OCTOBER TERM, 2001
Syllabus
MICKENS
v. TAYLOR, WARDEN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 00-9285. Argued November 5, 200l-Decided March 27, 2002
A Virginia jury convicted petitioner of the premeditated murder
of Timothy Hall during or following the commission of an attempted
forcible sodomy, and sentenced petitioner to death. Petitioner
filed a federal habeas petition alleging,
inter alia, that
he was denied effective assistance of counsel because one of his
court-appointed attorneys had a conflict of interest at trial.
Petitioner's lead attorney, Bryan Saunders, had represented Hall on
assault and concealed-weapons charges at the time of the murder.
The same juvenile court judge who dismissed the charges against
Hall later appointed Saunders to represent petitioner. Saunders did
not disclose to the court, his co-counsel, or petitioner that he
had previously represented Hall. The District Court denied habeas
relief, and an en banc majority of the Fourth Circuit affirmed. The
majority rejected petitioner's argument that the juvenile court
judge's failure to inquire into a potential conflict either
mandated automatic reversal of his conviction or relieved him of
the burden of showing that a conflict of interest adversely
affected his representation. The court concluded that petitioner
had not demonstrated adverse effect.
Held: In order to demonstrate a Sixth Amendment violation
where the trial court fails to inquire into a potential conflict of
interest about which it knew or reasonably should have known, a
defendant must establish that a conflict of interest adversely
affected his counsel's performance. Pp. 166-176.
(a) A defendant alleging ineffective assistance generally must
demonstrate a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different.
Strickland v.
Washington, 466 U. S. 668, 694. An
exception to this general rule presumes a probable effect upon the
outcome where assistance of counsel has been denied entirely or
during a critical stage of the proceeding. The Court has held in
several cases that "circumstances of that magnitude,"
United
States v.
Cronic, 466 U. S. 648, 659, n.
26, may also arise when the defendant's attorney actively
represented conflicting interests. In
Holloway v.
Arkansas, 435
U. S. 475, the Court created an automatic reversal rule where
counsel is forced to represent codefendants over his timely
objection, unless the trial court has determined that there is no
conflict. In
Cuyler v.
Sullivan, 446 U. S. 335,
163
the Court declined to extend
Holloway and held that,
absent objection, a defendant must demonstrate that a conflict of
interest actually affected the adequacy of his representation, 446
U. S., at 348-349. Finally, in
Wood v.
Georgia,
450 U. S. 261,
the Court granted certiorari to consider an equal-protection
violation, but then remanded for the trial court to determine
whether a conflict of interest that the record strongly suggested
actually existed,
id., at 273. Pp. 166-170.
(b) This Court rejects petitioner's argument that the remand
instruction in
Wood, directing the trial court to grant a
new hearing if it determined that "an actual conflict of interest
existed," 450 U. S., at 273, established that where the trial judge
neglects a duty to inquire into a potential conflict the defendant,
to obtain reversal, need only show that his lawyer was subject to a
conflict of interest, not that the conflict adversely affected
counsel's performance. As used in the remand instruction, "an
actual conflict of interest" meant precisely a conflict that
affected counsel's performance-as opposed to a mere theoretical
division of loyalties. It was shorthand for
Sullivan's
statement that "a defendant who shows that a conflict of interest
actually affected the adequacy of his representation need not
demonstrate prejudice in order to obtain relief," 446 U. S., at
349-350 (emphasis added). The notion that
Wood created a new
rule
sub silentio is implausible. Moreover, petitioner's
proposed rule of automatic reversal makes little policy sense.
Thus, to void the conviction petitioner had to establish, at a
minimum, that the conflict of interest adversely affected his
counsel's performance. The Fourth Circuit having found no such
effect, the denial of habeas relief must be affirmed. Pp.
170-174.
(c) The case was presented and argued on the assumption that
(absent some exception for failure to inquire)
Sullivan
would be applicable to a conflict rooted in counsel's obligations
to former clients. The Court does not rule upon the correctness of
that assumption. Pp. 174-176.
240 F.3d
348, affirmed.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined.
KENNEDY, J., filed a concurring opinion, in which O'CONNOR, J.,
joined,
post, p. 176. STEVENS, J.,
post, p. 179, and
SOUTER, J.,
post, p. 189, filed dissenting opinions. BREYER,
J., filed a dissenting opinion, in which GINSBURG, J., joined,
post, p. 209.
Robert J. Wagner, by appointment of the
Court, 533 U. s. 927, argued the cause for petitioner. With him on
the briefs were
Robert E. Lee and
Mark E. Olive.
164
Robert Q. Harris, Assistant Attorney
General of Virginia, argued the cause for respondent. With him on
the brief was
Randolph A. Beales, Attorney General.
Irving L. Gornstein argued the cause for the United States as
amicus curiae urging affirmance. On the brief were Solicitor
General Olson, Assistant Attorney General Chertoff, Deputy
Solicitor General Dreeben, Gregory G. Garre, and Joel M.
Gershowitz.
*
JUSTICE SCALIA delivered the opinion of the Court.
The question presented in this case is what a defendant must
show in order to demonstrate a Sixth Amendment violation where the
trial court fails to inquire into a potential conflict of interest
about which it knew or reasonably should have known.
I
In 1993, a Virginia jury convicted petitioner Mickens of the
premeditated murder of Timothy Hall during or following the
commission of an attempted forcible sodomy. Finding the murder
outrageously and wantonly vile, it sentenced petitioner to death.
In June 1998, Mickens filed a petition for writ of habeas corpus,
see 28 U. S. C. § 2254 (1994 ed. and Supp. V), in the United States
District Court for the Eastern District of Virginia, alleging,
inter alia, that he was denied effective assistance of
counsel because one of his courtappointed attorneys had a conflict
of interest at trial. Federal habeas counsel had discovered that
petitioner's lead trial attorney, Bryan Saunders, was representing
Hall (the victim) on assault and concealed-weapons charges at the
time of the murder. Saunders had been appointed to represent Hall,
a juvenile, on March 20, 1992, and had met with him once for 15 to
30 minutes some time the following week. Hall's body was discovered
on March 30, 1992, and four days
* Kent S.
Scheidegger filed a brief for the
Criminal Justice Legal Foundation as
amicus curiae urging
affirmance.
Lawrence J. Fox filed a brief for Legal
Ethicists et al. as
amici curiae.
165
later a juvenile court judge dismissed the charges against him,
noting on the docket sheet that Hall was deceased. The one-page
docket sheet also listed Saunders as Hall's counsel. On April 6,
1992, the same judge appointed Saunders to represent petitioner.
Saunders did not disclose to the court, his co-counsel, or
petitioner that he had previously represented Hall. Under Virginia
law, juvenile case files are confidential and may not generally be
disclosed without a court order, see Va. Code Ann. § 16.1-305
(1999), but petitioner learned about Saunders' prior representation
when a clerk mistakenly produced Hall's file to federal habeas
counsel.
The District Court held an evidentiary hearing and denied
petitioner's habeas petition. A divided panel of the Court of
Appeals for the Fourth Circuit reversed,
227
F.3d 203 (2000), and the Court of Appeals granted rehearing en
bane,
240 F.3d
348 (2001). As an initial matter, the 7-to-3 en bane majority
determined that petitioner's failure to raise his
conflict-of-interest claim in state court did not preclude review,
concluding that petitioner had established cause and that the
"inquiry as to prejudice for purposes of excusing [petitioner's]
default ... incorporates the test for evaluating his underlying
conflict of interest claim."
Id., at 356-357. On the merits,
the Court of Appeals assumed that the juvenile court judge had
neglected a duty to inquire into a potential conflict, but rejected
petitioner's argument that this failure either mandated automatic
reversal of his conviction or relieved him of the burden of showing
that a conflict of interest adversely affected his representation.
Relying on
Cuyler v.
Sullivan, 446 U. S. 335 (1980), the
court held that a defendant must show "both an actual conflict of
interest and an adverse effect even if the trial court failed to
inquire into a potential conflict about which it reasonably should
have known," 240 F. 3d, at 355-356. Concluding that petitioner had
not demonstrated adverse effect,
id., at 360, it affirmed
the District Court's denial of habeas relief. We
166
granted a stay of execution of petitioner's sentence and granted
certiorari. 532 U. S. 970 (2001).
II
The Sixth Amendment provides that a criminal defendant shall
have the right to "the Assistance of Counsel for his defence." This
right has been accorded, we have said, "not for its own sake, but
because of the effect it has on the ability of the accused to
receive a fair trial."
United States v.
Cronic,
466 U. S. 648,
658 (1984). It follows from this that assistance which is
ineffective in preserving fairness does not meet the constitutional
mandate, see
Strickland v.
Washington, 466 U. S. 668, 685-686
(1984); and it also follows that defects in assistance that have no
probable effect upon the trial's outcome do not establish a
constitutional violation. As a general matter, a defendant alleging
a Sixth Amendment violation must demonstrate "a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different."
Id., at
694.
There is an exception to this general rule. We have spared the
defendant the need of showing probable effect upon the outcome, and
have simply presumed such effect, where assistance of counsel has
been denied entirely or during a critical stage of the proceeding.
When that has occurred, the likelihood that the verdict is
unreliable is so high that a case-by-case inquiry is unnecessary.
See
Cronic, supra, at 658-659; see also
Geders v.
United States, 425 U. S. 80, 91 (1976);
Gideon v.
Wainwright, 372 U. S. 335, 344-345
(1963). But only in "circumstances of that magnitude" do we forgo
individual inquiry into whether counsel's inadequate performance
undermined the reliability of the verdict.
Cronic, supra, at
659, n. 26.
We have held in several cases that "circumstances of that
magnitude" may also arise when the defendant's attorney actively
represented conflicting interests. The nub of the question before
us is whether the principle established by these cases provides an
exception to the general rule of
167
Strickland under the circumstances of the present case.
To answer that question, we must examine those cases in some
detail. 1
In
Holloway v.
Arkansas, 435 U. S. 475 (1978),
defense counsel had objected that he could not adequately represent
the divergent interests of three codefendants.
Id., at
478480. Without inquiry, the trial court had denied counsel's
motions for the appointment of separate counsel and had refused to
allow counsel to cross-examine any of the defendants on behalf of
the other two. The
Holloway Court deferred to the judgment
of counsel regarding the existence of a disabling conflict,
recognizing that a defense attorney is in the best position to
determine when a conflict exists, that he has an ethical obligation
to advise the court of any problem, and that his declarations to
the court are "virtually made
IJUSTICE BREYER rejects
Holloway v.
Arkansas,
435 U. S. 475
(1978),
Cuyler v.
Sullivan, 446 U. S. 335 (1980), and
Wood v.
Georgia, 450 U. S. 261 (1981), as
"a sensible [and] coherent framework for dealing with" this case,
post, at 209 (dissenting opinion), and proposes instead the
"categorical rule,"
post, at 211, that when a "breakdown in
the criminal justice system creates ... the appearance that the
proceeding will not reliably serve its function as a vehicle for
determination of guilt and innocence, and the resulting criminal
punishment will not be regarded as fundamentally fair,"
ibid. (internal quotation marks omitted), reversal must be
decreed without proof of prejudice. This seems to us less a
categorical rule of decision than a restatement of the issue to be
decided.
Holloway, Sullivan, and
Wood establish the
framework that they do precisely because that framework is thought
to identify the situations in which the conviction will reasonably
not be regarded as fundamentally fair. We believe it eminently
performs that function in the case at hand, and that JUSTICE BREYER
is mistaken to think otherwise. But if he does think otherwise, a
proper regard for the judicial function-and especially for the
function of this Court, which must lay down rules that can be
followed in the innumerable cases we are unable to review-would
counsel that he propose some other "sensible [and] coherent
framework," rather than merely saying that prior representation of
the victim, plus the capital nature of the case, plus judicial
appointment of the counsel, see
post, at 210, strikes him as
producing a result that will not be regarded as fundamentally fair.
This is not a rule of law but expression of an ad hoc "fairness"
judgment (with which we disagree).
