Prosecutors Ask For Hearing On How Baez Is Getting Paid
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Themis
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There has been discussion here on whether or not there is an "actual conflict of interest" and whether or not such an "actual conflict of interest" can be waived under Florida law. An actual conflict of interest violates a ecriminal defendant's US Constitution, Sixth Amendment, right to effective assistance of counsel. With an "actual conflict of interest", prejudice to a defendant is presumed. Some courts have stated that a defendant cannot knowingly, voluntarily and intelligently waive such a right because there are too many twists and turns in a criminal trial to know what is being waived. With such a conflict of interest, the integrity of the results of such a criminal trial would be subject to attack. Apparently, having rights to a defendant's life story may create an "actual conflict of interest." That is my impression after reading several sources. The below excerpt is from the Florida Supreme Court and makes an interesting read.
The following is a discussion of from a Florida Supreme Court case, February 2008.
http://www.miami-criminal-lawyer.net/caselaw/2008/02/28/state-v-larzelere/
State v. Larzelere
STATE OF FLORIDA, Appellant/Cross-appellee, vs. VIRGINIA LARZELERE, Appellee/Cross-appellant. VIRGINIA GAIL LARZELERE, Petitioner, vs. WALTER A. MCNEIL, etc., Respondent.
No. SC05-611, No. SC06-148
SUPREME COURT OF FLORIDA
February 28, 2008, Decided
...
This Court has explained that Florida follows the legal principles set forth in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), [*29] and Strickland, when analyzing an ineffective assistance of counsel claim based on a purported conflict of interest:
n order to establish an ineffectiveness claim premised on an alleged conflict of interest the defendant must “establish that an actual conflict of interest adversely affected his lawyer’s performance.” A lawyer suffers from an actual conflict of interest when he or she “actively represents conflicting interests.” To demonstrate an actual conflict, the defendant must identify specific evidence in the record that suggests that his or her interests were compromised. A possible, speculative or merely hypothetical conflict is “insufficient to impugn a criminal conviction.” “ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.”Sliney v. State, 944 So. 2d 270, 279 (Fla. 2006) (citations omitted) (quoting Cuyler, 446 U.S. at 350). Prejudice is presumed where an actual conflict is shown to have adversely affected a client’s representation. Cuyler, 446 U.S. at 349-50. The question of whether a defendant’s counsel labored under an actual conflict of interest [*30] that adversely affected counsel’s performance is a mixed question of law and fact. Sliney, 944 So. 2d at 279. Accordingly, this Court applies a mixed standard of review, deferring to the lower court’s factual findings but reviewing its ultimate legal conclusions de novo. Coney, 845 So. 2d at 133.
In considering whether Wilkins operated under an actual conflict as defined by Cuyler, the trial court found that Wilkins’ contract and investigator McDaniel’s contract were not contingency fee arrangements and that the insurance proceeds would be sufficient to cover fees and costs as outlined in the contracts. Thus, the trial court held that Larzelere “provided nothing but mere speculation” that Wilkins failed to hire experts or seek indigency status because he wanted to maximize the amount of insurance proceeds he would receive. Postconviction Order II at 21. We affirm the trial court’s denial of relief on this claim. We agree that Larzelere did not demonstrate that her counsel had an actual conflict of interest because she failed to “identify specific evidence in the record that suggests that . . . her interests were impaired or compromised” for the benefit of her attorney. Herring v. State, 730 So. 2d 1264, 1267 (Fla. 1998); [*31] see also Brown v. State, 894 So. 2d 137, 159 (Fla. 2004) (finding defendant failed to prove actual conflict where trial court made factual finding that counsel did not attempt to gain proprietary interest in defendant’s life story, recordings, and poetry until after close of representation and defendant “did not identify specific evidence in the record that suggested that his interests were impaired or compromised for the benefit of the lawyer or another party”
.
