Introduction
The Fourteenth Amendment to the United States Constitution provides that all citizens of the United States are entitled to “equal protection of the laws.”1 U.S. Const. amend. XIV, § 1. The Amendment also guarantees that no person shall be deprived of “life, liberty, or property, without due process of law.”2 Id. However, glimpsing into the history of the criminal justice system of the United States, this has not always been the case in practice.3 Report to the United Nations on Racial Disparities in the U.S. Criminal Justice System, The Sent’g Project (Apr. 19, 2018), https://perma.cc/3NB9-BJ6Y [hereinafter United Nations on Racial Disparities]; see Jon Hurwitz & Mark Peffley, And Justice for Some: Race, Crime, and Punishment in the US Criminal Justice System, 43 Can. J. Pol. Sci. 457, 457–58 (2010), https://perma.cc/VA2N-6W5U. Despite the Supreme Court’s decision in Gideon v. Wainwright, which guaranteed appointed counsel to indigent defendants facing felony charges, there seems to exist “two distinct criminal justice systems: one for wealthy people and another for poor people and people of color.”4 Gideon v. Wainwright, 372 U.S. 335, 344–45 (1963) (holding that the right to appointed counsel extended to defendants in noncapital felony cases); United Nations on Racial Disparities, supra note 3. People of color in the United States not only face higher arrest rates than white Americans, they also face higher conviction and sentencing rates than white Americans.5United Nations on Racial Disparities, supra note 3. These disparities extend into the defense of indigent clients provided by court-appointed counsel or public defenders, as people of color may be more likely to “lack access to high-quality representation.”6Gabriel J. Chin, Race and the Disappointing Right to Counsel, 122 Yale L.J. 2236, 2238 (2013) (citing Rebecca Marcus, Racism in Our Courts: The Underfunding of Public Defenders and Its Disproportionate Impact Upon Racial Minorities, 22 Hastings Const. L.Q. 219 (1994)).
In a recent Massachusetts Supreme Judicial Court (“SJC”) decision, the Court may have provided a new road to equal protection for defendants who have experienced discrimination or bias at the hands of their court-appointed counsel.7Rachel Rippetoe, Atty Bias Eyed as New Path for Mass. Conviction Challenges, Law 360 (June 23, 2023, 7:30 PM EDT), https://perma.cc/KYT2-R74J. The decision in Commonwealth v. Dewallowed the defendant, a Black man of Islamic faith, to withdraw his guilty plea after learning that, during the course of his representation, his court-appointed counsel had been making social media posts containing vile, racist, and Islamophobic content.8Commonwealth v. Dew, 210 N.E.3d 904, 913–16 (Mass. 2023). Previously, to obtain a new trial or vacate a conviction, a defendant needed to provide enough evidence to show that an actual conflict of interest existed regarding their representation.9 E.g., Commonwealth v. Mosher, 920 N.E.2d 285, 294 (Mass. 2010); Commonwealth v. Shraiar, 489 N.E.2d 689, 692 (Mass. 1986); Commonwealth v. Hodge, 434 N.E.2d 1246, 1248–49 (Mass. 1982); Commonwealth v. Davis, 384 N.E.2d 181, 186 (Mass. 1978). In a recent article, Daniel Medwed, a former criminal appeals attorney and current professor at Northeastern University School of Law, explained that this decision is “groundbreaking” because it is a step towards identifying how systemic racism and biases of public defenders can be a “structural conflict of interest.”10Rippetoe, supra note 7. This decision may offer an alternative to prior conflict of interest standards by presuming a conflict of interest when the attorney has displayed animus against a certain race or religion.11Rippetoe, supra note 7.
This Comment will argue that in Commonwealth v. Dew, while the SJC ultimately came to the correct conclusion in granting the defendant a new trial, it failed to offer a remedy for future claimants by refusing to conduct a constitutional analysis of Dew’s claims that the appointment of Doyle as his counsel was a violation of his Fourteenth Amendment rights to equal protection and due process. Further, the SJC failed to provide a remedy for Doyle’s other clients who may have been negatively impacted by Doyle’s professional misconduct.
This case is the first of its kind to find that an actual conflict of interest is established by social media posts made by an attorney containing racist and bigoted content targeted at a group with which his client identifies.12Allie Reed, Lawyer Racism Is Conflict of Interest, Top State Court Says (1), Bloomberg L., https://perma.cc/G5W7-9NMC (last updated June 15, 2023, 2:32 PM EDT). Part I of this Comment explores the underlying law governing the right to effective assistance of counsel, equal protection, and due process. Part II discusses the facts, procedural history, and the SJC’s analysis in Commonwealth v. Dew. In Part III, this Comment argues that despite coming to the correct conclusion that Dew was entitled to a new trial, the SJC failed to offer an adequate remedy to other claimants who may be impacted by an appointed counsel’s bigotry. Part IV of this Comment addresses the SJC’s failure to acknowledge or provide guidance to other clients who Doyle represented that were negatively impacted by his bigotry.