168
under oath."
Id., at 485-486 (internal quotation marks
omitted).
Holloway presumed, moreover, that the conflict,
"which [the defendant] and his counsel tried to avoid by timely
objections to the joint representation,"
id., at 490,
undermined the adversarial process. The presumption was justified
because joint representation of conflicting interests is inherently
suspect, and because counsel's conflicting obligations to multiple
defendants "effectively sea[l] his lips on crucial matters" and
make it difficult to measure the precise harm arising from
counsel's errors.
Id., at 489-490.
Holloway thus
creates an automatic reversal rule only where defense counsel is
forced to represent codefendants over his timely objection, unless
the trial court has determined that there is no conflict.
Id., at 488 ("[W]henever a trial court improperly requires
joint representation over timely objection reversal is
automatic").
In
Cuyler v.
Sullivan, 446 U. S. 335 (1980), the
respondent was one of three defendants accused of murder who were
tried separately, represented by the same counsel. Neither counsel
nor anyone else objected to the multiple representation, and
counsel's opening argument at Sullivan's trial suggested that the
interests of the defendants were aligned.
Id., at 347-348.
We declined to extend
Holloway's automatic reversal rule to
this situation and held that, absent objection, a defendant must
demonstrate that "a conflict of interest actually affected the
adequacy of his representation." 446 U. S., at 348-349. In addition
to describing the defendant's burden of proof,
Sullivan
addressed separately a trial court's duty to inquire into the
propriety of a multiple representation, construing
Holloway
to require inquiry only when "the trial court knows or reasonably
should know that a particular conflict exists," 446 U. S., at
3472-which is not
2 In order to circumvent
Sullivan's clear language,
JUSTICE STEVENS suggests that a trial court must scrutinize
representation by appointed counsel more closely than
representation by retained counsel.
Post, at 184 (dissenting
opinion). But we have already rejected the notion that
169
to be confused with when the trial court is aware of a vague,
unspecified possibility of conflict, such as that which "inheres in
almost every instance of multiple representation,"
id., at
348. In
Sullivan, no "special circumstances" triggered the
trial court's duty to inquire.
Id., at 346.
Finally, in
Wood v.
Georgia, 450 U. S. 261 (1981),
three indigent defendants convicted of distributing obscene
materials had their probation revoked for failure to make the
requisite $500 monthly payments on their $5,000 fines. We granted
certiorari to consider whether this violated the Equal Protection
Clause, but during the course of our consideration certain
disturbing circumstances came to our attention: At the
probation-revocation hearing (as at all times since their arrest)
the defendants had been represented by the lawyer for their
employer (the owner of the business that purveyed the obscenity),
and their employer paid the attorney's fees. The employer had
promised his employees he would pay their fines, and had generally
kept that promise but had not done so in these defendants' case.
This record suggested that the employer's interest in establishing
a favorable equal-protection precedent (reducing the fines he would
have to pay for his indigent employees in the future) diverged from
the defendants' interest in obtaining leniency or paying lesser
fines to avoid imprisonment. Moreover, the possibility that counsel
was actively representing the conflicting interests of employer and
defendants "was sufficiently apparent at the time of the revocation
hearing to impose upon the court a duty to inquire further."
Id., at 272.
the Sixth Amendment draws such a distinction. "A proper respect
for the Sixth Amendment disarms [the] contention that defendants
who retain their own lawyers are entitled to less protection than
defendants for whom the State appoints counsel .... The vital
guarantee of the Sixth Amendment would stand for little if the
often uninformed decision to retain a particular lawyer could
reduce or forfeit the defendant's entitlement to constitutional
protection."
Sullivan, supra, at 344.
170
Because "[o]n the record before us, we [could not] be sure
whether counsel was influenced in his basic strategic decisions by
the interests of the employer who hired him,"
ibid., we
remanded for the trial court "to determine whether the conflict of
interest that this record strongly suggests actually existed,"
id., at 273.
Petitioner argues that the remand instruction in
Wood
established an "unambiguous rule" that where the trial judge
neglects a duty to inquire into a potential conflict, the
defendant, to obtain reversal of the judgment, need only show that
his lawyer was subject to a conflict of interest, and need not show
that the conflict adversely affected counsel's performance. Brief
for Petitioner 21.3 He relies upon the lan-
3 Petitioner no longer argues, as he did below and as JUSTICE
SOUTER does now,
post, at 202 (dissenting opinion), that the
Sixth Amendment requires reversal of his conviction without further
inquiry into whether the potential conflict that the judge should
have investigated was real. Compare
240 F.3d
348, 357
(CA4 2001) (en bane), with Tr. of Oral Arg.
23-25. Some Courts of Appeals have read a footnote in
Wood
v.
Georgia, 450 U. S., at 272, n. 18, as establishing that
outright reversal is mandated when the trial court neglects a duty
to inquire into a potential conflict of interest. See,
e. g.,
Campbell v.
Rice, 265 F.3d
878, 884-885, 888
(CA9 2001); Ciak v.
United
States, 59 F.3d
296, 302
(CA2 1995). But see
Brien v.
United
States, 695 F.2d
10, 15, n. 10
(CA1 1982). The
Wood footnote says
that
Sullivan does not preclude "raising ... a
conflict-of-interest problem that is apparent in the record" and
that
"Sullivan mandates a reversal when the trial court has
failed to make [the requisite] inquiry."
Wood, supra, at
272, n. 18. These statements were made in response to the dissent's
contention that the majority opinion had "gone beyond"
Cuyler v.
Sullivan, see 450 U. S., at 272, n. 18, in
reaching a conflict-ofinterest due process claim that had been
raised neither in the petition for certiorari nor before the state
courts, see
id., at 280 (White, J., dissenting). To the
extent the
"mandates a reversal" statement goes beyond the
assertion of mere jurisdiction to reverse, it is dictum-and dictum
inconsistent with the disposition in
Wood, which was
not to reverse but to vacate and remand for the trial court
to conduct the inquiry it had omitted.
JUSTICE SOUTER labors to suggest that the
Wood remand
order is part of "a coherent scheme,"
post, at 194, in which
automatic reversal is re-
171
guage in the remand instruction directing the trial court to
grant a new revocation hearing if it determines that "an actual
conflict of interest existed,"
Wood, supra, at 273, without
requiring a further determination that the conflict adversely
affected counsel's performance. As used in the remand instruction,
however, we think "an actual conflict of interest" meant precisely
a conflict
that affected counsel's performance-as opposed to
a mere theoretical division of loyalties. It was shorthand for the
statement in
Sullivan that "a defendant who shows that a
conflict of interest
actually affected the adequacy of his
representation need not demonstrate prejudice in order to
obtain relief." 446 U. S., at 349-350 (emphasis added).4 This is
the only interpreta-
quired when the trial judge fails to inquire into a potential
conflict that was apparent before the proceeding was "held or
completed," but a defendant must demonstrate adverse effect when
the judge fails to inquire into a conflict that was not apparent
before the end of the proceeding,
post, at 202. The problem
with this carefully concealed "coherent scheme" (no case has ever
mentioned it) is that in
Wood itself the court did not
decree automatic reversal, even though it found that "the
possibility of a conflict of interest was sufficiently
apparent
at the time of the revocation hearing to impose
upon the court a duty to inquire further." 450 U. S., at 272
(second emphasis added). Indeed, the State had actually notified
the judge of a potential conflict of interest" '[d]uring the
probation revocation hearing.'''
Id., at 272, and n. 20.
JUSTICE SOUTER'S statement that "the signs that a conflict may have
occurred were clear to the judge at the close of the probation
revocation proceeding,"
post, at 201-when it became apparent
that counsel had neglected the "strategy more obviously in the
defendants' interest, of requesting the court to reduce the fines
or defer their collection,"
post, at 198-would more
accurately be phrased "the
effect of the conflict upon counsel's
performance was clear to the judge at the close of the
probation revocation proceeding."
4JUSTICE STEVENS asserts that this reading (and presumably
JUSTICE SOUTER'S reading as well,
post, at 201), is wrong,
post, at 186-187; that
Wood only requires petitioner
to show that a real conflict existed, not that it affected
counsel's performance,
post, at 187. This is so because we
"unambiguously stated" that a conviction must be reversed whenever
the trial court fails to investigate a potential conflict,
post, at 186-187 (citing
172
tion consistent with the
Wood Court's earlier description
of why it could not decide the case without a remand: "On the
record before us, we cannot be sure whether counsel
was
influenced in his basic strategic decisions by the interests of
the employer who hired him.
If this was the case, the due
process rights of petitioners were not respected .... " 450 U. S.,
at 272 (emphasis added). The notion that
Wood created a new
rule
sub silentio-and in a case where certiorari had been
granted on an entirely different question, and the parties had
neither briefed nor argued the conflict-ofinterest issue-is
implausible.5
Petitioner's proposed rule of automatic reversal when there
existed a conflict that did not affect counsel's performance, but
the trial judge failed to make the
Sullivanmandated inquiry,
makes little policy sense. As discussed, the rule applied when the
trial judge is not aware of the
Wood footnote). As we have explained earlier, n. 3,
supra, this dictum simply contradicts the remand order in
Wood.
5We have used "actual conflict of interest" elsewhere to mean
what was required to be shown in
Sullivan. See
United
States v.
Cronic, 466 U. S. 648, 662, n. 31
(1984) ("[W]e have presumed prejudice when counsel labors under an
actual conflict of interest .... See
Cuyler v.
Sullivan, 446
U. S. 335 (1980)"). And we have used "conflict of interest" to
mean a division of loyalties
that affected counsel's
performance. In
Holloway, 435 U. S., at 482, we
described our earlier opinion in
Glasser v.
United
States, 315
"The record disclosed that Stewart failed to cross-examine a
Government witness whose testimony linked Glasser with the
conspiracy and failed to object to the admission of arguably
inadmissible evidence. This failure was viewed by the Court as a
result of Stewart's desire to protect Kretske's interests, and was
thus 'indicative of Stewart's struggle to serve two masters ... .'
[315 U. S.], at 75. After identifying
this conflict of
interests, the Court declined to inquire whether the prejudice
flowing from it was harmless and instead ordered Glasser's
conviction reversed." (Emphasis added.)
Thus, the
Sullivan standard is not properly read as
requiring inquiry into actual conflict as something separate and
apart from adverse effect. An "actual conflict," for Sixth
Amendment purposes, is a conflict of interest that adversely
affects counsel's performance.
173
conflict (and thus not obligated to inquire) is that prejudice
will be presumed only if the conflict has significantly affected
counsel's performance-thereby rendering the verdict unreliable,
even though
Strickland prejudice cannot be shown. See
Sullivan, supra, at 348-349. The trial court's awareness of
a potential conflict neither renders it more likely that counsel's
performance was significantly affected nor in any other way renders
the verdict unreliable. Cf.
United States v.
Cronic,
466 U. S., at 662, n. 31. Nor does the trial judge's failure to
make the
Sullivan-mandated inquiry often make it harder for
reviewing courts to determine conflict and effect, particularly
since those courts may rely on evidence and testimony whose
importance only becomes established at the trial.
Nor, finally, is automatic reversal simply an appropriate means
of enforcing
Sullivan's mandate of inquiry. Despite JUSTICE
SOUTER'S belief that there must be a threat of sanction (to wit,
the risk of conferring a windfall upon the defendant) in order to
induce "resolutely obdurate" trial judges to follow the law,
post, at 208, we do not presume that judges are as careless
or as partial as those police officers who need the incentive of
the exclusionary rule, see
United States v.
Leon,
468 U. S. 897,
916-917 (1984). And in any event, the
Sullivan standard,
which requires proof of effect upon representation but (once such
effect is shown) presumes prejudice, already creates an "incentive"
to inquire into a potential conflict. In those cases where the
potential conflict is in fact an actual one, only inquiry will
enable the judge to avoid all possibility of reversal by either
seeking waiver or replacing a conflicted attorney. We doubt that
the deterrence of "judicial dereliction" that would be achieved by
an automatic reversal rule is significantly greater.
