Petition — Duckworth v. Cowell

2 Office - Supreme Court, U.S.

981215 FILED

DEC 4 1981

No ALEXAND* 2 i sTEVAS.

.

IN THE

Supre Court of the Huited States

OCTOBER TERM, 1981

JACK DUCKWORTH,

Warden, and

LINLEY E. PEARSON,

Attorney General of Indiana,

Petitioners,

vs.

WILLIAM L. COWELL,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

LINLEY E. PEARSON

Attorney General of Indiana

Davip A. ARTHUR

Deputy Attorney General

KERMIT R. HILLES

Deputy Attorney General

OFFICE OF THE ATTORNEY GENERAL

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 232-6332

Attorneys for Petitioners

Central Publishing Company, Inc. Indianapolis, IN 46206

QUESTION PRESENTED FOR REVIEW

Whether the Seventh Circuit has decided erroneously

and in a way in conflict with controlling decisions of this

Court that dual representation by an attorney of a

defendant and a prosecution witness is a per se violation of

the Sixth Amendment.

TABLE OF CONTENTS

PAGE

Question Presented for Review .................05- i

r 0 iii

eee 1

r !!... ö 2

Constitutional and Statutory Provisions Involved 2

ere bees eee 2

Facts Material to Consideration of

the Question Presente ll. 3

Reasons for Allowance of the Writ ................. 7

The Seventh Circuit Has Decided Erroneously

and in a Way in Conflict with Controlling Deci-

sions of this Court that Dual Representation by an

Attorney of a Defendant and a Prosecution

Witness is a Per Se Violation of the Sixth

r 7

een cues deeb aeneedions 9

Appendix:

Order of the Seventh Circuit .................. A-1

Judgment of the Seventh Circuit A-3

Memorandum and Order of the

D r. A4

Judgment of the District Court A-11

TABLE OF AUTHORITIES

eee esse PAGE

Cowell v. Duckworth, 512 F. Supp 371 (N.D.

D 2

Cowell v. State, 232 Ind. 344, 331 N. E. 2d 21 (1975) 3. 4

Cowell v. State, Ind., 416 N. E. 2d 83° (198177 4,6

Cuyler v. Sullivan, U.S., 100 S.Ct. 1708 (1980)...... 7,8

Wood v. Georgia, U.S., 101 S.Ct. 1097 (1981)...... 7,8,9

STATUTES:

r . e 2

/ . 3

reer essen essen 2

ee . 3

r · 80 3

RULEs:

Rules of Supreme Court 17. 10e 0 2

Rules of Supreme Court 20.: . 2

iii

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

JACK DUCKWORTH,

Warden, and

LINLEY E. PEARSON,

Attorney General of Indiana,

Petitioners,

vs.

WILLIAM L. COWELL,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners Jack Duckworth, Warden, and Linley E.

Pearson, Attorney General of Indiana, respectfully pray

this Court issue a Writ of Certiorari to review the judgment

of the United States Court of Appeals for the Seventh

Circuit (hereinafter Seventh Circuit) entered in Cause

Number 81-1780 on September 18, 1981, which affirmed

the judgment of the United States District Court for the

Northern District of Indiana, South Bend Division

(hereinafter District Court).

OPINIONS BELOW

The order of the Seventh Circuit issued September 18,

1981, has not been officially reported. A copy of the Order is

1

2

appended hereto at page A-1. The April 27, 1981,

memorandum and order of the District Court has been

officially reported. Cowell v. Duckworth, 512 F.Supp. 371

(N.D. Ind. 1981). A copy of said memorandum and order is

appended hereto at page A-4.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1254(1) and Rule 17.1(c) of the Rules of this Court to

review a judgment of a federal court of appeals that has

decided a federal question in a way in conflict with

applicable decisions of this Court.

