# Petition — Duckworth v. Cowell

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1982
- **Citation:** 455 U.S. 996

## Text

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.

A-10

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0836%3A1. Public record. Not legal advice.