# Petitioners Brief — Cuyler v. Sullivan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0302%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1980 - **Citation:** 446 U.S. 335 ## Text 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 ii 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 iv 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 Sa 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 v. 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 1 2 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 a 3 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 4 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 5 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). 6 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 7 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. Oe 8 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). ==> -= 9 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). 10 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 1] 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 ee he — wee ae eee — See ee eee ree — al ne a ee oe Ot a i a | ro = Se oa ole eee eer — q hoe 12 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 RO rr ee | ree ee ee rem a ere ems Sere re es ee es ae te ee err ee 2A mm 13 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 14 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). 15 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 16 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). 17 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). 18 [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, 19 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. i i , ‘ 5 : "4 : 20 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. 21 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). 22 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. 23 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). 24 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). 25 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. h ° ‘ i; : 26 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). 27 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 3 ‘ 28 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). 29 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 5 QU LPT OL od ats A OL a ee ra ne og te 5 * 30 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. 31 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). 32 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 (c) JOINT REPRESENTATION. Whenever two or more defendants have been jointly charged pursuant to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint 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). 33 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. 34 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). 35 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. 36 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). a 37 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? 38 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). 39 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. 40 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. ee 41 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). 42 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. — 43 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 44 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 45 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. 46 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. 47 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 48 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. en ct Burden of Proof 49 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 50 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 51 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 52 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 53 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 54 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 55 (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. See also United States v. Martinez, 428 F.2d 86, 87 (6th Cir. 1970), cert. denied, 402 U.S. 951 (1771). Failure to raise the alleged conflict or re- quest a severance in the lower court ap- pears to be a factor weighing against find- ing am actual conflict. See United States v. Jones, 436 F.2d 971, 972 (6th Cir. 1971); United States v. Martinez, 428 F.2d at 87. SEVENTH CIRCUIT Defendant has burden “to demonstrate, with a reasonable degree of specificity, that a conflict of interests actually existed at trial.” United States v Mandell, 525 F.2d 671, 677 (7th Cir. 1975), cert. denied, 423 U.S. 1049 (1976); United States ex rel. Robinson v. Housewright, 525 F.2d 988, 994 (7th Cir. 1975). The court explicitly notes that it does “not adopt as low a stan- ET CMT Sanne Mee en rrr Duty to Inquire Retained/ Appointed 56 dard of proof as that articulated by the Third Circuit in its decisions.” United States v. Mandell, 525 F.2d at 677 n.11. The court places the responsibility on de- fense counsel to inform defendants of potential dangers of multiple client repre- sentation. Trial court must watch for in- dicia of conflict during trial. United States v. Mavrick. 