Is joint representation of criminal defendants per se a conflict of interest?

On December 29, the Illinois Court of Appeals published an interesting opinion that briefly touched on the question of conflicts of interest in the representation of co-defendants in a criminal trial. The case is called People v. Hatchett and it is available here.

In this case, the defendant argued that his conviction should be reversed because, among other things, he was denied effective assistance of counsel. The court rejected all the arguments and affirmed the conviction. The argument regarding ineffective assistance of counsel and the court's response present a couple of interesting questions.

In support of his claim of ineffective assistance of counsel, the defendant argued that defense counsel acted under a conflict of interests by representing both the defendant and another co-defendant during pretrial proceedings. Specifically, he argued that "defense counsel’s dual representation impeded the State from making a plea offer that would have benefitted one defendant against the interest of the other."

This is an interesting take on what constitutes a conflict of interest in the context of joint representation of criminal defendants. Let's start with the basics: IF the state had made an offer to one defendant in exchange for that defendant's testimony against the other, the attorney definitely would have been in a conflict of interest situation. However, in this case, the prosecutor did not make an offer, so the defendant's argument is that the prosecutor would have made an offer had it not been for the dual representation by defense counsel. In other words, the argument is that the defendant did not get the benefit of a plea bargain offer by the prosecutor because the prosecutor did not want to create a conflict of interest for defense counsel.

Given that it is not uncommon for prosecutors to make similar offers regardless of the defendants' representation arrangements, I am not sure the argument is particularly strong.

But let's take it at face value for the moment and consider the consequences. If the defendant's position were correct, it would mean that joint representation in criminal cases would, by definition, in all cases, be a conflict of interest that would result in reversal of a conviction. Why? Because if the prosecutor made an offer, there would be a conflict and if the prosecutor did not make an offer, well, there would be a conflcit too!

But wait, there's more! Interestingly, the court did not consider the argument at all. It held that "this issue is not appropriate for resolution in the context of this direct appeal. Rather, this issue should be appropriately raised in a postconviction proceeding in which the defendant could submit affidavits and present extrinsic evidence at a hearing to determine whether a conflict of interests existed in his trial representation."

Here is the interesting question: given that the defendant's argument is based on the fact that the prosecutor did not make him a plea offer, whose affidavit/what evidence would the defendant need to present to prove the existence of the conflict? Wouldn't the defendant need to get the prosecutor to testify that the prosecutor would have made an offer had it not been for the fact that defense counsel was representing more than one defendant? Good luck with that!