ILLINOIS v. WASHINGTON
No. 83-1971
Sup. Ct. Ill.
1984
1022
No. 83-1971. ILLINOIS v. WASHINGTON. Sup. Ct. Ill. Certiorari denied.
JUSTICE WHITE, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, dissenting.
In Cuyler v. Sullivan, 446 U. S. 335 (1980), this Court held that in order to establish a
On May 7, 1979, Nathan Bottley was murdered in Chicago. Chicago police suspected Charles Washington, a resident of Chicago Heights, and made inquiries to the Chicago Heights police. As a result of these inquiries, Chicago Heights police officers reinterviewed witnesses to a 1977 murder in Chicago Heights, in which Washington had been a suspect, and arrested Washington for that crime. While Washington was in custody, he was also charged by Chicago police for the Bottley murder.
After being indicted for the Bottley murder, Washington filed pretrial motions to quash arrest and suppress identification, contending that his arrest in Chicago Heights had been without probable cause. Washington‘s attorney at this hearing also served as the city attorney for Chicago Heights, a fact that the State‘s attorney brought to the attention of the trial court. The defense attorney responded that he had consulted with Washington about the possible conflict of interest inherent in this situation, but that he “anticipated no Chicago Heights Police Officers to be called” in connection with the Chicago murder. The court questioned Washington and ascertained that he had no objection to being represented by his defense counsel.
Contrary to defense counsel‘s expectation, the State called a Chicago Heights police officer to establish that there was probable cause for the defendant‘s arrest in Chicago Heights on the 1977 murder charge. Defense counsel cross-examined the officer and
On appeal, Washington argued that he was denied effective assistance of counsel because of his attorney‘s conflicting interests. The Illinois Appellate Court reversed the conviction on this ground, 111 Ill. App. 3d 711, 444 N. E. 2d 753 (1982), and the Illinois Supreme Court agreed, 101 Ill. 2d 104, 461 N. E. 2d 393 (1984). The Illinois Supreme Court adhered to its longstanding view that as a matter of federal constitutional law even a potential conflict of interest required reversal, rejecting the State‘s contention that Cuyler v. Sullivan required Washington to show that his attorney‘s performance had been adversely affected by an actual conflict of interest. The State‘s argument, the court held, overlooked the fact that Cuyler involved multiple representation of defendants. The court focused on Cuyler‘s observation that “a possible conflict inheres in almost every instance of multiple representation,” so that a presumption that even potential conflict resulted in ineffective assistance “would preclude multiple representation even in cases where [a] common defense . . . gives strength against a common attack.” 446 U. S., at 348, quoting Glasser v. United States, 315 U. S. 60, 92 (1942) (Frankfurter, J., dissenting).
Unlike the Illinois Supreme Court, numerous federal courts have failed to discern in Cuyler any limitation to cases involving multiple representation of defendants. See Westbrook v. Zant, 704 F. 2d 1487, 1498-1499 (CA11 1983); United States v. Harris, 701 F. 2d 1095, 1099 (CA4 1983); United States v. Knight, 680 F. 2d 470, 471 (CA6 1982) (per curiam), cert. denied, 459 U. S. 1102 (1983); Ware v. King, 694 F. 2d 89, 92 (CA5 1982) (per curiam), cert. denied, 461 U. S. 930 (1983); Alexander v. Housewright, 667 F. 2d 556, 558 (CA8 1981); United States v. Hearst, 638 F. 2d 1190, 1193 (CA9 1981). Most of these courts have simply applied Cuyler to non-multiple-representation situations without even considering the possibility that it did not apply. In United States v. Hearst, the Ninth Circuit observed that “Sullivan‘s lawyer‘s conflict was based on multiple representation, whereas Hearst‘s was based on private financial interests,” but concluded, without discussion, that this difference, among others, was “immaterial.” 638 F. 2d, at 1193. In Theodore v. New Hampshire, 614 F. 2d 817 (CA1 1980), a pre-Cuyler case, the court held that an actual-
Because the decision below creates a conflict among the lower courts on an important and frequently recurring question of constitutional law, I would grant the petition for certiorari.
THOMPSON v. UNITED STATES
No. 83-6809
C. A. 8th Cir.
1984
No. 83-6809. THOMPSON v. UNITED STATES. C. A. 8th Cir. Certiorari denied.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
Once again this Court is confronted with a challenge to the constitutionality of the Government‘s use of peremptory challenges to exclude potential jurors in a criminal trial because of their race. See Swain v. Alabama, 380 U. S. 202, 221 (1965) (“[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws“).* The continued vitality of Swain is by now a “distressingly familiar” issue to this Court. Williams v. Illinois, decided with Dixon v. Illinois and Yates v. Illinois, 466 U. S. 981, 982 (1984) (MARSHALL, J., dissenting from denial of certiorari); see McCray v. New York, decided with Miller v. Illinois and Perry v. Louisiana, 461 U. S. 961, 963 (1983) (MARSHALL, J., dissenting from denial of certiorari); Gilliard v. Mississippi, 464 U. S. 867 (1983) (MARSHALL, J., dissenting from denial of certiorari). A majority of the Court has expressed the position that this question merits plenary review. See McCray, supra, at 961 (opinion of STEVENS, J., joined by