Counsel Did Not Suffer from “Unwaivable Conflict” During Client’s Trial

US v. Clay: Clay was both a small-town chief of police and rural deputy sheriff. Over the course of a few days in June 2020, Clay arranged with Naylor-Legg to have sex with her 17-year-old stepdaughter for money. When the stepdaughter turned 18, she left the home and reported what had happened. Clay and Naylor-Legg were both charged with various offenses, with Naylor-Legg pleading guilty and Clay proceeding to trial.

Prior to trial, the Government filed a notice of a potential conflict of interest for Clay’s counsel, based on allegations that he had contacted Naylor-Legg’s husband (Legg) in an attempt to get her to withdraw her guilty plea. Naylor-Legg then sent a letter to the court requesting new counsel and accusing the Government of forcing her to make false statements as part of her guilty plea. Naylor-Legg then told the Government that Legg and Clay’s counsel had spoken and Legg had passed on information to her, but ultimately “recanted the allegations in her letter and redoubled her insistence that the information in her plea agreement was true.” Clay’s counsel denied ever speaking to Naylor-Legg and claimed that he had only “limited communication” with Legg himself.

The district court held a hearing on the potential conflict, at which Legg testified that Cla’s counsel never said Naylor-Legg should withdraw her plea, but that he told Naylor-Legg that Clay’s counsel had said that. Naylor-Legg testified that she’d never spoken with Clay’s counsel and that she hoped the letter would “help her get out of jail.” The district court held there was a potential conflict that would require Clay to waive if he wanted his counsel to continue to represent him, noting specifically that could impact his ability to cross-examine Naylor-Legg. Clay (after consulted with counsel) stated that he waived any conflict.

At trial, Clay’s counsel did not attempt to impeach Naylor-Legg with the letter or prior claims of coercion. The district court “again asked Clay whether he wanted to waive any possible conflict of interest,” after which Clay conferred with both current and “independent” counsel and, ultimately, waived any conflict. He was convicted on four counts and sentenced to 25 years in prison.

On appeal, the Fourth Circuit affirmed Clay’s conviction and sentence. Clay’s main argument was that the conflict between he and his trial counsel was “unwaivable” and required a new trial. The court held the conflict was not unwaivable, noting that the claim implicated a separate interest than Clay’s Sixth Amendment rights – the court’s “interest in ensuring the proceedings before it are fair and ethical.” The district court did not abuse its discretion in accepting Clay’s waiver, noting that the threshold for doing so is “set extremely high.” That trial counsel did not seek to impeach Naylor-Legg with the letter was not the kind of failure that “a member of the public would be shocked to observe.” Thus, the conflict was waivable and Clay clearly waived it.