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122 S.Ct. 1237, 70 USLW 4205, 70 USLW 4216, 2 Cal. Daily Op.

Serv. 2737, 2002 Daily Journal D.A.R. 3311

Supreme Court of the United States

Walter MICKENS, Jr., Petitioner,

John TAYLOR, Warden.

No. 00-9285.

Argued Nov. 5, 2001.

Decided March 27, 2002.

Following affirmance of capital murder conviction and death

sentence, 247 Va. 395, 442 S.E.2d 678, and affirmance of death

sentence after remand for a new sentencing hearing, 252 Va. 315,

478 S.E.2d 302, petition for writ of habeas corpus was filed. The

United States District Court for the Eastern District of Virginia,

Robert E. Payne, J., 74 F.Supp.2d 586, denied petition, and

petitioner appealed. The United States Court of Appeals for the

Fourth Circuit, 227 F.3d 203, reversed. On rehearing en banc, the

Court of Appeals, 240 F.3d 348, affirmed. Certiorari was granted.

The Supreme Court, Justice Scalia, held that, to demonstrate Sixth

Amendment violation where trial court failed to inquire into

potential conflict of interest about which it knew or reasonably

should have known, defendant had to establish that this conflict of

interest adversely affected counsel's performance.

Affirmed.

Justice Kennedy concurred and filed opinion, in which Justice

O'Connor joined.

Justice Stevens dissented and filed opinion.

Justice Souter dissented and filed opinion.

Justice Breyer dissented and filed opinion, in which Justice

Ginsburg joined.

West Headnotes

[1] Criminal Law

641.13(1)

110k641.13(1) Most Cited Cases

Legal assistance which is ineffective in preserving fairness of trial

does not satisfy mandate of the Sixth Amendment. U.S.C.A.

Const.Amend. 6.

[2] Criminal Law

641.13(1)

110k641.13(1) Most Cited Cases

Defects in attorney's assistance that have no probable effect on

trial's outcome do not establish a Sixth Amendment violation.

U.S.C.A. Const.Amend. 6.

[3] Criminal Law

641.13(1)

110k641.13(1) Most Cited Cases

As general rule, defendant alleging a Sixth Amendment violation

must demonstrate a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been

different. U.S.C.A. Const.Amend. 6.

[4] Criminal Law

641.12(1)

110k641.12(1) Most Cited Cases

[4] Criminal Law

641.13(1)

110k641.13(1) Most Cited Cases

Defendant need not show that defects in attorney's assistance had

probable effect upon outcome of proceeding, but such an effect can

simply be presumed, for purpose of establishing a Sixth

Amendment violation, where assistance of counsel has been denied

entirely or during a critical stage of proceeding; however, it is only

in circumstances of this magnitude that a court may forgo

individual inquiry into whether counsel's inadequate performance

has undermined reliability of verdict. U.S.C.A. Const.Amend. 6.

[5] Criminal Law

641.5(7)

110k641.5(7) Most Cited Cases

To demonstrate a Sixth Amendment violation where trial court

fails to inquire into a potential conflict of interest about which it

knew or reasonably should have known, defendant must establish

that a conflict of interest adversely affected counsel's performance.

U.S.C.A. Const.Amend. 6.

[6] Criminal Law

641.13(8)

110k641.13(8) Most Cited Cases

Defendants who retain their own lawyers are entitled to no less

protection under the Sixth Amendment than defendants for whom

state appoints counsel. U.S.C.A. Const.Amend. 6.

[7] Criminal Law

641.5(.5)

110k641.5(.5) Most Cited Cases

"Actual conflict of interest," for Sixth Amendment purposes, is

conflict of interest that adversely affects counsel's performance.

U.S.C.A. Const.Amend. 6.

[8] Criminal Law

641.5(.5)

110k641.5(.5) Most Cited Cases

Purpose of relieving defendant of need to show that defects in

attorney's assistance had probable effect upon outcome of

proceeding, in order to establish Sixth Amendment violation in

certain situations, such as when his attorney was actively

representing conflicting interests, is not to enforce Canons of Legal

Ethics, but to apply needed prophylaxis in situations where the

ordinary requirements of Strickland are evidently inadequate to

assure vindication of defendant's Sixth Amendment right to

counsel. U.S.C.A. Const.Amend. 6.

*1238 Syllabus [FN*]

FN* The syllabus constitutes no part of the opinion of the Court

but has been prepared by the Reporter of Decisions for the

convenience of the reader. See United States v. Detroit Timber &

Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.

**1 A Virginia jury convicted petitioner of the premeditated

murder of Timothy Hall during or following the commission of an

attempted forcible sodomy, and sentenced petitioner to death.

Petitioner filed a federal habeas petition alleging, inter alia, that he

was denied effective assistance of counsel because one of his

court-appointed attorneys had a conflict of interest at trial.

