West v. People Cano v. People

JUSTICE COATS,

dissenting.

T 68 While I applaud the majority for acknowledging our longtime misinterpretation of the limited exception to the Strickland ineffective assistance standard for actual con *535 flicts of interest, I nevertheless believe the majority continues to understand that exception far too broadly. Unlike the majority, I consider it clear that the Sullivan exception, or prophylaxis, was never intended to provide a different standard for conflicts of interest generally, but instead was created for, and has been applied by the Supreme Court solely to, the inherently prejudicial situation posed by the simultaneous representation of multiple defendants accused of jointly committing the same offense. Because I believe the majority, like those inferior federal tribunals upon which it chooses to rely, misreads (or is at least unmoved by) the applicable jurisprudence of the Supreme Court, and because there is no assertion here that the Strickland standard has itself been met, I would simply reverse the judgment of the court of appeals. I therefore respectfully dissent.

1 69 In 1984, the Supreme Court articulated for the first time a comprehensive understanding of ineffective assistance, making clear that this aspect of the Sixth Amendment right to counsel merely protects a criminal defendant from being prejudiced by a deficient performance from his counsel. United States v. Cronic, 466 U.S. 648, 654 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984) Strickland v. Washington, 466 U.S. 668, 692 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Excepting only a few narrow cireumstances in which the Court had previously presumed prejudice-notably where counsel was not 'made available, was prohibited by the trial court from participating in a critical aspect of the proceeding, or acted under a conflict of interest-this constitutional right is now held to be violated only upon a demonstration of likely prejudicial impact on the outcome of a particular adjudication. See Mickens v. Taylor, 535 U.S. 162, 171 , 122 S.Ct. 1237 , 152 L.Ed.2d 291 (2002); Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 (1984); Cronic, 466 U.S. at 665 , 104 S.Ct. 2039 ; see generally 83 Wayne R. LaFave et al., Criminal Procedure, § 11.7(d) (3d ed.2013). With regard to the exception for conflicts of interest, several years prior to finally arriving at its comprehensive standard in Strickland, the Court found it appropriate to presume prejudice where a trial court declines to inquire further into defense counsel's assertion that he will be unable to adequately represent the interests of multiple codefendants at the same trial. Holloway v. Arkansas, 435 U.S. 475, 485 , 98 S.Ct. 1173 , 55 L.Ed.2d 426 (1978). Shortly thereafter it held that relief from an alleged conflict arising from such joint representation, which is raised initially only after conviction in a case in which the trial court neither knew nor had reason to know of any particular conflict requiring further inquiry, would be contingent upon a demonstration that the conflict actually affected the adequacy of counsel's representation. Cuyler v. Sullivan, 446 U.S. 335, 349-50 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980).

1 70 Although it has continued to recognize this standard for assessing the impact of "actual conflicts," as an exception to the prejudice prong, or requirement, of Strickland, in Mickens, the Court clarified the scope of the exception in two important respects. First, it emphasized that "the Sullivan standard is not properly read as requiring inquiry into actual conflict as something separate and apart from adverse effect." Mickens, 535 U.S. at 172 n.5, 122 S.Ct. 1237 . Rather, "aln 'actual conflict, for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance." Id. Acknowledging this unambiguous proposition from Mickens, the majority now overturns our holding to the contrary in People v. Castro, 657 P.2d 932, 945 (Colo.1983).

T71 In addition, however, the Supreme Court openly disparaged lower federal appellate court holdings applying Sullivan " 'unblinkingly' to 'all kinds of alleged attorney ethical conflicts'" Mickens, 535 U.S. at 174-75 , 122 S.Ct. 1237 . Instead, the Court emphasized the limited applicability of Holloway and Sullivan, both of which "stressed the high probability of prejudice arising from 'multiple concurrent representation," and the difficulty of proving that prejudice." Id. It is the interpretation of this second limitation on Mickens, with regard to the kinds of conflicts susceptible of categorization as actual (rather than merely potential) for purposes of the Sullivan prophylaxis, as to which I part company with the majority.

