Petitioners, three codefendants at a state criminal trial in
Arkansas, made timely motions, both a few weeks before the trial
and before the jury was empaneled, for appointment of separate
counsel, based on their appointed counsel's representations that,
because of confidential information received from the codefendants,
he was confronted with the risk of representing conflicting
interests and could not, therefore, provide effective assistance
for each client. The trial court denied these motions, and
petitioners were subsequently convicted. The Arkansas Supreme Court
affirmed, concluding that the record showed no actual conflict of
interests or prejudice to petitioners.
Held:
1. The trial judge's failure either to appoint separate counsel
or to take adequate steps to ascertain whether the risk of a
conflict of interests was too remote to warrant separate counsel,
in the face of the representations made by counsel before trial and
again before the jury was empaneled, deprived petitioners of the
guarantee of "assistance of counsel" under the Sixth Amendment. Pp.
435 U. S.
481-487.
(a) The trial court has a duty to refrain from embarrassing
counsel for multiple defendants by insisting or even suggesting
that counsel undertake to concurrently represent interests that
might conflict, when the possibility of inconsistent interests is
brought home to the court by formal objections, motions, and
counsel's representations.
Glasser v. United States,
315 U. S. 60,
315 U. S. 76.
Pp.
435 U. S.
484-485.
(b) An attorney's request for the appointment of separate
counsel, based on his representations regarding a conflict of
interests, should be granted, considering that he is in the best
position professionally and ethically to determine when such a
conflict exists or will probably develop at trial; that he has the
obligation, upon discovering such a conflict, to advise the court
at once; and, that as an officer of the court, he so advises the
court virtually under oath. Pp.
435 U. S.
485-486.
(c) Here no prospect of dilatory practices by the attorney was
present to justify the trial court's failure to take adequate steps
in response to the repeated motions for appointment of separate
counsel. Pp.
435 U. S.
486-487.
2. Whenever a trial court improperly requires joint
representation over timely objection, reversal is automatic, and
prejudice is presumed regardless
Page 435 U. S. 476
of whether it was independently shown.
Glasser v. United
States, supra at
315 U. S. 75-76.
Pp. 48791.
(a) The assistance of counsel is among those "constitutional
rights so basic to a fair trial that their infraction can never be
treated as harmless error,"
Chapman v. California,
386 U. S. 18,
386 U. S. 23. P.
435 U. S.
489.
(b) That an attorney representing multiple defendants with
conflicting interests is physically present at pretrial
proceedings, during trial, and at sentencing does not warrant
departure from the general rule requiring automatic reversal. Pp.
435 U. S.
489-490.
(c) A rule requiring a defendant to show that a conflict of
interests -- which he and his counsel tried to avoid by timely
objections to the joint representation -- prejudiced him in some
specific fashion would not be susceptible of intelligent,
evenhanded application. Pp.
435 U. S.
490-491.
260 Ark. 250,
539 S.W.2d
435, reversed and remanded.
BURGER, C.J., delivered the opinion of the Court, in which
BRENNAN, STEWART, WHITE, MARSHALL, and STEVENS, JJ., joined.
POWELL, J., filed a dissenting opinion, in which BLACKMUN and
REHNQUIST, JJ., joined,
post, p.
435 U. S.
491.
MR CHIEF JUSTICE BURGER delivered the opinion of the Court.
Petitioners, codefendants at trial, made timely motions for
appointment of separate counsel, based on the representations of
their appointed counsel that, because of confidential information
received from the codefendants, he was confronted with the risk of
representing conflicting interests and could
Page 435 U. S. 477
not, therefore, provide effective assistance for each client. We
granted certiorari to decide whether petitioners were deprived of
the effective assistance of counsel by the denial of those motions.
430 U.S. 965 (1977).
I
Early in the morning of June 1, 1975, three men entered a Little
Rock, Ark., restaurant and robbed and terrorized the five employees
of the restaurant. During the course of the robbery, one of the two
female employees was raped once; the other, twice. The ensuing
police investigation led to the arrests of the petitioners.
On July 29, 1975, the three defendants were each charged with
one count of robbery and two counts of rape. On August 5, the trial
court appointed Harold Hall, a public defender, to represent all
three defendants. Petitioners were then arraigned and pleaded not
guilty. Two days later, their cases were set for a consolidated
trial to commence September 4.
On August 13, Hall moved the court to appoint separate counsel
for each petitioner because "the defendants ha[d] stated to him
that there is a possibility of a conflict of interest in each of
their cases. . . ." After conducting a hearing on this motion, and
on petitioners' motions for a severance, the court declined to
appoint separate counsel. [
Footnote
1]
Before trial, the same judge who later presided at petitioners'
trial conducted a
Jackson v. Denno hearing [
Footnote 2] to determine the admissibility of
a confession purportedly made by petitioner Campbell to two police
officers at the time of his arrest. The essence of the confession
was that Campbell had entered the restaurant with his codefendants
and had remained, armed with a rifle, one flight of stairs above
the site
Page 435 U. S. 478
of the robbery and rapes (apparently serving as a lookout), but
had not taken part in the rapes. The trial judge ruled the
confession admissible, but ordered deletion of the references to
Campbell's codefendants. At trial, one of the arresting officers
testified to Campbell's confession.
