Lead Opinion
Appellant challenges a trial court order of January 25, 1982, denying his pretrial motion to dismiss the indictment on grounds of double jeopardy. During the first trial before Judge Hannon in September 1981, appellant’s retained counsel, Gerald Kane, received a letter from the Office of Bar Counsel informing Kane that appellant had filed a complaint against him and that Bar Counsel, accordingly, was opening an inquiry into Kane’s conduct. Appellant had lodged his complaint with Bar Counsel several weeks before trial. It alleged that Kane had not made a sufficient effort to obtain a bond reduction; it was unrelated to Kane’s trial preparation or performance. Both appellant and Kane unambiguously expressed a desire for the trial to continue with Kane as counsel. Judge Hannon acknowledged, after a hearing, that Kane’s challenged pretrial conduct did not amount to ineffective assistance and did not compromise Kane’s ability to represent appellant effectively at trial. The judge concluded, nonetheless, that Bar Counsel’s inquiry in itself created an insurmountable conflict of interest between Kane and his client. Judge Hannon, therefore, declared a mistrial sua sponte.
Appellant contends that, because the trial court declared a mistrial without exploring ways to accommodate his expressed desire to continue with the trial, a second trial will violate his rights under the double jeopardy clause of the Fifth Amendment. We agree. That clause bars a second prosecution unless the defendant consents to the mistrial — which did not happen here — or the government is able to demonstrate a “manifest necessity” for stopping the first trial. United States v. Perez,
I. Facts and TRial CouRt PROCEEDINGS
Appellant was arrested on July 12, 1979, and detained in lieu of posting a $5,000
Soon after his arrest, appellant retained Gerald Kane, a member of the District of Columbia Bar. Kane first entered his appearance at a preliminary hearing on July 18, 1979, and one week later filed a bond review motion for appellant’s release into third party custody. The trial court denied this motion and placed appellant in a Department of Corrections halfway house. On May 8,1980, the court granted a second bond review motion filed by Kane and released appellant pending trial into the third party custody of his parents.
In September 1980, appellant failed to appear for a scheduled court date; the trial court issued a bench warrant for his arrest. Appellant was apprehended on March 16, 1982, and charged with violating provisions of the Bail Reform Act (BRA), D.C.Code § 23-1327 (1981). Although the court initially joined the BRA charge with appellant’s earlier charges, the BRA charge was later severed and is not at issue in this appeal. Appellant’s case was assigned to Judge Hannon, who imposed a $25,000 surety bond and scheduled trial for September 1981. Kane appeared on appellant’s behalf at a number of proceedings related to the BRA charge and to the setting of bond, and continued to represent appellant on the charges contained in the original indictment.
Because appellant was unable to post bond, he remained incarcerated awaiting trial. During the spring and early summer of 1981, appellant sent a number of letters to Judge Hannon’s chambers. In them, he offered an explanation for his failure to appear for his scheduled court date and requested a reduction of bond. While the first two letters did not mention appellant’s attorney, each of three later letters contained some reference to appellant’s belief that Kane was not exerting sufficient effort to obtain a bond reduction. At no point, however, did appellant indicate that he wanted Kane removed as his attorney or that he wanted the court to appoint new counsel. Kane did, in fact, file a motion to reduce bond on July 10, 1981. That motion was denied.
At a status hearing on July 13, 1981, Judge Scott, substituting for Judge Han-non, informed Kane of appellant’s complaints about his failure to obtain a reduction of appellant’s bond. Judge Scott then questioned appellant and ascertained that appellant wished to continue to trial with Kane as his attorney. Judge Scott concluded that there was no bаsis for finding ineffective assistance of counsel, and he permitted Kane to remain as appellant’s attorney. Judge Scott, nonetheless, did indicate that he would refer appellant’s complaints about Kane to the Office of Bar Counsel.
After the July 13 status hearing, and at Judge Scott’s request, the Office of Bar Counsel contacted appellant, asking if he wished to file a complaint against Kane. Appellant filed a complaint, alleging principally that Kane had failed to make diligent efforts for pretrial release. Neither Kane nor the trial court was informed about this complaint before trial began.
After a jury had been selected and sworn, both the government and defense presented opening statements. Kane’s opening statement set forth the defense theory, arguing that one of the government’s principal witnesses — appellant’s former girl friend — had committed the crimes charged and was now attempting to frame appellant in ordеr to exculpate herself. The government called as its first witness one of the two complainants, who testified that he had been the victim of an armed robbery. This witness did not make an in-court identification of appellant, and his testimony concerning two attempted out-of-court identification procedures reflected serious uncertainty as to the witness’ ability to recognize his assailant. On cross-examination, Kane used several impeachment techniques to discredit the witness’ testimony. Following this testimony, the court adjourned for the day.
On the morning of the second day of trial, Kane informed the court that he had just received a letter from the Office of Bar Counsel notifying him of appellant’s complaint. The letter stated that Bar Counsel was opening an inquiry into Kane’s conduct, that Kane had a right to counsel of his choice, and that Kane should submit within ten days a written response to appellant’s grievances.
Appellant confirmed that he had filed a complaint with Bar Counsel several weeks before trial. He indicated, however, that he had understood Bar Counsel would not notify Kane of the complaint until after an investigation had been conducted, and that the existence of the complaint would not interfere with his trial. Appellant informed the court: “I would like to keep Mr. Kane — and continue this trial.” Kane’s position before the court was also unequivocal: “It’s my candid desire that, if humanly possible, for the trial to go forward.”
