IA: No conflict in motion to suppress where def counsel was law partner of issuing magistrate

Defense counsel was the law partner of the issuing magistrate. On post-conviction, defendant did not show that defense counsel was operating under a conflict of interest because defense counsel filed and vigorously litigated a motion to suppress. Kensett v. State, 2018 Iowa App. LEXIS 1120 (Dec. 19, 2018):

Further, on de novo review of the record, there is no evidence the potential conflict of interest had an adverse effect on counsel’s performance. The record shows Kensett’s privately-retained trial counsel filed a motion to suppress evidence and vigorously challenged the validity of the search warrant. Trial counsel attacked the credibility of the confidential informant and argued the warrant itself was predicated on unlawfully obtained information. The district court in the underlying criminal proceeding denied the motion to suppress evidence. The validity of the warrant was again challenged on direct appeal, and this court rejected that challenge. See Kensett, 2012 Iowa App. LEXIS 581, 2012 WL 3026528, at *5 (affirming denial of motion to suppress evidence). There is no showing of what, if anything, counsel should have done differently in challenging the motion. There is no showing trial counsel failed to pursue a plausible argument, strategy, or tactic. In the absence of evidence showing the potential conflict of interest had an adverse effect on trial counsel’s decision with respect to the suppression motion, we are “left with sheer speculation, and that is not enough.” Mediina v. United States, CR No. 04-043-ML, 2008 U.S. Dist. LEXIS 95351, 2008 WL 4974597, at *9 (D.R.I. Nov. 21, 2008) (denying application for postconviction relief where offender asserted a claim that potential conflict of interest had an adverse effect on trial counsel’s decision to forego a motion to suppress evidence) (quoting Reyes-Vejerano v. United States, 276 F.3d 94, 100 (1st Cir. 2002)).

Defense counsel should have not taken this case or he needs to separate practices from the part-time judge. The defendant will always feel he was the victim of a conflict, no matter what the court of appeals says. This is also a product of the standard of review of conflict cases being far higher on post-conviction then when made at the time.

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