Petitioners Brief — Cuyler v. Sullivan

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IN THE

SUPREME COURT OF THE UNITED STATES |

October Term, 1979

No. 78-1832

JuLtius T. CUYLER, SUPERINTENDENT

and

DISTRICT ATTORNEY OF PHILADELPHIA,

Petitioner

Vv.

JOHN SULLIVAN,

Respondent

BRIEF FOR PETITIONER

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

Steven H. Goldblatt

Deputy District Attorney

Michael F. Henry

Paul S. Diamond

James B. Jordan

Marianne E. Cox

Assistant District Attorneys

Edward G. Rendell

District Attorney

2400 Centre Square West ;

Philadelphia, Pennsylvania 19102

(215) MU 6-8050

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA., PA. 19107 (215) 561-4050

Opinions Below .............- eee e eset eeeeeeees 1

ci neVae eke menpes aver teed ees 1

Questions Presented ........... eee e eee eee eeees 2

Constitutional and Statutory Provisions Involved .... 2

a i oan tneees Shed ELEN EE ROE RESO: 4

Summary of Argument ...........-+++eeee seers 11

Argument:

I. The Third Circuit improperly vacated re-

spondent’s Pennsylvania murder and con-

spiracy convictions upon its finding that

there was a possibility of conflict of interest,

however remote, resulting from the joint

representation of respondent and his two

co-defendants by the same two attorneys .. 14

II. Because the Sixth Amendment violation al-

leged below was not caused or fostered by

state action, the Third Circuit erroneously

found that violation to be an appropriate

ground for issuing the writ of habeas corpus 36

III. The Third Circuit transgressed appropriate

limits of appellate review by making de novo

findings of fact and credibility based solely

upon its assessment of the record of the

state court hearing ..........-.ceecseeees 42

(NEE A EPO POPE e See Tere ee Te 47

SE Soe ee a eee aud ae ce he wes 48

TABLE OF AUTHORITIES

Cases: Page

Allen v. Board of Elections, 393 U.S. 544 (1969) .... 41

Austin v. Erickson, 477 F.2d 620 (8th Cir. wie? ss 8

Bellotti v. Baird, 428 U.S. 132 (1976) .............. 41

Beran v. United States, 580 F.2d 324 (8th Cir. 1978),

cert. denied, 99 S. Ct. 1422 (1979) ............ 31

Blonder Tongue Laboratories, Inc. v. University of

Illinois Foundation, 402 U.S. 313 ( eee 41

Boykin v. Alabama, 395 U.S. 238 ( o_O 35

Brown v. Allen, 344 U.S. 443 (1953) .............. 43

Church v. Hubbart, 6 U.S. (2 Cranch) 187 (1804) .. 40

Colon v. Fogg, 603 F.2d 403 (2d Cir. eae 34

Commonwealth v. Myers, 472 Pa. 200, 371 A.2d 1279

tp er 39

Commonwealth v. Napper, 254 Pa. Super. Ct. 54,

385 AD G1 (MAB) osc 29, 45

Commonwealth v. Williams, 457 Pa. 502, 327 A.2d

BS (CIGPS) . ....00:0s0kk nue 39

Davidson v. Cupp, 446 F.2d 642 (9th Cir. oy) a |

Duignan v. United States, 274 U.S. 195 (1927) .:.. 41

Dukes v. Warden, 406 U.S. 250 ( | ane 24, 25, 26

Duncan v. Louisiana, 391 U.S. 145 fo. eee ree 36

Durfee v. Duke, 375 U.S. 106 (1963) ...........0-. 40

Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1974),

cert. denied, 422 U.S. 1011 (1975) ............ 38

Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978) .. 36

aa ES

~se

TABLE OF AUTHORITIES—(Continued)

Cases: Page

Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir.

CO tee Pee te ee er 31, 38

Fryar v. United States, 404 F.2d 1071 (10th Cir. 1968),

cert. denied, 395 U.S. 964 (1969) ............ 31

Garton v. Swenson, 497 F.2d 1137 (8th Cir. 1974) ... 38

Glasser v. United States, 315 U.S. 60 (1942) .. 24, 25 26,

27, &

Haggard v. Alabama, 550 F.2d 1019 (5th Cir. 1977)... 31

Holloway v. Arkansas, 435 U.S. 475 (1978) ...... passim

Kallie v. Beto, 353 F. Supp. 966 (S.D. Tex. 1973),

aff'd sub nom. Kallie v. Estelle, 515 F 2d 588 (5th

Cir.), cert. denied, 423 U.S. 1019 (1975) ...... 37

Kaplan v. Bombard, 573 F.2d 708 (2d Cir. 1978) .... 30

Labine v. Vincent, 401 U.S. 532 (1971) ............ 36

Lacaze v. United States, 457 F.2d 1075 (5th Cir.),

cert. denied, 409 U.S. 921 (1972) .............. 37

LaFleur v. Hall, 383 F. Supp. 1188 (D. Mass. 1974) .. 34

LaVallee v. Delle Rose, 410 U.S. 690 (1973) ...... 42, 44

Loukas v. Johnson, 453 F.2d 407 (6th Cir. 1972) .. 29, 37,

40, 45

Merrill Lynch, Pierce, Fenner and Smith, Inc. v. Ware,

| gy a ee ee 36

Messelt v. Alabama, 595 F.2d 247 (5th Cir. 1979) ... 39

Miller v. United States, 564 F.2d 103 (1st Cir. 1977),

cert. denied, 435 U.S. 931 (1978) ............. 40

Moragne v. State Marine Lines, Inc., 398 U.S. 375

ee i hae ks vind vee nner ce 41

Neil v. Biggers, 409 U.S. 188 (1972) .............. 43

TABLE OF AUTHORITIES—(Continued)

Cases: \ Page

Opie v. Meacham, 293 F. Supp. 647 (D. Wyo. 1968),

aff'd, 419 F.2d 465 (10th Cir. 1969), cert. denied,

ee Ws WE CUOFD on eins dc cv ceuwcensaccce 37

People v. Cook, 13 Cal. 3d 663, 119 Cal. Rptr. 500,

532 P.2d 148, cert denied, 423 U.S. 870 (1975) 38

People v. Gomberg, 38 N.Y.2d 307, 397 N.Y.S.2d 769,

S42 N.E.2d 550 (1075) 0... ccc ccc ccc cece 38

People v. Mitchell, 411 Il. 407, 104 N.E.2d 285), cert.

denied, 343 U.S. 969 (1952) ................ 40

Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975),

cert. denied, 423 U.S. 1083 Ss oe Giles h icy 5 26

Plaskett v. Page, 439 F.2d 770 (10th Cir. 1971) ...... 37

Powell v. Texas, 392 U.S. 514 So ae 36

Procunier v. Navarette, 434 U.S. 555 < ) 41

Root v. Cunningham, 344 F.2d 1 (4th Cir.), cert.

' denied, 382 U.S. 866 (1965) ..............., 37

Rose v. Mitchell, 99 S. Ct. 2993 (1979) ............ 41

Salomon v. LaVallee, 575 F.2d 1051 (2d Cir. 1978) .. 34

Shaw v. Henderson, 303 F. Supp. 183 (E.D. La. 1969),

aff'd, 430 F.2d 1116 (5th Cir. i ee 37

Silber v. United States, 370 U.S. 717 (1962) ........ 41

State v. Jeffrey, 162 Mont. 92, 515 P.2d 364 (1973) .. 38

Thacker v. Bordenkircher, 590 F.2d 640 (6th Cir.),

cert. denied, 99 S. Ct. 2827 (1979) .......... 31,36

Townsend v. Sain, 372 U.S. 293 (1963) .. 18, 42, 43, 44

United States v. Alvarez, 580 F.2d 1251 (5th Cir. 1978) 39

YO gt re oe

Soo ss

TABLE OF AUTHORITIES—(Continued)

Cases: Page

United States v. Atkinson, 565 F.2d 1283 (4th Cir.

1977), cert. denied, 436 U.S. 944 (1978) ...... 30

United States v. Bosch, 584 F.2d 1113 (1st Cir. 1978) 38

United States v. Bubar, 567 F.2d 192 (2d Cir.), cert.

denied, 434 U.S. 872 (1977) .........0. cee cece 37

United States v. Carrigan, 543 F.2d 1053 (2d Cir.

ig} EE ee ey me te hn LE 30

United States v. Foster, 469 F.2d 1 (1st Cir. 1972) 23, 30

United States v. Lawriw, 568 F.2d 98 (8th Cir. 1977),

cert. denied, 435 U.S. 969 (1978) ............. 32

United States v. Mandell, 525 F.2d 671 (7th Cir. 1975),

cert. denied, 423 U.S. 1049 (1976) .......... 31, 34

United States v. Martorano, 457 F. Supp. 803 (D.

PON. DED vids 5 uses x oe 21-22

United States v. Riebold, 557 F.2d $97 (10th Cir.),

cert. denied, 434 U.S. 860 (1977) ............ 37

United States v. Rodriguez Vallejo, 496 F.2d 960 (1st

Cir.), cert. denied sub nom. Vallejo v. United

States, 419 U.S. 965 (1974) .............. 37, 39

United States v. Speers, 382 U.S. 266 (1965) ........ 41

United States v. Timmreck, 99 S. Ct. 2085 (1979) .. 34

United States v. Woods, 544 F.2d 242 (6th Cir. 1976),

cert. denied, 430 U.S. 969 (1977) ............ 31

United States ex rel. Hart v. Davenport, 478 F.2d 203

Caw Gat: BOWE vince cine vou tune 34, 37, 38

TABLE OF AUTHORITIES—(Continued)

Cases: Page

United States ex rel. McClindon v. Warden, 575 F.2d

108 (7th Cir.), cert denied, 439 U.S. 856 (1978). 31

United States ex rel. McNair v. New Jersey, 492 F.2d

eaue (30 Ce. SO) ee 42

United States ex rel. Morgan v. Keve, 425 F. Supp. 585

(9: ek. BOMB) S645 tae 19

Walker v. United States, 422 F.2d 374 (3d Cir.), cert.

denied, 399 U.S. 915 CORPOd ecco, 18, 19, 34

Watkins v. Wilson, 408 F.2d 351 (9th Cir. 1969) .... 3]

Williams v. Estelle, 416 F. Supp. 1073 (N.D. Tex.

WOVE). 0s sve ssantu tone audi en ee 37

Williams v. United States, 401 U.S. 675 (ar ss

Williams v. United States, 304 F. Supp. 691 (E.D. Mo.

ENON) + vsiwsesueich bean eee (sak. ae

Youakim v. Miller, 425 U.S. 231 fo) ee ae 41

Zuck v. Alabama, 588 F.2d 436 (Sth Cir. 1979), peti-

tion for cert. filed, 47 U.S.L.W. 3829 (U.S. May

21, 1979) (No. WRPNE hake kc ey he Ce 39, 40

Constitutional and Statutory Provisions:

United States Constitution, Amendment VI

a eee passim

United States Constitution, Amendment i) eae,

28 U.S.C. WWM hkoiniagee On Se ee 3, 42

Federal Rule:

wee R. Cet, PY Ss ee 34

TABLE OF AUTHORITIES—(Continued)

Miscellaneous: Page

ABA Code of Professional Responsibility DR5-105 .. 29

ABA Standards Relating to the Administration of

Criminal Justice—The Defense Function, Stan-

dard 4-3.5 (Approved Draft 1979) ............ 33

ABA Standards Relating to the Administration of

Criminal Justice—The Function of the Trial

Judge, §3.4(b) (Approved Draft 1972 .......... 33

ABA Standards Relating to the Administration of

Criminal Justice—Special Functions of the Trial

Judge, Derivation Table (Approved Draft 1978) 33

Annot., 74 A.L.R.2d 1384 (1960) ................5. 37

Comment, Conflicts of Interests in Multiple Represen-

tation of Criminal Co-Defendants, 68 J. Crim.

RAMs I AD es bovis Wek bcos obese cecnc. 29

Farrand, 1 Records of the Federal Convention of 1787

Ce SE Wa a eon et 36

Geer, Representation of Multiple Criminal Defend-

ants: Conflicts of Interest & the Professional Re-

sponsibilities of the Defense Attorney, 62 Minn.

Fe Re enc Mone tan 29

Hyman, Joint Representation of Multiple Defendants

in a Criminal Trial: The Court’s Headache, 5

pemreire 1 Mee. S16 CGF) os soos dh oecen cn, 29

Lowenthal, Joint Representation in Criminal Cases:

A Critical Appraisal, 64 Va. L. Rev. 939 (1978) .. 29

Note, Ensuring Effective Assistance of Counsel for the

Criminal Co-Defendant, 37 La. L. Rev. 1289

EN ae op tas cue titlen he org or oak ee. 29

Pen nt nnne etn en nee ROT Se ee

TABLE OF AUTHORITIES—( Continued)

Miscellaneous: Page

Preliminary Draft of Proposed Amendments to The

Fed. R. Crim. P., 77 F.R.D. 507 (1978) (Proposed

Amendment to Fed. R Crim. P. 44(c), postponed

by Pub. L. 95-42, July 31, 1979, 93 Stat. 326) .. 32,

33, 34

Tague, Multiple Representation & Conflicts of Interest

in Criminal Cases, 67 Geo. L.J. 1075 (1979) .... 29

Wanat, Conflicts of Interest in Criminal Cases and the

Right to Effective Assistance of Counsel—The

Need for Change, 10 Rut.-Cam. L.J.57 (1978) .. 29

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. 78-1832

Jutius T. CUYLER, SUPERINTENDENT

and

DISTRICT ATTORNEY OF PHILADELPHIA,

Petitioner

JOHN SULLIVAN,

Respondent

BRIEF FOR PETITIONER

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1B-21B

and 1A-5A) is reported at 593 F.2d 512. The opinion of the

Supreme Court of Pennsylvania (Pet. App. 1D-70D) is re-

ported at 472 Pa. 129, 371 A.2d 468.

