-: SJC-13356 Commonwealth v Anthony J. Dew.
-: Okay, Attorney Gaffney.
-: Your Honors, my name is Edward Gaffney,
and I represent the defendant Anthony Dew.
Mr. Dew is appealing today the denial
of his motion for new trial to withdraw guilty pleas.
At the onset, I'd like to focus on
an important aspect of the Facebook posts
that are at the heart of this case,
because they were much more than
just documentary evidence
of Attorney Doyle's racism and bigotry.
Because this is not the same as a case
where we stumbled upon a personal journal
and a shameful entry written by Attorney Doyle.
-: May I interrupt you for one moment
and then you can resume.
I just have a question, this is a good time.
You mentioned it's not something that was stumbled upon.
In the record I figured out that somebody from CPCS
called somebody else from CPCS and said,
"Look at the Facebook post."
Right?
Edward: Yes.
-: How did they know to do that?
I can't find that anywhere in the record.
Like what date did CPCS learn about this first?
-: Okay, the record doesn't contain the...
I know this because I've spoken to people
at CPCS about this,
so I just wanna report- -: But it's not in the record.
That's okay. -: That this isn't
in the record,
that in 2017, an investigation was undertaken by CPCS.
-: Right. -: As a result of a report
to CPCS that someone had seen these things on Facebook.
-: But we don't know when that report is.
That's not in the record.
-: When that report is.
-: I couldn't- -: It's not in the record.
It was in 2017. -: That's fine.
-: But it's not in the record.
Anyway, Your Honors, I just wanted to emphasize the fact
that these Facebook posts were, in themselves,
because of the manner in which they were presented,
these were racist acts in themselves,
because these were public declarations of Attorney Doyle,
proud public declarations of his racism and bigotry
posted on a public forum designed
to make these posts accessible indefinitely to the public,
and also designed to make it easy for the public
to copy and share and re-propagate these messages.
-: I'm sorry, what were her settings?
Do we know that.
-: Sorry?
-: What were her Facebook settings?
Was he a private person or public person?
-: Public.
-: Also, the CPCS investigate...
Sorry, Justice Gaziano. -: No, I'm done.
-: The CPCS investigation, he's interviewed, right?
He says he's doing the exact opposite.
He thinks he's talking to friends.
-: Right. -: So...
Does that get you anywhere, by the way?
I'm just not sure how relevant any of that is.
I mean, why is it...
We all agree these are reprehensible, bigoted posts,
but at the same time he's saying, "I wanna win.
"I'm not trying to undermine my client's..."
I'm just trying to understand
sort of the standard we apply here to this.
-: Well-
-: 'Cause again, we...
There's no doubt these are reprehensible.
There's no doubt they're racist.
They're not the most...
Almost all of it is not directed to the case.
The only racism in the case appears to be the comment
about his client's religious garb.
-: Correct, correct. -: Right?
That's the only evidence in the case, right?
-: Direct, right, specific to Mr. Dew.
-: Right, so I'm trying to understand,
what is our standard for that kind of behavior?
Is it actual conflict of interest?
Is it potential conflict of interest?
-: Okay, well, I would argue- -: Help us,
'cause this is a novel case,
and we all agree on how bad the posts are,
but their relevance to the case is the hard part of this.
-: Well, Your Honor, actually I,
I actually think,
I understand your point, but I actually think
that there's an actual conflict of interest here,
specifically because of the posts,
regardless of the fact of whether they were
directed at Mr. Dew, although those ones about the kufi
were directed at him,
and that's because what Mr...
Attorney Doyle was doing this
between 2014 and 2017, continuously.
He represented Mr. Dew in the first half of 2016.
Okay?
Supposedly with undivided loyalty,
ethically obliged to be acting only in his best interests.
And my argument here is, well, one of my arguments-
-: Is actual conflict your best argument?
Because it gets you outta the prejudice prong.
-: Yes.
And the reason-
-: Can I follow up with Justice Gaziano on this point?
Because that is the, the linchpin.
We just talked about that in our Tate case
a couple of months ago that if you have the actual conflict,
you don't have to show prejudice.
I couldn't really discern, have you found any other,
even that ninth circuit case that you both talked about,
and even in the concurrence,
has anyone ever found that it was actual conflict
when you have these kinds of musings by counsel?
-: Well, these kinds of musings, Your Honor, no.
I mean the Ellis versus Harrison case,
the lawyer was doing everything verbally to,
just to others in his sphere,
whether it's coworkers or family members, or whatever,
making offensive comments.
So this is different because, in my view,
it's a different type, but it's no less,
no less egregious because I contest,
I absolutely believe that this is,
this type of,
these types of messages, these images and these messages,
the spreading and the normalizing of this kind of stuff,
these intolerant, the messages and images
of intolerance and in intimidation and threat
over the history of our country right up to today,
which Attorney Doyle was happily and proudly taking part in,
right through and when he was representing Mr. Dew,
were contrary to Mr. Dew's best interest
because that kind of messaging,
the spreading and normalizing of that stuff
throughout the history of our country
has very successfully made this country
and this commonwealth less fair and more dangerous
for people like Mr. Dew, just because of the way he looks.
-: Can you articulate the standard for actual conflict
and how this applies to this case?
I mean, in my mind it has to be
something that makes you incapable
of representing your clients, so this divided loyalties,
and I know the briefs kind of dismissively talk about
what Judge Sanders wrote, but where we,
if we have someone who's strongly anti Second Amendment,
a lawyer, and they have a person with a firearm charge,
and the person rests on their Second Amendment rights,
and then the person politically hates guns and...
And there's thousands of this,
and we expect defense attorneys
to represent reprehensible people,
and they do so without actual conflict all the time.
So articulate for me the standard that takes this out of,
I have a reprehensible client whose thoughts and ideas
I do not endorse whatsoever,
and how that becomes an actual conflict in this case.
-: Okay, Your Honor, there's a lot to that question.
I'm going to...
Let me first point at the language that this court
has already endorsed, because I know that the...
Attacking actual conflict,
or addressing actual conflict through racism
is something that, I mean, that is,
well, this court hasn't done it.
I mean we're in new waters here.
The language that I thought that was
the most- -: No, no.
-: Please let him answer the question.
Go ahead.
(justices chuckling)
-: The language that I thought was most apt
with respect to the conflict piece of this was whether,
this is from the Cousin case,
"whether no impartial observer could reasonably conclude
"that the attorney is able to serve the defendant
"with undivided loyalty."