Since this was not a case in which (as in
Holloway)
counsel protested his inability simultaneously to represent
multiple defendants; and since the trial court's failure to make
the
Sullivan-mandated inquiry does not reduce the
petitioner's
174
burden of proof; it was at least necessary, to void the
conviction, for petitioner to establish that the conflict of
interest adversely affected his counsel's performance. The Court of
Appeals having found no such effect, see 240 F. 3d, at 360, the
denial of habeas relief must be affirmed.
III
Lest to day's holding be misconstrued, we note that the only
question presented was the effect of a trial court's failure to
inquire into a potential conflict upon the
Sullivan rule
that deficient performance of counsel must be shown. The case was
presented and argued on the assumption that (absent some exception
for failure to inquire)
Sullivan would be
applicable-requiring a showing of defective performance, but
not requiring in addition (as
Strickland does in
other ineffectiveness-of-counsel cases), a showing of probable
effect upon the outcome of trial. That assumption was not
unreasonable in light of the holdings of Courts of Appeals, which
have applied
Sullivan "unblinkingly" to "all kinds of
alleged attorney ethical conflicts,"
Beets v.
Scott,
65 F.3d
1258, 1266
(CA5 1995) (en bane). They have invoked the
Sullivan standard not only when (as here) there is a
conflict rooted in counsel's obligations to
former clients,
see,
e. g., Perillo v.
Johnson, 205
F.3d 775, 797-799
(CA5 2000); Freund v.
Butterworth, 165 F.3d
839, 858-860
(CAll 1999); Mannhalt v.
Reed, 847 F.2d
576, 580
(CA9 1988);
United States v.
Young, 644 F.2d
1008, 1013
(CA4 1981), but even when representation of
the defendant somehow implicates counsel's personal or financial
interests, including a book deal,
United States v.
Hearst, 638 F.2d
1190, 1193
(CA9 1980), a job with the prosecutor's
office,
Garcia v.
Bunnell, 33
F.3d 1193, 1194-1195, 1198, n. 4
(CA9 1994), the
teaching of classes to Internal Revenue Service agents,
United
States v.
Michaud, 925 F.2d
37, 40-42
(CA1 1991), a romantic "entanglement" with the
prosecutor,
Summerlin v.
Stewart, 267 F. 3d 926,
935-941
(CA9 2001), or fear of antagonizing the
175
trial judge,
United States v.
Sayan, 968 F.2d
55, 64-65
(CADC 1992).
It must be said, however, that the language of
Sullivan
itself does not clearly establish, or indeed even support, such
expansive application. "[U]ntil," it said, "a defendant shows that
his counsel
actively represented conflicting interests, he
has not established the constitutional predicate for his claim of
ineffective assistance." 446 U. S., at 350 (emphasis added). Both
Sullivan itself, see
id., at 348-349, and
Holloway, see 435 U. S., at 490-491, stressed the high
probability of prejudice arising from multiple concurrent
representation, and the difficulty of proving that prejudice. See
also Geer, Representation of Multiple Criminal Defendants:
Conflicts of Interest and the Professional Responsibilities of the
Defense Attorney, 62 Minn. L. Rev. 119, 125-140 (1978); Lowenthal,
Joint Representation in Criminal Cases: A Critical Appraisal, 64
Va. L. Rev. 939, 941-950 (1978). Not all attorney conflicts present
comparable difficulties. Thus, the Federal Rules of Criminal
Procedure treat concurrent representation and prior representation
differently, requiring a trial court to inquire into the likelihood
of conflict whenever jointly charged defendants are represented by
a single attorney (Rule 44(c)), but not when counsel previously
represented another defendant in a substantially related matter,
even where the trial court is aware of the prior representation.6
See
Sullivan, supra, at 346, n. 10 (citing the Rule).
6 Federal Rule of Criminal Procedure 44(c) provides:
"Whenever two or more defendants have been jointly charged
pursuant to Rule 8(b) or have been joined for trial pursuant to
Rule 13, and are represented by the same retained or assigned
counselor by retained or assigned counsel who are associated in the
practice of law, the court shall promptly inquire with respect to
such joint representation and shall personally advise each
defendant of the right to the effective assistance of counsel,
including separate representation. Unless it appears that there is
good cause to believe no conflict of interest is likely to arise,
the court shall take such measures as may be appropriate to protect
each defendant's right to counsel."
176
This is not to suggest that one ethical duty is more or less
important than another. The purpose of our
Holloway and
Sullivan exceptions from the ordinary requirements of
Strickland, however, is not to enforce the Canons of Legal
Ethics, but to apply needed prophylaxis in situations where
Strickland itself is evidently inadequate to assure
vindication of the defendant's Sixth Amendment right to counsel.
See
Nix v.
Whiteside, 475 U. S. 157, 165 (1986)
("[B]reach of an ethical standard does not necessarily make out a
denial of the Sixth Amendment guarantee of assistance of counsel").
In resolving this case on the grounds on which it was presented to
us, we do not rule upon the need for the
Sullivan
prophylaxis in cases of successive representation. Whether
Sullivan should be extended to such cases remains, as far as
the jurisprudence of this Court is concerned, an open question.
***
For the reasons stated, the judgment of the Court of Appeals
is
Affirmed.
JUSTICE KENNEDY, with whom JUSTICE O'CONNOR joins,
concurring.
In its comprehensive analysis the Court has said all that is
necessary to address the issues raised by the question presented,
and I join the opinion in full. The trial judge's failure to
inquire into a suspected conflict is not the kind of error
requiring a presumption of prejudice. We did not grant certiorari
on a second question presented by petitioner: whether, if we
rejected his proposed presumption, he had nonetheless established
that a conflict of interest adversely affected his representation.
I write separately to emphasize that the facts of this case well
illustrate why a wooden rule requiring reversal is inappropriate
for cases like this one.
177
At petitioner's request, the District Court conducted an
evidentiary hearing on the conflict claim and issued a thorough
opinion, which found that counsel's brief representation of the
victim had no effect whatsoever on the course of petitioner's
trial. See
Mickens v.
Greene, 74 F. Supp. 2d 586 (ED
Va. 1999). The District Court's findings depend upon credibility
judgments made after hearing the testimony of petitioner's counsel,
Bryan Saunders, and other witnesses. As a reviewing court, our role
is not to speculate about counsel's motives or about the
plausibility of alternative litigation strategies. Our role is to
defer to the District Court's factual findings unless we can
conclude they are clearly erroneous. See
Lackawanna County
District Attorney v.
Coss, 532 U. S. 394, 406 (2001)
(opinion of O'CONNOR, J.). The District Court found that Saunders
did not believe he had any obligation to his former client, Timothy
Hall, that would interfere with the litigation. See 74 F. Supp. 2d,
at 606 ("[T]he Court concludes that, as a factual matter, Saunders
did not believe that any continuing duties to a former client might
interfere with his consideration of all facts and options for his
current client" (internal quotation marks and alteration omitted)).
Although the District Court concluded that Saunders probably did
learn some matters that were confidential, it found that nothing
the attorney learned was relevant to the subsequent murder case.
See
ibid. ("[T]he record here confirms that Saunders did not
learn any confidential information from Hall that was relevant to
Mickens' defense either on the merits or at sentencing" (emphasis
deleted)). Indeed, even if Saunders had learned relevant
information, the District Court found that he labored under the
impression he had no continuing duty at all to his deceased client.
See
id., at 605 ("[T]he record here reflects that, as far as
Saunders was concerned, his allegiance to Hall, '[e]nded when I
walked in the courtroom and they told me he was dead and the case
was gone''') (quoting Hearing Tr. 156-157, 218 (Jan. 13, 1999)).
While Saunders' belief
178
may have been mistaken, it establishes that the prior
representation did not influence the choices he made during the
course of the trial. This conclusion is a good example of why a
case-by-case inquiry is required, rather than simply adopting an
automatic rule of reversal.
Petitioner's description of roads not taken would entail two
degrees of speculation. We would be required to assume that
Saunders believed he had a continuing duty to the victim, and we
then would be required to consider whether in this hypothetical
case, the counsel would have been blocked from pursuing an
alternative defense strategy. The District Court concluded that the
prosecution's case, coupled with the defendant's insistence on
testifying, foreclosed the strategies suggested by petitioner after
the fact. According to the District Court, there was no plausible
argument that the victim consented to sexual relations with his
murderer, given the bruises on the victim's neck, blood marks
showing the victim was stabbed before or during sexual intercourse,
and, most important, petitioner's insistence on testifying at trial
that he had never met the victim. See 74 F. Supp. 2d, at 607
("[T]he record shows that other facts foreclosed presentation of
consent as a plausible alternative defense strategy"). The basic
defense at the guilt phase was that petitioner was not at the
scene; this is hardly consistent with the theory that there was a
consensual encounter.
The District Court said the same for counsel's alleged
dereliction at the sentencing phase. Saunders' failure to attack
the character of the 17- year-old victim and his mother had nothing
to do with the putative conflict of interest. This strategy was
rejected as likely to backfire, not only by Saunders, but also by
his co-counsel, who owed no duty to Hall. See
id., at 608
("[T]he record here dispels the contention that the failure to use
negative information about Hall is attributable to any conflict of
interest on the part of Saunders"). These facts, and others relied
upon by the District Court, provide compelling evidence that a
theoretical conflict does
179
not establish a constitutional violation, even when the conflict
is one about which the trial judge should have known.
The constitutional question must turn on whether trial counsel
had a conflict of interest that hampered the representation, not on
whether the trial judge should have been more assiduous in taking
prophylactic measures. If it were otherwise, the judge's duty would
not be limited to cases where the attorney is suspected of
harboring a conflict of interest. The Sixth Amendment protects the
defendant against an ineffective attorney, as well as a conflicted
one. See
Strickland v.
Washington, 466 U. S. 668, 685-686
(1984). It would be a major departure to say that the trial judge
must step in every time defense counsel appears to be providing
ineffective assistance, and indeed, there is no precedent to
support this proposition. As the Sixth Amendment guarantees the
defendant the assistance of counsel, the infringement of that right
must depend on a deficiency of the lawyer, not of the trial judge.
There is no reason to presume this guarantee unfulfilled when the
purported conflict has had no effect on the representation.
With these observations, I join the opinion of the Court.
JUSTICE STEVENS, dissenting.
This case raises three uniquely important questions about a
fundamental component of our criminal justice systemthe
constitutional right of a person accused of a capital offense to
have the effective assistance of counsel for his defense.1 The
first is whether a capital defendant's attorney
1 The Sixth Amendment provides: "In all criminal prosecutions,
the accused shall enjoy the right ... to have the Assistance of
Counsel for his defence." This protection is applicable to state,
as well as federal, criminal proceedings.
Gideon v.
Wainwright, 372 U. S. 335 (1963). We
have long recognized the paramount importance of the right to
effective assistance of counsel.
United States v.
Cronic, 466 U.
S. 648, 653-654 (1984) (" 'Of all the rights that an accused
person has, the right to be represented by counsel is by far the
most pervasive for it affects his ability to assert any other
rights he may have'" (citation omitted)).
180
has a duty to disclose that he was representing the defendant's
alleged victim at the time of the murder. Second, is whether,
assuming disclosure of the prior representation, the capital
defendant has a right to refuse the appointment of the conflicted
attorney. Third, is whether the trial judge, who knows or should
know of such prior representation, has a duty to obtain the
defendant's consent before appointing that lawyer to represent him.
Ultimately, the question presented by this case is whether, if
these duties exist and if all of them are violated, there exist
"circumstances that are so likely to prejudice the accused that the
cost of litigating their effect in a particular case is
unjustified."
United States v.
Cronic, 466 U. S. 648, 658
(1984).
