Appendix — Freund v. Butterworth

No.

819 23 JN,

in Ohe OFFICE OF THE CLERK

Suprene Court of the Uniled Slales

JOHN S. FREUND,

Petitioner,

ROBERT A. BUTTERWORTH,

Attorney General,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Appendix to Petition for Writ of Certiorari

Paul Morris Stephen H. Rosen

Counsel of Record LAW OFFICES OF

LAW OFFICES OF STEPHEN H. ROSEN, P.A.

PAUL MORRIS, P.A. 999 Ponce de Leon Boulevard

999 Ponre de Leon Boulevard Suite 550

Suite 550 Coral Gables, FL. 33134-3037

Coral Gables, FL: 33134-3037 (305) 448-9900

(305) 446-2020

Counsel for Petitioner Counsel for Petitioner

THE LEX GROUP ¢@ 1205 East Main Street @ Suite 2 East @ Richmond, VA 23219

(804) 644-4419 @ (800) 856-4419 @ Fax: (804) 644-3256

TABLE OF CONTENTS

Appendix to the Petition

Opinion,

United States Court of Appeals

for the Eleventh Circuit

entered January 22, 1999 .........ccceeeeeeeeeereeeees App. 1

Report and Recommendation,

United States District Court

for the Southern District of Florida

entered August 25, 1993 ........cscseseeseeeeees App. 118

Final Judgment,

United States District Court

for the Southern District of Florida

entered November 1, 1993.........:cscesseeeeees App. 135

App. i

United States Court of Appeals,

Eleventh Circuit.

No. 93-5317.

John S. FREUND, Petitioner-Appellant,

v.

Robert A. BUTTERWORTH, Attorney General,

Respondent-Appellee.

Entered: Jan. 22, 1999.

Appeal from the United States District Court for the

Southern District of Florida. (No. 93-8213-CIV-UUB),.

Ursula Ungaro-Benages, Judge.

Before HATCHETT, Chief Judge, and ITJOFLAT,

ANDERSON, EDMONDSON, COX, BIRCH, DUBINA,

BLACK, CARNES, HULL and MARCUS, Circuit Judges.

HATCHETT, Chief Judge:

Appellant-petitioner John Freund appeals the district

court's denial of his petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. In 1985, a Florida state court

jury convicted Freund of first-degree murder for the 1984

stabbing death of Ralph Walker. The crux of Freund's

petition was that he was deprived of his right under the Sixth

and Fourteenth Amendments to effective assistance of trial

counsel because his lawyers labored under significant

conflicts of interest that stemmed primarily from their prior

representation of Freund's non-testifying, separately-tried

codefendant, John Trent. Addressing first impression issues

concerning the applicable rules of law and standard of

App. |

review, and finding no actual conflict and no adverse effect.

we affirm.

I. HISTORICAL FACTS'

A. Background on the Six Persons Present

at the Murder Scene

l. John Freund

Before 1983, John Freund practiced oncology. the

treatment of cancer. in Palm Beach, Florida. He enjoyed an

excellent reputation in the medical community for both his

professional expertise and personal demeanor. Unknown to

most of his colleagues, Freund suffered from severe bouts of

depression. In June 1983, he attempted suicide at home.

injecting himself with large doses of narcotics. A police

officer found him unconscious, and — subsequent

psychological tests and CAT scans of his brain indicated

significant brain damage due to a lack of oxygen. Among

Freund's symptoms were impaired memory, reduced

intelligence, inappropriate behavior, poor judgment, lack of

foresight and planning. amenability to others’ influences, and

a reduced ability to reason and appreciate the consequences

of his actions. Consequently. health care officials

suspended. and never reinstated. Freund's hospital privileges.

pA John Trent

Before the suicide attempt. Freund befriended John

Trent, the son of one of his patients. Although Freund and

We borrow much of the factual and collateral review

background information verbatim from the panel's opinion. See Freund

v. Butterworth, 117 F.3d 1543, 1547-70 & nn. 1-60 (11th Cir.1997),

vacated, 135 F.3d 1419 (11th Cir.1998) (granting the State's suggestion

for rehearing en banc ).

App. 2

Trent's friendship soured at some point, they rekindled it

after Freund's suicide attempt. Trent promised to help

Freund regain his hospital privileges. Trent enjoyed a

reputation of wielding significant, though illicit, influence in

the Palm Beach community.

Trent owned a legitimate interior design business

called House of Draperies, but his main occupation was a

full-time criminal. He involved himself heavily in drugs

(both use and sale), violence and prostitution. When tenants

of his several rental properties failed to pay their rent on

time, Trent had them assaulted. Trent kept more than one

residence (and girlfriend) in the Palm Beach area. Around

the time of the murder, he lived in an apartment at the Palm

Beach Hotel. Although the building had a doorperson, front

desk attendants and security guards, Trent usually answered

his door waving a loaded .45 caliber pistol. When friends

visited, he often had them use cocaine with him immediately

before they did anything else.

Trent claimed to have ties with the local police

through his work as a confidential informant. He bragged

that he had the West Palm Beach Police Department and

Palm Beach County Sheriff's Office "in his back pocket."

He wielded significant influence over several other persons,

using them to further his drug dealings, work as prostitutes,

entertain him, "take out" those who gave him trouble and

perform various other tasks. Four such persons were at

Trent's apartment, along with Freund, on the night of the

murder: three testified at Freund's trial and the fourth was

the victim.”

These three persons also testified at Trent's trial, which preceded

Freund's trial. Trent and Freund did not testify at either trial.

3. Eleanor Mills

The first of these persons was Eleanor Mills. Mills

ran a female escort service and frequently used drugs. In

early 1984, an undercover police officer arrested her after

she attempted to sell him a kilogram of cocaine. While in

pretrial detention, Mills met someone who suggested that

Trent, then a stranger to Mills, could help her with the drug

charges. In April 1984, several weeks before the murder, the

court released Mills on bail, and she arranged to meet Trent

at his apartment. In his usual practice, Trent greeted Mills

with a gun in hand and they immediately consumed cocaine.

Impressing Mills with his power in the community, Trent

offered help in at least two ways. First, he referred Mills to

the law firm (Foley, Colton and Duncan. P.A.) that

represented him. Second, he discussed having her serve as

an informant with the local police.

4. Lisa Angelilli

Mills's daughter, Lisa Angelilli, also testified at

Freund's trial. At the time that Mills and Trent became

associated. Angelilli was sixteen years old.’ Like her mother.

she frequently used drugs. Mills told Angelilli about Trent.

She anxiously awaited the opportunity to meet and use drugs

with a man of his influence.

5. Bill Daniell

Bill Daniell was the third material witness at Freund's

trial. An ex-convict, Daniell worked at House of Draperies

as an electrician and performed several "odd jobs" for Trent.

including drug trafficking. He had known Trent for over

At the time she testified In court, Angelilli was eighteen years

old.

App. 4

thirteen years, and Trent often introduced him as _ his

bodyguard and "hit man."

6. Ralph Walker

Finally. Ralph Walker was the stabbing victim.

Walker performed various tasks for Trent. He obtained

drugs for Trent. collected rent on various properties that

Trent owned and assaulted whomever Trent wanted harmed.

Like Trent, Walker had a violent temperament.

B. The Murder’

l. Preceding Events

Most of the events surrounding the murder of Walker

occurred at Trent's Palm Beach Hotel apartment. Sometime

in the afternoon or early evening of Tuesday, July 24, 1984.

Mills and Angelilli arrived at Trent's apartment.” Trent had

invited Mills and Angelilli to come over so that he could use

cocaine with them and meet Angelilli. Of course, Trent

answered the door with his .45 pistol in hand. The entrance

to the apartment was through the bedroom. A hallway led

from the bedroom to a dining room and living room area (the

"main room") that the kitchen adjoined. In the main room,

they spent the next several hours consuming cocaine. Trent

also drank bourbon. He remained armed with the .45 in a

. We derive the following factual account of Walker's death from

the testimony of Mills, Angelilli and Daniell at Freund's trial. We note

where their testimony conflicted. In light of Freund's conviction,

however, we must view their trial testimony in a light most favorable to

the State.

: The exact time of arrival is unclear. Mills initially told the

police that they arrived at 3 p.m., but she testified at trial that they did not

arrive before 6 p.m. Angelilli testified that they arrived at 4 p.m.

App. 5

shoulder holster; a .357 magnum pistol also lay on the table

where they sat.

Later in the evening, Angelilli announced that she

wanted marijuana. Eager to impress Angelilli, Trent called

Walker and told him to bring marijuana to the apartment.

About thirty minutes later, Walker arrived. The party

continued: all four snorted cocaine; Angelilli and Walker

smoked marijuana; Trent drank bourbon; and Walker drank

tequila. Walker drank and snorted more than the others.

At some point, Trent and Walker started to discuss

past exploits. Trent and Walker became increasingly loud.

The escalating level of tension made Mills very nervous.

Between 10 p.m. and 11 p.m. that night, Walker whispered

to Angelilli that he wanted to have sex with her. When she

ignored him, he got upset. jumped around and _ yelled

obscenities at her. Mills implored Trent to calm Walker

down, but Trent assured her that Walker was just "playing

around."

Walker. however, became more enraged. He

retrieved an aluminum baseball bat from Trent's bedroom

and slammed it onto the table. Walker announced to

everyone that he was going to have sex with Angelilli, and

that Trent would just have to ignore it. Walker then picked

up the .357 magnum from the table and moved toward

Angelilli with the gun in one hand and the bat in the other.

Angelilli and Mills became frightened and tried to hide

behind Trent. Trent knocked the .357 magnum out of

Walker's hand. When Walker reached for the .45 in Trent's

shoulder holster, Trent pulled it out first and fired it toward

Walker. Walker dived over a couch. The bullet hit a dining

room chair, but missed Walker. Trent walked around the

couch, pointed the gun at Walker's head and threatened to

kill Walker.

Keeping the .45 pointed at Walker, Trent instructed

Mills to get a pair of handcuffs out of his kitchen closet. As

Mills retrieved the handcuffs, she noticed that the closet

contained guns, knives and pills. Trent instructed Mills to

App. 6

hold the gun while he handcuffed Walker's hands behind his

back. Trent then told Angelilli to bring him the Gerber

fighting knife from the closet. With the knife in one hand

and gun in the other, Trent proceeded to kick Walker, lunge

at (but not stab) him with the knife and repeatedly yell

threats. including "You're dead Ralph Walker! You're dead

... and you're goin’ home to your mama in a box." He also

gagged Walker with a towel and strapped duct tape around

Walker's mouth.

At this point, Freund entered the picture. Trent called

Freund. Daniell and Bruce Fullerton, another one of his

henchmen. for assistance. Trent asked Freund to come over

with his "little black bag" to sedate Walker. Trent told

Daniell to come over and bring his "piece." He instructed

Fullerton to bring a steamer trunk, a sledge hammer and a

chain saw. Freund and Daniell followed Trent's instructions,

but Fullerton ignored them.

Freund arrived first, about fifteen minutes after the

phone call. To sedate (but not kill) Walker as Trent ordered,

Freund injected Walker with magnesium sulfate from his

bag.” Daniell arrived shortly after Freund, while Freund was

sull injecting Walker.’ When Daniell got close to Walker, he

heard him mumble through the duct tape. "Don't let them kill

me." After multiple injections, Freund ran out of magnesium

sulfate. Walker was still conscious.

t Magnesium sulfate is a mild muscle relaxer. Oncologists

frequently use this drug to treat symptoms arising from chemotherapy

and to replenish the body with magnesium that is lost during the therapy.

y Daniell was sober when he arrived, but soon joined Trent, Mills

and Angelilli in consuming cocaine. Freund did not use cocaine at

Trent's apartment that night. The record does not reveal whether Freund

used cocaine, or any other intoxicant, before he arrived.

App. 7

Trent found some diazepam in his kitchen closet.* He

gave it to Freund along with a bottle of vodka. Freund

crushed the pills into a powder that he dissolved in the

vodka. Freund, Trent and Daniell all took turns injecting

Walker with the mixture. After an injection, Walker would

lose consciousness for a short time. When he revived, they

would inject him again.

These gruesome events overcame Mills and Angelilli,

who retreated from the main room to Trent's bedroom. They

could still hear Walker groaning in agony, and they begged

Trent to let them leave. Trent refused. but he and a hotel

doorman escorted them to another apartment within the

hotel. Approximately twenty minutes later, when Mills and

Angelilli returned, Trent told Mills, "We had to take him out.

Iie knows too much and we had to run an air bubble to his

vein."

Freund and Trent had indeed injected air into Walker.

but it did not kill him. Freund expressed his surprise to

Daniell and Trent that the air injections had not caused an

embolism. After watching Freund and Trent repeatedly pull

the plunger all the way out of a syringe stuck in Walker's

arm and pop the plunger back in to the hilt. Daniell decided

that he could not watch anymore and joined the women in

the bedroom. Freund stayed in the main room with Walker.

while Trent split time between the main room and the

bedroom.

y J The Stabbing

From the bedroom. Daniell saw Freund pick up

Trent's Gerber fighting knife as if "he had found a new toy"

and walk in the direction of Walker. Trent entered the

bedroom. Daniell asked him what Freund was doing. and

. Diazepam is a drug that is used to counter the effects of anxiety

and alcohol withdrawal.

App. 8

Trent replied that Freund "was probably fucking Ralph in the

"9

ass.

At one point, Angelilli walked to the bathroom. On

her way. she could see into the main room. Although she

could not see Walker because he was on the floor behind the

couch. she could see Freund. Freund had the knife in his

hand. He was laughing and making up-and-down stabbing

motions behind the couch. Although Angelilli apparently

could not see where the knife landed, she was positive that

Freund was stabbing Walker. Horrified, Angelilli ran into

the bathroom and vomited before returning to the bedroom.

Shortly thereafter, when Trent, Daniell, Mills and

Angelilli were in the bedroom, Freund walked into the room

with blood on his shirt and said, "It's over." Trent told

Freund that he could not leave wearing the bloody shirt and

instructed him to change into one of Trent's shirts. After

washing his hands and putting on a clean shirt, Freund

started to leave. Freund warned Mills and Angelilli that they

had not seen him that night. On his way out the door, he told

Trent. "It was a pleasure doing business with you. Call me

again." He telephoned about twenty minutes later to inform

Trent that he had arrived home safely. Trent let Mills and

Angelilli go home. Daniell stayed with Trent through the

next morning. At one point, Daniell saw Walker's body in

the living room in a pool of blood.

~

3. Disposing of Walker's Body

The next day, Wednesday, Daniell drove Trent to

House of Draperies to pick up Trent's van. They drove the

i At Freund's trial, the court instructed the jury to disregard as

hearsay Daniell's testimony recounting this statement. We quote Trent's

out-of-court statement not for the “truth of the matter" that he asserts, but

to point out that Trent was not in the main room when Freund stabbed

Walker, and that Trent expressed no knowledge to Daniell that Freund

was killing him. Fla. Stat. § 90.801(1)(c) (1998).

App. 9

van to the Palm Beach Hotel to retrieve Walker's bicycle that

he had left in front of the building. After unloading the

bicycle at House of Draperies, Trent and Daniell drove to the

apartment of one of Trent's girlfriends. They made

arrangements for the girlfriend and Fullerton to purchase a

steamer trunk that they would use to remove Walker's body

from Trent's apartment.

Later that day, Mills picked Trent up from House of

Draperies and drove him to the Palm Beach Hotel apartment.

Fullerton soon joined them, and the three began to clean up

the apartment. They, however, left Walker's body on the

floor behind the couch. Trent and Fullerton discussed

removing the body in a steamer trunk. Freund arrived at the

apartment around 2 a.m. Thursday morning. Trent. Freund

and Mills sat around the dining room table snorting cocaine.

drinking and talking for several hours. They discussed how

to dispose of Walker's body. During the entire night, Freund

acted oblivious to Walker's corpse that sprawled close to the

dining room table. Freund left the apartment sometime early

Thursday morning.

The body remained in Trent's main room throughout

much of Thursday. During this time, Trent threatened to kill

Mills and Angelilli if they said anything to the police. He

also reminded them that he had the local police under his

control. Similarly. Trent threatened to kill Daniell's family if

he did not help Trent conceal the body. At one point. Trent

told Angelilli that Walker had deserved to die because he

knew too much.

Late Thursday afternoon. after Freund and his friends

left the apartment, Fullerton arrived with a sledgehammer

and a steamer trunk that he had purchased with Trent's

girlfriend. Trent used the sledgehammer to break Walker's

legs so that his body would fit in the trunk. Once Trent

closed Walker's body in the trunk, Trent, Fullerton, Mills and

another friend of Trent carried it to Trent's van and drove to

House of Draperies.

App. 10

c. Police Investigation

2 Mills's and Angelilli's Cooperation and the

Police's Searches

The morning of Saturday, July 28, 1984, Mills and

Angelilli decided to call the police.'’ They related the events

surrounding the stabbing and told the police where to find

Walker's body. They did not tell the police about Daniell's

involvement. Later that day, the police discovered Walker's

body in Trent's van at House of Draperies, beginning their

investigation.