Petitioner's lead attorney, Bryan Saunders, had represented Hall on

assault and concealed-weapons charges at the time of the murder.

The same juvenile court judge who dismissed the charges against

Hall later appointed Saunders to represent petitioner. Saunders

did not disclose to the court, his co-counsel, or petitioner that he

had previously represented Hall. The District Court denied habeas

relief, and an en banc majority of the Fourth Circuit affirmed. The

majority rejected petitioner's argument that the juvenile court

judge's failure to inquire into a potential conflict either mandated

automatic reversal of his conviction or relieved him of the burden

of showing that a conflict of interest adversely affected his

representation. The court concluded that petitioner had not

demonstrated adverse effect.

Held: In order to demonstrate a Sixth Amendment violation

where the trial court fails to inquire into a potential conflict of

interest about which it knew or reasonably should have known, a

defendant must establish that a conflict of interest adversely

affected his counsel's performance. Pp. 1240- 1246.

(a) A defendant alleging ineffective assistance generally must

demonstrate a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct.

2052, 80 L.Ed.2d 674. An exception to this general rule presumes

a probable effect upon the outcome where assistance of counsel

has been denied entirely or during a critical stage of the

proceeding. The Court has held in several cases that

"circumstances of that magnitude," United States v. Cronic, 466

U.S. 648, 659, n. 26, 104 S.Ct. 2039, 80 L.Ed.2d 657, may also

arise when the defendant's attorney actively represented conflicting

interests. In Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173,

55 L.Ed.2d 426, the Court created an automatic reversal rule where

counsel is forced to represent codefendants over his timely

objection, unless the trial court has determined that there is no

conflict. In *1239Cuyler v. Sullivan,

446 U.S. 335, 100 S.Ct.

1708, 64 L.Ed.2d 333, the Court declined to extend Holloway and

held that, absent objection, a defendant must demonstrate that a

conflict of interest actually affected the adequacy of his

representation, 446 U.S., at 348-349, 100 S.Ct. 1708. Finally, in

Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220,

the Court granted certiorari to consider an equal-protection

violation, but then remanded for the trial court to determine

whether a conflict of interest that the record strongly suggested

actually existed, id., at 273, 101 S.Ct. 1097. Pp. 1240-1243.

(b) This Court rejects petitioner's argument that the remand

instruction in Wood, directing the trial court to grant a new

hearing if it determined that "an actual conflict of interest existed,"

id., at 273, 101 S.Ct. 1097, established that where the trial judge

neglects a duty to inquire into a potential conflict the defendant, to

obtain reversal, need only show that his lawyer was subject to a

conflict of interest, not that the conflict adversely affected

counsel's performance. As used in the remand instruction, "an

actual conflict of interest" meant precisely a conflict that affected

counsel's performance--as opposed to a mere theoretical division

of loyalties. It was shorthand for Sullivan's statement that "a

defendant who shows that a conflict of interest actually affected

the adequacy of his representation need not demonstrate prejudice

in order to obtain relief," 446 U.S., at 349-350, 100 S.Ct. 1708

(emphasis added). The notion that Wood created a new rule sub

silentio is implausible. Moreover, petitioner's proposed rule of

automatic reversal makes little policy sense. Thus, to void the

conviction petitioner had to establish, at a minimum, that the

conflict of interest adversely affected his counsel's performance.

The Fourth Circuit having found no such effect, the denial of

habeas relief must be affirmed. Pp. 1243-1245.

**2 (c) The case was presented and argued on the assumption that

(absent some exception for failure to inquire) Sullivan would be

applicable to a conflict rooted in counsel's obligations to former

clients. The Court does not rule upon the correctness of that

assumption. Pp. 1245-1246.

240 F.3d 348, affirmed.

SCALIA, J., delivered the opinion of the Court, in which

REHNQUIST, C. J., and O'CONNOR, KENNEDY, and

THOMAS, JJ., joined. KENNEDY, J., filed a concurring opinion,

in which O'CONNOR, J., joined. STEVENS, J., filed a dissenting

opinion. SOUTER, J., filed a dissenting opinion. BREYER, J.,

filed a dissenting opinion, in which GINSBURG, J., joined.

Robert J. Wagner, Richmond, VA, appointed by this Court, for

petitioner.

Robert Q. Harris, for respondent.

Irving L. Gornstein, Washington, DC, for United States as amicus

curiae, by special leave of the Court in support of the respondent.

For U.S. Supreme Court Briefs See:

2001 WL 930725 (Pet.Brief)

2001 WL 1025807 (Resp.Brief)

2001 WL 1131676 (Reply.Brief)

2001 WL 881242 (Amicus.Brief)

2001 WL 1025769 (Amicus.Brief)

2001 WL 1056945 (Amicus.Brief)

For Transcript of Oral Argument See:

2001 WL 1412443 (U.S.Oral.Arg.)

Justice SCALIA delivered the opinion of the Court.

