William C. Sallie, 31, was
sentenced to death in March 1991 in Bacon County for killing his 41-year-old
In a violent rampage against his ex-wife and her
family on March 31, 1990, Mr. Sallie shot to death John Lee Moore and
wounded Mr. Moore's wife. He then kidnapped his ex-wife and her sister
and took them to Liberty County where he repeatedly raped both women.
(269 Ga. 446)
(499 SE2d 897)
Murder. Bacon Superior Court. Before Judge Jackson.
This is a death penalty case. William C. Sallie
was convicted of malice murder and other crimes, and the jury
recommended a death sentence. 1
Because one of Sallie's trial lawyers was laboring under a conflict
of interest, we reverse the convictions and remand for a new trial.
1. Considered in the light most favorable to the
verdict, the evidence showed that Sallie was embroiled in divorce
proceedings with his wife, Robin. In the early morning hours of
March 29, 1990, Sallie entered the home of his in-laws, where his
wife and infant son were staying. He was armed with a pistol and
carrying handcuffs, and he had also cut the telephone lines to the
Sallie proceeded directly to the master bedroom and shot
Robin's parents, killing his father-in-law and wounding his mother-in-law.
Sallie then abducted his wife and her sister, took them to a trailer
he had rented in Liberty County, and raped them. The evidence of
Sallie's guilt is sufficient to support the convictions. Jackson v.
Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Sallie contends that one of his appointed
trial lawyers, Wendell Boyd English, was operating under a conflict
of interest that effectively denied Sallie his Sixth Amendment right
to counsel. We agree. Shortly after his arrest, the trial court
appointed Earl McRae to defend Sallie. McRae asked for assistance
and the trial court appointed Boyd English as McRae's co-counsel in
May 1990. English represented Sallie until the conclusion of his
trial in March 1991.
The conflict arises from English's concurrent
employment as the sole judicial law clerk for the Waycross Judicial
Circuit. Employment records show that English was employed as the
circuit's law clerk from April 1987 to May 1989, and from August to
October 1990. He was rehired in December 1990, four months before
Sallie's trial, and continued as the circuit's law clerk until 1996.
The state claims that English was a part-time law
clerk who only worked for the chief judge of the circuit. English
states in his affidavit that he was hired by the chief judge as his
personal law clerk and that he had no contact in his capacity as a
law clerk with the other two superior court judges in the Waycross
Circuit, including the trial judge. Payroll records, however, show
that English was expected to work at least 40 hours per week and
that his monthly pay ranged from about $1,800 in 1987 to $2,350 in
In addition, English's personnel forms list his position as "Law
Clerk -- Waycross Judicial Circuit," and state that he serves the
circuit. OCGA 15-6-28 (a), the statute
which authorized English's position, provides that the chief judge
of each judicial circuit can hire one law clerk or court
administrator for the circuit.
Thus, under state law, only one law
clerk position per circuit may be compensated with state funds and
English's payroll records clearly show that he was paid by the state.
See OCGA 15-6-28 (a), (b), (h).
Although English served at the pleasure of the chief judge of the
Waycross Circuit, OCGA 15-6-28 (e), it
is clear that his position served the entire circuit and all three
superior court judges in the circuit.
The federal and state constitutions guarantee
criminal defendants the effective assistance of counsel. Strickland
v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Ga.
Const., Art. I, Sec. I. "Counsel's function is to assist the
defendant, and hence counsel owes the client a duty of loyalty, a
duty to avoid conflicts of interest." Strickland, supra at 688,
citing Cuyler v. Sullivan, 446 U. S. 335, 346 (100 SC 1708, 64 LE2d
333) (1980). Undivided loyalty is an essential element of the right
to counsel. "Where a constitutional right to counsel exists, our
Sixth Amendment cases hold that there is a correlative right to
representation that is free from conflicts of interest." Wood v.
Georgia, 450 U. S. 261, 271 (101 SC 1097, 67 LE2d 220) (1981).
We have never before addressed a conflict of
interest that arises from a lawyer's simultaneous role as criminal
defense attorney and law clerk in the same court where he is trying
the case. We have also not uncovered any cases in other
jurisdictions that present the same issue. Most criminal conflict-of-interest
cases involve one attorney representing multiple defendants. See,
e.g., Meyers v. State, 265 Ga. 149,
150 (454 SE2d 490) (1995); Mitchell v.
State, 261 Ga. 347 (405 SE2d 38) (1991);
Wilson v. State, 257 Ga. 352 (359 SE2d 661)
(1987). A few cases involve law clerks, but are unlike the
situation now before us. See Todd v. State,
261 Ga. 766 (14) (410 SE2d 725) (1991) (prosecutor employed
by the district attorney's office during defendant's trial became
law clerk for judicial circuit while motion for new trial was
pending); Potts v. State, 259 Ga. 96 (27)
(376 SE2d 851) (1989) (former law clerk became defendant's
attorney); Pope v. State, 256 Ga. 195 (26)
(345 SE2d 831) (1986) (prosecutor who worked on state's brief
on direct appeal had been law clerk during defendant's trial). The
situation in this case is unique because English occupied the job of
criminal defense attorney and law clerk in the same court at the
We conclude that an actual conflict of interest
existed in this case and reverse the convictions. There is no need
to embark on an analysis of Cuyler, supra, and its progeny: the
conflict here is obvious and, given the enormity of the penalty in
this case, completely impermissible. Sallie did not waive his right
to conflict-free representation. The evidence is uncontroverted that
he was never informed of English's role as the law clerk for the
Waycross Judicial Circuit.
Sallie's lawyer represented a capital defendant
in the same court in which he was a full-time law clerk. We cannot
allow such a conflict of interest to exist in a death penalty case.
See Chapel v. State, 264 Ga. 267 (443 SE2d
271) (1994) (attorney disqualified in capital case due to
conflict of interest and appearance of impropriety); Fleming v.
State, 246 Ga. 90, 93 (270
SE2d 185) (1980) (slight conflict of interest not permitted
in death penalty case); Code of Professional Responsibility, Canon
9. We therefore reverse and remand for a new trial.
3. Our disposition of the conflict-of-interest
claim renders the consideration of Sallie's remaining enumerations
of error unnecessary.
Richard E. Currie, District Attorney, Thurbert E.
Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney
General, Wesley S. Horney, Assistant Attorney General, for appellee.
1 The crimes occurred on March 29,
1990. Sallie was indicted by the Bacon County Grand Jury on July 10,
1990, for malice murder, aggravated assault, armed robbery, kidnapping
with bodily injury (2 counts), burglary, theft by taking and possession
of a firearm during the commission of a felony. The case was tried from
March 25-30, 1991, and the jury acquitted Sallie of armed robbery and
theft by taking and convicted him of the remaining counts. The jury
recommended a death sentence for the murder, and the trial court
additionally imposed a life sentence for each kidnapping count, twenty
years for the burglary, twenty years for the aggravated assault, and
five years for the possession of a firearm during the commission of a
felony, all sentences to be served consecutively. Sallie filed a motion
for new trial on April 26, 1991, and an amended motion for new trial on
November 1, 1993. After a hearing, the motion for new trial was denied
on July 28, 1997. This case was docketed on September 17, 1997, and
orally argued on January 20, 1998.
Palmer C. Singleton III, Christopher M. Johnson, John R. Thigpen,
DECIDED MAY 18, 1998.
William C. Sallie