On September 4, before the jury was empaneled, Hall renewed the
motion for appointment of separate counsel
"on the grounds that one or two of the defendants may testify
and, if they do, then I will not be able to cross-examine them,
because I have received confidential information from them."
The court responded, "I don't know why you wouldn't," and again
denied the motion. [
Footnote
3]
The prosecution then proceeded to present its case. The manager
of the restaurant identified petitioners Holloway and Campbell as
two of the robbers. Another male employee identified Holloway and
petitioner Welch. A third identified only Holloway. The victim of
the single rape identified Holloway and Welch as two of the
robbers, but was unable to identify the man who raped her. The
victim of the double rape identified Holloway as the first rapist.
She was unable to identify the second rapist, but identified
Campbell as one of the robbers.
On the second day of trial, after the prosecution had rested its
case, Hall advised the court that, against his recommendation, all
three defendants had decided to testify. He then stated:
"Now, since I have been appointed, I had previously filed a
motion asking the Court to appoint a separate attorney for each
defendant because of a possible conflict of interest. This conflict
will probably be now coming up, since each one of them wants to
testify. "
Page 435 U. S. 479
"THE COURT: That's all right; let them testify. There is no
conflict of interest. Every time I try more than one person in this
court, each one blames it on the other one."
"MR. HALL: I have talked to each one of these defendants, and I
have talked to them individually, not collectively."
"THE COURT: Now talk to them collectively."
The court then indicated satisfaction that each petitioner
understood the nature and consequences of his right to testify on
his own behalf, whereupon Hall observed:
"I am in a position now where I am more or less muzzled as to
any cross-examination."
"THE COURT: You have no right to cross-examine your own
witness."
"MR. HALL: Or to examine them."
"THE COURT: You have a right to examine them, but have no right
to cross-examine them. The prosecuting attorney does that."
"MR. HALL: If one [defendant] takes the stand, somebody needs to
protect the other two's interest while that one is testifying, and
I can't do that, since I have talked to each one individually."
"THE COURT: Well, you have talked to them, I assume,
individually and collectively, too. They all say they want to
testify. I think it's perfectly alright [
sic] for them to
testify if they want to, or not. It's their business."
"
* * * *"
"Each defendant said he wants to testify, and there will be no
cross-examination of these witnesses, just a direct examination by
you."
"MR. HALL: Your Honor, I can't even put them on direct
examination, because if I ask them -- "
Page 435 U. S. 480
"THE COURT: (Interposing) You can just put them on the stand and
tell the Court that you have advised them of their rights and they
want to testify; then you tell the man to go ahead and relate what
he wants to. That's all you need to do. [
Footnote 4]"
Holloway took the stand on his own behalf, testifying that,
during the time described as the time of the robbery, he was at his
brother's home. His brother had previously given similar testimony.
When Welch took the witness stand, the record shows Hall advised
him, as he had Holloway, that
"I cannot ask you any questions that might tend to incriminate
any one of the three of you. . . . Now, the only thing I can say is
tell these ladies and gentlemen of the jury what you know about
this case. . . ."
Welch responded that he did not "have any kind of speech ready
for the jury or anything. I thought I was going to be questioned."
When Welch denied, from the witness stand, that he was at the
restaurant the night of the robbery, Holloway interrupted,
asking:
"Your Honor, are we allowed to make an objection?"
"THE COURT: No, sir. Your counsel will take care of any
objections."
"MR. HALL: Your Honor, that is what I am trying to say. I can't
cross-examine them."
"THE COURT: You proceed like I tell you to, Mr. Hall. You have
no right to cross-examine your own witnesses anyhow."
Welch proceeded with his unguided direct testimony, denying any
involvement in the crime and stating that he was at his home at the
time it occurred. Campbell gave similar testimony
Page 435 U. S. 481
when he took the stand. He also denied making any confession to
the arresting officers.
The jury rejected the versions of events presented by the three
defendants and the alibi witness, and returned guilty verdicts on
all counts. On appeal to the Arkansas Supreme Court, petitioners
raised the claim that their representation by a single appointed
attorney, over their objection, violated federal constitutional
guarantees of effective assistance of counsel. In resolving this
issue, the court relied on what it characterized as the majority
rule:
"[T]he record must show some material basis for an alleged
conflict of interest before reversible error occurs in single
representation of co-defendants."
260 Ark. 250, 256,
539 S.W.2d
435, 439 (1977). Turning to the record in the case, the court
observed that Hall had failed to outline to the trial court both
the nature of the confidential information received from his
clients and the manner in which knowledge of that information
created conflicting loyalties. Because none of the petitioners had
incriminated codefendants while testifying, the court concluded
that the record demonstrated no actual conflict of interests or
prejudice to the petitioners, and therefore affirmed.