The question presented in this case is what a defendant must show

in order to demonstrate a Sixth Amendment violation where the

trial court fails to inquire into a potential conflict of interest about

which it knew or reasonably should have known.

In 1993, a Virginia jury convicted petitioner Mickens of the

premeditated murder of Timothy Hall during or following the

commission of an attempted forcible sodomy. Finding the murder

outrageously and wantonly vile, it sentenced petitioner to death.

In June 1998, Mickens filed a petition for writ of habeas corpus,

see *124028 U.S.C. ' 2254 (1994 ed. and Supp. V), in the United

States District Court for the Eastern District of Virginia, alleging,

inter alia, that he was denied effective assistance of counsel

because one of his court-appointed attorneys had a conflict of

interest at trial. Federal habeas counsel had discovered that

petitioner's lead trial attorney, Bryan Saunders, was representing

Hall (the victim) on assault and concealed-weapons charges at the

time of the murder. Saunders had been appointed to represent

Hall, a juvenile, on March 20, 1992, and had met with him once

for 15 to 30 minutes some time the following week. Hall's body

was discovered on March 30, 1992, and four days later a juvenile

court judge dismissed the charges against him, noting on the

docket sheet that Hall was deceased. The one-page docket sheet

also listed Saunders as Hall's counsel. On April 6, 1992, the same

judge appointed Saunders to represent petitioner. Saunders did not

disclose to the court, his co-counsel, or petitioner that he had

previously represented Hall. Under Virginia law, juvenile case files

are confidential and may not generally be disclosed without a court

order, see Va.Code Ann. ' 16.1-305 (1999), but petitioner learned

about Saunders' prior representation when a clerk mistakenly

produced Hall's file to federal habeas counsel.

The District Court held an evidentiary hearing and denied

petitioner's habeas petition. A divided panel of the Court of

Appeals for the Fourth Circuit reversed, 227 F.3d 203 (2000), and

the Court of Appeals granted rehearing en banc, 240 F.3d 348

(2001). As an initial matter, the 7-to-3 en banc majority

determined that petitioner's failure to raise his conflict-of-interest

claim in state court did not preclude review, concluding that

petitioner had established cause and that the "inquiry as to

prejudice for purposes of excusing [petitioner's] default ...

incorporates the test for evaluating his underlying conflict of

interest claim." Id., at 356-357. On the merits, the Court of

Appeals assumed that the juvenile court judge had neglected a duty

to inquire into a potential conflict, but rejected petitioner's

argument that this failure either mandated automatic reversal of his

conviction or relieved him of the burden of showing that a conflict

of interest adversely affected his representation. Relying on

Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333

(1980), the court held that a defendant must show "both an actual

conflict of interest and an adverse effect even if the trial court

failed to inquire into a potential conflict about which it reasonably

should have known," 240 F.3d, at 355-356. Concluding that

petitioner had not demonstrated adverse effect, id., at 360, it

affirmed the District Court's denial of habeas relief. We granted a

stay of execution of petitioner's sentence and granted certiorari.

532 U.S. 970, 121 S.Ct. 1651, 149 L.Ed.2d 467 (2001).

**3

[1][2][3] The Sixth Amendment provides that a criminal

defendant shall have the right to "the assistance of counsel for his

defence." This right has been accorded, we have said, "not for its

own sake, but because of the effect it has on the ability of the

accused to receive a fair trial." United States v. Cronic, 466 U.S.

648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). It follows from

this that assistance which is ineffective in preserving fairness does

not meet the constitutional mandate, see Strickland v. Washington,

466 U.S. 668, 685-686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);

and it also follows that defects in assistance that have no probable

effect upon the trial's outcome do not establish a constitutional

violation. As a general matter, a defendant alleging a Sixth

Amendment violation must demonstrate "a reasonable probability

that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Id., at 694, 104 S.Ct.

2052.

[4] There is an exception to this general rule. We have spared the

defendant the *1241 need of showing probable effect upon the

outcome, and have simply presumed such effect, where assistance

of counsel has been denied entirely or during a critical stage of the

proceeding. When that has occurred, the likelihood that the

verdict is unreliable is so high that a case- by-case inquiry is

unnecessary. See Cronic, supra, at 658-659, 104 S.Ct. 2039; see

also Geders v. United States, 425 U.S. 80, 91, 96 S.Ct. 1330, 47

L.Ed.2d 592 (1976); Gideon v. Wainwright, 372 U.S. 335, 344-

345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). But only in

"circumstances of that magnitude" do we forgo individual inquiry

into whether counsel's inadequate performance undermined the

reliability of the verdict. Cronic, supra, at 659, n. 26, 104 S.Ct.

2039.