Also. based on Mills's and Angelilli's statements, the

police obtained and executed search warrants for House of

Draperies and Trent's Palm Beach Hotel apartment. At

House of Draperies. the police found: Walker's badly

decomposed body in the steamer trunk in Trent's van; boxes

of empty beer cans and liquor bottles; trash bags containing

syringes. needle wrappers, empty drug capsules and four

empty ampules of magnesium sulfate. They also discovered

Trent's and Fullerton's fingerprints on the van.

At Trent's apartment, the police found: duct tape: a

loaded .45 pistol in a shoulder holster; a loaded .357

magnum pistol; a pair of handcuffs; bottles of diazepam

that Freund had prescribed for Trent; a sledgehammer: a

dented aluminum baseball bat; a dining room chair with a

bullet lodged in it; a Gerber fighting knife with human blood

on the blade: a bag of blood-soaked towels; and an empty

beer can with Mills's fingerprints.

1

They called the vice squad officer who had arrested Mills on

cocaine trafficking charges. They chose him because Trent had earlier

told Mills that he did not trust that officer. They thus thought that he was

unlikely to be under Trent's influence.

App. 11

y Autopsy

Shortly after the searches, the coroner performed an

autopsy on Walker's body. The coroner found five stab

wounds straight into Walker's chest and one into his lower

back that extended upward and inward toward the heart. The

coroner concluded that these stab wounds penetrated

Walker's heart and, therefore, caused his death. The coroner

also noticed handcuff injuries to Walker's wrists and duct

tape over his mouth. Walker's body fluids revealed high

levels of cocaine, alcohol and a derivative of diazepam. The

corner did not find any needle marks, but advanced

decomposition in one area suggested that Walker may have

received multiple injections.

3. Trent's Flight and Daniell's Cooperation

After the police discovered Walker's body. Trent fled

to Illinois. Daniell eventually approached the police about

his involvement and corroborated Mills and Angelilli's story.

In addition to the physical evidence found at Trent's

apartment and House of Draperies, the police had three

material witnesses willing to testify about Walker's murder.

The State Attorney's Office did not charge Mills. Angelilli or

Daniell with any crime resulting from their involvement in

the murder or disposition of Walker's corpse."'

D. The Law Firm

For thirteen years, Trent had extensive dealings with

the law firm of Foley, Colton and Duncan. P.A. (the "law

" The State Attorney's Office did, however, delay Mills's cocaine

trafficking case until after the conclusion of Freund's trial. The record

does not indicate whether the State Attorney's Office ever resumed that

prosecution.

App. 12

firm")—the law firm that would eventually represent Freund

at trial. In the early 1970s, Robert Foley began representing

Trent in various criminal and civil matters, as did Roger

_ Colton and Douglas Duncan after they joined the law firm.

Overall. until May 1984, the law firm represented Trent in

various cases and capacities ranging from civil collection

actions involving House of Draperies and Trent's hotels to

criminal matters.'” Additionally, during this time, the law

firm and Trent's relationship often exceeded that of attorney

and client. Trent and his employees came to the office on a

daily basis. sharing the law firm's copier and other office

equipment. Trent also performed interior design work for

the law firm. Foley, Colton, and Duncan's parents.

Trent referred many of his employees and friends,

including Mills. to the law firm. Approximately two months

before the stabbing. Mills met with Colton at Trent's Palm

Beach Hotel apartment for less than an hour and explained to

him the facts and circumstances of her cocaine trafficking

charge. Colton and Mills discussed the possibility of her

providing assistance to the police. Colton and Mills's

professional relationship began and ended with this

meeting.”

The law firm represented Trent until May 1984.

approximately three months before the stabbing. A year

earlier. on June 19, 1983, Trent allegedly brandished a gun

on a public street and threatened to kill two persons. The

alleged facts were that Trent was speeding recklessly

through a residential area and screeched to a halt. A woman

with the last name of Vana came out of her apartment fearing

" In addition to representing Trent, the law firm represented

Trent's mother's estate. Freund, however, does not allege any conflict of

interest stemming from that representation.

3

Also, prior to 1988, Trent referred Daniell to the law firm for

representation on a traffic violation for speeding.

that Trent had struck a neighborhood child. Vana asked

Trent why he was driving like that and told him that small

children played in the area. Trent told her to mind her own

business or she would get hurt. When Vana's husband

approached, Trent pulled out a handgun from a holster in his

waistband and asked her if she "wanted this one or the

other,” motioning to a gun that he supposedly had in his back

waistband area. A few days later, advised of the assault

incident, the police stopped Trent in his car. The officers

discovered diazepam in Trent's possession. The police

arrested Trent for, and the State Attorney's Office charged

him with, possession of diazepam and aggravated assault.

The State also initiated a forfeiture proceeding against

Trent's automobile in relation to the possession charge.”

The law firm, primarily Colton, initially represented

Trent in both the aggravated assault and diazepam

possession prosecutions, but it withdrew as counsel no later

than May 2, 1984, prior to their resolutions. The Honorable

Marvin Mounts, Palm Beach County Circuit Judge. presided

over these prosecutions. Colton and Duncan also

represented Trent in the forfeiture proceeding. also before

Judge Mounts, through final judgment that issued prior to

May 1984.

Although Trent had retained David Roth as substitute

defense counsel in his aggravated assault and diazepam

possession cases, he called Colton from Illinois after the

stabbing for advice. Trent did not discuss the facts of the

murder, and Colton offered no advice other than suggesting

that Trent was in a lot of trouble and he should surrender to

the authorities. Roth continued to represent Trent throughout

his murder trial.

- We derive these facts only from Freund's petition for writ of

habeas corpus. Freund never proved these facts at any hearing.

App. 14

Freund went to the law firm for advice soon after the

stabbing.” At that first meeting, Freund confessed to Foley

that he stabbed Walker to death. The law firm agreed to

defend him. and Freund surrendered to the authorities on

July 31. 1984. Ten days after Freund's arrest, authorities

arrested Trent in Illinois. The court detained Trent and

Freund without bail, and on August 23, 1984, a grand jury

indicted both for the first-degree murder of Walker.'°

E. Prosecution of Freund and Trent

l. Press Conference

Two or three days after the court arraigned Freund,

Foley called a press conference to announce that Freund

would rely on an insanity defense. Formally, however, the

law firm did not file a notice of intent to rely on the insanity

defense until nearly a year later, June 4, 1985.'’ By that time,

Freund had admitted not only to Foley, but also to Duncan

that he killed Walker. Freund had also told his psychiatrist

that he stabbed Walker because Trent told him to do it.

2. Discovery and Freund's Motion to Sever

1S

The record does not reveal who, if anyone, recommended the

law firm to Freund.

. Specifically, the indictment alleged that Freund and Trent "did

unlawfully from a premeditated design to effect the death of a human

being. kill and murder RALPH WALKER, a human being by stabbing

the said RALPH WALKER with a knife or other sharp instrument,

contrary to Florida Statute 782.04(1)(a)."

“ In fact. around the time of the press conference, on September 7,

1984. the law firm filed a "Motion to Extend Time for Filing Notice of

Intent to Rely on the Defense of Insanity," contending that it was “not

presently in a position to state with particularity if [Freund] ... was insane

at the time of the alleged offense ..., and if so the nature of the insanity."

The court apparently granted the motion.

The clerk of court assigned Trent and Freund's

murder case to Judge Mounts, the same judge who had

earlier presided over Trent's assault, drug possession and

forfeiture proceedings. After several hearings to determine

Freund's competency to stand trial, Judge Mounts declared

him competent on February 5, 1985. Soon thereafter, two

conflict-of-interest issues arose during pretrial proceedings.

The first conflict issue arose at a deposition on April

16, 1985. Mills refused to answer any questions that Duncan

asked on the ground that her prior consultation with Colton

regarding the cocaine trafficking charge had established an

attorney-client relationship with the law firm. Mills,

however, had already disclosed to Trent's lawyer, Roth, in

Duncan's presence any information that she had conveyed to

Colton during that consultation. | Nevertheless. Mills

remained silent.

The second conflict issue arose less than a month

later. On May 13, 1985, the law firm filed a motion to sever

on behalf of Freund. asking the district court to order the

State Attorney's Office to prosecute Freund and Trent in

separate trials.'* As grounds, the law firm averred that

{t]here exists a concern that because DR.

IF REUND's attorneys have represented MR.

TRENT in the past and on unrelated matters

i This motion was actually the second such motion that the law

firm filed on Freund's behalf. In its initial motion dated February 21,

1985. the law firm sought a severance because of an out-of-court

statement that Trent made to the media. Trent announced on television

that he saw Freund kill Walker. The law firm argued that the admission

of Trent's out-of-court implication of Freund in a joint trial where Trent

did not testify would violate Freund's constitutional right to confront his

accuser. See Bruton v. United States, 39\ U.S. 123, 135-36, 88 S.Ct.

1620, 20 L.Ed.2d 476 (1968). After a hearing, Judge Mounts ruled that

he would grant the severance if the prosecution intended to use the

Statement at trial. Because Judge Mounts did not grant a severance based

on this motion, we assume that the prosecution repudiated any intention

to use it.

App. 16

to the instant case, that there may be a

potential conflict. Specifically, if in a joint

trial, MR. TRENT[ ] was to testify in his own

behalf. his former attorneys would be in a

position of cross-examining him.... [A]

severance should be granted ... to avoid even

the remotest scintilla of an appearance of

impropriety. This is not to say that an

appearance of impropriety exists.

The law firm concluded the motion with a statement that it

was requesting an informal written opinion addressing the

possible conflict from the Florida Bar. Although Judge

Mounts eventually severed Freund's and Trent's trials, the

record does not disclose whether he ever issued a ruling on

this (Freund's) motion.

3 Florida Bar Opinion

Duncan wrote the letter to the Florida Bar on the

same day that the law firm filed the motion to sever. After

providing a factual background, Duncan asked two related

questions about the law firm's prior representation of Trent.””

First. Duncan essentially conceded that the law firm would

have to withdraw from representing Freund if the court tried

Freund and Trent jointly:

[T]here may an appearance of impropriety

under [Florida's rules of professional conduct]

in being up against a former client.

1

In his letter, Duncan proceeded under the assumption that the

law firm's representation of Trent and Freund was successive, as opposed

to simultaneous. Further, Duncan premised that "[c]learly, the prior

representations of Mr. Trent are in no way connected to the instant

homicide."

App. 17

Specifically, if in a joint trial, Mr. Trent elects

to testify on his own behalf, ... his former

attorneys[ | would clearly be put in a position

of cross-examining him.... [I]t may in the

eyes of some raise the appearance of

impropriety.

But because he believed that severance was "likely," Duncan

asked

whether ... there are any ethical problems in

arguing in defense of Dr. Freund that at the

time of the alleged homicide he was

obviously insane, and this insanity was known

by Mr. Trent, and accordingly Mr. Trent

manipulated Dr. Freund to commit the murder

for he, Trent. Simply stated, is there anything

ethically wrong with arguing in a separate

trial, that a former client [Trent] is responsible

for a homicide as opposed to the new client

[Freund].

As to Mills's refusal to answer questions that the law firm

posed on behalf of Freund, Duncan inquired whether "there

[is] anything by virtue of the one initial consultation with

Ms. Mills, that would preclude my law firm from examining

and questioning Ms. Mills concerning her knowledge of the

homicide[.]"

Duncan received an advisory staff opinion from the

Bar on May 31, 1985 (the "Bar opinion"). Regarding the law

firm's prior representation of Trent, although the Bar opinion

did not offer a direct answer to either question that Duncan

advanced, it did outline some relevant considerations:

{W]here the matter [for which the attorney

represented the former client] is so unrelated,

as to either substance or time, that the

App. 18

attorney could not have acquired information

[from] the former client which could be used

to his detriment, the attorney may ethically

undertake representation adverse to his former

client. If such related information was

acquired during the course of former

representation, [the rules of professional

conduct] would prohibit the proposed

representation even if a severance of the

former and present clients’ cases were

granted. Therefore the responsibility of the

former client in the present case could only be

argued where no detrimental information was

obtained in the previous distant or unrelated

representation.

As to whether the law firm could question Mills about the

homicide, the Bar opinion suggested that it could as long as

its questioning did not reveal any secrets or confidences

between the law firm and Mills. As it did with Trent, the Bar

opinion cautioned that if Mills's consultation with the law

firm was either close in time or related to the homicide, the

law firm could not ethically question Mills concerning the

homicide.

On June 3, 1985. relying on the Bar opinion, Duncan

moved the court to order Mills to submit to the law firm's

deposition. Duncan assured Judge Mounts that the law firm

would "maintain the confidences and secrets that may have

been disclosed by Ms. Mills to Mr. Colton during their initial

consultation on the unrelated criminal charge." He went on

to state that because the murder occurred after the

consultation. the law firm's prior relationship with her would

not prohibit it from questioning Mills about — her

"observations and opinions concerning the alleged

homicide." Mills submitted to the law firm's deposition on

June 24, 1985.

4. Severance Hearing

While Freund's motion to sever was still pending, on

August 20, 1985, Trent filed his own motion to sever on two

different grounds. Through discovery, Trent's lawyer, Roth,

learned that Freund had confessed to his psychiatrist that

although Freund stabbed Walker, Trent made him do it.

Thus, the first ground of Trent's motion was that if Freund

chose not to testify, the admission in a joint trial of Freund's

out-of-court confession that inculpated Trent would violate

Trent's rights under the Sixth Amendment's Confrontation

Clause. See Bruton v. United States, 391 U.S. 123, 135-36.

88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Judge Mounts ruled

that to avoid a Bruton problem, he would simply exclude this

statement if Freund and Trent were tried jointly.

Trent's second ground for severance involved the law

firm's relationship with him. Trent alleged that the law firm

had acquired confidential information that it could use

against him at a joint trial. Despite his own pending motion

to sever, Freund initially joined the State in opposing Trent's

requested severance.””

Judge Mounts conducted a hearing on Trent's

severance motion on September 3, 1985. The court opened

the hearing to the public, and it drew significant media

attention. The first witness that Roth called to the stand was

Trent. Trent initially detailed the attorney-client relationship

that had developed between the law firm and himself. Trent

testified that during the course of the representation. he had

confided his personal secrets and business affairs to both

Foley and Colton. Trent told the law firm about his

participation in multiple criminal activities involving drugs

- In fact, a few days before the hearing. the State Attorney's

Office and Foley, on behalf of Freund, stipulated in writing that "no legal

grounds exist for the granting of the severance” and that the court should

try both Freund and Trent together.

App. 20

and prostitution. Even after Trent had retained Roth to

handle his drug and assault prosecutions, he called Colton

from Illinois after the stabbing. Trent explained that at the

time of the telephone call, he still considered Colton to be his

attorney.

Trent's testimony then moved from his professional

relationship with the law firm to a more personal and lurid

relationship. He had considered Foley and Colton to be

close friends in addition to his lawyers. Beyond discussing

his criminal activities, Trent would recount to both lawyers

the details of his sexual exploits. Trent even showed Foley

and Colton a number of "sexual devices," including whips,

chains and handcuffs, at his Palm Beach Hotel apartment.

Trent also contended that he used cocaine in Foley's and

Colton's presence, including in their law offices.

According to Trent, Foley and Colton did more than

just listen to Trent's tales of deviancy. Trent made several

serious allegations against both lawyers. First, he claimed to

have delivered cocaine to their friends, sometimes at the law

firm. He further suggested that he had provided both

lawyers with prostitutes on many occasions, often as

payment for legal services. Indeed, Trent allegedly provided

Foley with "so many [prostitutes] over the years ... it [was]

almost a daily occurrence." He alleged that the two attorneys

had attended and participated in many of his "sex parties"

involving cocaine and prostitutes. For example, on one

occasion, Trent and Foley allegedly invited several

prostitutes to the offices after the close of business. One of

them accidentally tripped the police-monitored burglar

alarm. When the police arrived, Trent recounted that he had

to answer the door because Foley was naked.

After Trent concluded his testimony, Roth called

Colton to the stand. Colton "categorically[,]" "unequivocally

and totally" denied "each and every accusation" that Trent

had levied.”' To avoid being forced off of the case, Foley did

=)

The following exchange between Roth and Colton took place:

App. 21

not cross-examine Colton or testify. Although both Duncan

and the assistant state aitorney declined to examine Colton,

the court did question him, eliciting that Colton was an

upstanding member of the Florida Bar, enjoyed a solid

reputation for fairness and professionalism, and had served

on several bar committees involving issues ranging from

legal ethics to judicial appointments.

During arguments that followed the conclusion of

testimony, Duncan announced that Freund was joining

Trent's request for a severance. Duncan's reason for

changing his mind was not Trent's inflammatory allegations

against the law firm. Rather, Duncan feared that the court's

exclusion of Freund's out-of-court confession to his

psychiatrist in a joint trial would completely gut the law

firm's theory of the case, that is, that Trent controlled Freund

and ordered him to kill Walker. Roth's only problem with a

joint trial, in contrast. was the law firm's cross-examination

of its former client "if and when Trent takes the stand."