"No impartial observer could reasonably conclude."
Okay so that's that piece of it.
Now, Your Honor brought up
this put aside your personal feelings thing,
which I have some extremely strong personal feelings about,
because there is no constitutionally-protected
class of people who are credibly accused of horrible crimes,
but there sure is
a constitutionally-protected class of race.
In other words, in my mind, there's a significant problem
with making an equivalency for an attorney
who doesn't like his client
because he's been accused of rape
and his client whose skin is brown.
But putting aside all of that,
this case,
the Facebook posts make clear, or I should back up...
in order to make that-
-: And we've had neo-Nazis accused of hate crimes
that we would find intolerable, of course.
But they get lawyers.
So how does that play out?
-: Well, that, my point here is that,
well, two points.
First of all, the neo-Nazi defendant,
it's not the neo-Nazi lawyer, it's the neo-Nazi defendant.
So, if the lawyer engages in some
unconstitutional behavior with respect to his client,
that's step one in my problem with that.
Well, we put aside all our personal feelings
when we get to this,
when we step across the threshold of the courthouse,
no matter how bad we feel about our defendant,
we put it aside.
So that's problem one.
But problem two, this case, I mean,
the Facebook posts don't just
demonstrate rampant racism and bigotry.
In order for the attorney in question,
for us to apply that assumption
that he's gonna put aside his personal feelings,
et cetera, et cetera, there's an assumption there
that the attorney respects the Constitution
and the rule of law
and respects the criminal justice system and his role in it.
These Facebook posts make abundantly clear
that Attorney Doyle had contempt for those things.
I mean, these posts include public musings,
by him, of murder.
-: Isn't his actions significant,
or aren't his actions significant in that portrayal
and in your point, I think,
when he has a strong reaction to the religious headwear,
not once, but twice, the first time saying,
"Don't wear that."
And I won't dignify it with what he said.
But in the second time he goes in to see him,
and he only saw this person three times.
The second time that he goes to see him,
he inferentially gets into the room,
sees he's wearing the kufi, and just gets up and leaves.
Edward: Right.
-: Does that manifest in your mind,
and I'm throwing you in a hangin' curve ball,
the actual conflict?
-: Well, of yeah, of course, Your honor.
I mean that's just,
but I would argue that is just one more manifestation,
and I wanna bring to the court's attention
that Judge Sanders credited the defendant's testimony
about this stuff.
But actually she mischaracterized,
she made a little mistake
when she was describing what he said,
because there were three meetings that he talked about,
two in the jail, one in the courthouse.
The last one in the courthouse was where he said,
"Don't wear that blank in the courtroom.
That was in the courthouse. -: I thought that was
only in the first meeting.
-: That's what Judge Sanders said.
But the testimony actually was that
he met him in the jail, said, "Don't wear that stuff."
Came back, saw he was wearing it-
-: Second time. -: Just left.
And then third time. -: Third time
in the courthouse before he goes up for the...
In fact, the testimony of Mr. Dew is that,
"The court officer's, like,
'What are you guys arguing about?'"
And Dew told him.
This is in the hearing transcript.
-: Yeah, I didn't read the hearing transcript.
-: It's around page, I think it's page 30 or something.
Anyway, so yes, Your Honor,
that's the most glaring piece of evidence
about the fact that Doyle didn't put aside his feelings
when he was representing this guy.
But again, I got a problem with that,
applying that kind of assumption to Attorney Doyle,
given the content of the Facebook posts,
publicly musing about vigilante murder by him?
Of people of color? -: Well, counsel,
I'm seeing a difference in the way
that Justice Gaziano's framed the question
with regard to we every lawyer has clients
that they think have committed reprehensible crimes.
There's a difference between that
and a lawyer's obligation to appropriately represent them
and a lawyer who inherently in their own life every day
believes not that they commit reprehensible crimes,
but that they are reprehensible themselves.
-: Right. Is that what you're saying?
-: Yes, it's not...
There's a difference between I don't like you
because of what you do,
and I don't like you because of who you are.
-: So in the neo-Nazi case,
it would be that we had a neo-Nazi lawyer
and a Jewish defendant.
-: Right, that's a problem for me.
-: Well, counsel, I still have this other issue.
I know you're characterizing some of the subjective things
and whether or not it would manifest
the actual conflict here,
but we also have baselines that we can look to,
and I believe in the case,
Attorney Perullo did an investigation here, right?
I mean, so all the time,
even if you're appointed counsel,
CPCS, they do they do these audits.
They look at your files and they see how well
or how poorly you're representing your clients
based on whether you filed appropriate motions
to dismiss or motions to suppress, et cetera, et cetera.
Why don't we have a baseline here that we could say,
irrespective of whatever he's musing about,
whatever he's posting about, we can look to the case,
we can look to the transcripts, we can look to the hearings,
we can look to what he actually did
to see whether or not there was actually
any prejudice to Mr. Dew?
Why can't we just do that?
And wasn't that done?
Didn't Attorney Perullo find that, yeah,
he was dismissive to his clients,
but he always wanted to win,
and so therefore you can infer
that he did what he was supposed to do
as a reasonably prudent lawyer?
-: Well, Your Honor, first of all,
the question of whether there is actual conflict or not
does not depend on whether there was prejudice.
In fact, if there is- -: That's if we believe
and we conclude that there's actual,
but if we don't and we have to then
go through a prejudice analysis.
-: Correct? -: Now answer the question.
-: Okay, so if I am being pressed
to present to the court actual prejudice in this case,
the only place I can go is the failure to,
Attorney Doyle's failure to file the-
-: That's the IAC claim, which is kind of-
-: Right- -: Which you didn't focus on.
-: Right, I didn't focus on that-
-: For good reason.
-: Right, I didn't focus on that
because that's the tougher one.
And I would argue also that when you take racism
and you move it into this,
you basically eliminate racism from the case.
I mean, if you look for prejudice,
it doesn't matter whether he's a racist or not,
he either did the job or he didn't do the job.
So, Your Honor, as you're pointing out,
if we go through a case and we determine,
well, you did this right, but you didn't do this right,
okay, fine, so if you didn't do this right,
that's ineffective, that's the end of it.
But racism suddenly just drops out of the case.
-: What of it's potential prejudice?
I mean a potential...
There's clearly prejudice here.
So I'm trying to understand, though,
do you go automatically
to a conflict or is it a potential conflict?
Because this guy also, he says he likes to get,
he likes to make money, he likes to win.
He's a arrogant, self-confident guy.