JURISDICTION

The judgment of the court of appeals was entered on

February 14, 1979. A petition for rehearing en banc was

timely filed and denied on March 12, 1979. The petition for

a writ of certiorari was filed on June 7, 1979, and was

granted on October 1, 1979. The jurisdiction of this Court

rests upon 28 U.S.C. §1254(1). ee

QUESTIONS PRESENTED

I. Whether the Third Circuit improperly vacated re-

spondent’s Pennsylvania murder and conspiracy convic-

tions upon its finding that there was a possibility of conflict

of interest, however remote, resulting from the joint repre-

sentation of respondent and his two co-defendants by the

same two attorneys.

II. Whether because the Sixth Amendment violation

alleged below was not caused or fostered by state action,

the Third Circuit erroneously found that violation to be an

appropriate ground for issuing the writ of habeas corpus.

III. Whether the Third Circuit transgressed appropri-

ate limits of appellate review by making de novo findings

of fact and credibility based solely upon its assessment of

the record of the state court hearing.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment Six.

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have been

committed, which district shall have been previously ascer-

tained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining wit-

nesses in his favor, and to have the Assistance of Counsel

for his defense.

United States Constitution, Amendment Fourteen,

Section 1.

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, lib-

erty, or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection of

the laws.

The United States Code, Act of June 25, 1948. c. 646,

62 Stat. 967; As Amended Nov. 2, 1966, Pub. L. 89-711,

§2, 80 Stat. 1105, 28 U.S.C. §2254(d).

(d) In any proceeding instituted in a Federal court by

an application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court, a de-

termination after a hearing on the merits of a factual

issue, made by a State court of competent jurisdiction in

a proceeding to which the applicant for the writ and the

State or an officer or agent thereof were parties, evidenced

by a written finding, written opinion, or other reliable and

adequate written indicia, shall be presumed to be correct,

unless the applicant shall establish or it shall otherwise

appear, or the respondent shall admit—

(1) that the merits of the factual dispute were not

resolved in the State court hearing; . . .

(8) or unless that part of the record of the State court

proceeding in which the determination of such factual

issue was made, pertinent to a determination of the suffi-

ciency of the evidence to support such factual determina-

tion, is produced as provided for hereinafter, and the Fed-

eral court on a consideration of such part of the record as

a whole concludes that such factual determination is not

fairly supported by the record:

And in an evidentiary hearing in the Federal court,

when due proof of such factual determination has been

made, unless the existence of one or more of the circum-

stances respectively set forth in paragraphs numbered (1)

to (7), inclusive, is shown by the applicant, otherwise ap-

pears, or is admitted by the respondent, cr unless the

court concludes pursuant to the provisions of paragraph

numbered (8) that the record in the State court proceed-

ings, considered as a whole, does not fairly support such

factual determination, the burden shall rest upon the ap-

plicant to establish by convincing evidence that the factual

determination by the State court was erroneous.

STATEMENT

This Court granted the petition for certiorari to review

the decision of the Third Circuit issuing a writ of habeas

Corpus, on the ground that respondent John Sullivan was

deprived of his Sixth Amendment right to the effective

assistance of counsel. The Third Circuit based its decision

upon a finding of a potential conflict of interest, however

remote, Caused by the joint representation of Sullivan and

two co-defendants by two retained counsel.’ In granting

relief, the Third Circuit reversed the District Court’s denial

1. In their dissent from the denial of reargument en banc,

three judges of the Third Circuit characterized this case as invol-

ving dual representation, because the defendants herein were not

tried jointly. Other courts have made varying uses of the terms

dual and joint representation. To avoid undue confusion, this

brief will use the term joint representation to denote all forms of

multiple representation of co-defendants in criminal cases. Where

the question of joint or separate trials of the co-defendants is of

distinct relevance to the analysis, it will be specifically discussed.

References to the Appendix to this brief will be designated

(A.). References to the opinions of the courts below, reprinted in

full in the Appendix to the Petition for Certiorari, will be designated

(Pet. App.); the published opinions of the Pennsylvania Supreme

Court and the Third Circuit will also be cited. References to portions

of the record not reproduced in the Appendix will be appropriately

designated (e.g., Trial, Hearing) and the date noted.

lh iil a Naa aa a

of the writ and overruled state court findings that no con-

flict of interest had been established.?

The Third Circuit’s decision was founded upon testi-

mony presented at an evidentiary hearing in state court,

pursuant to Sullivan’s petition for collateral post-conviction

relief. Upon review of that testimony, the Third Circuit

ruled that two strategic trial decisions, that Sullivan not

take the stand and that no other defense witnesses be

called, although reasonably based, were possibly influenced

by a potential conflict of interest arising out of counsel’s

joint representation of two co-defendants awaiting trial

following disposition of Sullivan’s case (Pet. App. 12B-20B;

593 F.2d at 519-523).

1. Sullivan’s Decision Not to Testify

Following their indictment, the three defendants re-

tained G. Fred DiBona, Esquire, now a judge of the Phila-

2. Sullivan was convicted on two counts of murder in the first

degree in June, 1967, after a jury trial in the Court of Common

Pleas, Philadelphia County, and was subsequently sentenced to

two consecutive terms of life imprisonment. The convoluted pro-

cedural history of this case, and a review of the evidence presented

at trial, are set forth in the opinion of the Third Circuit (Pet.

App. 2B-8B; 593 F.2d at 515-517).

In brief, Sullivan and two co-defendants, Gregory Carchidi

and Anthony DiPasquale, were indicted for the assassination-style

killings of John Gorey, an official of Local 107 of the Teamster’s

Union, and his companion Rita Janda, inside Gorey’s office at the

union hall on Friday evening, June 17, 1966. Francis McGrath, a

janitor, testified that when he arrived for work about 6:00 p.m.,

he found Sullivan sitting by a window of a second floor office.

McGrath ignored Sullivan’s advice to postpone the cleaning until

Sunday, and was working in the conference room when Gorey and

Janda arrived. Sullivan, joined by Carchidi, again unsuccessfully

urged McGrath to depart. Shortly after Sullivan left the room,

McGrath heard what sounded to him like “firecrackers going off in

rapid succession,” and asked Carchidi “What was that?” Carchidi

told McGrath to “Get out of the building and don’t say nothing.”

The builet-riddled bodies were discovered the next morning (Pet.

App. 5B-8B; 593 F.2d at 516-517).

delphia Court of Common Pleas, and A. Charles Peruto,

Esquire. According to Peruto, Sullivan chose Judge DiBona

as his chief trial counsel, with Peruto assisting him, while

the other two co-defendants, who were to be separately

tried, selected Peruto as chief counsel (A. 54a, 57a-58a,

73a-74a, 203a).3

At the state court evidentiary hearing on the conflict

of interest claim, Judge DiBona testified that following the

prosecution’s case he, Peruto, and Sullivan conferred for

one and one-half to two hours before deciding not to pre-

sent a defense. Both counsel advised Sullivan that the

prosecution’s circumstantial case was, in their opinion,

insufficient to support conviction by the jury. According to

Judge DiBona, Sullivan did not want to take the stand,

against DiBona’s strong recommendation that he testify,

while Peruto suggested various reasons why such action

might be dangerous. After discussing the matter overnight

with his brother and other members of the family, Sullivan,

acting on his own, “definitely made up his mind that he

would not testify” (A. 12a-13a).

Peruto agreed that it was Sullivan himself who made

the decision not to testify. At the hearing, Peruto stated

that he could not specifically recall which of the two attor-

neys advised Sullivan not to take the stand, but that he

3. At Sullivan’s trial, Judge DiBona examined witnesses and

delivered opening and closing arguments. Peruto assisted in the

examination of jurors on voir dire, conferred throughout trial

with Sullivan and with DiBona, and argued motions and objec-

tions. After the verdict was returned, Peruto argued the penalty

phase to the jury because DiBona was so upset by the verdict that

he was unable to continue; Perutc opened his argument by

apologizing for his “eleventh hour entry” into the trial. At the

hearing, Sullivan claimed that he did not select Judge DiBona,

and did not know that DiBona was to be chief counsel until trial

commenced. Carchidi and DiPasquale were subsequently acquitted

after trial (A. 46a-47a, 64a-65a, 73a 127a-128a; Pet. App. 8B-

12B; 593 F.2d at 517-519; Trial, June 20, 1967).

EELS ARTO TL TCR ee

would accept Judge DiBona’s recollection of the confer-

ence. Peruto explained that the attorneys were concerned

because by taking the stand, Sullivan might enable the

prosecutor to elicit that, while at the union hall on the eve-

ning of the murders, Sullivan (who was married) had

telephoned a girlfriend by whom he had fathered two

children, and “I thought [that] might hurt Sullivan more

than the benefit that he would get out of putting the

testimony on. But it was a value judgment” (A. 57a-60a).

Contradicting both trial counsel, Sullivan testified

that he had wanted to take the stand, but that the decision

was given to him by Peruto “point blank” after Peruto

assured him of acquittal. Sullivan agreed that counsel ad-

vised him of the weakness of the prosecution’s case, and

that Peruto warned him of the danger that cross-examina-

tion would elicit his meretricious relationship with his girl-

friend, Shirley Davis. Sullivan testified that he rejected the

latter argument, explaining that “[m]y motive for not tak-

ing the stand was strictly based that there was no evidence

that had nothing to do with Shirley Davis” [sic] (A. 100a-

106a, 138a, 156a-157a ).

The state hearing court rejected Sullivan’s assertion

that the decision not to testify was forced upon him, find-

ing that the decision was made by Sullivan and counsel

after full consultation and was not marred by any question

of ineffective assistance (Pet. App. 7F). Affirming the

denial of relief, the Pennsylvania Supreme Court found

that the decision not to present Sullivan’s testimony was

reasonably based, and not the product of a conflict of inter-

est (Pet. App. 33D-34D; 472 Pa. at 161-162, 371 A.2d at

483-484). The district court likewise rejected the habeas

corpus petition, holding that the state court record refuted

4. Sullivan’s co-defendant, Carchidi, testified at he hearing

that Sullivan strongly desired .o take the stand at trial (A. 198a).

Carchidi’s assertion was not credited by any of the reviewing

courts below.

Sullivan's contention that his failure to testify was influ-

enced by any consideration for the other defendants, and

that Sullivan himself made the decision because the evi-

dence was insufficient for conviction, and to avoid embar-

rassment from the revelation of his “past indiscretions”

(Pet. App. 5C-8C).5

2. The Decision Not to Present Other Defense Witnesses

Crediting the hearing testimony of Judge DiBona, the

State courts and the federal district court also rejected

Sullivan’s second argument, that the decision not to other-

wise present a defense was influenced by counsel's desire

not to disclose evidence and witnesses prior to the co-

defendants’ trials. On that question, DiBona testified at

the state court hearing that once Sullivan made his deci-

sion not to take the stand, “there was no other real good

evidence that we had, that I thought should be offered”

(A. 21a-22a), Judge DiBona further testified that the deci-

Sion not to present witnesses was jointly made by counsel

and Sullivan, that the decision was not in any way predi-

cated upon a desire to protect the co-defendants, and that

he saw no conflicts in the defenses of the three accused

(A. 38a-39a, 182a).

In ordering that the writ issue, the Third Circuit found

that a potential conflict of interest in defense strategy could

have influenced the decision not to call witnesses. The

court based its decision upon Peruto’s assertions that, be-

Cause he was certain that Sullivan would be acquitted, he

had argued against calling defense witnesses to avoid

“exposing” those witnesses prior to the pending trials of

5. The State Supreme Court and the district court also found

that since Sullivan and the co-defendants were represented by

different chief counsel and were tried separately, there was no

“dual representation” under the facts of this case (Pet. App. 33D-

34D, 472 Pa. at 161-162, 371 A.2d at 483; Pet. App. 4C-5C).

