The petition for writ of certiorari to the Supreme Court of
California.
Denied.
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
Adhering to my view that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the
Eighth
Page 494 U.S.
1039 , 1040
and Fourteenth Amendments, Gregg v. Georgia,
428 U.S.
153, 231, 2973 (1976) (MARSHALL, J., dissenting), I would grant
the petition for certiorari and vacate the death penalty in this
case. Even if I did not take this view, I would grant the petition
because it raises several important and recurring questions
concerning a criminal defendant's Sixth Amendment right to the
assistance of counsel unburdened by any conflict of interest.
First, on what showing must a trial court explore a possible
conflict on the part of a defendant's attorney? Second, if a
defendant's attorney had an actual conflict, must the defendant
demonstrate that the conflict adversely affected the attorney's
performance in order to obtain a new trial?
I
On the eve of his trial for several murders and robberies,
petitioner William George Bonin moved to replace Earl Hanson, who
had been his attorney for over a year, with William Charvet. The
prosecution opposed the motion principally on the ground that
substituting Charvet would create two conflicts of interest that
could jeopardize the effectiveness of Charvet's representation.
First, Charvet had maintained an attorney- client relationship with
James Munro, Bonin's alleged accomplice and a key prosecution
witness against him, during which Charvet and Munro had discussed
the facts of the case. Second, the prosecution maintained that
Charvet's retainer agreement likely included a provision giving him
the literary rights to Bonin's life story. The trial court
initially denied Bonin's motion to substitute Charvet for Hanson,
in large part because it found that Charvet's relationship with
Munro created an actual conflict of interest. The court later
permitted Charvet to represent Bonin, however, without addressing
either conflict and without obtaining a waiver from Bonin of his
right to conflict-free counsel.
Bonin subsequently was convicted of 10 counts of murder and
robbery and sentenced to death. The California Supreme Court, in a
split decision, affirmed the convictions and sentence, rejecting
Bonin's argument that Charvet's alleged and actual conflicts of
interest deprived Bonin of effective assistance of counsel. The
court held that the trial court did not err by failing to explore
the alleged literary rights agreement because the trial court had
not been presented with sufficient evidence of such an agreement.
Although the State Supreme Court did find that the trial court
erred in allowing Charvet's substitution after learning of his-
Page 494 U.S.
1039 , 1041
rela tionship with Munro, it refused to reverse the convictions
and sentence on the ground that Bonin had not demonstrated that
Charvet's performance as counsel was adversely affected by this
conflict of interest .
47 Cal. 3d
808,
765 P.2d 460
(1989).
II
I would grant Bonin's petition to determine whether the trial
court had a duty to inquire into the potential conflict of interest
arising from the alleged literary rights deal between Charvet and
Bonin. It is well established that the right to effective
assistance of counsel carries with it "a correlative right to
representation that is free from conflicts of interest." Wood v.
Georgia,
450 U.S.
261, 271, 1103, 67 L. Ed. 2d 220 (1981). It is also apparent
that a literary rights agreement may seriously undermine an
advocate's loyalty to his client's interests. In a passage quoted
in the California Supreme Court's opinion, the American Bar
Association underscores the dangers of such arrangements:
"A grave conflict of interest can
arise out of an agreement between a lawyer and an accused giving
the lawyer the right to publish books, plays, articles, interviews,
pictures, or related literary rights concerning the case. . . .
[I]t may place the lawyer under temptation to conduct the defense
with an eye on the literary aspects and its dramatic potential. If
such an arrangement or contract is part of the fee, in lieu of the
fee, or a condition of accepting the employment, it is especially
reprehensible." ABA Standards for Criminal Justice, 4-3.4 (2d ed.
1980).
See also 47 Cal.3d, at 836, 765 P.2d, at 475 (quoting prior
draft of ABA Standard).
To protect a defendant's right to conflict-free counsel, a trial
court must initiate an inquiry when it knows or reasonably should
know of the possibility of a conflict of interest. Wood v. Georgia,
supra, at 272, and n. 18 and n. 18; see also Wheat v. United
States,
486 U.S.
153, 160, 1697 (1988); Cuyler v. Sullivan,
446 U.S.
335, 347, 1717 (1980). In Wood, the petitioners had been
convicted of distributing obscene materials. Their probation was
revoked when they failed to pay substantial fines. This Court
vacated the probation revocation because the trial court had failed
to inquire into a possible conflict of interest on the part of the
petitioners' attorney. The possibility of a conflict was apparent
not from any concrete
Page 494 U.S.