The judgment of the Seventh Circuit was entered on

September 18, 1981. This petition is timely filed in that it is

filed prior to the expiration of the ninety (90) day period

allowed by 28 U.S.C. §2101 (c) and Rule 20.2.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment to the Constitution of the United

States provides as follows:

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 ascertained 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 Witnesses in his

—— and to have the Assistance of Counsel for his

efense.

STATEMENT OF THE CASE

This petition arises from the affirmance on appeal, by the

Seventh Circuit, of a judgment by the District Court in the

case of William Cowell v. Jack Duckworth, et al., Cause

Number 881-93, whereby the District Court granted a

petition for a writ of habeas corpus filed by Respondent

Cowell (petitioner in the District Court). Jurisdiction in the

District Court was founded upon 28 U.S.C. §2241, et seq.

Jurisdiction in the Seventh Circuit was founded upon 28

U.S.C. §1291.

FACTS MATERIAL TO CONSIDERATION

OF THE QUESTION PRESENTED

Respondent, a prisoner at the Indiana State Prison, filed

a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§2254, in the District Court, alleging that his conviction in

state court is constitutionally infirm for several reasons,

among then that he was given ineffective assistance of

counsel due to a conflict of interest on the part of the

attorney retained by his wife to represent him. The District

Court issued its memorandum and opinion on April 27,

1981, and entered judgment that a writ of habeas corpus

would issue unless the State elected to retry Respondent

within 180 days. That judgment has been stayed pending

appeal, and pending a determination of this petition. The

District Court held that Respondent’s counsel in the

criminal proceeding had an actual conflict of interest

between his representation of Respondent and two of the

prosecution witnesses. The District Court further held that

unconstitutional dual representation is never harmless

error. On appeal by Respondents, the Seventh Circuit

affirmed, holding that dual representation by an attorney

of a defendant and a prosecution witness is a per se viclation

of the defendant’s Sixth Amendment rights.

Respondent was charged with and convicted of the crime

of murder in the first-degree in the death of William

Siebert. Mr. Siebert was killed in Lake County, Indiana, on

August 23, 1972. Respondent confessed to the murder. On

appeal, the Supreme Court of Indiana affirmed the

conviction. Cowell uv. State, 263 Ind. 344, 331 N.E.2d 21

4

(1975). The issue of a conflict of interest was not raised in

that appeal.

Following affirmance by the Supreme Court of Indiana,

Respondent filed a petition for post-conviction relief in the

court of conviction. Among the issues raised was that of

ineffective assistance of counsel due to the alleged conflict

of interest on the part of counsel. The petition was denied as

to all grounds following an evidentiary hearing, and the

denial was affirmed by the Supreme Court of Indiana.

Cowell v. State, Ind., 416 N.E.2d 839 (1981). The issue of

ineffective assistance of counsel was specifically addressed

in the opinion of the Supreme Court of Indiana. Respondent

has, therefore, exhausted available state remedies.

The evidence at the hearing on the state petition for post-

conviction relief established that Cowell’s wife contacted a

law firm and, using her own money, secured representation

for him. A few days later Mrs. Cowell secured

representation by the same firm for herself concerning a

civil matter and an unrelated criminal charge against her.

Mrs. Cowell also retained the same firm to represent her

daughter, who she feared might be culpable as an accessory

after the fact for transporting and harboring Cowell after

the murder. Both Mrs. Cowell and her daughter testified at

the criminal trial. Cowell contends that his counsel’s cross-

examination of these witnesses may have been restrained

as a result of his representation of them.

Charlotte Siebert (“Seberg” in post-conviction record)

testified she was presently the ex-wife of Cowell and that at

the time of William Siebert’s death on August 23, 1972, she

was the latter’s ex-wife, but was on that date Cowell’s wife.