Judge Hannon responded to this development by noting that commencement of the Bar Counsel inquiry presented issues “substantially different” from those considered at the Monroe/Farrell hearing the previous day. Although he reaffirmed his earlier ruling that Kane’s pretrial conduct did not constitute ineffective assistance and did not compromise Kane’s ability to continue with the trial,
Judge Hannon next recognized that this court’s holdings in Monroe and Farrell ordinarily require a “full hearing” when a potential issue of ineffectiveness of counsel is brought to the court’s attention. Upon further consideration, however, he decided that a hearing would be purposeless in this case; he felt he had no alternative to declaring a mistrial:
[N]o matter what kind of an inquiry this [c]ourt can make at this time.... so long as the adversary proceeding is pending before the Office of Bar Counsel, there is a conflict of interest between the rights of the defendant... and the rights of Gerald Kane as an attorney.
******
[Defendant] may very well want to keep [Kane]. But, so long as those proceedings are before the Bar Counsel, [defendant] may not keep him.
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I am not going to let an adversary proceeding between your client and the United States go forward here with you representing him while there’s an adversary proceeding pending between you
and the Office of Bar Counsel. That is a clear conflict of interest that’s against all the canons of ethics that you and I have ever read; and I have no alternative, sir. I have no options in the matter; and that’s all there is to that.
Without conducting any inquiry into whether appellant wished to waive his right to conflict-free counsel, and without making any finding of fact on this matter, Judge Hannon sua sponte declared a mistrial.
We are thus confronted with the question whether appellant can be brought to trial again.
II. Fifth Amendment PROTECTION Against Double Jeopardy and the Requirement op “Manifest Necessity”
The principle that a defendant may not be tried twice for the same offense has been described as “one of the oldest ideas found in western civilization.” Bartkus v. Illinois,
For Fifth Amendment purposes, jeopardy attaches as soon as the jury is empaneled and sworn, or, in a nonjury trial, as soon as the judge begins to hear evidence. United States v. Martin Linen Supply Co.,
A. Policies Underlying Double Jeopardy Clause Protection Against a Second Prosecution
There are several reasons why this “valued right” merits constitutional protection. First, a defendant has an interest in “being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” United States v. Jorn,
Second, when a defendant is forced to abandon a trial in progress and undergo a retrial, the prospects for an acquittal may be lessened and “the risk that an innocent defendant may be convicted” may be enhanced. Arizona v. Washington,
B. Policies Justifying Declaration of a Mistrial, and Retrial, over Defense Objection
Despite these significant considerations weighing against declaration of a mistrial over defense objection, a defendant does not have an absolute right to dismissal of an indictment simply because a judge aborts the first trial without defense consent. It is “readily apparent that a mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant’s consent would be too high a price to pay for the added assurance of personal security and freedom from government harassment which such a mechanical rule would provide.” Jorn,
Justice Story first articulated in Perez the standard a trial court must apply in determining whether circumstances warrant a mistrial over defense objection:
We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is manifest necessity for the act, or the ends of public justice would otherwise be defeated.
First, the court must determine whether a trial development gives rise to a “ ‘high degree’ of necessity” to terminate the trial. Braxton,
Second, even when there is a high degree of necessity that would ordinarily justify a mistrial, the trial judge must determine whether an alternative measure — less drastic than a mistrial — can alleviate the problem so that the trial can continue to an impartial verdict. See Jorn,
C. Scope of Review of Sua Sponte Declaration of a Mistrial
We next turn to the standards which a reviewing court must apply whеn confronted by a claim of double jeopardy.
This is not to say a reviewing court is to engage in de novo consideration of the “manifest necessity” issue. A reviewing court ordinarily will accept a trial judge’s determination that there is a “high degree of necessity” for a mistrial, without a less drastic alternative, as long as that determination is reasonable. See Somerville,
In evaluating the reasonableness of a mistrial decision, the level of deference accorded the trial court’s determination will depend on “the particular problem confronting the trial judge.” Arizona,
In order to satisfy itself that sound discretion was exercised in declaring a mistrial, a reviewing court should not focus exclusively on the trial judge’s reasons or on a lack of expressed reasons. The double jeopardy clause does not mandate that a trial judge make findings of fact or set forth specific reasoning. Arizona,
In sum, the reviewing court should require that “ ‘the basis for the trial judge’s mistrial order [be] adequately disclosed by the record.’ ” Id. (quoting Arizona,
III. INTERACTION OF (A) THE FIFTH AMENDMENT PROTECTION Against Double JeopARDY, (B) The Sixth Amendment GuaRantee of Effective Assistance of Counsel, and (C) The Fifth and Sixth Amendment Right to Retain Counsel of Choice
Emphasizing appellant’s Sixth Amendment right to effective assistance of counsel, the government argues there was “manifest necessity” for a mistrial because Bar Counsel’s investigation of appellant’s complaint against Kane necessarily undermined the adequacy of appellant’s legal representation. Had the trial gone forward, says the government, a resulting conviction would have been vulnerable on appeal.
Appellant responds in three ways: first, he denies that Bar Counsel’s inquiry into the pretrial bond reduction dispute compromised Kane’s ability to provide effective representation at trial. Second, he stresses that, even if Kane were not conflict-free, Judge Hannon completely ignored — or arbitrarily rejected, without serious consideration — the less drastic alternative of permitting a knowing, intelligent, and voluntary waiver of appellant’s right to effective assistance of counsel. Finally, appellant asserts that Judge Hannon’s decision to disqualify Kane over objection necessarily infringed on his Fifth and Sixth Amendment right to retain counsel of choice. While acknowledging that the right to counsel of choice is not absolute, appellant stresses that this right is significant enough to prevent the trial court from rejecting a criminal defendant’s waiver of conflict-free counsel solely because the court itself perceives that a waiver would not be in the defendant’s best interest.