I. Background
A. Right to Effective Assistance of Counsel Understanding Intellectual Property Rights in the Fashion Industry
1. The Fundamental Right to Appointed Counsel
The Sixth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights (hereinafter “art. 12”) established the right to effective assistance of counsel.13 U.S. Const. amend. VI; Mass. Const. art. XII. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”14U.S. Const. amend. VI. Art. 12 states that “every subject shall have a right . . . to be fully heard in his defence by himself, or his counsel, at his election.”15Mass. Const. art. XII. The fundamental “right to the effective assistance of counsel”16Commonwealth v. Hurley, 461 N.E.2d 754, 757 (Mass. 1984); Commonwealth v. Hodge, 434 N.E.2d 1246, 1249 (Mass. 1982) (holding that the right to effective assistance of counsel is a fundamental right). has “deep roots in Massachusetts history,” as the SJC extended the right to appointed counsel for defendants in noncapital cases several years before the United States Supreme Court did.17Carrasquillo v. Hampden County District Courts, 142 N.E.3d 28, 36–37 (Mass. 2020) (explaining that the SJC began requiring the appointment of counsel for defendants facing noncapital felony charges in 1958, five years before the U.S. Supreme Court began doing so under Gideon v. Wainwright, 372 U.S. 335 (1963)). Further, the SJC says art. 12 guarantees “greater safeguards” for defendants in need of counsel than the Sixth Amendment does.18 Hodge, 434 N.E.2d at 1249.
The right to be represented by counsel in a court of law “is a fundamental component of our criminal justice system.”19United States v. Cronic, 466 U.S. 648, 653 (1984). Defendants in criminal proceedings are not only entitled to counsel, but they are also entitled to effective assistance of counsel.20 Id.(“Lawyers in criminal cases ‘are necessities, not luxuries.’ . . . ‘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.’” (citations omitted)). This means the constitutional requirement is not met by simply appointing a defense attorney,21 Id. at 654–55 (quoting Avery v. Alabama, 308 U.S. 444, 446 (1940)). but that the appointed attorney is also required to act with undivided loyalty and in the best interests of the defendant.22Commonwealth v. Perkins, 883 N.E.2d 230, 245 (Mass. 2008) (quoting Commonwealth v. Downey, 842 N.E.2d 955, 959 (Mass. App. Ct. 2006)); Commonwealth v. Shraiar, 489 N.E.2d 689, 692 (Mass. 1986) (“An element of the fundamental right to counsel under art. 12 of the Massachusetts Declaration of Rights is the defendant’s right to the full and undivided loyalty of his attorney.”). To meet this constitutional burden, and for counsel to be considered effective, it must be “free of any conflict of interest and unrestrained by commitments to others.”23Commonwealth v. Davis, 384 N.E.2d 181, 185 (Mass. 1978) (citing Glasser v. United States, 315 U.S. 60, 76 (1942)). The defendant must establish the existence of an actual conflict of interest to prove that their right to effective assistance of counsel has been violated.24 Shraiar, 489 N.E.2d at 692 (citing Commonwealth v. Hodge, 434 N.E.2d 1246, 1248–49 (Mass. 1982)).
2. Establishing an Actual Conflict of Interest
The defendant has the burden of proving that an actual conflict of interest exists regarding their representation by the appointed counsel.25 Id.; Davis, 384 N.E.2d at 186.An actual conflict of interest has been found to exist “where the ‘independent professional judgment’ of trial counsel is impaired, either by his own interests, or by the interests of another client.”26 Shraiar, 489 N.E.2d at 692; see Model Code of Pro. Resp. DR 5-101(A) (Am. Bar Ass’n 1980) (“Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.” (emphasis added)). In Massachusetts courts, the defendant can prove an actual conflict of interest by either: (1) introducing evidence from the trial record; or (2) bringing in extrinsic evidence.27 Davis, 384 N.E.2d at 186. If the defendant can provide enough evidence to show the existence of a conflict, that is sufficient to show a violation of their right to effective assistance of counsel.28Commonwealth v. Patterson, 739 N.E.2d 682, 689 (Mass. 2000); see Shraiar, 489 N.E.2d at 692 (explaining that the court requires “demonstrative proof detailing both the existence and the precise character” of the conflict of interest and that a conflict will not be found to exist where the defendant introduces only conjecture or speculations). As such, art. 12 entitles the defendant to a reversal of their conviction or a new trial.29Commonwealth v. Dew, 210 N.E.3d 904, 912–13 (Mass. 2023); Commonwealth v. Mosher, 920 N.E.2d 285, 294 (Mass. 2010); Shraiar, 489 N.E.2d at 692.