(Post-Conviction transcript (“PCR”) 81). After Siebert’s

death, she had been arrested for an unpaid bill ata Ramada

Inn (PCR 83). Charlotte Siebert continued to testify that

she had retained an attorney named Don Levinson, who

worked with Max Cohen, to represent Cowell at trial (PCR

84). The same attorneys also represented Charlotte in:

5

obtaining the life insurance proceeds resulting from

William Siebert’s death; dealing with the decedent’s estate

in terms of buying back a house; representing her in

connection with the Ramada Inn charge; and in “looking

after her children” (PCR 84, 85). The children were

apparently involved in the killing after the fact, and there

was some indication they might also be charged (PCR 86-

88). There was also some discussion between Attorney

Levison and Mrs. Siebert that there was a strong possibility

that Cowell might receive a sentence of two to fourteen

years, and this was communicated to Cowell by Mrs.

Siebert (PCR 89-90). The charge against Mrs. Siebert

involving the Ramada Inn was subsequently dismissed,

and her children were never charged as accessories (PCR

90, 91). Mrs. Siebert was apparently told, the night Cowell

was arrested, that if she were to sign statements, she would

not be charged with the Ramada Inn incident and her

children would not become involved (PCR 91). Prior to

Cowell’s trial, Mrs. Siebert had been told by attorney

Levinson “...to not worry about it, they’d take care of it,

just answer whatever questions would come up.” (PCR 91).

Mrs. Siebert then testified as to the present whereabouts of

some of her children (PCR 93, 96). Mrs. Siebert then

testified that at the time of the killing, her will and that of

William Siebert were one and the same and that she had

written it, but did not know whether it had been changed

after the divorce (PCR 96). Mrs. Siebert concluded her

testimony on direct examination by stating that she and

Cowell had been married for over two years and that he had

always been protective of her (PCR 97).

On cross-examination, Mrs. Siebert testified that she and

her children had been subpoenaed by the prosecutor to

testify at Cowell’s trial, and that her attorneys had told her

not to worry but to go ahead and answer the questions (PCR

98). On the night of Cowell’s arrest, she and her children

had given statements to the police (PCR 98). A prosecuting

attorney had made representations prior to trial that

everything would be taken care of, not to worry and that

her lawyer would take care of it (PCR 101, 103). Mrs.

Siebert further testified on cross-examination that she had

retained attorneys Cohen and Levinson to represent her in

the civil matters approximately a week after she had

retained them to represent Cowell (PCR 103). The civil

matters were taken care of prior to Cowell’s trial, while the

Ramada Inn matter was not disposed of until a couple of

years later (PCR 103, 104).

At the criminal trial, Cowell’s then wife (Mrs. Siebert)

and her relatives were called as witnesses for the state and

gave testimony generally implicating themselves as

accessories after the fact to the killing (Transcript of

criminal trial (“Tr”) 455-459, 470-476, 477-491, 503-519).

However, the record establishes that the wife’s

testimony, as a prosecution witness, did not implicate

Cowell in any way (Tr. 455-459). The wife later testified as a

defense witness and gave testimony implicating Cowell,

but at the same time she described Cowell’s mental

instability, which supported his insanity defense (Tr. 648-

709). The daughter’s testimony during the State’s case did

implicate Cowell (Tr. 503-519) but, as the Supreme Court of

Indiana noted in its opinion, “defendant at no time denied

that he had committed the homicide. Rather having madea

confession to the police and admitting guilt on the stand his

defense was that of insanity.” Cowell v. State (1981), supra,

416 N. E. ad at 841. On eross- examination, Cowell’s attorney

elieited from the daughter that she thought that at the time

of the offense Cowell was “sick” and “disturbed” (Tr. 513

515).

7

REASONS FOR ALLOWANCE

OF THE WRIT

The Seventh Circuit Has Decided Erroneously

And In A Way In Conflict With Controlling

Decisions Of This Court That Dual

Representation By An Attorney Of A

Defendant And A Prosecution Witness Is A

Per Se Violation Of The Sixth Amendment

The Seventh Circuit held that without an informed

consent by a defendant, dual representation by an attorney

of that defendant and a prosecution witness is a per se

violation of such defendant’s Sixth Amendment rights. The

District Court held that there was an actual conflict of

interest and that unconstitutional mu!tiple representation

is never harmless, the existence of the conflict itself

demonstrating a denial of effective assistance of counsel.