Ultimately, Judge Mounts granted the severance.

Q. You have heard all this testimony from Mr. Trent?

A. Yes.

Q. In reference to, what you and | think we can discuss,

other than legal issues? To some of the accusations

made, do you deny those accusations?

A. | deny each and every accusation Mr. Trent has

stated about me and | deny them uncategorically,

unequivocably and totally.

THE COURT: Categorically.

App. 22

5. Trent's Trial

The court tried Trent first. Duncan attended the trial

and observed the testimony of Mills, Angelilli and Daniell,

the three principal fact witnesses for the State. Neither

Freund nor Trent testified. The trial resulted in a hung jury,

and the court declared a mistrial. In a plea bargain, the State

Attorney's Office reduced the first degree murder charge in

exchange for Trent's pleading guilty to second-degree

murder. The court sentenced Trent to a 17-year sentence,

and prison authorities have since released him. .

6. Freund's Trial

After Trent pleaded guilty to second-degree murder,

the State Attorney's Office offered the same deal to Freund.

The law firm advised Freund that the defense of insanity was

successful 30 percent or less of the time. Rejecting the offer

on behalf of Freund. Foley stated to the assistant state

attorney that the defense was holding out for a verdict of

manslaughter or not guilty by reason of insanity. Thus, the

State brought Freund to trial on October 23, 1985, and

Duncan and Foley served as his trial lawyers.

i. State's Case-in-Chief

The State first introduced most of the physical

evidence through the testimony of various police officers

who conducted the investigation. The prosecution also

presented the results of Walker's autopsy through the

testimony of the conducting pathologist. He confirmed that

although Walker's body fluids revealed high levels of

The record does not contain the transcripts of Trent's trial. Nor

does the record reveal any further direct involvement on Trent's part in

Freund's prosecution.

App. 23

cocaine, alcohol and a derivative of diazepam, stabbing

caused Walker's death.

Through the testimony of Mills, Angelilli and

Daniell, the State presented the details of the murder. With

only minor inconsistencies, the three witnesses essentially

recounted the events leading up to and following Walker's

stabbing as described in section I, part B, of this opinion.

They all testified that Freund was present at Trent's

apartment the night of the murder and that, at Trent's

direction, he injected Walker first with magnesium sulfate,

then with mixtures of vodka and diazepam, and finally with

air. Angelilli testified that Freund made stabbing motions in

the direction of Walker's body. Because Walker's body was

behind a couch, Angelilli conceded that she did not see the

knife actually strike Walker's body. Daniell testified that he

saw Freund pick up Trent's knife and approach Walker. All

three witnesses testified that Freund was alone in the main

room with Walker for a short time, and that afterward he

came into the bedroom with blood on his shirt. After

describing their roles in cleaning up and moving Walker's

body, the witnesses each concluded their direct testimony

through recounting how and why they went to the police.

Duncan brought out many of the inconsistencies of

each witness's testimony on cross-examination. For

example, he elicited from both Mills and Angelilli that when

they originally went to the police, they omitted altogether

any mention of Daniell. Mills and Angelilli explained that

they were afraid to inculpate him because they thought he -

was a hit man who would kill them. Only after Daniell went

to the police did Mills and Angelilli acknowledge his

presence at the murder scene.

While cross-examining Mills. Duncan asked a series

of questions about how she came to know Trent and about

her prior arrest for trafficking cocaine. Duncan had her

recount the basic background of that pending charge and

Trent's assistance from shortly after her arrest until her one

and only meeting with Colton. Duncan stopped short of

App. 24

. 4 R . 33 .

asking Mills about her consultation with Colton.~ Mills also

admitted that she, like everyone else except Freund, used

cocaine on the night of the stabbing.

Specifically, Duncan questioned Mills as follows:

Q. You testified to this jury that you heard of or you

learned about John Trent while you were in the Palm

Beach County jail?

A. Yes.

Q. Through a Rosemary Lail?

A. Yes.

Q. Okay. And what Rosemary Lail told you was,

"Listen. you're looking at some big time and a fine and

the guy you want to see in town is John Trent"?

A. Yes.

Q. And you had been arrested, | think you told the jury,

for trafficking in cocaine?

A. Yes.

Q. You tried to sell some police officers cocaine?

A. | was like the middle person.

Q. Okay. How much cocaine were you trying to sell?

A. Four kilos. That's what he requested, [the police

officer]

requested and he received one kilo.

Q. How much is a kilo of cocaine, Ms. Mills?

A. Two pounds.

Q. I'm sorry, the price?

A. The price? About thirty-seven thousand | think the

price was. .

Q. That's what you were selling it for, thirty-seven

thousand?

A. Yes.

Q. And you told this jury that you understood that what

you had been arrested for carried with it a fifteen year

mandatory minimum sentence?

A. Yes.

Q. You understood that if you were guilty and

convicted of that, that you would do day for day fifteen

years?

A. Yes.

Q. You were also aware that that carried with it in

addition to the fifteen years a quarter of a million dollar

fine?

A. Yes.

Q. So as a result of your conversation with Rosemary

Lail, you were looking forward to meeting this guy

who was going to get you out of a fifteen year prison

sentence and a quarter of a million dollar fine?

A. | wasn't sure he was going to get me out.

Q. | understand that. But you certainly were going to

check it out?

A. | was going to check it out, yes.

Q. In fact the first time you got out of jail. John Trent

sent a cab for you, didn't he?

A. Yes.

Q. And he paid for the cab to bring you to the Palm

Beach Hotel?

A. Yes.

Q. Tell the jury, Ms. Mills, the first thing that you said

and did when you arrived at John Trent's apartment the

day you got out of jail in the cab that he paid for.

A. | went into the apartment. Rosemary Lail was there,

John Trent was there and the first thing he did was lay

out some cocaine.

Q. You did it?

A. Yes.

Q. The first thing off the bat?

A. Yes.

Q. The moment you get out of jail ... you're doing

cocaine?

A. Yes.

Q. And did John Trent then begin to talk to you about a

term we use down here in the courthouse, “substantial

assistance”?

A. | don't know if he mentioned that-term or not but he

did say he could help me.

Q. Okay. He may not have used the legal terminology,

“substantial assistance," but he explained to you,

"Listen, Eleanor or Ms. Mills," whatever he called you,

"the only way you're going to get out from under this

fifteen year mandatory minimum sentence and a

quarter of a million dollar fine is to work with me"?

A. That's what he said, yes.

Q. Okay.

A. He needed help also.

Q. What do you mean he needed help?

A. He was an informant. He was an informant for the

law so he needed something too. He needed some

assistance also. It would help him and Rosemary Lail

and myself,

Q. Okay. You talked about what it was though,

substantial assistance, whereby you would work with

the police to set somebody up?

A. We talked about it, yes.

Q. Well, you talked about the mechanics of it?

A. Yes.

(. You would set somebody up, get them involved ina

drug deal?

A. No. He was going to set someone up?

(). He, being who?

A. John Trent.

Q. But the mechanics of it, Ms. Mills, and correct me if

I'm wrong, was that John Trent using you would set

somebody else up in a drug deal and they would get

arrested and then you would help the Prosecutor and

the State and you would get out of your problem?

A. That's what he was saying.

Q. Okay. Now, John Trent told you that he had what,

the West Palm Beach Police Department in his back

pocket?

A. Yes.

Q. That he had the Palm Beach Police Department in

his back pocket?

App. 28

On cross-examination of each of the three witnesses,

Duncan elicited personal facts in an effort to impeach their

credibility. For instance. he questioned Mills about "Port O

Call for Men." the escort service she ran. Similarly, when

cross-examining Angelilli, Duncan elicited that just prior to

the trial, she had worked as a topless dancer. And, Daniell

admitted on cross-examination that he was an ex-felon and

attested that he "would never go back to prison except on a

slab."

A. Yes. He had them all. He said he had a good

rapport with them.

Q. Okay. And John Trent set himself up to you as

being the big man?

A. Yes, he did.

Q. He could control things?

A. That's how it came off to me, yes.

Q. The first day you came out of jail and went there, he

told you. “Don't worry about it. Ms. Mills, I'm going to

handle things for you"?

A. Yes.

Q. That was a great relief to you. wasn't it, ma‘am?

A. No. Because | listened him but | told him that |

didn't believe it until I seen it.

Q. But you weren't the least bit relieved or encouraged

that you were going to get out of this fifteen year

mandatory sentence and quarter of a million dollar fine

with what he said he was going to do for you?

A. | felt more comfortable, yes.

App. 29

il. Freund's Insanity Defense

After the prosecution rested its case. Duncan and

Foley presented Freund's insanity defense. Through the

testimony of several witnesses, they demonstrated that

Freund had a good reputation as an oncologist before his

suicide attempt. They developed the facts surrounding the

suicide attempt, focusing on the changes in Freund's

personality that brain damage had caused. Colleagues of

Freund testified that he seemed to be a different person with

severe memory problems. The defense also presented the

testimony of several experts who explained the symptoms of

brain damage, including susceptibility to suggestion and a

lack of independent judgment. Many of these experts had

evaluated Freund shortly after his suicide attempt to

determine whether or not he was fit to return to the practice

of medicine.

During its cross-examination of Freund's witnesses

and through the testimony of the witnesses it called on

rebuttal, the prosecution attempted to demonstrate that

Freund knew what he was doing when he stabbed Walker

and knew that it was wrong. When cross-examining one of

the psychiatrists who Foley called, the State elicited that

Freund had told the psychiatrist that he remembered the

events of the night of the murder. Specifically. the jury

heard the psychiatrist confirm that Freund had admitted to

remembering the following: Trent called him to come over

and kill Walker. When he arrived at Trent's apartment.

Walker was lying on the floor in handcuffs. He injected

Walker with diazepam knowing that it would not kill

Walker. He stabbed Walker several times with a letter

opener. He did not know Walker's identity when he stabbed

him. He first stabbed Walker in the back. but then turned

him over to stab him in the heart because, as a doctor. he

knew that was the way "to really kill a person that is in

handcuffs."

App. 30

Neither Duncan nor Foley objected to this line of

questioning. Judge Mounts did instruct the jury, on more

than one occasion, that Freund's statements to psychiatrists

may be treated "as evidence of mental condition only and not

as evidence of the factual truth" that they may contain.

Freund did not testify.

iil. State's Rebuttal

The prosecution called its own expert witness on

rebuttal, a psychiatrist who the court had appointed to

determine Freund's competency to stand trial. This

psychiatrist opined that Freund was feigning most of his

mental problems. He claimed that although the stabbing

may have been the result of an "irresistible impulse," Freund

definitely knew that he was killing Walker and knew that

what he was doing was wrong.’ The witness also

commented on the reports that psychiatrists who had

examined Freund to determine his competency to return to

the medical practice had prepared. He interpreted those

reports as indicating that Freund's condition was improving

and that Freund might have been able to return to the

* Some states provide an insanity defense for crimes committed as

a result of an irresistible impulse. See Model Penal Code § 4.01(1)

(1995) (providing insanity defense where "as a result of mental disease or

defect [the defendant] lacks substantial capacity to ... conform his

conduct to the requirements of the law"). Florida law, however, permits

the defense of insanity only where

at the time of an alleged crime a defendant was by

reason of mental infirmity, disease or defect unable to

understand the nature and quality of his act or its

consequences, or if he did understand it, was incapable

of distinguishing that which is right from that which is

wrong.

Wheeler v. State, 344 So.2d 244, 245 n. 2 (Fla.1977).

practice of medicine. He suggested that the psychiatrists

who testified on Freund's behalf exaggerated his condition to

support the insanity defense.

The last witness that the State called on rebuttal, and

the last witness of the entire trial, was James Stob, a friend of

Freund. Stob testified that Freund denied killing Walker

when Stob visited him on jail. At no time did the State call

Trent to testify.

iv. Closing Arguments

The closing arguments focused on Freund's insanity

at the time of the stabbing. The assistant state attorney

argued that Freund knew exactly what he was doing and that

he falsely tried to convince his psychiatrists that he was

insane. Duncan focused on Freund's brain damage and the

supporting testimony of psychiatrists, arguing that Freund

either did not know what he was doing when he stabbed

Walker or. if he did know what he was doing. did not know

that it was wrong. Duncan asserted that two victims existed

in the case, Walker and Freund. He argued that Trent knew

that Freund's condition left him susceptible to influence and

that Trent accordingly manipulated and controlled Freund

like a robot, making him kill Walker.

At one point, Duncan turned the argument over to

Foley. After contending that reasonable doubt existed as to

Freund's sanity, Foley argued to the jury that Trent ordered

lreund

to do something. He did it, and because of

the stressful situation, Ralph Walker is dead.

We don't really know who did it. I always

wondered whether Trent did it and told this

poor guy, "You did it. My colleagues here are

telling you you did it."

App. 32

The same girls were lying when they

told the police they didn't even tell them about

Daniell in the sworn statement. The woman

is going to get fifteen years mandatory

without parole lifted for her if she cooperates,

but she lies. she is in trouble and she lied

about Daniell and Daniell got the word and he

figured he better get in on the train also so he

runs down to the police station Tuesday, |

think it was. after the murder, and gives his

statement and they say okay.

Remember, he lied about that so we

don't know what happened there. We can't

guess what happened. We can't guess this

man into the electric chair and we can't guess

him into 25 years in the penitentiary without

parole.

Foley then returned to the insanity defense. In the State's

final closing argument. in addition to refuting the insanity

defense, it addressed Foley's statements: "Now. Mr. Foley

tells you we are not even sure if Freund stabbed Walker.

[That's ridiculous."

v. Verdict and Sentence

After receiving their instructions from Judge Mounts.

the jury deliberated for a total of three hours over two days.

On November |, 1985, the jury returned a verdict of guilty of

murder in the first degree. At a subsequent penalty phase.

the jury recommended a life sentence through a vote of ten to

two.” Judge Mounts accepted the recommendation and

lhe record before us does not include transcripts of the penalty

phase

App. 33

sentenced Freund to life in prison without the possibility of

parole for twenty-five years, the minimum sentence that

Freund could receive.

F. Direct Appeal

The law firm represented Freund on direct appeal.

On grounds unrelated to this appeal, both the Fourth District

Court of Appeal and the Supreme Court of Florida affirmed

Freund's conviction. See Freund v. State, 506 So.2d 437

(Fla.App. 4 Dist.1987) (per curiam ), aff'd, 520 So.2d 556

(Fla.1988),.

II. COLLATERAL REVIEW PROCEEDINGS

A. State Court

After his direct appeal failed, Freund obtained new

counsel—the same lawyers who represent Freund before

us—to attack collaterally his conviction in state and federal

court. On March 29, 1990, Freund filed a motion to vacate

the judgment and sentence. pursuant to Florida Rule of

“9

Criminal Procedure 3.850 (the "3.850 motion"), in the state

circuit court that tried and sentenced him. Freund argued

that the law firm's conflicts of interest denied Freund his

constitutional right to the effective assistance of trial counsel.

As sources of the conflicts, Freund pointed to the law firm's

relationship with Trent and Mills. The court conducted an

evidentiary hearing on April 25. 1991) (the "3.850

hearing").~°

Judge Mounts did not preside over the relevant state collateral

review proceedings. Freund had successfully moved to disqualify Judge

Mounts from resolving his 3.850 motion because of the judge's admitted

“firm, fixed and select feelings and opinions about the credibility of"

Trent

App. 34

7 _ se

l. Trent's Private Investigator

In his case-in-chief, Freund's counsel called two

Witnesses to the stand. The first witness was Thomas Dick.

Dick was an auxiliary patrolman for the Riviera Beach

Police Department and a friend of Trent. Dick testified that

Trent asked him to investigate the background of Vana, the

alleged victim of Trent's 1983 aggravated assault charge.

Dick denied ever conducting any investigation, but admitted

to obtaining the police report and meeting with Trent and

Colton separately to discuss the case. Neither Trent nor

Colton asked Dick to do any investigative work with respect

to the diazepam possession charge.

Moving to the events following the stabbing, Dick

testified that he learned that Trent was a fugitive in the

murder investigation and that Freund had surrendered.

Daniell went to see Dick shortly thereafter. Daniell told

Dick that "he was [at Trent's apartment] when whatever

happened happened." Dick convinced Daniell to tarn

himself in to the Palm Beach Police Department. At some

point, while Trent was still in Illinois. Dick permitted the

police to record calls made to Dick's residence. The police

recorded several conversations between Dick and Trent over

the next few days.

These recorded conversations that Freund played at

the 3.850 hearing confirmed that Trent had contacted Colton

following the stabbing. Trent also told Dick that he would

arrange for Colton to pay Dick to do some investigatory

work. Trent suggested that Colton possessed Trent's power

of attorney over some of his assets.

