*1 HOLLOWAY ARKANSAS et al. Argued
No. 76-5856. April 3, November 197 7 Decided *2 Brennan, J., opinion Court, in which C. delivered Burger, J., JJ., Powell, joined. filed and Stevens, White, Marshall, Stewart, JJ., joined, Rehnquist, and dissenting opinion, in which Blacicmun post, p. 491. for and filed a brief argued Hall the cause
Harold L. petitioners. Purvis, Attorney Arkansas, General H. Assistant
Joseph him on With respondent. vice for pro the cause hac argued Robert Clinton, Attorney General, Bill brief were Newcomb, Attorney Assistant General.* Alston Burger opinion delivered Chief Justice Mr. Court. for timely motions made trial, codefendants at
Petitioners, representations based on the appointment counsel, infor- confidential because of that, counsel appointed of their confronted he was codefendants, from the received mation could interests and conflicting representing with the risk of Legal Aid Eisenberg for the National B. filed brief *Howard Assn, urging reversal. as amicus curiae Defender Public Rogers Colorado State for Office of the filed a brief Rollie R. Defender as amicus curiae.
not, provide therefore, effective assistance each We client. granted certiorari to decide petitioners whether were deprived of the effective assistance of denial those motions. 965 (1977). U. S.
Early in the morning of June 1, 1975, three men entered Rock, Little Ark., restaurant and robbed and terrorized five employees of the During restaurant. the course of the one robbery, of the two employees female raped once; the other, twice. The ensuing police investigation led to the arrests of the petitioners. *3 July
On 29, 1975, the three charged defendants were each with one count of robbery and rape. two counts of On August 5, the trial court appointed public Harold a Hall, defender, to represent all three defendants. Petitioners were arraigned then pleaded and guilty. Two their days later, were cases set for a consolidated to' Septem- commence ber 4. August
On Hall appoint moved the court to separate counsel each petitioner because “the defendants ha[d] stated to him that there possibility is a of conflict of interest of each their cases ...” hearing After conducting this motion, petitioners’ and on motions for the severance, court appoint declined to separate counsel.1
Before trial, judge the same presided peti- who later tioners’ trial conducted a Jackson hearing2 v. Denno to deter- admissibility mine the of a confession purportedly made petitioner Campbell to police two of his officers at the time arrest. The essence the Campbell confession was had entered the restaurant with his had codefendants and remained, armed a rifle, flight with one stairs above site transcript hearing No of this record, included in the we are not and hearing informed whether was transcribed. See Jackson Denno, 378 U. S. lookout), serving aas rapes (apparently robbery and of the ruled judge The trial rapes. in the part not taken but had references ordered deletion but admissible, confession arresting offi- trial one codefendants. At Campbell’s Campbell’s confession. cers testified Hall empaneled, jury was 4, before the September On “on appointment motion for renewed testify and, the defendants that one two grounds them to cross-examine then I not be able will they do, if from them.” information confidential received because why wouldn’t,” you “I know responded, court don’t The motion.3 again denied the The case. present its proceeded then prosecution Holloway petitioners identified restaurant
manager of the employee Another male robbers. Campbell as two of the A identified third petitioner Welch. Holloway and identified rape identified single Holloway. The victim only but was robbers unable Welch as two of the Holloway and of the double raped The victim who her. identify the man unable rapist. first She was Holloway as the rape identified Campbell as one identify rapist the second but identified robbers. had rested day prosecution after trial, the second On *4 that, against recommenda- the court his case, its Hall advised then testify. to He defendants had decided all three tion, stated: I I appointed, previously had
“Now, since have been Court to appoint motion asking filed a possible of a conflict attorney each defendant because coming probably This conflict will be now of interest. to up testify. each them wants since one judge’s why you probable response, “I It don’t know statement, wouldn’t,” “I be referred back to counsel’s will not able to response read, judge’s . . . .” If the is so later them cross-examine infra, directly contradictory. statements, at 479 and .are see “THE COURT: That’s all let right; them testify. no There is conflict of Every interest. time I try more person than one in this court one each it on blames other one. I
“MR. HALL: have talked to each one these I defendants, and have talked them individually, collectively.