Wilkins testified that his contract, which was signed by Larzelere and her sister, Jeanette Atkinson, provided for a $ 100,000 retainer, $ 3000 per day while in trial, and costs. Wilkins believed that he would be able to collect his fee and costs against any of Larzelere’s and Atkinson’s assets, but anticipated that he likely would be paid from the insurance proceeds. Wilkins admitted that there was a risk of nonpayment. However, he consulted trusted civil attorneys regarding Atkinson’s likelihood of collecting on the insurance policies, and they informed him that her chances of collecting a “good portion” of the two to three million dollars were “substantial.” This appraisal alleviated Wilkins’ doubts enough for him to take [*32] the case under these terms. n9 Rodney Lilly, one of the consultants, testified at the evidentiary hearing and confirmed that he told Wilkins that the insurance case was “worth pursuing, even on a contingency fee basis” because the insurer would have to prove fraud in the inducement to avoid paying the policies, a difficult claim to prove. Lilly’s assessment of the insurance case implies that it would likewise be worth pursuing the criminal case in hopes of being paid from the insurance proceeds. Moreover, Gladys Jackson, Wilkins’ office manager and bookkeeper at the time of Larzelere’s case, testified that she did not recall ever telling Wilkins that a requested action, such as taking a deposition, could not be done in the Larzelere case due to insufficient funds. Thus, Larzelere did not prove that Wilkins failed to hire experts and have her declared indigent because of a financial conflict resulting from the fee arrangement and Wilkins’ personal financial problems. She did not prove that Wilkins had an interest in not hiring experts, other than that which any attorney paid by a client or third party would have, because he believed his costs would be paid.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -9
Wilkins learned during his [*33] representation that all of Larzelere’s property and assets were “mortgaged to the hilt,” but he testified that even with that knowledge, he remained confident that he would collect from the insurance proceeds.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
As for investigator McDaniel’s contract, Wilkins testified that he did not ask Volusia County to pay the investigative expenses because McDaniel agreed to be privately retained and paid from the insurance proceeds. McDaniel first testified that he was to be paid from Wilkins’ retainer, but he later testified, consistent with Wilkins’ testimony, that he was hired directly by Larzelere, Jason, and Atkinson, and was to be paid from the insurance proceeds. McDaniel admitted that he agreed to be paid “as the money came in” from the insurance policies. The record also refutes Larzelere’s suggestion that Wilkins fired McDaniel in order to minimize costs. McDaniel testified that Wilkins and Howes would not pay for him to go to California to interview Norman Karn and Ronald Lee Hayden, state witnesses, as he requested to do. However, McDaniel acknowledged that he and his company were terminated for not following Wilkins’ and Howes’ instructions, rather than due to a dispute over expenses. [*34] This evidence supports the trial court’s finding that Larzelere failed to prove that McDaniel was fired due to a financial conflict of interest. Further, even if the decision to fire McDaniel was purely financial, Larzelere did not demonstrate that this act was adverse to her representation because the evidence shows that Wilkins and Howes hired another investigator, Don Carpenter, to continue McDaniel’s work.
Overall, Larzelere failed to show that any interest her attorney may have had in minimizing costs was an actual, not merely potential, conflict that adversely affected her representation.
The following is a discussion of from a Florida Supreme Court case, February 2008.
http://www.miami-criminal-lawyer.net/caselaw/2008/02/28/state-v-larzelere/
State v. Larzelere
STATE OF FLORIDA, Appellant/Cross-appellee, vs. VIRGINIA LARZELERE, Appellee/Cross-appellant. VIRGINIA GAIL LARZELERE, Petitioner, vs. WALTER A. MCNEIL, etc., Respondent.
No. SC05-611, No. SC06-148
SUPREME COURT OF FLORIDA
February 28, 2008, Decided
...
This Court has explained that Florida follows the legal principles set forth in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), [*29] and Strickland, when analyzing an ineffective assistance of counsel claim based on a purported conflict of interest:
n order to establish an ineffectiveness claim premised on an alleged conflict of interest the defendant must “establish that an actual conflict of interest adversely affected his lawyer’s performance.” A lawyer suffers from an actual conflict of interest when he or she “actively represents conflicting interests.” To demonstrate an actual conflict, the defendant must identify specific evidence in the record that suggests that his or her interests were compromised. A possible, speculative or merely hypothetical conflict is “insufficient to impugn a criminal conviction.” “ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.”Sliney v. State, 944 So. 2d 270, 279 (Fla. 2006) (citations omitted) (quoting Cuyler, 446 U.S. at 350). Prejudice is presumed where an actual conflict is shown to have adversely affected a client’s representation. Cuyler, 446 U.S. at 349-50. The question of whether a defendant’s counsel labored under an actual conflict of interest [*30] that adversely affected counsel’s performance is a mixed question of law and fact. Sliney, 944 So. 2d at 279. Accordingly, this Court applies a mixed standard of review, deferring to the lower court’s factual findings but reviewing its ultimate legal conclusions de novo. Coney, 845 So. 2d at 133.