I
The first critical stage in the defense of a capital case is the
series of pretrial meetings between the accused and his counsel
when they decide how the case should be defended. A lawyer cannot
possibly determine how best to represent a new client unless that
client is willing to provide the lawyer with a truthful account of
the relevant facts. When an indigent defendant first meets his
newly appointed counsel, he will often falsely maintain his
complete innocence. Truthful disclosures of embarrassing or
incriminating facts are contingent on the development of the
client's confidence in the undivided loyalty of the lawyer. Quite
obviously, knowledge that the lawyer represented the victim would
be a substantial obstacle to the development of such
confidence.
It is equally true that a lawyer's decision to conceal such an
important fact from his new client would have comparable
ramifications. The suppression of communication and truncated
investigation that would unavoidably follow from such a decision
would also make it difficult, if not altogether impossible, to
establish the necessary level of trust that should
181
characterize the "delicacy of relation" between attorney and
client.2
In this very case, it is likely that Mickens misled his counsel,
Bryan Saunders, given the fact that Mickens gave false testimony at
his trial denying any involvement in the crime despite the
overwhelming evidence that he had killed Timothy Hall after a
sexual encounter. In retrospect, it seems obvious that the death
penalty might have been avoided by acknowledging Mickens'
involvement, but emphasizing the evidence suggesting that their
sexual encounter was consensual. Mickens' habeas counsel garnered
evidence suggesting that Hall was a male prostitute, App. 137, 149,
162, 169; that the area where Hall was killed was known for
prostitution,
id., at 169-170; and that there was no
evidence that Hall was forced to the secluded area where he was
ultimately murdered. An unconflicted attorney could have put
forward a defense tending to show that Mickens killed Hall only
after the two engaged in consensual sex, but Saunders offered no
such defense. This was a crucial omission-a finding of forcible
sodomy was an absolute prerequisite to Mickens' eligibility for the
death penalty.3 Of course, since that
2 Williams v.
Reed, 29 F. Cas. 1386, 1390 (No.
17,733)
(CC Me. 1824).
Discussing the necessity of full disclosure to the preservation
of the lawyer-client relationship, Justice Story stated: "I agree
to the doctrine urged at the bar, as to the delicacy of the
relation of client and attorney, and the duty of a full, frank, and
free disclosure by the latter of every circumstance, which may be
presumed to be material, not merely to the interests, but to the
fair exercise of the judgment, of the client."
3 At the guilt phase, the trial court judge instructed Mickens'
jury as follows: "If you find that the Commonwealth has failed to
prove beyond a reasonable doubt that the killing occurred in the
commission of, or subsequent to, attempted forcible sodomy ... [but
do find a malicious, willful, deliberate, premeditated killing],
then you shall find the defendant guilty of first degree murder. If
you find the defendant guilty of first degree murder, then you
shall fix his punishment at: (1) Imprisonment for life; or (2) A
specific term of imprisonment, but not less than twenty [20] years
.... " App.58-59.
182
strategy would have led to conviction of a noncapital offense,
counsel would have been unable to persuade the defendant to divulge
the information necessary to support such a defense and then
ultimately to endorse the strategy unless he had earned the
complete confidence of his client.
Saunders' concealment of essential information about his prior
representation of the victim was a severe lapse in his professional
duty. The lawyer's duty to disclose his representation of a client
related to the instant charge is not only intuitively obvious, it
is as old as the profession. Consider this straightforward comment
made by Justice Story in 1824:
"An attorney is bound to disclose to his client every adverse
retainer, and even every prior retainer, which may affect the
discretion of the latter. No man can be supposed to be indifferent
to the knowledge of facts, which work directly on his interests, or
bear on the freedom of his choice of counsel. When a client employs
an attorney, he has a right to presume, if the latter be silent on
the point, that he has no engagements, which interfere, in any
degree, with his exclusive devotion to the cause confided to him;
that he has no interest, which may betray his judgment, or endanger
his fidelity." Williams v. Reed, 29 F. Cas. 1386,
1390 (No. 17,733) (CC Me.).
Mickens' lawyer's violation of this fundamental obligation of
disclosure is indefensible. The relevance of Saunders' prior
representation of Hall to the new appointment was far too important
to be concealed.
II
If the defendant is found guilty of a capital offense, the
ensuing proceedings that determine whether he will be put to death
are critical in every sense of the word. At those proceedings,
testimony about the impact of the crime on the victim, including
testimony about the character of the victim, may have a critical
effect on the jury's decision.
Payne v.
183
Tennessee, 501 U. S. 808 (1991).
Because a lawyer's fiduciary relationship with his deceased client
survives the client's death,
Swidler &
Berlin v.
United States, 524 U. S. 399 (1998),
Saunders necessarily labored under conflicting obligations that
were irreconcilable. He had a duty to protect the reputation and
confidences of his deceased client, and a duty to impeach the
impact evidence presented by the prosecutor.4
Saunders' conflicting obligations to his deceased client, on the
one hand, and to his living client, on the other, were
unquestionably sufficient to give Mickens the right to insist on
different representation.5 For the "right to counsel guaranteed by
the Constitution contemplates the services of an attorney devoted
solely to the interests of his client,"
Von Moltke v.
Gillies, 332
U. S. 708, 725 (1948).6 Moreover, in my judgment, the right to
conflict-free counsel is just as firmly protected by the
Constitution as the defendant's right
4 For example, at the time of Hall's death, Saunders was
representing Hall in juvenile court for charges arising out of an
incident involving Hall's mother. She had sworn out a warrant for
Hall's arrest charging him with assault and battery. Despite
knowledge of this, Mickens' lawyer offered no rebuttal to the
victim-impact statement submitted by Hall's mother that" 'all [she]
lived for was that boy.'''
Id., at 297.
5 A group of experts in legal ethics, acting as
amici
curiae, submit that the conflict in issue in this case would be
nonwaivable pursuant to the standard articulated in the ABA Ann.
Model Rules of Professional Conduct (4th ed. 1999) (hereinafter
Model Rule). Brief for Legal Ethicists et al. as
Amici
Curiae 16 ("[T]he standard test to determine if a conflict is
non-waive able is whether a 'disinterested lawyer would conclude
that the client should not agree to the representation under the
circumstances'" (quoting Model Rule 1.7, Comment 5)).
Unfortunately, because Mickens was not informed of the fact that
his appointed attorney was the lawyer of the alleged victim, the
questions whether Mickens would have waived this conflict and
consented to the appointment, or whether governing standards of
professional responsibility would have precluded him from doing so,
remain unanswered.
6 Although the conflict in this case is plainly intolerable, I,
of course, do not suggest that every conflict, or every violation
of the code of ethics, is a violation of the Constitution.
184
of self-representation recognized in
Faretta v.
California, 422 U. S. 806
(1975).7
III
When an indigent defendant is unable to retain his own lawyer,
the trial judge's appointment of counsel is itself a critical stage
of a criminal trial. At that point in the proceeding, by
definition, the defendant has no lawyer to protect his interests
and must rely entirely on the judge. For that reason it is "the
solemn duty of a ... judge before whom a defendant appears without
counsel to make a thorough inquiry and to take all steps necessary
to insure the fullest protection of this constitutional right at
every stage of the proceedings."
Von Moltke, 332 U. S., at
722.
This duty with respect to indigent defendants is far more
imperative than the judge's duty to investigate the possibility of
a conflict that arises when retained counsel represents either
multiple or successive defendants. It is true that in a situation
of retained counsel, "[u]nless the trial court knows or reasonably
should know that a particular conflict exists, the court need not
initiate an inquiry."
Cuyler v.
Sullivan, 446 U. S. 335, 347
(1980).8 But when, as was true in this
7 "[W]hen a defendant chooses to have a lawyer manage and
present his case, law and tradition may allocate to the counsel the
power to make binding decisions of trial strategy in many areas
.... This allocation can only be justified, however, by the
defendant's consent, at the outset, to accept counsel as his
representative. An unwanted counsel 'represents' the defendant only
through a tenuous and unacceptable legal fiction. Unless the
accused has acquiesced in such representation, the defense
presented is not the defense guaranteed him by the Constitution,
for, in a very real sense, it is not
his defense." 422 U.
S., at 820-821.
8 Part III of the Court's opinion is a foray into an issue that
is not implicated by the question presented. In dicta, the Court
states that
Sullivan may not even apply in the first place
to
successive representations.
Ante, at 175-176. Most
Courts of Appeals, however, have applied
Sullivan to claims
of successive representation as well as to some insidious conflicts
arising from a lawyer's self-interest. See cases cited
ante,
at 174-175. We have done the same. See
Wood v.
Georgia, 450
U. S. 261 (1981) (applying
Sullivan to a conflict
stemming from a third-party payment arrange-
185
case, the judge is not merely reviewing the permissibility of
the defendants' choice of counsel, but is responsible for making
the choice herself, and when she knows or should know that a
conflict does exist, the duty to make a thorough inquiry is
manifest and unqualified.9 Indeed, under far less compelling
circumstances, we squarely held that when a record discloses the
"possibility of a conflict" between the interests of the defendants
and the interests of the party paying their counsel's fees, the
Constitution imposes a duty of inquiry on the state-court judge
even when no objection was made.
Wood v.
Georgia,
450 U. S. 261,
267, 272 (1981).
IV
Mickens had a constitutional right to the services of an
attorney devoted solely to his interests. That right was violated.
The lawyer who did represent him had a duty to disclose his prior
representation of the victim to Mickens and to the trial judge.
That duty was violated. When Mickens had no counsel, the trial
judge had a duty to "make a thorough inquiry and to take all steps
necessary to insure the fullest protection of" his right to
counsel.
Von Moltke, 332
ment). Neither we nor the Courts of Appeals have applied this
standard "unblinkingly," as the Court accuses,
ante, at 174,
but rather have relied upon principled reason. When a conflict of
interest, whether multiple, successive, or otherwise, poses so
substantial a risk that a lawyer's representation would be
materially and adversely affected by diverging interests or
loyalties and the trial court judge knows of this and yet fails to
inquire, it is a "[c]ircumstanc[e] of [such] magnitude" that "the
likelihood that any lawyer, even a fully competent one, could
provide effective assistance is so small that a presumption of
prejudice is appropriate without inquiry into the actual conduct of
the trial."
Cronic, 466 U. S., at 659-660.
9 There is no dispute before us as to the appointing judge's
knowledge.
The court below assumed,
arguendo, that the judge who,
upon Hall's death, dismissed Saunders from his representation of
Hall and who then three days later appointed Saunders to represent
Mickens in the killing of Hall "reasonably should have known that
Saunders labored under a potential conflict of interest arising
from his previous representation of Hall."
240
F.3d 348, 357
(CA4 2001). This assumption has not been
challenged.
186
u. S., at 722. Despite knowledge of the lawyer's prior
representation, she violated that duty.
We will never know whether Mickens would have received the death
penalty if those violations had not occurred nor precisely what
effect they had on Saunders' representation of Mickens.lO We do
know that he did not receive the kind of representation that the
Constitution guarantees. If Mickens had been represented by an
attorney-impostor who never passed a bar examination, we might also
be unable to determine whether the impostor's educational
shortcomings "'actually affected the adequacy of his
representation.'"
Ante, at 171 (emphasis deleted). We would,
however, surely set aside his conviction if the person who had
represented him was not a real lawyer. Four compelling reasons make
setting aside the conviction the proper remedy in this case.
First, it is the remedy dictated by our holdings in
Holloway v.
Arkansas, 435 U. S. 475 (1978),
Cuyler v.
Sullivan, 446 U. S. 335 (1980), and
Wood v.
Georgia, 450 U. S. 261 (1981). In
this line of precedent, our focus was properly upon the duty of the
trial court judge to inquire into a potential conflict. This duty
was triggered either via defense counsel's objection, as was the
case in
Holloway, or some other "special circumstances"
whereby the serious potential for conflict was brought to the
attention of the trial court judge.
Sullivan, 446 U. S., at
346. As we unambiguously stated in
Wood, "Sullivan mandates
a reversal when the trial court has failed to make an inquiry even
though it 'knows or reasonably should know that a particular
conflict
10 I disagree with the Court's assertion that the inquiry
mandated by
Cuyler v.
Sullivan, 446 U. S. 335 (1980),
will not aid in the determination of conflict and effect.