After the tapes concluded. Dick testified that he had

met with Colton following the calls from Trent. At that

meeting, Colton denied to Dick that he enjoyed power of

attorney over any of Trent's assets. Dick testified that

although he assumed without doubt that Colton represented

Trent in late July and August 1984, Colton never told him

App. 35

that he represented Trent. Dick last spoke with Trent on

August 8, 1984, just prior to his arrest in Illinois.

ya Duncan

Duncan was the second witness that Freund's counsel

called at the 3.850 hearing. With regard to the law firm's

representation of Trent prior to May 1984. Duncan testified

that although Colton handled most of that work, he did

appear with Colton at Trent's forfeiture hearing before Judge

Mounts. Duncan denied that the law firm simultaneously

represented Trent and Freund. When asked about his

reaction to Trent's allegations at the severance hearing.

Duncan admitted that he was appalled and that the law firm

Was generally angry.

The bulk of Duncan's testimony. however, dealt with

the law firm's representation of Freund. Duncan and Foley

served as Freund's principal lawyers. In preparation for

Freund's defense. Duncan observed Trent's trial. He stated

that Trent's only defense was that he did not commit the

murder. Duncan did not consider this defense to be

completely consistent with the law firm's theory of the case

that Trent. knowing of Freund's organic brain damage.

orchestrated and manipulated Freund into stabbing Walker.

Duncan testified that. in his view. insanity was the

only viable and plausible defense available to Freund.

According to Duncan, the experts who testified on Freund's

behalf were "some of the best and well known in their field."

Additionally, the battery of psychiatric tests conducted after

Freund's suicide attempt provided documented proof that his

organic brain damage existed well before Walker's death.

Finally. Duncan pointed out that Freund confessed to

committing the stabbing to Foley at their first meeting and

made similar confessions four or five months later to both

his psychiatrist and Duncan.”’

7

According to Duncan, Freund never recanted his confession to

his lawyers or psychiatrist. During the four to five month period

App. 36

Duncan conceded that the State's physical evidence

(¢.g, the apartment, knife, handcuffs. gun, baseball bat,

steamer trunk and location of the body) inculpated Trent, not

Freund. He further conceded that the coroner did not

discover any magnesium sulfate (one of the drugs that

Freund injected into Walker) in Walker's body at the

autopsy, and that the police never found Freund's bloody

shirt or the doctor's bag that he brought to Trent's apartment.

When asked whether the State's three fact witnesses—Mills,

Angelilli and Daniell—lacked credibility because of their

admitted drug use and fear of Trent, Duncan testified that

even under rigorous examination at Trent's trial they would

not "back off what they claim they saw." This included

Angelilli's testimony that she saw Freund making stabbing

motions with Trent's knife in Walker's direction—testimony

that directly implicated Freund.

Duncan disagreed with Freund's lawyer's suggestion

that the law firm did not seek to shift the blame for the

murder to Trent. He argued that although Freund's plea of

insanity necessarily implied that Freund killed Walker. it was

premised on Trent's taking advantage of Freund's known

mental condition that rendered him a "robot" to Trent's

unlawful = commands. Duncan pointed to his

cross-examinations of Mills, Angelilli and Daniell. where he

sought to elicit facts about Trent's ability to control not only

l'reund. but also others.

Finally, when asked if Foley's statement during

closing argument that Trent might have committed the

murder hurt Freund's insanity defense, Duncan admitted that

he was shocked when Foley made the statement and that it

“sure didn't help" Freund's case. Duncan testified that he

later asked Foley why he made the statement. Foley

answered that he did it to "appease" Freund's mother.

following his initial confession to Foley, Freund was on a suicide watch

at the jail. Duncan stated that during this time, Freund would simply say

that he could not remember what had happened on the night of Walker's

death.

App. 37

3. Colton

After Freund presented Dick's and Duncan's

testimony, the State called Colton to the stand as its first

witness. Colton discussed the law firm's prior legal

representation of Trent, focusing on the 1983 diazepam

possession and aggravated assault charges. Colton

corroborated Dick's account of Trent's requested

investigation of the alleged assault victim. Colton

emphasized that Trent substituted Roth for the law firm in

May 1984 and asserted that Trent sought no further legal

advice from the law firm about any matter after that date.

Colton also corroborated Dick's account of Dick's

and Trent's contact with Colton following the stabbing.

Colton testified that he never told Dick that he was Trent's

lawyer. Rather. according to him. Colton "suggest{ed]

strenuously" that Dick not get involved with Trent and that if

Trent called Dick again, Dick should try to talk him into

surrendering. Colton further testified that he told Trent that

"his only alternative was to turn himself in. that [Colton]

didn't represent him and [Colton] did not have an

attorney-client relationship with him." Colton denied that he

discussed the facts of the murder with Trent. At most.

according to Colton, Trent may have said something to the

effect of "I didn't do it." to which Colton replied. "you'd

better turn yourself in." Colton also flatly denied the

allegations that Trent had raised at the severance hearing.

When asked about the relationship between the law

firm's representation of Trent and Freund, the State and

Colton engaged in the following dialogue:

Q Okay. Was the representation of John

Trent, your prior representation of him in any

way connected with the facts of the homicide?

A No.

App. 38

( Did the facts of those cases have any

bearing on the allegations of what had taken

place on July 24th at the time of this murder?

A I don't know what you mean.

Q I mean was there any connection brought in

to the court that somehow the murder was

related to him being charged with the

aggravated assault in 1983 or related to him

being charged with guns in 1983?

A No ma'am.

With regard to Mills. Colton admitted that he had

"consulted" her about the cocaine trafficking charge.

According to Colton. he discussed the possibility that she

would provide substantial assistance to the Palm Beach

County Sheriff's Office. He insisted that the meeting with

Mills was brief and that after he quoted her a fee. he never

saw her again in an official capacity.

Colton's testimony drew to a conclusion with the

State's last question on direct examination. Freund's lawyer

elected not to cross-examine Colton.

4. Assistant State Attorney

The prosecutor from Freund's trial also briefly

testified at the 3.850 hearing as the State's second and final

witness. The prosecutor recalled the letter that he received

from Foley on October 3, 1985. wherein Foley indicated that

the law firm believed it had "a unique. valid insanity defense

and ... a chance at getting a manslaughter jury verdict."

Also. in the prosecutor's opinion, the law firm vigorously

defended Freund at trial.

App. 39

» I:xpert Witness

The hearing ended with the rebuttal testimony of an

expert in criminal defense law. He opined that the law firm's

representation of Freund fell below the constitutional

standard of effective representation because it presented

conflicts of interest with the law firm's prior representations

of Trent and Mills. The State's cross-examination of Tarkoff

revealed that Tarkoff was not a board certified criminal

lawyer, had never discussed with the law firm the scope and

nature of its prior representation of Trent, and had never

talked to Trent.

6. Court's Order

In a written order, the court denied Freund's 3.850

motion. The court stated, in pertinent part:

From a consideration of the evidence

presented the Court finds that no conflict

existed at any time. Mr. Foley ... is accused

by [Freund] of having represented [Trent] at

the same time. The Court finds that allegation

to be unfounded and that at no time did Mr.

Foley represent ... Trent during the time that

he represented [Freund]. Additionally. Mr.

Foley's prior representation of ... Trent was in

matters unrelated to this case.

Florida's Fourth District Court of Appeal affirmed the circuit

court's judgment without opinion, and the Supreme Court of

llorida declined to exercise its appellate jurisdiction.

App. 40

B. Federal District Court

On April 16, 1993, Freund filed the instant petition

for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in

the United States District Court for the Southern District of

Florida.** Consistent with his 3.850 motion, Freund alleged

that the law firm's conflicts of interest denied Freund the

effective assistance of trial counsel. For the first time.

however, Freund alleged facts about Trent's aggravated

assault and diazepam possession charges.

A magistrate judge reviewed the record and issued a

report and recommendation. He stated, in pertinent part,

that: (1) "the record supports the [state] court's finding that

the law firm's representation of Trent ended prior to [its]

representation of [Freund]": (2) Freund "presented no

evidence establishing that the law firm ever simultaneously

represented both [Freund] and ... Mills": (3) Freund "failed

to show "inconsistent interests’ by failing to demonstrate that

the firm's prior representation of Trent or [Mills] was

substantially related to the firm's representation of [Freund]

or that the firm learned of relevant confidential information

from these alleged prior representations": and (4) the law

firm's adoption of the insanity defense did not evince an

actual conflict of interest stemming from Trent's allegations

against the law firm at the severance hearing because an

alternative defensive theory that "Trent ... inflicted the fatal

wounds" was "not realistic in view of the uncontradicted

testimony of the eyewitnesses."*? On November 1. 1993. the

28

Because Freund filed his petition prior to the effective date of

the Antiterrorism and Effective Death Penalty Act of 1996, the recent

amendments to Chapter 153 of United States Code's Title 28 do not apply

to this case. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068.

138 L.Ed.2d 481 (1997).

+”)

The magistrate judge also rejected Freund's claim that the law

firm's prior representation of Daniell concerning a pre-1988 traffic

violation created another actual conflict of interest. Freund abandons this

argument on appeal.

App. 41

district court overruled Freund's objections. adopted the

report and recommendation and denied Freund's petition.

Il. ISSUE

The encompassing issue that we discuss is whether

the district court erred in concluding that Freund was not

denied effective assistance of counsel because of the law

firm's conflicts of interests arising from: (1) its prior

representation of Trent; (2) its prior representation of Mills:

and (3) Trent's severance hearing testimony that two partners

of the law firm, Colton and Foley, engaged in embarrassing

and illegal conduct.

IV. DISCUSSION

The Sixth Amendment to the United States

Constitution, as incorporated through the Fourteenth

Amendment's Due Process Clause. guarantees that persons

accused of state crimes "shall enjoy the right ... to have the

Assistance of Counsel for [their] defense." U.S. Const.

amend. VI; Gideon v. Wainwright, 372 U.S. 335. 342-43.

83 S.Ct. 792. 9 L.Ed.2d 799 (1963). This right. of course.

includes the one presently at issue, the effective assistance of

irial counsel. Under the familiar test set forth in Strickland vy.

Washington, to establish that trial counsel ineffectively

assisted the defense, a habeas corpus petitioner proceeding

under 28 U.S.C. § 2254 must show that (1) the lawyer's

representation fell below an objective standard of

reasonableness that (2) prejudiced the defense. that is.

provided a reasonable probability that but for such deficient

performance. the verdict would have been different. 466

U.S. 668, 687-88. 104 S.Ct. 2052. 80 L.Ed.2d 674 (1984).

App. 42

A. Rules of Law

The crux of Freund's ineffective assistance claim is

that his trial lawyers, the law firm of Foley. Colton and

Duncan, P.A.. labored under conflicts of interest. The first

issue that brought this case en banc concerns the rules of law

that apply in conflict cases involving successive, as opposed

to simultaneous, representations.*” In Cuyler v. Sullivan, a

case involving simultaneous representations, the Supreme

Court held that "[i]n order to demonstrate a violation of his

Sixth Amendment rights, [the petitioner] must establish that

[1] an actual conflict of interest [2] adversely affected his

lawyer's performance." 446 U.S. 335, 350, 100 S.Ct. 1708.

64 L.Ed.2d 333 (1980). Although both Freund and the State

agree that the "actual conflict" prong of the Cuyler test

In his 3.850 motion and 2254 petition, Freund contended that

the law firm simultaneously represented both Freund and Trent. Both the

State court and district court, however, found that—as a matter of

historical fact—the law firm's representation of Trent terminated no later

than May 2. 1984, when Trent substituted Roth for the law firm to

represent him in the aggravated assault and diazepam possession

prosecutions. Additionally. the record is not in dispute that Freund

became the law firm's client soon after the stabbing in late July 1984.

Moreover, implicit in its order, the state court found credible Colton's

live testimony at the 3.850 hearing that although Trent called him after

the murder, they did not discuss the facts surrounding it. See generally

Cave v. Singletary, 971 F.2d 1513, 1516 (11th Cir.1992) ("[S]tate court

findings of fact can be inferred from its opinion and the record. "). On

appeal, Freund advances no serious challenge to these express and

implied findings. Thus, we presume correct the finding that the law

firm's representation of Trent terminated prior to the commencement of

the law firm's representation of Freund. See 28 U.S.C. § 2254(d) (1996)

(state court findings of historical fact made after evidentiary hearing are

presumed correct); Afarshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.

843. 74 L.Ed.2d 646 (1983) ("Title 28 USC N 2254(d) gives federal

habeas courts no license to redetermine credibility of witnesses whose

demeanor has been observed by the state trial court, but not by them.");

accord Freund, 117 F.3d at 1570 n. 61.

App. 43

applies in a successive representation case, they dispute what

means are available to a petitioner to prove it. Freund

contends that under this court's decision in Smith v. White, a

petitioner may establish an actual conflict of interest through

one of three means: (1) pointing to facts and circumstances

that show that the lawyer's representation of the former client

related substantially to the lawyer's representation of

petitioner ("substantial relatedness"): (2) advancing

evidence that the former client actually revealed confidential

information to the lawyer during that prior representation

("confidential information"); or (3) relying on "other proof

of inconsistent interests." 815 F.2d 1401, 1406 (11th

Cir.1987), cert. denied, 484 U.S. 863. 108 S.Ct. 181. 98

L..bed.2d 133 (1987). The State, also citing Smith, asserts that

only the first two means are available to the petitioner and

that they must be employed in the conjunctive (that ts,

petitioner must prove both substantial relatedness and

confidential information). The State argues that courts

should forgo a showing of confidential information only in

pretrial disqualification proceedings where preventing use of

privileged discussions remains essential.

We hold and reaffirm that Smith articulates this

circuit's test for proving an “actual conflict" in the successive

representation context. 815 F.2d at 1405-06. We. however.

disagree somewhat with each party's interpretation of Smith.

Rather. we interpret Smith to mean the following. An "actual

conflict" of interest occurs when a lawyer has "inconsistent

interests." Smith, 815 F.2d at 1405. In order to prove that an

"actual conflict" hindered petitioner's lawyer's performance.

petitioner "must make a factual showing of inconsistent

interests” or point to "specific instances in the record” to

suggest an actual impairment of his or her interests. Smit,

815 F.2d at 1404: Oliver v. Wainwright, 782 F.2d 1521.

1524-25 (11th Cir.) (emphasis and internal quotation marks

omitted), cert. denied, 479 U.S. 914, 107 S.Ct. 313. 93

L.E-d.2d 287 (1986). "[G]Jenerally, it is more difficult to

prove that successive representation caused an actual conflict

App. 44

of interest than that simultaneous representation did so."

Smith, 815 F.2d at 1405. At minimum. petitioner must

"show that cither (1) counsel's earlier representation of the

Witness Was substantially and particularly related to counsel's

later representation of [petitioner], or (2) counsel actually

learned particular confidential information during the prior

representation of the witness that was relevant to

[petitioner's] later case." Smith, 815 F.2d at 1405 (emphasis

added).*' Even proof of both substantial relatedness and

confidential information, however. may not necessarily be

enough to demonstrate "inconsistent interests" in a

successive representation case. See Smith, 815 F.2d at 1406.

The situation may call for "other proof of inconsistent

interests." 815 F.2d at 1406. Overall, the “actual conflict"

inquiry is faci-specific, consistent with the petitioner's

ultimate burden "to prove that his conviction was

unconstitutional." Smith, 815 F.2d at 1406.

Contrary to the State's position, we find no

compelling reason to break with stare decisis in requiring as

a necessary condition to proving an "actual conflict" the

actual revelation of confidential information during the prior

representation. The rule of law in this circuit is (and will

continue to be) that "once the former client [petitioner]

proves that the subject matters of the present and prior

representations are “substantially related.’ the court. will

irrebutably presume that relevant confidential information

was disclosed during the former period of representation."

Duncan v. Merrill Lynch, Pierce, Fenner & Smith. Inc., 646

F.2d 1020. 1028 (Sth Cir.1981). cert. denied, 454 U.S. 895.

102 S.Ct. 394, 70 L.Ed.2d 211 (1981). It is true that this rule

has its origin in pretrial proceedings concerning motions to

disqualify lawyers, as opposed to post-conviction

7 Although Smith speaks of a “witness,” we find no reason not to

extend its rule of law to non-testifying, separately-tried codefendants

(vz, Trent).

App. 45

proceedings concerning Sixth Amendment violations. £.g.,

Duncan, 646 F.2d at 1033 (vacating district court's order

vranting defendant's motion to disqualify plaintiffs lawyer

for want of sufficient evidence that lawyer's current

representation of plaintiff substantially related to the lawyer's

former representation of defendant). Yet, the rationale

behind the rule applies to both types of proceedings. The

reason for this presumption is that it is not practical or fair to

require a subsequent client (e.g, Freund) to prove what

specific facts the former client (e.g, Trent and Mills)

disclosed to the lawyer during the prior representation.

Moreover, standards of professionalism often prevent the

lawyer from disclosing such information without the former

client's consent.” To avoid these complications, upon a

showing of substantial relatedness, we presume that the

former client (¢.g., Trent and Mills) divulged to the lawyer

(¢.¢, Colton) all of his or her confidences relevant to the

subject of the representation. The State fails to reconcile its

position with these practical difficulties of proof that are

equally present in the post-conviction context. — See

Appellee's En Banc Answer Brief at 8 ("[T]he presumption

serves no useful purpose in the context of the instant case

since representation of the new client, Le. Freund had

already occurred when the allegation of conflict arose.").