In considering whether Wilkins operated under an actual conflict as defined by Cuyler, the trial court found that Wilkins’ contract and investigator McDaniel’s contract were not contingency fee arrangements and that the insurance proceeds would be sufficient to cover fees and costs as outlined in the contracts. Thus, the trial court held that Larzelere “provided nothing but mere speculation” that Wilkins failed to hire experts or seek indigency status because he wanted to maximize the amount of insurance proceeds he would receive. Postconviction Order II at 21. We affirm the trial court’s denial of relief on this claim. We agree that Larzelere did not demonstrate that her counsel had an actual conflict of interest because she failed to “identify specific evidence in the record that suggests that . . . her interests were impaired or compromised” for the benefit of her attorney. Herring v. State, 730 So. 2d 1264, 1267 (Fla. 1998); [*31] see also Brown v. State, 894 So. 2d 137, 159 (Fla. 2004) (finding defendant failed to prove actual conflict where trial court made factual finding that counsel did not attempt to gain proprietary interest in defendant’s life story, recordings, and poetry until after close of representation and defendant “did not identify specific evidence in the record that suggested that his interests were impaired or compromised for the benefit of the lawyer or another party”
.Wilkins testified that his contract, which was signed by Larzelere and her sister, Jeanette Atkinson, provided for a $ 100,000 retainer, $ 3000 per day while in trial, and costs. Wilkins believed that he would be able to collect his fee and costs against any of Larzelere’s and Atkinson’s assets, but anticipated that he likely would be paid from the insurance proceeds. Wilkins admitted that there was a risk of nonpayment. However, he consulted trusted civil attorneys regarding Atkinson’s likelihood of collecting on the insurance policies, and they informed him that her chances of collecting a “good portion” of the two to three million dollars were “substantial.” This appraisal alleviated Wilkins’ doubts enough for him to take [*32] the case under these terms. n9 Rodney Lilly, one of the consultants, testified at the evidentiary hearing and confirmed that he told Wilkins that the insurance case was “worth pursuing, even on a contingency fee basis” because the insurer would have to prove fraud in the inducement to avoid paying the policies, a difficult claim to prove. Lilly’s assessment of the insurance case implies that it would likewise be worth pursuing the criminal case in hopes of being paid from the insurance proceeds. Moreover, Gladys Jackson, Wilkins’ office manager and bookkeeper at the time of Larzelere’s case, testified that she did not recall ever telling Wilkins that a requested action, such as taking a deposition, could not be done in the Larzelere case due to insufficient funds. Thus, Larzelere did not prove that Wilkins failed to hire experts and have her declared indigent because of a financial conflict resulting from the fee arrangement and Wilkins’ personal financial problems. She did not prove that Wilkins had an interest in not hiring experts, other than that which any attorney paid by a client or third party would have, because he believed his costs would be paid.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -9
Wilkins learned during his [*33] representation that all of Larzelere’s property and assets were “mortgaged to the hilt,” but he testified that even with that knowledge, he remained confident that he would collect from the insurance proceeds.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
As for investigator McDaniel’s contract, Wilkins testified that he did not ask Volusia County to pay the investigative expenses because McDaniel agreed to be privately retained and paid from the insurance proceeds. McDaniel first testified that he was to be paid from Wilkins’ retainer, but he later testified, consistent with Wilkins’ testimony, that he was hired directly by Larzelere, Jason, and Atkinson, and was to be paid from the insurance proceeds. McDaniel admitted that he agreed to be paid “as the money came in” from the insurance policies. The record also refutes Larzelere’s suggestion that Wilkins fired McDaniel in order to minimize costs. McDaniel testified that Wilkins and Howes would not pay for him to go to California to interview Norman Karn and Ronald Lee Hayden, state witnesses, as he requested to do. However, McDaniel acknowledged that he and his company were terminated for not following Wilkins’ and Howes’ instructions, rather than due to a dispute over expenses. [*34] This evidence supports the trial court’s finding that Larzelere failed to prove that McDaniel was fired due to a financial conflict of interest. Further, even if the decision to fire McDaniel was purely financial, Larzelere did not demonstrate that this act was adverse to her representation because the evidence shows that Wilkins and Howes hired another investigator, Don Carpenter, to continue McDaniel’s work.
