MICKENS v. TAYLOR, WARDEN
No. 00-9285
Supreme Court of the United States
Argued November 5, 2001-Decided March 27, 2002
535 U.S. 162
Irving L. Gornstein argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General Olson, Assistant Attorney General Chertoff, Deputy Solicitor General Dreeben, Gregory G. Garre, and Joel M. Gershowitz.*
JUSTICE SCALIA delivered the opinion of the Court.
The question presented in this case is what a defendant must show in order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known.
I
In 1993, a Virginia jury convicted petitioner Mickens of the premeditated murder of Timothy Hall during or following the commission of an attempted forcible sodomy. Finding the murder outrageously and wantonly vile, it sentenced petitioner to death. In June 1998, Mickens filed a petition for writ of habeas corpus, see
The District Court held an evidentiary hearing and denied petitioner‘s habeas petition. A divided panel of the Court of Appeals for the Fourth Circuit reversed, 227 F. 3d 203 (2000), and the Court of Appeals granted rehearing en banc, 240 F. 3d 348 (2001). As an initial matter, the 7-to-3 en banc majority determined that petitioner‘s failure to raise his conflict-of-interest claim in state court did not preclude review, concluding that petitioner had established cause and that the “inquiry as to prejudice for purposes of excusing [petitioner‘s] default... incorporates the test for evaluating his underlying conflict of interest claim.” Id., at 356-357. On the merits, the Court of Appeals assumed that the juvenile court judge had neglected a duty to inquire into a potential conflict, but rejected petitioner‘s argument that this failure either mandated automatic reversal of his conviction or relieved him of the burden of showing that a conflict of interest adversely affected his representation. Relying on Cuyler v. Sullivan, 446 U. S. 335 (1980), the court held that a defendant must show “both an actual conflict of interest and an adverse effect even if the trial court failed to inquire into a potential conflict about which it reasonably should have known,” 240 F. 3d, at 355-356. Concluding that petitioner had not demonstrated adverse effect, id., at 360, it affirmed the District Court‘s denial of habeas relief. We
II
The
There is an exception to this general rule. We have spared the defendant the need of showing probable effect upon the outcome, and have simply presumed such effect, where assistance of counsel has been denied entirely or during a critical stage of the proceeding. When that has occurred, the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary. See Cronic, supra, at 658-659; see also Geders v. United States, 425 U. S. 80, 91 (1976); Gideon v. Wainwright, 372 U. S. 335, 344-345 (1963). But only in “circumstances of that magnitude” do we forgo individual inquiry into whether counsel‘s inadequate performance undermined the reliability of the verdict. Cronic, supra, at 659, n. 26.
We have held in several cases that “circumstances of that magnitude” may also arise when the defendant‘s attorney actively represented conflicting interests. The nub of the question before us is whether the principle established by these cases provides an exception to the general rule of
In Holloway v. Arkansas, 435 U. S. 475 (1978), defense counsel had objected that he could not adequately represent the divergent interests of three codefendants. Id., at 478-480. Without inquiry, the trial court had denied counsel‘s motions for the appointment of separate counsel and had refused to allow counsel to cross-examine any of the defendants on behalf of the other two. The Holloway Court deferred to the judgment of counsel regarding the existence of a disabling conflict, recognizing that a defense attorney is in the best position to determine when a conflict exists, that he has an ethical obligation to advise the court of any problem, and that his declarations to the court are “virtually made
In Cuyler v. Sullivan, 446 U. S. 335 (1980), the respondent was one of three defendants accused of murder who were tried separately, represented by the same counsel. Neither counsel nor anyone else objected to the multiple representation, and counsel‘s opening argument at Sullivan‘s trial suggested that the interests of the defendants were aligned. Id., at 347-348. We declined to extend Holloway‘s automatic reversal rule to this situation and held that, absent objection, a defendant must demonstrate that “a conflict of interest actually affected the adequacy of his representation.” 446 U. S., at 348-349. In addition to describing the defendant‘s burden of proof, Sullivan addressed separately a trial court‘s duty to inquire into the propriety of a multiple representation, construing Holloway to require inquiry only when “the trial court knows or reasonably should know that a particular conflict exists,” 446 U. S., at 3472-which is not
Finally, in Wood v. Georgia, 450 U. S. 261 (1981), three indigent defendants convicted of distributing obscene materials had their probation revoked for failure to make the requisite $500 monthly payments on their $5,000 fines. We granted certiorari to consider whether this violated the Equal Protection Clause, but during the course of our consideration certain disturbing circumstances came to our attention: At the probation-revocation hearing (as at all times since their arrest) the defendants had been represented by the lawyer for their employer (the owner of the business that purveyed the obscenity), and their employer paid the attorney‘s fees. The employer had promised his employees he would pay their fines, and had generally kept that promise but had not done so in these defendants’ case. This record suggested that the employer‘s interest in establishing a favorable equal-protection precedent (reducing the fines he would have to pay for his indigent employees in the future) diverged from the defendants’ interest in obtaining leniency or paying lesser fines to avoid imprisonment. Moreover, the possibility that counsel was actively representing the conflicting interests of employer and defendants “was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further.” Id., at 272.