We conclude that: (1) The record supports a finding that Kane’s conflict of interest could have compromised his ability to render effective assistance to appellant during the remainder of the trial. Therefore, unless a reasonable, less drastic alternative was available, the trial court was justified in declaring a mistrial. (2) Given appellant’s and Kane’s expressed desire to go forward with trial, the court should have considered a feasible alternative to a mistrial: a knowing, intelligent, and voluntary waiver of the right to conflict-free counsel. (3) The record provides no basis for concluding that a waiver of conflict-free counsel would have been unavailing, especially in light of appellant’s constitutional right to counsel of choice.
A. Attorney Conflicts of Interest and Manifest Necessity
At the outset, we note that during the discussion before his declaration of a mistrial, Judge Hannon never expressly made a finding of “manifest necessity.” In fact, at no time did he evince a concern for the possible double jeopardy consequences of his decision; he never referred to appellant’s constitutionally protected interest in having the trial concluded before the jury already empaneled. We must, nonetheless, review the record as a whole to determine whether Bar Counsel’s investigation created the required high degree of necessity to support a mistrial.
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence.” U.S. CONST, amend. VI. In giving content to this safeguard, the Supreme Court has repeatedly emphasized that “the right to counsel is the right to the effective assistance of counsel.” E.g., McMann v. Richardson,
To protect this right to conflict-free counsel, the trial court has an affirmative “duty to inquire” into the effectiveness of counsel whenever “the possibility of a conflict” becomes apparent before or during trial. Wood,
In applying these standards here, we note that as soon as Kane learned of Bar Counsel’s intention to pursue an investigation of appellant’s complaint, he acquired a personal interest in the way he conducted appellant’s defense — an interest independent of, and in some respects in conflict with, appellant’s interest in obtaining a judgment of acquittal. For instance, fearing that appellant’s complaint to Bar Coun
Thus, the circumstances at the time of the mistrial were not conducive to the cooperative spirit and singlemindedness of purpose that ordinarily should underlie a defendant/attorney relationship. Additionally, because Judge Hannon had a firsthand opportunity to observe the relationship between appellant and Kane over the course of several months, we give substantial deference to his finding that the conflict of interest would have adversely affected Kane’s ability to render effective assistance to appellant at trial.
In short, had Judge Hannon simply ignored Bar Counsel’s investigation and allowed the trial to continue with Kane representing appellant, it is reasonable to conclude that any conviction obtained as a result would have been vulnerable if appealed on Sixth Amendment grounds. See Scott v. District of Columbia,
B. Waiver of Conflict-Free Counsel as a Less Drastic Alternative to a Mistrial
Next, we must determine whether, at the time the court declared a mistrial, there were “measures short of mistrial” that “might have sufficеd to mitigate or cure” the problems arising from Kane’s conflict of interest. Braxton,
The Supreme Court has recognized that “a defendant may waive his right to the assistance of an attorney unhindered by a conflict of interests.” Holloway,
As with the relinquishment of other important constitutional rights, waivers of conflict-free counsel must be “knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States,
Because an effective waiver of conflict-free counsel would have barred any subsequent Sixth Amendment claim based on Kane’s conflict of interest, as well as eliminated any concern that appellant was forced to accept less than adequate representation, it was a reasonable alternative to a mistrial which the court should have explored once appellant indicated a desire to continue the trial with Kane’s assistance.
Judge Hannon’s comments at the time of mistrial, however, make clear that he never gave serious consideration to the waiver alternative. Without inquiring into appellant’s competence to waive effective assistance of counsel, and without exploring the specific nature of the negative effects he believed the conflict might have on Kane’s performance during the remainder of trial, Judge Hannon concluded: “I have no alternative, sir. I have no options in the matter; and that’s all there is to that.” Judge Hannon either overlooked the need to consider the waiver alternative or erroneously assumed that such a waiver was impossible as a matter of law and accordingly dismissed this alternative out of hand.
Whichever was the case, the inference of a lack of sound discretion is even stronger here than in cases where the trial court is merely silent regarding a possible, less drastic alternative. See supra note 11. The trial court, in this case, admitted its failure to consider any alternative to a mistrial, and yet we can see from the record that at least one possible alternative indeed existed.
C. Constitutional Right to Counsel of Choice; Relationship to Waiver of Effective Assistance of Counsel
We next must address the government’s contention that appellant could not waive his right to conflict-free counsel, given the facts of this case. The government argues that the conflict of interest created by Bar Counsel’s investigation so threatened appellant’s Sixth Amendment right to effec
While the government is correct in pointing out that the trial court has a “serious and weighty responsibility” to safeguard a criminal defendant’s constitutional right to legal assistance which “comports with at least the minimum level of competence consistent with our standards of the fair administration of justice,” Monroe,
Unlike the waiver of most constitutional rights,
we are dealing not with a garden-variety case of “waiver”,... but rather with a conflict of two constitutional rights, to wit, the right of a criminal defendant to be represented by counsel of his own choice and the right of such a defendant
United States v. Curcio (Curcio II),
Many courts have recognized that the right to retain counsel of choice deserves constitutional protection. Harling v. United States,
Most courts have held that an implied right to choose one’s counsel is “part and parcel of the right to the assistance of counsel expressly guaranteed” by the Sixth Amendment. Curcio II,
A number of courts have recognized, in addition, that the right to counsel of choice is embodied within the more general Sixth Amendment due process right of a criminal defendant “to decide, within limits, the type of defense he wishes to mount.” Laura,
In Faretta, the Supreme Court held that the Sixth Amendment contains an implied constitutional right to waive the assistance of counsel and to insist upon self-representation at trial. In discerning this right, the Court first looked to the plain language and the structure of the Sixth Amendment and concluded: “[t]he Sixth Amendment dоes not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.”
The Court in Faretta was careful to stress that it in no way intended to diminish the importance of the Sixth Amendment right to counsel, id. at 832-33,
In Frendak, this court recognized that the teachings of Faretta have logical and compelling implications that reach beyond the context of the Sixth Amendment right to self-representation. Frendak required a trial court to accept a competent defendant’s knowing and intelligent waiver of the insanity defense, “holding that respect for a defendant’s freedom as a person mandates that he or she be permitted to make fundamental decisions about the course of the proceedings.”
