The prosecutor in the terrorism case must explain these possible scenarios in detail to the court in arguing that the lawyer should be disqualified. But even as the prosecutor makes his argument, he knows he is basically writing the defendant’s appellate brief for him. The defendant, of course, wants the trial record to be riddled with error, since that is his best chance of getting any eventual conviction reversed. So prior to trial he says the prosecutor is absolutely wrong, that he fully understands the potential conflicts, and that he desperately wants the conflicted lawyer anyway. Then, after he has been convicted, the defendant tells the appellate court that the prosecutor was absolutely right, that there was no way he could have foreseen all the ways the conflicts would compromise the lawyer’s ability to render competent representation, and that the conviction must be reversed for precisely the reasons the prosecutor warned about prior to trial.
This is why a judge should never gratuitously invite this kind of error into a case. When a judge decides the lawyer must be disqualified because the case is too complex for the conflict to be waived knowingly, there is no way the appellate court will reverse that decision. On appeal, the only real question will be whether the unconflicted lawyer who ended up representing the defendant was competent. If he was, then the essence of the Sixth Amendment has been satisfied and there is no reason to reverse the conviction — certainly not for failure to permit representation by a conflicted lawyer who almost certainly would not have been more competent.
Yet gratuitously inviting error is exactly what Judge Lewis A. Kaplan has done in the Abu Ghaith prosecution. Abu Ghaith announced that he wanted to retain Stanley L. Cohen, an attorney who — like Bill Kunstler, Lynne Stewart and other self-styled “political” (which is to say, radical) lawyers — has represented many anti-American terrorists. Cohen, however, is in steaming hot water. He is under indictment in one federal district for obstructing the IRS. And in the Southern District of New York (SDNY), whose U.S. attorney is in charge of the Abu Ghaith prosecution, Cohen is under investigation for criminal tax violations (and in federal procedure, such investigations must be approved by Justice Department headquarters, which, it should be noted, assigned Abu Ghaith’s case to the SDNY).