the
Petitioner argues that the remand instruction in Wood established an “unambiguous rule” that where the trial judge neglects a duty to inquire into a potential conflict, the defendant, to obtain reversal of the judgment, need only show that his lawyer was subject to a conflict of interest, and need not show that the conflict adversely affected counsel‘s performance. Brief for Petitioner 21.3 He relies upon the lan-
quired when the trial judge fails to inquire into a potential conflict that was apparent before the proceeding was “held or completed,” but a defendant must demonstrate adverse effect when the judge fails to inquire into a conflict that was not apparent before the end of the proceeding, post, at 202. The problem with this carefully concealed “coherent scheme” (no case has ever mentioned it) is that in Wood itself the court did not decree automatic reversal, even though it found that “the possibility of a conflict of interest was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further.” 450 U. S., at 272 (second emphasis added). Indeed, the State had actually notified the judge of a potential conflict of interest “[d]uring the probation revocation hearing.” Id., at 272, and n. 20. JUSTICE SOUTER‘S statement that “the signs that a conflict may have occurred were clear to the judge at the close of the probation revocation proceeding,” post, at 201-when it became apparent that counsel had neglected the “strategy more obviously in the defendants’ interest, of requesting the court to reduce the fines or defer their collection,” post, at 198-would more accurately be phrased “the effect of the conflict upon counsel‘s performance was clear to the judge at the close of the probation revocation proceeding.”
Petitioner‘s proposed rule of automatic reversal when there existed a conflict that did not affect counsel‘s performance, but the trial judge failed to make the Sullivan-mandated inquiry, makes little policy sense. As discussed, the rule applied when the trial judge is not aware of the
Wood footnote). As we have explained earlier, n. 3, supra, this dictum simply contradicts the remand order in Wood.
Nor, finally, is automatic reversal simply an appropriate means of enforcing Sullivan‘s mandate of inquiry. Despite JUSTICE SOUTER‘s belief that there must be a threat of sanction (to wit, the risk of conferring a windfall upon the defendant) in order to induce “resolutely obdurate” trial judges to follow the law, post, at 208, we do not presume that judges are as careless or as partial as those police officers who need the incentive of the exclusionary rule, see United States v. Leon, 468 U. S. 897, 916-917 (1984). And in any event, the Sullivan standard, which requires proof of effect upon representation but (once such effect is shown) presumes prejudice, already creates an “incentive” to inquire into a potential conflict. In those cases where the potential conflict is in fact an actual one, only inquiry will enable the judge to avoid all possibility of reversal by either seeking waiver or replacing a conflicted attorney. We doubt that the deterrence of “judicial dereliction” that would be achieved by an automatic reversal rule is significantly greater.
Since this was not a case in which (as in Holloway) counsel protested his inability simultaneously to represent multiple defendants; and since the trial court‘s failure to make the Sullivan-mandated inquiry does not reduce the petitioner‘s
III
Lest today‘s holding be misconstrued, we note that the only question presented was the effect of a trial court‘s failure to inquire into a potential conflict upon the Sullivan rule that deficient performance of counsel must be shown. The case was presented and argued on the assumption that (absent some exception for failure to inquire) Sullivan would be applicable-requiring a showing of defective performance, but not requiring in addition (as Strickland does in other ineffectiveness-of-counsel cases), a showing of probable effect upon the outcome of trial. That assumption was not unreasonable in light of the holdings of Courts of Appeals, which have applied Sullivan “unblinkingly” to “all kinds of alleged attorney ethical conflicts,” Beets v. Scott, 65 F. 3d 1258, 1266 (CA5 1995) (en banc). They have invoked the Sullivan standard not only when (as here) there is a conflict rooted in counsel‘s obligations to former clients, see, e. g., Perillo v. Johnson, 205 F. 3d 775, 797-799 (CA5 2000); Freund v. Butterworth, 165 F. 3d 839, 858-860 (CA11 1999); Mannhalt v. Reed, 847 F. 2d 576, 580 (CA9 1988); United States v. Young, 644 F. 2d 1008, 1013 (CA4 1981), but even when representation of the defendant somehow implicates counsel‘s personal or financial interests, including a book deal, United States v. Hearst, 638 F. 2d 1190, 1193 (CA9 1980), a job with the prosecutor‘s office, Garcia v. Bunnell, 33 F. 3d 1193, 1194-1195, 1198, n. 4 (CA9 1994), the teaching of classes to Internal Revenue Service agents, United States v. Michaud, 925 F. 2d 37, 40-42 (CA1 1991), a romantic “entanglement” with the prosecutor, Summerlin v. Stewart, 267 F. 3d 926, 935-941 (CA9 2001), or fear of antagonizing the
It must be said, however, that the language of Sullivan itself does not clearly establish, or indeed even support, such expansive application. “[U]ntil,” it said, “a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” 446 U. S., at 350 (emphasis added). Both Sullivan itself, see id., at 348-349, and Holloway, see 435 U. S., at 490-491, stressed the high probability of prejudice arising from multiple concurrent representation, and the difficulty of proving that prejudice. See also Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn. L. Rev. 119, 125-140 (1978); Lowenthal, Joint Representation in Criminal Cases: A Critical Appraisal, 64 Va. L. Rev. 939, 941-950 (1978). Not all attorney conflicts present comparable difficulties. Thus, the Federal Rules of Criminal Procedure treat concurrent representation and prior representation differently, requiring a trial court to inquire into the likelihood of conflict whenever jointly charged defendants are represented by a single attorney (
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For the reasons stated, the judgment of the Court of Appeals is
Affirmed.
JUSTICE KENNEDY, with whom JUSTICE O‘CONNOR joins, concurring.