II
More than 35 years ago, in
Glasser v. United States,
315 U. S. 60
(1942), this Court held that, by requiring an attorney to represent
two codefendants whose interests were in conflict, the District
Court had denied one of the defendants his Sixth Amendment right to
the effective assistance of counsel. In that case, the Government
tried five codefendants in a joint trial for conspiracy to defraud
the United States. Two of the defendants, Glasser and Kretske, were
represented initially by separate counsel. On the second day of
trial, however, Kretske became dissatisfied with his attorney and
dismissed him. The District Judge thereupon asked Glasser's
attorney, Stewart, if
Page 435 U. S. 482
he would also represent Kretske. Stewart responded by noting a
possible conflict of interests: His representation of both Glasser
and Kretske might lead the jury to link the two men together.
Glasser also made known that he objected to the proposal. The
District Court nevertheless appointed Stewart, who continued as
Glasser's retained counsel, to represent Kretske. Both men were
convicted.
Glasser contended in this Court that Stewart's representation at
trial was ineffective because of a conflict between the interests
of his two clients. This Court held that
"the 'assistance of counsel' guaranteed by the Sixth Amendment
contemplates that such assistance be untrammeled and unimpaired by
a court order requiring that one lawyer should simultaneously
represent conflicting interests."
Id. at
315 U. S. 70.
The record disclosed that Stewart failed to cross-examine a
Government witness whose testimony linked Glasser with the
conspiracy and failed to object to the admission of arguably
inadmissible evidence. This failure was viewed by the Court as a
result of Stewart's desire to protect Kretske's interests, and was
thus "indicative of Stewart's struggle to serve two masters. . . ."
Id. at
315 U. S. 75.
After identifying this conflict of interests, the Court declined to
inquire whether the prejudice flowing from it was harmless, and
instead ordered Glasser's conviction reversed. Kretske's
conviction, however, was affirmed.
One principle applicable here emerges from
Glasser
without ambiguity. Requiring or permitting a single attorney to
represent codefendants, often referred to as joint representation,
is not
per se violative of constitutional guarantees of
effective assistance of counsel. This principle recognizes that, in
some cases, multiple defendants can appropriately be represented by
one attorney; indeed, in some cases, certain advantages might
accrue from joint representation. In Mr. Justice Frankfurter's
view:
"Joint representation is a means of insuring against reciprocal
recrimination. A common defense often
Page 435 U. S. 483
gives strength against a common attack."
Glasser v. United States, supra at
315 U. S. 92
(dissenting opinion). [
Footnote
5]
Since
Glasser was decided, however, the courts have
taken divergent approaches to two issues commonly raised in
challenges to joint representation where -- unlike this case --
trial counsel did nothing to advise the trial court of the
actuality or possibility of a conflict between his several clients'
interests. First, appellate courts have differed on how strong a
showing of conflict must be made, or how certain the reviewing
court must be that the asserted conflict existed, before it will
conclude that the defendants were deprived of their right to the
effective assistance of counsel.
Compare United States ex rel.
Hart v. Davenport, 478 F.2d 203 (CA3 1973);
Lollar v.
United States, 126 U.S.App.D.C. 200, 376 F.2d 243 (1967);
People v. Chacon, 69 Cal. 2d
765, 447 P.2d 106 (1968); and
State v. Kennedy, 8
Wash. App. 633, 508 P.2d 1386 (1973),
with United States v.
Lovano, 420 F.2d 769, 773 (CA2 1970);
see also cases
collected in Annot., 34 A.L.R.3d 470, 477-507 (1970). Second,
courts have differed with respect to the scope and nature of the
affirmative duty of the trial judge to assure that criminal
defendants are not deprived of their right to the effective
assistance of counsel by joint representation of conflicting
interests.
Compare United States v. Lawriw, 568 F.2d 98
(CA8 1977);
United States v. Carrigan, 543 F.2d 1053 (CA2
1976); and
United States v. Foster, 469 F.2d 1 (CA1 1972),
with Foxworth v. Wainwright, 516 F.2d 1072 (CA5 1975),
and United States v. Williams, 429 F.2d 158 (CA8 1970).
[
Footnote 6]
Page 435 U. S. 484
We need not resolve these two issues in this case, however.
Here, trial counsel, by the pretrial motions of August 13 and
September 4 and by his accompanying representations, made as an
officer of the court, focused explicitly on the probable risk of a
conflict of interests. The judge then failed either to appoint
separate counsel or to take adequate steps to ascertain whether the
risk was too remote to warrant separate counsel. [
Footnote 7] We hold that the failure, in the
face of the representations made by counsel weeks before trial and
again before the jury was empaneled, deprived petitioners of the
guarantee of "assistance of counsel."
This conclusion is supported by the Court's reasoning in
Glasser:
"Upon the trial judge rests the duty of seeing that the trial is
conducted with solicitude for the essential rights of the accused.
. . . The trial court should protect the right of an accused to
have the assistance of counsel. . . ."
"
* * * *"
"Of equal importance with the duty of the court to see that an
accused has the assistance of counsel is its duty to
Page 435 U. S. 485
refrain from embarrassing counsel in the defense of an accused
by insisting, or indeed even suggesting, that counsel undertake
to concurrently represent interests which might diverge from those
of his first client, when the possibility of that divergence is
brought home to the court."