“THE COURT: Now talk to them collectively.” The court then indicated satisfaction petitioner that each understood the nature consequences and right testify on his own behalf, whereupon Hall observed:
“I position am in a now I where am more or less any muzzled as to cross-examination.
“THE COURT: You no right have to cross-examine your own witness.
“MR. HALL: Or to examine them.
“THE COURT: You have a right them, examine but no right have prose- cross-examine them. The cuting attorney does that.
“MR. If HALL: one the stand, takes '[defendant] somebody protect needs to the other two’s interest while that one is I testifying, do I can’t that since talked to each one individually.
“THE you COURT: Well, have talked to I them, assume, individually collectively, They all say too. they testify. I want think perfectly alright it’s [sic] for them to testify if they to, want or not. It’s their business.
“Each defendant he said wants to testify, and there will no cross-examination just these witnesses, direct by you. examination Your
“MR. HALL: Honor, can’t *5 put even them on direct I examination because if ask them— just put them You can (Interposing)
“THE COURT: have advised you the Court that tell and on the stand you testify; then they want and rights of their them to. he wants what and relate ahead go toman tell to do.” need you all That’s testifying behalf, own the stand Holloway took was robbery he the time of the time described during given previously His brother had home. his brother’s stand, the witness testimony. Welch took When similar “I Holloway, that him, had as he advised Hall record shows incriminate tend to any might questions you cannot ask I thing can Now, only you .... the three any one you what jury gentlemen ladies and tell these say is he did responded that . . .” Welch case . this know about anything. jury for the ready of speech kind any not “have denied, When Welch questioned.” I going I was thought night was at the restaurant stand, that he the witness asking: Holloway interrupted, robbery, objection? make Honor, we allowed “Your are take care Your counsel will No, sir. “THE COURT: objections. any trying I am Honor, HALL: Your that what “MR. I them. cross-examine say. can’t you Mr. to, proceed You like tell “THE COURT: your own to cross-examine right no You have Hall. anyhow.” witnesses testimony, denying direct unguided with his proceeded
Welch he at his stating in the crime any involvement Campbell testi- gave it occurred. time home at .similar court and counsel were that both the trial defense reveals The record assisting presentation obligation in the to avoid counsel’s alert defense least, testimony, or, to believe was false had reason of what counsel to him earlier contrary given to the version facts testimony Relating to the Administra Project on Standards Cf. ABA confidence. (c), p. 7.7 Justice, Defense Function § tion of Criminal *6 mony when he took the stand. He also denied making any confession to the arresting officers. jury rejected presented by versions of events
three defendants and the alibi guilty returned witness, verdicts on all appeal counts. On Supreme to the Arkansas petitioners Court, raised representation the claim that their by single appointed attorney, over their objection, violated federal guarantees constitutional of effective assistance of counsel. In resolving this issue, the court relied on it what characterized as the rule: majority record must show some
“[T]he material basis an alleged conflict interest, before occurs reversible error representation in single co-defendants.” 260 Ark. 2d 435, S. W. Turning to the record in the case, the court observed that Hall had failed to outline the trial court both the of the nature confidential information received his clients and the manner in knowledge which of that con- information created flicting loyalties. petitioners Because had incrim- none inated codefendants while court testifying, the concluded that the record demonstrated no actual conflict of interests prejudice the petitioners, and therefore affirmed.