In its comprehensive analysis the Court has said all that is necessary to address the issues raised by the question presented, and I join the opinion in full. The trial judge‘s failure to inquire into a suspected conflict is not the kind of error requiring a presumption of prejudice. We did not grant certiorari on a second question presented by petitioner: whether, if we rejected his proposed presumption, he had nonetheless established that a conflict of interest adversely affected his representation. I write separately to emphasize that the facts of this case well illustrate why a wooden rule requiring reversal is inappropriate for cases like this one.
Petitioner‘s description of roads not taken would entail two degrees of speculation. We would be required to assume that Saunders believed he had a continuing duty to the victim, and we then would be required to consider whether in this hypothetical case, the counsel would have been blocked from pursuing an alternative defense strategy. The District Court concluded that the prosecution‘s case, coupled with the defendant‘s insistence on testifying, foreclosed the strategies suggested by petitioner after the fact. According to the District Court, there was no plausible argument that the victim consented to sexual relations with his murderer, given the bruises on the victim‘s neck, blood marks showing the victim was stabbed before or during sexual intercourse, and, most important, petitioner‘s insistence on testifying at trial that he had never met the victim. See 74 F. Supp. 2d, at 607 (“[T]he record shows that other facts foreclosed presentation of consent as a plausible alternative defense strategy“). The basic defense at the guilt phase was that petitioner was not at the scene; this is hardly consistent with the theory that there was a consensual encounter.
The District Court said the same for counsel‘s alleged dereliction at the sentencing phase. Saunders’ failure to attack the character of the 17-year-old victim and his mother had nothing to do with the putative conflict of interest. This strategy was rejected as likely to backfire, not only by Saunders, but also by his co-counsel, who owed no duty to Hall. See id., at 608 (“[T]he record here dispels the contention that the failure to use negative information about Hall is attributable to any conflict of interest on the part of Saunders“). These facts, and others relied upon by the District Court, provide compelling evidence that a theoretical conflict does
The constitutional question must turn on whether trial counsel had a conflict of interest that hampered the representation, not on whether the trial judge should have been more assiduous in taking prophylactic measures. If it were otherwise, the judge‘s duty would not be limited to cases where the attorney is suspected of harboring a conflict of interest. The
With these observations, I join the opinion of the Court.
JUSTICE STEVENS, dissenting.
This case raises three uniquely important questions about a fundamental component of our criminal justice system-the constitutional right of a person accused of a capital offense to have the effective assistance of counsel for his defense.1 The first is whether a capital defendant‘s attorney
I
The first critical stage in the defense of a capital case is the series of pretrial meetings between the accused and his counsel when they decide how the case should be defended. A lawyer cannot possibly determine how best to represent a new client unless that client is willing to provide the lawyer with a truthful account of the relevant facts. When an indigent defendant first meets his newly appointed counsel, he will often falsely maintain his complete innocence. Truthful disclosures of embarrassing or incriminating facts are contingent on the development of the client‘s confidence in the undivided loyalty of the lawyer. Quite obviously, knowledge that the lawyer represented the victim would be a substantial obstacle to the development of such confidence.
It is equally true that a lawyer‘s decision to conceal such an important fact from his new client would have comparable ramifications. The suppression of communication and truncated investigation that would unavoidably follow from such a decision would also make it difficult, if not altogether impossible, to establish the necessary level of trust that should
In this very case, it is likely that Mickens misled his counsel, Bryan Saunders, given the fact that Mickens gave false testimony at his trial denying any involvement in the crime despite the overwhelming evidence that he had killed Timothy Hall after a sexual encounter. In retrospect, it seems obvious that the death penalty might have been avoided by acknowledging Mickens’ involvement, but emphasizing the evidence suggesting that their sexual encounter was consensual. Mickens’ habeas counsel garnered evidence suggesting that Hall was a male prostitute, App. 137, 149, 162, 169; that the area where Hall was killed was known for prostitution, id., at 169-170; and that there was no evidence that Hall was forced to the secluded area where he was ultimately murdered. An unconflicted attorney could have put forward a defense tending to show that Mickens killed Hall only after the two engaged in consensual sex, but Saunders offered no such defense. This was a crucial omission-a finding of forcible sodomy was an absolute prerequisite to Mickens’ eligibility for the death penalty.3 Of course, since that
Saunders’ concealment of essential information about his prior representation of the victim was a severe lapse in his professional duty. The lawyer‘s duty to disclose his representation of a client related to the instant charge is not only intuitively obvious, it is as old as the profession. Consider this straightforward comment made by Justice Story in 1824:
“An attorney is bound to disclose to his client every adverse retainer, and even every prior retainer, which may affect the discretion of the latter. No man can be supposed to be indifferent to the knowledge of facts, which work directly on his interests, or bear on the freedom of his choice of counsel. When a client employs an attorney, he has a right to presume, if the latter be silent on the point, that he has no engagements, which interfere, in any degree, with his exclusive devotion to the cause confided to him; that he has no interest, which may betray his judgment, or endanger his fidelity.” Williams v. Reed, 29 F. Cas. 1386, 1390 (No. 17,733) (CC Me.).
Mickens’ lawyer‘s violation of this fundamental obligation of disclosure is indefensible. The relevance of Saunders’ prior representation of Hall to the new appointment was far too important to be concealed.
