IRVING v. MISSISSIPPI
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441 U.S. 913 (1979)
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U.S. Supreme Court
IRVING v. MISSISSIPPI , 441 U.S. 913 (1979)
441 U.S. 913
John Buford IRVING, III
State of MISSISSIPPI
Supreme Court of the United States
April 16, 1979
On petition for writ of certiorari to the Supreme Court of Mississippi.
The petition for a writ of certiorari is denied.
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
I adhere to my view that the death penalty is unconstitutional under all circumstances. Furman v. Georgia, 408 U.S.
238, 314 (1972) (MARSHALL, J., concurring); Gregg v. Georgia, 428 U.S. 153, 231 (1976) ( MARSHALL, J., dissenting). I would therefore grant certiorari and vacate the death sentence on this basis alone. However, because the Mississippi Supreme Court's ruling on an issue of joint representation appears inconsistent with this Court's prior decisions, I believe certiorari should be granted on that ground as well.
Petitioner John Irving was indicted in Pontotoc County, Miss. on July 7, 1976, for capital murder. Both petitioner and a separately indicted accomplice, Keith Givhan, retained the same counsel. On November 8, 1976, the day before petitioner's trial, his attorney filed a motion to withdraw because of a conflict of interest. Counsel did, however, express his willingness to continue representing Givhan, whose trial was scheduled for the following week. After a hearing, the circuit court denied the motion and petitioner's case proceeded to trial. A jury found petitioner guilty as charged and sentenced him to death. The Mississippi Supreme Court affirmed. Irving v. State, 361 So.2d 1360 (1978).
In the affidavit supporting his motion to withdraw, petitioner's counsel identified several potential sources of conflict. Each defendant had given an inculpatory statement implicating the other. Also, during the period of pretrial incarceration, each had developed inconsistent theories of defense. Finally, plea negotiations with the local district and county attorneys had raised the possibility of a bargain in one case but not the other. Under those circumstances, counsel averred that he could not, based on his "reading of Glasser [v. United States, 315 U.S. 60 (1942),] advise either defendant . . . as to what posture [he] should assume." Record 53.
In Glasser, this Court stated: "[t]he 'assistance of counsel' guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests." 315 U.S., at 70. Just last Term, in [441 U.S. 913 , 915]