315 U.S. at
315 U. S. 71,
315 U. S. 76
(emphasis added). This reasoning has direct applicability in this
case, where the "possibility of [petitioners'] inconsistent
interests" was "brought home to the court" by formal objections,
motions, and defense counsel's representations. It is arguable,
perhaps, that defense counsel might have presented the requests for
appointment of separate counsel more vigorously and in greater
detail. As to the former, however, the trial court's responses
hardly encouraged pursuit of the separate counsel claim; and as to
presenting the basis for that claim in more detail, defense counsel
was confronted with a risk of violating, by more disclosure, his
duty of confidentiality to his clients.
Additionally, since the decision in
Glasser, most
courts have held that an attorney's request for the appointment of
separate counsel, based on his representations as an officer of the
court regarding a conflict of interests, should be granted.
See, e.g., Shuttle v. Smith, 296
F. Supp. 1315 (Vt. 1969);
State v. Davis, 110 Ariz.
29,
514 P.2d 1025
(1973);
State v. Brazile, 226 La. 254,
75 So. 2d
856 (1954);
but see Commonwealth v. LaFleur, 1 Mass.
App. 327,
296 N.E.2d 517 (1973). In so holding, the courts have
acknowledged and given effect to several interrelated
considerations. An
"attorney representing two defendants in a criminal matter is in
the best position professionally and ethically to determine when a
conflict of interest exists or will probably develop in the course
of a trial."
State v. Davis, supra at 31, 514 P.2d at 1027. Second,
defense attorneys have the obligation, upon discovering a conflict
of interests, to advise the court at
Page 435 U. S. 486
once of the problem.
Ibid. [
Footnote 8] Finally, attorneys are officers of the court,
and "
when they address the judge solemnly upon a matter before
the court, their declarations are virtually made under oath.'"
State v. Brazile, supra at 266, 75 So. 2d at 86861.
[Footnote 9] (Emphasis
deleted.) We find these considerations persuasive.
The State argues, however, that to credit Hall's representations
to the trial court would be tantamount to transferring to defense
counsel the authority of the trial judge to rule on the existence
or risk of a conflict and to appoint separate counsel. In the
State's view, the ultimate decision on those matters must remain
with the trial judge; otherwise, unscrupulous defense attorneys
might abuse their "authority," presumably for purposes of delay or
obstruction of the orderly conduct of the trial. [
Footnote 10]
The State has an obvious interest in avoiding such abuses. But
our holding does not undermine that interest. When an untimely
motion for separate counsel is made for dilatory purposes, our
holding does not impair the trial court's ability to
Page 435 U. S. 487
deal with counsel who resort to such tactics.
Cf. United
States v. Dardi, 330 F.2d 316 (CA2),
cert. denied,
379 U.S. 845 (1964);
People v. Kroeger, 61 Cal. 2d
236, 390 P.2d 369 (1964). Nor does our holding preclude a trial
court from exploring the adequacy of the basis of defense counsel's
representations regarding a conflict of interests without
improperly requiring disclosure of the confidential communications
of the client. [
Footnote 11]
See State v. Davis, supra. In this case, the trial court
simply failed to take adequate steps in response to the repeated
motions, objections, and representations made to it, and no
prospect of dilatory practices was present to justify that
failure.
III
The issue remains whether the error committed at petitioners'
trial requires reversal of their convictions. It has generally been
assumed that
Glasser requires reversal, even in the
absence of a showing of specific prejudice to the complaining
codefendant, whenever a trial court improperly permits or requires
joint representation.
See Austin v. Erickson, 477 F.2d 620
(CA8 1973);
United States v. Gougis, 374 F.2d 758 (CA7
1967);
Hall v. State, 63 Wis.2d 304,
217 N.W.2d
352 (1974);
Commonwealth ex rel. Whitling v. Russell,
406 Pa. 45, 176 A.2d 641 (1962); Note, Criminal Codefendants and
the Sixth Amendment: The Case for Separate Counsel, 58 Geo.L.J.
369, 387 (1969). Some courts and commentators have argued, however,
that appellate courts should not reverse automatically in such
cases, but rather should affirm unless the defendant can
demonstrate prejudice.
See United States
Page 435 U. S. 488
v. Woods, 544 F.2d 242 (CA6 1976),
cert.
denied, 430 U.S. 969 (1977); Geer, Representation of Multiple
Criminal Defendants: Conflicts of Interest and the Professional
Responsibilities of the Defense Attorney, 62 Minn.L.Rev. 119,
122-125 (1978). This argument rests on two aspects of the Court's
decision in
Glasser. First, although it had concluded that
Stewart was forced to represent conflicting interests, the Court
did not reverse the conviction of Kretske, Stewart's other client,
because Kretske failed to "show that the denial of Glasser's
constitutional rights
prejudiced [him] in some manner."
315 U.S. at
315 U. S. 76
(emphasis added). Second, the Court justified the reversal of
Glasser's conviction, in part, by emphasizing the weakness of the
Government's evidence against him; with guilt a close question,
"error, which under some circumstances
would not be ground
for reversal, cannot be brushed aside as immaterial, since
there is a real chance that it might have provided the slight
impetus which swung the scales toward guilt."
Id. at
315 U. S. 67
(emphasis added). Assessing the strength of the prosecution's
evidence against the defendant is, of course, one step in applying
a harmless error standard.
See Schneble v. Florida,
405 U. S. 427
(1972);
Harrington v. California, 395 U.
