"The defendant bears the burden of proving that a genuine conflict of interest existed, and must do so without relying on mere conjecture or speculation." Commonwealth v. Burbank, 27 Mass. App. Ct. 97, 103 (1989). The defendant went to some length at the evidentiary hearing to attempt to show the nature of what he alleges was Cacchiotti's conflicting financial interest.
At the outset, we note that the obligation to come forward and inform the trial judge of the need for a continuance prior to the date of trial rests on counsel, not the defendant. See Commonwealth v. Burbank, 27 Mass. App. Ct. 97, 104 (1989). See also United States v. Prochilo, 187 F.3d 221, 226-227 (1st Cir. 1999).
On March 8, 1989, the Massachusetts Appeals Court affirmed both the conviction and the denial of the motion for a new trial. See Commonwealth v. Burbank, 27 Mass. App. Ct. 97, 534 N.E.2d 1180 (1989). On June 9, 1989, the Supreme Judicial Court denied Burbank's Request for Further Appellate Review.
Commonwealth v. Dunne, supra at 13, 474 N.E.2d 538, quoting Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932). See Commonwealth v. Burbank, 27 Mass.App.Ct. 97, 106, 534 N.E.2d 1180 (1989). However, this is not an absolute right, and in some circumstances, it may be “subordinate to the proper administration of justice.”
There was no abuse of discretion. See Commonwealth v. Habarek, 402 Mass. 105, 108 (1988); Commonwealth v. Burbank, 27 Mass. App. Ct. 97, 107 (1989). (b) Ineffective assistance. The motion judge accepted the defendant's assertion that Mr. Farese had provided him with constitutionally ineffective assistance at the trial.
June 9, 1989Further appellate review denied: Reported below: 27 Mass. App. Ct. 97 (1989).
The defendant's right to "a fair and just hearing" was not "thwarted by his [alleged] absence" at those pretrial hearings. Commonwealth v. Burbank, 27 Mass. App. Ct. 97, 105 (1989).Order denying motion for new trial affirmed.
The longer Hepburn continues to represent the defendant, the greater the learning curve for her successor and the greater the possibility of ineffective assistance of counsel in the pretrial proceedings she does undertake. We therefore conclude that, in the present case, the court's interests in maintaining the high ethical standards of the legal profession and "the public's interest in the fair, efficient, and orderly administration of justice," Commonwealth v. Burbank , 27 Mass.App.Ct. 97, 106, 534 N.E.2d 1180 (1989), outweigh the defendant's right to chosen counsel at and before trial in both cases.Conclusion . For the reasons stated, the defendant's interlocutory appeals from the disqualification orders are dismissed.
“The defendant bears the burden of proving that a genuine conflict of interest existed, and must do so without relying on mere conjecture or speculation.” Commonwealth v. Burbank, 27 Mass.App.Ct. 97, 103 (1989). In this case, the judge neither abused his discretion nor otherwise committed an error of law in concluding that the defendant offered no credible evidence of an actual conflict.
The defendant does not contend that the prior recorded testimony would be inadmissible for any reason other than the Commonwealth's purported failure to demonstrate Troncoso's unavailability. We have examined cases in which the Commonwealth's efforts were insufficient to warrant the judge's conclusion that the Commonwealth had made a good faith effort to produce the witness, see Commonwealth v. Florek, 48 Mass. App. Ct. 414, 416 (2000); cases where the unavailability was quite apparent, see Commonwealth v. Hunt, 38 Mass. App. Ct. at 295; and cases where the Commonwealth's efforts were held to have been sufficient, see Commonwealth v. Siegfriedt, 402 Mass. 424, 427-428 (1988); Commonwealth v. Childs, 413 Mass. at 260-261; Commonwealth v. Roberio, 440 Mass. at 247-250; Commonwealth v. Sena, 441 Mass. at 832-834; Commonwealth v. Burbank, 27 Mass. App. Ct. 97, 109 (1989). All of the cases are dependent on the facts presented.