He doesn't like to lose.
So he may be a racist, but he may wanna win.
So I'm just trying to understand,
is it an actual conflict or is it a potential conflict?
We just...
Say he did a marvelous job.
He won four out of five claims.
All he gets convicted on is a little...
Do we reverse that, too, because he's a racist?
-: Well, yes, you do.
And the reason is because,
I mean, this is...
The reason that I argued that this is,
and I don't mean this just tactically,
I mean this also from the perspective of
we're dealing with new,
a new kind of thing here, ineffective,
not ineffective, but conflict with respect
on the basis of racism.
So I looked not just at conflict,
I also looked at structural error,
which I think this is squarely within structural error.
When we're dealing with, as I think it's the Francis case,
made clear, when we're dealing with something
that's critical constitutional problem
that affects the entire framework of the case.
Everything in every case that Attorney Doyle did
had to flow through him necessarily.
But if he sees the world through this warped,
distorted lens of racism, every single thing in that case,
the whole framework of the case, is affected by his racism.
And that's not to say that he was trying to lose cases.
I'm talking about the fact that this guy walks around
with these assumptions and these generalities
and making these shortcuts. -: Well, counsel,
can I ask you a question?
It seems to me this is somewhat different than just
an attorney who's racist,
because this is an attorney who's not only racist
in the way we think of the term,
but who is actually publishing the views
and is actually inciting through his posts,
some of them are quite suggestive of violence.
-: Correct. -: And so he's moved,
at that point, from his belief system
to his actions in terms of these posts.
So it seems to me that that acting out through the internet
becomes a whole different behavior set,
not just that we're dealing with a racist person.
-: Right, and that's where I,
what I was trying to do when I was starting,
when I was explaining that these things
were not just declarations...
I'm sorry, they weren't just,
it's not just evidence that he's a racist,
it's racist behavior to put this stuff on Facebook.
He's representing a man who's a black Muslim man,
and he's putting this stuff on Facebook at the same time.
That is hurting this man.
I understand that this may not be,
that he's making it harder for him to win this case,
but that doesn't mean it's not...
Too many negatives here.
It is still in his...
It is still against his best interests.
If you're working hard for Mr. Dew on his case,
but in the meantime you're publishing this stuff
that makes it more likely that he's going to
suffer harm just for walking down the street-
-: Say we agree with you with respect to actual conflict.
Does that invalidate all of his cases?
Or does this stand in a unique posture,
because of the manifestation of conflict
with his interactions with Mr. Dew?
-: No, I think...
The actions, about the headgear, the hat?
That's just more evidence.
I don't believe to take that away and then suddenly
Mr. Attorney Doyle's racism is just okay.
-: No, we have to have evidence that
a reasonable observer would conclude he had divided loyalty.
So if we have a case where this,
where we don't have this evidence,
which we have about his religious wear,
does that make it a different case?
-: Well, it only makes-
-: A fact-specific case as opposed to a general case
about this attorney.
-: Well, I would argue every case is fact specific
focused on the standard that I'm suggesting,
this impartial observer. -: I guess,
what I'm asking is do we have 6,000 cases
or do we have one case?
Edward: Okay. (laughing)
To get to get to that- -: And how many
between 6,000 and one do we have?
-: I was prepared for that.
This is not...
Some of this is in the record, some of it is not.
6,700 cases he was appointed to represent.
I don't know and we don't know how many of those people
were Muslim or people of color.
Dalila: Or transgender.
-: Say it again. -: Or transgender.
-: Or transgender, right.
Correct, Your Honor.
-: So somewhere between one and
6,700. -: 6700.
However, to make sure that the court is fully aware of this,
I mean, again, this is not part of the record,
but I can report, I have asked CPCS about this,
because they undertook a,
they undertook to try to alert these people about the case,
and let them know that this was out there in the world
and maybe that...
Approximately 50 to 60,
at the last time I checked, responded.
I have four cases.
I know of one other attorney has who has three,
and I know of one other attorney who has one.
-: Counsel- -: So this is not...
I don't believe we're talking about a floodgate-
-: But you're, I mean, it's like a...
All come, everyone can come and have their case reviewed.
Edward: Absolutely, if they chose to.
-: But you're saying that it doesn't matter,
all these people should have the convictions
or whatever it is that he did for them...
-: Not necessarily, Your Honor.
Depends on the holding, of course.
And also depends on the facts of the case.
-: You wanted to be- That was my point,
was the facts of the case. -: Right.
-: So the facts of this case that
you picked a good test case.
-: Well, it kind of was handed to me,
but yes but Your Honor,
I understand- -: But I don't understand,
I don't understand that,
'cause you say it's actual conflict.
If it's actual conflict, it's an automatic reversal,
doesn't matter of the facts. -: Structural error.
-: So it's all 6,000 of those cases,
if they're involved either Muslims or Blacks.
Correct? -: Well, it's-
-: That's the way you're arguing the case
is it's actual conflict of interest.
-: Well, this case there's an actual conflict of interest
because- -: I thought you said
because of his posts, not because of-
-: Because of his posts, I do argue that, that's correct.
So those...
So in that sense, if these posts,
if the court holds that these posts establish
an actual conflict of interest with people of color
or with people who are Muslim, then yes,
those people that he represented
are entitled to a new trial.
Now I don't know that...
By the way, I don't know...
I mean, Mr. Dew, I've been very frank with him
that reversing a guilty plea means you're back to start.
There are a lot of people that aren't going to
take advantage of this. -: I think we're trying to
understand the extent of the rule, though.
So it doesn't matter that he made the statement
to the defendant about his religious garb.
In your view, that doesn't matter.
-: No, it matters.
-: But you're saying there's still
an absolute conflict without that or-
-: That's true.
-: So, again, I'm just tryin' to...
-: 'Cause you're asking us to create a rule,
and we wanna understand what the rule is gonna be
and its effects.
And it's also not just this gentleman.
If someone goes out and searches public posts now
for any lawyer and they make those kinds of comments,
actual conflict of interest.
-: Well, and this is why-
-: How about jurors?
Any juror that's made a comment in a case for...
Just check someone's posts for the past 20 years,
we gonna reverse all...
I'm just asking the rule,
just so I understand. -: I understand,
I understand, Your Honor.
Well, first of all, on the juror piece,
I think that there's a whole lot more law
on how to handle jurors with-
-: Not outside the courtroom there isn't.
There's stuff in the,
we got lots of law about how we analyze jurors
and what they say in the courtroom,
but there's not a lotta law like this
where five years later someone finds
social media posts, right?