Federal law, namely the Sixth Amendment, requires a defendant to show that an actual conflict of interest existed and that it had an adverse impact on their counsel’s performance.30Mosher, 920 N.E.2d at 294 (citing Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)). Under art. 12, however, a defendant must only prove the existence of “an actual conflict of interest”; they do not need to show that the conflict resulted in prejudice or that it had an adverse effect on their proceedings.31 Id.; Shraiar, 489 N.E.2d at 692; Commonwealth v. Hodge, 434 N.E.2d 1246, 1248–49 (Mass. 1982). This is an example of the way that art. 12 provides “greater safeguards” than the Sixth Amendment for defendants seeking appointed counsel.32 Hodge, 434 N.E.2d at 1249. To summarize, the defendant carries the burden of proving the existence of an actual conflict of interest—whether through evidence in the record or extrinsic evidence—and if they successfully do so, they are entitled to a new trial under art. 12 without showing further prejudice.33 Mosher, 920 N.E.2d at 294; Shraiar, 489 N.E.2d at 692; Hodge, 434 N.E.2d at 1248–49; Commonwealth v. Davis, 384 N.E.2d 181, 186 (Mass. 1978).
B. Fourteenth Amendment Guarantees
1. Due Process
Section 1 of the Fourteenth Amendment guarantees that no citizen of the United States shall be deprived of “life, liberty, or property, without due process of law.”34U.S. Const. amend. XIV. The Supreme Court tends to view due process claims under the Fourteenth Amendment in two separate categories: substantive due process and procedural due process.35Erwin Chemerinsky, Procedural Due Process Claims, 16 Touro L. Rev. 871, 871 (2000). Substantive due process applies when a state action impacts an interest that is protected by the Fourteenth Amendment.36Russell W. Galloway Jr., Basic Substantive Due Process Analysis, 26 U.S.F. L. Rev. 625, 626 (1992) [hereinafter Galloway, Substantive Due Process]. Procedural due process applies when the government, or state actor, has failed to follow adequate procedures when taking away an individual’s life, liberty, or property.37Chemerinsky, supra note 35, at 871.
The purpose of procedural due process is to ensure that the defendant is “heard ‘at a meaningful time and in a meaningful manner.’”38Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).Substantive due process is meant to protect individuals from being deprived of their life, liberty, or property without significant justification from the government or state actor.39Galloway, Substantive Due Process, supra note 36, at 627. For either due process claim, an individual must show that the violation was a result of state or government action.40Galloway, Substantive Due Process, supra note 36, at 626; see Chemerinsky, supra note 35, at 871. When claiming a violation of substantive due process, the court applies differing levels of scrutiny based upon what type of right or interest is implicated.41Galloway, Substantive Due Process, supra note 36, at 627. If the interest is “fundamental” according to the court, then the highest level of scrutiny, commonly referred to as strict scrutiny, applies.42Galloway, Substantive Due Process, supra note 36, at 627. The court applies the level of scrutiny to determine who carries the burden of establishing whether the deprivation is constitutionally permissible.43 See Galloway, Substantive Due Process, supra note 36, at 627.When claiming a violation of procedural due process, the claimant must show that there was a “deprivation of life, liberty[,] or property without adequate procedures.”44Chemerinsky, supra note 35, at 871.
2. Equal Protection
In addition to ensuring the right to due process for all citizens, the Fourteenth Amendment provides that no citizen shall be denied “equal protection of the laws.”45U.S. Const. amend. XIV. The purpose of the equal protection clause is to protect certain classes of individuals from the government’s ability to infringe upon their fundamental rights.46 See Russell W. Galloway Jr., Basic Equal Protection Analysis, 29 Santa Clara L. Rev. 121, 123 (1989) [hereinafter Galloway, Equal Protection]. To successfully bring an equal protection claim, one must show that some government action, or inaction, has created two distinct groups of people and conferred benefits to one of those groups.47 Id. The Court is likely to find a violation of the equal protection clause if the government is unable to provide a significant justification for the differential classifications.48 Id. at 123–25.