==> -=

the remaining two co-defendants (Pet. App. 15B-16B; 593

F.2d at 521).°

Rejecting the findings of the lower courts that the

decision not to present a defense was a legitimate tac-

tical decision based upon Judge DiBona’s sound, and un-

tainted, professional judgment, the Third Circuit instead

credited Peruto’s testimony, holding that “[n]o reason or

evidence is offered to explain why an attorney would make

the damaging admission of professional impropriety we

have quoted were it not true” (Pet. App. 17B; 593 F.2d at

522).’ The Third Circuit thus concluded that Sullivan had

established “a possibility of prejudice or conflict of interest,

however remote,” and declined to examine the Common-

wealth’s argument that no actual conflict or prejudice was

ever shown (Pet. App. 18B; 593 F.2d at 522)

In its decision, the Third Circuit also referred to the

failure to call co-defendant Gregory Carchidi, who was

awaiting trial on the murder indictments, as a defense wit-

ness for Sullivan. At the evidentiary hearing, some six

years after his acquittal, Carchidi stated that he would

have testified at Sullivan’s trial, but th t both attorneys felt

his testimony was unnecessary. At the hearing, counsel for

Sullivan elicited only that Carchidi would have testified

that he and Sullivan were at the union hall with McGrath

6. The Third Ciruit apparently extrapolated this comment by

Peruto, directed solely to the decision not to call other witnesses,

and applied it to the separate question of Sullivan’s decision not to

take the stand (Pet. App. 15B-18B; 593 F.2d at 521-522). At the

hearing, however, Peruto testified that he had no recollection of

the discussion as to whether Sullivan should testify, and speculated

only that he might have advised against so doing because that

would have been in keeping with his position on the calling of the

other witnesses. Peruto never indicated that any conflict influenced

his advice regarding Sullivan’s decision not to testify (A. 57a-60a. )

7. The Third Circuit also noted that “Sullivan (albeit not a

disinterested witness) corroborates his [Peruto’s] testimony” (Pet.

App. 17B; 593 F.2d at 522).

on the night of the murders, that he did not remember

whether he told McGrath to postpone cleaning the hall, and

that he had not told McGrath to “Get out of the building

and don’t say nothing,” but recalled Saying, “‘Let’s get the

hell out’ or ‘Let me get the hell out,’ something like that. I

don’t recall. All I wanted to do was get out.” Carchidi also

indicated that only one civilian defense witness was pre-

sented at his trial (A. 193a-200a ).*

Although not discussed by the Third Circuit, evidence

relating to other alleged potential defense witnesses was

presented at the hearing. In particular, Peruto explained

that they did not call Detective McGill, who later testified

at Carchidi’s trial that McGrath had made statements to

police inconsistent with his trial testimony, because the

judge at Sullivan’s trial refused a defense request for dis-

covery of the notes of the detective’s interview with

McGrath. At Carchidi’s trial, a different judge allowed that

discovery, thereby enabling defense access to those notes

for the first time (A. 47a-48a ).°

Additionally, Sullivan testified at the hearing that he

had advised counsel that Michael Hessian, a union em-

ployee and friend of McGrath, would testify at trial that

McGrath had previously denied that Carchidi told him to

leave the union hall immediately after the shooting (A.

86a-87a). DiBona explained, however, that after he and

8. At the medical examiner's inquest preceding the indict-

ments, Carchidi had asserted the privilege against self-incrimina-

tion and refused to answer any questions (A. 204a-209a),.

9. After Carchidi’s trial, DiBona filed a coram nobis petition

seeking reversal of Sullivan’s conviction on the basis of the after-

discovered evidence of McGill’s testimony. The court denied the

petition, ruling that the jurors were aware that McGrath had

made inconsistent statements (See Notes of Hearing on Defend-

ant's Petition for Writ of Error Coram Nobis, September 20, 1968).

At the hearing, Sullivan agreed that the detective’s notes

of his interview with McGrath were not discovered until the

Carchidi trial (A. 107a).

Se Se ee

Peruto spoke to Hessian, they “concluded that he would

be of no value to us as a witness” because he was in fear

for his life and did not wish to get involved (A. 22a-23a).

Peruto corroborated this testimony, noting that “Mr. Hes-

sian was terribly frightened at the time of the Sullivan

trial and we didn’t want to put on another witness who we

could not rely on a hundred percent” (A. 55a-56a). Hessian

did not testify at the hearing."

SUMMARY OF ARGUMENT

I. The Sixth Amendment guarantees that a defendant

be accorded the effective assistance of counsel. The Third

Circuit construed this guarantee far too broadly in con-

cluding that a state habeas petitioner is entitled to relief if

he can establish the possibility, however remote, that his

attorney was burdened by a conflict of interest. Application

of this standard below has resulted in the improper reversal

of state convictions for two murders on federal collateral

attack. The facts establish that John Sullivan and two co-

defendants retained two lawyers to jointly represent them.

Each defendant selected a lead counsel of his choice; the

other attorney served as backup counsel. Each defendant

was tried separately, Sullivan being tried first. No objection

10. Passing references were made to potential testimony

regarding the time of death of the victims, which was rendered

moot when the medical examiner testified at trial that they could

have been killed as early as 7:15 p.m., a revision of his previous

estimates setting a later time of death (A. 32a-34a, 61a-62a).

Peruto also testified that an investigator had told him that

witnesses at the scene had seen someone drive away after they

heard the shots. Although Peruto stated that he feared that those

witnesses might testify that they had seen one of the other two

co-defendants leaving the union hall, he omitted mention of the

possibility that they had instead seen Sullivan (A. 62a-64a). The

putative witnesses were not produced at the hearing, and neither

Sullivan nor Peruto indicated the relevance of their testimony,

or any possibility that their testimony could have benefitted

Sullivan.

——— Tr

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to joint representation was made pretrial, nor was any

conflict apparent from the record. The first allegation of

conflict materialized after conviction, pursuant to Pennsyl-

vania collateral review. There, for the first time, backup

counsel testified that his advice to present no defense wit-

nesses was influenced by his concern for the co-defendants.

This testimony was contradicted by the testimony of lead

counsel. Moreover, not one person was shown to have been

available as a viable defense witness. The Third Circuit

refused to consider this compelling evidence which estab-

lished that no actual conflict existed, and granted extraor-

dinary relief because the remote possibility of a conflict

existed.

The Third Circuit standard requires the unrestricted

granting of extraordinary relief. A federal habeas petitioner

Should be required to establish that an actual conflict of

interest existed which violated his Sixth Amendment right

to counsel. This approach is consistent with that taken ir

the vast majority of circuits and states which have ad-

dressed the issue. Furthermore, it is consistent with this

Court’s holding that there is no per se constitutional pro-

hibition of joint representation.

That several jurisdictions require trial judges to in-

quire and to make inquiry of and advise defendants of their

“right” to separate counsel and the potential problems cre-

ated by joint representation is not controlling in this case.

The inquiry requirement, even if adopted by this Court, is

not constitutionally mandated and is therefore not relevant

to this 1967 state trial. In addition, such a requirement only

shifts the burden of proof to the state to show that a con-

flict did not exist. Thus, even if the inquiry requirement

were applied to this case, Sullivan would not be entitled to

relief because it was established below that no conflict

existed.

Il. A defendant seeking federal habeas relief must es-

tablish that his constitutional rights were violated by state

te a

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action. When a defendant is represented by counsel

burdened with an actual conflict of interest, a fundamen-

tally unfair trial results and the state action requirement

is met. Similarly, if a Sixth Amendment infringement is

SO apparent that it should have been noticed by the trial

court or prosecutor, state action has occurred. No such

constitutional violation was even alleged to have occurred

below. Neither the trial court nor the prosecutor was on

notice of any possibility of conflict. Thus, the speculative

conflict alleged was not the result of any action imputable

to the state, but rather was created by Sullivan’s decision

to privately retain the same attorneys who represented his

co-defendants. The Third Circuit erred in granting extraor-

dinary relief absent any underlying state action.

III. Even if the Third Circuit’s conflict standard is ap-

propriate, the court erred in making its own findings of

elemental fact from the record of a state court hearing

and that improper finding was critical to the court’s deci-

sion. The Third Circuit credited and accorded dispositive

weight to backup counsel’s testimony that he compromised

Sullivan's interests at trial in favor of the co-defendants

awaiting trial. The court below was bound to review the

record consistently with the state court’s denial of relief.

Consequently, the Third Circuit’s ruling could have prop-

erly held that backup counsel’s testimony was disbelieved

by the state hearing court, or that this particular credibility

question was not explicitly resolved because it was irrele-

vant to the state court decision. If not resolved, the Third

Circuit was required to remand the case to the district

court for an evidentiary hearing. The Third Circuit, how-

ever, was not empowered to make de novo findings of fact

and credibility. Such action was especially unwarranted

where the accuracy of the testimony was seriously disputed.

Thus, should this Court approve the legal standard fol-

lowed by the Third Circuit, the case must be remanded for

an evidentiary hearing and independent findings by the

district court.

———

LTE EE SE EE

— Se

ARGUMENT I

THE THIRD CIRCUIT IMPROPERLY VACATED RE-

SPONDENT’S PENNSYLVANIA MURDER AND CON-

SPIRACY CONVICTIONS UPON ITS FIN DING THAT

THERE WAS A POSSIBILITY OF CONFLICT OF IN-

TEREST, HOWEVER REMOTE, RESULTING FROM

THE JOINT REPRESENTATION OF RESPONDENT

AND HIS TWO CO-DEFENDANTS BY THE SAME TWO

ATTORNEYS.

A. The Third Circuit granted the writ based upon the

possibility that a conflict existed, despite the fact that

no actual conflict was shown to exist.

In 1966, respondent John Sullivan and two co-defend-

ants, Gregory Carchidi and Anthony DiPasquale, were

charged with murder and criminal conspiracy for the exe-

Cution-style killings of two people inside a Teamster’s

Local union hall in Philadelphia. The three defendants,

who were each tried separately, were represented by two

prominent members of the Philadelphia bar, A. Charles

Peruto and G. Fred DiBona. The attorneys were privately

retained." Sullivan was tried first and convicted of two

counts of first degree murder and criminal conspiracy.

The remaining defendants were subsequently separately

tried and acquitted.

Since the date of his convictions, Sullivan’s case has

twice been litigated before the state’s highest court. On

the second of those instances, the Pennsylvania Supreme

Court, after reviewing five days of testimony occasioned by

11. The exact nature of the retainer, as well as the manner

in which Sullivan and his co-defendants happened to retain the

Same counsel, remains unclear. These matters were not fully

developed at the state court hearing; apparently, the funds were

raised, at least in part, by friends of the defendants (Pet. App.

10B; 593 F.2d at 518, n.8).

the filing of a petition for collateral relief, rejected Sulli-

van’s claim that he was deprived of his Sixth Amendment

right to effective assistance of counsel because of a conflict

of interest.

The witnesses who testified at the state court hearing

included both counsel, the state trial judge, the Honorable

Alexander F. Barbieri, and the prosecutor, Richard A.

Sprague. Mr. (now Judge) DiBona, who served as Sulli-

van’s chief counsel, testified that he perceived no conflict

of interest among the three defenses of each of his clients,

that there were no good defense witnesses available, and

that his representation of Sullivan was not compromised

in any way by joint representation. However, co-counsel

Peruto noted that in deciding whether to put on defense

witnesses at Sullivan’s trial, one factor which he considered

was the advantage to the remaining defendants if defense

witnesses were not exposed at Sullivan’s trial. Peruto,

in retrospect, feared that he was “over-solicitous for the

other two defendants being ready to be tried.” The Penn-

Sylvania Supreme Court, in reviewing this testimony,

12. The critical testimony upon which years of litigation now

hinge is as follows:

[BY PERUTO: ]

A. Yes. I can recall the great discussions that we had

with Sullivan where we were so convinced that—and we

communicated this to Sullivan—

THE COURT: When you say great discussions, you

mean lengthy discussion?

THE WITNESS: Lengthy discussion, yes, sir.

Where we felt that he couldn’t possibly be convicted and,

therefore, what’s the sense in exposing the defense

because we had two more defendants to try.

BY [DEFENSE COUNSEL AT POST-CONVICTION HEARING

ACT HEARING]:

Q. Wait—

A. And I'm afraid Sullivan suffered by that fact.

Q. Wait just a minute, sir. You were concerned with

the other two defendants you represented; is that correct?

A. Yes. Why expose your defense if you've got two more

people to come to trial and the Commonwealth has not

presented a case?

Q. So that entered into your consideration as to whether

or not you presented a defense in the Sullivan case?

A. Sure, it did. When we're talking about back and forth.

For example, I’ve heard Judge DiBona testify today, and,

yes, we were sort of playing devil’s advocate. I didn’t want

the defense to go on because I thought we would only be

exposing the defendant [sic] witnesses for the other two

trials that were coming up. Now on the other hand, you see.

the three defendants had already decided between themselves

which of us they wanted to be chief counsel. John Sullivan

picked Fred DiBona, the other two defendants picked me.

So certainly I had to be chief counsel and face the trial of

the other two men. And as I look back on that, although

it was not my thought that John Sullivan should be short-

changed in any fashion, I’m afraid that it was my thought

that I was over-solicitous for the other two defendants being

ready to be tried (A. 56a-58a).

found the division of responsibility, with regard to the

representation of all three defendants, critical to its hold-

ing that there was no dual representation “in the true sense

of the term.”

Sullivan subsequently sought federal habeas corpus

relief, alleging, inter alia, the denial of his Sixth Amend-

ment right to the effective assistance of counsel. This

claim was rejected by the district court which, after inde-

pendently examining the state court record, accepted the

Pennsylvania Supreme Court’s conclusion that there was

no dual representation (Pet. App. 4C-8C).