Nor do we accept the State's view that Cuy/er 's

"adverse effect" prong should not apply in a successive

representation case. It points to the Fifth Circuit's decision in

Beets v. Scott, 65 F.3d 1258 (Sth Cir.1995), cert. denied, 517

Of course, former clients may waive rights to continuing

confidentiality if they testify about the confidences (e.g, Trent's

severance hearing testimony, and Mills's deposition testimony that Roth

conducted in Duncan's presence). See generally Kraft, Inc. v. Alton Box

Board Co. (In re Corrugated Container Antitrust Litigation), 659 F.2d

1341, 1347 (Sth Cir.1981) ("The presumption avoids compelling the

former client to prove the very things that he seeks to keep

confidential.").

App. 46

U.S. 1157, 116 S.Ct. 1547, 134 L.Ed.2d 650 (1996), and

asserts that a Strickland “prejudice” analysis (that is, a

reasonable probability that the verdict would have been

different but for the conflict) is more appropriate than Cuy/ler

's more lax “adverse effect" test (that is, counsel refrained

from pursuing a reasonable, alternative defense strategy

because of an actual conflict). We, however. decline to

consider the State's argument. First, the State did not raise

the argument before the district court and the panel, nor did

it serve as a basis for the State's Suggestion for rehearing en

hance. Second, our cases have required a showing of adverse

effect in the successive representation context. Eg.

Lighthourne v. Dugger, 829 F.2d 1012. 1024 (11th Cir.1987)

(finding "no adverse effect upon petitioner's representation"

even though petitioner's lawyer, an assistant public defender,

had to cross-examine "a client formerly represented by the

same public defender's office"), cert, denied. 488 U.S. 934.

109 S.Ct. 329, 102 L.Fd.2d 346 (1988). Finally, a resolution

of this contention is not essential to this case because even

under the more lax Cuyler standard, we find no adverse

effect in this case, as we explain in section IV, part C,

subsection 2 of the opinion.

Accordingly, with regard to "adverse effect." the rule

of law in this circuit is (and continues to be) the same rule

that the panel emploved:

To prove adverse effect, a habeas petitioner

must satisfy three elements. First. he must

point to "some plausible alternative defense

Strategy or tactic [that] might have been

pursued." United States v. Fahey, 769 F.2d

829. 836 (Ist Cir.1985): see also Porter [v.

Wainwright, 805 F.2d 930, 939-40 (11th

Cir.1986), cert. denied, 482 U.S. 918, 107

S.Ct. 3195, 96 L.Ed.2d 682 (1987) ]. Second,

he must demonstrate that the alternative

strategy or tactic was reasonable under the

App. 47

facts. Because prejudice is presumed, see

Strickland, 466 U.S. at 692, 104 S.Ct. 2052,

the petitioner "need not show that the defense

would necessarily have been successful if [the

alternative strategy or tactic] had been used,"

rather he only need prove that the alternative

"possessed sufficient substance to be a viable

alternative." Fahey, 769 F.2d at 836. Finally,

he must show some link between the actual

conflict and the decision to forgo the

alternative strategy of defense. In other

words, "he must establish that the alternative

defense was inherently in conflict with or not

undertaken due to the attorney's other

loyalties or interests." [/Fahey, 769 F.2d at

836].

Freund, 117 F.3d at 1579-80. It bears repeating. however,

that "[pJrejudice is presumed only if the defendant

demonstrates that ... "an actual conflict of interest adversely

affected his lawyer's performance.’ " Strickland, 466 U.S. at

692. 104 S.Ct. 2052 (quoting Curler, 446 U.S. at 358, 100

S.Ct. 1708).

B. Standard of Review

The second principal issue that brought this case en

hanc concerns the standard of review. Specifically. we

directed the parties to brief the following question:

Is a lower court's determination that a law

firm's prior representation in a matter is or is

not "substantially and particularly related."

see Smith v. White, (815 F.2d at 1405]. to a

later representation for purposes of evaluating

an ineffective-assistance-of-counsel claim

based on a conflict of interest: (a) a question

App. 48

of fact; (b) a question of law; (c) a mixed

question of law and fact?

In this case, both lower courts have presented us with

relatedness determinations. The state court said that the law

firm's "prior representation of Mr. Trent was in matters

unrelated to" its representation of Freund. Likewise. the

district court decided that the law firm's representation of

Freund not only was not "substantially and particularly

related” to the law firm's prior representation of Trent on his

aggravated assault and diazepam possession charges, but

also beared no "correlation between the firm's alleged

representation of ... Mills on a prior cocaine charge[.]"

Our resolution of this issue will dictate whether we

defer to these determinations or analyze their underlying

arguments anew, Unquestionably, state court findings of

fact are subject to the presumption of correctness, and

similar federal district court findings are deemed correct

unless clearly erroneous. Collier v. Turpin, 155 F.3d 1277,

1289 - 90 (11th Cir.1998). Questions of law and mixed

questions of law and fact, on the other hand. mandate de

novo review. Buenoano vy. Singletary, 74 F.3d 1078, 1083

(11th Cir.) cert. denied, --- U.S. ----. 117 S.Ct. 520, 136

L.Eed.2d 408 (1996). Not surprising. then, Freund contends

that relatedness is a pure question of law. The State. in

contrast, asserts that relatedness is a pure question of fact.

Upon close scrutiny, we hold that the issue of

Whether a lawyer's prior representation is substantially and

particularly related to a subsequent representation is a mixed

question of law and fact. To be sure, the relatedness inquiry

involves both legal and factual components. Reference to a

law book alone cannot resolve the issue. Historical facts—

such as the nature and scope of each representation and what

the lawyer did for each client—are necessary predicates to

linking the two representations. See Thomas vy. Zant, 697

2d 977, 980 (11th Cir.1983) ("[S]pecific historical facts

found by a state habeas court (such as what an attorney

App. 49

actually did for his client ), to which a standard of law is

applied in deciding a mixed question of fact and law, ... merit

section 2254(d)'s presumption of correctness in a federal

habeas proceeding[.].") (internal quotation marks and

citation omitted; emphasis added). Indeed. we have

repeatedly instructed that petitioners "must make a factual

showing of inconsistent interests" to prove the existence of

an actual conflict. United States v. Mers, 701 F.2d 1321.

1328 (11th Cir.) (emphasis added), cert. denied, 464 U.S.

991, 104 S.Ct. 482, 78 L.Ed.2d 679 (1983): see also Burden

v. Zant, 24 F.3d 1298, 1305 (11th Cir.1994): Porter v.

Singletary, 14 F.3d 554. 560-61 (11th Cir.), cert. denied, 513

U.S. 1009, 115 S.Ct. 532, 130 L.Ed.2d 435 (1994): Smith,

815 F.2d at 1404; United States v. Romero, 780 F.2d 981.

986 (11th Cir.1986): Barham v. United States, 724 F.2d

1529, 1532 (11th Cir.), cert. denied, 467 U.S. 1230. 104

S.Ct. 2687, 81 L.Ed.2d 882 (1984): and United States v.

Carter, 721 F.2d 1514. 1536 (11th Cir.). cert. denied, 469

U.S. 819, 105 S.Ct. 89, 83 L.Ed.2d 36 (1984).

Our holding also fits squarely within the Supreme

Court's growing list of issues that involve mixed questions of

law and fact, that is. applications of law to historical fact. In

Sumner v. Mata, the Court held that "the ultimate question as

to the constitutionality of the pretrial identification

procedures used in [a] case is a mixed question of law and

fact{.]" but "the questions of fact that underlie this ultimate

conclusion are governed by the statutory presumption|.]"

455 U.S. 591, 597, 102 S.Ct. 1303. 71 L.Ed.2d 480 (1982).

Similarly, in Afi/ler v. Fenton, the Court stated that the

"ultimate constitutional question" of the admissibility of a

confession is a "mixed question of fact and law" subject to

plenary federal review. 474 U.S. 104. 112, 106 S.Ct. 445. 88

L.Ed.2d 405 (1985). And. more recently, in Thompson vy.

Keohane, the Court found that "the ultimate "in custody'

determination for Afiranda purposes" also involved mixed

questions of law and fact. 516 U.S. 99, 112. 116 S.Ct. 457,

133 L.Ed.2d 383 (1995).

App. 50

In Thompson, the Court acknowledged that "Tijn

regard to § 2254(d). as in other contexts. the proper

characterization of a question as one of fact or law is

sometimes slippery." 516 U.S. at 110-11, 116 S.Ct. 457

(footnote — omitted). Essentially, though, the Court

summarized its precedents as limiting the presumption of

correctness to "basic, primary, or historical facts: facts in the

sense of a recital of external events and the credibility of

their narrators.". Thompson, 516 U.S. at 110, 116 S.Ct. 457

(internal quotation marks and citations omitted). The Court

also pointed to limited instances where questions of fact can

go beyond the purely historical ones touching upon "what

happened." labeling them questions that “depend[ ] heavily

on the trial court's appraisal of witness credibility and

demeanor." Thompson, 516 U.S. at 111. 116 S.Ct. 457

(citing the issues of competency to stand trial and juror

impartiality as examples of questions of fact that depend

upon the state court's credibility assessment): accord

Provenzano v. Singletary, 148 F.3d 1327. 1330 (11th

Cir.1998) ("The question of whether an attorney's actions

Were actually the product of a tactical or strategic decision is

an issue of fact, and a state court's decision concerning that

issue is presumptively correct.").

Plainly, linking the subject matters of prior and

subsequent representations does not lend itself to a "basic.

primary or historical" factual review. The State neither

advances. nor do we find. anything special about the

relationship between a prior and subsequent representation

that would necessitate deference to the state court's

credibility assessment. To the contrary, once the petitioner

paints the factual picture of the two representations and what

the lawyer did in each, a relatively dry and common sense

evaluation ensues to determine whether they are sufficiently

linked. Perhaps that is why our cases suggest that all the

elements of an ineffective assistance of counsel claim

premised on conflicts of interest involve mixed questions of

law and fact. E.g., Porter, 14 F.3d at 561 ("Questions

App. 51

involving conflicts of interest are mixed determinations of

law and fact subject to de novo review."); Oliver, 782 F.2d

at 1524 ("[Q]uestions involving conflicts of interest[.j"

including the “ultimate issue" of whether the facts "support

the conclusion that an actual conflict of interest existed]. |"

are "mixed determinations of law and fact not entitled to a

presumption of correctness under 28 U.S.C. § 2254(d)

(1982)."). In short, we find every reason to treat equally the

ultimate conclusion of substantial relatedness, one of the

potentially dispositive elements of a conflict claim stemming

from successive representations. = The historical facts

underlying that conclusion, however, continue to be subject

to the presumption of correctness. To hold otherwise would

violate well-established notions of comity and federalism.

See generally Mason v. Balcom, 531 ¥.2d 717. 721) (Sth

Cir.1976) ("[CJonsiderations of comity do not. obligate

federal courts in habeas corpus cases to defer to. state

determinations on matters of federal law. The obligation of

the federal judge is the opposite: to apply the proper federal

constitutional standards based on the underlying facts|.]")

(citation omitted).

. Merits

Finally, we turn to the merits of Freund's claim-——the

third issue that brought this case en banc. Under de novo

review, We eXamine in turn the three alleged sources of the

law firm's conflicts of interest.

I. Actual Conflict

1. Prior Representation of Trent

-reund's main contention is that the law firm's prior

representation of Trent on aggravated assault and diazepam

possession charges presented inconsistent interests with its

representation of Freund concerning the stabbing death of

App. 52

Walker. Specifically, Freund claims that contrary to the

district court's judgment, he established — that these

representations were substantially related. We, however, are

not convinced.

First, Freund failed to establish a record at the 3.850

hearing concerning the scope and nature of the law firm's

prior representation of Trent. See generally Duncan, 646

F.2d at 1031] (stating that "although Merrill Lynch ha[d]

repeatedly asserted that the present) and former

representations — [were] substantially related, _ it ha[d]

demonstrated no more than a surface and superficial

connection between — the matters") (emphasis added).

Freund's lawyer never questioned Colton—the law firm

attorney who initially represented Trent regarding the drug

possession and aggravated assault charges—at the 3.850

hearing. Freund's lawyer thus failed to elicit any information

from the person most likely to know the scope and nature of

the prior representation? The State, however, did question

Colton about his prior representation of Trent. He

unequivocally testified that his representation of Trent was

hot in any way connected to the facts of the murder. (Cf

Barham vy. United States, 724 F.2d 1529, 1532 (11th Cir.)

(affirming the district. court's conclusion that no actual

conflict existed, noting that the lawyer testified "that his

representation of [former client] "had not the remotest

connection’ with [defendant's] trial"), cert denied, 467 U.S.

1230, 104 S.Ct. 2687, 81 L.Ed.2d 88? (1984). Although

lreund's counsel questioned Duncan, Colton's partner, he

neglected to ask Duncan any questions about the scope of the

law firm's prior representation of Trent On Matters other than

Of course, any conflict of interest attributable to Colton imputes

equally to “his current partners and employees." Cox v. American Cast

Iron Pipe Co., 847 F.2d 725, 729 (11th Cir.1988); see also Rule

Regulating Fla. Bar 4-1.10(a) ("While lawyers are associated in a firm,

none of them shall knowingly represent a client when any | of them

practicing alone would be prohibited from doing sof.}").

App. 53

Duncan's involvement with the civil forfeiture proceeding

that Freund does not claim to be substantially related to the

murder.

The only substantive testimony that Freund

presented regarding the scope and nature of the law firm's

prior representation of Trent consisted of the testimony of

Dick and Freund's rebutial expert witness. Dick, a part-time

private investigator, testified that he never completed the

only work that Trent (and possibly Colton) requested, that 1s,

investigate the background of Vana, the alleged victim of

Trent's aggravated assault charge. Dick also testified that

neither Colton nor Trent requested that he do = any

investigative work with respect to Trent's drug possession

charge. With regard to Freund's expert witness in the area of

criminal law, the State elicited during its cross-examination

that he was not a board certified criminal lawyer. that he had

never talked to anyone from the law firm about the scope and

nature of their prior representation of Trent, and that he had

never talked to Trent. The district court did not err in

concluding that Freund "failed to ... demonstrate that the

firm's prior representation of Trent ... was substantially

related to the firm's representation of [Freund].""

" Permitting "expert" testimony to establish ineffective assistance

is inconsistent with our recognition that the issue involved is a mixed

question of law and fact that the court decides. We recently explained as

much in Provenzano v. Singletary, a capital case in which the petitioner

had offered the affidavit of an experienced criminal defense attorney (the

Public Defender of Orange County, Florida) in an attempt to establish

that the failure of trial counsel to seek a change of venue amounted to

ineffective assistance of counsel. 148 F.3d 1327, 1331-32 (11th

Cir.1998). In discussing why that affidavit was not enough to entitle the

petitioner to an evidentiary hearing on ineffective assistance, we stated:

There is another more fundamental reason why

Provenzano is not entitled to an evidentiary hearing on

the reasonableness of his counsel's decision to forego a

change of venue, regardless of any affidavit he may

have proffered. Our Jackson, Horton, and Bundy

decisions establish that the reasonableness of a

App. 54

ven if we consider the allegations contained in

lreund's petition to the district court—-allegations that

Freund clearly did not attempt to prove at the 3.850

hearing—they do not support the conclusion that lreund's

counsel labored under an actual conflict. In 1983, Trent

allegedly brandished a gun on a public street and threatened

to kill two persons. The alleged facts were that Trent was

speeding recklessly through a residential area and screeched

toa halt. Vana came out of her apartment fearing that Trent

had struck a neighborhood child. She asked Trent why he

Was driving like that. Trent told her to mind her own

business or she would get hurt. When Vana's husband

approached, Trent pulled out a handgun from a holster in his

Waistband and asked her if she "wanted this one or the

other," motioning to a gun that he supposedly had in his back

Waistband area. A few days later, when the officers arrested

Trent, they discovered diazepam in Trent's car.

It is clear from the foregoing description of Trent's

arrest that the aggravated assault charge did not involve

l'reund, Walker or any of the other individuals who figured

strategic choice is a question of law to be decided by

the court, not a matter subject to factual inquiry and

evidentiary proof. Accordingly, it would not matter if

a petitioner could assemble affidavits from a dozen

attorneys swearing that the strategy used at his trial was

unreasonable. The question is not one to be decided by

plebiscite, by affidavits, by deposition, or by live

testimony. It is a question of law to be decided by state

courts, by the district court, and by this Court, each in

its Own turn.

Provenzano, 148 F.3d at 1332. Likewise. in the present case, whether a

law firm rendered ineffective assistance of counsel because of a conflict

of interest, under a given set of facts, is "a question to be decided by the

State courts, by the district court, and by this Court, each in its own turn."