The opinion of the Seventh Circuit is in direct and

irreconcilable conflict with each of two recent decisions of

this Court. Cuyler u. Sullivan, U. S., 100 S.Ct. 1708 (1980);

Wood v. Georgia, U.S., 101 S.Ct. 1097 (1981). In Cuyler, this

Court held that

Absent special circumstances, therefore, trial

courts may assume either that multiple representa-

tion entails no conflict or that the lawyer and his

clients knowingly accept such risk of conflict as may

exist. Cuyler, supra, 100 S.Ct. at 1717.

While this Court has stated that there is a presumption that

there is no conflict, the Seventh Circuit has held that there

is an unrebuttable presumption that there is a conflict and

that such conflict is a denial of Sixth Amendment rights.

In Cuyler v. Sullivan, supra, this Court also held that:

In order to establish a violation of the Sixth

Amendment, a defendant who raised no objection at

trial must demonstrate that an actual conflict of

interest adversely affected his lawyer’s performance.

Id., 100 S. Ct. at 1718. (Emphasis added).

8

The opinion of Justice Brennan would change the

presumption, so that in the absence of a knowing waiver,

and upon a showing that there is a significant possibility of

conflict of ‘nterest, a defendant is entitled to a rebuttable

presumptivn that representation suffered. This change

would, however, still allow the government an opportunity

to rebut the presumption by demonstrating that

representation was not actually affected. The opinion of

Justice Marshall would still require a determination of

whether there existed during trial an actual, relevant

conflict of interests. Neither the decision of the Court nor

any separate opinion is consistent with a per se rule.

The Third Circuit was reversed in Cuyler because it had

relied upon a possible (as opposed to actual) conflict of

interest. The per se rule of the Seventh Circuit allows, and

allowed in this case, vacating a state court judgment of

conviction whenever dual representation is present. Under

the per se rule, there is no inquiry as to whether there is an

actual conflict, let alone a prejudicial, adverse effect on the

lawyer’s performance. While the District Court held that

there was an actual conflict, it did not hold that there was

an adverse effect on the lawyer’s performance. The Seventh

Circuit did not even hold that an actual conflict exists, but

that the mere fact of dual representation without more is a

violation. This per se rule cannot be reconciled with this

Court’s holding in Cuyler, and a writ of certiorari should be

allowed.

The decision of the Seventh Circuit is further directly

and irreconcilably in conflict with Wood, supra.

Throughout Wood, it was observed that there is a “risk of

conflict of interest” (Wood, supra, 101 S.Ct. at 1101) and

that “there is a clear possibility of conflict of interest.” Jd.,

101 S.Ct. at 1101. In Wood, the owner of “adult”

establishments paid attorney fees for employees arrested in

his establishments. This Court sua sponte raised the

question of a possible due process violation because of the

possible conflict of interest, and the case was remanded

with instructions that it be returned to the state court for a

hearing te determine whether an actual conflict of interest

existed. Wood, supra, 101 S.Ct. at 1104. Remand was

required because

On the record before [this Court], [it] cannot be sure

whether counsel was influenced in his basic strategy

decision by the interests of the employer who hired

him. Jd., 101 S.Ct. at 1103-04.

In the present case, the Seventh Circuit did not review the

record to determine whether there was an actual conflict or

whether any decision of counsel was influenced by the

interest of his other clients or of the person who paid him.

Each of the four separate opinions in Wood v. Georgia dealt

with the remand for hearing because of a possible as

opposed to an actual conflict. Justice White, in dissent,

would have held that there was no actual conflict of

interest. Thus, each of the five opinions rejected the rule

that the Seventh Circuit has applied. If there were a per se

rule, the remand in Wood would not have been necessary.

The opinion of the Seventh Circuit is therefore in cirect

and irreconcilable conflict with the decision of this Court in

Wood, and a writ of certiorari should be allowed.