II. Commonwealth v. Dew
A. The Facts and Procedural History
1. Factual Background
In March 2015, police arrested Anthony Dew, a Black Muslim man, and a grand jury indicted him on nineteen felony charges.49Commonwealth v. Dew, 210 N.E.3d 904, 906–07 (Mass. 2023) (specifying that charges included sex trafficking, rape, possession of a controlled substance, assault and battery with a deadly weapon, and distributing a controlled substance). In February 2016, the Massachusetts courts appointed Attorney Richard Doyle to represent Dew.50 Id. at 907. In June 2016, upon Doyle’s recommendation, Dew accepted a plea deal and pleaded guilty to all but one of the charges against him.51 Id.
During multiple encounters between Dew and Doyle, Doyle openly chastised Dew for wearing a kufi, a Muslim prayer cap, and reportedly instructed Dew not to wear “that shit” in court.52 Id. On one occasion, Doyle refused to meet with Dew because Dew was wearing a kufi after Doyle had instructed him not to do so.53 Id. Shortly before the trial, when Doyle advised Dew to accept the plea deal, he also advised Dew that “any attempt to seek new appointed counsel would likely be futile on the eve of trial.”54 Id.
From 2014 to 2017, Doyle made several bigoted, racist, and Islamophobic posts on his Facebook page.55 Dew, 210 N.E.3d at 908 (noting the descriptions of the social media posts in footnotes 9, 10, and 13 in the opinion, and the court emphasizes that “Doyle’s own words best capture the depth of his bigotry.”). These posts contained a “variety of anti-Muslim slurs and statements calling for violence against and celebrating the death of persons of the Muslim faith.”56 Id. Additional posts were made mocking Black individuals, and in some of the posts, Doyle seemed to imply that his nonwhite clients were criminals.57 Id. at 908–09. Doyle made several of these posts during the time he was representing Dew.58 Id. at 908.
Upon discovering this in 2017, the Committee for Public Counsel Services (“CPCS”) suspended Doyle from participating in any criminal trials for one year.59 Id. at 909. CPCS also required Doyle to attend cultural competency and ethics training.60 Id. After learning of his counsel’s racist and anti-Muslim posts, Dew filed a motion in 2021 to withdraw his guilty plea, seeking a new trial since Doyle had an actual conflict of interest in representing him.61 Dew, 210 N.E.3d at 909.
2. Motion to Withdraw Plea
Dew sought a new trial claiming that his right to effective assistance of counsel, granted by art. 12 of the Massachusetts Declaration of Rights and the Sixth Amendment to the Constitution, was violated due to Doyle’s actual conflict of interest.62 Id. The motion judge initially denied this motion, holding that Dew was not entitled to a new trial without showing either an actual prejudice or that Doyle’s views impacted his representation of Dew.63 See Id. at 909–10. Dew appealed the motion judge’s decision “and [the SJC] granted his application for direct appellate review.”64 Id. at 910.
B. Court’s Analysis and Holding
The main issue the Court considered was whether a lawyer’s racist and anti-Muslim social media posts were significant enough to constitute an actual conflict of interest in representing a Black, Muslim client, thus violating the client’s constitutional right to effective assistance of counsel.65 Id. at 906.
The Court explained that both the Sixth Amendment and art. 12 ensure the right to effective assistance of counsel.66 Id. at 910–11. It highlighted that effective assistance of counsel is a fundamental right necessary to ensure our criminal justice system is fair and accessible to every individual.67 Dew, 210 N.E.3d at 910–11 (citing Gideon v. Wainwright, 372 U.S. 335, 344–45 (1963)).The Court explained that “a serious risk of injustice infects” our criminal justice system without this right.68 Id. at 911 (quoting United States v. Cronic, 466 U.S. 648, 656 (1984)).
The defendant must demonstrate a real conflict of interest that adversely affects the counsel’s representation of the client to be entitled to a new trial under the Sixth Amendment.69 Id. at 913 n.23 (citing Cuyler v. Sullivan, 446 U.S. 335, 349–350 (1980)). However, the SJC explained that art. 12 requires only that an actual conflict of interest be demonstrated.70 Id. at 912–13 (citing Commonwealth v. Mosher, 920 N.E.2d 285, 294 (Mass. 2010)). The Court added that when an actual conflict of interest is shown, it becomes impossible to show what different choices counsel may have made absent the conflict of interest.71 Id. at 913 (“In other words, ‘[i]t is impossible to know what different choices [a non-conflicted] counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings.’” (quoting Commonwealth v. Francis, 147 N.E.3d 491, 506–07 (Mass. 2020))).