Provenzano, 148 F.3d at 1332. Thus, it is not a matter subject to expert

testimony.

App. 55

prominently in the Walker murder investigation, and Freund

does not allege that he knew the Vanas or the other witnesses

involved in the aggravated assault complaint. Similarly, the

diazepam possession charge, and ensuing — forfeiture

proceeding, did not actually involve anyone connected to the

Walker murder case, except Trent. Therefore, any

determination of a "substantial relationship" between the law

firm's prior representation of Trent and subsequent

representation of Freund can only be based on the nature of

the offenses involved in the representations, that is, the fact

that diazepam and = guns’ were involved in both

representations.

Such vague similarities, however, do not establish a

substantial relationship between a prior and subsequent

representation—especially where, as here, myriad factors

differentiate the subject matter of each representation. Araft,

659 F.2d at 1346 (substantial relatedness exists when "the

present action and the past representation concern the very

same subject matter") (emphasis added); United States v.

Martinez, 630 F.2d 361, 362 (Sth Cir.1980) (substantial

relatedness existed because prior representation concerned

"same [criminal] transactions" and "same events" at issue in

defendant's case), cert. denied, 450 U.S, 922, 101 S.Ct. 1373,

67 L.Ed.2d 351 (1981). The aggravated assault occurred in a

completely different setting—on a city street rather than in

Trent's apartment. Although Trent shot at Walker before he

died, the bullet neither hit Walker nor caused his death.

Undisputably, the cause of Walker's death was stabbing.

Furthermore, no evidence exists in the record that the gun

was the same one that Trent used in the aggravated assault

case. See Appellants’ En Banc Reply Letter at 26 (conceding

"the lack of hard evidence that both cases involved the same

gun"). It was equally uncontested that Trent owned several

guns and waved them around as a symbol of his authority.

The connection between Trent's diazepam possession

charge and the stabbing was equally as tenuous. Although

the coroner found a derivative of diazepam in Walker's body,

App. 56

the drug did not kill Walker. Again, Walker died from stab

wounds. Moreover, it was undisputed that Trent was the

source of the diazepam that was injected into Walker's body

on the night of the murder. No one alleged that Freund was

the one who brought it to Trent's apartment. Likewise, the

fact witnesses testified that Freund, Trent and Daniell all

took turns injecting Walker with the diazepam and vodka

mixture. Therefore, regardless of Freund's failure to meet his

burden of proof, the district court did not err in concluding

that "Trent's prior charges of possession of diazepam and

aggravated assault [were] not "substantially and particularly’

related to [Freund]'s murder trial."

Finally, the district court correctly found that Freund

failed to demonstrate that the law firm "learned of relevant

confidential information from" Trent. As we explained in

section IV, part A, of this opinion, we cannot presume

confidential information unless Freund proved substantial

relatedness, which he did not. Nor did Freund elicit any

independent proof of confidential information. The only

arguably relevant information that the law firm knew about

Trent, his arrest for and charges of possession of diazepam

and aggravated assault, were matters of public record. Under

the Rules Regulating the Florida Bar, the law firm's

knowledge of those charges cannot be the basis of a conflict

of interest:

A lawyer who has fornierly represented a

client in a matter shall not thereafter ... use

information relating to the representation to

the disadvantage of the former client except

as rule 4-1.6 [confidentiality] would permit

with respect to a client’ or when the

information has become generally known.

Rule Regulating Fla. Bar 4-1.9(b). In addition. the comment

to rule 4-1.9 provides that:

App. 57

Information acquired by the lawyer in the

course of representing a client may not

subsequently be used by the lawyer to the

disadvantage of the client. //owever, the fact

that a lawyer has once served a client does

not preclude the lawyer from using generally

known information about that client when

later representing another client.

Rule Regulating Fla. Bar 4-1.9 cmt. (emphasis added). Just

as "generally known" was any disparaging information about

Trent that Trent himself chose to divulge at the severance

hearing.

At best, the law firm faced a potential conflict of

interest before the court severed Trent's and Freund's trials.

See United States v. McCutcheon, 86 F.3d 187, 188-89 (11th

Cir.1996) (affirming the district court's disqualification of

defendant's lawyer because his prior representation of the

codefendant who had "confided to [the lawyer] certain

personal information concerning his background" ethically

prevented cross-examination in joint trial). Consistent with

the Bar Opinion, however. the court's severance order and

the prosecutor's decision not to call Trent to testify removed

the possibility that the law firm would cross-examine its

former client. Thus, at no time did the law firm's

hypothetical conflict of interest rise to the level of an actual

conflict of interest. See Cuyler, 446 U.S. at 350. 100 S.Ct.

1708 ("[T]he possibility of conflict is insufficient to impugn

a criminal conviction.").

il. Prior Representation of Mills

Freund also contends that the law firm labored under

an actual conflict of interest arising from Colton's prior

consultation with Mills about the facts of a cocaine charge.”

ch , , — ‘ — ,

We assume, without deciding, that this brief consultation

constituted a "representation" for purposes of a conflict of interest.

App. 58

Again, Freund's efforts at the 3.850 hearing to develop the

historical facts surrounding Colton's consultation with Mills

were lacking. He never questioned Colton, the witness who

could provide the most relevant information (since he did not

subpoena Mills to testify). The State elicited any and all

testimony about the law firm's prior representation of Mills.

In any event. from Freund's trial, we know that in

early 1984, an undercover police officer arrested Mills after

she attempted to sell him a kilogram of cocaine. Duncan

himself elicited this information on cross-examination of

Mills. See supra note 24. In addition, the 3.850 hearing

provided Colton's admission that he had "consulted" with

Mills about the cocaine trafficking charge. They also

discussed the possibility that she would provide substantial

assistance to the Palm Beach County Sheriff's Office. He

insisted that the meeting with Mills was brief and that after

he quoted her a fee. he never saw her again in an official

capacity.

It is true that "[a]n attorney who cross-examines a

former client inherently encounters divided loyalty."

Lighthourne, 829 F.2d at 1023. "[I]n a successive

representation case." however, "mere proof that a criminal

defendant's counsel previously represented a witness is

insufficient to establish "inconsistent interests.’ "" Smith, 815

F.2d at 1405. Rather. the petitioner must prove inconsistent

interest under the framework that we reaffirmed in section

IV. part A. of this opinion. Thus. to show an actual conflict

stemming from the law firm's prior representation of Mills.

l'reund—at the very least—needed to prove either substantial

relatedness or the actual revelation of confidential

information.

Freund established neither. As with Trent. nothing

more than vague similarities linked the representations of

Mills and Freund. Even if Mills had admitted to Colton that

she trafficked a kilogram of cocaine to an undercover officer.

that information had no bearing on Freund's case. Mills

admitted on the stand that she had used cocaine in the past

App. 59

and on the night of the murder, and Trent's referring her to

the law firm ts inconsequential, [tis undisputed that Colton

did not do any work for Mills other than "consult" her. Thus,

any additional bias on Mills's part toward Trent that Freund

claims his lawyers were aware of was, at best, nominally

probative.

Regarding confidential information, Mills waived her

rights when she testified to everything that she had told

Colton in a deposition at Roth's direction and in Duncan's

presence. Therefore, even if Mills had divulged relevant

confidential information to Colton—a showing that Freund

made litth to no effort to advance —the confidential nature

of it ceased to exist when she disclosed it to a third party

prior to trial, At the time that Duncan cross-examined Mills,

his law firm's prior representation of her presented no more

than a hypothetical conflict of interest. Accordingly, the

district court did not err in concluding that Freund "failed to

establish any correlation between the firm's alleged

representation of ... Mills on a prior cocaine charge ... and

[its] representation of [Freund ]."

iit. Trent's Allegations

Lastly, Freund points to Trent's allegations at the

pretrial severance hearing of embarrassing and illegal

conduct against members of the law firm as a source of an

actual conflict of interest. In Freund's view, it was in the law

firm's own best interest not to antagonize Trent for fear that

he would repeat the allegations again. Freund's argument,

however, cannot stand. Concerning Trent's allegations of

illicit activities on the part of the lawyers, even Freund

concedes that the damage was done. See Appellants’ Initial

Brief at 39 ("[O]nce Trent testified at the pretrial [severance |

hearing, the damage was done|.]"). | Trent) made the

allegations of the lawyers’ condoning drug use and

participating in prostitution parties with him in open court, at

a hearing that received a significant amount of media

App. 60

attention, And, in front of the media. Colton was able to

deny “each and every accusation .... unequivocably and

totally." ° Accordingly, Trent's allegations—that Colton

denied under oath and Freund did not reiterate at the 3.850

evidentiary hearing--did not cause an actual conflict

between the law firm's and Freund's interests.

4 Adverse Effect

ven if any of the alleged conflicts of interest rose to

the level of an actual conflict, we fail to find any adverse

we . 17

effect flowing from them.

\. Failure to Shift the Blame to Trent

l'reund contends that but for the law firm's allegiance

to Trent because of its prior and extensive representation of

him and Trent's public allegations of embarrassing and illicit

conduct on the part of Colton and Foley, it would have

pursued a blame-shifling defense that Trent, as opposed to

Freund, actually stabbed Walker to death. Freund points to

Foley's closing argument where he "wondered whether Trent

did it" as evidence that even the law firm realized the

superiority of this defense over insanity. The State responds

that in light of the undisputed testimony of all three fact

Additionally, the truth of Trent's allegations was irrelevant to

the fact-finding necessary to the charge of murder. Where, as here, the

lawyer is not a fact witness, the lawyer's out-of-court conduct is never

pertinent to the crime with which the client is charged. See generally Fla.

Stat. $$ 90.401, 90.402 (1997).

Although we have already found that no actual conflict existed,

we feel compelled to address the adverse effect prong because our cases

have sometimes discussed, in the context of actual conflict, issues

(namely, blame-shifting) that are more appropriately analyzed in the

contest of adverse effect. See, e.g, Romero, 780 F.2d at 986.

Witnesses that Freund stabbed Walker to death, the law firm

pursued the only viable theory of the case available to it. It

further points out that Freund's unique insanity defense, that

is, that Trent knowingly took advantage of Freund's organic

brain damage and manipulated him like a robot, shifted the

blame to Trent somewhat——refuting any suggestion that the

alleged conflicts of interest motivated the law firm's strategy.

We agree with the State. It is true that "a strategy of

shifting blame to one's codefendant| | is a legitimate and

often effective defense strategy[.]" Avers, 701 F.2d at 1330.

In this case, however, a wholesale shifting of the blame to

Trent was not a plausible defensive "option realistically

available to trial counsel[,]" regardless of the law firm's prior

dealings with Trent. Carter, 721 F.2d at 1537 (internal

quotation marks omitted and emphasis added); 9 accord

Freund, 117 F.3d at 1580 (alternative strategy must be

"reasonable under the facts" and "possess| | sufficient

substance to be a viable alternative"). Duncan testified at the

3.850 evidentiary hearing that Freund admitted to him that

he stabbed Walker, confessed to committing the stabbing to

Foley at their first meeting at the law firm's offices, and later

told his psychiatrist that he stabbed Walker because Trent

told him to do it. Freund did not elicit testimony from

Dunean that either he or Foley had any factual basis to doubt

Freund's confessions.*®

Freund correctly points out that all of the State's

physical evidence—that is. the apartment. bloody knife.

steamer trunk that contained Walker's body, sledgehammer,

handcuffs, duct tape, guns, dented baseball bat, blood-soaked

towels, dining room chair with a bullet lodged in it, van with

\K ’ . , ‘ . . ‘ ,

We note that Freund did not point to Stob's trial testimony that

during his visit to the jail Freund denied killing Walker as evidence that

the law firm should have doubted his confession. Indeed, the State called

Stob to testify in its rebuttal case (probably to show consciousness of

guilt), indicating just the opposite, that is, that the law firm tactically

determined that Stob lacked credibility.

App. 62

Trent's and Fullerton's fingerprints, syringes, bottles of

diazepam, empty capsules of magnesium sulfate, and liquor

bottles—either belonged to or was found on property of

Trent. Physical evidence, however, is only as persuasive as

the witnesses who authenticate and tell the story behind it.

At Freund's trial, and from the start’ of the police's

investigation, all three of the State's principal fact

Witnesses—Mills, Angelilli and Daniell—testified against

Freund. They all testified that Freund was present at Trent's

apartment the night of the murder and that, at Trent's

direction, he injected Walker first with magnesium sulfate,

then with mixtures of vodka and diazepam, and finally with

air, Angelilli testified that Freund make stabbing motions in

the direction of Walker's body—testimony that directly

implicated Freund. —Corroborating Angelilli's testimony,

Daniell stated that he saw Freund pick up Trent's knife and

approach Walker. And, all three witnesses testified that

Freund was alone in the main room with Walker for a short

time, and that afterward he came into the bedroom with

blood on his shirt and said, "It's over."

Attempting to get Mills, Angelilli and Daniell to

change their implication of Freund on cross-examination

would have proved fruitless. Duncan had observed the

Witnesses’ testimonies during Trent's trial, and tactically

determined that their stories would survive rigorous

cross-examination, In Duncan's professional view, these

Witnesses would simply “not back off of their testimony."

To be sure, Freund points to no evidence that Trent—if the

law firm had called him to testify—would have exculpated

him, even though he had pleaded guilty to second-degree

murder before Freund's trial commenced. See Carter, 721

h.2d at 1537 (Defendant "points to no evidence that a

codefendant could have exculpated him."). That Trent may

have been more motivated than Freund to kill Walker is

inconsequential. See Oliver, 782 F.2d at 1525 (blame

shifting was not realistic because although codefendant had a

motive to kill the victim, no witness saw him holding the

App. 63

Fe ae, ee ie ee alae ee ne ee

Knife or could corroborate fis opportunity to do so). Simply

put, no fact witness—ineluding Freund himself—could

corroborate Freund's innocence.

Additionally, we observe that in light of Freund's

contessions to Foley, Duncan and his psychiatrist, the law

firm's lawyers could have been disbarred if they had pursued

a complete blame-shifting defense. Although it would

certainly be ethical to argue reasonable doubt—and put the

State to its burden of proof—it would not be ethical to

affirmatively point the finger at someone else. See R.

Regulating Fla. Bar 4-3.3(a)(1). (4): (c) ("A lawyer shall not

knowingly: (1) Make a false statement of material fact ... to

a tribunal: ... (4) Offer evidence that the lawyer knows to be

false[:] .... (c) A lawyer may refuse to offer evidence that the

lawyer reasonably believes is fa/se.") (quoted in The Florida

Bar Re Rules Regulating the Florida Bar, 494 So.2d 977.

1057-58 (Fla. 1986)). “Of course, the Sixth Amendment does

not require that counsel do what is impossible or unethical.

If there is no bona fide defense to the charge, counsel cannot

create one and may disserve the interests of his client by

attempting a useless charade." United States v. Cronic, 466

U.S. 648. 656 n. 19, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984):

see also Nix v. Whiteside, 475 US. 157, 168. 106 S.Ct. 988.

89 L.ked.2d 125 (1986) ("[A]n attorney's ethical duty to

advance the interest of the client is limited by an equally

solemn duty to comply with the law and standards of

professional conduct.").

Freund failed to establish not only the first and

second elements of adverse effect. but also the third prong.

that is, "some link between the actual conflict and the

decision to forgo" a blame-shifting defense. /reund, 117

F.3d at 1580. First. the record does not support Freund's

contention that the law firm's allegiance to Trent under the

rules of professional conduct necessarily colored every

decision that it made from the outset of its representation of

Freund. As the State correctly contends, the law firm did, in

fact, attempt to shift the blame to Trent to some degree. If

App. 64

proven ina joint trial, the law firm's theory of defense that

rent knew that Freund's organic brain damage rendered him

susceptible to influence, and that he manipulated Freund like

a robot to kill Walker, would certainly not have guaranteed

lrent's acquittal on the first-degree murder charge. A jury

could sll find Trent guilty of the capital offense as an

accessory before the fact if. along with helping Freund kill

Walker, he intended that Freund kill Walker. See Fla. Stat. §

777.011 (1983). A jury could also find Trent guilty of

first-degree felony murder, even if he did not commit the

killing. See Cave v. State, 476 So.2d 180, 186 (Fla.1985).

cert, denied, 476 U.S. 1178. 106 S.Ct. 2907, 90 L.Ed.2d 993

(1986). The prosecution could even get the death penalty if

it proved that Trent acted either with the intent that Walker

die or with reckless disregard for Walker's life. See Enmund

\. Florida, 458 U.S. 782, 798, 102 S.Ct. 3368, 73 L.Ed.2d

1140 (1982) (intent that victim die): Tison v Arizona, 48]

U.S. 137. 157-58. 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987)

(reckless disregard for victim's life). At best. Freund's

implicit admission that he committed the stabbing would

mitigate against the death penalty for Trent. See Fla. Stat. $

921.141(6)(d). That Freund's successful plea of insanity in a

joint trial could have relieved both he and Trent of criminal

liability reconciles entirely with a conclusion that the law

firm provided effective assistance of trial counsel.