[5] We have held in several cases that "circumstances of that

magnitude" may also arise when the defendant's attorney actively

represented conflicting interests. The nub of the question before

us is whether the principle established by these cases provides an

exception to the general rule of Strickland under the circumstances

of the present case. To answer that question, we must examine

those cases in some detail. [FN1]

FN1. Justice BREYER rejects Holloway v. Arkansas, 435 U.S.

475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), Cuyler v. Sullivan, 446

U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and Wood v.

Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981), as

"a sensible [and] coherent framework for dealing with" this case,

post, at 1264 (dissenting opinion), and proposes instead the

"categorical rule," post, at 1265, that when a "breakdown in the

criminal justice system creates ... the appearance that the

proceeding will not reliably serve its function as a vehicle for

determination of guilt and innocence, and the resulting criminal

punishment will not be regarded as fundamentally fair," ibid.

(internal quotation marks omitted), reversal must be decreed

without proof of prejudice. This seems to us less a categorical

rule of decision than a restatement of the issue to be decided.

Holloway,

Sullivan, and Wood establish the framework that they

do precisely because that framework is thought to identify the

situations in which the conviction will reasonably not be regarded

as fundamentally fair. We believe it eminently performs that

function in the case at hand, and that Justice BREYER is mistaken

to think otherwise. But if he does think otherwise, a proper regard

for the judicial function--and especially for the function of this

Court, which must lay down rules that can be followed in the

innumerable cases we are unable to review--would counsel that he

propose some other "sensible and coherent framework," rather than

merely saying that prior representation of the victim, plus the

capital nature of the case, plus judicial appointment of the counsel,

see post, at 1264, strikes him as producing a result that will not be

regarded as fundamentally fair. This is not a rule of law but

expression of an ad hoc "fairness" judgment (with which we

disagree).

**4 In Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55

L.Ed.2d 426 (1978), defense counsel had objected that he could

not adequately represent the divergent interests of three

codefendants. Id., at 478-480, 98 S.Ct. 1173. Without inquiry, the

trial court had denied counsel's motions for the appointment of

separate counsel and had refused to allow counsel to cross-

examine any of the defendants on behalf of the other two. The

Holloway

Court deferred to the judgment of counsel regarding the

existence of a disabling conflict, recognizing that a defense

attorney is in the best position to determine when a conflict exists,

that he has an ethical obligation to advise the court of any problem,

and that his declarations to the court are "virtually made under

oath." Id., at 485-486, 98 S.Ct. 1173 (internal quotation marks

omitted). Holloway presumed, moreover, that the conflict, "which

[the defendant] and his counsel tried to avoid by timely objections

to the joint representation," id., at 490, 98 S.Ct. 1173, undermined

the adversarial process. The presumption was justified because

joint representation of conflicting interests is inherently suspect,

and because counsel's conflicting obligations to multiple

defendants "effectively sea[l] his lips on crucial matters" and make

it difficult to measure the precise harm arising from counsel's

errors.Id., at 489-490, 98 S.Ct. 1173. Holloway

thus creates an

automatic reversal *1242 rule only where defense counsel is forced

to represent codefendants over his timely objection, unless the trial

court has determined that there is no conflict. Id., at 488, 98 S.Ct.

1173 ("[W]henever a trial court improperly requires joint

representation over timely objection reversal is automatic").

[6] In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64

L.Ed.2d 333 (1980), the respondent was one of three defendants

accused of murder who were tried separately, represented by the

same counsel. Neither counsel nor anyone else objected to the

multiple representation, and counsel's opening argument at

Sullivan's trial suggested that the interests of the defendants were

aligned. Id., at 347-348, 100 S.Ct. 1708. We declined to extend

Holloway 's automatic reversal rule to this situation and held that,

absent objection, a defendant must demonstrate that "a conflict of

interest actually affected the adequacy of his representation." 446

U.S., at 348-349, 100 S.Ct. 1708. In addition to describing the

defendant's burden of proof, Sullivan

addressed separately a trial

court's duty to inquire into the propriety of a multiple

representation, construing Holloway to require inquiry only when

"the trial court knows or reasonably should know that a particular

conflict exists," 446 U.S., at 347, 100 S.Ct. 1708

[FN2]--which is

not to be confused with when the trial court is aware of a vague,

unspecified possibility of conflict, such as that which "inheres in

almost every instance of multiple representation," id., at 348, 100

S.Ct. 1708. In Sullivan, no "special circumstances" triggered the

trial court's duty to inquire. Id., at 346, 100 S.Ct. 1708.

