On petition for writ of certiorari to the Supreme Court of
Mississippi.
The petition for a writ of certiorari is denied.
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins,
dissenting.
I adhere to my view that the death penalty is unconstitutional
under all circumstances. Furman v. Georgia, 408 U.S.
Page 441 U.S.
913 , 914
238, 314 (1972) (MARSHALL, J., concurring); Gregg v. Georgia,
428 U.S.
153, 231 (1976) ( MARSHALL, J., dissenting). I would therefore
grant certiorari and vacate the death sentence on this basis alone.
However, because the Mississippi Supreme Court's ruling on an issue
of joint representation appears inconsistent with this Court's
prior decisions, I believe certiorari should be granted on that
ground as well.
Petitioner John Irving was indicted in Pontotoc County, Miss. on
July 7, 1976, for capital murder. Both petitioner and a separately
indicted accomplice, Keith Givhan, retained the same counsel. On
November 8, 1976, the day before petitioner's trial, his attorney
filed a motion to withdraw because of a conflict of interest.
Counsel did, however, express his willingness to continue
representing Givhan, whose trial was scheduled for the following
week. After a hearing, the circuit court denied the motion and
petitioner's case proceeded to trial. A jury found petitioner
guilty as charged and sentenced him to death. The Mississippi
Supreme Court affirmed. Irving v. State,
361 So.
2d 1360 (1978).
In the affidavit supporting his motion to withdraw, petitioner's
counsel identified several potential sources of conflict. Each
defendant had given an inculpatory statement implicating the other.
Also, during the period of pretrial incarceration, each had
developed inconsistent theories of defense. Finally, plea
negotiations with the local district and county attorneys had
raised the possibility of a bargain in one case but not the other.
Under those circumstances, counsel averred that he could not, based
on his "reading of Glasser [v. United States,
315 U.S. 60 (1942),]
advise either defendant . . . as to what posture [he] should
assume." Record 53.
In Glasser, this Court stated: "[t]he 'assistance of counsel'
guaranteed by the Sixth Amendment contemplates that such assistance
be untrammeled and unimpaired by a court order requiring that one
lawyer shall simultaneously represent conflicting interests." 315
U.S., at 70. Just last Term, in
Page 441 U.S.
913 , 915
Holloway v. Arkansas,
435 U.S. 475 (1978), we
reaffirmed that principle and noted:
"since the decision in Glasser, most courts have held that an
attorney's request for the appointment of separate counsel, based
on his representations as an officer of the court regarding a
conflict of interests, should be granted. . . . An 'attorney
representing two defendants in a criminal matter is in the best
position professionally and ethically to determine when a conflict
of interest exists or will probably develop in the course of a
trial.' State v. Davis, [110 Ariz. 29, 31,
514 P.2d
1025, 1027 (1973)]. . . . [A] ttorneys are officers of the
court, and 'when they address the judge solemnly upon a matter
before the court, their declarations are virtually made under
oath.' State v. Brazile, [226 La. 254, 266,
75 So.
2d 856, 860-861 (1954)]. (Emphasis deleted.) We find these
considerations persuasive." 435 U.S., at 485-486 ( footnotes and
citations omitted).
Particularly where, as here, a defendant is on trial for his
life, an attorney's judgment as to potential conflicts should carry
special force.
Notwithstanding Holloway's clear directive and the nature of the
sentence imposed, the Mississippi Supreme Court sustained the
refusal to permit counsel's withdrawal. In so ruling, the court
relied on petitioner and Givhan's failure to testify, and on the
absence of any clear indication that counsel "would have defended
any differently or would have approached the defense of the case on
another basis had he not been representing Givhan." 361 So.2d, at
1365. Because the record did not " reflect any prejudice or harm
resulting to [petitioner] on account of the alleged conflict of
interest,"ibid., the court below found no constitutional
infirmity.
Yet it was precisely this form of analysis that we rejected in
Glasser and again in Holloway. Glasser unequivocally held that
"[t]he right to have the assistance of counsel is too
Page 441 U.S.
913 , 916
fundamental and absolute to allow courts to indulge in nice
calculations as to the amount of prejudice arising from its
denial." 315 U.S., at 76. After quoting this passage with approval,
the Holloway Court made clear that where joint representation
occurs over a defendant's express objection, "prejudice is presumed
regardless of whether it [is] independently shown." 435 U.S., at
489. For the danger presented by a conflict of interest arises not
simply from what an advocate does, which may be evident from the
record, but from what he " finds himself compelled to refrain from
doing," which may not be so readily apparent. Id., at 490. To
assess the effect of incompatible interests on all of an attorney's
strategies at trial and in plea negotiations would as we concluded
in Holloway, be "virtually impossible." Id., at 491.
Here, however, the Mississippi Supreme Court professed itself
able to accomplish what Holloway explicitly recognized as beyond
the competence of a reviewing tribunal. On this record, I cannot
share the court's confidence that counsel would have approached the
defense no differently had he represented only petitioner. More to
the point, I believe that such speculation is inappropriate under
Holloway and unsupportable in a capital case. Surely where a
defendant's life is at stake, he is entitled to assistance from an
attorney whose loyalty is beyond question.
I therefore dissent from the denial of certiorari.
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