine whether there was an actual conflict. Cf. Ellis v. Harrison, 947 F.3d 555, 563 (9th Cir. 2020) (Nguyen, J., concurring) ("I do not suggest that every attorney who utters a racial epithet will be unable to adequately defend clients of a different race"). Where the defendant has demonstrated an actual conflict of interest, art. 12 of the Massachusetts Declaration of Rights requires neither a showing of prejudice nor a showing that the conflict adversely affected counsel's performance. Commonwealth v. Holliday, 450 Mass. 794, 806 (2008). See Commonwealth v. Cousin, 478 Mass. 608, 617 (2018) (actual conflict requires no showing of prejudice by defendant because prejudice is inherent). Compare Commonwealth v. Watkins, 473 Mass. 222, 235 (2015) ("If a defendant establishes only a potential or tenuous conflict of interest, however, the conviction will not be set aside unless the defendant demonstrates that the conflict resulted in actual prejudice" [emphasis added]), with Mosher, 455 Mass. at 819 (where defendant "establishes an actual conflict of interest, he is entitled to a new trial without a further showing").

I also write separately because the nature of this conflict and its potential scope require that we recognize that not only the defendant is affected. Public confidence in the integrity of the criminal justice system is essential to its ability to function. See Georgia v. McCollum, 505 U.S. 42, 49 (1992). We must be aware of and concerned with the confidence of not just this defendant, and not just all Black and Muslim clients represented by Attorney Doyle, but rather all Black persons and members of the Muslim faith in our community, not simply those who have come into contact with the criminal justice system. See Commonwealth v. Goldman, 395 Mass. 495, 508 (1985) (defense counsel's undivided loyalty to client is crucial to integrity of entire adversarial system). In fact, all of the people of the Commonwealth can be affected by a loss of confidence in the justice system in circumstances such as these when they come to light. The court's

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decision today serves to encourage us all that the court system is able to respond in a manner that strengthens that confidence.