FN2. In order to circumvent Sullivan's clear language, Justice

STEVENS suggests that a trial court must scrutinize representation

by appointed counsel more closely than representation by retained

counsel. Post, at 1250-1251 (dissenting opinion). But we have

already rejected the notion that the Sixth Amendment draws such a

distinction. "A proper respect for the Sixth Amendment disarms

[the] contention that defendants who retain their own lawyers are

entitled to less protection than defendants for whom the State

appoints counsel .... The vital guarantee of the Sixth Amendment

would stand for little if the often uninformed decision to retain a

particular lawyer could reduce or forfeit the defendant's

entitlement to constitutional protection." Cuyler v. Sullivan, 446

U.S. 335, 344, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

Finally, in Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67

L.Ed.2d 220 (1981), three indigent defendants convicted of

distributing obscene materials had their probation revoked for

failure to make the requisite $500 monthly payments on their

$5,000 fines. We granted certiorari to consider whether this

violated the Equal Protection Clause, but during the course of our

consideration certain disturbing circumstances came to our

attention: At the probation-revocation hearing (as at all times since

their arrest) the defendants had been represented by the lawyer for

their employer (the owner of the business that purveyed the

obscenity), and their employer paid the attorney's fees. The

employer had promised his employees he would pay their fines,

and had generally kept that promise but had not done so in these

defendants' case. This record suggested that the employer's

interest in establishing a favorable equal-protection precedent

(reducing the fines he would have to pay for his indigent

employees in the future) diverged from the defendants' interest in

obtaining leniency or paying lesser fines to avoid imprisonment.

Moreover, the possibility that counsel was actively representing

the conflicting interests of employer and defendants "was

sufficiently apparent at the time of the revocation hearing to

impose upon the court a duty to inquire further." Id., at 272, 101

S.Ct. 1097. Because "[o]n the record before us, we [could not] be

sure whether counsel was influenced in his basic strategic

decisions by the interests of the employer who hired him," ibid.,

we remanded for the trial court "to determine whether the conflict

of interest that this record strongly *1243 suggests actually

existed," id., at 273, 101 S.Ct. 1097.

**5

[7] Petitioner argues that the remand instruction in Wood

established an "unambiguous rule" that where the trial judge

neglects a duty to inquire into a potential conflict, the defendant, to

obtain reversal of the judgment, need only show that his lawyer

was subject to a conflict of interest, and need not show that the

conflict adversely affected counsel's performance. Brief for

Petitioner 21. [FN3] He relies upon the language in the remand

instruction directing the trial court to grant a new revocation

hearing if it determines that "an actual conflict of interest existed,"

Wood, 450 U.S., at 273, 101 S.Ct. 1097, without requiring a further

determination that the conflict adversely affected counsel's

performance. As used in the remand instruction, however, we

think "an actual conflict of interest" meant precisely a conflict that

affected counsel's performance--as opposed to a mere theoretical

division of loyalties. It was shorthand for the statement in

Sullivan that "a defendant who shows that a conflict of interest

actually affected the adequacy of his representation need not

demonstrate prejudice in order to obtain relief." 446 U.S., at 349-

350, 100 S.Ct. 1708 (emphasis added). [FN4] This is the only

interpretation consistent with the *1244

Wood Court's earlier

description of why it could not decide the case without a remand:

"On the record before us, we cannot be sure whether counsel was

influenced in his basic strategic decisions by the interests of the

employer who hired him. If this was the case, the due process

rights of petitioners were not respected ...." 450 U.S., at 272, 101

S.Ct. 1097 (emphasis added). The notion that Wood created a new

rule sub silentio--and in a case where certiorari had been granted

on an entirely different question, and the parties had neither briefed

nor argued the conflict-of-interest issue--is implausible. [FN5]

FN3. Petitioner no longer argues, as he did below and as Justice

SOUTER does now, post, at 1260 (dissenting opinion), that the

Sixth Amendment requires reversal of his conviction without

further inquiry into whether the potential conflict that the judge

should have investigated was real. Compare 240 F.3d 348, 357

(C.A.4 2001) (en banc), with Tr. of Oral Arg. 23-25. Some Courts

of Appeals have read a footnote in Wood v. Georgia, 450 U.S. 261,

272, n. 18, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981), as establishing

that outright reversal is mandated when the trial court neglects a

duty to inquire into a potential conflict of interest. See, e.g.,

Campbell v. Rice, 265 F.3d 878, 884-885, 888 (C.A.9 2001); Ciak

v. United States, 59 F.3d 296, 302 (C.A.2 1995). But see Brien v.

United States, 695 F.2d 10, 15, n. 10 (C.A.1 1982). The Wood

footnote says that Sullivan does not preclude "raising ... a conflict-

of-interest problem that is apparent in the record" and that

"Sullivan mandates a reversal when the trial court has failed to

make [the requisite] inquiry." Wood, supra, at 272, n. 18, 101

S.Ct. 1097. These statements were made in response to the

dissent's contention that the majority opinion had "gone beyond"

Cuyler v. Sullivan,

ibid., in reaching a conflict-of-interest due-

process claim that had been raised neither in the petition for

certiorari nor before the state courts, see 450 U.S., at 280, 101

S.Ct. 1097 (White, J., dissenting). To the extent the "mandates a

reversal" statement goes beyond the assertion of mere jurisdiction

to reverse, it is dictum--and dictum inconsistent with the

disposition in Wood, which was not to reverse but to vacate and

remand for the trial court to conduct the inquiry it had omitted.