Overall, Larzelere failed to show that any interest her attorney may have had in minimizing costs was an actual, not merely potential, conflict that adversely affected her representation.
PattyCake
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Isn't this illegal if they're making money off of Caylee? I thought criminals, even if you're not convicted yet, cannot profit off of their crime.
well I'd say KC is profiting huge by getting a DREAM TEAM by selling pics/video via Baez. Can't the prosecution charge someone in this case? Is that what the ultimate will be? I don't think it's bad legal counsel trying to line his own pockets, I think it's a way for KC to afford the cream of the crop.
Jesus My Lord, this witch does not deserve the best of the best coming to her rescue! I hope for all the experts that are paid by this BLOOD MONEY, Caylees death... will follow them through their lives.
well I'd say KC is profiting huge by getting a DREAM TEAM by selling pics/video via Baez. Can't the prosecution charge someone in this case? Is that what the ultimate will be? I don't think it's bad legal counsel trying to line his own pockets, I think it's a way for KC to afford the cream of the crop.
Jesus My Lord, this witch does not deserve the best of the best coming to her rescue! I hope for all the experts that are paid by this BLOOD MONEY, Caylees death... will follow them through their lives.
Themis
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I just wanted to point out a quote from the above Florida Supreme Court case Feb 2008, which is binding on KC's trial court. In the above case, the defendant was claiming ineffective assistance of counsel but could not prove that the attorney had made a deal for the life story until the close of the case. The implication is that if the prosecution can show that JB has made a deal for the life story, recordings and photographs before the close of the case; then there could well be an "actual conflict of interest" and the integrity of the upcoming criminal trial would be impaired because KC could not knowingly, voluntarily and intelligently waive all the situations and twists and turns such a trial could involve.
"finding defendant failed to prove actual conflict where trial court made factual finding that counsel did not attempt to gain proprietary interest in defendant’s life story, recordings, and poetry until after close of representation"
"finding defendant failed to prove actual conflict where trial court made factual finding that counsel did not attempt to gain proprietary interest in defendant’s life story, recordings, and poetry until after close of representation"
Themis
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As I recall in a previous discussion, the statutes that evolved do prohibit a "convicted" criminal from profiting from their crime.
PattyCake
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so in the mean time, she can earn all she wants on Caylees death? Really?
Themis
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After the "Son of Sam" laws were challenged and found unconstitutional, most states changed their statutes to apply only to convicted criminals. Here's a link with a good discussion.
http://www.ncvc.org/ncvc/main.aspx?dbName=DocumentViewer&DocumentID=32469
lin
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http://www.leg.state.fl.us/STATUTES...TM&Title=->2008->Ch0944->Section 512#0944.512
F.S. 944.512 State lien on proceeds from literary or other type of account of crime for which convicted.--
(1) A lien prior in dignity to all others shall exist in favor of the state upon royalties, commissions, proceeds of sale, or any other thing of value payable to or accruing to a convicted felon or a person on her or his behalf, including any person to whom the proceeds may be transferred or assigned by gift or otherwise, from any literary, cinematic, or other account of the crime for which she or he was convicted. A conviction shall be defined as a guilty verdict by a jury or judge, or a guilty or nolo contendere plea by the defendant, regardless of adjudication of guilt. The lien shall attach at the time of the conviction in county or circuit court. In the event of an appeal, the funds will be held in the Revolving Escrow Trust Fund of the Department of Legal Affairs until the appeal is resolved.
(2) The proceeds of such account shall be distributed in the following order:
(a) Twenty-five percent to the dependents of the convicted felon. If there are no dependents, this portion shall be distributed to the Crimes Compensation Trust Fund to be distributed as awards for crime victims.
(b) Twenty-five percent to the victim or victims of the crime or to their dependents, to the extent of their damages as determined by the court in the lien enforcement proceedings. If there are no victims or dependents, or if their damages are less than 25 percent of the proceeds, this portion, or its remainder, shall be distributed to the Crimes Compensation Trust Fund to be distributed as awards to crime victims.
(c) After payments have been made pursuant to paragraph (a) or paragraph (b), an amount equal to pay all court costs in the prosecution of the convicted felon, which shall include, but not be limited to, jury fees and expenses, court reporter fees, and reasonable per diem for the prosecuting attorneys for the state, shall go to the General Revenue Fund. Additional costs shall be assessed for the computed per capita cost of imprisonment or supervision by the state or county correctional system. Such costs shall be determined and certified by the prosecuting attorney and the imprisoning entity and subject to review by the Auditor General.