II
If the defendant is found guilty of a capital offense, the ensuing proceedings that determine whether he will be put to death are critical in every sense of the word. At those proceedings, testimony about the impact of the crime on the victim, including testimony about the character of the victim, may have a critical effect on the jury‘s decision. Payne v. Tennessee, 501 U. S. 808 (1991). Because a lawyer‘s fiduciary relationship with his deceased client survives the client‘s death, Swidler & Berlin v. United States, 524 U. S. 399 (1998), Saunders necessarily labored under conflicting obligations that were irreconcilable. He had a duty to protect the reputation and confidences of his deceased client, and a duty to impeach the impact evidence presented by the prosecutor.4
Saunders’ conflicting obligations to his deceased client, on the one hand, and to his living client, on the other, were unquestionably sufficient to give Mickens the right to insist on different representation.5 For the “right to counsel guaranteed by the Constitution contemplates the services of an attorney devoted solely to the interests of his client,” Von Moltke v. Gillies, 332 U. S. 708, 725 (1948).6 Moreover, in my judgment, the right to conflict-free counsel is just as firmly protected by the Constitution as the defendant‘s right
III
When an indigent defendant is unable to retain his own lawyer, the trial judge‘s appointment of counsel is itself a critical stage of a criminal trial. At that point in the proceeding, by definition, the defendant has no lawyer to protect his interests and must rely entirely on the judge. For that reason it is “the solemn duty of a . . . judge before whom a defendant appears without counsel to make a thorough inquiry and to take all steps necessary to insure the fullest protection of this constitutional right at every stage of the proceedings.” Von Moltke, 332 U. S., at 722.
This duty with respect to indigent defendants is far more imperative than the judge‘s duty to investigate the possibility of a conflict that arises when retained counsel represents either multiple or successive defendants. It is true that in a situation of retained counsel, “[u]nless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.” Cuyler v. Sullivan, 446 U. S. 335, 347 (1980).8 But when, as was true in this
IV
Mickens had a constitutional right to the services of an attorney devoted solely to his interests. That right was violated. The lawyer who did represent him had a duty to disclose his prior representation of the victim to Mickens and to the trial judge. That duty was violated. When Mickens had no counsel, the trial judge had a duty to “make a thorough inquiry and to take all steps necessary to insure the fullest protection of” his right to counsel. Von Moltke, 332 U. S., at 722. Despite knowledge of the lawyer‘s prior representation, she violated that duty.
We will never know whether Mickens would have received the death penalty if those violations had not occurred nor precisely what effect they had on Saunders’ representation of Mickens.10 We do know that he did not receive the kind of representation that the Constitution guarantees. If Mickens had been represented by an attorney-impostor who never passed a bar examination, we might also be unable to determine whether the impostor‘s educational shortcomings “actually affected the adequacy of his representation.” Ante, at 171 (emphasis deleted). We would, however, surely set aside his conviction if the person who had represented him was not a real lawyer. Four compelling reasons make setting aside the conviction the proper remedy in this case.
First, it is the remedy dictated by our holdings in Holloway v. Arkansas, 435 U. S. 475 (1978), Cuyler v. Sullivan, 446 U. S. 335 (1980), and Wood v. Georgia, 450 U. S. 261 (1981). In this line of precedent, our focus was properly upon the duty of the trial court judge to inquire into a potential conflict. This duty was triggered either via defense counsel‘s objection, as was the case in Holloway, or some other “special circumstances” whereby the serious potential for conflict was brought to the attention of the trial court judge. Sullivan, 446 U. S., at 346. As we unambiguously stated in Wood, ”Sullivan mandates a reversal when the trial court has failed to make an inquiry even though it ‘knows or reasonably should know that a particular conflict
Third, it is the only remedy that is consistent with the legal profession‘s historic and universal condemnation of the representation of conflicting interests without the full disclosure and consent of all interested parties.13 The Court‘s novel and naïve assumption that a lawyer‘s divided loyalties
Finally, “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U. S. 11, 14 (1954). Setting aside Mickens’ conviction is the only remedy that can maintain public confidence in the fairness of the procedures employed in capital cases. Death is a different kind of punishment from any other that may be imposed in this country. “From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U. S. 349, 357-358 (1977). A rule that allows the State to foist a murder victim‘s lawyer onto his accused is not only capricious; it poisons the integrity of our adversary system of justice.
I respectfully dissent.
JUSTICE SOUTER, dissenting.
A judge who knows or should know that counsel for a criminal defendant facing, or engaged in, trial has a potential conflict of interests is obliged to enquire into the potential conflict and assess its threat to the fairness of the proceeding. See Wheat v. United States, 486 U. S. 153, 160 (1988); Wood v. Georgia, 450 U. S. 261, 272 (1981); Cuyler v. Sullivan, 446 U. S. 335, 347 (1980). Cf. Holloway v. Arkansas, 435 U. S. 475, 484 (1978). Unless the judge finds that the risk of inadequate representation is too remote for further concern, or finds that the defendant has intelligently assumed the risk and waived any potential Sixth or Fourteenth Amendment claim of inadequate counsel, the court must see that the lawyer is replaced. See ibid.; Glasser v. United States, 315 U. S. 60, 70 (1942). Cf. Wheat, supra, at 162; Ad-
The District Judge reviewing the federal habeas petition in this case found that the state judge who appointed Bryan Saunders to represent petitioner Mickens on a capital murder charge knew or should know that obligations stemming from Saunders‘s prior representation of the victim, Timothy Hall, potentially conflicted with duties entailed by defending Mickens.1 Mickens v. Greene, 74 F. Supp. 2d 586, 613-615 (ED Va. 1999). The state judge was therefore obliged to look further into the extent of the risk and, if necessary, either secure Mickens‘s knowing and intelligent assumption of the risk or appoint a different lawyer. The state judge, however, did nothing to discharge her constitutional duty of care. Id., at 614. In the one case in which we have devised a remedy for such judicial dereliction, we held that the ensuing judgment of conviction must be reversed and the defendant afforded a new trial. Holloway,
I
The Court today holds, instead, that Mickens should be denied this remedy because Saunders failed to employ a formal objection as a means of bringing home to the appointing judge the risk of conflict. Ante, at 173-174. Without an objection, the majority holds, Mickens should get no relief absent a showing that the risk turned into an actual conflict with adverse effect on the representation provided to Mickens at trial. Ibid. But why should an objection matter when even without an objection the state judge knew or should have known of the risk and was therefore obliged to enquire further? What would an objection have added to the obligation the state judge failed to honor? The majority says that in circumstances like those now before us, we have already held such an objection necessary for reversal, absent proof of actual conflict with adverse effect, so that this case calls simply for the application of precedent, albeit precedent not very clearly stated. Ante, at 171-172.