S. 250 (1969).
We read the Court's opinion in
Glasser, however, as
holding that, whenever a trial court improperly requires joint
representation over timely objection, reversal is automatic. The
Glasser Court stated:
"To determine the precise degree of prejudice sustained by
Glasser as a result of the [district] court's appointment of
Stewart as counsel for Kretske is at once difficult and
unnecessary. The right to have the assistance of counsel is too
fundamental and absolute to allow courts to indulge in nice
calculations as to the amount of prejudice arising from its denial.
Cf. Snyder v. Massachusetts, 291 U. S.
97,
291 U. S. 116;
Tumey v.
Ohio, 273 U. S. 510,
273 U. S.
535;
Patton v. United States, 281 U. S.
276,
281 U. S. 292."
315 U.S. at
315 U. S.
75-76.
Page 435 U. S. 489
This language presupposes that the joint representation, over
his express objections, prejudiced the accused in some degree. But,
from the cases cited, it is clear that the prejudice is presumed
regardless of whether it was independently shown.
Tumey v.
Ohio, 273 U. S. 510
(1927), for example, stands for the principle that
"[a] conviction must be reversed if [the asserted trial error
occurred], even if no particular prejudice is shown and even if the
defendant was clearly guilty."
Chapman v. California, 386 U. S.
18,
386 U. S. 43
(1967) (STEWART, J., concurring);
see also id. at
386 U. S. 23,
and n. 8 (opinion of the Court). The Court's refusal to reverse
Kretske's conviction is not contrary to this interpretation of
Glasser. Kretske did not raise his own Sixth Amendment
challenge to the joint representation. 315 U.S. at
315 U. S. 77;
see Brief for Petitioner Kretske in
Glasser v. United
States, O.T. 1941, No. 31. As the Court's opinion indicates,
some of the codefendants argued that the denial of Glasser's right
to the effective assistance of counsel prejudiced them as alleged
coconspirators. 315 U.S. at
315 U. S. 76-77.
In that context, the Court required a showing of prejudice; finding
none, it affirmed the convictions of the codefendants, including
Kretske.
Moreover, this Court has concluded that the assistance of
counsel is among those "constitutional rights so basic to a fair
trial that their infraction can never be treated as harmless
error."
Chapman v. California, supra at
386 U. S. 23.
Accordingly, when a defendant is deprived of the presence and
assistance of his attorney, either throughout the prosecution or
during a critical stage in, at least, the prosecution of a capital
offense, reversal is automatic.
Gideon v. Wainwright,
372 U. S. 335
(1963);
Hamilton v. Alabama, 368 U. S.
52 (1961);
White v. Maryland, 373 U. S.
59 (1963).
That an attorney representing multiple defendants with
conflicting interests is physically present at pretrial
proceedings, during trial, and at sentencing does not warrant
departure from this general rule. Joint representation of
conflicting interests is suspect because of what it tends to
prevent
Page 435 U. S. 490
the attorney from doing. For example, in this case, it may well
have precluded defense counsel for Campbell from exploring possible
plea negotiations and the possibility of an agreement to testify
for the prosecution, provided a lesser charge or a favorable
sentencing recommendation would be acceptable. Generally speaking,
a conflict may also prevent an attorney from challenging the
admission of evidence prejudicial to one client but perhaps
favorable to another, or from arguing at the sentencing hearing the
relative involvement and culpability of his clients in order to
minimize the culpability of one by emphasizing that of another.
Examples can be readily multiplied. The mere physical presence of
an attorney does not fulfill the Sixth Amendment guarantee when the
advocate's conflicting obligations have effectively sealed his lips
on crucial matters.
Finally, a rule requiring a defendant to show that a conflict of
interests -- which he and his counsel tried to avoid by timely
objections to the joint representation -- prejudiced him in some
specific fashion would not be susceptible of intelligent,
evenhanded application. In the normal case where a harmless error
rule is applied, the error occurs at trial, and its scope is
readily identifiable. Accordingly, the reviewing court can
undertake with some confidence its relatively narrow task of
assessing the likelihood that the error materially affected the
deliberations of the jury.
Compare Chapman v. California,
supra at
386 U. S. 24-26,
with Hamling v. United States, 418 U. S.
87,
418 U. S. 108
(1974),
and United States v. Valle-Valdez, 554 F.2d 911,
914-917 (CA9 1977). But in a case of joint representation of
conflicting interests, the evil -- it bears repeating -- is in what
the advocate finds himself compelled to
refrain from
doing, not only at trial but also as to possible pretrial plea
negotiations and in the sentencing process. It may be possible in
some cases to identify from the record the prejudice resulting from
an attorney's failure to undertake certain trial tasks, but, even
with a record of the sentencing hearing available, it would
Page 435 U. S. 491
be difficult to judge intelligently the impact of a conflict on
the attorney's representation of a client. And to assess the impact
of a conflict of interests on the attorney's options, tactics, and
decisions in plea negotiations would be virtually impossible. Thus,
an inquiry into a claim of harmless error here would require,
unlike most cases, unguided speculation.
Accordingly, we reverse and remand for further proceedings not
inconsistent with this opinion.
It is so ordered.