(d) The rest, residue, and remainder to the Crimes Compensation Trust Fund to be distributed as awards to crime victims.
(3) A judge may place a lien prior in dignity to all others in favor of the state or county upon any financial settlement payable to or accruing to a convicted offender or person on her or his behalf, as a result of injury incurred during or at the time of a violation of the state law, or as a result of an attempt to flee apprehension for the offense for which the offender was convicted. A conviction is defined as in subsection (1). The lien shall be attached by order of the judge at the time of the conviction in county or circuit court. In the event of an appeal, the funds shall be held in the Revolving Escrow Trust Fund of the Department of Legal Affairs until the appeal is resolved.
(4) The proceeds of such account shall be distributed in the following order:
(a) Payment of all medical care, treatment, hospitalization, and transportation resulting from said injury.
(b) Payment to the victim or victims of the crime or to their dependents, to the extent of their damages as determined by the court in the lien enforcement proceeding.
(c) Payment of all court costs in the prosecution of the convicted felon, which shall include, but not be limited to, jury fees and expense, court reporter fees, and reasonable per diem for the prosecuting attorneys and public defenders.
(d) Payment of cost of incarceration in state or county facilities.
(e) The rest, residue, remainder to the injured party.
(5) The department is hereby authorized and directed to report to the Department of Legal Affairs the existence or reasonably expected existence of circumstances which would be covered by this section. Upon such notification, the Department of Legal Affairs is authorized and directed to take such legal action as is necessary to perfect and enforce the lien created by this section.
History.--ss. 1, 2, 3, ch. 77-45; s. 73, ch. 79-3; s. 302, ch. 79-400; s. 8, ch. 88-96; s. 18, ch. 90-211; s. 1653, ch. 97-102; s. 130, ch. 2001-266.
State v. Larzelere
STATE OF FLORIDA, Appellant/Cross-appellee, vs. VIRGINIA LARZELERE, Appellee/Cross-appellant. VIRGINIA GAIL LARZELERE, Petitioner, vs. WALTER A. MCNEIL, etc., Respondent.
No. SC05-611, No. SC06-148
SUPREME COURT OF FLORIDA
February 28, 2008, Decided
...
This Court has explained that Florida follows the legal principles set forth in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), [*29] and Strickland, when analyzing an ineffective assistance of counsel claim based on a purported conflict of interest:
n order to establish an ineffectiveness claim premised on an alleged conflict of interest the defendant must “establish that an actual conflict of interest adversely affected his lawyer’s performance.” A lawyer suffers from an actual conflict of interest when he or she “actively represents conflicting interests.” To demonstrate an actual conflict, the defendant must identify specific evidence in the record that suggests that his or her interests were compromised. A possible, speculative or merely hypothetical conflict is “insufficient to impugn a criminal conviction.” “ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.”Sliney v. State, 944 So. 2d 270, 279 (Fla. 2006) (citations omitted) (quoting Cuyler, 446 U.S. at 350). Prejudice is presumed where an actual conflict is shown to have adversely affected a client’s representation. Cuyler, 446 U.S. at 349-50. The question of whether a defendant’s counsel labored under an actual conflict of interest [*30] that adversely affected counsel’s performance is a mixed question of law and fact. Sliney, 944 So. 2d at 279. Accordingly, this Court applies a mixed standard of review, deferring to the lower court’s factual findings but reviewing its ultimate legal conclusions de novo. Coney, 845 So. 2d at 133.
In considering whether Wilkins operated under an actual conflict as defined by Cuyler, the trial court found that Wilkins’ contract and investigator McDaniel’s contract were not contingency fee arrangements and that the insurance proceeds would be sufficient to cover fees and costs as outlined in the contracts. Thus, the trial court held that Larzelere “provided nothing but mere speculation” that Wilkins failed to hire experts or seek indigency status because he wanted to maximize the amount of insurance proceeds he would receive. Postconviction Order II at 21. We affirm the trial court’s denial of relief on this claim. We agree that Larzelere did not demonstrate that her counsel had an actual conflict of interest because she failed to “identify specific evidence in the record that suggests that . . . her interests were impaired or compromised” for the benefit of her attorney. Herring v. State, 730 So. 2d 1264, 1267 (Fla. 1998); [*31] see also Brown v. State, 894 So. 2d 137, 159 (Fla. 2004) (finding defendant failed to prove actual conflict where trial court made factual finding that counsel did not attempt to gain proprietary interest in defendant’s life story, recordings, and poetry until after close of representation and defendant “did not identify specific evidence in the record that suggested that his interests were impaired or compromised for the benefit of the lawyer or another party”.