The Third Circuit thereafter reversed the district

court, and the two state court decisions, and granted the

petition for a writ of habeas corpus upon concluding that

the representation of the three defendants by two privately

retained counsel violated Sullivan’s Sixth Amendment right

to effective assistance of counsel.

In reviewing the record for Sixth Amendment pur-

poses, the Third Circuit applied the following standard:

13. In relevant part, the Pennsylvania Supreme Court stated:

[T]he testimony establishes that there was no dual represen-

tation in the true sense of the term, i.e., the same counsel

actively represented co-defendants. Mr. Peruto testified that

it was Mr. (now Judge) DiBona who served as chief counsel

for appellant during trial and made all decisions relevant to

Sullivan’s defense while he, Peruto, was merely assisting.

These functions were reversed at the trial of the co-defend-

ants where Mr. Peruto was chief counsel and Judge DiBona

the assistant. Thus, Judge DiBona served only a minor role

in the trial of the co-defendants while devoting his primary

efforts to the Sullivan case. This conclusion is supported by

Judge DiBona’s statements that his stewardship was in no

way affected by the consideration of the co-defendant’s cases

but was solely a product of what he considered to be the best

course in his representation of Sullivan. We therefore hold

that there is absolutely no evidence that a conflict existed.

(Pet. App. 33D-34D; 472 Pa. at 161-162, 371 A.2d at 483)

(emphasis added).

[R]epresentation of co-defendants by the

Same attorney is not tantamount to the denial of

effective assistance of counsel guaranteed by the

sixth amendment. There must be some showing

of a possible conflict of interest or prejudice, how-

ever remote, before a reviewing court will find the

dual representation constitutionally defective.

[Quoting Walker v. United States, 422 F.2d 374,

375 (3d Cir.) (per curiam ), cert. denied, 399 U.S.

915 (1970).]

. .. [A]ctual prejudice or conflict of interest need not

be shown. The mere possibility, however remote, is

sufficient.

(Pet. App. 12B-13B; 593 F.2d at 519-520) (footnote

omitted ).

This standard is not consistent with basic principles

of habeas review and impermissibly intrudes on the state

court judgment. A state prisoner seeking habeas relief, who

first raises his conflict of interest claim post-trial, should

bear an extraordinarily heavy burden in order to establish

the validity of his claim." However, as this case amply

demonstrates, the Third Circuit has effectively created a

———

_—

14. This Court has expressly indicated that federal habeas

review of state convictions is reserved for only the very gravest

allegations and that state prisoners are entitled to federal habeas

relief only upon proof that their detention violates the Federal

Constitution. Townsend v. Sain, 372 U.S. 293, 312 (1963).

ae,

constitutional presumption that joint representation in

criminal cases is improper."*

The Third Circuit, in rejecting the decisions of both

the Pennsylvania Supreme Court and the district court,

found that there were sufficient indices of participation by

Peruto to warrant a conclusion of joint representation

(Pet. App. 12B; 593 F.2d at 519). Under the circuit’s stand-

ard of review, little more than that need be shown to obtain

relief..* Thus, once Peruto speculated, in retrospect, that

he may have considered the interest of the co-defendants

during Sullivan’s trial, “the possibility of a conflict, how-

ever remote,” standard was virtually met. According to the

Third Circuit, the Peruto testimony mandated the conclu-

sion that his influence on the decisions not to present

defense witnesses, not to have Sullivan testify, and not to

call co-defendant Carchidi were all tainted by a possible

'S. The Third Circuit’s standard of review may realistically

eliminate joint representation in the Circuit. Certainly, any state

court which allows such representation proceeds at great risk.

See Holloway v. Arkansas, 435 U.S. 475, 491 (1978) (dissenting

opinion of Powell, J. ).

Moreover, although Walker v. United States, 422 F.2d 374,

initially articulated the “possibility of conflict, however remote,”

Standard in 1970, the fuli effect of its application to individual

cases was not immediately apparent. No prior decision by or

within the Third Circuit involved facts sufficiently similar to those

presented in this case so that it could have been anticipated how

broadly the rule could or would be applied. Further, one district

court within the Third Circuit’s jurisdiction commented in 1976

that “the Third Circuit standard ... can be charitably characterized

as difficult to apply . . .” United States ex rel. Morgan v. Keve,

425 F.Supp. 585, 588 (D. Del. 1976).

‘6. The divergent approaches to the conflicts problem, which

have been adopted by other circuits and States, are set forth as

an addendum at the conclusion of the brief. The Third Circuit

standard of review for state conflict cases reflects one of the most

stringent interpretations of the Sixth Amendment right to counsel

and, therefore, places a relatively minimal burden on the habeas

petitioner to establish a violation of that right.

‘

conflict of interest, however remote. As a consequence,

issuance of the writ was compulsory.!”

The central problem with the Third Circuit’s analysis

and Sullivan’s conflict claim is that no real alternatives

were shown to exist which counsel actually overlooked.

Sullivan has never made a claim, nor can he, that his case

was not properly investigated or prepared because of an

alleged conflict. Rather, the conflict is alleged to have ma-

terialized at the close of the state’s case and concerned

the question of whether a defense should be presented."

The Third Circuit noted that, had independent counsel

decided not to present any defense, the court would have

had little doubt that this would have been a sound tactical

decision (Pet. App. 15B; 593 F.2d at 521). Further, that

court ignored the fact that no defense evidence which

would have had any bearing on guilt was ever shown to

exist which could have keen presented at Sullivan’s trial.

Indeed, at the state hearing on this issue, with the excep-

tion of the testimony which co-defendant Carchidi claimed

he would have given at Sullivan’s trial, there is nothing of

record to indicate what defense witnesses could have been

17. The Third Circuit stated, in relevant part:

Our examination of the record convinces us that there

is in this case at least a possibility of prejudice or conflict of

interest and that independent counsel might well have chosen

a different trial Strategy. Therefore, prior decisions of this

court compel reversal.

(Pet. App. 15B; 593 F.2d at 521) (emphasis added),

18. For purposes of this argument, the veracity of the relevant

portions of Mr. Peruto’s testimony as to this point will be assumed;

the question of the validity of that “finding of fact” is reserved for

Argument III, infra at 42-46.

called, what they would have said, or whether they were

available to testify either in 1967 or now."

It is significant that the Third Circuit did not spe-

cifically credit Carchidi’s 1974 testimony that he would

have testified at Sullivan’s trial if he had been called.

Rather, since Carchidi was then under indictment and

awaiting trial for the same crimes,” the court concluded

that joint counsel were under conflicting duties: Sullivan

needed to call Carchidi but counsel would not allow

Carchidi to testify.2! This alleged conflict is illusory. No

defense attorney would have allowed Carchidi to testify at

Sullivan’s trial. Carchidi could not have risked testifying

with murder charges pending against him. Thus, Carchidi

simply was not an available witness at the time of Sulli-

van’s trial, and the claim that he should have been called

as a witness for Sullivan ignores reality. Conflict cannot be

predicated on a claim that counsel did not engage in a

futile exercise. See, e.g., United States v. Martorano, 457

19. In the statement of the case, we have described the

allegedly available evidence that Sullivan theorized might have

been presented in his defense. The Third Circuit mentioned only

Carchidi and three witnesses who were outside the union hall.

As to the latter three, Peruto indicated his reluctance to call them

because they might have seen one of the co-defendants leaving

the union hall (Pet. App. 16B; 593 F.2d at 521). However, no one,

including Peruto, indicated how these witnesses, who were not

called at the state court hearing, could have helped Sullivan.

20. Carchidi had previously invoked the Fifth Amendment at

the Coroner’s Inquest (A. 204a-205a) and testified that the only

people with whom he had discussed the case were his two attorneys

(A. 199a-200a).

21. The Third Circuit noted that, during Sullivan’s trial,

Peruto, in another context (regarding the admissibility of an

out-of-court declaration by Carchidi), argued that Carchidi could

not be called as a witness (Pet. App. 18B-19B; 593 F.2d at 522-

523).

F.Supp. 803, 808-809 (D. Mass. 1978), which rejected a

similar claim.”

Moreover, a close scrutiny of Carchidi’s hearing testi-

mony indicates that he would not have been a helpful

witness for Sullivan since he would have effectively placed

Sullivan in the building at the time of the killing (A. 195a-

196a), and Carchidi barely, if at all, discredited McGrath.

Thus, no witnesses existed who would have actually helped

Sullivan; this is precisely what Judge DiBona indicated in

the course of his testimony (A. 21a-22a).

Next, there is the question of Sullivan’s decision not

to testify. A careful reading of Peruto’s testimony makes it

clear that neither he nor DiBona had any conceivable con-

flict in advising Sullivan on this strategical question. Peruto

could not even remember which position he advocated,

although DiBona recalled that he (DiBona) wanted Sulli-

van to testify and Peruto played the “devil’s advocate.”

Peruto never indicated, nor is there any basis from which

to conclude, that Sullivan’s decision not to testify had any

connection, however remote, with Peruto’s alleged concern

for the co-defendants. In relevant part, Peruto testified as

follows:

A. And you know, I’m not even sure now which of the

two of us was pushing for him to testify or was push-

ing the other way. I’m even mixed up on that. But I do

recall that Fred DiBona felt that there was not enough

22. There, the court noted:

(I]f separate attorneys had represented [appellant]

and [co-defendant], then there would have been no way that

[appellant] could have required [co-defendant] to relinquish

his Fifth Amendment right to stay off the witness stand.

Therefore, [appellant] could not possibly have been prejudiced

by joint representation as far as [his co-defendant'’s] testimony

is concerned, because he would not have been able to demand

and obtain such testimony even had he been represented by

a separate lawyer.

United Sjates v. Martorano, 457 F.Supp. at 808-809.

for it to go to the jury in the first place to result in a

conviction. ...

Q. Well, Judge DiBona said that he urged the defend-

ant to take the witness stand.

A. Well, if that’s his recollection, I'll have to say I

can't refute it in my recollection.

Q. Well, I want to know if it was you who urged him

not to testify. ...

The Witness: Since I don’t recall, I’ll put it

this way: Which of the two of us urged him to

testify or did not, or whether I did it as a result

of being sort of a devil’s advocate—I represent

him regularly, Judge—I would say that I would

accept Judge DiBona’s recollection. And it does

seem to my recollection more in keeping with

what I would have done because of the other two

defendants yet to testify.

(A. 59a-60a) (emphasis added ).28

Thus, it is clear from the record that there was no

actual conflict of interest. Peruto’s claim is little more than

a hindsight belief that another strategy might have worked

better.* DiBona perceived no conflict of interests problem

and Peruto’s vague claim of conflict simply does not bear

up under close examination. Nevertheless, the Third Cir-

23. Sullivan denied that he made the ultimate decision not

to testify (A. 138a). Sullivan’s own testimony is largely incon-

sistent with several of the points made in the testimony of Peruto

and DiBona. The state evidentiary hearing court found that

Sullivan himself decided not to testify after consulting with counsel

(Pet. App. 7F), and therefore credited the DiBona-Peruto version

of the events.

24. Hindsight strategical laments hardly equate to constitu-

tional violations. United States v. Foster, 469 F.2d 1, 4 (1st Cir.

1972).

cuit refused to examine the record to see if an actual con-

flict existed, stating:

The contention that there were no witnesses

whose testimony would have been useful requires us

to speculate as to what witnesses who have never tesii-

fied, some of whom are now deceased, would have said

and whether independent counsel would have used

their testimony. This we cannot do.

(Pet. App. 20B; 593 F.2d at 523).?5 Accordingly, the flaw

in the “possibility of conflict, however remote” test thus

becomes abundantly clear: the remoteness aspect man-

dates Sixth Amendment relief being granted on the hypo-

thetical basis that an independent attorney might have

presented defense witnesses although, as a matter of fact,

none existed.

B. This Court’s prior decisions, as well as the weight of

other available authority compel the use of an “actual

conflict” test when a conflict of interest is first

raised post-trial.

In reviewing the viability of the standard of review

adopted by the Third Circuit, three prior decisions by this

Court are unquestionably relevant: Holloway v. Arkansas,

435 U.S. 475 (1978), Dukes v. Warden, 406 U.S. 250

(1972), and Glasser v. United States, 315 U.S. 60 ( 1942).

Glasser was a joint representation case where, as trial

commenced, the trial court, over objection, appointed

Glasser’s retained counsel to represent a co-defendant as

well. There, a Sixth Amendment violation was found be-

cause the trial court, over objection, ordered joint repre-

sentation of defendants with conflicting interests. In

Holloway, the trial court, although repeatedly advised by

25. Interestingly, there is no record proof of any witnesses

being deceased (see Argument III, infra at 45, n. 50).

defense counsel of the disparate interests of the three

defendants for whom he was appointed, nevertheless and

again over objection ordered counsel to represent them at

a joint trial. There, this Court held that requests for ap-

pointment or retention of separate counsel prior to trial

because of possible conflicts must be granted subject only

to the trial court’s power to explore “the adequacy of the

basis of defense counsel’s representation’s regarding a con-

flict of interests without improperly requiring disclosure

of the confidential communications of the client.” Hol-

loway, 435 U.S. at 487 (footnote omitted ).?6

Thus, where a pre-trial request is made for the ap-

pointment of separate counsel and is improperly denied,

this Court has held that reversal is virtually automatic

(“We read .. . Glasser... as holding that whenever a trial

court improperly requires joint representation over timely

objection reversal is automatic,” Holloway, 435 U.S. at

488). This Court also held that a harmless error analysis

could not be considered in these circumstances.