Because the selection of an attorney is often “the most important decision a defendant makes in shaping his defense,” Laura,
The right to be represented by counsel of choice, however, is not absolute. Although a defendant’s decision “to place his liberty and possibly his life in the hands of an attorney of his choice may not be lightly tampered with,” Laura,
Second, a trial court decision denying a defendant representation by counsel of choice will be proper only if motivated by certain legitimate concerns: “[t]he only limitation that may be placed on the right to retained counsel of choice is that the client’s selection not impede or disrupt the orderly administration of justice.” Harling,
A trial cоurt, however, should not interfere with a defendant’s choice of counsel solely for the purpose of protecting the defendant’s right to effective assistance of counsel — even when effective assistance is threatened by a conflict of interest. If the right to counsel of choice conflicts with the right of an attorney of undivided loyalty, the choice as to which right shall take precedence must be left to the defendant, properly informed of that choice. Cunningham,
The record in this case provides no support for Judge Hannon’s interference with appellant’s counsel of choice. Appellant’s complaints to Bar Counsel dealt with Kane’s efforts to obtain appellant’s pretrial release, and Judge Hannon specifically found that Kane’s preparation for and performance at trial could not prevent his continued representation. See supra note 2. Nor is there evidence that Kane’s continued representation of appellant would have disrupted the trial proceeding or threatened the interests of a third party. Moreover, aside from his repeated assertions that the Bar Counsel investigation made Kane’s continued representation of appellant impossible, Judge Hannon made no findings and gave no reasoned explanation why a waiver of effective assistance was improper. Under those circumstances, we cannot conclude that the waiver alternative would have been inappropriate.
IV. SUMMARY
At the time the court declared a mistrial, appellant had developed a significant double jeopardy interest in continuing with the proceeding. Jeopardy had attached with the selection and swearing of the jury; the somewhat unusual defense strategy had been revealed in the opening argument; defense counsel had presented an elaborate cross-examination of one of the government’s complaining witnesses, resulting in substantial uncertainty that the witness could identify his assailant; and both appellant and counsel expressed a desire to go forward with trial. The trial court was required to acknowledge this significant double jeopardy interest in deciding whether to declare a mistrial, and was permitted to foreclose appellant’s “option to go to the first jury” only after “a scrupulous exercise of judicial discretion.” Jom,
So ordered.
Notes
. D.C.Code §§ 22-501, -2901 and -3204 were incorporated into the 1981 D.C.Code without change. The statutory provision providing additional penalties for committing a crime while armed has been amended, but remains at D.C. Code § 22-3202 (Supp. 1984). Section 22-2204, prohibiting unauthorized use of a vehicle, has been amended and is now codified at D.C.Code § 22-3815 (Supp.1984). Because the events at issue in this case occurred before these statutory amendments, the amendments are not relevant here.
. Judge Hannon stated he was "satisfied that the matter that was resolved yesterday did, indeed, put whatever conflict existed between Mr. Douglas and his lawyer, Mr. Kane, at rest and that the rights of Mr. Douglas would be fully protected in the trial of this case with Mr. Kane as his attorney," if it were not for the Bar Counsel matter.
. Contrary to its position at the hearing on appellant's double jeopardy motion, the government now concedes that Judge Hannon declared the mistrial sua sponte, not at appellant's request. Although Kane eventually acquiesced in the court’s decision to terminate the trial, he did not do so until after Judge Hannon had repeatedly called upon him to ask for a mistrial and had stated that a mistrial would be declared with or without his consent. Moreover, both appellant and Kane had already informed the court that they wanted to continue with the trial if at all possible. Contrast Sedgwick v. Superior Court for District of Columbia,
Unlike many cases in which the defendant is presented with a choice between requesting a mistrial or continuing with a trial tainted by error, e.g., United States v. Dinitz,424 U.S. 600 , 609,96 S.Ct. 1075 , 1080,47 L.Ed.2d 267 (1976), aрpellant here was left with no choice but a mistrial. Under these circumstances, appellant cannot be understood to have consented to a mistrial, and the rule that “a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution,” United States v. Jorn,400 U.S. 470 , 485,91 S.Ct. 547 , 557,27 L.Ed.2d 543 (1971) (plurality opinion), is inapplicable. Cf. Dinitz,424 U.S. at 611 ,96 S.Ct. at 1081 (double jeopardy clause protects against*130 judicial or prosecutorial actions "intended to provoke” a defendant’s consent to a mistrial).
. “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V.
. It is not inconceivable that a prosecutor would deliberately provoke a mistrial in order to gain the benefits and subject the defendant to the disadvantages discussed in the preceding paragraphs. Thus, a prosecutor might intentionally seek a mistrial for the purpose of removing the
. See Green v. United States,
. Decisions which approve findings of manifest necessity turn on the particular facts of the case and thus escape meaningful categorization. Somerville, 410 U.S. at ‘464,
. In Somerville, the court declared a mistrial upon discovering that the indictment was defective and that state law made it impossible to cure the defect by amendment. The Supreme Court held that, because the state law limiting the use of amendments to cure defective indictments served the "legitimate state policy” of protecting the grand jury process, the state court was not constitutionally required to alter state law and permit an amendment in order to avoid a mistrial and protect double jeopardy interests.
. The “reviewing court” standards set forth here should guide both trial and appellate courts asked to evaluate an earlier mistrial decision, in order to determine whether a second prosecution is barred on double jeopardy grounds.