Wilkins testified that his contract, which was signed by Larzelere and her sister, Jeanette Atkinson, provided for a $ 100,000 retainer, $ 3000 per day while in trial, and costs. Wilkins believed that he would be able to collect his fee and costs against any of Larzelere’s and Atkinson’s assets, but anticipated that he likely would be paid from the insurance proceeds. Wilkins admitted that there was a risk of nonpayment. However, he consulted trusted civil attorneys regarding Atkinson’s likelihood of collecting on the insurance policies, and they informed him that her chances of collecting a “good portion” of the two to three million dollars were “substantial.” This appraisal alleviated Wilkins’ doubts enough for him to take [*32] the case under these terms. n9 Rodney Lilly, one of the consultants, testified at the evidentiary hearing and confirmed that he told Wilkins that the insurance case was “worth pursuing, even on a contingency fee basis” because the insurer would have to prove fraud in the inducement to avoid paying the policies, a difficult claim to prove. Lilly’s assessment of the insurance case implies that it would likewise be worth pursuing the criminal case in hopes of being paid from the insurance proceeds. Moreover, Gladys Jackson, Wilkins’ office manager and bookkeeper at the time of Larzelere’s case, testified that she did not recall ever telling Wilkins that a requested action, such as taking a deposition, could not be done in the Larzelere case due to insufficient funds. Thus, Larzelere did not prove that Wilkins failed to hire experts and have her declared indigent because of a financial conflict resulting from the fee arrangement and Wilkins’ personal financial problems. She did not prove that Wilkins had an interest in not hiring experts, other than that which any attorney paid by a client or third party would have, because he believed his costs would be paid.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -9
Wilkins learned during his [*33] representation that all of Larzelere’s property and assets were “mortgaged to the hilt,” but he testified that even with that knowledge, he remained confident that he would collect from the insurance proceeds.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
As for investigator McDaniel’s contract, Wilkins testified that he did not ask Volusia County to pay the investigative expenses because McDaniel agreed to be privately retained and paid from the insurance proceeds. McDaniel first testified that he was to be paid from Wilkins’ retainer, but he later testified, consistent with Wilkins’ testimony, that he was hired directly by Larzelere, Jason, and Atkinson, and was to be paid from the insurance proceeds. McDaniel admitted that he agreed to be paid “as the money came in” from the insurance policies. The record also refutes Larzelere’s suggestion that Wilkins fired McDaniel in order to minimize costs. McDaniel testified that Wilkins and Howes would not pay for him to go to California to interview Norman Karn and Ronald Lee Hayden, state witnesses, as he requested to do. However, McDaniel acknowledged that he and his company were terminated for not following Wilkins’ and Howes’ instructions, rather than due to a dispute over expenses. [*34] This evidence supports the trial court’s finding that Larzelere failed to prove that McDaniel was fired due to a financial conflict of interest. Further, even if the decision to fire McDaniel was purely financial, Larzelere did not demonstrate that this act was adverse to her representation because the evidence shows that Wilkins and Howes hired another investigator, Don Carpenter, to continue McDaniel’s work.
Overall, Larzelere failed to show that any interest her attorney may have had in minimizing costs was an actual, not merely potential, conflict that adversely affected her representation.
Larzelere won appeal if I remember correctly due to Wilkins being in the middle of an Federal investigation for a number of charges and Wilkins was sentenced to 3 years Federal and of course disbarred. All had to due with his 250,000 retainer fee for a client that had not been yet charged for drug trafficking and lying about taking this know drug money to the Grand Jury and income tax evasion. His downfall was plain and simple GREED!! Does this remind you of any other greedy attorney?
STATE OF FLORIDA, Appellant/Cross-appellee, vs. VIRGINIA LARZELERE, Appellee/Cross-appellant. VIRGINIA GAIL LARZELERE, Petitioner, vs. WALTER A. MCNEIL, etc., Respondent.