In Dukes, 406 U.S. 250, this Court had occasion to

review the decision of the Connecticut Supreme Court

denying Dukes’ request for state habeas relief. Although

this Court’s opinion did not extensively address the conflict

of interest issue,?” the Court did affirm the Connecticut

Supreme Court’s holding that, because no actual conflict

existed which motivated the guilty plea, Dukes was not

entitled to relief. Since Dukes, unlike Glasser and Hollo-

26. The Court did note that, since Glasser was decided, courts

have taken diverse approaches in joint representation cases

where counsel does not advise the trial court of potential or actual

conflict. Those questions, however, were not reached. 435 US.

at 484.

27. Dukes was seeking to overturn his guilty plea based on

the alleged conflict. This was raised for the first time after he had

previously lost on direct appeal and federal habeas corpus on

other theories. 406 U.S. at 250-251. The focus of this Court's

opinion is more on the guilty plea than the conflict issue.

‘

way, was a collateral review case, it does appear, at least

inferentially from Dukes, that for collateral review Cases,

this Court has approved a state requirement that the

defendant show actual conflict.

In any event, the instant case is factually distinct

from Glasser and Holloway. In the case sub judice, no

objection to the form of representation was raised prior to

trial, and the challenged representation involved was made

by privately retained counsel and not court-appointed coun-

sel. In addition, all defendants received separate trials, and

no factual basis is apparent from the record to conclude

that the trial court should or could have been aware of any

possibility of conflicting interests either before or during

Sullivan’s trial.

Despite these countervailing factors, the Third Circuit

applied a standard for collateral attack that is barely dis-

tinguishable from the prophylactic approach used when

the issue is raised pre-trial. Given that the one principle

which emerges clearly from Glasser is that joint repre-

sentation is not per se unconstitutional under the Sixth

Amendment, the Third Circuit approach cannot be appro-

priate. There is presently no Sixth Amendment right to

separate counsel, nor is there a recognized presumption

that joint representation is improper in all circumstances.”

Indeed, even in the Holloway situation, this Court allowed

trial courts the latitude to inquire, pre-trial, into the ade-

quacy of the basis for a claimed conflict before the court

decides to honor a request for separate counsel. Holloway,

435 U.S. at 487.

28. Several distinct advantages may exist in joint represen-

tation. The united front approach can insulate the defendants

from being set against each other and also prevent the prosecutor

from negotiating for testimony. Indeed, in some instances, the

government may seek to prevent one attorney from representing

multiple defendants. Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896

(1975), cert. denied, 423 U.S. 1083 (1976).

Given the prerequisite that some basis for the conflict

be established in the pre-trial setting, it must be concluded

that where, as here, the conflict is first claimed post-verdict,

a defendant must show substantially more than a “possibil-

ity, however remote,” that a conflict existed before a Sixth

Amendment violation can be found.2®

Should this Court accept this contention that the Third

Circuit standard of review is neither constitutionally

mandated nor justified, the problem remains of determin-

ing what standard of review should be employed to resolve

post-verdict claims of improper joint representation on the

basis of conflict of interests.*° As the Court noted in Hollo-

29. It is frequently noted that it is difficult to assess the

precise degree of prejudice actually suffered in a conflict situation.

Glasser v. United States, 315 U.S. at 75-76. This is often a point

advanced in favor of granting relief liberally in conflict cases.

However, where the objection is first made on collateral review, the

vagaries of conflict also operate in favor of a defendant. Imagined

conflicts can be easily conjured up and the motive to do so is

obvious. Mr. Justice Frankfurter discussed this problem in his

dissent in Glasser:

It is a commonplace in the administration of criminal

justice that the actualities of a long trial are too often given

a meretricious appearance on appeal; the perspective of the

living trial is lost in the search for error in a dead record.

. . - Not until twenty weeks after Stewart had become counsel]

for the co-defendant Kretske, and fifteen weeks after the trial

had ended, did Glasser discover that he had been deprived

of his constitutional rights. This was obviously a lawyer’s

afterthought. It does not promote respect for the Bill of

Rights to turn such an afterthought into an imaginary injury

that is reflected nowhere in the contemporaneous record of

the trial and make it the basis for reversal.

315 U.S. at 88-89.

30. Should the Court adopt the Third Circuit standard, the

petitioner would still seek a remand for further proceedings. See

Argument III, infra. There is, however, no argument being

advanced that the Third Circuit misapplied its own legal standard

to the facts as it found them.

ee a Er Sa

‘

way, courts have differed in their approach to the problem.

Not only are differing standards employed by different

courts, but the presence or absence of several factors may

or may not alter their analysis: e.g., the type of joint repre-

sentation;*' the status of counsel as appointed or privately

retained; whether the trial court has an affirmative duty to

inquire pre-trial regarding possible conflicts; whether the

court did so inquire; whether the defendant was warned of

the “right” to separate counsel and whether he waived it;

and whether the court should have been on notice of a

conflict, even if there was no duty to inquire and no objec-

tion raised.

This Court need not necessarily resolve all joint repre-

sentation questions or devise a single standard to cover all

conceivable situations to decide this case. It is submitted,

however, that, at the least, in state joint representation

Cases, where defendants are tried separately, where counsel

is privately retained and does not alert the court to any

potential conflicts, either pre-trial or at trial, and where no

potential conflicts are apparent from the trial record, a

heavy burden should be placed on defendants before relief

is granted post-trial,

Specifically, a convicted defendant should be required

to show that an actual or real conflict of interest existed;

that is, a conflict which actually prevented counsel from

31. The decisions do not even agree on the precise definition

of joint representation. As previously indicated, a definitional

distinction was drawn between jointly and separately tried defend-

ants by the Third Circuit judges who voted for reargument en banc

(Pet. App. 3A-4A; 593 F.2d at 525).

competently representing his clients’ interests.%2 This

standard is justified for several reasons: the convicted

defendant has obvious reasons to fabricate conflicts in

order to avoid criminal sanctions; the failure of counsel to

avoid the conflict pre-trial, in accordance with his pro-

fessional obligation,® is prima facie evidence that no real

conflict of interest existed; the attorney post-verdict may

not have lost his adversarial interest in his client and

vague claims of potential conflict will suddenly surface.

See, e.g., Loukas v. Johnson, 453 F.2d 407 (6th Cir. 1972);

Commonwealth v. Napper, 254 Pa. Super. Ct. 54, 385

A.2d 521 (1978). Additionally, in this case, the potential

for inherent, but not articulable, prejudice is far less be-

Cause the defendant was tried separately and was repre-

32. All commentators have noted the degree of confusion and

the definitional problems which have been created as lower courts

have struggled with conflict questions See generally Tague,

Multiple Representation and Conflicts of Interest in Criminal Cases,

67 Geo. L.J. 1075 (1979); Lowenthal, Joint Representation in

Criminal Cases: A Critical Appraisal, 64 Va.L.Rev. 939 (1978);

Geer, Representation of M ultiple Criminal Defendants: Conflicts of

Interest and the Professional Responsibilities of the Defense

Attorney, 62 Minn.L.Rev. 119 ( 1978); Wanat, Conflicts of Interest

in Criminal Cases and the Right to Effective Assistance of Counsel

—The Need for Change, 10 Rut.-Cam. L.J. 57 (1978); Com-

ment, Conflicts of Interests in Multiple Representation of Crim-

inal Co-Defendants, 68 J. Crim. L.&C. 226 (1978); Hyman, Joint

Representation of Multiple Defendants in a Criminal Trial: The

Court’s Headache, 5 Hofstra L.Rev. 315 (1977); Note, Ensuring

Effective Assistance of Counsel for the Criminal Co-Defendant, 37

La.L.Rev. 1289 (1977). This brief does not advocate a separate

showing of prejudice once a conflict is shown to exist. However,

given that an actual or real conflict standard is advocated in this

case, this distinction may be only semantic. Additionally, because

the state’s case was circumstantial, a harmless error argument is

not presented in this case. However, there is no reason for harm-

less error to be generally rejected, as it was in Holloway. in cases

where the defendant does not object to joint representation

pre-trial.

33. ABA Code of Professional Responsibility DR 5-105.

hee

QU LPT OL

od ats A OL a ee

ne og

te 5

sented by retained counsel of his own choice. Under such

circumstances, establishing an actual or real conflict of

interests is not so inherently difficult as to unreasonably

preclude avenues for relief.

The standard advocated herein is not novel. Several

circuits also require that, in joint representation cases, a

real conflict of interests be shown." See, e.g., United States

v. Foster, 469 F.2d 1 (1st Cir. 1972) (defendant did not

show any prejudice from joint representation); Kaplan v.

Bombard, 573 F.2d 708 (2d Cir. 1978) (defendant must

show some specific instance of prejudice, some real conflict

of interest); United States v. Carrigan, 543 F.2d 1053 (2d

Cir. 1976) (real conflict of interest and prejudice present

since each defendant gave different version of incident to

police and defendant’s trial testimony was in conflict with

co-defendant’s statement, which was also admitted at

trial); United States v. Atkinson, 565 F.2d 1283 (4th Cir.

1977), cert. denied, 436 U.S. 944 (1978) (defendant must

show some specific instance of prejudicé and some real

34. Some of these jurisdictions may, in varying degrees, shift

the burden of proof to the state, if there was no pre-trial “inquiry”

into the conflicts question. The applicability of the “inquiry” re-

quirement will be discussed separately. However, the dissent in

Holloway is noteworthy at this point because of the conflict

standard suggested there. In that dissent, it was agreed that a

pre-trial request for separate representation should trigger an

inquiry by the trial judge. The dissenters, however, would net have

applied prophylactic relief in the absence of an inquiry after a

request for separate counsel. Rather, if a timely request for

separate counsel was denied without a hearing, the burden would

shift to the government “to establish the improbability of preju-

dice,” 435 U.S. at 495-496, but “the record must offer some basis

for a reasonable inference that ‘conflicting interests’ hampered

a potentially effective defense.” 435 U.S. at 496. This standard is

not dissimilar from that advocated in this pre-trial “silent record”

case where there is neither a request for separate counsel nor an

inquiry.

conflict of interest); Haggard v. Alabama, 550 F.2d 1019

(5th Cir. 1977) (defendant must show actual prejudice);

Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir. 1975)

(actual prejudice exists as to minimally involved defend-

‘ant since plausible defense of shifting blame to co-defend-

ants foreclosed by joint representation); Thacker v. Bor-

denkircher, 590 F.2d 640 (6th Cir.), cert. denied, 99 S. Ct.

2827 (1979) (defendant must show that there was a

conflict of interest and that he was prejudiced thereby;

the establishment of mere potential conflict arising from

joint representation is not sufficient to constitute violation

of the Sixth Amendment); United States v. Woods, 544

F.2d 242 (6th Cir. 1976), cert. denied, 430 U.S. 969 (1977)

(defendant must show actual prejudice); United States ex

rel. McClindon v. Warden, 575 F.2d 108 (7th Cir.), cert.

denied, 439 U.S. 856 (1978) (defendant must show that a

conflict of interest existed in fact); United States v.

Mandell, 525 F.2d 671 (7th Cir. 1975), cert. denied, 423

U.S. 1049 (1976) (defendant must show with a reasonable

degree of specificity that a conflict of interest actually

existed at trial); Davidson v. Cupp, 446 F.2d 642 (9th Cir.

1971) (defendant must show specific prejudice in order

to prevail); Watkins v. Wilson, 408 F.2d 351 (9th Cir.

1969) (defendant must demonstrate that some specific

prejudice resulted from the joint representation); Fryar v.

United States, 404 F.2d 1071 (10th Cir. 1968), cert. denied,

395 U.S. 964 (1969) (defendant must show that prejudice

resulted from the joint representation ).

The Eighth Circuit Court of Appeals requires a show-

ing of actual prejudice or a substantial possibility of a con-

flict of interest. Austin v. Erickson, 477 F.2d 620 (8th Cir.

1973); Beran v. United States, 580 F.2d 324 (8th Cir.

1978), cert. denied, 99 S. Ct. 1422 (1979) (defendant must

show that there was an actual conflict of interest or a

substantial possibility of such a conflict).

C. The presence or absence of a pre-trial judicial inquiry

is not constitutionally significant in this case.

The delineation of the proper standard to be employed

is complicated by the subsidiary question of the need for a

pre-trial judicial inquiry. Many courts now find significant,

in any post-verdict review of a Sixth Amendment chal-

lenge, the absence or presence of a thorough pre-trial in-

quiry, by the trial court, into potential conflicts of interest.

