We granted certiorari to determine whether separate counsel is required for each co-defendant in a case where the death penalty is not sought by the State.
Dean v. State,
Appellant was indicted for burglary along with three co-defendants. Two co-defendants pled guilty. One of those, Glanton, was appointed the same attorney later retained by appellant. Glanton was called to testify at appellant’s trial. Prior to Glanton’s taking the stand, counsel for appellant notified the trial court of his representation of Glanton, but only for purposes of learning why the State was calling Glanton to the stand. Glanton’s testimony on direct examination implicated appellant in the commission of the crime. Counsel for appellant vigorously cross-examined Glanton in an effort to impeach his testimony, using certain statements apparently exculpating appellant Dean which Glanton had made to the attorney during their previous attorney-client relationship. Appellant did not testify in his own behalf.
Appellant was convicted and sentenced to fifteen years. On appeal, appellant argued that there was such a conflict of interest in his attorney’s representation of him and his prior representation of a co-defendant as to taint appellant’s conviction. His conviction was affirmed by the Court of Appeals, which declined extending this court’s holding in Fleming that there cannot be multiple representation of co-defendants in a death penalty case to a case in which the death penalty was not sought.
Appellant seeks to have this court apply the Fleming holding to his case, urging that an equal protection violation would otherwise occur should it not be applied to all cases involving the potential deprivation of liberty as well as to cases where the death penalty is sought.
With regard to an equal protection challenge to the fewer than twelve jurors allowed by Louisiana state law to convict a defendant accused of a non-capital felony, the United States Supreme Court has held that “the State may treat capital offenders differently without violating the constitutional rights of those charged with lesser crimes.” Johnson v. Louisiana,
We promulgated the rule in
Fleming
for death penalty cases under our supervisory power over the bar of this State
and
under our statutory mandate to review the administration of the death penalty.
*725
See Code Ann. § 27-2537;
Fleming v. State,
The constitutional infirmities found in multiple representation of co-defendants may violate the sixth amendment or the due process clause (see respectively, Cuyler v. Sullivan,
Whenever a defendant establishes his lawyer’s unconstitutional multiple representation, that is where an actual conflict of interest is objected to before or during trial, prejudice need not be demonstrated. Glasser v. United States,
Trial judges and prosecutors have the responsibility to see that the defendant receives a fair trial. Fitzgerald v. Estelle, 505 F2d 1334 (5th Cir. 1974);
Fleming v. State,
We therefore answer the question we posed on certiorari in the negative and uphold the Court of Appeals’ affirmance of appellant’s conviction.
Judgment affirmed.
Notes
In an effort to reduce case-by-case review, in cases where co-indictees or co-conspirators are represented by the same attorney or firm, trial judges should point out to the defendants that joint representation may create a conflict of interest and determine whether all such defendants agree to joint representation.