*536 T72 The "multiple concurrent representation," id. at 175 , 122 S.Ct. 1237 , for which the "Sullivan prophylaxis" has been considered necessary, was in no way intended as a reference to concurrent representations of every conceivable kind, simply because they were concurrent. Rather, it was a clear and unmistakable reference to the multiple concurrent representation of defendants for the same offense, the representations with which the Court was faced in both Holloway and Sullivan. Concurrent representation of different clients generally, of course, does not present an ethical concern at all, unless the representation of one will be directly adverse to another or there is a significant risk that the representation of one will be materially limited by counsel's responsibilities to the other. See generally Colo. RPC 1.7 (Conflict of Interest: Current Clients). Unlike concurrent, or for that matter even successive, see Colo. RPC 1.9 (Duties to Former Clients), representation of different clients, which may under certain cireumstances, but generally does not, involve conflicting interests, the potential for conflict in the representation of codefendants has long been ree-ognized as so grave that defense counsel are ordinarily admonished from even accepting such representation. See ABA Standards for Criminal Justice, 4-3.5 Conflicts of Interest (3d ed. 1993); see generally 3 Wayne R. LaFave et al., Criminal Procedure, § 11.9(a) (3d ed.2013). While the Court did not unequivocally restrict the applicability of the Sullivan exception to joint representation of defendants being tried for the same crime, it did make clear that this problem of joint representation was the impetus for developing the standard in the first place and that its applicability beyond this narrow class of cases could extend to other kinds of conflicts, if at all, only to the extent that with regard to those other kinds of conflicts the Strickland standard would, for similar reasons, be unable to assure vindication of the defendant's Sixth Amendment right to counsel. Mickens, 535 U.S. at 174-75 , 122 S.Ct. 1237 . 1

173 The Mickens Court did not draw a conceptual line of demarcation between concurrent and successive representation, leaving the applicability of the Sullivan prophylaxis to the latter an open question while implying its applicability to the former, as the majority holds. Rather, it distinguished successive from concurrent representation only with regard to the representation of defendants either jointly charged or joined for trial as permitted by the federal rules and only in demonstrating that "[nlot all attorney conflicts present comparable difficulties." Id. at 175 , 122 S.Ct. 1237 . Similarly, it singled out successive representation as a kind of representation as to which the applicability of the Sullivan prophylaxis remained an open question only by way of emphasizing that the question of successive representation, the precise factual situation presented in Mickens itself, was not argued by the parties and was not before the Court on certiorari review. Nothing in the Supreme Court's opinion in Mickens remotely suggests an intent to extend the Sullivan prophylaxis beyond joint representation to either successive representation or concurrent representation of every kind. 2 To the *537 contrary, Mickens makes abundantly clear that applicability of the Sullivan exception may be extended beyond the specific "multiple concurrent representation" situations at issue in Holloway and Sullivan only to other situations, should they exist, with a comparably high probability of, and comparably high difficulty of proving, prejudice. I do not believe, and the majority does not assert or make any attempt to demonstrate, that the concurrent representations of witnesses or alternate suspects alleged in these two cases fall within a class of conflicts sharing a comparably high probability of prejudice with the joint representations dealt with by the Court in Holloway and Sullivan. 3

T74 Apparently unconvinced by its own broad reading of Mickens, as extending the applicability of the Sullivan prophylaxis beyond the joint representation of codefen-dants, the majority finds succor in the fact that the conflict at issue in Mickens itself actually involved prior representation of the victim rather than joint representation of a codefendant. At least three different times, the majority attempts to bolster its interpretation with the observation that the Court could therefore have resolved the case simply as one not involving joint representation, had it indeed considered that fact dispositive. But the inference drawn by the majority from the Court's failure to rule on such alternate ground is precisely the inference the final third of Mickens is devoted to warning against. In excruciating detail, the Supreme Court explains that "lest today's holding be misconstrued," the only question presented, argued, and accepted for review was whether the Sullivan exception would still require a demonstration of deficient performance by defense counsel. Although it is openly critical of application of the Sullivan exeeption by various lower federal courts to "conflicts" writ large, the Court emphasizes that, for the reasons stated, no inference may be drawn from its failure to exclude from the Sullivan prophylaxis the kind of conflict at issue in its own case.

175 The majority actually refers to the Supreme Court's concluding caution concerning the non-fungibility of conflicts as "dicta." "However, there is dicta and then there is dicta, and then there is Supreme Court dicta." Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir.2006) (criticizing the Second Circuit for similarly making light of the Supreme Court's so-called "postscript" in Mickens). While the final third of Mickens itself implicitly acknowledges that it is not necessary to the resolution of the question before the Court, a majority of the Court (not merely a plurality) clearly considers it important to make express precisely what it has not decided and why it has not done so. Wher the Supreme Court presents us with a "thoroughly reasoned, and carefully articulated analysis ... describing the seope of one of its own decisions ..., as an entire, separately enumerated section of [its] opinion-three long, citation-laden paragraphs, consisting of more than five hundred words," id., I, for one, consider it meaningful.

