I’m no legal scholar, but I did stay at a Holiday Inn Express once.
One of the legal scholars who appears on these various shows is Professor Jo Potuto, she’s very good and doesn’t trash the other hosts at all. Her opinion, as I recall, is that this conflict should have been obvious to everyone involved from the beginning. In my opinion, that’s not exactly placing “blame.”
Recall that in 2016, at the time of the initial arrests, Markus represented Charlie. I believe that at that time, Rash represented Donna and Harvey. I believe he even put out a statement on their behalf, calling the state’s theory “fanciful fiction.” (Where have we heard that before?)
Then, in 2022, Markus withdrew and suddenly Rash represented Charlie. In my opinion, the conflict arose at that point. In my opinion, in order to represent Charlie, Rash would have needed to obtain a waiver from both Charlie and Donna regarding his prior representation of Donna. Even then, a court might have determined the conflict was not waivable (as it did just now.).
As far as I know, nobody raised this issue when Rash took over Charlie’s representation. I know that I recall spotting this conflict and wondering about it at the time.
Everett, I believe, was not the judge assigned to the case in 2016, he was only put on the case for Katie’s second trial. So it’s possible, in my opinion, that when Rash took over Charlie’s representation, Everett may not have been aware of the statement Rash put out on behalf of Donna in 2016, or that Rash had represented Donna before he represented Charlie. But in my opinion, I believe the state should have been aware of it, and I question why the potential conflict was never raised or addressed.
Unfortunately that’s the exact conflict that is arising now, and that is why Rash had to recuse himself: because CHARLIE did not waive the conflict presented by Rash’s representation of DONNA.
At Donna’s pretrial, Everett seemed to me to be very concerned about whether DONNA waived the conflict presented by Rash’s previous representation of CHARLIE. He did not address the OTHER conflict, whether CHARLIE waived the conflict presented by Rash’s representation of DONNA. Had he done so, we might have avoided the situation this case now finds itself in.
Professor Potuto brought up these points on various panel shows.
In my opinion, Rash was hired as Donna’s lawyer from the beginning, and therefore, in my opinion, he could never have provided objective conflict-free representation of Charlie at all. The jail calls immediately after Charlie’s conviction, in which, to me, Donna appears to be going to him for legal advice, only bear that out.
Now, because this conflict wasn’t addressed when it arose with Rash’s representation of Charlie, Rash can’t represent Donna (his original client), and Charlie may, in my opinion, have a successful post-conviction claim for ineffective assistance of counsel. The result is a delay in the judicial process, as well as the state possibly having to re-try Charlie should he succeed with his claim for post-conviction relief.
It’s ironic that it took the retention of appellate counsel on Charlie’s behalf to finally draw attention to this original conflict. I do wonder how much of a hand Donna and/or Rash had in selecting that representation.
en.wikipedia.org
