holding that an accused must establish that his or her counsel was “actively representing divergent interests,” that the conflict was actual, not hypothetical, and that the conflict of interest “adversely affected his [or her] lawyer’s performance” in order to establish a constitutional deprivation
How later courts described this case
- holding that an accused must establish that his or her counsel was “actively representing divergent interests,” that the conflict was actual, not hypothetical, and that the conflict of interest “adversely affected his [or her] lawyer’s performance” in order to establish a constitutional deprivation
- explaining that "the [s]tate participate[s] in the denial of ... [t]he right to counsel guaranteed by the Sixth Amendment" when it "conduct[s] trials at which persons who face incarceration must defend themselves without adequate legal assistance"
- holding that “multiple representation does not violate the Sixth Amendment unless it gives rise to a conflict of interest” and “a reviewing court cannot presume that the possibility for conflict has resulted in ineffective assistance of counsel”
- holding that the constitutional right to effective assistance of counsel in criminal cases is based on the constitutional right to assistance of counsel in criminal cases and applies equally to court-appointed lawyers and retained lawyers
Written by the judges who cited it.
Later courts went against this
Questioned by Robert Lee Holleman v. Zettie Cotton, 301 F.3d 737 (2002)
Court recently has cast doubt on whether the principle of Cuyler v. Sullivan should be applied to cases where trial judges have failed to inquire into conflicts of interest in successive representation cases, see Mickens, — U.S. at -, 122 S.Ct. at 1245, even if Cuyler applied in the present case, Holleman cannot show prejudice with respect to his judicial inquiry claim.
Questioned by Edwards v. State, 393 So. 2d 597 (1981)
I am frank to acknowledge that Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), puts in doubt the continued validity of the above line of Florida decisions.
Distinguished
Distinguished by Dassey v. Dittmann, 201 F. Supp. 3d 963 (2016)
Thus, Sullivan is inapplicable here.
Distinguished by Jones v. Workman, 98 F. Supp. 3d 1179 (2015)
Finally, Wood, like Sullivan, is easily distinguishable from Petitioner’s claim.
Distinguished by Steward v. Commonwealth, 2012 Ky. LEXIS 202 (2012)
However, since the Supreme Court’s opinion in Mickens, the Sixth Circuit has stated that the rule pronounced in Sullivan "is inapplicable to cases of successive representations.
Distinguished by State v. Severson, 147 Idaho 694 (2009)
Because Severson objected to the conflict at trial and is now challenging the court's alleged failure to conduct an adequate inquiry, Cuyler is inapplicable.
The opinion
Mr. Justice Brennan,
concurring in Part III of the opinion of the Court and in the result.
I agree with the Court, in Part III, ante, at 342-345, that the alleged failure of retained counsel to render effective assistance involves state action and thus provides the basis for a writ of habeas corpus. I cannot, however, join Part IV of the opinion.
*351 Holloway v. Arkansas, 435 U. S. 475 (1978), settled that the Sixth Amendment right to effective assistance of counsel encompasses the right to representation by an attorney who does not owe conflicting duties to other defendants. While Holloway also established that defendants usually have the right to share a lawyer if they so choose, that choice must always be knowing and intelligent. The trial judge, therefore, must play a positive role in ensuring that the choice was made intelligently. The court cannot delay until a defendant or an attorney raises a problem, for the Constitution also protects defendants whose attorneys fail to consider, or choose to ignore, potential conflict problems. “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.” Glasser v. United States, 315 U. S. 60, 71 (1942). “While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.” Johnson v. Zerbst, 304 U. S. 458, 465 (1938). This principle is honored only if the accused has the active protection of the trial court in assuring that no potential for divergence in interests threatens the adequacy of counsel’s representation.