The presence of such an inquiry may signify a waiver by

defendant of the Sixth Amendment claim. In most juris-

dictions where inquiry is required, its presence or absence

will determine where the burden of proof will lie—with

the defendant or the government—if there is a post-verdict

challenge. See generally United States v. Lawriw, 568 F.2d

98 (8th Cir. 1977), cert. denied, 435 U.S. 969 (1978).

Proposed Fed. R. Crim. P. 44(c), now being considered

by Congress,** would require trial courts to make pre-trial

35. Proposed Rule 44(c) reads as follows:

Rule 44. Right to and Assignment of Counsel

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 representa-

tion and shall personally 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.

On April 30, 1979, this Court promulgated Rule 44(c) as an

amendment to the Federal Rules of Criminal Procedure, effective

August 1, 1979. The effective date was postponed (93 Stat. 326)

until expressly approved or December 1, 1980, whichever is earlier.

The Advisory Committee Comment to Rule 44(c) appears at 77

F.R.D. 507, 594-604 (1978).

inquiries, and to take corrective measures, unless there is

little likelihood that a conflict problem would arise. 77

F.R.D. at 594.% The proposed rule reflects the conclu-

sion reached by many courts that the most efficacious

way to deal with the “conflict” problem is to avoid it pre-

trial, either by securing the defendants’ waiver of any Sixth

Amendment claim, or by ordering that separate counsel

enter the case. Although there are arguments which can be

made to suggest that this approach may be less than a

perfect solution to the problem, that discussion is not rele-

vant herein.*’? Rather, the more immediate question is

whether the failure to inquire, prior to a 1967 Pennsylvania

36. The American Bar Association Project on Standards For

Criminal Justice has recently amended the Standards to provide

that defendants must give informed consent to joint representation

and that the consent must be made a matter of judicial record.

ABA Standards Relating to the Administration of Criminal] Justice

— The Defense Function, Standard 4-3.5 (Conflict of Interest)

(Approved Draft, February 12, 1979). The relevant standard, in

effect when Holloway was decided (ABA Standards Relating to the

Administration of Criminal Justice—The Function of the Trial

Judge, §3.4(b), (Approved Draft 1972) ), which required judicial

inquiry into potential conflict, has been suspended. (See ABA

Standards Relating to the Administration of Criminal Justice—

Special Functions of the Trial Judge, Derivation Table (Approved

Draft 1978) ).

37. In fact, if applied prospectively, an inquiry rule will help

to insulate convictions from collateral attack. Thus, from that

viewpoint, the inquiry rule may be desirable. However, this does

not make the inquiry requirement a matter of constitutional man-

date.

state trial. is legally significant in a federal habeas corpus

proceeding.**

An automatic inquiry requirement was certainly not in

effect in Pennsylvania or the Third Circuit in 1967 when

Sullivan was tried.*® Further, it is submitted that, since the

concept and legal philosophy embodied in Rule 44(c)

should be deemed strictly supervisory and not of consti-

tutional dimension, it should not apply to this 1967 case.‘°

38. It may be argued that some inquiry is constitutionally

necessary where a potential conflict becomes apparent to the trial

judge (see, e.g., United States v. Mandell, 525 F.2d at 677) or

where counsel is appointed by the court. Those issues are not

present here as counsel was privately retained and no potential

conflict was apparent prior to or during trial. Whether an inquiry

requirement in all cases has constitutional underpinnings and is,

therefore, applicable to state court proceedings has not been exten-

sively discussed by the courts. See LaFleur v. Hall, 383 F.Supp.

1188, 1190, n.3 (D. Mass. 1974) (noting that court’s supervisorv

rule requiring an inquiry is not binding on the state court); Salo-

mon v. LaVallee, 575 F.2d 1051, 1055 (2d Cir. 1978) (where the

court specifically reserved decision on whether the court’s super-

visory rule, requiring an inquiry by the trial court and the attend-

ant shift in the burden of proof absent a satisfactory inauiry,

would apply to a review of state court convictions). But see Colon

v. Fogg, 603 F.2d 403 (2d Cir. 1979) (where the court, without

discussion of the issue, reversed the district court’s order and ruled

that the state failed to meet its burden of disproving prejudice).

39. The possibility of conflict, however remote, standard

was first adopted in the Circuit in 1970 (Walker v. United States,

422 F.2d at 375). In 1973, the Third Circuit discussed pre-trial

inquiry and declined to adopt a per se rule requiring it, preferring

instead to use the standard applied herein (United States ex rel.

Hart v. Davenport, 478 F.2d 203, 210 (3d Cir. 1973) ). Ironically,

the authorities cited in support of the standard from other circuits

do not indicate that those circuits use the “possibility, however

remote,” standard.

40. Even a Rule 44(c) violation would not carry with it the

mandatory reversal requirement of Fed.R.Crim.P. 11. See 77 F.R.D.

at 603. Moreover, this Court has recently held that a formal viola-

tion of Rule 11 is not cognizable on habeas corpus. United States

v. Timmreck, 99 S.Ct. 2085 (1979).

The Sixth Amendment guarantees the right to the

effective assistance of counsel; however, the additional con-

clusion that joint representation of defendants is presump-

tively violative of the constitutional right to effective

counsel is simply unwarranted. As this Court recognized in

Glasser and Holloway, joint representation is not per se

violative of the Sixth Amendment right. Hence, there is no

per se Sixth Amendment right to separate counsel. Thus,

any requirement that the court inquire pre-trial and advise

the defendant of the “right” to separate counsel should be

supervisory and not of constitutional dimension.“

Thus, the Commonwealth submits that the Third Cir-

cuit standard should not be applied to the facts herein nor

should any “inquiry” factor be significant. Rather, at the

least, in a 1967 state trial, a defendant initially objecting

to joint representation after conviction must establish the

presence of an actual or real conflict of interest, as previ-

ously defined, before federal habeas corpus relief should

be considered. Indeed, if this standard is adopted, the

record herein would not be sufficient to justify giving

Sullivan relief regardless of which side bears the burden

of proof. The record establishes no conflict. Rather, at most,

there is an attorney’s and a defendant’s lament that they

lost and that, maybe, if they had another chance, they

would win. This is simply not a basis for granting a writ

of habeas corpus.

41. As to this point, a comparison with Boykin v. Alabama,

395 U.S. 238 (1969), and guilty pleas is illustrative. There, the

Court held that it would not presume a defendant's waiver of the

important federal rights which are relinquished upon the entry of

a guilty plea from a silent record. 395 U.S. at 243. However, as the

Court made clear, to reach that holding and require an inquiry,

there had to be an underlying constitutional right being relin-

quished. Thus, here, unless a Sixth Amendment right to separate

counsel is found to exist, the inquiry requirement cannot be

deemed to be a constitutional requirement.

ARGUMENT II

BECAUSE THE SIXTH AMENDMENT VIOLATION

ALLEGED BELOW WAS NOT CAUSED OR FOSTERED

BY STATE ACTION, THE THIRD CIRCUIT ERRONE-

OUSLY FOUND THAT VIOLATION TO BE AN AP-

PROPRIATE GROUND FOR ISSUING THE WRIT OF

HABEAS CORPUS.

A defendant seeking federal habeas corpus relief must

demonstrate that an alleged constitutional violation was

caused by the state.** Because the putative Sixth Amend-

ment violation here was not even arguably an action of the

state, the Third Circuit erroneously granted the writ.

Federal habeas review is extraordinary; it was not

intended that the federal judiciary review all criminal con-

victions arising from the state courts.** A Sixth Amend-

42. It is fundamental that the Constitution exists to protect

individuals from actions of the state. See generally Farrand, 1

Records of the Federal Convention of 1787, 132 et seq. (1966).

Consequently, this Court has held that no infringement of consti-

tutional rights will generally be found absent state action which

caused the violation. See, e.g., Flagg Brothers, Inc. v. Brooks, 436

U.S. 149, 155 (1978) (“[MlJost rights secured by the Constitution

are protected only against infringements by faa Rican

43. Habeas Corpus always has been a collateral remedy,

providing an avenue for upsetting judgments that

have become otherwise final. It is not designed as a

substitute for direct review.

Willams v. United States, 401 U.S. 675, 682-683 (1971) (Harlan,

J., concurring) (emphasis in original). This limited scope of

habeas review conforms to well-settled principles of federalism

by which the federal judiciary largely defers to the legislative and

judicial determinations of the states. Merrill Lynch, Pierce, Fenner

& Smith, Inc. v. Ware, 414 U.S. 117, 126-127 (1973); Labine v.

Vincent, 401 U.S. 532, 537-539 (1971); Powell v. Texas, 392 U.S.

514, 535 (1968); Duncan v. Louisiana, 391 U.S. 145, 148-149

(1968); Thacker v. Bordenkircher, 590 F.2d 640, 641 (6th Cir.),

cert. denied, 99 S.Ct. 2827 (1979).

ment claim alleging a conflict is meaningless unless it

can also be shown that the state was in some way respon-

sible for the infringement. When counsel is appointed to

represent co-defendants, the state action is obvious; the

state quite literally ordered the joint representation. If,

however, counsel is retained by the defendant, state action

is not automatically implicated, because the defendant

himself, not the state, created the joint representation.

Thus, the distinction between retained and appointed

counsel does not arbitrarily curtail habeas review solely

on the basis of a defendant’s financial situation. See

United States ex rel. Hart v. Davenport, 478 F.2d 203, 211

(3d Cir. 1973).‘* Of course, the mere fact that counsel is

retained does not end the inquiry, as there are two addi-

tional possible predicates for federal habeas review. If the

state court or state prosecutor precipitated the alleged

44. The concept that the general effectiveness of retained and

appointed counsel should be evaluated differently is well settled.

See United States v. Rodriquez Vallejo, 496 F.2d 960 (1st Cir.),

cert. denied sub nom Vallejo v. United States, 419 U.S. 965

(1974); United States v. Bubar, 567 F.2d 192 (2d Cir.), cert.

denied, 434 U.S. 872 (1977); Root v. Cunningham, 344 F.2d 1

(4th Cir.), cert. denied, 382 U.S. 866 (1965); Lacaze v. United

States, 457 F.2d 1075 (Sth Cir.), cert. denied, 409 U.S. 921

(1972); Loukas v. Johnson, 453 F.2d 407 (6th Cir. 1972); Plas-

kett v. Page, 439 F.2d 770 (10th Cir. 1971); United States v.

Riebold, 557 F.2d 697 (10th Cir.), cert. denied, 434 U.S. 860

(1977); Williams v. Estelle, 416 F. Supp. 1073 (N.D. Tex.

1976); Kallie v. Beto, 353 F. Supp. 966 (S.D. Tex. 1973), aff'd

sub nom. Kallie v. Estelle, 515 F.2d 588 (5th Cir.), cert. denied,

423 U.S. 1019 (1975); Williams v. United States, 304 F. Supp.

691 (E.D. Mo. 1969); Shaw v. Henderson, 303 F. Supp. 183

(E.D. La. 1969), aff'd, 430 F.2d 1116 (5th Cir. 1970); Opie v.

Meacham, 293 F. Supp. 647 (D. Wyo. 1968), aff'd, 419 F.2d 465

(10th Cir. 1969), cert. denied, 399 U.S. 927 (1970). For state

decisions, see Annot., 74 A.L.R. 2d 1384, 1406 §5. With respect to

Sixth Amendment claims involving an allegation of a conflict of

interest, a smaller number of courts draw this distinction. See

Addenda I and I?

conflict, or did nothing to mitigate a conflict of which they

should have been aware, the requisite state action has oc-

curred for Sixth Amendment purposes. In addition, state

action as well as a due process violation will be found if the

defendant shows that the siate proceedings were “funda-

mentally unfair” because his retained attorney was bur-

dened by an actual conflict of interest.

This analysis has been feilowed by the Fifth Circuit

for several years. See, e.g., Fitzgerald v. Estelle, 505 F.2d

1334, 1337 (5th Cir. 1974), cert. denied, 422 U.S. 1011

(1975); Foxworth v. Wainwright, »\. F.2d 1072 (5th Cir.

1975).“* In adopting this standard, -he Fifth Circuit has

effectively and properly balanced the competing interests

at work in the administration of criminal justice.

The Third Circuit has rejected the approach articu-

lated by the Fifth Circuit in Fitzgerald. United States ex

rel. Hart v. Davenport, 478 F.2d at 210. Although it pur-

ported to acknowledge the necessity of state action, the

Hart court held that the state action requirement is auto-

matically met whenever a conflict occurs during a criminal

proceeding and no inquiry is made by the trial court or

prosecutor.