The SJC held that Doyle’s numerous social media posts and behavior towards the defendant were sufficient to show an actual conflict of interest.72 Id. at 916. The concurrence explained that Dew’s pattern of racist and anti-Muslim posts established that the conflict infected Doyle’s representation of Dew.73 Dew, 210 N.E.3d at 916 (Cypher, J., concurring). The SJC found that the pattern of social media posts, coupled with Doyle’s public chastisement of Dew for wearing religious articles of clothing, went beyond any professional distaste for Dew’s actions and represented a real, “deep-seated” conflict of interest in this case.74 Id. (majority opinion). The Court highlighted that it “cannot credibly assume that Doyle’s representation was unaffected by his [bigotry],” but it also could not establish whether another “attorney who did not share [Doyle’s] animus” would have recommended that Dew accept the plea.75 Id. at 915.
The SJC reversed the trial court’s order denying Dew’s motion for a new trial.76 Id. at 916. As he was successfully able to establish an actual conflict of interest, Dew was entitled to withdraw his guilty plea; his convictions were vacated, and the case was remanded pending a new trial.77 Id.
Analysis
Dew’s initial motion to withdraw his guilty plea argued several violations of rights afforded to Dew, and all defendants in criminal proceedings, by the U.S. Constitution and the Massachusetts Declaration of Rights.782d Am. Br. for Def. on Appeal from Suffolk Div. of Superior Ct. Dep’t at 19–55, Commonwealth v. Dew, 210 N.E.3d 904 (Mass. 2023) (SJC-13356) [hereinafter 2d Am. Br. for Def.]. However, in its written opinion and the oral arguments, the SJC narrowed the scope of its analysis to focus on Dew’s claim regarding his right to effective assistance of counsel.79 Dew, 210 N.E.3d at 910–16. See generally Oral Argument, Commonwealth v. Dew, 210 N.E.3d 904 (Mass. 2023) (SJC-13356), https://perma.cc/9ZEX-8UJX [hereinafter SJC-13356 Oral Arguments]. In doing so, the Court correctly concluded that Dew was entitled to a new trial given that Doyle had an actual conflict of interest in representing him.80 Dew, 210 N.E.3d at 916. Although the SJC came to the correct conclusion, it failed to establish reliable precedent future claimants may rely upon by refusing to analyze Dew’s Fourteenth Amendment claims.81Editorial Board, Court Leaves No Room for Racism or Bias in Judicial System, Bos. Globe, https://perma.cc/M8NX-WYTJ (last updated June 18, 2023).
In the United States criminal justice system, precedent is important because it is forward-looking, meaning the court must consider how today’s decision may be precedent for tomorrow’s decision-makers.82Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 572–73 (Feb. 1987). Precedent is also essential to the United States justice system because it serves as a source of reliability, predictability, and decisional efficiency, all of which provide stability within the system.83 Id. at 601. Establishing precedent is especially important in a case of first impression because such a case presents an issue not yet evaluated by the court.84Legal Information Institute, First Impression, Cornell L. Sch., https://perma.cc/3WJW-6CBB (last updated May 2022). There are no recorded cases addressing how a court-appointed lawyer’s racism against his client may undermine the client’s constitutional rights, making this a case of first impression.85SJC-13356 Oral Arguments, supra note 79, at 8:10–9:00; Legal Information Institute, supra note 84; Reed, supra note 12. Whether “a lawyer’s broad, public hatred of people of color” and of religious minorities would disqualify them from representing clients who are members of those groups is an issue yet to be decided by the court.862d Am. Br. for Def., supra note 78, at 57–58; SJC-13356 Oral Arguments, supra note 79, at 8:10–11:00.
I. The Court Wrongfully Neglected to Establish a Standard Concerning Appointed Counsel’s Bigotry and its Impact on Defendants’ Fourteenth Amendment Rights
The Court’s appointment of a bigoted, racist, and ineffective counsel necessitates analysis to establish a “forward-looking” precedent that may be used in the future claims of Fourteenth Amendment violations.87 See Schauer, supra note 82, at 572–73; Reed, supra note 12. Had the SJC addressed Dew’s Fourteenth Amendment claims, it would have evaluated whether there was a state action that violated or interfered with Dew’s right to due process or equal protection under the law.88 See Chemerinsky, supra note 35, at 871–72; Galloway, Substantive Due Process, supra note 36, at 627; Galloway, Equal Protection, supra note 46, at 123.