-: About jurors, about a juror?
-: Right. -: Right?
Okay, well there's...
There is a process...
First of all, juror and lawyer are very, very different.
There's no conflict of interest,
actual conflict of interest, et cetera, et cetera,
with respect to jurors.
There is with lawyers.
That the lawyer has such an important part of the,
is such an important part of the process.
That's number one.
Number two, the idea that, or the concern,
justifiable, I think, that some broad rule comes out here,
that then suddenly everybody's on Facebook
looking for the magical thing
that's gonna get them a new trial.
Which is why I felt confident or comfortable
referring the court to that language,
the impartial observer,
because that's where it all comes back to.
It's not how many Facebook posts.
Or was this on Facebook?
Or was this on Instagram?
Or was this on Twitter?
It's take the information about this person
and then go through that process.
So it's not count up the posts.
It's not how long ago. -: But you still
have a problem, though,
because all of these different biases
and all of these different prejudices
that you're talking about.
So on these individualized hearings
that you say that everybody gets to try to demonstrate
whether or not they can meet this...
-: Impartial. -: Impartial observer standard.
You can have a judge sitting out in one part of the state
that looks differently at whether or not
you meet the standard.
You have somebody else doing the same thing.
So how does it become manageable
to be able to have what you're saying
we ought to have as the standard here?
How does that become manageable?
-: But isn't that the way it is with all cases?
I mean, a standard gets established,
and then it's case by case.
I mean, if an attorney tells an offensive joke
at a family gathering 10 years ago,
and somebody races his aunt in and says,
"Your Honor, there's a joke here from 10 years ago,"
Okay, denied.
-: Different people experience racism
in very different ways, counsel.
-: Exactly, Your Honor. -: So, for them,
if I'm exactly right,
aren't we saying that it's necessarily going to be
arbitrary results in the world that you're describing?
-: Well, but I believe,
I mean although racism is a very...
It's unique.
It's not just historically critical,
but it's also so unusual.
I acknowledge that, but every legal principle
ends up in the same place.
We all experience, not just racism,
we experience anger and rage
and any number of emotions individually,
and judges are all the time called upon
to make individual assessments
of whether that particular person's,
whatever it is, behavior, reaction, meets the standard.
So I think that that's where we are here.
-: Counsel, why is it the public nature
of the Facebook post that creates,
in your mind, the actual conflict?
-: Because- -: Because what if he
had a private Facebook account,
but still harbored these anti-Muslim, anti-Black views?
Wouldn't that create the same actual conflict?
-: Well, yeah. -: Would be
structural in nature.
I don't understand the focus on the publicity.
-: The reason that I focused on that, Your Honor,
is because I think it's an easier case for me to make out
for actual conflict in this sense,
when he's working on the Anthony Dew case
in the first half of 2016,
he is publicly acting against Mr. Dew's
best interests at that time.
At the same time he's representing him,
he's acting against his best interests.
-: But isn't that evidence that he
might have been...
Is it the public nature of his rants on Facebook
that is in conflict with his client?
-: Yeah, it is.
-: Why? -: Because
by sharing this stuff, by spreading this stuff,
by normalizing this stuff,
Mr. Dew is made unsafe in this country,
in this Commonwealth.
He walks down the street, because he's Black, he's a target.
Not me.
I can walk next to him. -: And you think that's-
-: He's the one that's got
a higher risk. -: You think that's
Attorney Doyle's doing? -: Yes, I absolutely believe
it's Attorney Doyle's doing,
not because he's the only one,
but specifically this is how,
this is the racist playbook.
This has been going on for generations.
-: Right, and don't you think
it's that generational effect
that's having the consequences to Mr. Dew?
-: Well, yes, I'm not saying that
Attorney Doyle's public posts
specifically- -: Right, so that if you are
quietly a racist, anti-Muslim person,
and you're representing somebody who you can't stand
because of who they are, not because of what they did,
because they're a neo-Nazi,
or they made a choice to hold a firearm and your anti-gun,
but because of who they are, isn't that different?
The public nature of your contribution
to the history of racism is not the conflict.
It's the conflict between the counsel's views
against the person that they're chosen to represent.
-: Well, I actually, I absolutely agree with you, Your Honor.
I'm just saying- -: That that's an additional-
-: That's just-
-: Yours is just a better case, as somebody said,
it's a good test case.
But fundamentally, if you hate the person
that you represent, that is the conflict.
Edward: Absolutely, Your Honor.
-: The Facebook posts are the evidence.
-: That's 100% correct.
I agree with you completely. -: Wanted to be clear
on the rule that you wanted us to make,
because we will make a rule.
And I wanted to make sure that,
because you did the default settings on Facebook,
which are public,
that's not the reason why this is structural error.
It's because you represent somebody
who you fundamentally hate.
-: Correct. -: Okay.
-: And you're supposedly working in his best interests.
-: Okay, I think we've...
-: I may have gone over a little. (laughing)
I apologize, Your Honors.
-: No, thank you.
-: I just wanna say be before I go,
as I was working on this,
and I just want to urge the court to take this opportunity
to make a strong statement
because of the persistence of this problem.
We fought a war.
We've amended the Constitution three times.
I mean, we have...
It's 2023 and we're still talking about this.
And so I'm urging the court to take decisive action.
Thank you. -: Thank you.
Attorney Murphy.
-: Good morning, and may it please the court?
My name is Adam Murphy with the Legal Defense Fund,
and on behalf of (indistinct) LDF
and the New England Innocence Project,
I'm arguing in support of Mr. Dew.
I want to briefly, if Your Honors may,
go back to the points that Justice Cypher
and Justice Gaziano were making,
that there is just a fundamental difference
between not liking someone based on what they did
and hating someone based on who they are.
That's the principle that the U.S. Supreme Court
has recently reaffirmed in Buck versus Davis,
that our law punishes people for what they do,
not who they are,
and that fundamental fairness aspect
is absolutely critical here.
And we're, we're thinking about a standard,
I completely agree with Justice Wendlandt
that it's the animus that Mr. Doyle has toward Mr. Dew.
And I think the standard that Judge Nguyen's concurrence
set out in Ellis versus Harrison
is sensible and it is limiting.
When there is clear evidence of extreme
and deep-rooted bias against a particular cognizable group,
that attorney cannot represent that cognizable group.
It is antithetical to the duty of loyalty,
which is counsel's most basic duties,
and that is especially true when we are dealing with issues
of race and when we're dealing with issues of religion.