The Third Circuit’s approach, unlike that of the Fifth

Circuit, ignores many of the interests central to the admin-

istration of justice as well as the fundamental differences

45. See also United States v. Bosch, 584 F.2d 1113, 1123 n.7

(1st Cir. 1978); Garton v. Swenson, 497 F.2d 1137, 1139 n.4 (8th

Cir. 1974); People v. Cook, 13 Cal. 3d 663, 119 Cal. Kptr. 500, 532

P.2d 148, cert. denied, 423 U.S. 870 (1975); People v. Gomberg,

38 N.Y. 2d 307, 397 N.Y.S. 2d 769, 342 N.E. 2d 550 (1975);

State v. Jeffrey, 162 Mont. 92, 515 P.2d 364 (1973).

between retained and appointed counsel.‘* For instance,

a defendant who hires counsel can carefully search for an

attorney whose abilities are especially suitable to the tasks

at hand. An indigent has no choice; he must accept whom-

ever is appointed, regardless of the lawyer’s ability. More

important, retained counsel can be fired if the client is at

all dissatisfied with his performance. An indigent, how-

ever, must present compelling reasons before counsel will

be replaced. See United States v. Rodriguez Vallejo, 496

F.2d 960 (1st Cir. 1970). Because an indigent defendant

has not employed his attorney, and so may be unable to

take steps that will ensure satisfactory performance, closer

scrutiny of court appointed counsel is necessary. Common-

wealth v. Myers, 472 Pa. 200, 209, 371 A.2d 1279, 1283

(1977); Commonwealth v. Williams, 457 Pa. 502, 508-509,

327 A.2d 15, 18 (1974). In addition, the Fitzgerald stan-

dard lends integrity to the truth-determining function cen-

tral to any prosecution:

Ordinarily, a defendant who retains counsel of

his own selection is responsible if that counsel does

not faithfully serve his interest. Any other rule would

put a premium upon pretended incompetence of coun-

46. Significantly, in rejecting the Fitzgerald standard, the

Third Circuit failed to realize that the Fifth Circuit test does not

preclude the granting of habeas relief in appropriate conflict situ-

ations involving privately retained counsel. As has been shown,

when a defendant demonstrated the existence of an actual conflict

which should have been apparent to the judge or prosecutor, or

which violated the concerns of due process and fundamental fair-

ness, the extraordinary relief afforded through federal habeas

intervention has been granted. Zuck v. Alabama, 588 F.2d 436

(5th Cir. 1979), petition for cert. filed, 47 U.S.L.W. 3829 (U.S.

May 21, 1979) (No. 78-1741); Messelt v. Alabama, 595 F.2d 247

(5th Cir. 1979); United States v. Alvarez, 580 F.2d 1251 (5th Cir.

1978). However, in the instant case, involving a Sixth Amendment

ineffectiveness claim based upon a highly speculative conflict, the

Fitzgerald standard would preclude federal review.

sel for, if the rule were otherwise, a lawyer with a

desperate case would have only to neglect it in order

to ensure reversal or vacation of the conviction.

People v. Mitchell, 411 Ill. 407, 104 N.E.2d 285 (1952).

Loukas v. Johnson, 453 F.2d at 408.

Finally, the Fitzgerald standard provides federal habe-

as review for all claims of actual conflict of interest. Thus,

the distinction used in retained counsel situations not only

limits review to compelling conflict claims, but it also lends"

a degree of finality to criminal litigation."

When applied to this case, the soundness of the Fitz-

gerald standard is apparent. At trial, there was not the

slightest indication tha! the loyalty of Sullivan’s attorneys

were divided. On the contrary, the record shows quite

plainly that these two men, described as “two of Philadel-

phia’s best known trial attorneys,” represented Sullivan

with great skill and vigor (Pet. App. 3A; 593 F.2d at 525).

Under these circumstances, it is clear that neither the

trial judge nor the prosecutor acted irresponsibly in failing

to inquire as to “the possibility of a conflict, however re-

mote.” This is particularly true because the defendants

were tried separately. See Miller v. United States, 564 F.2d

103, 106 (1st Cir. 1977), cert. denied, 435 U.S. 931 (1978).

Under these circumstances, it is clear that the Third Cir-

cuit erred in even considering the Sixth Amendment

claims raised below.** The primary issue in habeas review

47. See Durfee v. Duke, 375 U.S. 106, 111 (1963) (“Public

policy dictates that there be an end of litigation . . .”); Church v.

Hubbart, 6 U.S. (2 Cranch) 187, 232 (1804) (per Marshall, C.J.)

(“[I]t is desirable to terminate every cause upon its real merits

... and put an end to litigation when it is within the power of the

court to do so.”).

48. Significantly, the decision below was based wholly upon

a Sixth Amendment claim of speculative conflict; no due process

or fundamental fairness claim was even discussed. Accordingly.

the standard of review appropriate in cases where counsel was re-

tained is properly applied here. See Zuck v. Alabama, 588 F.2d

436.

is the presence or absence of state action under the par-

ticular facts of the case. Viewed in this perspective, there

is nothing unsound or unreasonable in drawing distinc-

tions that might not otherwise be drawn. The Third Circuit

failed to appreciate that state action, not the status of

counsel, is the threshold inquiry for habeas corpus re-

view.*®

49. In his answer to the Commonwealth’s petition for cer-

tiorari, Sullivan argued that the Commonwealth’s state action

argument, although discussed by Judge Garth below (Pet. App.

2A-3A; 593 F.2d at 524-525), had been waived because it was not

included in the Commonwealth’s brief to the Third Circuit. This

Court has consistently reviewed similarly presented issues. Rose v.

Mitchell, 99 S. Ct. 2993, 3009 (1979); Procunier v. Navarette,

434 U.S. 555 (1978); Bellotti v. Baird, 428 U.S. 132, 143 n.10

(1976); Blonder Tongue Laboratories, Inc. v. University of Illinois

Foundation, 402 U.S. 313, 320 n.6 (1971); Moragne v. State

Marine Lines, Inc., 389 U.S. 375, 378 n.1 (1970); Allen v. Board

of Elections, 393 U.S. 544, 554 (1969); United States v. Speers,

382 U.S. 266, 277 n.22 (1965); Silber v. United States, 370 U.S.

717 (1962). The general rationale underlying these decisions is:

1) the disputed issue was fairly encompassed by the claims dis-

cussed in the lower courts or was in fact discussed by one of the

lower courts, and 2) the record allows for full evaluation of the

issue. The state action argument conforms to both these require-

ments. It was discussed by Judge Garth below. In addition, it is

fairly encompassed by all the opinions below, as any discussion of

infringement of Sixth Amendment rights is predicated on under-

lying state action. Finally, the issue may be fully evaluated on the

record before this Court. Thus, the issue has not been waived.

Moreover, as the state action question is virtually tantamount to

jurisdiction, it is an issue of exceptional importance which could

properly be discussed by this Court even if not raised by the

Commonwealth. Youakim v. Miller, 425 U.S. 231 (1976); Duignan

v. United States, 274 U.S. 195 (1927).

ARGUMENT III

THE THIRD CIRCUIT TRANSGRESSED APPROPRI-

ATE LIMITS OF APPELLATE REVIEW BY MAKING

DE NOVO FINDINGS OF FACT AND CREDIBILITY

BASED SOLELY UPON ITS ASSESSMENT OF THE

RECORD OF THE STATE COURT HEARING.

Under settled principles of habeas corpus review, the

Third Circuit was required to accept as presumptively cor-

rect the findings of fact made by the state court after a

hearing on the merits of respondent Sullivan’s conflict of

interest claim. 28 U.S.C. §2254(d); LaVallee v. Delle Rose,

410 U.S. 690, 691-695 (1973); Townsend v. Sain, 372 U.S.

293, 314-315 (1963). If the Third Circuit determined that

those findings were incomplete or inadequate for purposes

of appellate review, the court should have remanded the

case to the district court for a plenary evidentiary hearing

at which a competent resolution of inconsistent testimony

and of witness credibility could be made. Townsend v.

Sain, 372 U.S. at 312-316. See also United States ex rel.

McNair v. New Jersey, 492 F.2d 1307 (3d Cir. 1974).

Contrary to these principles of comity, the Third Circuit

made its own de novo findings of fact and credibility, based

solely upon review of the written transcript of the state

court hearing. As a result, the Third Circuit erroneously

granted the writ, based not upon the proper application of

legal principles to findings of fact made by a lower court,

but upon that appellate court’s own speculative findings of

fact, and a determination that those “facts” gave rise to a

possible conflict of interest on the part of counsel. Thus,

even if this Court adopts the Third Circuit standard and

holds that the Sixth Amendment guarantee will afford

relief to a defendant who establishes the possibility of a

conflict of interest on the part of counsel, the decision be-

low must nevertheless be reversed.

—

The Third Circuit based its finding of a possible con-

flict of interest upon the equivocal testimony of A. Charles

Peruto, who assisted lead counsel DiBona at Sullivan’s

trial. Peruto, who repeatedly admitted at the state court

hearing that his recollection of specific discussions held

eight years earlier was meager, testified that at Sullivan’s

trial he had advised against presenting a defense case for

various reasons, including a concern for avoiding dis-

closure of witnesses prior to the trials of the two co-de-

fendants. Rejecting the determinations of the district court

and of the state courts that Sullivan was not entitled to re-

lief, the Third Circuit sua sponte credited Peruto’s asser-

tions regarding his tactical suggestions and his motivation,

and indeed accorded them dispositive weight, simply be-

cause “[n]o reason or evidence is offered to explain why

an attorney would make [this] damaging admission of

professional impropriety . . . were it not true” (Pet. App.

17B; 593 F.2d at 522).

The logic of the Third Circuit is fundamentally

flawed by a misperception of the precise issue before the

court, and by a misunderstanding of the proper limits of

appellate review of state court adjudications.

Unquestionably, a federal appellate court reviewing

the denial of haLeas corpus relief has the power, and the

duty, to independently assess the legal and constitutional

significance of elemental facts as found by a state hearing

court. See, e.g., Neil v. Biggers, 409 U.S. 188, 193 n3

(1972). However, whether Peruto ever in fact advised

against presenting a defense, and, if so, whether that

advice was in fact motivated by a concern for the other

two co-defendants, were just that—questions of basic and

elemental fact, properly answerable only by a hearing court

afforded the opportunity to observe the witness and to

evaluate his ability to remember and his credibility. Town-

send v. Sain, 372 U.S. at 309 n. 6; Brown v. Allen, 344

U.S. 443, 506 (1953) (opinion of Mr. Justice Frankfurter).

The Third Circuit was required to review the findings of

the state court consonant with that court’s denial of relief.

See, e.g., LaVallee v. Delle Rose, 410 U.S. at 695. Upon

such review, the Third Circuit could have found that the

state court necessarily rejected Peruto’s testimony, or that

the state court made no explicit finding because, regardless

of that testimony, Sullivan was not entitled to relief. If

the Third Circuit determined that the state court’s decision

was not supported by the record, or that the state court,

which applied an actual conflict standard, had failed to

make specific or adequate findings of fact relevant to the

different test applied by the federal court, the only proper

recourse was to remand the case to the district court for an

independent evidentiary hearing and findings of fact.

Townsend v. Sain, 372 U.S. at 312-316.

Instead of following this appropriate course, the Third

Circuit exceeded its legitimate authority by making its own

determination that Peruto’s testimony was worthy of be-

lief and acceptance. Rejecting any consideration of the

Commonwealth’s argument that Judge DiBona’s testimony,

and other evidence of record, conclusively rebutted any

possibility of conflict, the Third Circuit granted relief be-

cause “[wle have no basis on which to reject Peruto’s

Sworn admission that he injected improper considerations

into the attorney-client relationship” (Pet. App. 17B; 593

F.2d at 522).

Apart from the inherent unreliability of such factual

findings by an appellate court, the Third Circuit's logic in

so crediting Peruto’s testimony cannot withstand scrutiny.

In presuming Peruto’s veracity, the court not only relieved

Sullivan of his burden of rebutting the presumptive regu-

larity and legitimacy of his conviction, but also utterly

ignored the possibility that Peruto’s recollection of the trial

was inaccurate, whether by intent or by mistake. The

Third Circuit gave no consideration to the inherent bias

defense counsel may retain after his client’s conviction.

The impact of that bias upon the attorney's ability to sud-

denly become an objective witness in a collateral attack

on that conviction can properly be evaluated only by the

primary finder of fact at an evidentiary hearing. The Third

Circuit failed to perceive that such bias could prompt an

attorney, subliminally or not, to reconstruct the events of

the past in order to obtain the originally desired goal of

acquittal. See, e.g., Loukas v. Johnson, 453 F.2d 407 (6th

Cir. 1978); Commonwealth v. Napper, 254 Pa. Super.

Ct. 54, 385 A.2d 521 (1978). That possibility becomes far

from problematic in light of Peruto’s admitted personal

disagreement with the jury’s verdict. That he may have

perceived the opportunity to testify at the hearing as a

vehicle for righting a past “wrong” cannot be ignored.

Moreover, the Third Circuit’s a fortiori reasoning becomes

even less acceptable upon review of the record that dis-

closes the speculative nature of Peruto’s testimony, his

admittedly limited memory of the events eight years

earlier, and the denial of the existence of conflicting in-

terests by Judge DiBona, which was credited by the dis-

trict court and the state courts."

50. The Third Circuit's further acceptance of the record testi-

mony of Sullivan and of Carchidi, as corroborating Peruto, is

equally questionable. Carchidi’s willingness to testify, asserted

after he was relieved of jeopardy, cannot logically be transposed

into a finding that while awaiting trial on two counts of murder,

with the possibility of a death penalty if convicted, he would have

abandoned his Fifth Amendment rights. Nor can Sullivan’s self-

serving declarations be worth even the slight credit accorded them

by the Third Circuit. See Argument I, supra at 19-24.