[
Footnote 1]
No transcript of this hearing is included in the record, and we
are not informed whether the hearing was transcribed.
[
Footnote 2]
See Jackson v. Denno, 378 U. S. 368
(1964).
[
Footnote 3]
It is probable that the judge's response, "I don't know why you
wouldn't," referred back to counsel's statement, "I will not be
able to cross-examine them. . . ." If the response is so read, the
judge's later statements,
see infra at
435 U. S. 479
and
435 U. S. 480,
are directly contradictory.
[
Footnote 4]
The record reveals that both the trial court and defense counsel
were alert to defense counsel's obligation to avoid assisting in
the presentation of what counsel had reason to believe was false
testimony, or, at least, testimony contrary to the version of facts
given to him earlier and in confidence.
Cf. ABA Project on
Standards Relating to the Administration of Criminal Justice, The
Defense Function § 7.7(c), p. 133 (1974).
[
Footnote 5]
By inquiring in
Glasser whether there had been a
waiver, the Court also confirmed that a defendant may waive his
right to the assistance of an attorney unhindered by a conflict of
interests. 315 U.S. at
315 U. S. 70. In
this case, however, Arkansas does not contend that petitioners
waived that right.
[
Footnote 6]
See ABA Project on Standards Relating to the
Administration of Criminal Justice, The Function of the Trial Judge
§ 3.4(b), p. 171 (1974):
"Whenever two or more defendants who have been jointly charged,
or whose cases have been consolidated, are represented by the same
attorney, the trial judge should inquire into potential conflicts
which may jeopardize the right of each defendant to the fidelity of
his counsel."
[
Footnote 7]
There is no indication in the record, and the State does not
suggest, that the hearing held in response to the motion of August
13 disclosed information demonstrating the insubstantiality of
Hall's September 4 representations -- based, as nearly as can be
ascertained, on the codefendants' newly formed decision to testify
-- respecting a probable conflict of interests. So far as we can
tell from this record, the trial judge cut off any opportunity of
defense counsel to do more than make conclusory representations.
During oral argument in this Court, Hall represented that the trial
court did not request him to disclose the basis for his
representations as to a conflict of interests.
See Tr. of
Oral Arg. 14-15.
There is no occasion in this case to determine the
constitutional significance, if any, of the trial court's response
to petitioners' mid-trial objections.
[
Footnote 8]
The American Bar Association in its Standards Relating to the
Administration of Criminal Justice, The Defense Function § 3.5(b),
p. 123 (1974) cautions:
"Except for preliminary matters such as initial hearings or
applications for bail, a lawyer or lawyers who are associated in
practice should not undertake to defend more than one defendant in
the same criminal case if the duty to one of the defendants may
conflict with the duty to another. The potential for conflict of
interest in representing multiple defendants is so grave that
ordinarily a lawyer should decline to act for more than one of
several co-defendants except in unusual situations when, after
careful investigation, it is clear that no conflict is likely to
develop and when the several defendants give an informed consent to
such multiple representation."
[
Footnote 9]
When a considered representation regarding a conflict in
clients' interests comes from an officer of the court, it should be
given the weight commensurate with the grave penalties risked for
misrepresentation.
[
Footnote 10]
Such risks are undoubtedly present; they are inherent in the
adversary system. But courts have abundant power to deal with
attorneys who misrepresent facts.
[
Footnote 11]
This case does not require an inquiry into the extent of a
court's power to compel an attorney to disclose confidential
communications that he concludes would be damaging to his client.
Cf. ABA Code of Professional Responsibility, DR
4-101(C)(2) (1969). Such compelled disclosure creates significant
risks of unfair prejudice, especially when the disclosure is to a
judge who may be called upon later to impose sentences on the
attorney's clients.
MR. JUSTICE POWELL, with whom MR. JUSTICE BLACKMUN and MR.
JUSTICE REHNQUIST join, dissenting.
While disavowing a
per se rule of separate
representation, the Court holds today that the trial judge's
failure in this case "either to appoint separate counsel or take
adequate steps to ascertain whether the risk was to remote to
warrant separate counsel" worked a violation of the guarantee of
"assistance of counsel" embodied in the Sixth and Fourteenth
Amendments. The Court accepts defense counsel's representations of
a possible conflict of interests among his clients and of his
inability to conduct effective cross-examination as being adequate
to trigger the trial court's duty of inquiry. The trial court
should have held an appropriate hearing on defense counsel's
motions for separate representation, but our task is to decide
whether this omission assumes the proportion of a constitutional
violation. Because I cannot agree that, in the particular
circumstances of this case, the court's failure to inquire requires
reversal of petitioners' convictions, and because the Court's
opinion contains seeds of a
per se rule of separate
representation merely upon the demand of defense counsel, I
respectfully dissent.
I
It is useful to contrast today's decision with the Court's most
relevant previous ruling,
Glasser v. United States,
315 U. S. 60
(1942). In that case, the trial court ordered Glasser's
Page 435 U. S. 492
retained lawyer, Stewart, to represent both Glasser and his
codefendant, Kretske, even though Stewart had identified
"inconsistency in the defense" that counseled against joint
representation.