And consistent with this court's precedent of recognizing
that race must be addressed with added precaution,
that it implicates unique historical-
-: I'm sorry. -: No, go ahead.
-: Well, counsel, I'm still struggling to say
why can't we look at this through the lens of the IAF claim?
Because again, you have a metrics here.
I mean, if you have reasonably prudent
criminal defense attorneys,
we can look to see what counsel did and what he didn't do.
And so why couldn't we just measure whether or not
this manifested, not as a structural aspect,
but as an IAF aspect and say,
what would somebody reasonably prudent
representing Mr. Dew would or would not have done?
Why can't we do.
-: Just to make sure I understand,
IAF, ineffective assistance
of counsel. -: Yes.
-: It's because when attorney's representation
is corrupted by conflicting loyalties,
the error's effects are just simply too hard to measure.
And so you could look objectively at the prejudice here,
and there are clearly errors in this case,
but the whole point,
and what is analyzed in structural error cases more broadly,
is that defense counsel is making actions and inactions
all of the time.
And when they have divided loyalty,
it doesn't always show up in a transcript.
It's difficult to pinpoint, and to put the burden,
the insuperable burden on the defendant,
the person who's being discriminated against,
would be perverse and would be antithetical.
-: Do you agree that the actual conflict is the issue here
as opposed to the ineffective assistance
and/or equal protection?
-: We support all of merit's counsel's arguments,
but from our perspective,
we focus on the conflict of interest,
because it's the most clear.
-: Legal Protection has a state of action issue that's-
-: Yes, Your Honor.
Yes, as CPCS found, there is a clear...
You can't reconcile Mr. Doyle's views
with the duty of loyalty.
And just going back to the point about the factual record,
I wanna just clarify something.
-: No, I don't,
I think Judge Sanders is of the fact finder not CPCS,
with all due respect.
-: Oh, without question, without question.
But just to review what the transcript said,
and I say it to confirm that there's
a conflict of interest in this case.
Our position strongly is that the view
in Ellis versus Harrison is sensible, it's limiting,
when there's clear evidence of extreme
and deep-rooted racial bias-
-: What is the rule in Ellis, though?
'Cause that's what I'm trying to understand,
because Ellis doesn't do an actual conflict analysis,
does it?
It just says,
it basically made your point,
which is if there's sort of virulent prejudice demonstrated,
we're gonna reverse.
They didn't do...
They didn't apply actual conflict analysis, do they?
-: I think as a technical matter, Your Honor is right.
But I think the distinction sounds in
the difference between federal law
and this court's jurisprudence applying Article 10.
In Ellis versus Harrison. Mr. Ellis conceded
that he could not show adverse effect,
which of course under the Sixth Amendment is the requirement
for proving an actual conflict.
Obviously with this court, which is more protective
and has deviated from the Federal Constitution,
there's no requirement of adverse effect.
-: But in Ellis, also, there's a lot directed at the,
his own client.
Much more than here, right?
In Ellis, he belittles his client.
He basically,
doesn't he say he wants his client to lose at some point?
He indicates that he's not
trying to vigorously represent him, right?
-: No, Your Honor.
So in Ellis, the court makes clear
that he actually didn't direct any racial invective,
that's the exact language, toward Mr. Ellis himself.
The reference to other clients
that Mr. Ellis's attorney had represented.
But in terms of Mr. Ellis himself,
you actually see the effect on representation
sort of much more dramatically here.
And what the CPCS investigator made clear
was that what he saw in these Facebook posts
was entirely consistent with
the person that he knew Mr. Doyle to be in practice.
And so the sort of bleeding into the courtroom
is quite evident.
And I just wanna make one more quick point
that the nexus between these Facebook posts
and how it was actually manifesting in practice is,
though it's not required,
is extraordinary in this case,
that specifically in the weeks and months
leading up to his representation of Mr. Dew,
Mr. Doyle is posting vial and violent racial epithets
about Muslim people,
and specifically about Muslim religious headwear.
And then at that first meeting when Mr. Doyle walks in,
when Mr. Dew walks in and Mr. Doyle says,
"Take that off and don't come back in here with that ever."
And that's,
and I implore the court to look at
the May 6th, 2022, hearing transcript,
which lays out all of this.
The second meeting he sees Mr. Dew
again wearing a kufi and storms out of the room,
and they don't talk about the case at all.
And in the third meeting he says,
"Don't wear that S-H-I-T in the courtroom."
And so the nexus-
-: That is the extent of the contact
between this lawyer and his client,
and each time there, it is,
caked in racist, anti-Muslim views.
-: That's exactly right, Your Honor.
That's exactly right, yeah.
And Mr. Dew testified that they actually
never spoke about the case at all.
That they basically talked for a total of five minutes.
And any case where the court makes a rule
is gonna have a cost,
and the court will have to decide how far it goes.
But it's also, I think, very important
to understand the cost to the system itself,
that the appearance of justice and the reliability,
the credibility, and the integrity
of the criminal legal system requires
that this case be reversed,
and all of us at LDF urge the court
to reverse Mr. Dew's conviction
and provide a sensible remedy here.
-: Okay, thank you. -: Thank you.
-: And Attorney Francisco.
-: Good morning, Your Honors.
May it please the court?
I'm Anna Francisco,
and I'm here representing a group of (indistinct)
who are deeply committed to eradicating
identity-based disparities in the justice system.
And in my remarks to the court, I'd like to focus
on that system and the importance of having confidence
in the integrity of that system.
Picking up on some threads that came up in earlier colloquy
with Mr. Gaffney, Mr. Murphy,
the Supreme Court and this court have recognized
that racial bias implicates unique historical,
constitutional, and institutional concerns,
that if left unaddressed would risk systemic injury
to the administration of justice.
And I submit to you that a situation in which
a court-appointed lawyer,
who engages in the kind of conduct that we have here,
posting vile, racist, religiously bigoted comments,
and then being appointed to represent a member of the group,
a man who is Black, a man who is Muslim,
is precisely the kind of issue
that does undermine confidence
in the integrity of our system.
-: Counsel, may I ask you,
because we're seemingly focused,
and we as a court,
have a much zoomed out view than just the narrow,
the view that you're talking about here.
So if we're going to...
If we're going to localize this to as a Black male or,
what if the posts were all in support of law enforcement,
where it was one post after another,
another Blue Lives Matter, we support the police,
it was one post after the other,
that if you could extrapolate and say
it's antithetical to at least perhaps
what my client feels as a Black man in America
and my feelings against the police, would this count?
