Comcast and the 5th Circuit Court of Appeals

By By Suzanne Monk / managing editor
Dec. 22, 2002
It comes as no surprise that the 5th Circuit Court of Appeals in New Orleans has overturned C.D. "Bubba" Newell's conviction in what became known, in April 2001, as the "Comcast trial."
The 5th Circuit granted Newell a new trial this week based on his attorney's conflict of interest.
Newell was represented by Henry Palmer, one of Meridian's most distinguished lawyers, a former district attorney and Circuit Court judge. But, he had two clients at trial and every word one of them spoke on the stand implicated the other.
Wayne Raley was acquitted, Newell convicted.
Conflict of interest
People who attended the trial remarked on the dual representation at the time. Asked why he agreed to represent both clients, Palmer answered, "because they wanted me to," and said there was no conflict of interest.
He could hardly say anything else.
While Palmer is constrained from elaborating now by the rules of ethics that govern his profession, the truth is probably that he didn't like it much either, but gave in to Newell's repeated requests.
I think he let his heart get the better of him.
Palmer tried to address the problem before the trial began. He filed a motion for "severance" with U.S. District Judge Tom Lee, which means that he wanted his two clients tried separately from each other.
In that motion, he said the defenses of the two men might conflict.
Judge Lee denied the motion, remarking that, "There is no indication that Newell and Raley will employ defenses which are antagonistic to each other; thus the fact that they are represented by a single attorney is not sufficiently prejudicial to warrant severance."
It's too bad about that, because as it turns out, a separate trial has been ordered for Newell after all.
Judge also criticized
Judge Lee did not emerge unscathed in the 5th Circuit's decision. Before the trial began, Lee held a "Rule 44(c)" hearing.
The purpose of this hearing was to inform Newell of his constitutional right to conflict-free counsel, and to warn him that the possibility of a conflict of interest exists when one attorney represents two clients. At the end of this hearing, Newell waived his rights and insisted on keeping Palmer as his attorney.
At that time, Lee was unaware of trial strategy and could not be specific about what kind of conflicts might arise.
It became quickly apparent once witnesses began to testify and the 5th Circuit said Lee had a continuing obligation as the trial progressed to recognize a conflict if it arose and take action.
According the the 5th Circuit's written decision, possible actions available to Lee included: 1) stopping the trial long enough to explain to Newell that a conflict might be emerging, and ask him again if he wanted to waive his right to conflict-free counsel; 2) disqualify Palmer and declare a mistrial; or 3) grant the severance that was earlier denied and require Newell to retain a new lawyer.
Because Lee did none of these things, the appellate judges ruled that Newell's waiver was essentially uninformed and that his constitutional rights had been violated.
He gets a new trial.
Gianakos appeal
Part of the reason Newell's appeal succeeded is because he hired a new attorney to argue it for him appeals expert Michele Fournet of Baton Rouge, La., who has literally talked people off death row.
Fournet was scathing in her criticism of Palmer's performance as Newell's trial attorney. That's what appeals attorneys are supposed to do. They're supposed to rip your trial attorney to pieces, finally arguing that if you had just had decent counsel, you would never have been convicted.
And, while Fournet may eventually end up plea-bargaining Newell's sentence down from 57 months to something less instead of going to trial, she has at least gotten the conviction overturned.
Kim Gianakos didn't get a new attorney.
She kept the same one she originally consulted about David Van Colvin's billing practices in August 1995. The one who advised her to reduce her commission from 33 percent to 10 percent as if right and wrong were a matter of degree.
The same attorney represented her at trial, where he could hardly argue that he had given her bad advice, and handled her appeals to U.S. District Court and the 5th Circuit Court of Appeals.
Gianakos lost at trial, and lost on appeal.
Would a new attorney have made a difference? Maybe.