A. Appointed Counsel as State Action
The Commonwealth’s main argument in response to Dew’s Fourteenth Amendment claims rested upon its position that the appointment of counsel is not state action for the purposes of a constitutional analysis.892d Am. Br. for Def., supra note 78, at 19–20. On the contrary, “Supreme Court cases have held the appointment of counsel to be State action; therefore, appointment of ineffective counsel is the responsibility of the State.”90Green v. Johnson, No. 2:05cv340, 2006 U.S. Dist. LEXIS 90644, at *49 (E.D. Va. Dec. 15, 2006) (citing Evitts v. Lucey, 469 U.S. 387, 396 (1985)). The State Action Doctrine explains that to prove state action sufficiently, there must be a “nexus between the State and the challenged action.”91Jeanne M. Dennis et al., Analysis of Cases Decided by the Supreme Court of the United States to June 30, 2022, S. Rep. No. 117–12, at 1405 (2022), https://perma.cc/DB9T-RUM5. In other words, the state action “must be the subject of the complaint” and go beyond simple involvement.92 Id. at 2059–60.
Courts have established that the appointed counsel themselves are not considered state actors for the purpose of a due process analysis.93Polk County. v. Dodson, 454 U.S. 312, 318 (1981) (citing ABA Standards for Crim. Just. 4-3.9 (2d ed. 1980)). Appointed attorneys are not considered state actors because “[o]nce a lawyer has undertaken the representation of the accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program.” 94 Id. (explaining that appointed counsel are ethically and legally bound to act in the best interest of their client, just as any retained counsel would).Here, however, the Court did not consider Doyle’s actions for an analysis of state action.95 See Commonwealth v. Dew, 210 N.E.3d 904, 906–10 (Mass. 2023); 2d Am. Br. for Def., supra note 78. Instead, it considered Doyle’s behavior to prove that Doyle could not have served as effective counsel for Dew.962d Am. Br. for Def., supra note 78. The actions in question before the Court are those of CPCS, and not Doyle’s actions.97 Dew, 210 N.E.3d at 906; 2d Am. Br. for Def., supra note 78, at 12.
Dew’s complaints are not made against Doyle directly but are rather directed against the state itself.98 Dew, 210 N.E.3d at 906–07; 2d Am. Br. for Def., supra note 78, at 12–16. CPCS’s appointment of Doyle, a racist and religiously bigoted attorney, to represent Dew, an indigent Black, Muslim man, was state action through the state agency CPCS.992d Am. Br. for Def., supra note 78, at 26–28.The requirement for state action is met because the crux of Dew’s claims emerge from the appointment of Doyle as his representation, and that appointment resulted from action by a state agency.1002d Am. Br. for Def., supra note 78, at 27–28; see Dennis et al., supra note 91, at 2053–64. If the Court found that the appointment of counsel for indigent defendants satisfied the requirement for state action, this would allow them to analyze Dew’s specific due process and equal protection claims.101 See Chemerinsky, supra note 35, at 871–72; Galloway, Substantive Due Process, supra note 36, at 627; Galloway, Equal Protection, supra note 46, at 123–25.
B. Potential Analysis of Due Process Claims
While courts often consider due process claims under two separate frameworks, substantive and procedural, the “touchstone” of a due process analysis relies on whether the state action violated the defendant’s right to a fair trial.102Commonwealth v. Hampton, 928 N.E.2d 917, 928–29 (Mass. 2010); see Chemerinsky, supra note 35, at 871–72; Galloway, Substantive Due Process, supra note 36, at 627. The Court in Dew did not specifically utilize a procedural or substantive due process framework, but the SJC stated the Court’s “confidence that the defendant was afforded a constitutionally fair process [was] undermined.”103 Dew, 210 N.E.3d at 916. As such, future claimants could have benefitted if the Court had conducted a thorough analysis of how the appointment of a racist and bigoted attorney may undermine a defendant’s right to due process of law.104 See generally Schauer, supra note 82, at 572–73.
In order to analyze Dew’s due process claim as substantive, the Court may have considered how the State’s action of appointing ineffective counsel interfered with one of Dew’s fundamental rights or interests.105See Galloway, Substantive Due Process, supra note 36, at 627. In this case, the fundamental right at stake is the right to counsel as established in Gideon v. Wainwright—more specifically—the right to effective assistance of that appointed counsel as established under art. 12 and the Sixth Amendment.106U.S. Const. amend. VI, § 1; Mass. Const. art. XII; Gideon v. Wainwright, 372 U.S. 335, 344–45 (1963). Not only is the right to counsel deemed fundamental under Gideon, it is also considered essential to ensuring the fairness of a trial and the justice system.107 Dew, 210 N.E.3d at 910–11; Gideon, 372 U.S. at 344–45; The Right to Counsel: How It Affects You, U.S. Cts. (July 11, 2023), https://perma.cc/GG5K-JHM9. The SJC concluded in the Dew opinion that the assistance of counsel provided by Doyle could not have been proven effective due to the substantial conflict of interest in his representation of Dew.108 Dew, 210 N.E.3d at 916. This finding would intrinsically support Dew’s claim that he was denied due process of law because the state action of appointing Doyle violated Dew’s constitutional right to effective assistance of counsel.109 See Chemerinsky, supra note 35, at 888–90.