Would that count?
Would that equally implicate this?
-: I think that's a much harder question,
and candidly I think no,
but here we don't have to engage in that,
because I do agree with Mr. Murphy
that the standard that was set out in Harris v Ellis
is the right standard.
I mean, we have an extreme case.
I think it's noteworthy that
searching as all three litigants here, or not litigants,
but all three parties here in support of reversal
did scour to see are there other cases like this?
And we came up with Ellis v Harris,
and no other reported case in which we have
such extreme and clear conduct.
And I have to say in the
month or so that I've been engaged by my clients,
and thinking of these issues to the extent I tell any lawyer
the basic facts of this case,
uniformly the reaction is one of shock,
that of course there's a conflict
because his, Attorney Doyle's biases were
so deep-seated and he made no,
he made no effort to conceal them.
Whether, I agree with Justice Wendlandt,
whether it was public or not, to me,
is neither here nor there.
We have evidence that this man hated Mr. Dew
because of who Mr. Dew was.
And there's no gray area here.
And his personal conduct in the three meetings,
and I think it's really generous to call them meetings,
frankly, that he had with Mr. Dew,
just underscores how much he just hated Mr. Dew
because Mr. Dew was a Muslim.
And I think the case that you are positing,
I think it's perfectly possible
to support the police and support blue lives
and not be a virulent racist.
But that's not the situation that is facing the court here.
And I hope, and I pray that these situations are rare,
but that is the situation before the court,
and Mr. Doyle, here,
was someone who just absolutely hated Muslims
and hated people of color,
whether they were African Americans,
whether they were Hispanics.
And given that,
he really could not fulfill his duty to his clients,
and the duty, the duty of a defense counsel in these cases
is paramount to our confidence
that our adversarial system works.
You need a fair judge, you need a fair jury,
and you need a lawyer who's going to go in there
and have loyalty only to the client
and serve only that client's best interests.
And none of us can say with any degree of confidence...
In fact, I think everyone on this panel
has expressed skepticism that Attorney Doyle
was capable of doing that.
And certainly the fact that he met, again,
a generous term in my view, with Mr. Dew three times,
a man who was facing serious felony charges,
is evidence that he had his mind made up about Mr. Dew,
and he was not going to do his best
to faithfully and zealously represent this man.
And in our system of justice,
that's what Mr. Dew is entitled to.
-: Okay, thank you. -: Anything else
from the panel?
Thank you, and Your Honor,
we urge reversal, and on by behalf of (indistinct)
we do agree that this court should consider a system
for reviewing other clients of Mr. Doyle's
who are African American, who were Muslim,
who were immigrants, the groups that he,
time and time again, denigrated on Facebook
and demonstrated his identity-based hatred for them.
I appreciate your attention.
Thank you.
-: Okay, Attorney Lynn.
-: Well, your job's gonna be easy.
-: Yes. (laughing) -: So-
-: I was gonna say- -: How did you get picked?
-: Well, I will start with something easy.
I can answer Justice Cypher's question,
which is that the course of the investigation
of Attorney Doyle is set out, at least in the documents
that my brother has submitted to the court,
which the Commonwealth has no objection
to this court considering.
The posts first came to CPCS's attention
in September of 2017 when one CPCS lawyer reported it.
How that lawyer found out about it, we don't know.
Possibly was a friend of Attorney Doyle's on Facebook,
but we don't know that.
He was investigated from November of 2017
to February of 2018, and that's when he was suspended.
-: Attorney Lynn, let me just ask you
to give us your best case for this
not being an actual conflict of interest.
-: Well, I think Ellis is the best case.
I think it's where you have,
what Justice Nguyen said was
you have to have evidence that this prejudice was so...
I can't remember the exact words,
but it's so deep-rooted that there's no way
that the defense counsel...
Now, the Commonwealth stands here,
as we have throughout this process,
saying there's no question that these things
that Attorney Doyle posted on Facebook are horrible.
They are shocking, they are racist, they are anti-Muslim,
they are crude.
They are just the most awful kind of prejudice.
But Attorney Doyle practiced for over 20 years,
as a defense attorney.
And over that 20 years,
nobody suspected that he had any racial animus, whatsoever.
-: Here's the issue, for me at least,
with actions speaking louder than words.
And as Justice Wendlant laid out,
the only time that he interacted with Mr. Dew,
he brought up his religious headwear,
and was, frankly, disgusted by it.
We have a case where that's the only thing
that we really have before us.
And doesn't that show that he's incapable of treating him
as he should have as a lawyer because of his bias?
He's only seeing them, and you've been around,
he goes into the jail to talk about the guy
who's looking at some serious minimum mandatories,
he's so disgusted by his kufi that he walks out.
To me that's extraordinary that a lawyer
would take a trip to the jail,
you would spend hours out of his day,
or time out of his day,
and just turn around and walk out disgusted.
Doesn't that manifest
the standard that a reasonable observer
would conclude that he has divided loyalties?
That he can't represent this person 'cause he's disgusted,
he can't be in the same room with him?
-: Well, the interesting thing about that incident
is that Mr. Dew swears...
First of all, he swears in his affidavit
that despite those incidents, he had no idea...
-: That's actually what, thank you for reminding me.
Mr. Dew says, "I didn't see it as a problem."
But isn't that a Mr. Dew perception issue,
that maybe he's used to discrimination.
That's the problem here that we shouldn't have someone,
just because Mr. Dew, frankly, has a thick skin on this,
and is able to say, oh my God,
maybe my lawyer's havin' a bad day,
I guess good for Mr. Dew,
but that doesn't really tell us anything.
-: Well, it does tell how he perceived this.
First of all, that's certainly the issue in Fraser
was that the attorney said to his client's face,
called him the N word and said,
"If you don't take this plea,
"I'm not gonna represent you zealously."
Here, of course, these interactions with the kufi
don't lead Mr. Dew to believe
that he can't trust his attorney.
In fact, he does trust his attorney
and ends up pleading guilty, which if-
-: But so what, when we look at it objectively.
-: I think that is...
You look at that objectively based on the facts
and you see that you have...
It would not be necessarily racist,
or I mean, bigoted to say,
for an attorney to say,
"You don't want to wear that kufi in the courtroom,
"because there's free floating bias out there.
"People are gonna think badly of you."
-: Which could be a response saying,
"Listen, we have a jury..."
Tactfully, you could say something like that,
that we don't want you to be prejudiced, but he didn't.
