# Appendix — Freund v. Butterworth

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 817

## Text

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 con

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0904%3A2. Public record. Not legal advice.