II States, 35 years More than ago, Glasser v. United 60 (1942), attorney U. this Court held requiring S. represent two were codefendants whose interests in conflict the District Court denied had one defendants Sixth right to the Amendment effective assistance counsel. joint that case the Government tried codefendants in a five conspiracy trial for Two of defraud United States. Kretske, defendants, represented initially by Glasser and were day however, counsel. On the second Kretske trial, attorney became dissatisfied with his and dismissed him. The District if Judge thereupon attorney, asked Glasser’s Stewart, responded by noting Stewart Kretske. represent he would also of both representation of interests: His conflict possible link two men jury to might lead Kretske Glasser and *7 objected that he to made known Glasser also together. Stewart, appointed Court nevertheless District proposal. represent counsel, to retained continued as Glasser’s who men Kretske. Both were convicted. representa- this Court Stewart’s
Glasser contended of a conflict between tion trial was ineffective because at “the of his This held ‘assist- interests two clients. Court con- Amendment guaranteed by of counsel’ the Sixth ance unim- be untrammeled and templates that such assistance by lawyer that one paired requiring a court order should Id., 70. simultaneously represent conflicting interests.” The record disclosed that Stewart failed to cross-examine linked with the testimony witness whose Glasser Government object conspiracy arguably and failed to to the admission of by evidence. This was viewed the Court inadmissible failure protect interests, of Stewart’s desire Kretske’s as a result struggle thus “indicative and was Stewart’s to serve two Id., identifying . . .” 75. After this conflict of . masters inquire Court declined whether interests, prejudice it flowing from was harmless and instead ordered Glasser’s reversed. Kretske’s conviction, however,
conviction affirmed. applicable principle emerges
One here Glasser without permitting single ambiguity. Requiring attorney represent joint representa- often referred codefendants, se per guarantees violative of constitutional is not tion, principle recognizes of counsel. This effective assistance multiple appropriately repre- defendants can some cases attorney; certain indeed, cases, one some sented advan- joint representation. might accrue from Mr. Justice tages representation is a means of insur- view: Frankfurter’s “Joint A recrimination. common against reciprocal defense often ing gives strength against a common attack.” Glasser v. United States, supra, at 92 (dissenting opinion).5
Since Glasser was
courts have taken
decided, however, the
divergent approaches
commonly
to two issues
raised in chal
lenges
joint representation where —unlike this case—trial
counsel did nothing
actuality
to advise the
trial court
or possibility of a
between his
conflict
several clients’ interests.
appellate
First,
strong
showing
courts have differed
how
of conflict
reviewing
must be
or how
made,
court
certain
must be that the asserted conflict existed,
it
before will conclude
that the
deprived
defendants were
of their
to the effective
right
assistance of
Compare
counsel.
United States ex
v.
rel. Hart
Davenport,
States,
478 F.
(CA3
2d 203
1973); Lollar v. United
S. App.
U.
D. C. 200,
5By inquiring waiver, in Glasser whether had been a the Court there right also confirmed that a defendant waive his to the assistance attorney by of S., an at 70. unhindered conflict of interests. 315 U. case, however, petitioners this Arkansas not contend that waived that does right. Project Relating See ABA of on Standards to the Administration Justice, Judge (b), p. (1974): Criminal Function of the Trial 3.4§ jointly charged, or “Whenever or more defendants who have been two case, two issues this however. resolve these need not We August of 13 and by pretrial motions counsel, Here the trial made representations, accompanying September by probable on the explicitly focused court, officer of the as an either then failed judge interests. The risk of conflict of to ascertain adequate steps or to take separate counsel appoint counsel.7 remote to the risk too warrant was whether representations of failure, in the face the We the hold jury the again before before trial and by made counsel weeks guarantee deprived petitioners empaneled, of counsel.” “assistance reasoning by supported the Court’s
This conclusion Glasser: duty seeing
“Upon judge the trial rests rights for the essential is conducted with solicitude protect should . . The trial court . the accused. . of counsel. . accused to have the assistance . right duty the court see equal importance with “Of duty to of counsel is its has the assistance that an accused attorney, represented consolidated, are the same been cases have whose inquire may jeopardize potential conflicts which judge into the trial should fidelity of his counsel.” right each defendant to record, suggest, that and the State does not in the There is no indication response August 13 disclosed infor hearing to the motion of held *9 insubstantiality September representa of Hall’s 4 demonstrating the mation newly nearly ascertained, on the codefendants’ based, as can tions — So testify respecting probable conflict of interests. a to formed decision — any record, judge opportunity off from this the trial cut can far as we tell representations. conclusory do more make to than of defense Court, represented Hall that the trial court During in this argument oral representations his as to a request the basis for him to disclose did not Arg. Tr. of Oral 14r-15. conflict of interests. See sig- this case determine constitutional is no occasion There response petitioners’ nificance, any, trial court’s midtrial if objections.