Id. at
315 U. S. 68.
This Court reversed Glasser's conviction because his lawyer had
been required to undertake simultaneous representation of
"conflicting interests."
Id. at
315 U. S. 70.
The
Glasser decision did not rest only on the
determination that "[t]he possibility of the inconsistent interests
of Glasser and Kretske [had been] brought home to the court. . . ."
Id. at
315 U. S. 71.
Instead, the Court proceeded to find record support for Glasser's
claim of "impairment" of his Sixth Amendment right to assistance of
counsel. The evidence "indicative of Stewart's struggle to serve
two masters [could not] seriously be doubted."
Id. at
315 U. S. 75;
see also id. at
315 U. S.
76.
Today's decision goes well beyond the limits of
Glasser. I agree that the representations made by defense
counsel in this case, while not as informative as the affidavit of
counsel Stewart in
Glasser, were sufficient to bring into
play the trial court's duty to inquire further into the possibility
of "conflicting interests." I question, however, whether the
Constitution is violated simply by the failure to conduct that
inquiry, without any additional determination that the record
reveal a case of joint representation in the face of "conflicting
interests." The Court's approach in this case is not premised on an
ultimate finding of conflict of interest or ineffective assistance
of counsel. Rather, it presumes prejudice from the failure to
conduct an inquiry, equating that failure with a violation of the
Sixth Amendment guarantee. The justification for this approach
appears to be the difficulty of a
post hoc reconstruction
of the record to determine whether a different outcome, or even a
different defense strategy, might have obtained had the trial court
engaged in the requisite inquiry and ordered separate
representation. Although such difficulty may be taken into account
in the allocation of the burden of persuasion on the questions of
conflict and prejudice,
see infra
Page 435 U. S. 493
at
435 U. S.
495-496, I am not convinced of the need for a
prophylactic gloss on the requirements of the Constitution in this
area of criminal law.
Cf. Miranda v. Arizona, 384 U.
S. 436 (1966).
Several other aspects of the Court's opinion suggest a rule of
separate representation upon demand of defense counsel. The Court
leaves little room for maneuver for a trial judge who seeks to
inquire into the substantiality of the defense counsel's
representations. Apparently, the trial judge must order separate
representation unless the asserted risk of conflict "was too remote
to warrant separate counsel,"
ante at
435 U. S. 484,
a formulation that suggests a minimal showing on the part of
defense counsel. The Court also offers the view that defense
counsel in this case could not be expected to make the kind of
specific proffer that was present in
Glasser because of "a
risk of violating, by more disclosure, his duty of confidentiality
to his clients."
Ante at
435 U. S. 485.
Although concededly not necessary to a decision in this case, the
Court then states that the trial court's inquiry must be conducted
"without improperly requiring disclosure of the confidential
communications of the client."
Ante at
435 U. S. 487,
and n. 11. [
Footnote 2/1] When
these intimations are coupled with the Court's policy of automatic
reversal,
see ante at
435 U. S.
488-489, the path may have been cleared for potentially
disruptive demands for separate counsel predicated solely on the
representations of defense counsel.
Page 435 U. S. 494
II
Recognition of the limits of this Court's role in adding
protective layers to the requirements of the Constitution does not
detract from the Sixth Amendment obligation to provide separate
counsel upon a showing of reasonable probability of need. In my
view, a proper accommodation of the interests of defendants in
securing effective assistance of counsel and that of the State in
avoiding the delay, potential for disruption, and costs inherent in
the appointment of multiple counsel, [
Footnote 2/2] can be achieved by means which sweep less
broadly than the approach taken by the Court. I would follow the
lead of the several Courts of Appeals that have recognized the
trial court's duty of inquiry in joint representation cases without
minimizing the constitutional predicate of "conflicting interests."
[
Footnote 2/3]
Page 435 U. S. 495
Ordinarily, defense counsel has the obligation to raise
objections to joint representation as early as possible before the
commencement of the trial. [
Footnote
2/4] When such a motion is made, supported by a satisfactory
proffer, the trial court is under a duty to conduct "the most
careful inquiry to satisfy itself that no conflict of interest
would be likely to result and that the parties involved had no
valid objection."
United States v. DeBerry, 487 F.2d 448,
453 (CA2 1973). At that hearing, the burden is on defense counsel,
because his clients are in possession of the relevant facts, to
make a showing of a reasonable likelihood of conflict or prejudice.
Upon such a showing, separate counsel should be appointed.
"If the court has carried out this duty of inquiry, then, to the
extent a defendant later attacks his conviction on grounds of
conflict of interest arising from joint representation, he will
bear a heavy burden indeed of persuading"
the reviewing court "that he us, for that reason, deprived of a
fair trial."
United States v. Foster, 469 F.2d 1, 5 (CA1
1972). If, however, a proper and timely motion is made, and no
hearing is held, "the lack of satisfactory judicial inquiry shifts
the burden of proof on the question of prejudice to the
Government."
United States v. Carrigan, 543 F.2d 1053,
1056 (CA2 1976).
Since the trial judge in this case failed to inquire into
the
Page 435 U. S. 496
substantiality of defense counsel's representations of September
4, 1975,
ante at
435 U. S. 484
n. 7, the burden shifted to the State to establish the
improbability of conflict or prejudice. I agree that the State's
burden is not met simply by the assertion that the defenses of
petitioners were not mutually inconsistent, for that is not an
infrequent consequence of improper joint representation.