The majority‘s position is error, resting on a mistaken reading of our cases. Three are on point, Holloway v. Arkansas, supra; Cuyler v. Sullivan, supra; and Wood v. Georgia, supra.
In Holloway, a trial judge appointed one public defender to represent three criminal defendants tried jointly. 435 U. S., at 477. Three weeks before trial, counsel moved for separate representation; the court held a hearing and denied the motion. Ibid. The lawyer moved again for appointment of separate counsel before the jury was empaneled, on the ground that one or two of the defendants were considering testifying at trial, in which event the one lawyer‘s ability to cross-examine would be inhibited. Id., at 478. The court again denied his motion. Ibid. After the prosecution rested, counsel objected to the joint representation a third time, advising the court that all three defendants had de-
This Court held that the motions apprised the trial judge of a “risk” that continuing the joint representation would subject defense counsel in the pending trial to the impossible obligations of simultaneously furthering the conflicting interests of the several defendants, id., at 484, and we reversed the convictions on the basis of the judge‘s failure to respond to the prospective conflict, without any further showing of harm, id., at 491. In particular, we rejected the argument that a defendant tried subject to such a disclosed risk should have to show actual prejudice caused by subsequent conflict. Id., at 488. We pointed out that conflicts created by multiple representation characteristically deterred a lawyer from taking some step that he would have taken if unconflicted, and we explained that the consequent absence of footprints would often render proof of prejudice virtually impossible. Id., at 489-491.
Next came Sullivan, involving multiple representation by two retained lawyers of three defendants jointly indicted but separately tried, 446 U. S., at 337. Sullivan, the defendant at the first trial, had consented to joint representation by the same lawyers retained by the two other accused, because he could not afford counsel of his own. Ibid. Sullivan was convicted of murder; the other two were acquitted in their subsequent trials. Id., at 338. Counsel made no objection to the multiple representation before or during trial, ibid.; nor did the convicted defendant argue that the trial judge otherwise knew or should have known of the risk described in Holloway, that counsel‘s representation might be impaired by conflicting obligations to the defendants to be tried later, 446 U. S., at 343.
This Court held that multiple representation did not raise enough risk of impaired representation in a coming trial to
The different burdens on the Holloway and Sullivan defendants are consistent features of a coherent scheme for dealing with the problem of conflicted defense counsel; a prospective risk of conflict subject to judicial notice is treated differently from a retrospective claim that a completed proceeding was tainted by conflict, although the trial judge had not been derelict in any duty to guard against it. When the problem comes to the trial court‘s attention before any potential conflict has become actual, the court has a duty to act prospectively to assess the risk and, if the risk is not too remote, to eliminate it or to render it acceptable through a defendant‘s knowing and intelligent waiver. This duty is something more than the general responsibility to rule without committing legal error; it is an affirmative obligation to investigate a disclosed possibility that defense counsel will be unable to act with uncompromised loyalty to his client. It was the judge‘s failure to fulfill that duty of care to enquire further and do what might be necessary that the Holloway Court remedied by vacating the defendant‘s subsequent conviction. 435 U. S., at 487, 491. The error occurred when the judge failed to act, and the remedy restored the defend-
In light of what the majority holds today, it bears repeating that, in this coherent scheme established by Holloway and Sullivan, there is nothing legally crucial about an objection by defense counsel to tell a trial judge that conflicting interests may impair the adequacy of counsel‘s representation. Counsel‘s objection in Holloway was important as a fact sufficient to put the judge on notice that he should enquire. In most multiple-representation cases, it will take just such an objection to alert a trial judge to prospective conflict, and the Sullivan Court reaffirmed that the judge is obliged to take reasonable prospective action whenever a timely objection is made. 446 U. S., at 346. But the Court also indicated that an objection is not required as a matter of law: “Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an enquiry.” Id., at 347. The Court made this clear beyond cavil 10 months later when Justice Powell, the same Justice who wrote the Sullivan opinion, explained in Wood v. Georgia that Sullivan “mandates a reversal when the trial court has failed to make an inquiry even though it ‘knows or reasonably should know that a particular conflict exists.‘” 450 U. S., at 272, n. 18 (emphasis in original).