All right, if I give him a pass on the first meeting,
and he says, "Don't wear that in the courtroom."
The second meeting, no way. -: It's tougher.
And I would point out regarding the third meeting,
my brother characterizes, as an omission or mistake,
by the judge below that she didn't include
the reference to the kufi there,
this is a credibility issue.
The Commonwealth- -: He said,
"I believe everything Mr. Dew said."
-: I will have to reread that.
But she didn't say it
with that language. -: Yeah, I don't remember.
-: She said, "I find..."
(cross talking)
Attorney Lynn: I believe his statements that-
-: She says, I credit Mr. Dew and is contradicted.
So we are gettin' a Jones Parnell dance.
But I take what you said.
-: That would be certainly
his credibility at the hearing was not uncontradicted.
We vehemently opposed that his testimony
was wholly uncredible.
The judge did, of course, find credible
the fact that Doyle went back to the jail and turned around.
But I think there is no evidence.
I think it is counterfactual that he said it the third time.
Can I- -: And certainly
they didn't call a court officer or anything
to back that up.
Yes, Judge Wendlandt.
-: Can I ask you to articulate the thought
that you had started with,
that the fact that Mr. Dew didn't perceive
the racist, anti-Muslim feelings of his counsel
was important.
Can I ask you to explain that to me
why that is such a significant fact, in your estimation?
-: Because it meant that Doyle and his client
were able to work together.
And it's important to realize,
I mean obviously this doesn't matter
if there's a conflict of interest-
-: Work together. -: Hmm?
-: When did they work together?
-: Well, they worked together in agreeing to plea,
for him agreeing to plea guilty.
It's important though, of course, as I say,
it doesn't matter if there's a conflict of interest,
but I will get to that in a second.
The problem is, throughout this case,
is that Mr. Dew is dead to rights.
He has made videos advertising
his human trafficking victim services.
He has made personal videos showing his,
the women who work for him,
writhing on the ground because his drugs are so good.
-: Which goes to the IAC claim, which-
-: Yeah, and they all show up so there's-
Frank: Which are gonna win, but big deal.
-: No, but it's,
the point is there's nothing to do.
If you look at the course of the case,
Attorney Perullo has filed all these motion.
He says he would've filed this other motion.
But when there's videos and the victims have come forward,
that's not gonna do anything.
-: But again, so we...
Let's move on from there.
-: So (indistinct) no court has ever found
that racism created conflict of interest,
and I don't think, certainly the federal court-
-: You think that a court would permit
a neo-Nazi to represent a Jewish family or a Jewish person?
-: I don't think there's...
It's important to look at it
perspective versus- -: Or a member of
the Ku Klux Klan.
-: No one should let someone who's violently prejudicial
represent someone who's a member of the group
against which he's prejudice.
The question is, does it rise to a-
-: And why do you say that?
-: Again, then you have state action.
If someone says...
If I am a Jewish person, and someone says,
"The best lawyer to represent you in this criminal matter
"is Attorney Schmidt,
"but he belongs to Neo-Nazi group,"
and I sign a waiver and say,
"Yes, I will take this attorney's representation,
"even though he's a neo-Nazi, I can do that."
Now there's a difference between that
and having CPCS appoint someone who's a racist
for someone who can't,
for a client who can't afford to.
And then, as I (indistinct) in my brief,
if they had known, if CPCS had known at the time time,
they certainly should have not appointed him, because-
-: Isn't it clearly at least a potential...
I mean I think you're swimming upstream.
It's gotta be at least a potential conflict.
I mean for all the reasons we've talked about.
I just can't tell if it's an absolute conflict,
unless it's present in the case.
But here, it's present in the case, too.
So it just seems like...
-: Well if you look at it as a potential conflict of interest
that's manifested.
If you look at the kufi incidents and say, yes,
that was manifest prejudice.
So, therefore we-
-: The best (indistinct) to you, we decided
we should analyze Facebook posts as racist Facebook posts
as a potential conflict of interest,
but not necessarily an absolute,
how do you win this case if we do that?
-: Well, I think we win the case because despite-
-: Let me load the dice a little more.
How do you win the case given that also
the only times he shows up to see his client,
he makes a racist comment and walks out?
-: Because the defendant,
who has already fired an attorney
who worked from for a year, agrees to it.
He knows it, and he doesn't even raise it
in his first motion for new trial.
If this is a manifestation of anti-Muslim bigotry-
-: Well, it clearly is, right?
It is.
But I understand your client says, "Okay, he's a brawler.
"Maybe he is a good lawyer for me,
"even though he is a jerk."
But it just gets really difficult.
-: No, it's bad facts.
There's no question about it.
This is a horrible situation.
-: Well, for both.
But if Justice Kafker's point is followed,
and we say it's potential, is it a prejudice analysis?
-: Yes, it's a prejudice analysis.
-: So then you have those facts about the meetings,
but you also have the litany of things you were just
laying out about- -: Exactly.
-: About the merits of the Commonwealth's case.
-: You have something approaching
an ineffectiveness analysis, although not quite the same,
but still showing a different kind of prejudice,
but still a requirement of prejudice.
-: So I give you that his client is...
There's overwhelming evidence that he's guilty.
Although, again, we don't know your client,
the defense counsel doesn't do much.
So we don't know if there's anything out there
that would help him either,
particularly 'cause he walks out of each meeting.
-: I don't know- -: but he doesn't,
he only walks out of the second one.
The first and third he talks to the client.
He just starts with that.
-: Isn't the best argument for you what,
the judge asks the defendant if he's satisfied with the-
-: He does. -: That's the best argument
you've got. -: Yeah, and he responds...
Well, there's...
I won't go into that.
There's a discrepancy, but that's...
I've started it so I might as well finish it.
He says at one point, "Yes, I think my attorney..."
Said, "Do you think your..."
The judge asks, "Do you think your attorney
"act in your best interest?"
And he says, "Yes, I think my attorney
"acted in his best interest,"
and that was actually raised at the hearing.
But I think that's just a,
it's clear that that's a slip of the tongue.
The judge doesn't...
The judge doesn't address it.
There's no question that he's pleading voluntarily.
-: Do you wanna address the breadth of the problem for you?
If we rule this as an actual conflict of interest,
are we in a mini (indistinct) situation?
Tell us about how you,
the Commonwealth views this as,
if we start treating these kinds of posts
as absolute conflict of interest for Mr. Doyle,
are there other lawyers out there
that this is going on on that you're aware of?