CONCLUSION

For these reasons, the Petition for Writ of Certiorari to

review the judgment and order of the Seventh Circuit

should be granted.

Respectfully submitted,

LINLEY E. PEARSON

Attorney General of Indiana

Davip A. ARTHUR

Deputy Attorney General

KERMIT R. HILLES

Deputy Attorney General

Attorneys for Petitioners

Appendix

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued September 16, 1981

September 18, 1981.

Before

Hon. LUTHER M. SwyGERT, Senior Circuit Judge

Hon. ROBERT A. SPRECHER, Circuit Judge

Hon. BARBARA B. CRABB, District Judge“

WILLIAM L. COWELL, ) Appeal from the United

Petitioner-A ppellee, ) States District Court

No. 81-1780 for the Northern

vs. ) District of Indiana,

JACK DUCKWORTH, ) South Bend Division.

Warden, and LINLEY ) No. 81-C-0093

E. PEARSON, ) Allen Sharp, Judge.

Attorney General of )

Indiana, )

Respondents-Appellants. )

ORDER

The Court, having read the briefs, addressed itself to the

record, heard oral argument on behalf of the appellants,

and conferred at the bench, announced in open court that

the judgment appealed from is affirmed.

In Ross v. Heyne, 633 F.2d 979 (7th Cir. 1980), this court

held that without an informed consent by a defendant, dual

*The Honorable Barbara B. Crabb, United States District Judge for the

Western District of Wisconsin, sitting by designation.

A-1

A-2

representation by an attorney of that defendant and a

prosecution witness is a per se violation of such defendant's

Sixth Amendment rights.

The uncontested facts in this case show clearly that

appellee’s attorney represented two state witnesses while

representing Cowell.

The judgment of the district court is affirmed.

A-3

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued September 16, 1981

September 18, 1981.

Before

Hon. LUTHER M. SwyGERT, Senior Circuit Judge

HON. ROBERT A. SPRECHER, Circuit Judge

Hon. BARBARA B. CRABB, District Judge*

WILLIAM L. COWELL,

Petitioner-A ppellee,

No. 81-1780

) Appeal from the United

) States District Court

for the Northern

vs. ) District of Indiana,

JACK DUCKWORTH, ) South Bend Division.

Warden, and LINLEY ) No. 81-C-0093

E. PEARSON, ) Judge Allen Sharp,

Attorney General of )

Indiana, )

)

Respondents-A ppellants.

This cause was heard on the record from the United

States District Court for the Northern District of Indiana,

South Bend Division, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND

ADJUDGED by this Court that the judgment of the said

District Court in this cause appealed from be, and the same

is hereby AFFIRMED, in accordance with the order of this

Court entered this date.

*The Honorable Barbara B. Crabb, United States District Judge for the

Western District of Wisconsin, sitting by designation.

A-4

United States Bistrict Court

Northern District of Indiana

South Bend Division

WILLIAM L. COWELL, )

Petitioner, )

)

v. ) No. 8 81-93

)

JACK DUCKWORTH, )

Warden of Indiana )

State Prison, and )

ATTORNEY GENERAL )

of THE STATE OF )

INDIANA, )

Res pondents. )

MEMORANDUM AND ORDER

Petitioner, William L. Cowell, is astate prisoner confined

at the Indiana State Prison at Michigan City, Indiana, who

filed this petition pursuant to 28 U.S.C. §2254. Cowell was

tried and convicted on April 30, 1973 in the Lake County

Criminal Court of first degree murder and was sentenced

to life imprisonment. Cowell appealed his conviction to the

Supreme Court of Indiana alleging several issues including

the question of whether his confession was voluntary. The

Supreme Court of Indiana affirmed the conviction in a

published opinion, Cowell v. State, Ind. „331 N. E.