. Of course, even in this type of case, “[i]f the record reveals that the trial judge has failed to exercise the 'sound discretion’ entrusted to him, the reason for ... deference by an appellate court disappears.” Arizona,
.Compare Braxton,
Reviewing courts also should give special scrutiny to mistrial decisions when there is some reason to believe the prosecutor provoked a mistrial in an effort to harass or to achieve tactical advantage over the accused. Arizona,434 U.S. at 508 ,98 S.Ct. at 831 .
.Although a trial judge’s failure to place reasons on the record is not determinative, reviewing courts frequently have found that the judge’s failure to discuss less drastic alternatives has a significant bearing on whether "sound discretion” was exercised. See Braxton,
.See Braxton,
The issue upon review ... is not whether a sound discretion was in fact exercised but whether from the record we can say that a sound discretion was exercised. Where the undisputed facts upon which [a] decision was made compel a conclusion that there was manifest necessity for a mistrial, the trial judge will be presumed to have exercised his sound discretion in reaching the only legally correct decision. [Citation omitted.] Conversely where the record compels a conclusion that a declaration of mistrial was inappropriate, the means by which the decision was reached is irrelevant. [Citation omitted.] Between these extremes, however, we must rely upon indications of record that the decision resulted from an exercise of judicial discretion. [Emphasis in original.]
. In addition to expressing a general concern that divided loyalties might compromise the zealousness of representation, courts have expressly recognized that a conflict of interest may jeopardize an accused’s right to effective counsel when, as in the present case, the defense attorney acquires an independent personal or pecuniary interest in the verdict or in the manner in which the defense case is conducted. E.g., People v. Corona,
. See Cuyler v. Sullivan,
.Although a defendant who fails to object at trial must demonstrate that "a conflict of interest actually affected the adequacy of his representation” in order to succeed with an ineffective assistance claim on appeal, he or she need not go so far as to show that the conflict prejudiced the outcome of the case. Cuyler,
. The American Bar Association Standards for Criminal Justice require that a defense attorney make all tactical and stragegic decisions "after consultation with the client." Standard 4-5.2(b) (2d ed. 1979). If there is disagreement between the lawyer and client on such matters, the lawyer is instructed to keep a record of “the lawyer’s advice and reasons, and the conclusions reached.” Id. at 4-5.2(c).
. See also American Bar Association Standards for Criminal Justice, Standard 4-3.5 (requiring criminal defense counsel with a conflict of interest to disclose his or her independent interest to the defendant "[a]t the earliest feasible opportunity,” but not requiring withdrawal).
In arguing that disqualification was necessary in this case, the government also cites DR 5-105(A) and DR 4-101(C)(4). DR 5-105(A), which restricts a conflict-burdened attorney's ability to accept employment with the consent of his clients, applies only to situations in which the conflict arises from representation of two or mоre clients who have adverse interests. This rule is therefore irrelevant to the present case. DR 4-101(C)(4) permits an attorney to reveal client confidences in order to defend against accusations of wrongful conduct. While this rule may be useful to Kane if the Bar Counsel should decide to pursue appellant’s complaint further, and its implications should be explained to appellant before a waiver of Kane's conflict is accepted, it in no way suggests that disqualification was necessary here.
We note that the Code of Professional Responsibility will be relevant to a trial court's determination of whether an attorney should be disqualified in criminal, as well as civil, cases. E.g., United States v. Agosto,675 F.2d 965 , 969 (8th Cir.1982). In criminal cases, however, the court’s decision must focus on, and be guided by, the defendant’s Sixth Amendment rights: both the right to effective assistance and the right to counsel of choice. See Lewis v. United States,430 A.2d 528 , 532 (D.C.) (per curiam) (Newman, C.J., dissenting), cert. denied,454 U.S. 1081 ,102 S.Ct. 635 ,70 L.Ed.2d 615 (1981); Agosto,675 F.2d at 969 ; United States v. Curcio (Curcio I),680 F.2d 881 , 887 n. 3 (2d Cir.1982); United States v. Armedo-Sarmiento,524 F.2d 591 , 592-93 (2d Cir.1975); see also In re Special Investigation No. 231,295 Md. 366 , 374,455 A.2d 442 , 446 (1983) (“The Code of Professional Responsibility is established for the guidance of the legal profession and for the protection of the public. It is not intended, however, to be a tool which a prosecutor may convert into a sword for the purpose of thwarting one of the most precious of our constitutional rights, that of being represented by counsel of one's choice.’’).
. Some courts have recommended that the defendant be given an opportunity to confer with independent, outside counsel before such a waiver is accepted by the court. See, e.g., Cur-cio I,
Additionally, the trial court must take whatever steps are necessary to ensure that the defendant is competent to appreciate the importance of the particular right surrendered and the gravity of the waiver deсision. See Westbrook v. Arizona,384 U.S. 150 ,86 S.Ct. 1320 ,16 L.Ed.2d 429 (1966) (per curiam); Frendak v. United States,408 A.2d 364 , 379-80 (D.C.1979).
. There may be occasions when the trial court perceives a client-attorney conflict, indicates an inclination to declare a mistrial for that reason, and — unlike the present case — does not receive resistance from client or attorney. Questions may arise as to whether there is consent to the mistrial, or whether informed consent is impossible absent a trial court inquiry into whether the defendant wishes a mistrial or wishes to proceed waiving conflict-free counsel. We need not address these questions here.
. There may have been another reasonable alternative to a mistrial. Appellant’s complaint to Bar Counsel about Kane, facilitated by Judge Scott, pertained to pretrial representation. However, both Judge Scott and Judge Hannon concluded, after inquiries, that Kane did not render ineffective assistance before trial. Therefore, while properly recognizing that his own pretrial ruling did not cure the conflict problem arising from Bar Counsel’s inquiry, Judge Hannon nonetheless could have inquired — before declaring a mistrial — whether appellant still wished to pursue his complaint to Bar Counsel. If appellant were to have said no, the court could have summoned Bar Counsel to determine whether, under the circumstances, the matter could be closed without delaying the trial. If Bar Counsel were to have agreed, any possible necessity for a mistrial could have been obviated.