Since the District Court in this case found that the state judge was on notice of a prospective potential conflict, 74 F. Supp. 2d, at 613-615, this case calls for nothing more than the application of the prospective notice rule announced and exemplified by Holloway and confirmed in Sullivan and Wood. The remedy for the judge‘s dereliction of duty
But in the majority‘s eyes, this conclusion takes insufficient account of Wood, whatever may have been the sensible scheme staked out by Holloway and Sullivan, with a defendant‘s burden turning on whether a court was apprised of a conflicts problem prospectively or retrospectively. The majority says that Wood holds that the distinction is between cases where counsel objected and all other cases, regardless of whether a trial court was put on notice prospectively in some way other than by an objection on the record. See ante, at 172-174. In Wood, according to the majority, the trial court had notice, there was no objection on the record, and the defendant was required to show actual conflict and adverse effect.
Wood is not easy to read, and I believe the majority misreads it. The first step toward seeing where the majority goes wrong is to recall that the Court in Wood said outright what I quoted before, that Sullivan “mandates a reversal when the trial court has failed to make an inquiry even though it ‘knows or reasonably should know that a particular conflict exists.‘” 450 U. S., at 272, n. 18. This statement of a trial judge‘s obligation, like the statement in Sullivan that it quoted, 446 U. S., at 347, said nothing about the need for an objection on the record. True, says the majority, but the statement was dictum to be disregarded as “inconsistent” with Wood‘s holding. Ante, at 168-169, n. 2. This is a polite way of saying that the Wood Court did not know what it was doing; that it stated the general rule of reversal for failure to enquire when on notice (as in Holloway), but then turned around and held that such a failure called for reversal only when the defendant demonstrated an actual conflict (as in Sullivan).
This is not what happened. Wood did not hold that in the absence of objection, the Sullivan rule governs even when a judge is prospectively on notice of a risk of conflicted counsel.
The Wood defendants were convicted of distributing obscene material as employees of an adult bookstore and theater, after trials at which they were defended by privately retained counsel. 450 U. S., at 262-263. They were each ordered to pay fines and sentenced to 12-month prison terms that were suspended in favor of probation on the condition that they pay their fines in installments, which they failed to do. Id., at 263-264. The Wood Court indicated that by the end of the proceeding to determine whether probation should be revoked because of the defendants’ failure to pay, the judge was on notice that defense counsel might have been laboring under a conflict between the interests of the defendant employees and those of their employer, possibly as early as the time the sentences were originally handed down nearly two years earlier, App. 11-16 in Wood v. Georgia, O. T. 1979, No. 79-6027 (Mar. 18, 1977, sentencing). See Wood, 450 U. S., at 272 (“at the revocation hearing, or at earlier stages of the proceedings below“). The fines were so high that the original sentencing assumption must have been that the store and theater owner would pay them; defense counsel was paid by the employer, at least during the trial; the State
What is significant is that, as this Court thus described the circumstances putting the judge on notice, they were not complete until the revocation hearing was finished (nearly
This Court, of course, was in no position to resolve these remaining issues in the first instance. Whether the lawyer‘s failure to press more aggressively for leniency was caused by a conflicting interest, for example, had never been explored at the trial level and there was no record to consult on the point.8 In deciding what to do, the Wood Court had
Treating the case as more like Sullivan and remanding was obviously the correct choice. Wood was not like Holloway, in which the judge was put on notice of a risk before trial, that is, a prospective possibility of conflict. It was, rather, much closer to Sullivan, since any notice to a court went only to a conflict, if there was one, that had pervaded a completed trial proceeding extending over two years. The only difference between Wood and Sullivan was that, in Wood, the signs that a conflict may have occurred were clear to the judge at the close of the probation revocation proceeding, whereas the claim of conflict in Sullivan was not raised until after judgment in a separate habeas proceeding, see 446 U. S., at 338. The duty of the Wood judge could only have been to enquire into the past (what had happened two years earlier at sentencing, the setting of probation 19 months later, the ensuing failures to pay, and the testimony that had already been given at the revocation hearing), just like the responsibility of the state and federal habeas courts reviewing the record in Sullivan in postconviction proceedings, see 446 U. S., at 338-339. Since the Wood judge‘s duty was unlike the Holloway judge‘s obligation to take care for the future, it would have made no sense for the Wood Court to impose a Holloway remedy.
The disposition in Wood therefore raises no doubt about the consistency of the Wood Court. Contrary to the majori-
Wood, then, does not affect the conclusion that would be reached here on the basis of Holloway and Sullivan. This case comes to us with the finding that the judge who appointed Saunders knew or should have known of the risk that he would be conflicted owing to his prior appointment to represent the victim of the crime, 74 F. Supp. 2d, at 613-615; see n. 1, supra. We should, therefore, follow the law settled until today, in vacating the conviction and affording Mickens a new trial.
II
Since the majority will not leave the law as it is, however, the question is whether there is any merit in the rule it now adopts, of treating breaches of a judge‘s duty to enquire into prospective conflicts differently depending on whether defense counsel explicitly objected. There is not. The distinction is irrational on its face, it creates a scheme of incentives to judicial vigilance that is weakest in those cases presenting the greatest risk of conflict and unfair trial, and it reduces the so-called judicial duty to enquire into so many empty words.