2d 21 (1975). Cowell subsequently filed a petition for post-

convietion relief raising several additional issues,

including allegations of ineffectiveness of counsel due to a

conflict of interest on the part of the attorney retained by

his wife to represent him. The petition was denied by the

trial court and this action was upheld on February 23, 1981,

by the Supreme Court of Indiana. The transcript of

proceedings in the state courts has been filed with this

A-5

Court and it has been thoroughly reviewed pursuant to

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

The habeas petition alleges ineffectiveness of counsel,

that the psychiatrist who examined him was not qualified

to so so, that he was denied due process of law by

introduction of his past criminal record, that his confession

was not voluntary, and that there were irregularities in the

trial proceedings and abuse of discretion by the trial court.

Petitioner has properly presented the questions of

effectiveness of counsel and voluntariness of his confession

to the state courts and has exhausted the remedies

available to him in state courts as required by 28 U.S.C.

§2254(b) and Pitchess v. Davis, 421 U.S. 482 (1975).

Petitioner has not exhausted his state court remedies as to

the remaining issues. Therefore, this Court can only

address the allegations of ineffective assistance of counsel

and the voluntariness of the confession.

William Cowell signed a statement in which he confessed

to the murder of William Siebert. That statement was

introduced into evidence at trial. (Tr. 879-881). Cowell

testified that he had not been informed of his constitutional

rights, prior to making the statement, that his requests for

an attorney were refused, that he was knocked down and

shoved by policemen, and that he was denied treatment for

an injured foot until he confessed. (Tr. 579-587). Three

police officers testified that Cowell was given Miranda

warnings three times prior to signing the waiver and

confession (Tr. 604, 607-8, 614-15), that he did not request

an attorney and that his foot was treated prior to the time of

the written confession. The trial court overruled Cowell’s

motion to suppress his waiver and statement. (Tr. 618). The

Supreme Court of Indiana held that:

It is the trial judge who weighs conflicting evidence.

On appeal we do not disturb a trial court’s ruling as to

the admissibility of a confession based on conflicting

evidence except for abuse of discretion (citations

A-6

omitted). It was not an abuse of discretion for the trial

court to conclude that the confession was voluntary.

331 N.E. 2d at 23-24.

Where a state court has made a determination, after a

hearing on the merits of a factual issue, evidenced by a

written finding or opinion, federal district courts should

rely on those findings of fact unless one of the conditions set

forth in 28 U.S.C. §2254(d) or Townsend v. Sain, supra, is

met. In this case, none of the exceptions found in §2254(d) or

Townsend v. Sain applies. The trial court heard the

conflicting testimony of Cowell and the police officers

concerning whether Cowell was advised of his constitutional

rights and the other conditions surrouading Cowell’s

statement. United States Code section 2254(d) creates a

“presumption of correctness” on behalf of factual

determinations made by state courts. Here the trial court

made a determination, after a hearing on the merits of a

factual issue, that the defendant had been read his Miranda

rights. This determination is fully supported by the

testimony of Officers Hauckman (R. 603-605), Pearson (R.

606-608), and Carroll (R. 614-615). The trial court

determined that the confession was voluntary and

admissible. There is nothing in the record to justify

disturbing this determination. See Sumner v. Mata, 49

U.S.L.W. 4133 (1981), slip opinion January 21, 1981, No.

79-1601.

Petitioner also alleges that his counsel was ineffective in

that at the time of his criminal trial his attorney was

representing his wife and daughter, as well as himself,

which resulted in a conflict of interest.

A criminal defendant is denied his constitutional right to

effective assistance of counsel when his trial attorney,

without his knowledge and consent, concurrently

represents a prosecution witness who gives damaging

testimony and whose interests are adverse to his. Stephens

uv. United States, 595 F. 2d 1066 (5th Cir. 1979); Castillo v.

A-7

Estelle, 504 F. 2d 1243 (5th Cir. 1974); United States ex rel

Williamson v. LaVallee, 282 F. Supp. 968(E.D. N. V. 1968).

However

The mere fact of dual representation standing alone, does

not create a Sixth Amendment violation. A conflict of

interest must first be established. United States ex rel

Williams on v. LaVallee, supra, at 974.