Justice SOUTER labors to suggest that the Wood remand order is

part of "a coherent scheme," post, at 1256, in which automatic

reversal is required when the trial judge fails to inquire into a

potential conflict that was apparent before the proceeding was

"held or completed," but a defendant must demonstrate adverse

effect when the judge fails to inquire into a conflict that was not

apparent before the end of the proceeding, post, at 1260. The

problem with this carefully concealed "coherent scheme" (no case

has ever mentioned it) is that in Wood itself the court did not

decree automatic reversal, even though it found that "the

possibility of a conflict of interest was sufficiently apparent at the

time of the revocation hearing to impose upon the court a duty to

inquire further." 450 U.S., at 272, 101 S.Ct. 1097 (second

emphasis added). Indeed, the State had actually notified the judge

of a potential conflict of interest " '[d]uring the probation

revocation hearing.' " Id., at 272, and n. 20, 101 S.Ct. 1097.

Justice SOUTER's statement that "the signs that a conflict may

have occurred were clear to the judge at the close of the probation

revocation proceeding," post, at 1259--when it became apparent

that counsel had neglected the "strategy more obviously in the

defendants' interest, of requesting the court to reduce the fines or

defer their collection," post, at 1258--would more accurately be

phrased "the effect of the conflict upon counsel's performance was

clear to the judge at the close of the probation revocation

proceeding."

FN4. Justice STEVENS asserts that this reading (and presumably

Justice SOUTER's reading as well, post, at 1259), is wrong, post,

at 1252; that

Wood only requires petitioner to show that a real

conflict existed, not that it affected counsel's performance, post, at

1252. This is so because we "unambiguously stated" that a

conviction must be reversed whenever the trial court fails to

investigate a potential conflict, post, at 1252 (citing Wood

footnote). As we have explained earlier, n. 3, supra, this dictum

simply contradicts the remand order in Wood.

FN5. We have used "actual conflict of interest" elsewhere to mean

what was required to be shown in Sullivan. See United States v.

Cronic, 466 U.S. 648, 662, n. 31, 104 S.Ct. 2039, 80 L.Ed.2d 657

(1984) ( "[W]e have presumed prejudice when counsel labors

under an actual conflict of interest .... See Cuyler v. Sullivan, 446

U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)"). And we have

used "conflict of interest" to mean a division of loyalties that

affected counsel's performance. In Holloway, 435 U.S., at 482, 98

S.Ct. 1173, we described our earlier opinion in Glasser v. United

States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), as follows:

"The record disclosed that Stewart failed to cross-examine a

Government witness whose testimony linked Glasser with the

conspiracy and failed to object to the admission of arguably

inadmissible evidence. This failure was viewed by the Court as a

result of Stewart's desire to protect Kretske's interests, and was

thus 'indicative of Stewart's struggle to serve two masters ....' [315

U.S.], at 75, 62 S.Ct. 457. After identifying this conflict of

interests, the Court declined to inquire whether the prejudice

flowing from it was harmless and instead ordered Glasser's

conviction reversed." (Emphasis added.)

Thus, the Sullivan standard is not properly read as requiring

inquiry into actual conflict as something separate and apart from

adverse effect. An "actual conflict," for Sixth Amendment

purposes, is a conflict of interest that adversely affects counsel's

performance.

Petitioner's proposed rule of automatic reversal when there existed

a conflict that did not affect counsel's performance, but the trial

judge failed to make the Sullivan-mandated inquiry, makes little

policy sense. As discussed, the rule applied when the trial judge is

not aware of the conflict (and thus not obligated to inquire) is that

prejudice will be presumed only if the conflict has significantly

affected counsel's performance--thereby rendering the verdict

unreliable, even though Strickland prejudice cannot be shown. See

Sullivan, supra, at 348-349, 100 S.Ct. 1708. The trial court's

awareness of a potential conflict neither renders it more likely that

counsel's performance was significantly affected nor in any other

way renders the verdict unreliable. Cf. United States v. Cronic,

466 U.S., at 662, n. 31, 104

S.Ct. 2039. Nor does the trial judge's

failure to make the Sullivan- mandated inquiry often make it harder

for reviewing courts to determine conflict and effect, particularly

since those courts may rely on evidence and testimony whose

importance only becomes established at the trial.