485 refrain from embarrassing counsel in the of defense an by insisting, accused or indeed, even suggesting, counsel undertake to concurrently represent interests which might diverge client, those his when first the possibility divergence brought home to the court.” S., 315 U. at 71, (emphasis 76 added). reasoning This has applicability direct in this case where the “possibility [petitioners’] inconsistent interests” was “brought by home the court” formal objections, motions, and defense representations. counsel’s It is arguable, perhaps, that defense counsel might presented have requests for appointment separate counsel more vigorously and greater detail. As to the former, however, the trial court’s responses hardly pursuit encouraged separate-counsel and claim; as to for presenting the basis that claim more detail, defense counsel was confronted with of violating, a risk duty more disclosure, to his confidentiality clients.
Additionally,
Glosser,
since the decision in
most courts
held
attorney’s
request
appoint
ment of
counsel,
representations
based on his
officer
as an
of the court
regarding
interests,
a conflict
granted.
g.,
Smith,
should be
See,
Supp.
e.
Shuttle v.
296 F.
(Vt. 1969);
Davis,
State
Ariz.
The State transferring trial court would be tantamount tions to the to rule on authority judge of the trial to defense appoint separate coun- or conflict and to the existence risk the ultimate decision those mat- view, In the sel. State’s unscrupulous judge; the trial otherwise must remain with ters “authority,” presumably abuse their attorneys might defense delay orderly conduct or obstruction purposes for the trial.10 avoiding in such abuses. has an obvious interest
The State interest. an holding does not undermine When But our dilatory pur- for counsel is made untimely motion for ability impair court’s holding not the trial our does poses, Relating Admin in to the Bar Association Standards The American its Justice, 3.5(b), p. 123 The Defense Function of Criminal § istration (1974) cautions: applica- preliminary hearings or
“Except matters such initial for lawyers lawyer practice are in bail, a who. associated should tions for same criminal one defendant case undertake to defend more than duty duty to. with the to. another. one of the defendants conflict if multiple representing defendants is potential for conflict of interest ordinarily lawyer for more than grave that should decline act one so except when, in unusual after careful of several co-defendants situations likely develop no to. investigation, it is clear that conflict when multiple give representation.” defendants consent such several informed representation regarding a conflict clients’ inter When considered court, given weight it com an officer of should ests comes from misrepresentation. grave penalties risked mensurate with undoubtedly they adversary present; are are inherent in the risks Such power attorneys system. But have abundant deal with courts who misrepresent facts.
487 deal with counsel who resort to such tactics. Cf. United Dardi, States v. 330 2d (CA2), F. 316 denied, cert. 379 U. S. 845 (1964); People Kroeger, 236, v. 61 Cal. 2d 390 2d 369 P. (1964). Nor holding does our trial preclude court exploring adequacy of the basis of repre defense counsel’s sentations regarding conflict of improperly interests without requiring disclosure of the confidential communications of the Davis, client.11 State supra. See v. In this case trial simply adequate court failed to take steps response repeated representations motions, objections, and to it, made prospect no of dilatory practices present justify failure.
Ill issue remains whether error peti committed at requires tioners’ trial reversal of their It has convictions. generally requires been assumed that Glasser reversal, even showing specific prejudice absence to the complain ing codefendant, improperly permits whenever a court requires joint representation. Erickson, Austin See v. 477 F. (CA8 1973); Gougis, 2d 620 United States v. 374 2d 758 F. State, Hall 63 2d 2d 352 (CA7 1967); 304, v. Wis. 217 W.N. ex Whitling Russell, Commonwealth (1974); rel. 406 Pa. (1962); 176 2d 641 45, Note, A. Criminal Codefendants Counsel, for Separate Sixth Amendment: The Case 58 (1969). L. 387 courts J. Some and commentators Geo. however, appellate courts should not reverse argued, cases rather automatically such but should affirm unless prejudice. United defendant can demonstrate States See require inquiry an power not into the extent of a This case does court’s attorney compel disclose confidential communications that he damaging to his client. Cf. ABA Code concludes would Professional (2) (1969). (C) compelled Such Responsibility, HR 4AL01 disclosure creates especially prejudice, when the significant unfair disclosure is to a risks impose upon attorney’s may be called later sentences on the judge who clients. cert, U. Woods, (CA6 denied, F. 2d 1976), S. Defend- Representation Multiple Criminal
