Selena Roberts’ serious allegations against the Auburn athletics department earlier this week caused an uproar among members of the media and college football fans. If true, the story’s accusations of rampant drug use by football players, coaches handing players money under the table and academic officials changing football players’ grades to ensure their eligibility, are enough to turn Auburn athletics on its head. Tucked away in the story, though, is an issue more pressing and with greater possible harm than any NCAA sanction can impose. It is one that may cost former Auburn football player, Mike McNeil, his freedom.
McNeil is currently facing trial on two felony counts of first-degree robbery. The charges stem from allegations that four former Auburn football players robbed a home while armed. While building allegations of Auburn’s alleged athletic improprieties to a crescendo, Roberts quickly slipped a fact into her story that a trained legal eye would not let go unnoticed. Eight paragraphs into Roberts’ Auburn expose, was the following quote,
“To show you how innocent he is, Mike is willing to go to trial because he says he didn’t do it,” says Ben Hand, who recently was dismissed as McNeil’s attorney after the family formally complained that he had a conflict of interest. “Mike McNeil didn’t rob anyone.”
As it turns out, McNeil’s attorney previously represented a man who lived in the house that McNeil allegedly robbed. In the legal world, this is called a “conflict of interest.” And in the legal world, a conflict of interest is a reason for which a criminal defendant can appeal the outcome of his case, should he be convicted.
Roberts’ assertion in her article that Hand was dismissed as McNeil’s attorney is incorrect. That is because today, the Auburn educated judge hearing McNeil’s case ruled that Hand could not withdraw as counsel for McNeil’s case. Rather, McNeil’s case will proceed to trial next Monday.
At that trial, McNeil faces three options when it comes to legal representation. The first, is to be represented by a lawyer who once represented someone whose home McNeil allegedly robbed. The second is for McNeil, without a college degree, to represent himself in a felony case in which he faces 21 years to life in prison. The third option, is for McNeil to hire a new attorney who will assist his conflicted attorney. That attorney will have 72 hours to prepare for a trial that took the prosecution nearly two years to bring to fruition.
Arguably, there is not an attractive choice present in this bunch. As depicted above, Hand has maintained McNeil’s innocence to the media and will likely advocate zealously for him. Additionally, the presiding judge in McNeil’s case, in ruling that Hand cannot withdraw from the case, determined that the prosecution will only proceed to trial against McNeil on two charges, as opposed to the seven charges he was originally facing. This was based upon the judge’s finding that conflicts existed between Hand and those charges, but were not present in the two charges McNeil continues to face. Regardless of these facts, questions likely persist in McNeil’s mind as to whether his attorney bears any biases towards him and if he will receive a fair shot at justice.
As the time on the clock dwindles down to McNeil’s trial date, a review of 11th Circuit (the circuit in which Alabama is located) and Supreme Court case law is necessary. One basis upon which a defendant can appeal his conviction is for ineffective assistance of counsel. The United States Supreme Court has ruled that a criminal defendant’s right to effective assistance of counsel is violated where a defendant’s attorney has an actual conflict of interest that affects the defendant adversely. Something is an actual conflict of interest when a lawyer has inconsistent interests. 11th circuit case law says that a conflict of interest exists when a defendant can point to specific instances in the record to suggest an actual conflict or impairment of interest. Specific instances could include an attorney choosing to elicit or failing to elicit evidence helpful to one client but harmful to another.
The question here, then, is does Hand have inconsistent interests when it comes to representing McNeil? While Hand represented a resident of the home McNeil allegedly robbed, that representation came on an unrelated matter that occurred prior to the alleged robbery. Given the differential between the matters and the time that has passed sense, does an actual conflict exist?
If an actual conflict of interest existed, case law also requires that the conflict adversely affected the counsel’s performance in order to successfully appeal on the basis of ineffective assistance of counsel. A defendant must show three things to prove an adverse effect: 1. That the defense attorney could have pursued a plausible alternative strategy, 2. that the alternative strategy was reasonable and 3. that the alternative strategy was not followed because it conflicted with the attorney’s external loyalties.
At this stage, only McNeil and Hand know what alternative strategies exist, if any. And at this stage, it is likely that they are the only two people who know why one defense strategy was chosen over another.
Should McNeil be convicted and wish to appeal his case, the real question that may persist is whether he waived his right to conflict-free counsel. A defendant waives his right to conflict-free counsel when he chooses to proceed to trial with an attorney who has an adverse conflict of interest. Arguably, this decision could bar an appeal on this issue, as the Supreme Court case of Johnson v. Zerbst found that a “waiver of the right to conflict-free counsel ‘disposes of the need to evaluate the actual or potential ineffectiveness of counsel caused by the alleged conflicts of interests.’” To demonstrate a waiver, it must be shown that the defendant was aware of the conflict, recognized it could impact his defense and knew of his right to obtain other counsel. Notably, today, the presiding judge in McNeil’s case advised him of his right to proceed to trial without an attorney or with a new attorney to assist Hand. It is to be seen what decision McNeil makes.
Many unknowns face Mike McNeil at this moment. The decisions facing McNeil as his trial approaches are lofty. Truth be told, they are likely as big as the choice he made to commit to playing football at Auburn University.