Ante, at 171. As we have stated, "the evil [of
conflict-ridden counsel] is in what the advocate finds himself
compelled to
refrain from doing, ... [making it] difficult
to judge intelligently the impact of a conflict on the attorney's
representation of a client."
Holloway v.
Arkansas,
435 U. S. 475,
490-491 (1978). An adequate inquiry by the appointing or trial
court judge will augment the record thereby making it easier to
evaluate the impact of the conflict.
187
exists.'" 450 U. S., at 272, n. 18. It is thus wrong for the
Court to interpret Justice Powell's language as referring only to a
division of loyalties "that affected counsel's performance."
Ante, at 171, and n. 3 (emphasis deleted).H
Wood
nowhere hints of this meaning of "actual conflict of interest" 450
U. S., at 273, nor does it reference
Sullivan in
"shorthand,"
ante, at 171. Rather,
Wood cites
Sullivan explicitly in order to make a factual distinction:
In a circumstance, such as in
Wood, in which the judge knows
or should know of the conflict, no showing of adverse effect is
required. But when, as in
Sullivan, the judge lacked this
knowledge, such a showing is required.
Wood, 450 U. S., at
272-274.12
11 The Court concedes that if Mickens' attorney had objected to
the appointment based upon the conflict of interest and the trial
court judge had failed to inquire, then reversal without inquiry
into adverse effect would be required.
Ante, at 173-174. The
Court, in addition to ignoring the mandate of
Wood, reads
Sullivan too narrowly. In
Sullivan we did not ask
only whether an objection was made in order to ascertain
whether the trial court had a duty to inquire. Rather, we stated
that "[n]othing in the circumstances of this case indicates that
the trial court had a duty to inquire whether there was a conflict
of interest. The provision of separate trials for Sullivan and his
codefendants significantly reduced the potential for a divergence
in their interests. No participant in Sullivan's trial ever
objected to the multiple representation .... On these facts, we
conclude that the Sixth Amendment imposed upon the trial court no
affirmative duty to inquire into the propriety of multiple
representation." 446 U. S., at 347-348.
It is also counter to our precedent to treat all Sixth Amendment
challenges involving conflicts of interest categorically, without
inquiry into the surrounding factual circumstances. In
Cronic, we cited
Holloway as an
example of a
case involving "surrounding circumstances [making] it so unlikely
that any lawyer could provide effective assistance that
ineffectiveness was properly presumed without inquiry into actual
performance at trial."
Cronic, 466 U. S., at 661, and n. 28.
The surrounding circumstances in the present case were far more
egregious than those requiring reversal in either
Holloway
or
Wood.
12 Because the appointing judge knew of the conflict, there is
no need in this case to decide what should be done when the judge
neither knows, nor should know, about the existence of an
intolerable conflict. Nevertheless the Court argues that it makes
little sense to reverse automatically
188
Second, it is the only remedy that responds to the real
possibility that Mickens would not have received the death penalty
if he had been represented by conflict-free counsel during the
critical stage of the proceeding in which he first met with his
lawyer. We should presume that the lawyer for the victim of a
brutal homicide is incapable of establishing the kind of
relationship with the defendant that is essential to effective
representation.
Third, it is the only remedy that is consistent with the legal
profession's historic and universal condemnation of the
representation of conflicting interests without the full disclosure
and consent of all interested parties.13 The Court's novel and
naIve assumption that a lawyer's divided loyalties
upon a showing of actual conflict when the trial court judge
knows (or reasonably should know) of a potential conflict and yet
has failed to inquire, but
not to do so when the trial court
judge does not know of the conflict.
Ante, at 172-173.
Although it is true that the defendant faces the same potential for
harm as a result of a conflict in either instance, in the former
case the court committed the error and in the latter the harm is
entirely attributable to the misconduct of defense counsel. A
requirement that the defendant show adverse effect when the court
committed no error surely does not justify such a requirement when
the court did err. It is the Court's rule that leads to an
anomalous result. Under the Court's analysis, if defense counsel
objects to the appointment, reversal without inquiry into adverse
effect is required.
Ante, at 173-174. But counsel's failure
to object posed a greater-not a lesser-threat to Mickens' Sixth
Amendment right. Had Saunders objected to the appointment, Mickens
would at least have been apprised of the conflict.
13 Every state bar in the country has an ethical rule
prohibiting a lawyer from undertaking a representation that
involves a conflict of interest unless the client has waived the
conflict. University Publications of America, National Reporter on
Legal Ethics and Professional Responsibility, Vols. I-IV (2001)
(reprinting the professional responsibility codes for the 50
States). See also Model Rule 1.7, at 91-92, Comments 3 and 4 ("As a
general proposition, loyalty to a client prohibits undertaking
representation directly adverse to that client without that
client's consent .... Loyalty to a client is also impaired when a
lawyer cannot consider, recommend or carry out an appropriate
course of action for the client because of the lawyer's other
responsibilities or interests").
189
are acceptable unless it can be proved that they actually
affected counsel's performance is demeaning to the profession.
Finally, "justice must satisfy the appearance of justice."
Offutt v.
United States, 348 U. S. 11, 14 (1954).
Setting aside Mickens' conviction is the only remedy that can
maintain public confidence in the fairness of the procedures
employed in capital cases. Death is a different kind of punishment
from any other that may be imposed in this country. "From the point
of view of the defendant, it is different in both its severity and
its finality. From the point of view of society, the action of the
sovereign in taking the life of one of its citizens also differs
dramatically from any other legitimate state action. It is of vital
importance to the defendant and to the community that any decision
to impose the death sentence be, and appear to be, based on reason
rather than caprice or emotion."
Gardner v.
Florida,
430 U. S. 349,
357358 (1977). A rule that allows the State to foist a murder
victim's lawyer onto his accused is not only capricious; it poisons
the integrity of our adversary system of justice.
I respectfully dissent.
JUSTICE SOUTER, dissenting.
A judge who knows or should know that counsel for a criminal
defendant facing, or engaged in, trial has a potential conflict of
interests is obliged to enquire into the potential conflict and
assess its threat to the fairness of the proceeding. See
Wheat v.
United States, 486 U. S. 153, 160
(1988);
Wood v.
Georgia, 450 U. S. 261, 272
(1981);
Cuyler v.
Sullivan, 446 U. S. 335, 347
(1980). Cf.
Holloway v.
Arkansas, 435 U. S. 475, 484
(1978). Unless the judge finds that the risk of inadequate
representation is too remote for further concern, or finds that the
defendant has intelligently assumed the risk and waived any
potential Sixth or Fourteenth Amendment claim of inadequate
counsel, the court must see that the lawyer is replaced. See
ibid.; Glasser v.
United States, 315 U. S. 60, 70 (1942).
Cf.
Wheat, supra, at 162; Ad-
190
visory Committee's Notes on 1979 Amendments to Fed. Rule Crim.
Proc. 44(c), 18 U. S. C. App., p. 1655.
The District Judge reviewing the federal habeas petition in this
case found that the state judge who appointed Bryan Saunders to
represent petitioner Mickens on a capital murder charge knew or
should have known that obligations stemming from Saunders's prior
representation of the victim, Timothy Hall, potentially conflicted
with duties entailed by defending Mickens.1
Mickens v.
Greene, 74 F. Supp. 2d 586, 613-615 (ED Va. 1999). The state
judge was therefore obliged to look further into the extent of the
risk and, if necessary, either secure Mickens's knowing and
intelligent assumption of the risk or appoint a different lawyer.
The state judge, however, did nothing to discharge her
constitutional duty of care.
Id., at 614. In the one case in
which we have devised a remedy for such judicial dereliction, we
held that the ensuing judgment of conviction must be reversed and
the defendant afforded a new trial.
Holloway,
1 The parties do not dispute that the appointing judge in this
case knew or reasonably should have known that Saunders had
represented Hall on assault and battery charges brought against him
by his mother and a separate concealed-weapon charge at the time of
his murder. Lodging to App. 390, 393. The name "BRYAN SAUNDERS," in
large, handwritten letters, was prominently visible as the
appointed lawyer on a one-page docket sheet four inches above where
the judge signed her name and wrote: "Remove from docket.
Def[endant] deceased."
Id., at 390. The same judge then
called Saunders the next business day to ask if he would "do her a
favor" and represent the only person charged with having killed the
victim. App. 142. And, if that were not enough, Mickens's arrest
warrants, which were apparently before the judge when she appointed
Saunders, charged Mickens with the murder, "'on or about March 30,
1992,'" of '''Timothy Jason Hall, white male, age 17.'''
Mickens v.
Greene, 74 F. Supp. 2d 586, 614 (ED Va.
1999). The juvenile-court judge, whom circumstances had thrust into
the unusual position of having to appoint counsel in a notorious
capital case, certainly knew or had reason to know of the
possibility that Saunders's 14-day representation of the murder
victim, up to the start of the previous business day, may have
created a risk of impairing his representation of Mickens in his
upcoming murder trial.
191
supra, at 491; see also
Wood, supra, at 272, n.
18. That should be the result here.
I
The Court today holds, instead, that Mickens should be denied
this remedy because Saunders failed to employ a formal objection as
a means of bringing home to the appointing judge the risk of
conflict.
Ante, at 173-174. Without an objection, the
majority holds, Mickens should get no relief absent a showing that
the risk turned into an actual conflict with adverse effect on the
representation provided to Mickens at trial.
Ibid. But why
should an objection matter when even without an objection the state
judge knew or should have known of the risk and was therefore
obliged to enquire further? What would an objection have added to
the obligation the state judge failed to honor? The majority says
that in circumstances like those now before us, we have already
held such an objection necessary for reversal, absent proof of
actual conflict with adverse effect, so that this case calls simply
for the application of precedent, albeit precedent not very clearly
stated.
Ante, at 171-172.
The majority's position is error, resting on a mistaken reading
of our cases. Three are on point,
Holloway v.
Arkansas,
supra; Cuyler v.
Sullivan, supra; and
Wood v.
Georgia, supra.
In
Holloway, a trial judge appointed one public defender
to represent three criminal defendants tried jointly. 435 U. S., at
477. Three weeks before trial, counsel moved for separate
representation; the court held a hearing and denied the motion.
Ibid. The lawyer moved again for appointment of separate
counsel before the jury was empaneled, on the ground that one or
two of the defendants were considering testifying at trial, in
which event the one lawyer's ability to cross-examine would be
inhibited.
Id., at 478. The court again denied his motion.
Ibid. After the prosecution rested, counsel objected to the
joint representation a third time, advising the court that all
three defendants had de-
192
cided to testify; again the court refused to appoint separate
lawyers.
Id., at 478-480. The defendants gave inconsistent
testimony and were convicted on all counts.
Id., at 481.
This Court held that the motions apprised the trial judge of a
"risk" that continuing the joint representation would subject
defense counsel in the pending trial to the impossible obligations
of simultaneously furthering the conflicting interests of the
several defendants,
id., at 484, and we reversed the
convictions on the basis of the judge's failure to respond to the
prospective conflict, without any further showing of harm,
id., at 491. In particular, we rejected the argument that a
defendant tried subject to such a disclosed risk should have to
show actual prejudice caused by subsequent conflict.
Id., at
488. We pointed out that conflicts created by multiple
representation characteristically deterred a lawyer from taking
some step that he would have taken if unconflicted, and we
explained that the consequent absence of footprints would often
render proof of prejudice virtually impossible.
Id., at
489-491.
Next came
Sullivan, involving multiple representation by
two retained lawyers of three defendants jointly indicted but
separately tried, 446 U. S., at 337. Sullivan, the defendant at the
first trial, had consented to joint representation by the same
lawyers retained by the two other accused, because he could not
afford counsel of his own.
Ibid. Sullivan was convicted of
murder; the other two were acquitted in their subsequent trials.
Id., at 338. Counsel made no objection to the multiple
representation before or during trial,
ibid.; nor did the
convicted defendant argue that the trial judge otherwise knew or
should have known of the risk described in
Holloway, that
counsel's representation might be impaired by conflicting
obligations to the defendants to be tried later, 446 U. S., at
343.