It is no imposition on a trial court to require it to find out whether attorneys are representing “two or more defendants [who] have been jointly charged ... or have been joined for trial . . . ,” to use the language of proposed Federal Rule of Criminal Procedure 44 (c). 1 It is probable as a practical *352 matter that virtually all instances of joint representation will appear from the face of the charging papers and the appearances filed by attorneys. The American Bar Association’s standards under the ABA Project on Standards for Criminal Justice, Function of the Trial Judge § 3.4 (b) (App. Draft 1972), are framed on the premise that judges will be readily able to ascertain instances of joint representation.
“[A] possible conflict inheres in almost every instance of multiple representation.” Ante, at 348. Therefore, upon discovery of joint representation, the duty of the trial'court is to ensure that the defendants have not unwittingly given up their constitutional right to effective counsel. This is necessary since it is usually the case that defendants will not know what their rights are or how to raise them. This is surely true of the defendant who may not be receiving the effective assistance of counsel as a result of conflicting duties owed to other defendants. Therefore, the trial court cannot safely assume that silence indicates a knowledgeable choice to proceed jointly. The court must at least affirmatively advise the defendants that joint representation creates potential hazards which the defendants should consider before proceeding with the representation. 2
*353 Had the trial record in the present case shown that respondent made a knowing and intelligent choice of joint representation, I could accept the Court’s standard for a postconviction determination as to whether respondent in fact was denied effective assistance. Where it is clear that a defendant has voluntarily chosen to proceed with joint representation, it is fair, if he later alleges ineffective assistance growing out of a conflict, to require that he demonstrate “that a conflict of interest actually affected the adequacy of his representation.” Ante, at 349. Here, however, where there is no evidence that the court advised respondent about the potential for conflict or that respondent made a knowing and intelligent choice to forgo his right to separate counsel, I believe that respondent, who has shown a significant possibility of conflict, 3 is entitled to a presumption that his representation in fact suffered. Therefore, I would remand the case to allow the *354 petitioners an opportunity to rebut this presumption by demonstrating that respondent's representation was not actually affected by the possibility of conflict.
Proposed Rule 44 (e) provides:
“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 *352 advise each defendant of his 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.”
Congress has postponed the effectiveness of Rule 44 (c) until December 1, 1980, or until, and to the extent approved by, an Act of Congress, whichever is earlier. Pub. L. 92-42, 93 Stat. 326.
Though proposed Rule 44 (c), n. 1, supra, provides a good model, the court’s inquiry need not take any particular form. See also ABA Project on Standards for Criminal Justice, Function of the Trial Judge § 3.4 (b) (App. Draft 1972), which provides:
“Whenever .two or more defendants who have been jointly charged, or whose cases have been consolidated; are represented by the same attorney, *353 the trial judge should inquire into potential conflicts which may jeopardize the right of each defendant to the fidelity of his counsel.”
Several Courts of Appeals have imposed some kind of duty of inquiry. See ante, at 346, n. 10. One, the First Circuit, has suggested that at least the duty, as opposed to any specific form of inquiry, may be constitutionally mandated. United States v. Waldman, 579 F. 2d 649, 653 (1978).
The Court of Appeals held that respondent successfully carried the burden of demonstrating “a possibility of prejudice or conflict of interest and that independent counsel might well have chosen a different trial strategy.” United States ex rel. Sullivan v. Cuyler, 593 F. 2d 512, 521 (1979). The court based its holding, in part, on the testimony of one of respondent’s two trial attorneys. He testified that they chose not to present a defense in respondent’s case partly because they did not want to expose their defense before the upcoming trials of respondent’s codefend-ants. Also, they did not want to risk having any evidence come out which, while exculpating respondent, might inculpate one of the codefend-ants. Ibid. The court credited this testimony. Id., at 522 .
The facts of this case demonstrate that, contrary to the view of the Court, ante, at 347, the provision of separate trials does not always reduce the potential for conflict. Here, in fact, “the potential for a divergence in [the codefendants’] interests,” ibid., arose, in part, precisely because there were separate trials.