Rather than premise this opinion on the possibility that appellant would have withdrawn his complaint against Kane, we have proceeded with the question presented: whether appellant had the right to waive conflict-free counsel at trial while continuing to pursue his grievance about his attorney’s pretrial conduct. On this record, it appears that appellant was willing to proceed with a waiver; there is no evidence that he wished to drop his complaint to Bar Counsel, since the issue was not explored.
. In addition to arguing that the potential dangers connected with Kane's conflict of interest were too substantial to permit a waiver, the government suggested at oral argument that Judge Hannon may have concluded that appellant was not competent to waive his right to conflict-free counsel. There is little in the record to support this speculation and, in the absence of any indication by the trial court that appellant’s competency was a concern, we refuse to conclude that a waiver was properly rejected on that ground. The government also has argued that Kane had discussions with Judge Hannon off the record before a mistrial was declared, and that during these discussions Kane indicated reservations about continuing his representation of appellant. We need note only that the contents of these off-the-record to counsel whose effectiveness is unimpaired by divided loyalty. discussions are not before this court and that Kane unequivocally expressed in open court his desire to continue with the trial.
. Although most constitutional rights may be waived, this does not mean that a person has a right to insist that a court accept such a waiver or that a court accord treatment other than that consistent with the exercise of the right. See, e.g., Singer v. United States,
. In addition to protecting a criminal defendant’s right to select and hire counsel of choice, this right protects an indigent defendant's right not to have appointed counsel arbitrarily removed “once an attоrney is serving under a valid appointment by the court and an attorney-client relationship has been established." Harling,
. See also Brooks v. Tennessee,
. Cf. Michigan v. Mosley,
. See Laura,
We would reject reality if we were to suggest that lawyers are a homogeneous group. Attorneys are not fungible, as are eggs, apples and oranges. Attorneys may differ as to their trial strategy, their oratory style, or the importance they give to particular legal issues. These differences, all within the range of effective and competent advocacy, may be important in the development of a defense. It is generally the defendant’s right to make a choice from the available counsel in the development of his defense. Given this reality, a defendant's decision to select a particular attorney becomes critical to the type of defense he will make and thus falls within the ambit of the sixth amendment.
. Because of the context in which the question arises in this case, we express no view as to the degree of prejudice that must be shown, if any, when a defendant first raises the issue of an erroneous denial of the right to counsel of choice in a post-conviction appeal.
. E.g., United States v. Wilhelm,
. See, e.g., Wright v. United States,
. E.g., Lewis v. United States,
. E.g., Agosto,
In addition to the reasons for permitting disqualification of chosen counsel discussed in the text, it has been consistently held that a trial court enjoys wide latitude in appointing counsel for indigent defendants. E.g., United States v. Davis,604 F.2d 474 , 478-79 (7th Cir. 1979); see generally Annot.,66 A.L.R.3d 996 (1975). Once a valid appointment is made and an attorney-client relationship has been established, however, an indigent defendant has precisely the same right to insist upon continued representation as does a defendant who retains counsel. Harling,387 A.2d at 1105 .
. We recognize that the Third Circuit has adopted an approach to this prоblem giving the trial court greater discretion — and, consequently, the defendant less discretion — in deciding which of these two rights will predominate when a defendant chooses to be represented by counsel who has a conflict of interest. See United States v. Flanagan,
It is also worth noting that the right to effective assistance and the right to counsel of choice will ordinarily complement each other. In most cases, the defendant will want to have effective assistance of counsel and will gladly acquiesce in the trial court’s efforts to replace an incompetent attorney. In those relatively few cases where a defendant has particular reasons for wanting to be represented by counsel with a conflict of interest, the "respect for the integrity of the court” which concerned the Third Circuit in Flanagan and Dolan will be adequately preserved by the trial court’s insistence that the defendant’s waiver be fully informed and voluntary.
.See Curdo II,
. Basically, our dissenting colleague would sustain Judge Hannon’s sua sponte declaration of a mistrial, on the ground of manifest necessity, because of a belief that this court should grant greater deference to trial court discretion than we, in the majority, conclude the Constitution permits on the facts of this case. We believe a response is in order.
In the first place, our colleague incorrectly premises his dissent on a perception that the trial court did not altogether act sua sponte in declaring the mistrial — a perception that the government itself acknowledges is not true. See supra note 3. Put another way, our colleague apparently believes that this case falls somewhere in between a defense request for a mistrial and manifest necessity for a mistrial over defense objection, with authority in the trial court to declare a mistrial under such circumstances. The dissent cites no legal authority recognizing such a hybrid situation, and in any event there is no basis in the facts for such a perception. Even if attorney Kane, in disclosing his conflict to the court in chambers before the second day of trial, had asked to withdraw as counsel, but see supra note 22, the fact remains — as the dissent acknowledges — that appellant thereafter asked unequivocally, in open court, to continue the trial with Kane as his attorney, and Kane unquestionably acceded to that request. The dissent is plainly wrong to imply that appellant and Kane eventually backed away from that position. In short, this is not in any respect a case of defense acquiescence in a mistrial. On this record, the only justification for a mistrial would have to be manifest necessity over defense objection. As we elaborate in our opinion, however, there was no manifest necessity absent trial court consideration of appellant’s right to waive conflict-free counsel.
Second, the dissent says that, in any evеnt, appellant could not have waived conflict-free counsel on the facts here. We disagree. We have elaborated why the trial court was obliged to explore that option under the circumstances*146 presented. We simply add that the dissent, in discounting the waiver option, relies on cases that are inapposite and/or do not address the constitutional considerations that should inform the analysis. See supra notes 31 and 33, discussing Lewis v. United States,430 A.2d 528 (D.C.), cert. denied,454 U.S. 1081 ,102 S.Ct. 635 ,70 L.Ed.2d 615 (1981); United States v. Flanagan,679 F.2d 1072 (3d Cir.1982), rev’d on other grounds,465 U.S. 259 ,104 S.Ct. 1051 ,79 L.Ed.2d 288 (1984); United States v. Dolan,570 F.2d 1177 , 1178 (3d Cir.1978).