This Court held that multiple representation did not raise
enough risk of impaired representation in a coming trial to
193
trigger a trial court's duty to enquire further, in the absence
of "special circumstances." 2
Id., at 346. The most obvious
special circumstance would be an objection. See
Holloway,
supra, at 488. Indeed, because multiple representation was not
suspect
per se, and because counsel was in the best position
to anticipate a risk of conflict, the Court spoke at one point as
though nothing but an objection would place a court on notice of a
prospective conflict.
Sullivan, 446 U. S., at 348 ("[A]
defendant who raised no objection at trial must demonstrate that an
actual conflict of interest adversely affected his lawyer's
performance" (footnote omitted)). But the Court also explained that
courts must rely on counsel in "large measure,"
id., at 347,
that is, not exclusively, and it spoke in general terms of a duty
to enquire that arises when "the trial court knows or reasonably
should know that a particular conflict exists," 3
ibid.
(footnote omitted). Accord-
2 The constitutional rule binding the state courts is thus more
lenient than Rule 44(c) of the Federal Rules of Criminal Procedure,
which provides:
"Whenever two or more defendants have been jointly charged
pursuant to Rule 8(b) or have been joined for trial pursuant to
Rule 13, and are represented by the same retained or assigned
counselor by retained or assigned counsel who are associated in the
practice of law, the court shall promptly inquire with respect to
such joint representation and shall personally advise each
defendant of the right to the effective assistance of counsel,
including separate representation. Unless it appears that there is
good cause to believe no conflict of interest is likely to arise,
the court shall take such measures as may be appropriate to protect
each defendant's right to counsel."
See
Wheat v.
United States, 486 U. S. 153, 161
(1988).
3 By "particular conflict" the Court was clearly referring to a
risk of conflict detectable on the horizon rather than an "actual
conflict" that had already adversely affected the defendant's
representation. The Court had just cited and quoted
Holloway
v.
Arkansas, 435 U. S. 475 (1978),
which held that the judge was obligated to enquire into the risk of
a prospective conflict,
id., at 484. This reading is
confirmed by the
Sullivan Court's subsequent terminology:
Because the trial judge in
Sullivan had had no duty to
enquire into "a particular conflict" upon notice of multiple
194
ingly, the Court did not rest the result simply on the failure
of counsel to object, but said instead that "[n]othing in the
circumstances of this case indicates that the trial court had a
duty to inquire whether there was a conflict of interest,"
ibid. For that reason, it held respondent bound to show
"that a conflict of interest actually affected the adequacy of his
representation."
Id., at 349.
The different burdens on the
Holloway and
Sullivan
defendants are consistent features of a coherent scheme for dealing
with the problem of conflicted defense counsel; a prospective risk
of conflict subject to judicial notice is treated differently from
a retrospective claim that a completed proceeding was tainted by
conflict, although the trial judge had not been derelict in any
duty to guard against it. When the problem comes to the trial
court's attention before any potential conflict has become actual,
the court has a duty to act prospectively to assess the risk and,
if the risk is not too remote, to eliminate it or to render it
acceptable through a defendant's knowing and intelligent waiver.
This duty is something more than the general responsibility to rule
without committing legal error; it is an affirmative obligation to
investigate a disclosed possibility that defense counsel will be
unable to act with uncompromised loyalty to his client. It was the
judge's failure to fulfill that duty of care to enquire further and
do what might be necessary that the
Holloway Court remedied
by vacating the defendant's subsequent conviction. 435 U. S., at
487, 491. The error occurred when the judge failed to act, and the
remedy restored the defend-
representation alone, the convicted defendant could get no
relief without showing "actual conflict" with "adverse effect." 446
U. S., at 347-350.
Of course, a judge who gets wind of conflict during trial may
have to enquire in both directions: prospectively to assess the
risk of conflict if the lawyer remains in place; if there is no
such risk requiring removal and mistrial, conversely, the judge may
have to enquire retrospectively to see whether a conflict has
actually affected the defendant adversely. See
infra, at
202.
195
ant to the position he would have occupied if the judge had
taken reasonable steps to fulfill his obligation. But when the
problem of conflict comes to judicial attention not prospectively,
but only after the fact, the defendant must show an actual conflict
with adverse consequence to him in order to get relief.
Sullivan, supra, at 349. Fairness requires nothing more, for
no judge was at fault in allowing a trial to proceed even though
fraught with hidden risk.
In light of what the majority holds today, it bears repeating
that, in this coherent scheme established by
Holloway and
Sullivan, there is nothing legally crucial about an
objection by defense counsel to tell a trial judge that conflicting
interests may impair the adequacy of counsel's representation.
Counsel's objection in
Holloway was important as a fact
sufficient to put the judge on notice that he should enquire. In
most multiple-representation cases, it will take just such an
objection to alert a trial judge to prospective conflict, and the
Sullivan Court reaffirmed that the judge is obliged to take
reasonable prospective action whenever a timely objection is made.
446 U. S., at 346. But the Court also indicated that an objection
is not required as a matter of law: "Unless the trial court knows
or reasonably should know that a particular conflict exists, the
court need not initiate an enquiry."
Id., at 347. The Court
made this clear beyond cavil 10 months later when Justice Powell,
the same Justice who wrote the
Sullivan opinion, explained
in
Wood v.
Georgia that
Sullivan "mandates a
reversal when the trial court has failed to make an inquiry even
though it 'knows or reasonably should know that a particular
conflict exists.'" 450 U. S., at 272, n. 18 (emphasis in
original).
Since the District Court in this case found that the state judge
was on notice of a prospective potential conflict, 74 F. Supp. 2d,
at 613-615, this case calls for nothing more than the application
of the prospective notice rule announced and exemplified by
Holloway and confirmed in
Sullivan and
Wood.
The remedy for the judge's dereliction of duty
196
should be an order vacating the conviction and affording a new
trial.
But in the majority's eyes, this conclusion takes insufficient
account of
Wood, whatever may have been the sensible scheme
staked out by
Holloway and
Sullivan, with a
defendant's burden turning on whether a court was apprised of a
conflicts problem prospectively or retrospectively. The majority
says that
Wood holds that the distinction is between cases
where counsel objected and all other cases, regardless of whether a
trial court was put on notice prospectively in some way other than
by an objection on the record. See
ante, at 172-174. In
Wood, according to the majority, the trial court had notice,
there was no objection on the record, and the defendant was
required to show actual conflict and adverse effect.
Wood is not easy to read, and I believe the majority
misreads it. The first step toward seeing where the majority goes
wrong is to recall that the Court in
Wood said outright what
I quoted before, that
Sullivan "mandates a reversal when the
trial court has failed to make an inquiry even though it 'knows or
reasonably should know that a particular conflict exists.'" 450 U.
S., at 272, n. 18. This statement of a trial judge's obligation,
like the statement in
Sullivan that it quoted, 446 U. S., at
347, said nothing about the need for an objection on the record.
True, says the majority, but the statement was dictum to be
disregarded as "inconsistent" with
Wood's holding.
Ante, at 168-169, n. 2. This is a polite way of saying that
the
Wood Court did not know what it was doing; that it
stated the general rule of reversal for failure to enquire when on
notice (as in
Holloway), but then turned around and held
that such a failure called for reversal only when the defendant
demonstrated an actual conflict (as in
Sullivan).
This is not what happened.
Wood did not hold that in the
absence of objection, the
Sullivan rule governs even when a
judge is prospectively on notice of a risk of conflicted
counsel.
197
Careful attention to
Wood shows that the case did not
involve prospective notice of risk unrealized, and that it held
nothing about the general rule to govern in such circumstances.
What
Wood did decide was how to deal with a possible
conflict of interests that becomes known to the trial court only at
the conclusion of the trial proceeding at which it may have
occurred, and becomes known not to a later habeas court but to the
judge who handed down sentences at trial, set probation 19 months
later after appeals were exhausted, and held a probation revocation
proceeding 4 months after that.4
The
Wood defendants were convicted of distributing
obscene material as employees of an adult bookstore and theater,
after trials at which they were defended by privately retained
counsel. 450 U. S., at 262-263. They were each ordered to pay fines
and sentenced to 12-month prison terms that were suspended in favor
of probation on the condition that they pay their fines in
installments, which they failed to do.
Id., at 263-264. The
Wood Court indicated that by the end of the proceeding to
determine whether probation should be revoked because of the
defendants' failure to pay, the judge was on notice that defense
counsel might have been laboring under a conflict between the
interests of the defendant employees and those of their employer,
possibly as early as the time the sentences were originally handed
down nearly two years earlier, App. 11-16 in
Wood v.
Georgia, O. T. 1979, No. 79-6027 (Mar. 18, 1977,
sentencing). See
Wood, 450 U. S., at 272 ("at the revocation
hearing, or at earlier stages of the proceedings below"). The fines
were so high that the original sentencing assumption must have been
that the store and theater owner would pay them; defense counsel
was paid by the employer, at least during the trial; the State
4 The same trial judge presided over each stage of these
proceedings.
See App. 11-41 in
Wood v.
Georgia, O. T. 1979, No.
79-6027.
198
pointed out a possible conflict to the judge; 5 and counsel was
attacking the fines with an equal protection argument, which
weakened the strategy more obviously in the defendants' interest,
of requesting the court to reduce the fines or defer their
collection.
Id., at 272-273. This was enough, according to
the
Wood Court, to tell the judge that defense counsel may
have been acting to further the owner's desire for a test case on
equal protection, rather than the defendants' interests in avoiding
ruinous fines or incarceration.
Ibid.
What is significant is that, as this Court thus described the
circumstances putting the judge on notice, they were not complete
until the revocation hearing was finished (nearly
5 The State indicated that defense counsel labored under a
possible conflict of interests between the employer and the
defendants, but it was not the conflict in issue here, and so, from
the
Wood Court's perspective, the State's objection, though
a relevant fact in alerting the judge like the fact of multiple
representation in
Cuyler v.
Sullivan, 446 U. S. 335 (1980), was
not sufficient to put the judge on notice of his constitutional
duty to enquire into a "particular conflict,"
id., at 347.
State's counsel suggested that in arguing for forgiveness of fines
owing to inability to pay, defense counsel was merely trying to
protect the employer from an obligation to the defendants to pay
the fines. App. A to Brief in Opposition in
Wood v.
Georgia, O. T. 1979, No. 79-6027, at 14-15,27-28 (transcript
of Jan. 26, 1979, probation revocation hearing). But as to
forgiveness of the fines, the interests of the employer and
defendants were aligned; the State's lawyer argued to the court
nonetheless that counsel's allegiance to the employer prevented him
from pressing the employer to honor its obligation to pay, and
suggested to the judge that he should appoint separate counsel to
enforce it.
Id., at 14. The judge did enquire into this
alleged conflict and accepted defense counsel's rejoinder that such
a conflict was not relevant to a hearing on whether probation
should be revoked for inability to pay and that any such agreement
to pay fines for violating the law would surely be unenforceable as
a matter of public policy.
Id., at 14-17. The majority is
thus mistaken in its claim that the State's objection sufficed to
put the court on notice of a duty to enquire as to the particular
conflict of interest to the
Wood Court, see
ante, at
170-171, n. 3, unless the majority means to say that mention of any
imagined conflict is sufficient to put a judge on notice of a duty
to enquire into the full universe of possible conflicts.
199
two years after sentencing) and the judge knew that the lawyer
was relying heavily on equal protection instead of arguments for
leniency to help the defendants. The Court noted that counsel
stated he had sent a letter to the trial court after sentencing,
saying the fines were more than the defendants could afford,
id., at 268, n. 13, a move obviously in the defendants'
interest. On the other hand, a reference to "equal protection,"
which the Court could have taken as a reflection of the employer's
interest, did not occur until the very end of the revocation
hearing. See App. A to Brief in Opposition in
Wood v.
Georgia, O. T. 1979, No. 79-6027, at 72 (transcript of Jan.