Similarly, the timing of Trent's allegations at the

severance hearing belie Freund's contention that they

motivated the law firm's decision not to point affirmatively

the finger at Trent. Both Foley's press conference and formal

notice of intent to rely on insanity pre-dated Trent's

allegations at the severance hearing. Also, Trent's lawyer

learned of Freund's statement to the psychiatrist before the

pretrial severance hearing, providing the reason for

requesting the severance and possibly giving Trent the

motivation to make the allegations against Foley and Colton

at the hearing. Indeed, given the undisputed testimony that

Trent's allegations "angered" the law firm, they arguably

App. 65

provided an incentive for the firm to shift more of the blame

to Trent. Thus, the law firm's alleged conflict with its own

interests not to antagonize Trent "played absolutely no role

in counsels’ ... strategy." Buenoano, 74 F.3d at 1086.

In short, we conclude that conflict-free counsel

would have chosen the same defense that the law firm that

Freund retained did. Because Freund confessed to the

killing, and the firm had strong and reasonable medical proof

of his organic brain damage, insanity was the law firm's only

viable and plausible defense, as Duncan testified at the 3.850

hearing. We also credit Duncan's testimony that he did not

refrain from doing anything for Freund as a result of the law

firm's prior representation of Trent. Cf Porter, 14 F.3d at

561 (finding no error in the district court's finding of no

conflict of interest that was based. in part. on the district

court's crediting the lawyer's testimony that he did not refrain

from asking his former client) any questions — on

cross-examination because of his prior representation of that

client). Accordingly, the district court did not err in

concluding that "the alternative theory proposed by [Freund]

[was] not realistic in view of the uncontradicted testimony of

the eyewitnesses."

il. Failure to Further Cross-Examine Mills

Finally, Freund points to Duncan's

cross-examination of Mills as evidence that the law firm's

conflict of interest adversely affected its defense of Freund.

Specifically, Freund argues that a conflict-free lawyer could

have used information that Trent referred her to Colton to

further impeach Mills and suggest bias in favor of Trent. We

are not convinced. Under our recitation of the law of

adverse effect in section IV, part A, it matters not what a

conflict-free lawyer could have done, but what he or she

would have done. In other words, Freund had the burden of

proving through a preponderance of the evidence that

Duncan would have questioned Mills about Trent's referring

App. 66

2 aE Oe *

her to the law firm but for Colton's professional relationship

with her. This he failed to do. Freund engaged in no line of

question at the 3.850 hearing to prove this notion.

If anything, Freund's cross-examination of Duncan at

the 3.850 hearing established just the opposite, that is, that he

did question Mills about Trent's assisting her to reduce the

cocaine trafficking charge. This cross-examination was

entirely consistent with the law firm's theory of defense, as

Duncan's undisputed testimony that he elicited facts from

Mills (and Angelilli and Daniell) to show Trent's ability to

control others evinced. Thus. every indication exists that

tactical reasons, as opposed to an alleged conflict of interest.

motivated Duncan's conduct. Accordingly, Freund failed to

show a sufficient "link between the [alleged] actual conflict

and the decision" not to ask Mills about her referral to the

law firm, and, "at best," the omission's effect on the law

firm's representation of Freund was "de minimus." Freund

117 F.3d at 1580; Lighthourne, 829 F.2d at 1024.

V. CONCLUSION

For the foregoing reasons, and in summary, we hold

that: (1) the rules of law as announced in Smith v. White.

815 F.2d at 1404-06, govern claims of ineffective assistance

of trial counsel premised on conflicts of interest stemming

from successive representations: (2) the issue of whether a

law firm's prior representation of a witness or non-testifying,

separately-tried codefendant is substantially and particularly

related to its subsequent representation of the petitioner is a

mixed question of law and fact that is not subject to section

2254(d)'s presumption of correctness; and (3) the law firm

did not provide ineffective assistance of trial counsel to

Freund because its prior representations of Trent and Mills.

as well as Trent's public allegations of embarrassing and

illicit activity on the part of two of its lawyers, did not give

rise to actual conflicts of interest that adversely affected the

App. 67

law firm's performance. Accordingly, we affirm the

‘ ~ ‘ : WY

judgment of the district court.

AFFIRMED.

TIOFLAT, Circuit’ Judge. dissenting, in) which

ANDERSON, BIRCH and DUBINA, Circuit Judges, join:

In this habeas corpus case, a law firm undertook to

represent a client in a murder prosecution in which the

client's co-defendant had been a long-standing client of the

firm. The firm had represented this co-defendant for over

ten years in a variety of criminal and civil matters, and the

firm's members had extensive interactions with him on a

social level. As a result of these professional and social

interactions, the firm became privy to a great deal of

information that could have been quite damaging to its

former client's murder defense but which the firm could not

disclose because of its ethical obligation of confidentiality to

that client. At the same time, however, the firm owed ethical

obligations to its current client and had a Sixth Amendment

obligation to provide this client with competent

VW

Freund raises three other issues on appeal: (1) whether Judge

Mounts's failure to conduct an inquiry into the law firm's conflicts of

interest violated Freund's Sixth Amendment right to effective assistance

of counsel; (2) whether the law firm's failure to conduct a pretrial

investigation into the guilt of Trent and the innocence of Freund violated

Freund's Sixth Amendment right to effective assistance of counsel, and

(3) the district court erred in failing to conduct an evidentiary hearing.

We affirm the district court's judgment on these issues without

discussion. See Eleventh Circuit Rule 36-1. But we do note that as to

the third issue, Freund concedes that "the district court was not required

to conduct an evidentiary hearing in the case at bar[.]" Appellant's En

Banc Reply Letter at 14.

Also, in light of our holdings, we need not reach the fourth issue

that brought this case en banc, whether Freund waived any conflicts of

interest on the part of the law firm.

App. 68

representation. These obligations required that all of the

firm's professional decisions be in its current client's best

interests and untainted by conflicts of interest. Because the

interests of the firm's current and former clients were

adverse, the resulting clash of the firm's obligations to each

client necessarily tainted the decisions that the firm made in

representing its current client.

The firm's client in the murder prosecution, who

ultimately was convicted of first-degree murder, now

petitions for a writ of habeas corpus on the basis of the law

firm's conflict of interest. The majority would deny the writ

because, sitting as a "Monday morning quarterback," it

believes that this client was not prejudiced by the firm's

conflicting — obligations. Because this result is

constitutionally inappropriate and flies in the face of our

precedents addressing ineffective assistance of counsel

claims based on conflict of interest. | respectfully dissent.

In part I.A., I discuss the problems with the majority's

test for determining when a lawyer has an "actual conflict of

interest." In part 1.B.. 1 offer some observations regarding

the proper application of the majority's test for determining

when such a conflict has an “adverse effect" on the lawyer's

performance. In light of the problems and potential pitfalls

identified in part I, part II reconsiders the majority's

determination that the facts of this case do not meet either

the actual conflict or adverse effect prongs of Cuyler vy.

Sullivan. In particular, part IIB. explains that the firm of

Foley. Colton & Duncan. P.A.. which represented Dr. John

Freund (the petitioner) at trial. initially faced two

ethically-based conflicts of ‘interest. that burdened its

representation of Freund. As described in part II.C., a third

conflict arose after the firm began to represent Freund that

exacerbated this burden. Part III then returns to our

precedents interpreting Cuy/er and determines that none of

these cases forecloses a finding that Freund's lawyers,

App. 69

burdened as they were by these conflicts of interest, provided

, et Le : . |

ineffective assistance to Freund.

As both the panel and the majority have recognized, a

habeas petitioner who claims that he was denied his Sixth

Amendment right to the effective assistance of trial counsel

because his lawyer had a conflict of interest must show "that

[1] an actual conflict of interest [2] adversely affected his

lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335,

348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980); accord

Freund v. Butterworth, 117 F.3d 1543, 1571 (11th Cir.1997),

vacated, 135 F.3d 1419 (11th Cir.1998). Our circuit's

interpretation of this standard has developed primarily in two

traditional contexts: a lawyer's "simultaneous representation"

of clients with adverse interests, and a lawyer's "successive

representation" of a client against whom a former client

appears as a witness. See, ¢e.g., McConico v. Alabama, 919

F.2d 1543, 1546 (11th Cir.1990) (noting that a conflict of

interest may arise in either context). The fact that these two

tvpes of conflicts arise most frequently does not mean.

however, that these are the only two contexts in which a

lawyer's conflict of interest can deprive her client of the

effective assistance of counsel. See, e.g. Zamora v. Dugger,

834 F.2d 956. 960-61 (11th Cir.1987) (noting that "the

standard developed in Cuy/er has been applied to cases in

Which defendants argue that their lawyers were more

interested in publicity than in obtaining an acquittal"):

United States v. McLain, 823° F.2d 1457, 1463) (11th

j : ‘ P °

Because the majority does not address the issue of whether any

of the conflicts of interest that affected the law firm's representation of

Freund were waived by Freund, | do not discuss this issue further here.

See Freund v. Butterworth, 117 F.3d 1543, 1582-83 (11th Cir.1997),

vacated, 135 F.3d 1419 (11th Cir. 1998).

App. 70

Cir.1987) (finding Curler requirements met where lawyer

faced possible prosecution by same United States Attorney's

office that was prosecuting his client); Zuck v. Alabama, 588

.2d 436, 438-40 (Sth Cir.1979) (concluding that lawyers

Who previously had represented the prosecutor who was

prosecuting their current client had actual conflict. of

interest): see also Fitzpatrick v. McCormick, 869 F.2d 1247.

1251-53 (9th Cir.1989) (finding denial of effective assistance

of counsel where lawyer failed to present evidence that

would exculpate current client at expense of non-testifying

former client).

It is important to keep this observation in mind when

We are faced with situations, such as this one, in which an

asserted conflict does not precisely fit within either of these

(wo traditional contexts. In such situations. our prior cases

interpreting the two-pronged Curler standard should be

evaluated with care before they are imported into the new

content.

But see Beets v. Scott, 65 F.3d 1258, 1266 & n. 10 (Sth

Cir.1995) (en bane) ("Although the federal circuit courts have

unblinkingly applied Cuvier 's “actual conflict’ and “adverse effect’

standards to all kinds of alleged attorney ethical conflicts. a careful

reading of the Supreme Court cases belies this expansiveness.” (footnote

omitted)). The panel opinion in Beers, by contrast, contained the

following assessment: "Together, [Strickland v. WW ashington, 466 U.S.

668. 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Wood v. Georgia, 450

U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981).] suggest that the

Curler analysis may not be limited to conflicts of interest involving

[simultaneous] or successive representation. Consequently, it is no

wonder that this court and others have recognized numerous

circumstances in which an attorney has breached the duty of loyalty."

Beets v Collins, 986 F.2d 1478, 1481 (Sth Cir.1993), modified, 65 F.3d

1258 (Sth Cir. 1995).

App. 71

A.

With respect to the first prong of Cuy/er, the majority

concludes that Smith v. White, 815 F.2d 1401 (11th

Cir.1987), articulates our circuit's exclusive test for proving

an actual conflict of interest in the successive representation

context. In order to establish an actual conflict under this

test, a habeas petitioner must make "a showing of

"inconsistent interests." "| Smith, 815 F.2d at 1405. As the

majority sees it, Smith makes proof of either substantial

relatedness or disclosure of confidential information a

necessary prerequisite to a finding of inconsistent interests.

Even if a petitioner proves both,’ however, this may not be

sufficient to establish actual conflict—"other proof of

inconsistent interests" also may be required. Anfe at 1184.

Implicit in its interpretation of Smith is the majority's view

that “other proof of inconsistent interests," standing alone.

can never be sufficient to establish an actual conflict of

interest.

This interpretation of Smith, which the majority

supports with piecemeal quotations from the opinion, is

incorrect for two reasons. First. the Smith decision itself is

equivocal on the question of what role "other proof of

inconsistent interests" plays in supporting a finding of actual

conflict of interest. On the one hand, Smith states:

In [a successive representation case where a

criminal defendant's counsel previously

represented a witness]. if defendant fails to

Of course, a petitioner would never actually need to prove both.

As the majority acknowledges, our rule is that once the petitioner "proves

that the subject matters of the present and prior representations are

“substantially related,’ the court will irrebuttably presume that relevant

confidential information was disclosed during the former period of

representation." Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

646 F.2d 1020, 1028 (Sth Cir. Unit B June 1981).

App. 72

show that cither (1) counsel's earlier

representation of the witness was substantially

and particularly related to counsel's later

representation of defendant, or (2) counsel

actually learned particular confidential

information during the prior representation of

the witness that was relevant to defendant's

later case, then defendant has not come even

close to showing "inconsistent interests."

815 F.2d at 1405-06. On the other hand, the Smith court

ultimately described its holding in the following way: "We

merely hold that Smith has failed to show "inconsistent

interests’ in this case where he has failed to adduce proof of

substantial relationship or relevant confidential information

or any other proof of inconsistent interests." 815 F.2d at

1406 (emphasis added).

In order to resolve this ambiguity, it is useful to

review our other cases that interpret the actual conflict

standard. This review reveals that, both before and after

Smith, our cases have sanctioned additional methods—other

than substantial relatedness or disclosure of confidential

information—of establishing an actual conflict in the

successive representation context. See Lighthourne y.

Dugger, 829 F.2d 1012, 1023 (11th Cir.1987) (noting that, in

light of state law and principles of legal ethics, a substantial

question existed as to whether an attorney crossexamining a

former client had an actual conflict of interest):’ Porter vy.

* The Lighthourne court also observed, and the panel opinion in this case

acknowledged, that a violation of state ethical rules by a criminal defense

lawyer does not necessarily deprive her client of the effective assistance

of counsel. See Freund, 117 F.3d at 1572 n. 66 (quoting Lightbourne,

829 F.2d at 1023 n. 12). Nevertheless, when the law of ethics renders a

lawyer unable to reconcile the duties she owes to separate clients, ethical

considerations play an important role in determining whether she had an

actual conflict of interest. This role was recognized not only in

Lightbourne, but also in United States v. Martinez, 630 F.2d 361, 363 &

n. 2 (5th Cir.1980), cited in Smith, 815 F.2d at 1406 n. 2. In Martinez, the

App. 73

Wainwright, 805 F.2d 930, 939 (11th Cir.1986) (stating that

the habeas petitioner could show an actual conflict by

demonstrating that his attorney "chose between possible

alternative courses of action such as eliciting or failing to

elicit evidence helpful to [the petitioner] but harmful to [the

lawyer's previous client]");° cf Porter v. Singletary, 14 F.3d

554, 560 (11th Cir.1994) (stating, in the context of a claim of

conflict of interest arising from a prior simultaneous

representation, that a petitioner must prove actual conflict by

"point[ing] to specific instances in the record which suggest

an impairment or compromise of his interests for the benefit

of another party"). Other circuits have reached the same

conclusion. See, e.g., Fitzpatrick v. McCormick, 869 F.2d

1247, 1252 (9th Cir.1989) ("In successive representation,

conflicts of interest may arise if the cases are substantially

first case in our circuit to perform a conflict of interest analysis in the

successive representation context, the facts demonstrated both substantial

relatedness and disclosure of confidential information. The test that the

court applied to these facts in order to determine whether an actual

conflict of interest existed, however, was more abstract. In finding that

an actual conflict did exist, the court observed that the lawyer was “torn

between conflicting duties" to his prior and current clients. See Martinez,

630 F.2d at 363.

; As the panel noted, this formulation of our actual conflict test

tends to blend together the actual conflict and adverse effect inquiries of

Cuvler. See Freund, 117 F.3d at 1571 n. 65 (citing cases prior to Porter

that employed this test). I mention it here merely to illustrate that the

majority's unduly narrow test for actual conflict is contrary to our

precedent.

It is also worth noting that Smith itself

recognized this "possible alternative courses of action"

test for actual conflict. See Smith, 815 F.2d at 1404

(quoting Barham v. United States, 724 F.2d 1529, 1532

(11th Cir.1984)). Without explanation, however, the

Smith court failed to include this test in its subsequent

list of the possible methods by which a petitioner could

demonstrate actual conflict. /d at 1405-06.

App. 74

related or if the attorney reveals privileged communications

of the former client or otherwise divides his loyalties."

(internal quotation marks omitted. emphasis added)). In

light of these decisions, it seems incorrect to say that our

precedents prohibit a habeas petitioner from establishing an

actual conflict of interest unless she can show either

substantial relatedness or disclosure of confidential

information.

Assuming arguendo that the majority is correct in

according little weight to “other proof of inconsistent

interests," its interpretation of Smith suffers from an

additional problem in that it purports to apply "in the

successive representation context" as a whole. Ante at 1184.

