The opinion
CRAYEN, District Judge
(dissenting).
This case serves to further convince me that the price society pays for capital punishment is much more than it is worth. See Faust v. N. C., 307 F.2d 869 (4th Cir., 1962). This time the price is exacted in the coin of disruption in the still sensitive area of federal — state relations. See: Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441 (1963).
Neither Shedd nor Case offered any legal defense worthy of the designation; the battle was joined over punishment (life imprisonment or death) rather than guilt or innocence.
Case selected and employed his own lawyer and did so knowing that the same lawyer had previously been employed by Shedd. He now urges successfully that his choice was not only unwise but also unconstitutional in view of the joint trial. His complaint comes to this: that because he was the older and more intelligent of the two defendants, as well as being the uncle of his co-defendant, the impression may have been created in the minds of the jury that he was more blameworthy than the younger and moronic Shedd, and that his lawyer was not free to combat this impression (if, indeed, he could) without harming Shedd, whom he also represented.
The alleged conflict of interest relates solely to the relative blameworthiness of the co-defendants. No other conflict of interest is suggested or briefed.
*746 Whenever two or more persons are on trial for the same crime there is always the problem of relative blameworthiness. This is so because punishment no longer is said to fit the crime but, instead, is designed to fit the individual malefactor ■ — and no two can be exactly alike.
If there be an inherent conflict of interest, as the court says, it would appear to be inherent in all cases of multiple defendants represented in the same trial by the same lawyer.
If I understand the majority opinion, it means that henceforth multiple defendants charged with a capital crime may compel separate trials by the simple device of choosing the same lawyer.
The awful finality of death may well justify the result. I am unable to agree that the Constitution requires it.