(1977); Geer, Responsibili- Conflicts of Interest and the Professional ants: 62 Minn. L. Rev. 122-125 Attorney, ties the Defense argument aspects of the Court’s This rests two although Glasser. it had concluded that First, decision in the Court represent conflicting interests, was forced to Stewart other Kretske, reverse the conviction Stewart’s *12 did because Kretske failed to “show that denial client, the rights prejudiced Glasser’s constitutional in some man- [him] (emphasis added). Second, ner.” 315 U. at 76 Court S., the justified by empha- reversal of Glasser’s in conviction, part, the sizing against him; the weakness of the Government’s evidence with circum- guilt “error, a close which under some question, ground reversal, would not stances cannot be brushed for immaterial, might aside as since there is a real chance that it provided slight impetus swung which scales Id., guilt.” (emphasis added). Assessing toward at 67 strength prosecution’s against of the evidence the defendant step applying is, course, one a harmless-error standard. Florida, Schneble v. 405 427 (1972); Harrington See U. v. S. 395 250 California, S.U. Glasser, read the opinion holding
We Court’s however, improperly joint that whenever a trial court requires repre- timely objection sentation over is reversal automatic. The Glasser Court stated: precise degree
“To determine the of prejudice sustained appoint- Glasser as result court’s [district] ment of Stewart as counsel for Kretske is at once difficult unnecessary. right to have the assistance of counsel is too fundamental and absolute to allow courts in nice calculations as to indulge the amount of prej- from its arising Snyder udice denial. Cf. v. Massachu- setts, 116; Tumey Ohio, 291 97, U. S. v. 510, U. S. States, United 535; Patton U. S. 276, 292.” at 75-76. S.,U. representation, over joint that the language presupposes
This degree. in some the accused prejudiced express objections, pre prejudice is clear that cited it is the cases But from shown. independently whether it was regardless of. sumed for stands Ohio, example, Tumey (1927), 273 U. S. if be reversed [the conviction must principle that “[a] prejudice particular if no occurred], error even asserted clearly guilty.” Chap if defendant is shown and even J., (1967) 386 U. California, 18, man v. S. (Stewart, (opinion id., n. 8 at concurring); see also to reverse Kretske’s conviction Court). The Court’s refusal not did Kretske interpretation of Glosser. contrary to this joint repre challenge to the Amendment his own Sixth raise Kretske Brief for Petitioner see S., 77; 315 U. sentation. the Court’s States, 31. As United O. T. No. Glasser v. argued that of the codefendants some opinion indicates, of counsel assistance right to the effective of Glasser’s denial S., 315 U. alleged co-conspirators. them as prejudiced showing required Court context, 76-77. *13 convictions it affirmed the finding none, prejudice; including Kretske. codefendants, concluded that the assistance Court has Moreover, this rights basic to a fair “constitutional so among is those counsel as harmless can never be treated their infraction Accordingly, 23. supra, California, at Chapman v. error.” presence and assistance deprived of is the a defendant when during a prosecution or throughout the either attorney, of his offense, prosecution capital of a the least, at stage in, critical Wainwright, 372 Gideon v. U. S. is automatic. reversal White v. Alabama, (1961); 368 U. S. Hamilton v. (1963); 373 U. S. Maryland, with multiple defendants representing attorney
That pretrial proceed- present at physically is conflicting interests depar- not warrant sentencing does at and during trial, ings, of conflict- representation Joint rule. general this from ture prevent of what it tends to because suspect is ing interests may in this case it example, For doing. from attorney explor- from Campbell for counsel defense precluded have well agree- of an possibility plea negotiations ing possible charge lesser provided a prosecution, testify ment acceptable. would recommendation sentencing a favorable attorney prevent an a conflict also Generally speaking, prejudicial to one of evidence the admission challenging from arguing or from another, favorable perhaps but client culpa- relative involvement and hearing sentencing one culpability minimize the bility of his clients order to readily by emphasizing Examples can be another. multiplied. presence attorney of an does physical The mere guarantee not fulfill the Amendment when the advo- Sixth conflicting obligations effectively lips sealed his cate’s matters. crucial requiring a rule a conflict