The facts of Smith, however, merely presented the traditional

successive representation pattern wherein a lawyer's former

client appeared as a witness against his current client. In

addition, the lawyer in Smith apparently represented his

former client only once. In this case, by contrast, one of

Freund's allegations of actual conflict involves a different

type of successive representation. Freund contends that the

law firm of Foley, Colton & Duncan, P.A., which

represented him at trial, previously represented Trent—a

separately-tried co-defendant who did not appear as a

Witness in Freund's trial—in a broad range of civil and

criminal matters from the early 1970s until 1984. While the

majority may be correct that its interpretation of Smith

should nevertheless extend to the context presented by this

claim, ante at 1184 n. 31, this does not mean that the legal

interpretation our previous cases have given to the two

elements of the Smith test—substantial relatedness and

disclosure of confidential information—should mechanically

be applied in this new factual context. I address this point

more fully in part II.A., infra.

App. 75

B.

As to the second prong of Cuyler, the majority adopts

the panel's statement of our circuit's test for adverse effect.”

While I agree that this test is faithful to our prior decisions, |

also recognize that an unwary court could apply it in a way

that effectively requires the habeas petitioner to prove

prejudice. The following observations on the application of

our test will help courts to avoid this possibility.

When a habeas petitioner is required to show

prejudice in order to establish a claim of ineffective

assistance of counsel, that petitioner "must show that there is

a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome." Strickland vy.

Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80

L.Ed.2d 674 (1984). As the majority claims to recognize.

however, prejudice is presumed for ineffective assistance

claims that are based on a lawyer's conflict of interest and

that meet the two-prong Cuy/er test. In the conflict of

interest context, therefore, we are forbidden from rejecting

: This test consists of three requirements. In summary, a habeas

petitioner must:

1) point to some plausible alternative defense strategy

or tactic that might have been pursued;

2) demonstrate that the alternative strategy or tactic

was reasonable under the facts; and

3) show some link between the actual conflict and the

decision to forgo the alternative defense strategy (i.e.,

establish that the alternative was inherently in conflict

with or not undertaken due to the lawyer's other

loyalties or interests). See Freund, 117 F.3d at 1579-

80.

App. 76

an ineffective assistance claim simply because we think that

the petitioner probably would be found guilty if tried again.

Instead of a prejudice inquiry, we apply the three-part

test outlined by the majority in order to determine whether

the actual conflict of interest alleged by the petitioner

"adversely affected his lawyer's performance." Strickland,

466 U.S. at 692, 104 S.Ct. at 2067 (quoting Cuyler, 446 U.S.

at 348. 100 S.Ct. at 1718): accord McConico, 919 F.2d at

1548 ("A petitioner need not show that the result of the trial

would have been different without the conflict of interest.

only that the conflict had some adverse effect on counsel's

performance."); LoConte y. Dugger, 847 F.2d 745, 754

(11th Cir.1988). As the Supreme Court has recognized,

however, "it is difficult to measure the precise effect on the

defense of representation corrupted by conflicting interests."

Strickland, 466 U.S. at 692, 104 S.Ct. at 2067.’ As a result,

once an actual conflict of interest has been shown, we must

The source of this measuring difficulty provides a powerful

rationale for our presumption of prejudice. As we recognized in Duncan

v. Alabama, the harm caused by conflicting interests "is difficult to

measure because the harm "is in what the advocate finds himself

compelled to refrain from doing. not only at trial but also as to possible

pretrial plea negotiations and in the sentencing process.’ " 881 F.2d

1013. 1016 (11th Cir.1989) (quoting Holloway v. Arkansas, 435 U.S.

475. 490, 98 S.Ct. 1173, 1182, 55 L.Ed.2d 426 (1978)). Of course, the

harm may also lie in what the advocate actually does when pursuing a

certain strategy that he might not have done under an alternative strategy;

this type of harm is also difficult to measure. Given this difficulty, we

‘are not supposed to engage in “unguided speculation" in either of these

situations (or both situations together) in order to quantify the degree to

Which the actual representation received by the petitioner differed from

the representation that he hypothetically could have received if

represented by conflict-free counsel. See Holloway, 435 U.S. at 491, 98

S.Ct. at 1182 (concluding that the concepts of prejudice and harmless

error are inapplicable in the conflict of interest context). Such

speculation regarding the cost of the conflict of interest to the petitioner

is not “susceptible of intelligent, evenhanded application." /d. at 490, 98

S.Ct. at 1182.

be careful to apply our test for adverse effect to the

petitioner's case as it stood before it was tainted by the

lawyer's conflict. For example, in applying our second

requirement that the alternative defense strategy or tactic

must be "reasonable under the facts," the decisive "facts"

upon which we rely cannot be drawn from a trial record (or

from a pre-trial statement) that was made afier the time that

the petitioner's case became tainted. We would slip

dangerously close to a prejudice inquiry if we tried to

pinpoint tainted "facts" by hypothesizing whether or not the

evidence offered at trial would have been the same even if

conflict-free defense counsel had followed an alternative

strategy.

A de facto prejudice inquiry can also insinuate itself

into our adverse effect test in another way. With regard to

our third requirement that the petitioner must link his

lawyer's actual conflict with the lawyer's decision to forgo an

alternative defense strategy, the danger lies in the following

question: at what point in the representation should a court

find that the lawyer has made such a decision? In order to

avoid this danger, a decision must be deemed conclusively

made at the first moment that the lawyer. influenced by an

actual conflict of interest. elects to forgo a reasonable

alternative strategy. Once this election has been made, the

taint of the lawyer's conflict of interest irrevocably has

affected the petitioner's case. If we instead imported an

element of "cure" into this linkage requirement by asking

whether the lawyer subsequently reversed her election (in

Whole or part) and, if so, whether this reversal was sufficient

to purge the taint, we would indulge in unguided speculation

in order to determine whether. her initial tainted election

ultimately was harmless. We cannot truthfully measure what

the lawyer's sequence of choices has cost the petitioner. and

that is why this type of inquiry into prejudice is forbidden.

In sum, the distinction between our test for "adverse

effect" in the conflict of interest context and our test for

"prejudice" in other ineffective assistance contexts has an

App. 78

important purpose. See supra note 7. We should therefore

implement these tests carefully, in accordance with the

foregoing observations, in order to ensure that the distinction

does not become merely semantic.

II.

A.

In light of the problems and potential pitfalls

identified in part I, it is necessary to revisit the majority's

determination that the facts of Freund's case do not meet

either the actual conflict or adverse effect prongs of Cuyler.

It would be possible to undertake this task by articulating an

alternative test for actual conflict and mechanically applying

this test—along with the above test for adverse effect—to the

facts underlying Freund's case in order to determine whether

he was denied the effective assistance of counsel. This

approach, however, has two significant drawbacks. First. it

is difficult to articulate a reasoned basis for disagreeing with

a court's decision to apply (or not to apply) abstract labels,

such as those that appear in our prior cases interpreting

Curler, to a given set of facts without a clear appreciation of

the ethical and constitutional policies underlying the labels.

This difficulty is illustrated by the majority's disagreement

with the panel's conclusion that the law firm's prior

representations of Trent were "substantially related" to its

later representation of Freund. Second. it is important to

note that two of the three sources of actual conflict alleged

by Freund—the law firm's prior representation of Trent and

Trent's allegations against the firm's members—do not

correspond to either of the two traditional contexts in which

we have interpreted Cuyler. We would need to be quite

cautious, therefore, in applying any test derived from our

prior cases interpreting Cuyler to the present facts. See

supra part I (introduction).

App. 79

A more informative approach that avoids these

drawbacks begins with a look over the law firm's shoulder at

the time when its members decided to represent Freund. As

part II.B. explains, this look reveals that the law firm initially

faced two ethically-based conflicts of interest that burdened

its representation of Freund. As described in part II.C.. a

third conflict of interest arose after the firm began to

represent Freund that exacerbated this burden. Part III then

returns to our prior cases interpreting Cy/er in order to

determine whether any of these cases forecloses a finding

that Freund's lawyers, burdened as they were by these

conflicts of interest, provided ineffective assistance to

Freund.

B.

In deciding to represent Freund, the law firm of

Foley, Colton & Duncan, P.A.. faced a difficult dilemma

because of its prior representations of Trent and Mills. As

counsel to Freund, the firm had a duty to provide him with

the competent representation to which he was entitled under

the Sixth Amendment. In discharging this duty, of course,

the firm's lawyers had an obligation to obey Florida's rules of

legal ethics. One relevant ethical obligation was the firm's

duty under Canon 7 of the former Florida Code of

Professional Responsibility® to represent its client zealously.

This duty requires that a lawyer "be loyal to her client and

ensure that every professional decision she makes on behalf

. At the time of Freund's trial, members of the Florida Bar were

governed by the Florida Code of Professional Responsibility. The

Florida Code was replaced in 1987 by Chapter 4 of the Rules Regulating

the Florida Bar, entitled "Rules of Professional Conduct." See Freund,

117 F.3d at 1572.

App. 80

of the client is in the client's best interests." Freund. 117

F.3d at 1572. A lawyer who intentionally prejudices or

harms the interests of her client violates this duty. See

Fla.ode of Professional Responsibility DR 7-101(A)(3)

(1986).

A second ethical obligation was the firm's duty under

Canon 5 of the Florida Code to "exercise independent

professional judgment on behalf of a client." Fla.Code of

Professional Responsibility, Canon 5 (1986). A lawyer is

required to avoid conflicts of interest in order to fulfill this

duty. See Barclay v. Wainwright, 444 So.2d 956, 958

(Fla.1984). Therefore, a lawyer is prohibited from

representing a potential client when the lawyer's professional

judgment will be, or reasonably may be, affected by his

“own financial, business, property, or personal interests,"

unless the client gives his informed consent. Fla.Code of

Professional Responsibility DR 5-101(A) (1986). In

addition, a lawyer is prohibited from representing a new

client if that representation is likely to have an adverse effect

on the lawyer's judgment on behalf of another client, unless

both clients give their informed consent. See Fla.Code of

Professional Responsibility DR 5-105(A), (C) (1986).’

9

The Rules Regulating the Florida Bar currently provide more

detailed restrictions relating to a lawyer's duty to exercise independent

professional judgment. For example, the rules prohibit a lawyer from

representing a client if the exercise of the lawyer's professional judgment

“may be materially limited by the lawyer's responsibilities to another

client or to a third person or by the lawyer's own interests," unless the

lawyer reasonably believes that he can represent the client and the client

consents after consultation. Rules Regulating the Fla. Bar 4-1.7(b)

(1994). With respect to conflicts of interest involving former clients,

Rule 4-1.9(a) provides that a lawyer who has represented a former client

in a matter must not later "represent another person in the same or a

substantially related matter in which that person's interests are materially

adverse to the interests of the former client unless the former client

consents after consultation." Rules Regulating the Fla. Bar 4-1.9(a)

(1994).

App. 81

While the firm owed these two ethical obligations to

reund alone, it owed a third ethical obligation to Freund as

well as to its former clients Trent and Mills. This obligation

was the firm's duty of confidentiality under Canon 4 of the

Florida Code, which requires a lawyer to "preserve the

confidences and secrets of a client." Fla.Code of

Professional Responsibility, Canon 4 (1986). The term

"confidences" refers to information protected by the

attorney-client privilege, while the term "secrets" refers to

other information gained during the professional relationship

"that the client has requested be held inviolate or the

disclosure of which would be embarrassing or would be

likely to be detrimental to the client." Fla.Code of

Professional Responsibility DR 4-101(A) (1986). Because

of this duty, a lawyer could be subject to discipline for

revealing a client's confidences or secrets or for using them

either to the disadvantage of the client or for the benefit of

the lawyer or a third person without the client's informed

consent. See Fla.Code of Professional Responsibility DR 4-

101(B) (1986), Ford v. Piper Aircraft Corp., 436 So.2d 305,

307 (Fla. 5th DCA 1983); see also Rules Regulating the Fla.

Bar 4-1.9(b) (1994)."°

The duty of confidentiality affords broad protection

to a client's confidences and secrets. See Buntrock vy.

Buntrock, 419 So.2d 402. 403 (Fla. 4th DCA 1982) (noting

that protection is broader than attorney-client evidentiary

privilege). This protection "exists without regard to the

nature or source of information or the fact that others share

the knowledge." Fla.Code of Professional Responsibility EC

4-4 (1986). The protection is also perpetual; a lawyer must

10

The Code did allow a lawyer to reveal a client's confidences or

secrets in two limited situations, neither of which is relevant in this case.

See Fla.Code of Professional Responsibility DR 4-101(D) (1986)

(providing that a lawyer may reveal a client's (1) confidences or secrets

when ordered to do so by a tribunal after exhausting appellate remedies

or (2) intent to commit a crime).

App. 82

forever preserve the confidences and secrets of every client.

Whether ongoing or former. See Fla.Code of Professional

Responsibility EC 4-6 (1986): Rules Regulating the Fla. Bar

4-1.9(b) (1994): State Farm Mut. Auto. Ins. Co. v. KAW.

375 So.2d 630, 632 (Fla.1991).

In deciding to accept Freund as a client, the firm was

required to determine that it could represent him without

violating any of the above ethical obligations that it owed

him. Given that it had previously represented two people—

Trent, Freund's co-defendant, and Mills, a witness for the

prosecution in Freund's case who could have been charged

with several crimes arising from her participation in the

events surrounding Walker's murder''—-with _ interests

materially adverse to Freund's interests, however, the firm

faced a substantial likelihood that its ethical obligations to

Freund would come into direct and irreconcilable conflict

with its ethical obligations to its former clients.'” The initial

question that must be answered in order to determine the

" For a list of the crimes with which Mills could have been

charged, see Freund, 117 F.3d at 1553 n. 16

' The three ethical duties discussed above can place conflicting

obligations on a lawyer in certain circumstances. For example, when a

current client's interests are adverse to the interests of a former client

whom the lawyer represented in a related matter, the lawyer's duty to

represent the current client zealously and his duty to preserve the

confidences and secrets of the former client may become irreconcilable.

It is quite likely that the lawyer obtained information in the former

representation that could be useful in the current representation. See

Duncan v. Merrill Lynch, Pierce, Fenner & Smith, 646 F.2d 1020, 1027

(Sth Cir. Unit B June 1981) ("Whenever an attorney seeks to represent an

interest adverse to that of a former client, the possibility arises that the

attorney, whether intentionally or inadvertently, will reveal to his present

client confidential information entrusted to him during his previous

representation."). If the lawyer used this information in representing his

current client, he would violate his ethical obligation of confidentiality to

his former client. If he refrained from using the information, however, he

would violate his duty zealously to represent his current client.

App. 83

significance of the firm's potential ethical conflict to our

Sixth Amendment analysis under Cuyler is this: does a

lawyer's Sixth Amendment duty to provide its current client

with competent representation require it to disregard the

rules of ethics governing its conduct with respect to its

former clients 1f to do so would benefit its current client? If

the answer to this question is yes, then we need not inquire

further into the issue of whether the firm actually was

confronted with conflicting ethical obligations in this case;

if faced with such a conflict, the firm would simply be forced

to ignore its ethical duties to its former clients. If the answer

is no, however, we should proceed to determine whether the

firm actually faced conflicting ethical obligations in this case

that adversely affected its representation of Freund.

It seems clear that this initial question must be

answered in the negative. If we were to conclude that the

Sixth Amendment required lawyers to violate their ethical

obligations to former clients in order to provide competent

representation to their current clients, lawyers who heeded

our conclusion would be barraged with lawsuits by their

former clients and would face state bar disciplinary

proceedings. Irrespective of whether these actions were

successful.'* the public's confidence in the ability of the legal

profession to hold secrets in confidence would be irreparably

damaged. The ability of the states to promulgate effective

ethical standards in order to regulate the conduct of lawyers

would also be substantially undermined. See Duncan, 646

F.2d at 1027 (describing, in the civil disqualification context.

the adverse consequences of allowing an attorney to reveal

the confidences of his former client). Such consequences are

not lightly to be presumed, and there is no reason to assume

that they are warranted by the Sixth Amendment.

. It is possible that lawyers would be able to invoke their Sixth

Amendment obligation to their client as a defense in these actions.

App. 84

2.

The firm, therefore. could not ignore its ethical

obligations to its former clients in attempting to provide

l'reund with competent representation that was consistent

with its ethical obligations to him. In order to determine

Whether the firm's representation of Freund was burdened by

its ethical obligations to Trent and Mills, we should ask two

questions. First, we should consider what defense strategies

or tactics a competent lawyer not burdened by ethical

obligations to Trent and Mills would have considered.

Second. we should ask whether a competent lawyer with

ethical obligations to Trent and Mills would conclude that

his prior representation of these clients in any way

restricted—or even foreclosed—his ability to use any of

these strategies in representing Freund.

At the beginning of Freund's case, just prior to the

time that his lawyer Robert Foley announced that Freund

would rely on an insanity defense, an unburdened and

competent lawyer could have chosen to follow any of the

following four reasonable defense Strategies. First, the

lawyer could have attempted to obtain a plea bargain for

Freund in exchange for Freund's cooperation in the State's

prosecution of the other people who either were present on

the night of the murder or helped to conceal the crime—

Mills. Angelilli, Daniell, and Fullerton,"

A second possible strategy was to rely on an insanity

defense and thus effectively admit that Freund murdered

Ralph Walker. Given the significant brain damage that

'reund sustained as a result of his 1983 suicide

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