Nevertheless, the record must offer some basis for a reasonable
inference that "conflicting interests" hampered a potentially
effective defense.
See, e.g., United States v. Donahue,
560 F.2d 1039, 1044-1045 (CA1 1977). Because the State has
demonstrated that such a basis cannot be found in the record of
this case, [
Footnote 2/5] I would
affirm the judgment of the Supreme Court of Arkansas.
[
Footnote 2/1]
I do not propose to resolve here the tension between the
assertion of a constitutional right and a claim of lawyer-client
privilege. But I reject the assumption that defense counsel will be
unable to discuss in concrete terms the difficulties of joint
representation in a particular case without betraying confidential
communications. Nor am I persuaded that the courts will be unable
to pursue a meaningful inquiry without insisting on a breach of
confidentiality. Experience in the somewhat analogous area of
claims of exemption from the disclosure requirements of the Freedom
of Information Act, 5 U.S.C. § 552 (1976 ed.), supports this point.
See, e.g., EPA v. Mink, 410 U. S. 73,
410 U. S. 92-94
(1973);
Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 20
(1973),
cert. denied, 415 U.S. 977 (1974).
[
Footnote 2/2]
Each addition of a lawyer in the trial of multiple defendants
presents increased opportunities for delay in setting the trial
date, in disposing of pretrial motions, in selecting the jury, and
in the conduct of the trial itself. Additional lawyers also may
tend to enhance the possibility of trial errors. Moreover, in light
of professional canons of ethics,
cf. ABA Code of
Professional Responsibility, DR 5-105(D) (1969);
Allen v.
District Court, 184 Colo. 202, 205-206, 519 P.2d 361, 353
(1974); Tr. of Oral Arg. 6-7, 15-16, a rule requiring separate
counsel virtually upon demand may disrupt the operation of public
defender offices.
[
Footnote 2/3]
See, e.g., United States v. Carrigan, 543 F.2d 1053,
1055-1056 (CA2 1976):
"The mere representation of two or more defendants by a single
attorney does not automatically give rise to a constitutional
deprivation of counsel. It is settled in this Circuit that some
specific instance of prejudice, some real conflict of interest,
resulting from a joint representation must be shown to exist before
it can be said that an appellant has been denied the effective
assistance of counsel.
United States v. Mari, . . . 526
F.2d [117,] 119 [(CA2 1975)];
United States v. Vowteras,
500 F.2d 1210, 1211 (2d Cir.),
cert. denied, 419 U.S. 1069
. . . (1974);
United States v. Wisniewski, 478 F.2d 274,
281 (2d Cir.1973);
United States v. Lovano, 420 F.2d 769,
773 (2d Cir.),
cert. denied, 397 U.S. 1071 . . . (1970).
In all of these cases, the trial court had carefully inquired as to
the possibility of prejudice and elicited the personal responses of
the defendants involved. Here, the record is barren of any inquiry
by the court or any concern by the Government."
"In
United States v. DeBerry, supra, 487 F.2d at
453-54, we . . . noted with approval the view of the First Circuit
in
United States v. Foster, 469 F.2d 1, 5 (1st Cir.1972),
that the lack of satisfactory judicial inquiry shifts the burden of
proof on the question of prejudice to the Government. 487 F.2d at
453 n. 6."
[
Footnote 2/4]
Since a proper, timely objection was interposed in this case,
there is no occasion to identify the circumstances which might
trigger a duty of inquiry in the absence of such a motion.
Of course, a later motion may be appropriate if the conflict is
not known or does not become apparent before trial proceeds. To
guard against strategic disruption of the trial, however, the court
may require a substantial showing of justification for such
mid-trial motions.
[
Footnote 2/5]
It is unlikely that separate counsel would have been able to
develop an independent defense in this case because of the degree
of overlap in the identification testimony by the State's witnesses
and because of the consistency of the alibis advanced by
petitioners. Campbell and Welch, who are half brothers, both used
the same alibi. Since Campbell was not identified as an actual
participant in the rapes, it might be argued that separate counsel
would have encouraged him to endorse his earlier confession in an
effort to show that he was less culpable than his two codefendants.
But, given his common alibi with Welch, Campbell would have found
it difficult to extricate himself from his half brother's cause. In
any event, such an argument would have been an appeal to jury
nullification, because, as the court below noted, Campbell's denial
of direct involvement in the rapes "had no effect on his guilt as a
principal." 260 Ark. 250, 256,
539 S.W.2d
435, 439 (1976). Conceivably, Holloway, who gave an independent
alibi, might have wished to argue that, while the State had
apprehended two of the real culprits, his arrest was due to a
mistaken identification. It is most unlikely that separate counsel
would have succeeded on such a tack, because each witness who
identified Holloway also identified one of the other two
codefendants. Moreover, petitioners do not argue in this Court that
joint representation impeded effective cross-examination of the
State's witnesses. In sum, this is not a case where an inquiry into
the possibility of "conflicting interests" reasonably might have
revealed a basis for separate representation.