**6 Nor, finally, is automatic reversal simply an appropriate

means of enforcing Sullivan's mandate of inquiry. Despite Justice

SOUTER's belief that there must be a threat of sanction (to-wit, the

risk of conferring a windfall upon the defendant) in order to induce

"resolutely obdurate" trial judges to follow the law, post, at 1263,

we do not presume that judges are as careless or as partial as those

police officers who need the incentive of the exclusionary rule, see

United States v. Leon, 468 U.S. 897, 916-917, 104 S.Ct. 3405, 82

L.Ed.2d 677 (1984). And in any event, the Sullivan standard,

which requires proof of effect upon representation but (once such

effect is shown) presumes prejudice, already creates an "incentive"

to inquire into a potential conflict. In those cases where the

potential conflict is in fact an actual one, only inquiry will enable

the judge to avoid all possibility of reversal by either seeking

waiver or replacing a conflicted attorney. *1245 We doubt that the

deterrence of "judicial dereliction" that would be achieved by an

automatic reversal rule is significantly greater.

Since this was not a case in which (as in Holloway ) counsel

protested his inability simultaneously to represent multiple

defendants; and since the trial court's failure to make the Sullivan-

mandated inquiry does not reduce the petitioner's burden of proof;

it was at least necessary, to void the conviction, for petitioner to

establish that the conflict of interest adversely affected his

counsel's performance. The Court of Appeals having found no

such effect, see 240 F.3d, at 360, the denial of habeas relief must

be affirmed.

III

**7 Lest today's holding be misconstrued, we note that the only

question presented was the effect of a trial court's failure to inquire

into a potential conflict upon the Sullivan rule that deficient

performance of counsel must be shown. The case was presented

and argued on the assumption that (absent some exception for

failure to inquire) Sullivan would be applicable-- requiring a

showing of defective performance, but not requiring in addition (as

Strickland does in other ineffectiveness-of-counsel cases), a

showing of probable effect upon the outcome of trial. That

assumption was not unreasonable in light of the holdings of Courts

of Appeals, which have applied

Sullivan

"unblinkingly" to "all

kinds of alleged attorney ethical conflicts," Beets v. Scott, 65 F.3d

1258, 1266 (C.A.5 1995) (en banc). They have invoked the

Sullivan

standard not only when (as here) there is a conflict rooted

in counsel's obligations to former clients, see, e.g., Perillo v.

Johnson,\pard * 205 F.3d 775, 797-799 (C.A.5 2000); Freund v.

Butterworth, 165 F.3d 839, 858-860 (C.A.11 1999); Mannhalt v.

Reed, 847

F.2d 576, 580 (C.A.9 1988);

United States v. Young,

644 F.2d 1008, 1013 (C.A.4 1981), but even when representation

of the defendant somehow implicates counsel's personal or

financial interests, including a book deal, United States v. Hearst,

638 F.2d 1190, 1193 (C.A.9 1980), a job with the prosecutor's

office, Garcia v. Bunnell, 33 F.3d 1193, 1194-1195, 1198, n. 4

(C.A.9 1994), the teaching of classes to Internal Revenue Service

agents, United States v. Michaud, 925 F.2d 37, 40-42 (C.A.1

1991), a romantic "entanglement" with the prosecutor, Summerlin

v. Stewart, 267 F.3d 926, 935-941 (C.A.9 2001), or fear of

antagonizing the trial judge, United States v. Sayan, 968 F.2d 55,

64-65 (C.A.D.C.1992).

It must be said, however, that the language of Sullivan itself does

not clearly establish, or indeed even support, such expansive

application. "[U]ntil," it said, "a defendant shows that his counsel

actively represented conflicting interests, he has not established the

constitutional predicate for his claim of ineffective assistance."

446 U.S., at 350, 100 S.Ct. 1708 (emphasis added). Both Sullivan

itself, see id., at 348-349, 100 S.Ct. 1708, and Holloway, see 435

U.S., at 490-491, 98 S.Ct. 1173, stressed the high probability of

prejudice arising from multiple concurrent representation, and the

difficulty of proving that prejudice. See also Geer, Representation

of Multiple Criminal Defendants: Conflicts of Interest and the

Professional Responsibilities of the Defense Attorney, 62 Minn.

L.Rev. 119, 125-140 (1978); Lowenthal, Joint Representation in

Criminal Cases: A Critical Appraisal, 64 Va. L.Rev. 939, 941-950

(1978). Not all attorney conflicts present comparable difficulties.

Thus, the Federal Rules of Criminal Procedure treat concurrent

representation and prior representation differently, requiring a trial

court to inquire into the elikelihood of conflict whenever jointly

charged defendants are represented by a single attorney (Rule

44(c)), but not when counsel previously represented another

defendant in a substantially related matter, even where the trial

court is aware of the prior representation.*1246 [ FN6] See

Sullivan, supra, at 346, n. 10, 100 S.Ct. 1708 (citing the Rule).