The impropriety of the assumption of de novo fact finding

authority by the Third Circuit is further dramatized by the state-

ment in the court's opinion that certain of the putative defense

trial witnesses have since died (Pet. App. 20B; 593 F.2d at 523).

As the commonwealth pointed out in its brief to that court, there is

no record evidence whatever in support of that finding. The Third

Circuit’s conclusion could only have been based upon alleged

death certificates, never stipulated to or entered into evidence,

attached to Sullivan’s brief filed in the Pennsylvania Supreme

Court.

Even if as a matter of law a defendant is entitled to

relief upon showing the possibility of a conflict of interest,

he still bears the burden of establishing that such a possi-

bility existed as a matter of fact by credible and probative

evidence. Thus it is inconceivable that the court below

would have granted the writ solely upon Sullivan’s own

claim that his attorneys deferred to the interests of his

co-defendants. Nor would the court have accepted a legal

argument, unadorned by direct evidence, that the possibili-

ty of conflict existed anytime multiple defendants were

separately tried, since counsel would naturally desire to

prevent discovery of all defense evidence at the first trial.

Acceptance of either of those claims would be illogical

and tantamount to per se prohibition of joint representa-

tion under any circumstances, a conclusion contrary to the

clear decision of this Court in Holloway v. Arkansas, 435

U.S. 475 (1978).

The Commonwealth does not dispute the Third Cir-

cuit’s responsibility to determine the existence of a possible

conflict of interest as a matter of law under that court's

interpretation of the constitutional standard of review. The

Commonwealth, however, does seriously contest the Third

Circuit's authority to make findings of fact necessary to

support that legal determination solely upon the court’s

reading of the record. Thus, because the court below ex-

ceeded the legitimate bounds of appellate review, even if

this Court accepts tle legal standard formulated by the

Third Circuit, the case must be remanded to the district

court for an independent evidentiary hearing and for ap-

propriate findings of fact.

51. Of course, should this Court reject the Third Circuit's

standard but adopt a legal standard other than the actual conflict

test advocated in Argument I, supra, and applied by the Pennsyl-

vania courts, the case must be remanded to the district court for

appropriate findings of fact.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

November, 1979

Respectfully submitted,

Steven H. Goldblatt

Deputy District Attorney

Michael F. Henry

Paul S. Diamond

James B. Jordan

Marianne E. Cox

Assistant District Attorneys

Edward G. Rendell

District Attorney

Standard

Duty to

Inquire

Review of

State Court

Convictions

ADDENDUM

I. FEDERAL CASES

FIRST CIRCUIT

In joint representation cases, the defen-

dant has the burden of establishing an ac-

tual conflict between his interests and

those of his co-defendants. United States

v. Foster, 469 F.2d 1 (1st Cir. 1972).

In United States v. Foster, 469 F.2d 1 (Ist

Cir. 1972), the court announced a pro-

spective rule, pursuant to its supervisory

powers, that the district courts must in-

quire of jointly-represented defendants

regarding the risks of joint representation.

In United States v. Donahue, 560 F.2d

1039 (1st Cir. 1977), the court expanded

the scope of the inquiry and ruled that the

district courts must fully advise jointlv

represented defendants of the specific dan-

gers which such representation could

entail. The court later held that its ruling

in Donahue was not constitutionally man-

dated but was a mere expansion of a su-

pervisory rule. United States v. Waldman,

579 F.2d 649 (1st Cir. 1978).

In a district court opinion, the court stated

that the court’s supervisory rule requiring

an inquiry is not binding upon state courts.

LaFleur v. Hall, 383 F.Supp. 1188, 1190

n.3 (D. Mass. 1974). Presumably, in such

cases, the burden of proof would be on the

defendant.

Burden of

Proof

The First Circuit’s articulation of burden

of proof is, at best, confusing. In joint

representation cases, where the district

court has fulfilled its duty to inquire, the

defendant has a “heavy burden” of per-

suasion. United States v. Foster, 469 F.2d

at 5. See United States v. DiCarlo, 575 F.2d

952, 957 (1st Cir ), cert. denied, 439 U.S.

834 (1978). However, in cases where the

court sought to distinguish the defendant’s

burden of proof in cases of joint represen-

tation, from the situation where defense

counsel has a legal relationship with a

hostile party or witness (which the court

describes as “dual” representation), the

court noted that, in joint representation

cases, “only a relatively slight showing of

actual prejudice is required.” United States

v. DiCarlo, 575 F.2d at 957: Miller v.

United States, 564 F.2d 103, 106 (1st Cir.

1977), cert. denied, 435 U.S. 931 (1978).

(Joint representation appears to refer to

representation of two or more co-defen-

dants at a single trial. ) By contrast, in cases

of dual representation, as defined by the

court, the defendant must establish “a real

conflict of interest or a specific instance

of prejudice.” United States v. DiCarlo, 575

F.2d at 957; Miller v. United States, 564

F.2d at 106.

Where there is no adequate inquiry on the

record, the burden of proof shifts to the

government. On direct appeal, from con-

victions in the district courts, the govern-

ment must demonstrate from the record

that prejudice was “improbable.” On col-

lateral attack, by a federal prisoner, under

Retained/

Appointed

Joint /

Separate

Trials

Standard

Duty to

Inquire

Review of

State Court

Convictions

28 U.S.C. §2255, the government must

establish the “unlikelihood of prejudice”

by a preponderance of the evidence.

United States v. Foster, 469 F.2d at 5.

The court draws no distinction between

retained and appointed counsel. United

States v. Foster, 469 F.2d at 4 n.Q.

In Marxuach v. United States, 398 F.2d

548, 552 (1st Cir.), cert. denied, 393 U. S.

982 (1968), the court noted that, where

there was a severance, it was more reason-

able to have the same attorney represent

both defendants. (Severance was due to

feigned illness of co-defendant. )

SECOND CIRCUIT

A jointly represented defendant, who

Claims a conflict of interest, must show

“some specific instance of prejudice, some

real conflict of interest, resulting from a

joint representation.” United States v,.

Lovano, 420 F.2d 769, 773 (2d Cir.), cert.

denied, 397 U.S. 1071 (1970).

In United States v. DeBerry, 487 F.2d 448,

452-453 (2d Cir. 1973), the court an-

nounced a prospective rule that the district

courts must conduct a careful inquiry of

jointly represented defendants regarding

the potential for a conflict of interest in

the joint representation.

In Salomon v. LaValle, 575 F.2d 1051, 1055

(2d Cir. 1978), the court specifically re-

served decision on whether the court’s

supervisory rule, requiring an inquiry by

Al te a Heri

nA a sca A A cl NE SA SO a Ne el ance

one cme

Burden of

Proof

Retained /

Appointed

Standard

Burden of

Proof

the trial court and the attending shift in

the burden of proof absent a satisfactory

inquiry, would apply to a review of a state

court conviction. 575 F.2d at 1055. But see

Colon v. Fogg, 603 F.2d 403 (2d Cir. 1979),

where the court, in a case involving Salo-

mon’s co-defendant, without any discus-

sion of the issue, reversed the district

court's order and ruled that the state failed

to meet its burden of proving the absence

of prejudice.

Where the district court conducts an in-

quiry, on appeal, the defendant bears the

burden of proving that prejudice resulted.

Salomon v. LaVallee, 575 F.2d 1051 (2d

Cir. 1978). Absent a satisfactory inquiry

on the record, the burden of proof shifts

to the government, and the government

must establish the “lack of prejudice.”

United States v. Carrigan, 543 F.2d 1053,

1055 (2d Cir. 1976); Salomon v. LaVallee,

975 F.2d 1051, 1055 (2d Cir. 1978).

No distinction drawn. See United States v.

Carrigan, 543 F.2d 1053, 1057 (2d Cir.

1976).

THIRD CIRCUIT

Representation of co-defendants by the

same attorney is not a per se violation of

the Sixth Amendment. A defendant has

the burden of showing a possible conflict

of interest or prejudice, however remote,

before a reviewing court will find joint

representation constitutionally defective.

Duty to

Inquire

Retained/

Appointed

Standard

Walker v. United States, 422 F.2d 374, 375

(3d Cir.) (per curiam), cert. denied, 399

U.S. 915 (1970)

No per se rule requiring inquiry. United

States ex rel. Hart v. Davenport, 478 F.2d

203, 211 (3d Cir. 1973).

No supervisory rule requiring inquiry;

however, inquiry is the suggested pro-

cedure in joint representation cases.

United States ex rel. Hart v. Davenport,

478 F.2d at 211.

No distinction drawn. United States ex rel.

Hart v. Davenport, 478 F.2d at 211.

FOURTH CIRCUIT

“[S]ome specific instance of prejudice,

some real conflict of interest, resulting

from the joint representation must be

shown to exist before it can be said that

an appellant has been denied the effective

assistance of counsel.” United States v.

Atkinson, 565 F.2d 1283, 1284 (4th Cir.

1977), cert. denied, 436 U.S. 944 (1978)

(quoting United States v. Lovano, 420

F.2d 769, 773 (2d Cir. 1970).

Although in a prior case, the Fourth Cir-

cuit quoted the Third Circuit standard

with approval (United States v. Truglio,

493 F.2d 574 (4th Cir. 1974)), that case

was distinguished in Atkinson where the

court noted that “[iJn [Truglio] .. . the

record disclosed a patent conflict of inter-

est which impaired the defendant's right to

the unfettered and effective assistance of

ws ee ee

DC A CB BAM a tal eC ti hth -

Burden of

Proof

Duty to

Inquire

Retained/

Appointed

Standard

Duty to

Inquire

Retained /

Appointed

counsel.” United States v. Atkinson, 565

F.2d at 1284.

Burden of proof is on defendant to show

that his constitutional rights were violated.

Post v. Boles, 332 F.2d 738 (4th Cir. 1964),

cert. denied, 380 U.S. 981 ( 1965).

Inquiry may be advisable, especially where

defendants have court-appointed counsel,

but failure to inquire does not obviate the

need to show a real conflict of interest.

United States v. Atkinson, 565 F.2d at

1284.

United States v. Atkinson, 565 F.2d 1283,

inferentially suggests a greater need to

inquire if counsel is appointed.

FIFTH CIRCUIT

The burden is on the defendant to prove

an “actual, significant conflict.” Foxworth

v. Wainwright, 516 F.2d 1072, 1077 n.7

(Sth Cir. 1975). “An alleged conflict that

obstructs the use of a particular Strategy

or defense is not significant unless the

defense is plausible.” Id. at 1080. Zuck v.

Alabama, 588 F.2d 436, 439 (5th Cir.

1979), petition for cert. filed, 47 U.S.L.W.

3829 (U.S. May 21, 1979) (No. 78-1741).

The court must inquire in retained counsel

Situations only when the conflict is so

apparent that the judge “should have been

aware of and corrected it.” Alvarez v.

Wainwright, 522 F.2d 100, 105 n.111 (Sth

Cir. 1975).

Standard

Burden of

Proof

Duty to

Inquire

In court-appointed cases, the trial court

“may be under an affirmative duty to in-

quire” when counsel informs the court of

a possible conflict. Without such notice,

however, “the [c]ourt does not bear the

responsibility of informing co-defendants

of possible problems of joint representa-

tion.” Gov't of Canal Zone v. Hodges, 589

F.2d 207, 209 (5th Cir.), cert. denied, 99

S.Ct. 2173 (1979).

SIXTH CIRCUIT

In United States v. Woods, 544 F.2d 242,

269 (6th Cir 1976), cert. denied, 430 U.S.

969 (1977), the court held that, where a

conflict of interest is alleged, the defen-

dant has the burden of proving “some

actual prejudice” or an “actual conflict of

interest.” See also United States v. Cale,

418 F.2d 897, 899 (6th Cir. 1969), cert.

denied, 397 U.S. 1015 (1970). The “mere

possibility” of conflict is insufficient to

overturn a conviction. Thacker v. Borden-

kircher, 590 F.2d 640, 641 (6th Cir.), cert.

denied, 99 S.Ct. 2827 (1979); United States

v. LaRiche, 549 F.2d 1088, 1095 (6th Cir.),

cert. denied, 430 U.S. 987, cert. denied sub

nom. Cisternino v. United States, 434 U.S.

966 (1977).

The court declined to adopt a per se rule

requiring district judges to conduct a pre-

trial conflict of interest hearing in all cases

of joint representation by retained counsel.

United States v. Steele, 576 F.2d 111, 112

Review of

tate Court

Convictions

Retained /

Appointed

Miscellaneous

Considerations

Standard

Burden of

Proof

(6th Cir.), cert. denied, 439 U.S. 928

(1978).

“In a habeas corpus action where the

highest court of the [s]tate declares in an

opinion that it has reviewed the evidence

and failed to find any conflict and the dis-

trict court has reached the same conclu-

sion we require a clear showing of error

before we will set aside these findings.”

Thacker v. Bordenkircher, 590 F.2d at 641.

“[P]rivately retained counsel’s determina-

tion that there was no conflict of interest

must weigh heavily” against the defen-

dant. United States v. Cale, 418 F.2d at 898.