Cuyler test in District of Columbia

1999Even though we conclude that Ve-ney has not established an actual conflict of interest, we will address the second prong of the Cuyler test, viz., whether an alleged conflict actually affected the attorney’s performance. 446 U.S. at 348 , 100 S.Ct. 1708 ; Derrington, supra, 681 A.2d at 1136 . 13 A conflict actually affects the attorney’s performance where, for example, a strategy is foreclosed to the defendant because it would hinder the attorney’s representation of his or her other client.

1999Even though we conclude that Ve-ney has not established an actual conflict of interest, we will address the second prong of the Cuyler test, viz., whether an alleged conflict actually affected the attorney’s performance. 446 U.S. at 348 , 100 S.Ct. 1708 ; Derrington, supra, 681 A.2d at 1136 . 13 A conflict actually affects the attorney’s performance where, for example, a strategy is foreclosed to the defendant because it would hinder the attorney’s representation of his or her other client.

2007This is essential because unless a defendant has chosen to waive his “valued right to have his trial completed by a particular tribunal,” Wade v. Hunter, 336 U.S. 684, 689 , 69 S.Ct. 834 , 93 L.Ed. 974 (1949), by requesting or agreeing to a mistrial, double jeopardy protection precludes reprosecution unless the trial court terminates a trial for manifest necessity. 1 See United States v. Perez, 22 U.S. (9 Wheat) 579, 579-80, 6 L.Ed. 165 (1824) (cited in Vega v. United States, 709 A.2d 1168, 1171 (D.C.1998)).

2007This is essential because unless a defendant has chosen to waive his "valued right to have his trial completed by a particular tribunal," Wade v. Hunter, 336 U.S. 684, 689 , 69 S.Ct. 834 , 93 L.Ed. 974 (1949), by requesting or agreeing to a mistrial, double jeopardy protection precludes reprosecution unless the trial court terminates a trial for manifest necessity. [1] See United States v. Perez, 22 U.S. (9 Wheat) 579, 579-80, 6 L.Ed. 165 (1824) ( cited in Vega v. United States, 709 A.2d 1168, 1171 (D.C.1998)).

2007In Veney , we took particular note of what we termed "the second prong of the Cuyler test; viz., whether an alleged conflict actually affected the attorney's performance." 738 A.2d at 1196 . [5] We observed that, for example, "a trial attorney's performance is not adversely affected where the best interest of the client `could have dictated precisely the course suggested' by the trial attorney." 738 A.2d at 1197 (quoting from Carey v. United States, 50 F.3d 1097, 1100 (1st Cir.1995)).

2007In Veney , we took particular note of what we termed "the second prong of the Cuyler test; viz., whether an alleged conflict actually affected the attorney's performance." 738 A.2d at 1196 . [5] We observed that, for example, "a trial attorney's performance is not adversely affected where the best interest of the client `could have dictated precisely the course suggested' by the trial attorney." 738 A.2d at 1197 (quoting from Carey v. United States, 50 F.3d 1097, 1100 (1st Cir.1995)).

2007This is essential because unless a defendant has chosen to waive his "valued right to have his trial completed by a particular tribunal," Wade v. Hunter, 336 U.S. 684, 689 , 69 S.Ct. 834 , 93 L.Ed. 974 (1949), by requesting or agreeing to a mistrial, double jeopardy protection precludes reprosecution unless the trial court terminates a trial for manifest necessity. [1] See United States v. Perez, 22 U.S. (9 Wheat) 579, 579-80, 6 L.Ed. 165 (1824) ( cited in Vega v. United States, 709 A.2d 1168, 1171 (D.C.1998)).

2007This is essential because unless a defendant has chosen to waive his "valued right to have his trial completed by a particular tribunal," Wade v. Hunter, 336 U.S. 684, 689 , 69 S.Ct. 834 , 93 L.Ed. 974 (1949), by requesting or agreeing to a mistrial, double jeopardy protection precludes reprosecution unless the trial court terminates a trial for manifest necessity. [1] See United States v. Perez, 22 U.S. (9 Wheat) 579, 579-80, 6 L.Ed. 165 (1824) ( cited in Vega v. United States, 709 A.2d 1168, 1171 (D.C.1998)).

2007RUIZ, Associate Judge, dissenting: Although I agree with the court that appellant did not satisfy Cuyler's test by establishing an adverse effect from his counsel's conflict, I would hold that the Double Jeopardy Clause bars a retrial because the mistrial in this case cannot be said to have been appellant's choice. "[T]he important consideration, for purposes of the Double Jeopardy Clause, is *780 that the defendant retain primary control over the course to be followed. . . ." United States v. Dinitz, 424 U.S. 600, 609 , 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976) (emphasis added).

2007RUIZ, Associate Judge, dissenting: Although I agree with the court that appellant did not satisfy Cuyler's test by establishing an adverse effect from his counsel's conflict, I would hold that the Double Jeopardy Clause bars a retrial because the mistrial in this case cannot be said to have been appellant's choice. "[T]he important consideration, for purposes of the Double Jeopardy Clause, is *780 that the defendant retain primary control over the course to be followed. . . ." United States v. Dinitz, 424 U.S. 600, 609 , 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976) (emphasis added).

2007To see why, assume a case where the trial judge has allowed a defendant to go to trial representing himself without an adequate waiver-of-counsel inquiry under Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975).

2007To see why, assume a case where the trial judge has allowed a defendant to go to trial representing himself without an adequate waiver-of-counsel inquiry under Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975).