Abstract

Excerpted From: Madison Buckley, The Cost of Bigotry in the Justice System: How Appointed Counsel's Racism and Bigotry Deprives Defendants of Constitutional Rights, 59 New England Law Review Forum 1 (2025) (Footnotes) (Full Document)

The Fourteenth Amendment to the United States Constitution provides that all citizens of the United States are entitled to “equal protection of the laws.” The Amendment also guarantees that no person shall be deprived of “life, liberty, or property, without due process of law.” However, glimpsing into the history of the criminal justice system of the United States, this has not always been the case in practice. Despite the Supreme Court's decision in Gideon v. Wainwright, which guaranteed appointed counsel to indigent defendants facing felony charges, there seems to exist “two distinct criminal justice systems: one for wealthy people and another for poor people and people of color.” People of color in the United States not only face higher arrest rates than white Americans, they also face higher conviction and sentencing rates than white Americans. These disparities extend into the defense of indigent clients provided by court-appointed counsel or public defenders, as people of color may be more likely to “lack access to high-quality representation.”

In a recent Massachusetts Supreme Judicial Court (“SJC”) decision, the Court may have provided a new road to equal protection for defendants who have experienced discrimination or bias at the hands of their court-appointed counsel. The decision in Commonwealth v. Dew allowed the defendant, a Black man of Islamic faith, to withdraw his guilty plea after learning that, during the course of his representation, his court-appointed counsel had been making social media posts containing vile, racist, and Islamophobic content. Previously, to obtain a new trial or vacate a conviction, a defendant needed to provide enough evidence to show that an actual conflict of interest existed regarding their representation. In a recent article, Daniel Medwed, a former criminal appeals attorney and current professor at Northeastern University School of Law, explained that this decision is ““groundbreaking” because it is a step towards identifying how systemic racism and biases of public defenders can be a “structural conflict of interest.” This decision may offer an alternative to prior conflict of interest standards by presuming a conflict of interest when the attorney has displayed animus against a certain race or religion.

This Comment will argue that in Commonwealth v. Dew, while the SJC ultimately came to the correct conclusion in granting the defendant a new trial, it failed to offer a remedy for future claimants by refusing to conduct a constitutional analysis of Dew's claims that the appointment of Doyle as his counsel was a violation of his Fourteenth Amendment rights to equal protection and due process. Further, the SJC failed to provide a remedy for Doyle's other clients who may have been negatively impacted by Doyle's professional misconduct.

This case is the first of its kind to find that an actual conflict of interest is established by social media posts made by an attorney containing racist and bigoted content targeted at a group with which his client identifies. Part I of this Comment explores the underlying law governing the right to effective assistance of counsel, equal protection, and due process. Part II discusses the facts, procedural history, and the SJC's analysis in Commonwealth v. Dew. In Part III, this Comment argues that despite coming to the correct conclusion that Dew was entitled to a new trial, the SJC failed to offer an adequate remedy to other claimants who may be impacted by an appointed counsel's bigotry. Part IV of this Comment addresses the SJC's failure to acknowledge or provide guidance to other clients who Doyle represented that were negatively impacted by his bigotry.

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Commonwealth v. Dew was the first case of its kind to establish that an attorney's social media posts containing racist and religiously bigoted content were sufficient to establish an actual conflict of interest in representing clients who may be people of color or religious minorities. The Court focused on the right to effective assistance of counsel under the Sixth Amendment and art. 12 of the Massachusetts Declaration of Rights. The Court found Doyle's representation of Dew ineffective as a result of an actual conflict of interest, given the racist and anti-Muslim content Doyle regularly posted to his Facebook page. The SJC correctly found that Dew was entitled to withdraw his plea and obtain a new trial. Though this case is the first of its kind, it certainly will not be the last.

Dew is a case that presented issues of first impression. By refusing to address Dew's Fourteenth Amendment claims, the SJC failed to establish a reliable standard for future claimants or for Doyle's other clients who may have been negatively impacted by his bigotry. In the time since CPCS issued the notice regarding Doyle's conduct, they have reported receiving seventy requests for review, and it is probable that this number has increased following the SJC's ruling in Dew. While the Court ultimately came to the correct conclusion, their analysis could have strengthened by addressing the Fourteenth Amendment claims to serve as precedent for future defendants who are negatively impacted by racist or bigoted appointed counsel.

Moving forward, indigent defendants who are seeking to establish a violation of their right to effective assistance of counsel as a result of appointed counsel's bigotry will be able to turn to Dew when proving a conflict of interest. This case establishes an essential protection for indigent defendants who are faced with racist, religiously bigoted, or otherwise discriminatory behavior by their court-appointed representation. In conclusion, though this decision is only binding within Massachusetts, this case will likely serve as a foundational approach for other states to follow.

J.D. Candidate, New England Law | Boston (2025).