26, 1979, probation revocation hearing).6 The
Wood Court
also knew that a motion stressing equal protection was not filed by
defense counsel until two weeks after the revocation hearing, on
the day before probation was to be revoked and the defendants
locked up, App. 35-36 in
Wood v.
Georgia, O. T. 1979,
No. 79-6027 (Joint Motions to Modify Conditions of Probation
Order-Filed Feb. 12, 1979). 450 U. S., at 268. Since, in the
Court's view, counsel's emphasis on the equal protection claim was
one of the facts that
6 At one point, about a quarter of the way into the hearing,
defense counsel said: "And I think the universal rule is in the
United States, because of the Fourteenth Amendment of the United
States Constitution, legal protection, you cannot, or should not,
lock up an accused for failure to pay a fine; because of his
inability or her inability to pay the fine, if that person, and
this is a crucial point, Your Honor, if that person, like to quote
from Bennett versus Harper, was incapable of paying the fine,
rather than refusing and neglecting to do so." App. A to Brief in
Opposition in
Wood v.
Georgia, O. T. 1979, No.
79-6027, at 19. Defense counsel also cited two equal protection
decisions of this Court,
Tate v.
Short, 401 U. S. 395 (1971), and
Williams v.
Illinois, 399 U. S. 235 (1970); it
may very well be that he meant to say "equal protection" rather
than "legal protection" or the latter was in fact a garbled
transcription, but it seems unlikely that the
Wood Court was
referring to this statement when it said counsel "was pressing a
constitutional attack rather than making the arguments for
leniency," 450 U. S., at 272, because it was made to supplement,
not replace, appeals to leniency based on the specific financial
situations of the individual defendants.
200
together put the judge on notice of something amiss, and since
the record shows that it was not clear that counsel was favoring
the equal protection argument until, at the earliest, the very
close of the revocation hearing, and more likely the day he filed
his motion two weeks later, the Court could only have meant that
the judge was put on notice of a conflict that may actually have
occurred, not of a potential conflict that might occur later. 7 At
that point, as the Court saw it, there were only two further facts
the judge would have needed to know to determine whether there had
been an actual disqualifying conflict, and those were whether a
concern for the interest of the employer had weakened the lawyer's
arguments for leniency, and whether the defendants had been
informed of the conflict and waived their rights to unconflicted
counsel.
This Court, of course, was in no position to resolve these
remaining issues in the first instance. Whether the lawyer's
failure to press more aggressively for leniency was caused by a
conflicting interest, for example, had never been explored at the
trial level and there was no record to consult on the point.8 In
deciding what to do, the
Wood Court had
7 The phrasing of the remand instruction confirms the conclusion
that the
Wood Court perceived the duty to enquire neglected
by the judge as retrospective in nature: The "[state] court [on
remand] should hold a hearing to determine whether the conflict of
interest that this record strongly suggests actually existed at the
time of the probation revocation or earlier."
Id., at 273.
From the Court's vantage point, another compelling reason for
suspecting a conflict of interests was the fact that the employer
apparently paid for the appeal, in which counsel argued the equal
protection question only,
id., at 267, n. 11; but, of
course, this would have been unknown to the judge at the revocation
hearing.
8 There was certainly cause for reasonable disagreement on the
issue.
As Justice White pointed out, absent relevant evidence in the
record, it was reasonable that the employer might have refused to
pay because the defendants were no longer employees, or because it
no longer owned adult establishments.
Id., at 282-283, and
n. 9 (dissenting opinion). Indeed, counsel said that he was no
longer paid by the employer for his representa-
201
two established procedural models to look to:
Holloway's
procedure of vacating judgment 9 when a judge had failed to enquire
into a prospective conflict, and
Sullivan's procedure of
determining whether the conflict that may well have occurred had
actually occurred with some adverse effect.
Treating the case as more like
Sullivan and remanding was
obviously the correct choice.
Wood was not like
Holloway, in which the judge was put on notice of a risk
before trial, that is, a prospective possibility of conflict. It
was, rather, much closer to
Sullivan, since any notice to a
court went only to a conflict, if there was one, that had pervaded
a completed trial proceeding extending over two years. The only
difference between
Wood and
Sullivan was that, in
Wood, the signs that a conflict may have occurred were clear
to the judge at the close of the probation revocation proceeding,
whereas the claim of conflict in
Sullivan was not raised
until after judgment in a separate habeas proceeding, see 446 U.
S., at 338. The duty of the
Wood judge could only have been
to enquire into the past (what had happened two years earlier at
sentencing, the setting of probation 19 months later, the ensuing
failures to pay, and the testimony that had already been given at
the revocation hearing), just like the responsibility of the state
and federal habeas courts reviewing the record in
Sullivan
in postconviction proceedings, see 446 U. S., at 338-339. Since the
Wood judge's duty was unlike the
Holloway judge's
obligation to take care for the future, it would have made no sense
for the
Wood Court to impose a
Holloway remedy.
The disposition in
Wood therefore raises no doubt about
the consistency of the
Wood Court. Contrary to the
majori-
tion of the defendants once they were put on probation,
id., at 281, n. 7 (White, J., dissenting).
9 In this case, the order would have been to vacate the
commitment order based on the probation violation, and perhaps even
the antecedent fine. See
id., at 274, n. 21 (majority
opinion).
202
ty's conclusion, see
ante, at 168-169, n. 2, there was no
tension at all between acknowledging the rule of reversal to be
applied when a judge fails to enquire into a known risk of
prospective conflict,
Wood, 450 U. S., at 272, n. 18, while
at the same time sending the
Wood case itself back for a
determination about actual, past conflict,
id., at 273-274.
Wood simply followed and confirmed the pre-existing scheme
established by
Holloway and
Sullivan. When a risk of
conflict appears before a proceeding has been held or completed and
a judge fails to make a prospective enquiry, the remedy is to
vacate any subsequent judgment against the defendant. See
Holloway, 435 U. S., at 491. When the possibility of
conflict does not appear until a proceeding is over and any enquiry
must be retrospective, a defendant must show actual conflict with
adverse effect. See
Sullivan, supra, at 349.
Wood, then, does not affect the conclusion that would be
reached here on the basis of
Holloway and
Sullivan.
This case comes to us with the finding that the judge who appointed
Saunders knew or should have known of the risk that he would be
conflicted owing to his prior appointment to represent the victim
of the crime, 74 F. Supp. 2d, at 613615; see n. 1,
supra. We
should, therefore, follow the law settled until today, in vacating
the conviction and affording Mickens a new trial.
II
Since the majority will not leave the law as it is, however, the
question is whether there is any merit in the rule it now adopts,
of treating breaches of a judge's duty to enquire into prospective
conflicts differently depending on whether defense counsel
explicitly objected. There is not. The distinction is irrational on
its face, it creates a scheme of incentives to judicial vigilance
that is weakest in those cases presenting the greatest risk of
conflict and unfair trial, and it reduces the so-called judicial
duty to enquire into so many empty words.
203
The most obvious reason to reject the majority's rule starts
with the accepted view that a trial judge placed on notice of a
risk of prospective conflict has an obligation then and there to do
something about it,
Holloway, supra, at 484. The majority
does not expressly repudiate that duty, see
ante, at
167-168, which is too clear for cavil. It should go without saying
that the best time to deal with a known threat to the basic
guarantee of fair trial is before the trial has proceeded to become
unfair. See
Holloway, supra, at
484; Glasser,
315 U. S., at 76. Cf.
Pate v.
Robinson, 383 U. S. 375, 386-387
(1966) (judge's duty to conduct hearing as to competency to stand
trial). It would be absurd, after all, to suggest that a judge
should sit quiescent in the face of an apparent risk that a
lawyer's conflict will render representation illusory and the
formal trial a waste of time, emotion, and a good deal of public
money. And as if that were not bad enough, a failure to act early
raises the specter, confronted by the
Holloway Court, that
failures on the part of conflicted counsel will elude demonstration
after the fact, simply because they so often consist of what did
not happen. 435 U. S., at 490-492. While a defendant can fairly be
saddled with the characteristically difficult burden of proving
adverse effects of conflicted decisions after the fact when the
judicial system was not to blame in tolerating the risk of
conflict, the burden is indefensible when a judge was on notice of
the risk but did nothing.
With so much at stake, why should it matter how a judge learns
whatever it is that would point out the risk to anyone paying
attention? Of course an objection from a conscientious lawyer
suffices to put a court on notice, as it did in
Holloway;
and probably in the run of multiplerepresentation cases nothing
short of objection will raise the specter of trouble. But sometimes
a wide-awake judge will not need any formal objection to see a risk
of conflict, as the federal habeas court's finding in this very
case shows. 74 F. Supp. 2d, at 613-615. Why, then, pretend contrary
to fact
204
that a judge can never perceive a risk unless a lawyer points it
out? Why excuse a judge's breach of judicial duty just because a
lawyer has fallen down in his own ethics or is short on competence?
Transforming the factually sufficient trigger of a formal objection
into a legal necessity for responding to any breach of judicial
duty is irrational.
Nor is that irrationality mitigated by the Government's effort
to analogize the majority's objection requirement to the general
rule that in the absence of plain error litigants get no relief
from error without objection. The Government as
amicus
argues for making a formal objection crucial because judges are not
the only ones obliged to take care for the integrity of the system;
defendants and their counsel need inducements to help the courts
with timely warnings. Brief for United States as
Amicus
Curiae 9, 26-27. The fallacy of the Government's argument,
however, has been on the books since
Wood was decided. See
450 U. S., at 265, n. 5 ("It is unlikely that [the lawyer on whom
the conflict of interest charge focused] would concede that he had
continued improperly to act as counsel"). The objection requirement
works elsewhere because the objecting lawyer believes that he
sights an error being committed by the judge or opposing counsel.
See,
e. g., United States v.
Vonn,
ante, at 72-73 (error in judge's Rule 11 plea colloquy). That
is hardly the motive to depend on when the risk of error, if there
is one, is being created by the lawyer himself in acting subject to
a risk of conflict,
227 F.3d
203, 213-217
(CA4 2000), vacated en banc,
240 F.3d
348 (CA4 2001). The law on conflicted counsel has to
face the fact that one of our leading cases arose after a trial in
which counsel may well have kept silent about conflicts not out of
obtuseness or inattention, but for the sake of deliberately
favoring a third party's interest over the clients, and this very
case comes to us with reason to suspect that Saunders suppressed
his conflicts for the sake of a second fee in a case getting public
attention. While the perceptive and conscientious lawyer (as in
Holloway) needs
205
nothing more than ethical duty to induce an objection, the venal
lawyer is not apt to be reformed by a general rule that says his
client will have an easier time reversing a conviction down the
road if the lawyer calls attention to his own venality. 10
The irrationality of taxing defendants with a heavier burden for
silent lawyers naturally produces an equally irrational scheme of
incentives operating on the judges. The judge's duty independent of
objection, as described in
Sullivan and
Wood, is made
concrete by reversal for failure to honor it. The plain fact is
that the specter of reversal for failure to enquire into risk is an
incentive to trial judges to keep their eyes peeled for lawyers who
wittingly or otherwise play loose with loyalty to their clients and
the fundamental guarantee of a fair trial. See
Wheat, 486 U.
S., at 161. Cf.
Pate, supra, at 386-387 (reversal as remedy
for state trial judge's failure to discharge duty to ensure
competency to stand trial). That incentive is needed least when
defense counsel points out the risk with a formal objection,
10 The Government contends that not requiring a showing of
adverse effect in no-objection cases would "provide the defense
with a disincentive to bring conflicts to the attention of the
trial court, since remaining silent could afford a defendant with a
reliable ground for reversal in the event of conviction." Brief for
United States as
Amicus Curiae 27. This argument, of course,
has no force whatsoever in the case of the venal conflicted lawyer
who remains silent out of personal self-interest or the obtuse
lawyer who stays silent because he could not recognize a conflict
if his own life depended on it. And these are precisely the lawyers
presenting the danger in no-objection cases; the savvy and ethical
lawyer would comply with his professional duty to disclose conflict
concerns to the court. But even assuming the unlikely case of a
savvy lawyer who recognizes a potential conflict and does not know
for sure whether to object timely on that basis as a matter of
professional ethics, an objection on the record is still the most
reliable factually sufficient trigger of the judicial duty to
enquire, dereliction of which would result in a reversal, and it is
therefore beyond the realm of reasonable conjecture to suggest that
such a lawyer would forgo an objection on the chance that a court
in postconviction proceedings may find an alternative factual basis
giving rise to a duty to enquire.