No. SC05-611, No. SC06-148
SUPREME COURT OF FLORIDA
February 28, 2008, Decided
...
This Court has explained that Florida follows the legal principles set forth in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), [*29] and Strickland, when analyzing an ineffective assistance of counsel claim based on a purported conflict of interest:
n order to establish an ineffectiveness claim premised on an alleged conflict of interest the defendant must “establish that an actual conflict of interest adversely affected his lawyer’s performance.” A lawyer suffers from an actual conflict of interest when he or she “actively represents conflicting interests.” To demonstrate an actual conflict, the defendant must identify specific evidence in the record that suggests that his or her interests were compromised. A possible, speculative or merely hypothetical conflict is “insufficient to impugn a criminal conviction.” “ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.”Sliney v. State, 944 So. 2d 270, 279 (Fla. 2006) (citations omitted) (quoting Cuyler, 446 U.S. at 350). Prejudice is presumed where an actual conflict is shown to have adversely affected a client’s representation. Cuyler, 446 U.S. at 349-50. The question of whether a defendant’s counsel labored under an actual conflict of interest [*30] that adversely affected counsel’s performance is a mixed question of law and fact. Sliney, 944 So. 2d at 279. Accordingly, this Court applies a mixed standard of review, deferring to the lower court’s factual findings but reviewing its ultimate legal conclusions de novo. Coney, 845 So. 2d at 133.
In considering whether Wilkins operated under an actual conflict as defined by Cuyler, the trial court found that Wilkins’ contract and investigator McDaniel’s contract were not contingency fee arrangements and that the insurance proceeds would be sufficient to cover fees and costs as outlined in the contracts. Thus, the trial court held that Larzelere “provided nothing but mere speculation” that Wilkins failed to hire experts or seek indigency status because he wanted to maximize the amount of insurance proceeds he would receive. Postconviction Order II at 21. We affirm the trial court’s denial of relief on this claim. We agree that Larzelere did not demonstrate that her counsel had an actual conflict of interest because she failed to “identify specific evidence in the record that suggests that . . . her interests were impaired or compromised” for the benefit of her attorney. Herring v. State, 730 So. 2d 1264, 1267 (Fla. 1998); [*31] see also Brown v. State, 894 So. 2d 137, 159 (Fla. 2004) (finding defendant failed to prove actual conflict where trial court made factual finding that counsel did not attempt to gain proprietary interest in defendant’s life story, recordings, and poetry until after close of representation and defendant “did not identify specific evidence in the record that suggested that his interests were impaired or compromised for the benefit of the lawyer or another party”
.Wilkins testified that his contract, which was signed by Larzelere and her sister, Jeanette Atkinson, provided for a $ 100,000 retainer, $ 3000 per day while in trial, and costs. Wilkins believed that he would be able to collect his fee and costs against any of Larzelere’s and Atkinson’s assets, but anticipated that he likely would be paid from the insurance proceeds. Wilkins admitted that there was a risk of nonpayment. However, he consulted trusted civil attorneys regarding Atkinson’s likelihood of collecting on the insurance policies, and they informed him that her chances of collecting a “good portion” of the two to three million dollars were “substantial.” This appraisal alleviated Wilkins’ doubts enough for him to take [*32] the case under these terms. n9 Rodney Lilly, one of the consultants, testified at the evidentiary hearing and confirmed that he told Wilkins that the insurance case was “worth pursuing, even on a contingency fee basis” because the insurer would have to prove fraud in the inducement to avoid paying the policies, a difficult claim to prove. Lilly’s assessment of the insurance case implies that it would likewise be worth pursuing the criminal case in hopes of being paid from the insurance proceeds. Moreover, Gladys Jackson, Wilkins’ office manager and bookkeeper at the time of Larzelere’s case, testified that she did not recall ever telling Wilkins that a requested action, such as taking a deposition, could not be done in the Larzelere case due to insufficient funds. Thus, Larzelere did not prove that Wilkins failed to hire experts and have her declared indigent because of a financial conflict resulting from the fee arrangement and Wilkins’ personal financial problems. She did not prove that Wilkins had an interest in not hiring experts, other than that which any attorney paid by a client or third party would have, because he believed his costs would be paid.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -9
Wilkins learned during his [*33] representation that all of Larzelere’s property and assets were “mortgaged to the hilt,” but he testified that even with that knowledge, he remained confident that he would collect from the insurance proceeds.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
As for investigator McDaniel’s contract, Wilkins testified that he did not ask Volusia County to pay the investigative expenses because McDaniel agreed to be privately retained and paid from the insurance proceeds. McDaniel first testified that he was to be paid from Wilkins’ retainer, but he later testified, consistent with Wilkins’ testimony, that he was hired directly by Larzelere, Jason, and Atkinson, and was to be paid from the insurance proceeds. McDaniel admitted that he agreed to be paid “as the money came in” from the insurance policies. The record also refutes Larzelere’s suggestion that Wilkins fired McDaniel in order to minimize costs. McDaniel testified that Wilkins and Howes would not pay for him to go to California to interview Norman Karn and Ronald Lee Hayden, state witnesses, as he requested to do. However, McDaniel acknowledged that he and his company were terminated for not following Wilkins’ and Howes’ instructions, rather than due to a dispute over expenses. [*34] This evidence supports the trial court’s finding that Larzelere failed to prove that McDaniel was fired due to a financial conflict of interest. Further, even if the decision to fire McDaniel was purely financial, Larzelere did not demonstrate that this act was adverse to her representation because the evidence shows that Wilkins and Howes hired another investigator, Don Carpenter, to continue McDaniel’s work.