Finally, the dissent pays lip service to a defendant's double jeopardy interests. See post at 148 n. 3. To prevent a mistrial, appellant was not required, as the dissent implies, to prove that the policy reasons underlying this Fifth Amendment right were, in any or all respects, specifically applicable to his case. This constitutional right exists to protect one against the risk of losing a favorably disposed jury, of lessening prospects for acquittal at a second trial, and of increasing emotional and financial burdens. See supra Part II.A. These are risks for the defendant, not for the trial court (or this court), to evaluate. The dissent unfairly minimizes the significance of appellant’s expressed desire to continue with the trial. Even though “the trial here had proceeded only through opening statements and the testimony of one witness,” post at 148 n. 3, we have explained why appellant may have perceived that events during the first full day of trial made it desirable for him to waive conflict-free counsel and proceed to verdict. See supra pages 128, 145. By asking to go forward with the trial, appellant preserved the right to have the trial court consider that option.
In sum, the dissent, in emphasizing trial court discretion, does not focus on the critical fact that appellant and Kane unequivocally announced their desire to continue with the trial. Nor does it come to grips with the central legal issues: appellant's double jeopardy interests and his constitutional right to counsеl of choice.
Dissenting Opinion
dissenting:
To use his words, defense counsel found himself “in an adversary relationship with Mr. Douglas (his client) and ... also in an adversary relationship due to the gravamen of the complaint against [him] by Mrs. Douglas (his client’s mother) because she, in fact, paid the fee.” Counsel added “it seems to me I’d also be in a conflict of interest.” Counsel made those statements during a hearing held on the second day of what was to have been a lengthy trial. The hearing was held for the purpose of determining how to resolve the problems that defense counsel had brought urgently to the attention of the court upon his learning that his client had lodged a written complaint against him with Bar Counsel over the manner in which counsel was handling the very case on trial. The trial judge, appreciating that defendant’s complaint against retained counsel had burdened counsel with a serious conflict of interest, declared a mistrial. I think he acted within his discretion in doing so. Therefore I dissent.
A few observations about the facts are in order. The problem that led to the mistrial was not raised, sua sponte, by the trial judge. Instead, it was raised by defense counsel, Mr. Kane, who requested a meeting with the judge in his chambers before the commencement of the second day of trial. The Assistant United States Attorney was invited to attend, and did so. While no court reporter was present, the unchallenged statement of the prosecutor a short time later in open court was that defense counsel had moved in chambers to withdraw from the case. After a brief discussion, the judge and counsel entered the courtroom and, in the presence of the defendant, the judge stated the problem for the record. After doing so, the judge said that he had a “pretty strong notion myself regarding what’s required,” but asked defense counsel to address the matter. Counsel said “I wouldn’t want to have a hearing per se; but I would like to have my client make a stаtement exactly what his position is vis a vis myself, both my client and his mother.”
Defendant discussed the background of the matter and said that he “would like to keep Mr. Kane” as defense counsel, “and continue this trial.” The trial judge replied that defendant could not keep Mr. Kane so long as the matter was pending before Bar Counsel. After further colloquy, Mr. Kane stated his position as follows: “As the court pointed out, I’m involved in an adversary proceeding with my client. At the same time my client indicates he wants me
First of all, I’d like to thank the Court very much for your kindness in this matter. I deeply appreciate it. I would say, also, my position in this case is such that being in an adversary relationship with both my client and the prosecutorial forces as the result of representing my client, I find it difficult to make a motion because I wonder if, in fact, I have standing to make a motion on behalf of my client. But, if I do have standing to make a motion on behalf of my client, I do so move to have this matter resolved.
Although both Mr. Kane and appellant had earlier expressed a preference for proceeding with trial, neither voiced an objection to the grant of mistrial.
The foregoing facts serve to illustrate the roles played by defense counsel and appellant in the discussions leading up to the mistrial. They show especially the concern defense counsel felt over his status and his ambivаlence about the practicality and propriety of his continuing with the trial. With respect to appellant, it is worth adding the specific language of the complaints that he made against his attorney. These complaints were made in writing by appellant less than a month before the mistrial was declared:
(1) My lawyer has failed to contact me while I have been incarcerated. He only manages to see me on the day of my court appearances.
(2) My lawyer did not seem to be prepared for my bond reduction hearing.
(3) My lawyer calls my mother to tell her about what he has done and when my mother calls the court she finds out that the lawyer’s statements are in fact, not true. This has been happening constantly during my six-month incarceration.
(4) My lawyer failed to explain to the judge why the army was taking me away from the court, as a result the court gave me a B.R.A. which increased my bond. The judge was very angry with my lawyer and the result was a much larger bond, which I cannot pay.
(5) Had my lawyer been doing his job with the least bit of competence, I would have been to trial and out of jail, and as his client this is a gross injustice to me. What has he done? I would like to see the work, if he has not prepared this case properly I would like a portion of his fee returned to me; it is only fair since I am paying for services rendered and receiving nothing.
The letter of Bar Counsel that forwarded the complaints to defense counsel instructed counsel that he was required to submit in duplicate a statement setting forth his position within 10 days of the date of the letter, and advising him that he could be represented by counsel of his choice in the matter.
It is also worth referring to the role of the government in bringing about the mistrial. There was none. Indeed, the government had brought Mr. Douglas be
The majority opinion is especially critical of the trial judge for having failed to consider, as an alternative to mistrial, giving the defendant an opportunity to waive his right to independent counsel and to go forward with Mr. Kane despite their conflict of interest and adversary relationship.