206
and needed most with the lawyer who keeps risk to himself, quite
possibly out of self-interest. Under the majority's rule, however,
it is precisely in the latter situation that the judge's incentive
to take care is at its ebb. With no objection on record, a
convicted defendant can get no relief without showing adverse
effect, minimizing the possibility of a later reversal and the
consequent inducement to judicial care.11 This makes no sense.
The Court's rule makes no sense unless, that is, the real point
of this case is to eliminate the judge's constitutional duty
entirely in no-objection cases, for that is certainly the practical
consequence of to day's holding. The defendant has the same burden
to prove adverse effect (and the prospect of reversal is the same)
whether the judge has no reason to know of any risk or every reason
to know about it short of
11 Lest anyone be wary that a rule requiring reversal for
failure to enquire when on notice would be too onerous a check on
trial judges, a survey of Courts of Appeals already applying the
Holloway rule in noobjection cases shows a commendable
measure of restraint and respect for the circumstances of fellow
judges in state and federal trial courts, finding the duty to
enquire violated only in truly outrageous cases. See,
e.
g., Campbell v.
Rice, 265
F.3d 878, 887-888
(CA9 2001) (reversing conviction under
Holloway when trial judge failed to enquire after the
prosecutor indicated defense counsel had just been arraigned by the
prosecutor's office on felony drug charges);
United States
v.
Rogers, 209 F.3d
139, 145
146 (CA2 2000) (reversing conviction when
District Court failed to enquire on notice that counsel for
defendant alleging police misconduct was a police commissioner);
United States v.
Allen, 831 F.2d
1487, 1495-1496
(CA9 1987) (finding Magistrate Judge had
reasonably enquired into joint representation of 17 codefendants
who entered a group guilty plea, but reversing because the District
Court failed to enquire when defense counsel later gave the court a
list "rank[ing] the defendants by their relative culpability").
Under the majority's rule, the defendants in each of these cases
should have proved that there was an actual conflict of interests
that adversely affected their representation. Particularly galling
in light of the first two cases is the majority's surprising and
unnecessary intimation that this Court's conflicts jurisprudence
should not be available or is somehow less important to those who
allege conflicts in contexts other than multiple representation.
See
ante, at 175.
207
explicit objection.12 In that latter case, the duty explicitly
described in
Sullivan and
Wood becomes just a matter
of words, devoid of sanction; it ceases to be any duty at all.
As that duty vanishes, so does the sensible regime under which a
defendant's burden on conflict claims took account of the
opportunities to ensure against conflicted counsel in the first
place. Convicted defendants had two alternative avenues to show
entitlement to relief. A defendant might, first, point to facts
indicating that a judge knew or should have known of a "'particular
conflict,'"
Wood, 450 U. S., at 272, n. 18 (quoting
Sullivan, 446 U. S., at 347), before that risk had a chance
to play itself out with an adverse result. If he could not carry
the burden to show that the trial judge had fallen down in the duty
to guard against conflicts prospec-
12 Requiring a criminal defendant to prove a conflict's adverse
effect in all no-objection cases only makes sense on the Court's
presumption that the Sixth Amendment right against ineffective
assistance of counsel is at its core nothing more than a
utilitarian right against unprofessional errors that have
detectable effects on outcome. See
ante, at 166 ("[I]t also
follows that defects in assistance that have no probable effect
upon the trial's outcome do not establish a constitutional
violation"). On this view, the exception in
Holloway for
objection cases turns solely on the theory that "harm" can safely
be presumed when counsel objects to no avail at the sign of danger.
See
ante, at 168. But this Court in
Strickland v.
Washington, 466 U. S. 668, 693-694
(1984), held that a specific "outcomedeterminative standard" is
"not quite appropriate" and spoke instead of the Sixth Amendment
right as one against assistance of counsel that "undermines the
reliability of the result of the proceeding,"
id., at 693,
or "confidence in the outcome,"
id., at 694. And the
Holloway Court said that once a conflict objection is made
and unheeded, the conviction "must be reversed ... even if no
particular prejudice is shown and even if the defendant was clearly
guilty." 435 U. S., at 489 (internal quotation marks and citation
omitted). What is clear from
Strickland and
Holloway
is that the right against ineffective assistance of counsel has as
much to do with public confidence in the professionalism of lawyers
as with the results of legal proceedings. A revelation that a
trusted advocate could not place his client's interest above the
interests of self and others in the satisfaction of his
professional responsibilities will destroy that confidence,
regardless of outcome.
208
tively, the defendant was required to show, from the perspective
of an observer looking back after the allegedly conflicted
representation, that there was an actual conflict of interests with
an adverse effect. The first route was preventive, meant to avoid
the waste of costly after-the-fact litigation where the risk was
clear and easily avoidable by a reasonably vigilant trial judge;
the second was retrospective, with a markedly heavier burden
justified when the judiciary was not at fault, but at least
alleviated by dispensing with any need to show prejudice. Today,
the former system has been skewed against recognizing judicial
responsibility. The judge's duty applies only when a
Holloway objection fails to induce a resolutely obdurate
judge to take action upon the explicit complaint of a lawyer facing
impossible demands. In place of the forsaken judicial obligation,
we can expect more time-consuming post-trial litigation like this,
and if this case is any guide, the added time and expense are
unlikely to purchase much confidence in the judicial system.13
I respectfully dissent.
13 Whether adverse effect was shown was not the question
accepted, and I will not address the issue beyond noting that the
case for an adverse effect appears compelling in at least two
respects. Before trial, Saunders admittedly failed even to discuss
with Mickens a trial strategy of reasonable doubt about the
forcible sex element, without which death was not a sentencing
option. App. 211-213; see also
id., at 219. In that vein,
Saunders apparently failed to follow leads by looking for evidence
that the victim had engaged in prostitution, even though the
victim's body was found on a mattress in an area where illicit sex
was common.
Id., at 202-217; Lodging to App. 397-398. There
may be doubt whether these failures were the result of incompetence
or litigation strategy rather than a conflicting duty of loyalty to
the victim or to self to avoid professional censure for failing to
disclose the conflict risk to Mickens (though strategic choice
seems unlikely given that Saunders did not even raise the
possibility of a consent defense as an option to be considered).
But there is little doubt as to the course of the second instance
of alleged adverse effect:
Saunders knew for a fact that the victim's mother had initiated
charges of assault and battery against her son just before he died
because Saunders had been appointed to defend him on those very
charges,
id., at 390 and
209
JUSTICE BREYER, with whom JUSTICE GINSBURG joins,
dissenting.
The Commonwealth of Virginia seeks to put the petitioner, Walter
Mickens, Jr., to death after having appointed to represent him as
his counsel a lawyer who, at the time of the murder, was
representing the very person Mickens was accused of killing. I
believe that, in a case such as this one, a categorical approach is
warranted and automatic reversal is required. To put the matter in
language this Court has previously used: By appointing this lawyer
to represent Mickens, the Commonwealth created a "structural defect
affecting the framework within which the trial [and sentencing]
proceeds, rather than simply an error in the trial process itself."
Arizona v.
Fulminante, 499 U. S. 279, 310
(1991).
The parties spend a great deal of time disputing how this
Court's precedents of
Holloway v.
Arkansas, 435 U. S. 475 (1978),
Cuyler v.
Sullivan, 446 U. S. 335 (1980), and
Wood v.
Georgia, 450 U. S. 261 (1981),
resolve the case. Those precedents involve the significance of a
trial judge's "failure to inquire" if that judge "knew or should
have known" of a "potential" conflict. The majority and dissenting
opinions dispute the meaning of these cases as well. Although I
express no view at this time about how our precedents should treat
most ineffective-assistance-of-counsel claims involving an
alleged conflict of interest (or, for that matter, whether
Holloway, Sullivan, and
Wood provide a sensible or
coherent framework for dealing with those cases at all), I am
convinced that
this case is not governed by those
precedents, for the following reasons.
393. Yet Saunders did nothing to counter the mother's assertion
in the post-trial victim-impact statement given to the trial judge
that" 'all [she] lived for was that boy,'"
id., at 421; see
also App. 219-222. Saunders could not have failed to see that the
mother's statement should be rebutted, and there is no apparent
explanation for his failure to offer the rebuttal he knew, except
that he had obtained the information as the victim's counsel and
subject to an obligation of confidentiality.
210
First, this is the kind of representational incompatibility that
is egregious on its face. Mickens was represented by the murder
victim's lawyer; that lawyer had represented the victim on a
criminal matter; and that lawyer's representation of the victim had
continued until one business day before the lawyer was appointed to
represent the defendant.
Second, the conflict is exacerbated by the fact that it occurred
in a capital murder case. In a capital case, the evidence submitted
by both sides regarding the victim's character may easily tip the
scale of the jury's choice between life or death. Yet even with
extensive investigation in post-trial proceedings, it will often
prove difficult, if not impossible, to determine whether the prior
representation affected defense counsel's decisions regarding, for
example: which avenues to take when investigating the victim's
background; which witnesses to call; what type of impeachment to
undertake; which arguments to make to the jury; what language to
use to characterize the victim; and, as a general matter, what
basic strategy to adopt at the sentencing stage. Given the subtle
forms that prejudice might take, the consequent difficulty of
proving actual prejudice, and the significant likelihood that it
will nonetheless occur when the same lawyer represents both accused
killer and victim, the cost of litigating the existence of actual
prejudice in a particular case cannot be easily justified. Cf.
United States v.
Cronic, 466 U. S. 648, 657-658
(1984) (explaining the need for categorical approach in the event
of "actual breakdown of the adversarial process").
Third, the Commonwealth itself
created the conflict in
the first place. Indeed, it was the
same judge who dismissed
the case against the victim who then appointed the victim's lawyer
to represent Mickens one business day later. In light of the
judge's active role in bringing about the incompatible
representation, I am not sure why the concept of a judge's "duty to
inquire" is thought to be central to this case. No "inquiry" by the
trial judge could have shed more light
211
on the conflict than was obvious on the face of the matter,
namely, that the lawyer who would represent Mickens today is the
same lawyer who yesterday represented Mickens' alleged victim in a
criminal case.
This kind of breakdown in the criminal justice system creates,
at a minimum, the appearance that the proceeding will not
"'reliably serve its function as a vehicle for determination of
guilt or innocence,'" and the resulting" 'criminal punishment'"
will not "'be regarded as fundamentally fair.'"
Fulminante,
supra, at 310. This appearance, together with the likelihood of
prejudice in the typical case, is serious enough to warrant a
categorical rule-a rule that does not require proof of prejudice in
the individual case.
The Commonwealth complains that this argument "relies heavily on
the immediate visceral impact of learning that a lawyer previously
represented the victim of his current client." Brief for Respondent
34. And that is so. The "visceral impact," however, arises out of
the obvious, unusual nature of the conflict. It arises from the
fact that the Commonwealth seeks to execute a defendant, having
provided that defendant with a lawyer who, only yesterday,
represented the victim. In my view, to carry out a death sentence
so obtained would invariably "diminis[h] faith" in the fairness and
integrity of our criminal justice system.
Young v.
United
States ex rel. Vuitton et Fils S.
A., 481 U. S. 787, 811-812
(1987) (plurality opinion). Cf.
United States v.
Olano, 507 U.
S. 725, 736 (1993) (need to correct errors that seriously
affect the" 'fairness, integrity or public reputation of judicial
proceedings' "). That is to say, it would diminish that public
confidence in the criminal justice system upon which the successful
functioning of that system continues to depend.
I therefore dissent.
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