Finally, show that defendant by timely of interests —which he and his tried to avoid objections joint him in representation prejudiced to the some — specific susceptible intelligent, fashion would not be even application. handed the normal case where a harmless- applied, scope error rule is error occurs at trial and its reviewing readily identifiable. court can Accordingly, relatively undertake with some confidence narrow task of its materially the likelihood that the error assessing affected jury. California, Compare Chapman v. deliberations Hamling States, with v. United supra, 24-26, 418 U. S. Valle-Valdes, United States 2d (1974), F. 1977). joint (CA9 representation 914-917 But case conflicting repeating the evil—it bears in what interests —is compelled doing, finds himself the advocate refrain *14 possible pretrial but only plea negotia not at trial also sentencing process. possible in the It be tions and identify from prejudice resulting the record the some cases attorney’s undertake from an failure to certain trial tasks, but sentencing hearing record of with a available it would even judge intelligently impact be difficult a conflict on attorney’s representation of a client. And to assess the attorney’s of a conflict of interests on the impact options, in plea negotiations virtually and decisions would tactics, impossible. inquiry into a claim of harmless error Thus, require, unguided speculation. here would unlike most cases, we for further Accordingly, proceedings reverse and remand inconsistent opinion. this with
It is so ordered. whom Powell, Justice with Justice Blackmun Mr. Mr. Rehnquist dissenting. and Mr. Justice join, disavowing separate se per representation, While rule today the Court failure in judge’s holds this appoint separate adequate case “either to take steps counsel or sepa- to ascertain whether risk remote to was too warrant guarantee counsel” worked of “assist- rate a violation of ance of counsel” embodied the Sixth and Fourteenth represen- accepts Amendments. The Court defense counsel’s possible among tations of conflict of interests clients inability and of his to conduct effective cross-examination as duty inquiry. court’s being adequate trigger the trial trial court appropriate hearing should have held an but separate representation, on defense counsel’s motions propor- task is to decide whether omission assumes the our this I agree tion of a constitutional Because cannot violation. particular in the circumstances of this the court’s that, case, requires petitioners’ convictions, inquire failure to reversal per of a se rule opinion and because the Court’s contains seeds representation merely upon the demand of defense I respectfully dissent. counsel, today’s with the Court’s
It is useful to contrast decision States, United previous relevant Glasser v. ruling, most case, court ordered Glasser’s the trial U. S. *15 represent and his lawyer, to both Glasser Stewart, retained identified though Stewart had codefendant, Kretske, even “inconsistency against joint counseled the defense” that Id., Court reversed Glasser’s representation. at 68. This undertake required had been to lawyer conviction because Id., representation “conflicting of interests.” simultaneous only did on the determi- at 70. The Glasser decision not rest of interests possibility that the inconsistent nation “[t]he to brought home Glasser and Kretske [had been] find Id., proceeded . 71. Court to Instead, court. . .” at of his “impairment” claim of Sixth support record Glasser’s right The evidence assistance of Amendment counsel. to serve two masters struggle “indicative of Stewart’s '[could Id., id., 75; also at 76. seriously doubted.” see not] I Today’s beyond Glasser. goes decision the limits of well representations this agree that the made defense of counsel informative affidavit case, while as the Glasser, bring play were into’ the trial Stewart in to' sufficient “conflict possibility further duty inquire court’s into the whether Constitution ing question, however, interests.” simply by inquiry, with failure to violated conduct any determination record reveals a out additional joint representation “conflicting in the face inter case approach in premised ests.” The this case is not Court’s finding ultimate of conflict interest or ineffective assist presumes prejudice of counsel. it Rather, ance from the inquiry, equating failure conduct an failure with a justifica of the Amendment guarantee. violation Sixth difficulty approach appears post for this be the hoc tion reconstruction record determine whether a different or even outcome, might a different defense strategy, court engaged requisite had inquiry obtained separate representation. Although ordered difficulty such into account in the allocation be taken burden of on the of conflict and persuasion questions see prejudice, infra, for a prophylactic am not the need 495-496,1 convinced *16 in of gloss requirements of the this area the Constitution (1966). 