describing Cooper as "actual prejudice" test
How later courts described this case
- describing Cooper as "actual prejudice" test
- attorney’s simultaneous representation of a prosecution witness and the defendant was held to be an actual conflict of interest
Written by the judges who cited it.
The opinion
TANG, Circuit Judge,
concurring:
I fully concur in the above opinion. I write separately only to highlight the standards that should govern the district court’s determination on remand. The district court concluded that the appellant’s representation was not adversely affected because further cross-examination of the D.E.A. agent was highly unlikely to change the verdict against the appellant. Although this is the proper inquiry under the “actual prejudice” test of Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974 , 99 S.Ct. 1542 , 59 L.Ed.2d 793 (1979), it is not the inquiry required by Cuyler v. Sullivan, 446 U.S. 335 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980). To satisfy Cuyler , the district court must determine whether the appellant’s attorney refrained from a more vigorous cross-examination of the D.E.A. agent because of his divided loyalties, and, if so, whether the appellant’s representation would have benefited even marginally from a more aggressive cross-examination.