The Sixth Amendment guarantees each criminal

defendant the right to the effective assistance of counsel.

Argersinger v. Hamlin, 407 U.S. 25 (1972). The courts have

long recognized that this right may be impaired when

counsel represents multiple defendants in the same case.

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

multiple representation without a showing of conflict of

interest is not in itself a violation of the Sixth Amendment.

United States v. Mandell, 525 F. 2d 671, 677 (7th Cir. 1975),

cert. den., 423 U.S. 1049 (1976). The typical conflict of

interest claim arises when one attorney represents

multiple defendants. See, e.g., Holloway v. Arkansas, 435

U.S. 475 (1978). Here the alleged conflict arose out of

defense counsel’s representation of the defendant’s wife,

Charlotte Cowell, and daughter who Mrs. Cowell feared

might be culpable as an accessory after the fact for

transporting and harboring Cowell.

Charlotte Siebert (Seberg in post-conviction record)

testified she was presently the ex-wife of Appellant Cowell

and that at the time of William Siebert’s death on August

23, 1972, she had been the latter’s ex-wife, having been

married to Appellant Cowell at the time (R. 81). After

Siebert’s death, she had been arrested for an unpaid bill at

a Ramada Inn (R. 83). Charlotte Siebert continued to testify

that she had retained an attorney named Don Levinson,

who worked with Max Cohen, to represent Appellant

Cowell at trial (R. 84). The same attorneys also represented

Charlotte in: obtaining the life insurance proceeds

resulting from William Siebert’s death of which she was

A-8

beneficiary; dealing with the decedent’s estate in terms of

buying a house back; representing her in connection with

the Ramada Inn charge; and in “looking after” her children

(R. 84, 85). The latter were apparently involved in the

killing after the fact and there had been some indication

they might also be charged (R. 86-88). There was also some

discussion with Attorney Levinson and Mrs. Siebert that

there was a strong possibility Appellant Cowell might

receive a sentence of two to fourteen years and this was

communicated to Appellant by Mrs. Siebert (R. 89-90). The

charge against Mrs. Siebert involving the Ramada Inn was

subsequently dismissed and her children were never

charged as accessories (R. 90, 91). Mrs. Siebert was

apparently told the night Appellant was arrested that if she

signed statements, she would not be charged with the

Ramada Inn incident and her children would not become

involved (R 91). Prior to Appellant’s trial Mrs. Siebert had

been told by Attorney Levinson “...to not worry about it,

they’d take care of it, just answer whatever questions would

come up.” (R. 91). Mrs. Siebert then testified as to the

present whereabouts of some of her children (R. 93, 96).

Mrs. Siebert then testified that at the time of the killing.

William Siebert’s and her Will had been the same and that

she had written it, but did not know whether it had been

changed after the divorce (R. 96). Mrs. Siebert concluded

her testimony on direct examination by stating that she and

Appellant Cowell had been married for over two years and

that he had always been protective of her (R. 97).

On cross-examination Mrs. Siebert testified she and her

children had been subpoenaed by the prosecutor to testify

at Petitioner’s trial and that her attorneys had told her not

to worry but to go ahead and answer the questions (R. 98).

On the night of Petitioner’s arrest, she and her children had

given statements to the police (R. 98). A prosecuting

attorney had made representations prior to trial that

everything would be taken care of, not to worry and that

her lawyer would take care of it (R. 101, 103). Mrs. Siebert

A-9

further testified on cross-examination that she had

retained Attorneys Cohen and Levinson to represent her in

the civil matters approximately a week after she had

retained them to represent Petitioner (R. 103). The civil

matters were taken care of prior to Petitioner’s trial, while

the Ramada Inn matter was not disposed of until a couple of

years later (R. 103, 104).

At the trial petitioner’s then wife and her relatives were

called as witnesses for the state and gave testimony

generally implicating themselves as accessories after the

fact to the killing (Tr. 455-459; Tr. 470-476; Tr. 477-491; Tr.