436 Arizona, criminal Cf. 384 S. law. Miranda v. U. of rule aspects opinion suggest other a Several Court’s counsel. separate representation upon demand of defense for trial who judge Court little room for maneuver a leaves to counsel’s inquire substantiality seeks into the of the defense sep- must order representations. judge trial Apparently, of “was the asserted risk conflict representation arate unless ante, formu- separate counsel,” 484, too remote to warrant at a part of defense lation a minimal on the suggests showing that counsel counsel. The Court offers the that defense also view specific expected in this could not to make kind of case be of “a risk of vio- proffer present in Glasser because his duty confidentiality of lating, by more disclosure, ” a Ante, necessary not concededly 485. Although clients. court’s case, decision then in this the Court states requiring be conducted “without inquiry improperly must of the client.” of the confidential communications disclosure coupled Ante, intimations are and n. II.1 When these ante, at reversal, of policy with the Court’s automatic see dis- potentially been for path may cleared 488-489, solely on the predicated for counsel ruptive separate demands counsel. representations of defense of the tension between the assertion propose 1 I do resolve here not reject lawyer-client privilege. But I right and a claim of a constitutional in concrete will unable to discuss assumption that defense counsel be joint representation particular a case without terms the difficulties persuaded I betraying Nor am communications. confidential insisting on meaningful inquiry pursue without courts will be unable analogous area confidentiality. Experience in the somewhat a breach of requirements of the Freedom exemption disclosure from the of claims of See, (1976 point. Act, ed.), supports this U. C. S. of Information § Vaughn Rosen, g., Mink, (1973); e. EPA 92-94 S. U. denied, (1973), 415 U. S. 340, 484 2d 820 App. C. cert. U. S. E. F. II adding pro- limits of this Court’s role in
Recognition layers requirements does tective to the the Constitution obligation provide detract Amendment the Sixth upon probability of reasonable showing proper accommodation of the interests my view, need. effective of counsel and that securing assistance defendants avoiding delay, potential disruption, of the State appointment multiple counsel,2 inherent in the can costs sweep broadly approach which less than the achieved means several by the Court. would follow the lead taken duty court’s Appeals recognized that have the trial Courts *17 minimizing joint-representation of in cases without inquiry 3 “conflicting predicate the constitutional of interests.” 2 lawyer multiple presents a in the trial of defendants Each addition of delay setting date, opportunities disposing for in the trial in of increased pretrial motions, selecting jury, the in the conduct of the trial itself. lawyers may possibility tend to enhance of trial errors. Additional also the ethics, Moreover, light professional cf. ABA Code of Pro of canons of Court, (D) Responsibility, (1969); Allen v. District fessional DR 5-105 6-7, 202, 351, (1974); Arg. 205-206, 184 519 P. 2d 353 Tr. of Oral Colo. virtually 15-16, requiring separate upon demand dis a rule operation rupt public the of defender offices. 3 (CA2 See, Carrigan, 1053, g., e. United States 543 F. 2d 1055-1056 v. 1976): attorney representation by single mere or more defendants a
“The
two
automatically give
deprivation
to a constitutional
does not
rise
counsel.
specific
prejudice,
this Circuit
that
instance of
It
some
settled
interest,
resulting
joint representation,
real conflict of
from a
must
some
appellant
to exist
it can be said that an
has been denied
be shown
before
,Mari,
United
v.
.
the effective assistance
counsel.
States
. 526 F.
[117,]
[(CA2 1975)];
Vowteras,
119
United States v.
500 F. 2d
2d
1210,
(2d Cir.),
denied,
(1974);
1211
independent defense in this case because of testimony by the State’s witnesses because identification Campbell Welch, consistency petitioners. of the alibis advanced brothers, Campbell half used the same alibi. Since was not who are both participant rapes, might argued it as an actual that identified encouraged separate counsel would have him to endorse earlier confes his culpable effort to that he was less than sion in an show his two codefend But, Campbell given Welch, common alibi with ants. his would have found any event, from his half brother’s cause. it extricate himself In difficult jury argument appeal because, been an such an nullification would Campbell’s noted, below direct as the court denial of in the involvement guilt rapes principal.” 256, no his as a “had effect on Ark. (1976). Conceivably Holloway, gave 2d who S. W. an inde might argue pendent alibi, have wished had while the State culprits, two of the real arrest was apprehended due to a mistaken unlikely It identification. is most counsel would have Holloway such a tack because each witness who succeeded identified Moreover, petitioners one of the other two codefendants. also identified joint argue representation impeded in this Court do not effective sum, of the State’s this cross-examination witnesses. not a case inquiry possibility “conflicting into where interests” reason separate representation. basis for ably might have revealed