1039 , 1042
evidence, but from the circumstances of the representation. In
particular, the petitioners' lawyer, who had been selected and paid
by their employer, pressed a constitutional attack rather than
arguing for leniency and a reduction in the fines, possibly to
create a test case for the petitioners' employer. Wood v. Georgia,
450 U.S., at 272. Moreover, this Court found that the "the fact
that the State raised the conflict problem explicitly and requested
that the court look into it" should have alerted the trial court to
the need for further inquiry. Id., at 273. The Court held that
although it was difficult to determine from the appellate record
whether an actual conflict was present, "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." Id., at 272.
The California Supreme Court departed from Wood in this case by
holding that a defendant must present hard evidence to trigger a
trial court's duty to investigate a potential conflict of interest.
The possibility of a conflict here was at least as apparent as it
was in Wood. Bonin, though indigent, was able to hire a private
attorney on the eve of the trial in a highly publicized and
notorious case. The prosecution specifically objected to the
substitution of Charvet because of the likelihood that the retainer
agreement included a literary rights deal. When the court asked
Charvet whether he had made such a deal with Bonin, he answered
evasively, asserting that the prosecution had no right to inquire
into his fee arrangement and that this Court would sanction any
literary rights agreement. Despite the clear possibility that
Charvet had entered into a retainer agreement that could seriously
compromise his duty of loyalty to his client, the court failed to
inquire further, even after continued objection by the
prosecution.
Because the trial court did not conduct the necessary inquiry,
it is impossible for this Court to determine from the record
whether an actual conflict resulted from a literary rights deal. As
in Wood, supra, at 273, the only appropriate response in such a
circumstance is to vacate the judgment below and remand to the
trial court for it to determine whether an actual conflict existed.
If the trial court were to find an actual conflict, I believe, for
the reasons next set out, that Bonin is entitled to a new
trial.
Page 494 U.S.
1039 , 1043
III
I would also grant Bonin's petition to decide whether a criminal
defendant denied the right to conflict-free counsel must show that
the conflict adversely affected his attorney's performance. The
California Supreme Court acknowledged Charvet's prior
attorney-client relationship with Munro; it further held that the
trial court erred by permitting Charvet to represent Bonin without
obtaining a waiver from Bonin of his right to conflict-free
counsel.* Nevertheless, the court refused to reverse Bonin's
conviction because petitioner had not shown that the conflict
adversely affected Charvet's performance. In my view, we should
presume adverse effect on counsel's performance once an actual
conflict is shown.
This Court has never squarely resolved the question whether
proof of adverse effect is required to overturn a conviction once
an actual conflict is proved. In Cuyler v. Sullivan, the Court
stated that where a trial court has no reason to suspect a possible
conflict, a defendant, in order to establish a Sixth Amendment
violation on appeal, must show that " an actual conflict of
interest adversely affected his lawyer's performance ." 446 U.S.,
at 348. Sullivan left unclear, however, whether an actual conflict
should be presumed to have an adverse effect, or whether a
defendant must prove both an actual conflict and an adverse effect.
See id., at 358 (MARSHALL, J., concurring in part and dissenting in
part). Sullivan held merely that "the possibility of conflict is
insufficient to impugn a criminal conviction" on appeal. Id., at
350 (emphasis added). This Court subsequently appeared to suggest
in dictum that Sullivan required separate showings of actual
conflict and adverse effect to reverse a criminal conviction.
Strickland v. Washington,
466 U.S.
668, 692, 2067d 674 (1984) ("Prejudice is presumed only if the
defendant demonstrates that counsel 'actively represented
conflicting interests' and that 'an actual conflict of interest
adversely affected his lawyer's performance' ") (quoting Cuyler v.
Sullivan, supra, 446 U.S., at 350, 348, 1718). Strickland 's
reading of Sullivan, however, is at odds with the holding in Wood
v. Georgia. In Wood, this Court not only vacated the judgment below
because
Page 494 U.S.
1039 , 1044
the trial court had failed to investigate a possible conflict,
but it also instructed the trial court to conduct a new revocation
hearing if it found that an actual conflict existed and that the
petitioners had not waived their right to conflict-free counsel.
Wood v. Georgia, 450 U.S., at 273- 274-1104. The Court did not
require the petitioners to prove on remand that the conflict
adversely affected their counsel's performance.
It is axiomatic 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.' " Holloway v.