With so much at stake, why should it matter how a judge learns whatever it is that would point out the risk to anyone paying attention? Of course an objection from a conscientious lawyer suffices to put a court on notice, as it did in Holloway; and probably in the run of multiple-representation cases nothing short of objection will raise the specter of trouble. But sometimes a wide-awake judge will not need any formal objection to see a risk of conflict, as the federal habeas court‘s finding in this very case shows. 74 F. Supp. 2d, at 613-615. Why, then, pretend contrary to fact
Nor is that irrationality mitigated by the Government‘s effort to analogize the majority‘s objection requirement to the general rule that in the absence of plain error litigants get no relief from error without objection. The Government as amicus argues for making a formal objection crucial because judges are not the only ones obliged to take care for the integrity of the system; defendants and their counsel need inducements to help the courts with timely warnings. Brief for United States as Amicus Curiae 9, 26-27. The fallacy of the Government‘s argument, however, has been on the books since Wood was decided. See 450 U. S., at 265, n. 5 (“It is unlikely that [the lawyer on whom the conflict of interest charge focused] would concede that he had continued improperly to act as counsel“). The objection requirement works elsewhere because the objecting lawyer believes that he sights an error being committed by the judge or opposing counsel. See, e. g., United States v. Vonn, ante, at 72-73 (error in judge‘s Rule 11 plea colloquy). That is hardly the motive to depend on when the risk of error, if there is one, is being created by the lawyer himself in acting subject to a risk of conflict, 227 F. 3d 203, 213-217 (CA4 2000), vacated en banc, 240 F. 3d 348 (CA4 2001). The law on conflicted counsel has to face the fact that one of our leading cases arose after a trial in which counsel may well have kept silent about conflicts not out of obtuseness or inattention, but for the sake of deliberately favoring a third party‘s interest over the clients, and this very case comes to us with reason to suspect that Saunders suppressed his conflicts for the sake of a second fee in a case getting public attention. While the perceptive and conscientious lawyer (as in Holloway) needs
The irrationality of taxing defendants with a heavier burden for silent lawyers naturally produces an equally irrational scheme of incentives operating on the judges. The judge‘s duty independent of objection, as described in Sullivan and Wood, is made concrete by reversal for failure to honor it. The plain fact is that the specter of reversal for failure to enquire into risk is an incentive to trial judges to keep their eyes peeled for lawyers who wittingly or otherwise play loose with loyalty to their clients and the fundamental guarantee of a fair trial. See Wheat, 486 U. S., at 161. Cf. Pate, supra, at 386-387 (reversal as remedy for state trial judge‘s failure to discharge duty to ensure competency to stand trial). That incentive is needed least when defense counsel points out the risk with a formal objection,
The Court‘s rule makes no sense unless, that is, the real point of this case is to eliminate the judge‘s constitutional duty entirely in no-objection cases, for that is certainly the practical consequence of today‘s holding. The defendant has the same burden to prove adverse effect (and the prospect of reversal is the same) whether the judge has no reason to know of any risk or every reason to know about it short of
As that duty vanishes, so does the sensible regime under which a defendant‘s burden on conflict claims took account of the opportunities to ensure against conflicted counsel in the first place. Convicted defendants had two alternative avenues to show entitlement to relief. A defendant might, first, point to facts indicating that a judge knew or should have known of a ““particular conflict,” Wood, 450 U. S., at 272, n. 18 (quoting Sullivan, 446 U. S., at 347), before that risk had a chance to play itself out with an adverse result. If he could not carry the burden to show that the trial judge had fallen down in the duty to guard against conflicts prospec-
I respectfully dissent.
JUSTICE BREYER, with whom JUSTICE GINSBURG joins, dissenting.
The Commonwealth of Virginia seeks to put the petitioner, Walter Mickens, Jr., to death after having appointed to represent him as his counsel a lawyer who, at the time of the murder, was representing the very person Mickens was accused of killing. I believe that, in a case such as this one, a categorical approach is warranted and automatic reversal is required. To put the matter in language this Court has previously used: By appointing this lawyer to represent Mickens, the Commonwealth created a “structural defect affecting the framework within which the trial [and sentencing] proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U. S. 279, 310 (1991).
The parties spend a great deal of time disputing how this Court‘s precedents of Holloway v. Arkansas, 435 U. S. 475 (1978), Cuyler v. Sullivan, 446 U. S. 335 (1980), and Wood v. Georgia, 450 U. S. 261 (1981), resolve the case. Those precedents involve the significance of a trial judge‘s “failure to inquire” if that judge “knew or should have known” of a “potential” conflict. The majority and dissenting opinions dispute the meaning of these cases as well. Although I express no view at this time about how our precedents should treat most ineffective-assistance-of-counsel claims involving an alleged conflict of interest (or, for that matter, whether Holloway, Sullivan, and Wood provide a sensible or coherent framework for dealing with those cases at all), I am convinced that this case is not governed by those precedents, for the following reasons.
Second, the conflict is exacerbated by the fact that it occurred in a capital murder case. In a capital case, the evidence submitted by both sides regarding the victim‘s character may easily tip the scale of the jury‘s choice between life or death. Yet even with extensive investigation in post-trial proceedings, it will often prove difficult, if not impossible, to determine whether the prior representation affected defense counsel‘s decisions regarding, for example: which avenues to take when investigating the victim‘s background; which witnesses to call; what type of impeachment to undertake; which arguments to make to the jury; what language to use to characterize the victim; and, as a general matter, what basic strategy to adopt at the sentencing stage. Given the subtle forms that prejudice might take, the consequent difficulty of proving actual prejudice, and the significant likelihood that it will nonetheless occur when the same lawyer represents both accused killer and victim, the cost of litigating the existence of actual prejudice in a particular case cannot be easily justified. Cf. United States v. Cronic, 466 U. S. 648, 657-658 (1984) (explaining the need for categorical approach in the event of “actual breakdown of the adversarial process“).