503-519).

However, the record establishes that Mrs. Cowell’s

testimony, as a prosecution witness, did not implicate

Cowell in any way. (Tr. 455-459). Mrs. Cowell later testified

as a defense witness and gave testimony implicating

Cowell, but at the same time she described defendant’s

mental instability which supported his insanity defense.

(Tr. 648-709). The daughter’s testimony did implicate

Cowell (Tr. 503-519) but, as the Supreme Court of Indiana

noted in its opinion, “defendant at no time denied that he

had committed the homicide. Rather having made a

confession to the police and admitting guilt on the stand his

defense was that of insanity.” (Cowell v. State, opinion of

state court on petition for rehearing at page 3). On cross-

examination, Cowell’s attorney elicited from the daughter

that she thought, at the time of the offense, that Cowell was

“sick” and “disturbed.” (Tr. 513-515).

The Seventh Circuit Court of Appeals recently addressed

this issued in a very similar factual setting in Ross v. Heyne,

638 F. 2d 979 (7th Cir. 1980). There the court stated as .

follows:

In order to establish a violation of the Sixth

Amendment, a defendant who raised no objection at

trial must demonstrate that an actual conflict of

interest adversely affected his lawyer’s performance.

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Cuyler v. Sullivan, 446 U.S. at 348. An actual conflict

would arise where defense counsel in unable to cross-

examine a prosecution witness effectively because the

attorney also represented the witness. United States v.

Mavrick, 601 F. 2d 921, 931 (7th Cir. 1979). The

problem that arises when one attorney represents both

the defendant and the prosecution witness is that the

attorney may have privileged information obtained

from the witness that is relevant to cross-examination,

but which he refuses to use for fear of breaching his

ethical obligation to maintain the confidences of his

client. See Code of Professional Responsibility, Can 4 &

DR 4-101(B)(2). “The more difficult problem which

may arise is the danger that counsel may overcompen-

sate and fail to cross-examine fully for fear of misusing

his confidential information.” United States v. Jeffers,

520 F. 2d 1256, 1265 (7th Cir. 1975), Cert. denied, 423

U.S. 1066 (1976).” Id. at 983. (emphasis added)

Thus Cowell’s lawyer had an actual conflict of interest

between his representation of the accused and two of the

prosecution witnesses. Glasser v. United States, 315 U.S. 60

(1942), established that unconstitutional multiple

representation is never harmless error. Further, the court

refused “to indulge in nice calculations as to the amount of

prejudice” attributable to the conflict because the conflict

itself demonstrated a denial of “the right to have the

effective assistance of counsel.” Jd., 315 U.S. at 76.

Therefore, the law of this circuit requires this Court to

grant the petitioner’s writ of habeas corpus in view of the

clear violation of Cowell’s Sixth Amendment rights. The

writ of habeas corpus will now issue unless the State should

elect to retry Cowell within 180 days. SO ORDERED.

Enter April 27, 1981.

/s/ ALLEN SHARP

Allen Sharp

Judge, United States District

Court

A-11

JUDGMENT ON DECISION BY THE COURT

United States District Court

For the

Northern District of Indiana

CIVIL ACTION FILE NO. 881-93

WILLIAM L. COWELL, )

)

vs. ) JUDGMENT

JACK DUCKWORTH, )

Warden )

INDIANA ATTORNEY )

GENERAL )

This action came on for (hearing) before the Court,

Honorable ALLEN SHARP, United States District Judge,

presiding, and the issues having been duly (heard) and a

decision having been duly rendered,

It is Ordered and Adjudged that judgment is entered for

the Petitioner and against the Respondents and Petitioner’s

writ for habeas corpus will now issue unless the State

should elect to retry Petitioner within 180 days.

Dated at SOUTH BEND, INDIANA, this 27th day of

APRIL, 1981.

RICHARD E. TIMMONS

Clerk of Court

BY TERESE M. HINKLE

Deputy Clerk