601 F.2d 921, 929 (7th Cir. 1979); United States v. Mandell, 525 F.2d at 677. Where possibility of conflict appears dur- ing trial, court must investigate relevant facts, advise defendants, and determine whether continued representation, absent a waiver, violates the Sixth Amendment. When actual conflict appears, the court must bring the fact of its existence, and the resulting dangers, to the attention of each defendant so that an informed judg- ment can be made about securing new counsel. The court rejects D.C. Circuit rule. United States v. Gaines, 529 F.2d 1038, 1043-1044 (7th Cir. 1976). Where the trial court is informed of a conflict by defendant's attorney, he must appoint sep- arate counsel, or take adequate steps to determine if risk of conflict is too remote to warrant separate counsel. United States ex rel. Garrett v. Lane, 464 F. Supp. 793 (E.D. Ill. 1979). The court notes that “we do not conceive the duty resting upon appointed counsel to be any less than upon retained counsel insofar as avoiding conflict of interest is Standard Duty to Inquire 57 concerned.” United States ex rel. Robinson v. Housewright, 525 F.2d at 994 n.8. “{I]n the case of appointed counsel, ic is especially important for the [trial] court to determine that no prejudice will result from multiple representation.” United States v. Gougis, 374 F.2d 758, 761 (7th Cir. 1967). The court specifically reserves decision on the question of whether a de- fendant’s right to counsel of his own choice includes the selection of an attor- ney who has a conflict of interest. Uiiited States v. Gaines, 529 F.2d at 1043. EIGHTH CIRCUIT A defendant raising a conflict of interest has the burden to show an “actual con- flict” or a “substantial possibility of a conflict.” United States v. Cox, 580 F.2d 317, 323 (8th Cir. 1978), cert. denied, 439 U.S. 1075 (1979). Only a minimal show- ing is required. Beran v. United States, 580 F.2d 324, 326 (8th Cir. 1978), cert. denied, 99 S.Ct. 1422 (1979). In United States v. Williams, 429 F.2d 158, 161 (8th Cir.), cert. denied, 400 U.S. 947 (1970), the court announced a prospective rule that the district courts must conduct a “careful inquiry” regarding the “possi- bility of a conflict of interest” before ap- pointing an attorney to jointly represent co-defendants. In United States v. Law- riw, 568 F.2d 98 (8th Cir. 1977), cert. denied, 435 U.S. 969 (1978), the court ex- Burden of Proof Retained / Appointed Standard Burden of Proof 58 tended this inquiry to cases where co-de- fendants are jointly represented by re- tained counsel; in United States v. Cox, 580 F.2d 317, 321 (8th Cir. 1978), this latter ruling was held prospective. The defendant has the burden of proof, and the burden does not shift to the gov- ernment, even in the absence of an inquiry by the trial court. United States v. Lawriw, 568 F.2d at 105. However, as to the issue of whether the defendant waived his right to separate counsel, the burden of proof is upon the government. Austin v. Erickson, 477 F.2d 620, 626 (8th Cir. 1973). The court draws no distinction but notes that it is a proper factor to consider in de- termining whether a defendant waived his right to separate counsel. Larry Buffalo Chief v. South Dakota, 425 F.2d 271, 279 n.5 (8th Cir. 1970). NINTH CIRCUIT Defendant bears burden of demonstrating that specific prejudice has resulted from alleged conflict of interest. United States v. Partin, 601 F.2d 1000, 1009 (9th Cir. 1979). United States v. Eaglin, 571 F.2d 1069, 1086 (9th Cir. 1977), cert. denied, 435 U.S. 906 (1978). Counsel may represent more than one de- fendant if interests of latter are not in con- flict. Carlson v. Nelson, 443 F.2d 21, 22 (9th Cir. 1971). + OnE ee Oa neat ot Bg ’ Duty to Inquire Retained / Appointed Review of State Court Convictions 59 Defendant may waive right to counsel with undivided loyalty. United States v. Partin, 601 F.2d at 1007. If challenge is on ground that counsel represents more than one defendant, court, absent unusual circumstances, will reject claim if trial court made sufficient inquiry of parties and counsel about pos- sible conflicts. United States v. Eaglin, 571 F.2d at 1086. Court must be able to rely on counsel’s representation that pos- sibility of conflict does or does not exist. United States v. Horne, 423 F.2d 630, 631 (9th Cir. 1970) (representation made by counsel pre-trial ). Court holds that competency of counsel is to be judged by same standard, whether counsel is retained or appointed. Thus, the fact that counsel was retained is not an absolute bar to a claim of ineffective as- sistance of counsel. Court reserves ques- tion of whether, in a particular case, a different standard may be applicable where counsel is retained rather than ap- pointed. United States v. Marshall, 488 F.2d 1169, 1193 (9th Cir. 1973). State habeas petitioner has burden of es- tablishing specific prejudice. Davidson v. Cupp, 446 F.2d 642, 643 (9th Cir. 1971). Standard Burden of Proof Duty to Inquire Appointed / Retained 60 TENTH CIRCUIT The court has not formulated a particular standard, Fryar v. United States, 404 F.2d 1071, 1073 n.2 (10th Cir. 1968), cert. de- nied, 395 U.S. 964 (1969), but has held that the conviction will be affirmed absent a showing of prejudice, United States v. Smith, 464 F.2d 194, 197 (10th Cir.), cert. denied, 409 U.S. 1066 (1972); Fryar v. United States, 404 F.2d at 1073, or an actual conflict of interest. See McHenry v. United States, 420 F.2d 927, 928 (10th Cir. 1970); Jones v. Baker, 406 F.2d 739, 740 (10th Cir. 1969). The burden of proof appears to be upon the defendant, Mesch v. United States, 407 F.2d 1290, 1290-1291 (10th Cir.), cert. denied, 396 U.S. 826 (1969), Fryar v. United States, 404 F.2d at 1073, but the court will examine the entire record under the totality of the circumstances. United States v. McCoy, 573 F.2d 14, 17 (10th Cir.) cert. denied, 436 U.S. 958 (1978); McHenry v. United States, 420 F.2d 927, 928 (10th Cir., 1970). The Tenth Circuit has held that the “pro- cedural fact” that the trial court failed to make a pre-trial inquiry into the possibil- ity of a conflict is not determinative, ab- Sent a showing of prejudice. Mesch v. United States, 407 F.2d at 1290. The court, in Fryar v. United States, 404 F.2d at 1073, suggested the appointment of separate counsel for indigent co-defen- dants. ee ee Standard Duty to Inquire 61 D.C. CIRCUIT Relying upon 18 U.S.C. §3006(a)(b), the court, in Ford v. United States, 379 F.2d 123, 125-126 (D.C. Cir. 1967) adopted a prospective rule that separate counsel should be initially appointed in every case, with an instruction that, if counsel con- cludes, after fully investigating the case and consulting with his client, that the defendant wil [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0302%3A5. Public record. Not legal advice.