A procedural due process analysis, in this case, would focus on whether Doyle’s appointment as Dew’s counsel was adequate procedure given the potential deprivation of Dew’s freedom.110 See Id., at 888. The Court would likely weigh the State’s interest against the defendant’s interest.111 See Id., at 888–89. In Dew, the defendant’s interest is his liberty, while the state’s is inferentially one of efficiency in meeting the requirement for appointment of counsel.112 See 210 N.E.3d at 906–16. While the Court may have considered the State’s interest in efficiency as one of great importance, the defendant’s liberty interest is also of the utmost importance in criminal cases.113 See Mathews v. Eldridge, 424 U.S. 319, 333 (1976); See generally Niki Kuckes, Civil Due Process, Criminal Due Process, 25 Yale L. & Pol’y Rev. at 1 (2006) (explaining the consequences of the nuanced differences between “competing doctrines of due process” in criminal versus civil cases and the negative impact on criminal defendants). As such, the SJC would have needed to establish whether the procedure afforded to Dew was adequate, which it likely would not have found.114 See Chemerinsky, supra note 35, at 888–90. The opinions and filings of both parties do not indicate that Dew was deprived of the necessary hearings and opportunities to be heard.115 See, e.g., 2d Am. Br. for Def., supra note 78; Brief for the Commonwealth on Appeal from a Judgment of the Suffolk Superior Court at 11, Commonwealth v. Dew, 210 N.E.3d 904 (Mass. 2023) (SJC-13356). However, this right implies a right to be heard in a “meaningful manner,” and being appointed ineffective counsel, as the SJC found Doyle was, fundamentally undermines Dew’s right to be heard in such a way.116 See Mathews, 424 U.S. at 333. To summarize, had the Court properly addressed the due process claims, they may have successfully established a precedent for defendants to claim a due process violation when their appointed counsel became ineffective due to racism or bigotry.117Hassan Kanu, A Lawyer’s Racism Can Impede Duty to Client, Massachusetts High Court Says, Reuters (June 20, 2023, 8:52 PM EDT), https://perma.cc/229W-VBVR.
C. Potential Analysis of Equal Protection Claims
The U.S. Supreme Court established that the equal protection clause protects defendants from invidious discrimination at all stages of a criminal proceeding.118Griffin v. Illinois, 351 U.S. 12, 18 (1956). Dew’s equal protection claims rest on his argument that he was “treated differently in this matter, simply because he was Black.”1192d Am. Br. for Def., supra note 78, at 25–26. If the SJC addressed these claims, it likely would have considered how the state action of appointing a racist attorney established two separate groups of people and whether those groups were afforded the same protection of the law.120 See Galloway, Equal Protection, supra note 46, at 123–24. In Dew’s case, by appointing an attorney who could not effectively represent people of color or those of Islamic faith,121Commonwealth v. Dew, 210 N.E.3d 904, 916 (Mass. 2023); Bos. Globe, supra note 81. the state essentially established two distinct classes of people—indigent defendants who were white and Christian, who Doyle could represent without an implied conflict of interest, and indigent defendants who were people of color or those of Islamic faith.122em> See Galloway, Equal Protection, supra note 46, at 123–24; 2d Am. Br. for Def., supra note 78, at 25–26. Only one of these groups faces a burden upon their fundamental right to effective assistance of counsel based upon their race or religion.1232d Am. Br. for Def., supra note 78, at 24–26.
Because this categorical difference is based upon race and religion, the Court would apply a strict scrutiny standard in its analysis, meaning that the state must show a “strong justification” relating to a compelling government interest for Doyle’s appointment.124 See Galloway supra note 46, at 130–31. The state maintained that the appointment failed to constitute state action, offering no justification aside from one that may be inferred—efficiency.1252d Am. Br. for Def., supra note 78, at 26–27. There are very few governmental interests strong enough to justify race-based classifications under law, and efficiency is not among them.126 But see Galloway, Equal Protection, supra note 46, at 134. As such, the SJC likely would have found that the state appointment of ineffective counsel to a distinct class of individuals—people of color and of the Islamic faith—was sufficient to establish a violation of Dew’s right to equal protection.127 See Galloway, supra note 46, at 123–24. By refusing to address his equal protection claims, the SJC failed Dew and future claimants by failing to establish a reliable standard or precedent for future cases involving defense counsel’s racism against indigent defendants.