Arkansas,
435 U.S.
475, 489, 1181 (1978) (quoting Chapman v. California,
386 U.S.
18, 23, 827 (1967)). The right to counsel's undivided loyalty
is a critical component of the right to assistance of counsel; when
counsel is burdened by a conflict of interest, he deprives his
client of his Sixth Amendment right as surely as if he failed to
appear at trial. See Holloway v. Arkansas, supra, 435 U.S ., at 490
("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").
For this reason, a defendant who shows an actual conflict need not
demonstrate that his counsel's divided loyalties prejudiced the
outcome of his trial. Cuyler v. Sullivan, supra, 446 U.S., at
349-350-1719. The right to conflict-free counsel is simply too
important and absolute "to allow courts to indulge in nice
calculations as to the amount of prejudice arising from its
denial." Glasser v. United States,
315 U.S.
60, 76, 467 (1942); accord, Cuyler v. Sullivan, supra, 446
U.S., at 349. We should be no more willing to countenance nice
calculations as to how a conflict adversely affected counsel's
performance. "The conflict itself demonstrate[s] a denial of the
'right to have the effective assistance of counsel.' " Cuyler v.
Sullivan, supra, at 349 ( quoting Glasser v. United States, supra,
315 U.S., at 76).
Moreover, requiring proof of actual adverse effect would
essentially eliminate all Sixth Amendment claims based on conflicts
of interest because gauging how a conflict affected an attorney's
performance is usually impossible. As this Court explained in the
context of prejudice:
"[I]n 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 indentify
from
Page 494 U.S.
1039 , 1045
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 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." Holloway v.
Arkansas, supra, 435 U.S., at 490-491.
The same factors that make it nearly impossible to show
prejudice make it equally difficult to prove adverse effect. In
this case, for example, how could petitioner demonstrate on appeal
that Charvet's attorney-client relationship with Munro limited
Charvet's ability to cross- examine Munro? The California Supreme
Court was satisfied that Charvet's attack on Munro's credibility
during cross-examination was "broad and deep ." But an appellate
court cannot determine what Charvet was unable to ask for fear of
violating Munro's attorney-client privilege. Given the finding that
Charvet's relationship with Munro created a conflict, it seems
beyond doubt that Charvet must have refrained from pursuing certain
lines of inquiry. Similarly, if the trial court on remand were to
find that an actual conflict resulted from the literary rights
agreement, it would be exceedingly difficult for that court, or an
appellate court, to determine whether counsel's actions or
inactions resulted from strategic choices made in the interest of
his client or, rather, from counsel's own interest in maximizing
the trial's drama so as to create a bestseller.
Conflict-of-interest claims thus differ in kind from standard
ineffective-assistance-of-counsel claims. This Court has, with
respect to the latter, indulged in the presumption that counsel's
conduct was the result of strategic decisions made in accordance
with the client's best interests. Strickland v. Washington, 466
U.S., at 689 . Such a presumption is arguably tenable in those
cases because counsel's basic loyalty to his client is not in
question. When a known conflict undermines counsel's duty of
loyalty, "perhaps the most basic of counsel's duties," id., at 692,
however, that presumption is inapplicable; instead, a court must
presume that counsel's divided loyalties adversely affected his
performance on behalf of his client. When the effects of a
constitutional violation are not only unknown but unknowable, the
Constitution demands that doubts be resolved in favor of a criminal
defendant. Unless the
Page 494 U.S.
1039 , 1046
defendant validly waived his right to conflict-free counsel,
then, a showing of actual conflict alone necessitates a new
trial.
IV
Because Bonin stands to be executed, it is imperative that this
Court ensure that he was fairly tried and sentenced. The Sixth
Amendment demands that every criminal defendant receive the
assistance of conflict- free counsel. It is undisputed that
petitioner's counsel was burdened by at least one actual conflict
and possibly another. It is also a fact that petitioner did not
waive his right to conflict-free counsel. In these circumstances,
the Sixth Amendment requires that petitioner be given a new trial.
I therefore dissent from the denial of certiorari.
Footnotes
[
Footnote *] Of course, if Bonin had
knowingly, intelligently, and voluntarily waived his right to
conflict-free counsel he would have no grounds for appeal on this
score. Cf. Wheat v. United States,
486 U.S. 153, 166-167,
1700-1701, and n. 1 (1988) (MARSHALL, J., dissenting). Absent such
a waiver, however, the trial court had a duty to inquire into
possible conflicts and, upon finding an actual conflict, to deny
the motion to substitute Charvet.