I disagree entirely that we can say fairly that the trial judge failed to exercise discretion in his determination of the necessity of a mistrial simply because he was quick to size up the stark nature of counsel’s actual conflict of interest and acted decisively after hearing from counsel in chambers and
In my view, the gravity of the conflict of interest and its subtlety warranted the trial judge’s action. While it might have been difficult to explain effectively to a defendant, it was undoubtedly obvious at once to the trial judge that a conflict of the type involved here would alter the relationship between counsel and client and could lead in varied and unpredictable ways to changes in the manner in which defense counsel would conduct the trial. It could affect the openness of communications between counsel and client. It could lead counsel to try to make a record which would protect counsel rather than vindicate his client. Even if his client would have withdrawn his charges, counsel could well have anticipated that a client who had made and withdrawn such charges before would make them again.
The majority states that “[i]f the right to counsel of choice conflicts with the right to an attorney of undivided loyalty, the choice as to which right shall take precedence must be left to the defendant, properly informed of that choice.” [majority, supra, at 144]
I disagree. This court has previously held that a “trial court need not accept the defendant’s attempt to waive his right to a counsel who is frеe of ethical violations.” Lewis v. United States,
Similarly in United States v. Dolan,
*150 It does not follow, however, that because defendants may waive the right to separate representation free from potential .conflicts, they have an absolute right, constitutional or otherwise, to have such waivers accepted by a court. A truly knowing and intelligent waiver accepted by the court will insulate a conviction from later attack. But the perspective of a trial court judge need not be limited to a concern not to have a conviction overturned.
Id. at 1076 (footnote omitted). Referring to its earlier opinion in Dolan, supra, the court added: “In addition to the trial judge’s interest in being free from post-conviction attacks, we mentioned the court’s concerns about breaches of professional ethics and about respeсt for the integrity of the court.” Id. at 1076 (footnote omitted). See also United States v. Helton,
The above holdings do not deal with double jeopardy claims. Nevertheless, their recognition that a trial judge may reject proffered waivers of conflicts of interest is at odds with the majority’s conclusion that acceptance of an intelligent and informed waiver by appellant would have been obligatory. The trial judge in this case was faced not with a potential conflict of interest but with a serious actual conflict of interest. In my view, if appellant had offered to waive the conflict after further hearing, the trial judge would not have been required to accept it. Rather, he acted within his discretion in concluding that the circumstances necessitated mistrial. See United States v. Perez and Wade v. Hunter, supra, note l.
The sum of the situation before us is this. The people are being deprived of their day in court on the charges against appellant. They are being thus deprived first by reason of appellant’s abscondance from his first trial and secondly because the differences between appellant and his counsel at the time of the second trial led the trial judge to declare the mistrial that the majority deems erroneous. I respectfully dissent. The precedents do not call for what is, in an almost literal sense, a miscarriage of justice.
. The court did not include completion of the trial as one of defendant’s options, and for that reason the government's brief concedes that the court’s action in declaring a mistrial should be deemed to have been taken sua sponte. That concession does not preclude us from considering in our “manifest necessity" analysis that defense counsel initiated the discussion, moved in chambers to withdraw and acknowledged both his adversary relationship with his client and his conflict of interest. See United States v. Perez,
. Where mistrial is declared because of the conduct of the government, for example, in not being able to go forward with its case, we apply strict scrutiny to the decision to declare a mistrial. Arizona v. Washington,
. The majority also invokes three policy reasons to support reversal. On analysis, they furnish little support for that result. The first is the defendant’s right to conclude the trial before a jury he believes to be favorably disposed toward him. Neither defendant nor his counsel expressed the view that the jury was so disposed. The majority also indicates that this interest intensifies as the trial proceeds. But the trial here had proceeded only through opening statements and the testimony of one witness.
The second policy reason stated is that prospects for acquittal may be lessened upon retrial. There is no real indication in the record that the government would benefit any more than the defense from having heard one another’s opening statements and examining the first witness. The defense gained discovery of that witness’ testimony. The government may or may not have profited by the reference to a frame up in the defense counsel’s opening statement. It is, in any event, entirely clear that the government did not seek to provoke a mistrial to gain any such advantage.
The third policy consideration is derived from the increased financial and emotional burden upon defendant, and the prolonging of the period of his stigmatization as an accused. In this case, the defendant caused considerable prolongation of his status as an accused by fleeing his first trial. He demonstrated little interest in lifting any emotional burden the charges imposed on him. His flight resulted directly in the financial burden imposed by his incarceration.
.The majority opinion states that at no time did the trial judge evince a concern for the double jeopardy consequences of a mistrial, (pp. 135— 145) The opinion also states that the trial judge never referred to the appellant’s constitutionally protected interest in having the trial concluded before the jury that was already impaneled. Those statements are unwarranted for two reasons. The first is that we can safely assume that the trial judge was well aware of these elementary concepts. Secondly, in his colloquy with counsel and the defendant before ordering the mistrial, the judge adverted to the fact that the jury had been sworn, and the trial had begun.
. For example, in the listing of conflict situations set forth in United States v. Hurt,
. The Supreme Court reversed the Third Circuit’s decision in Flanagan on the ground that the appellate court lacked jurisdiction over a pretrial disqualification of defense counsel in a criminal prosecution because such an appeal is not within the narrow collateral order exception.
. I think it would be requiring too much of the trial judge to ask that he would have thought of and pursued whatever possibility there was that Bar Counsel might have been in a position to come to the courthouse and, upon appellant’s withdrawal of his complaint, close the proceedings against defense counsel. It is by no means certain that Bar Counsel would have taken such action, or indeed would have been available promptly to attend at court to do so. [majority, supra, at 139 n. 21]