Overall, Larzelere failed to show that any interest her attorney may have had in minimizing costs was an actual, not merely potential, conflict that adversely affected her representation.
Larzelere won appeal if I remember correctly due to Wilkins being in the middle of an Federal investigation for a number of charges and Wilkins was sentenced to 3 years Federal and of course disbarred. All had to due with his 250,000 retainer fee for a client that had not been yet charged for drug trafficking and lying about taking this know drug money to the Grand Jury and income tax evasion. His downfall was plain and simple GREED!! Does this remind you of any other greedy attorney?
lin
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Yes, she really can. The law won't stop her; only we the people can.
KenoshaKid
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Exactly. I don't have *as much* of a problem with her selling the photos and videos of her daughter; they are her property, repugnant as it is to sell them.
However, JB getting paid based on a movie or book deal is a conflict because he has it within his control to steer the script! Would he not consider a plea because it makes the script less juicy? Would he go for what makes the best story and not what is best for Casey? JB is all about JB, imho. This case is a make or break for his entire career, he the first ever (cough) Hispanic attorney to take on such a big case. Is he directing a movie or defending his client?
PattyCake
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Then I hope that the State of Florida can and will SUE both Baez & KC for monies earned from the death of Caylee (IE: selling her videos, etc) after KC is convicted. She cannot profit off her crime and that should also mean retrospectively as well. 
Myself, I could care 2 beans how rich Baez gets from this case. For me, it's about Caylee and if KC and her family cannot afford a DREAM TEAM like she's currently getting, then she should not be able to make money off of selling videos, etc about the child she murdered. It HELPS KC greatly by having these lawyers & experts, she may just get off or down to manslaughter because of it all. That is very wrong.
Myself, I could care 2 beans how rich Baez gets from this case. For me, it's about Caylee and if KC and her family cannot afford a DREAM TEAM like she's currently getting, then she should not be able to make money off of selling videos, etc about the child she murdered. It HELPS KC greatly by having these lawyers & experts, she may just get off or down to manslaughter because of it all. That is very wrong.
lin
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I agree it's repugnant but I question whether or not there is an actual conflict. Perhaps it can be shown that JB steered the case in a direction to cause those pictures and videos to be worth large sums to pay his fees. I'm hoping the state has the evidence to show the likelihood. It doesn't seem likely they'd file this motion without anything to back it up other than media rumors. If that's all they have now, the question would be, why not file it months ago?
THEMIS!!
Great link, thanks. Thus why the A's are busy trying to take executor-ship from Casey as we speak I hear...
Themis
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Themis
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There interesting twist here is that IF JB has acquired the ownership or some proprietary rights in the life story, photos, papers and poetry involved, and IF the prosecution gets him bounced from the case because of an "actual conflict of interest" then JB will still own those rights and not be her attorney! Probably. Most likely unless they made the ownership of those rights contingent.
lin
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JB is done
LE aint just a fishin for nuttin
Adios JB
have a nice licorice future..hope you absolutely love it
Quite a while back the astrologers suggested one of the lawyers would be dropping out before trial, iirc.
But who would have made them contingent? Casey never had independent counsel I presume? Wouldnt she have had to for that?
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