176 Even if I were to agree that the Sullivan prophylaxis could apply to the conflicts alleged in these cases, I would nevertheless reject the Fourth Circuit's tri-partite test as confusing, unnecessary, and a questionable proliferation of special multi-factor tests neither mandated nor even supported by Supreme Court jurisprudence. In Mick-ens, the Supreme Court could not have more clearly held that the Sullivan prophylaxis excuses individual inquiry into whether counsel's inadequate performance undermined the reliability of the verdiet-that is, whether it was prejudicial-not whether counsel's performance was deficient in the first place. Mickens, 535 U.S. at 166-67 , 122 S.Ct. 1237 . Where counsel has not sooner openly conceded his inability to represent codefendants because of their conflicting interests, as in Holloway, a requirement that thé multiple representation at issue have an adverse ef-feet clearly communicates that counsel's performance must have actually been deficient and that the deficiency in his performance *538 must have resulted from a particular conflict arising from that representation. Reliance on the Sullivan prophylaxis to excuse the second prong of Strickland requires no more than that the defendant establish the first prong of Strickland and, in place of the second, establish a causal connection between counsel's deficient representation of the defendant and a conflict arising from the qualifying multiple representation, however broad that may be.

T 77 Rather than suggesting a parallel universe for attorney-conflict challenges, the Supreme Court merely exeuses proof that the outcome of the defendant's trial would likely have been different, upon a showing that his counsel's performance was deficient and that the deficiency was caused by the qualifying multiple representation. There is no shortage of case law, in the Strickland context, assessing whether counsel's choices concerning the pursuit or disregard of particular defenses, examination of witnesses, requests for or objections to jury instructions, and virtually every other kind of choice made (or neglected) in conducting a defense were plausible tactical choices or fell below the standard of reasonable competence. In contrast to the tri-partite scheme adopted by the majority, the only element of the Sullivan prophylaxis not already included in the Strickland test is a causal connection between counsel's deficient performance and a particular kind of conflict with a high probability of prejudicing the defendant's case.

T78 While there will always be room for debate about the nature and proximateness required of the causal connection at issue, there can be no question that Sullivan simply exeuses the second prong of the Strickland test upon a showing that the first prong resulted from a particular kind of conflict. Because the lower federal courts do not interpret federal constitutional law or Supreme Court jurisprudence for this court, and because I find the court's reasoning in United States v. Nicholson, 475 F.3d 241, 249 (4th Cir.2007), particularly unpersuasive, I would not saddle the nist prius courts of this jurisdiction with the same findings required of those federal district courts subject to Fourth Circuit review.

I 79 Because I do not believe the prejudice exception of Sullivan can apply to the kinds of representation involved in these cases and because, in any event, neither defendant has asserted, much less proved, that the defense provided to him fell below the standard of reasonable competence, I would simply reverse the judgment of the court of appeals.

T 80 I therefore respectfully dissent.

I am authorized to state that JUSTICE EID and JUSTICE MARQUEZ join in the dissent.

. The Court's pre-Mickens case of Wood v. Georgia, 450 U.S. 261 , 101 S.Ct. 1097 , 67 L.Ed.2d 220 (1981), is offered by the majority as an example of a broader application of the exception, but Wood clearly involved joint representation concerning the same offense and differed from the joint representations in Holloway and Sullivan, at most, in that the conflict of concern arose between the defendants and their employer, who paid for the representation, rather than among the codefendants themselves. As the Fifth Circuit noted in Beets v. Scoft, 65 F.3d 1258, 1267 (5th Cir.1995), an opinion cited favorably in Mickens for criticizing the broader application of Sullivan to conflicts generally, Mickens, 535 U.S. at 174 , 122 S.Ct. 1237 , while Wood did not indicate whether counsel formally represented the employer as well, he "was at least in the functional equivalent of a joint representation."

. At one point in its analysis, the majority asserts that by assuming that the Sullivan exception applies to successive representations, it does no more than this court had already done in Dunlap v. People, 173 P.3d 1054 , 1073 n.24 (Colo.2007). See maj. op. 138. There, of course, we could assume, without deciding, the applicability of the Sullivan exception because we found there to be no adverse effect, and therefore no ineffective assistance, in any event. Here the majority bases its remand order on the proposition that the existence of adverse effect may be determinative of the question of effective assistance.

. By contrast, notwithstanding the majority's assertion that most federal circuits apply Sullivan to cases of successive representation, see maj. op. 137, I understand those circuits as wrestling with the individual circumstances of each case to determine whether they are more or less like the conflicts as to which the Supreme Court has found the Sullivan prophylaxis necessary, rather than as accepting the applicability of Sullivan to successive representations as a class.