II. The Court Failed to Offer Doyle’s Other Clients Remedial Action or Relief
As discussed, this case presents an issue of first impression.1282d Am. Br. for Def., supra note 78, at 58; SJC-13356 Oral Arguments, supra note 79, at 8:10–8:25. The Court correctly identified that there existed a conflict of interest in Doyle’s representation of Dew as a Black Muslim man; however, the Court was largely silent in the published opinion as to how this decision would impact other indigent defendants that Doyle represented.129 Dew, 210 N.E.3d at 916. Throughout his career, Attorney Doyle represented approximately 6,700 indigent clients as their appointed counsel.130SJC-13356 Oral Arguments, supra note 79, at 21:15. There is no information at this time regarding how many of those clients were people of color, of Islamic faith, transgender, or otherwise members of groups that Doyle had a conflict of interest in representing.131 Dew, 210 N.E.3d at 909; see Bos. Globe, supra note 81; Attorney Richard M. Doyle Jr. Cases, Comm. for Pub. Couns. Servs., https://perma.cc/27PJ-BDBS (last visited Oct. 11, 2024) [hereinafter CPCS Announcement]. After concluding their investigation into Doyle’s conduct, CPCS suspended Doyle from participating in criminal proceedings and issued a notice to defendants represented by Doyle that they may be entitled to a new trial or to vacate their guilty plea.132em> Dew, 210 N.E.3d at 909; CPCS Announcement, supra note 131. See Bos. Globe, supra note 81. According to an article from The Boston Globe, CPCS reports receiving at least seventy requests for review with at least three motions pending.133SJC-13356 Oral Arguments, supra note 79, at 21:50–22:30; Editorial Board, supra note 81.
During the oral arguments for this motion, Justice Gaziano asked Dew’s attorney whether this issue was factually specific, such that the facts presented gave rise to one case, or if they had “6,000 cases” arising from Doyle’s misconduct.134SJC-13356 Oral Arguments, supra note 79, at 20:50–21:19. The concurring opinion in Dew from Justice Cypher only briefly addresses how the reprehensible nature of Doyle’s acts impacts others beyond Dew and that such situations can threaten “public confidence in the integrity of the criminal justice system.”135 Dew, 210 N.E.3d at 917 (Cypher, J., concurring) (citing Commonwealth v. Goldman, 480 N.E.2d 1023, 1032 (Mass. 1985)). The majority opinion in Dew will provide grounds for Doyle’s other clients to establish a conflict of interest, but their opinion does not address these other clients specifically.136 See Dew, 210 N.E.3d 904; see Kanu, supra note 117. Having addressed the concern for Doyle’s other clients during the oral arguments, the SJC negligently failed to provide remedial measures to these defendants in their majority opinion.137 See Kanu, supra note 117.
Conculsion
Commonwealth v. Dew was the first case of its kind to establish that an attorney’s social media posts containing racist and religiously bigoted content were sufficient to establish an actual conflict of interest in representing clients who may be people of color or religious minorities.138210 N.E.3d at 910–16; see Reed, supra note 12; Bos. Globe, supra note 81.The Court focused on the right to effective assistance of counsel under the Sixth Amendment and art. 12 of the Massachusetts Declaration of Rights.139 Dew, 210 N.E.3d at 910–16. The Court found Doyle’s representation of Dew ineffective as a result of an actual conflict of interest, given the racist and anti-Muslim content Doyle regularly posted to his Facebook page. The SJC correctly found that Dew was entitled to withdraw his plea and obtain a new trial. Though this case is the first of its kind, it certainly will not be the last.
Dew is a case that presented issues of first impression. By refusing to address Dew’s Fourteenth Amendment claims, the SJC failed to establish a reliable standard for future claimants or for Doyle’s other clients who may have been negatively impacted by his bigotry. In the time since CPCS issued the notice regarding Doyle’s conduct, they have reported receiving seventy requests for review, and it is probable that this number has increased following the SJC’s ruling in Dew.140 See Bos. Globe, supra note 81; CPCS Announcement, supra note 131. While the Court ultimately came to the correct conclusion, their analysis could have strengthened by addressing the Fourteenth Amendment claims to serve as precedent for future defendants who are negatively impacted by racist or bigoted appointed counsel.
Moving forward, indigent defendants who are seeking to establish a violation of their right to effective assistance of counsel as a result of appointed counsel’s bigotry will be able to turn to Dew when proving a conflict of interest.141210 N.E.3d at 906–16; see Kanu, supra note 117. This case establishes an essential protection for indigent defendants who are faced with racist, religiously bigoted, or otherwise discriminatory behavior by their court-appointed representation. In conclusion, though this decision is only binding within Massachusetts, this case will likely serve as a foundational approach for other states to follow.