Third, the Commonwealth itself created the conflict in the first place. Indeed, it was the same judge who dismissed the case against the victim who then appointed the victim‘s lawyer to represent Mickens one business day later. In light of the judge‘s active role in bringing about the incompatible representation, I am not sure why the concept of a judge‘s “duty to inquire” is thought to be central to this case. No “inquiry” by the trial judge could have shed more light
This kind of breakdown in the criminal justice system creates, at a minimum, the appearance that the proceeding will not ““reliably serve its function as a vehicle for determination of guilt or innocence,“” and the resulting ““criminal punishment“” will not ““be regarded as fundamentally fair.“” Fulminante, supra, at 310. This appearance, together with the likelihood of prejudice in the typical case, is serious enough to warrant a categorical rule—a rule that does not require proof of prejudice in the individual case.
The Commonwealth complains that this argument “relies heavily on the immediate visceral impact of learning that a lawyer previously represented the victim of his current client.” Brief for Respondent 34. And that is so. The “visceral impact,” however, arises out of the obvious, unusual nature of the conflict. It arises from the fact that the Commonwealth seeks to execute a defendant, having provided that defendant with a lawyer who, only yesterday, represented the victim. In my view, to carry out a death sentence so obtained would invariably “diminis[h] faith” in the fairness and integrity of our criminal justice system. Young v. United States ex rel. Vuitton et Fils S. A., 481 U. S. 787, 811-812 (1987) (plurality opinion). Cf. United States v. Olano, 507 U. S. 725, 736 (1993) (need to correct errors that seriously affect the “fairness, integrity or public reputation of judicial proceedings“). That is to say, it would diminish that public confidence in the criminal justice system upon which the successful functioning of that system continues to depend.
I therefore dissent.
Notes
“Whenever two or more defendants have been jointly charged pursuant to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant‘s right to counsel.”
JUSTICE SOUTER labors to suggest that the Wood remand order is part of “a coherent scheme,” post, at 194, in which automatic reversal is re- At the guilt phase, the trial court judge instructed Mickens’ jury as follows: “If you find that the Commonwealth has failed to prove beyond a reasonable doubt that the killing occurred in the commission of, or subsequent to, attempted forcible sodomy ... [but do find a malicious, willful, deliberate, premeditated killing], then you shall find the defendant guilty of first degree murder. If you find the defendant guilty of first degree murder, then you shall fix his punishment at: (1) Imprisonment for life; or (2) A specific term of imprisonment, but not less than twenty [20] years....” App. 58-59. By “particular conflict” the Court was clearly referring to a risk of conflict detectable on the horizon rather than an “actual conflict” that had already adversely affected the defendant‘s representation. The Court had just cited and quoted Holloway v. Arkansas, 435 U. S. 475 (1978), which held that the judge was obligated to enquire into the risk of a prospective conflict, id., at 484. This reading is confirmed by the Sullivan Court‘s subsequent terminology: Because the trial judge in Sullivan had had no duty to enquire into “a particular conflict” upon notice of multiple representation alone, the convicted defendant could get no relief without showing “actual conflict” with “adverse effect.” 446 U. S., at 347-350.
Of course, a judge who gets wind of conflict during trial may have to enquire in both directions: prospectively to assess the risk of conflict if the lawyer remains in place; if there is no such risk requiring removal and mistrial, conversely, the judge may have to enquire retrospectively to see whether a conflict has actually affected the defendant adversely. See infra, at 202.
It is also counter to our precedent to treat all Sixth Amendment challenges involving conflicts of interest categorically, without inquiry into the surrounding factual circumstances. In Cronic, we cited Holloway as an example of a case involving “surrounding circumstances [making] it so unlikely that any lawyer could provide effective assistance that ineffectiveness was properly presumed without inquiry into actual performance at trial.” Cronic, 466 U. S., at 661, and n. 28. The surrounding circumstances in the present case were far more egregious than those requiring reversal in either Holloway or Wood.
Lest anyone be wary that a rule requiring reversal for failure to enquire when on notice would be too onerous a check on trial judges, a survey of Courts of Appeals already applying the Holloway rule in no-objection cases shows a commendable measure of restraint and respect for the circumstances of fellow judges in state and federal trial courts, finding the duty to enquire violated only in truly outrageous cases. See, e. g., Campbell v. Rice, 265 F. 3d 878, 887-888 (CA9 2001) (reversing conviction under Holloway when trial judge failed to enquire after the prosecutor indicated defense counsel had just been arraigned by the prosecutor‘s office on felony drug charges); United States v. Rogers, 209 F. 3d 139, 145-146 (CA2 2000) (reversing conviction when District Court failed to enquire on notice that counsel for defendant alleging police misconduct was a police commissioner); United States v. Allen, 831 F. 2d 1487, 1495-1496 (CA9 1987) (finding Magistrate Judge had reasonably enquired into joint representation of 17 codefendants who entered a group guilty plea, but reversing because the District Court failed to enquire when defense counsel later gave the court a list “rank[ing] the defendants by their relative culpability“). Under the majority‘s rule, the defendants in each of these cases should have proved that there was an actual conflict of interests that adversely affected their representation. Particularly galling in light of the first two cases is the majority‘s surprising and unnecessary intimation that this Court‘s conflicts jurisprudence should not be available or is somehow less important to those who allege conflicts in contexts other than multiple representation. See ante, at 175.Lawrence J. Fox filed a brief for Legal Ethicists et al. as amici curiae.