-: I certainly don't.
If I were I would have an ethical duty to report it.
I certainly don't know of any.
And that's a good thing.
I don't know whether it will extend to other attorneys.
We do know that it would apply to 6,000 plus clients.
So far we haven't had that many, as my brother said.
But once there's a decision,
if the decision is favorable, there may be many more.
The court, I have to admit,
this court and the Supreme Court of the United States
have rightly said that where there's racism
that infects the criminal justice system, you have to act,
you can't really consider the consequences,
certainly the grand jury cases where
the court had to admit there's...
The remedy was you had a trial,
but still that doesn't justify the racism,
and we still have to overturn.
-: What if we decided that there was racism here
that infected Mr. Dew's case?
-: There is racism here,
That's conceded. -: That infected
Mr. Dew's case.
And we conclude that.
What is the Commonwealth's limiting principle
that you would propose the rule that this court issues be?
-: Well, I think you can limit it, if you want,
to the fact of the kufi incidents.
I argue strenuously that that doesn't affect this case
because the client still didn't perceive this as racist,
and there was a non-racist reason for him to do it.
But certainly that would be a way to hold it
as a potential conflict of interest
that did affect this case, certainly limits it.
But I mean the real fact here is that,
as I believe it was Justice Kafner said,
he wanted to win these cases.
He may have been racist, but it didn't affect his zeal.
And I think there's no place- -: How do we measure,
what's the metric for a win?
-: Yeah, well I think that's,
winning, getting a not guilty. -: When there's a plea deal.
-: He was proud.
I mean, nowhere is that more clear than in the case
where he calls his client a gang banger.
He says, "What he really needs to do is stop gang banging."
And yet he brags that he got a not guilty.
And this guy, I mean,
I won't repeat the exact words he uses, but he said,
"I saved this kid years in prison."
So I think you see him as-
-: So our metric for winning is
a not guilty. -: Not guilty.
-: Getting these- -: So, but in this case,
we have a plea deal.
-: Hmm? -: In this case
we have a plea deal, right? -: Oh, yes.
-: How do we measure winning in this case?
-: Well, you can look at the fact,
look at his history and say he wanted to win.
This was not a case he could win,
because the evidence was overwhelming.
But I think- -: He did get some concession.
He did, yeah.
He got the rape charge dismissed.
But that was...
The prosecutor testified at the hearing,
that was as far as we were gonna go
with this evidence, because-
-: But, I guess back to- -: The case was so strong.
-: My question on how do we measure winning and that success.
Isn't that the reason we have things
called structural errors? -: Yes.
-: Because we can't measure it.
-: That is true, but I think-
-: So by definition it's a do over,
because we just can't figure it out.
-: Yes, I agree.
In those circumstances you do.
I think- -: So, isn't racism,
anti-religion, one of those things that,
just by definition, we can't figure out.
-: You still, to show an actual conflict of (indistinct)
you really have to show how it
affected the defendant's loyalty.
And there's been a lot of talk about
a distinction between what defense attorneys
have to do all the time.
I mean, it's important to realize that Mr. Dew
was not just an African American and a Muslim.
He was a human trafficker.
And it may not be morally equivalent,
and it may not be constitutionally equivalent,
but it is the same metal process.
You have to take your disdain for the person,
whether that's disdain because he's a murderer,
or disdain because he's- -: Well, it's
a little different.
Disdain for the person's actions rather than...
I mean, you can have a person do a bad act
and still be a decent person.
So, but racism has a different,
by nature it's a different problem, right?
-: It's a different problem.
But it's the same process.
I mean, the question would be
whether the attorney wanted to overcome it.
And I think here you have clear evidence
that Attorney Doyle did, not only wanted to overcome it,
but did overcome it in his cases.
That's why no one ever suspected this.
-: But we don't know his track record.
We don't know if he wins with white people
and loses with Black people.
We don't know any of that, right?
-: We don't, but that would be...
I mean, granted it's a tough burden,
but that would be the defendant's burden
to show that, oh, yes, all the suddenly-
-: 'Cause he's been practicing- -: We find all these cases-
-: For 25 years.
I assume he wins a number of cases
or he gets a number of good...
But we don't know how- -: No.
-: We don't have a statistical analysis seeing how he does.
-: We don't. -: Defending Blacks
versus defending whites,
defending Muslims versus defending Christians.
We don't have any of that.
-: No, we have no evidence of that.
But that's,
it's the defendant's burden to show a conflict of interest,
an actual conflict of interest.
-: How can we- -: I see my time is done,
if you want. -: Yeah, can you just
explain to me, if we were to follow your
line of thinking on this,
how do we ensure that people have confidence
in our criminal legal system,
if you're saying that the defendant has to show,
has to somehow show that his or her lawyer
was racist and it affected them?
I mean, in this case,
there's all sorts of evidence that the lawyer was racist
and manifested it.
I can't imagine what else you'd have to do.
-: I understand, and I certainly believe
that is the biggest problem in this case.
That is yours is not a question that was unexpected.
That is the big issue in this case.
The only answer I have is that people are complicated,
actions speak louder than words.
And the justice system serves both
defendants and society and victims.
And here you had victims who came forward.
-: Is it a matter of professional responsibility?
I mean, would that be the way that we can be confident here?
Because what I find difficult
is that we have all different pockets of our system
where we say we take people as you are.
And you are to put aside, we tell jurors that,
and we have case law that says even if jurors...
Chief Justice Bud's decision from a few years ago,
if people come in and say,
"I think cops are racist, the system's racist,"
that's no reason to say they can't properly
adhere to their oath and serve
and to be a fair and impartial juror.
We do this all the time.
So is this a matter of professional responsibility,
where the lawyers say,
"Irrespective of what I believe and what I am
"and what this person believes and what they are
"that I have an ethical obligation to do as I must."
-: Yes, that's absolutely what the Commonwealth is saying.
And, of course, I don't mean to say
that it was wrong to discipline Attorney Doyle for this.
This is outrageous conduct.
There are things that are protected by the First Amendment
that do not protect you from discipline as an attorney.
-: Would this be at all similar,
or is there any comparison,
if you found out that an attorney
actually had been suffering from some form of mental illness
or incompetence while they were practicing?
-: There's similarities and dissimilarities.
That's a very difficult question.
Certainly there would be some parallels,
although, that would not be, I think
a situation in which the justified public outrage
would be the same.
-: Right.
-: There are no further questions,
I thank the court for its time
and will otherwise rest on my brief.