FN6. Federal Rule of Criminal Procedure 44(c) provides:

"Whenever two or more defendants have been jointly charged

pursuant to Rule 8(b) or have been joined for trial pursuant to Rule

13, and are represented by the same retained or assigned counsel or

by retained or assigned counsel who are associated in the practice

of law, the court shall promptly inquire with respect to such joint

representation and shall personally advise each defendant of the

right to the effective assistance of counsel, including separate

representation. Unless it appears that there is good cause to

believe no conflict of interest is likely to arise, the court shall take

such measures as may be appropriate to protect each defendant's

right to counsel."

[8] This is not to suggest that one ethical duty is more or less

important than another. The purpose of our Holloway and

Sullivan exceptions from the ordinary requirements of Strickland,

however, is not to enforce the Canons of Legal Ethics, but to apply

needed prophylaxis in situations where Strickland itself is

evidently inadequate to assure vindication of the defendant's Sixth

Amendment right to counsel. See Nix v. Whiteside, 475 U.S. 157,

165, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986) ("[B]reach of an ethical

standard does not necessarily make out a denial of the Sixth

Amendment guarantee of assistance of counsel"). In resolving

this case on the grounds on which it was presented to us, we do not

rule upon the need for the

Sullivan

prophylaxis in cases of

successive representation. Whether Sullivan should be extended

to such cases remains, as far as the jurisprudence of this Court is

concerned, an open question.

* * *

**8 For the reasons stated, the judgment of the Court of Appeals

Affirmed.

Justice KENNEDY, with whom Justice O'CONNOR joins,

concurring.

In its comprehensive analysis the Court has said all that is

necessary to address the issues raised by the question presented,

and I join the opinion in full. The trial judge's failure to inquire

into a suspected conflict is not the kind of error requiring a

presumption of prejudice. We did not grant certiorari on a second

question presented by petitioner: whether, if we rejected his

proposed presumption, he had nonetheless established that a

conflict of interest adversely affected his representation. I write

separately to emphasize that the facts of this case well illustrate

why a wooden rule requiring reversal is inappropriate for cases like

this one.

At petitioner's request, the District Court conducted an evidentiary

hearing on the conflict claim and issued a thorough opinion, which

found that counsel's brief representation of the victim had no effect

whatsoever on the course of petitioner's trial. See Mickens v.

Greene, 74 F.Supp.2d 586 (E.D.Va.1999). The District Court's

findings depend upon credibility judgments made after hearing the

testimony of petitioner's counsel, Bryan Saunders, and other

witnesses. As a reviewing court, our role is not to speculate about

counsel's motives or about the plausibility of alternative litigation

strategies. Our role is to defer to the District Court's factual

findings unless we can conclude they are clearly erroneous. See

Lackawanna County District Attorney v. Coss, 532 U.S. 394, 406,

121 S.Ct. 1567, 149 L.Ed.2d 608

(2001) (opinion of O'CONNOR,

J.). The District Court found that Saunders did not believe he had

any obligation to his former client, Timothy Hall, that would

interfere with the litigation. See 74 F.Supp.2d, at 606 ("[T]he

Court concludes that, as a factual matter, Saunders did not believe

that any continuing duties to a former client might interfere with

his consideration of all facts and options for his current client")

(internal quotation marks and alteration omitted). Although the

District Court concluded that Saunders probably did learn some

matters *1247 that were confidential, it found that nothing the

attorney learned was relevant to the subsequent murder case. See

ibid. ("[T]he record here confirms that Saunders did not learn any

confidential information from Hall that was relevant to Mickens'

defense either on the merits or at sentencing" (emphasis deleted)).

Indeed, even if Saunders had learned relevant information, the

District Court found that he labored under the impression he had

no continuing duty at all to his deceased client. See id., at 605

("[T]he record here reflects that, as far as Saunders was concerned,

his allegiance to Hall, '[e]nded when I walked into the courtroom

and they told me he was dead and the case was gone' ") (quoting

Hearing Tr. 156-157, 218 (Jan. 13, 1999)). While Saunders' belief

may have been mistaken, it establishes that the prior representation

did not influence the choices he made during the course of the trial.

This conclusion is a good example of why a case-by-case inquiry

is required, rather than simply adopting an automatic rule of

reversal.

Petitioner's description of roads not taken would entail two

degrees of speculation. We would be required to assume that

Saunders believed he had a continuing duty to the victim, and we

then would be required to consider whether in this hypothetical

case, the counsel would have been blocked from pursuing an

alternative defense strategy. The District Court concluded that the

prosecution's case, coupled with the defendant's insistence on

testifying, foreclosed the strategies suggested by petitioner after

the fact. According to the District Court, there was no plausible

argument that the victim consented to sexual relations with his

murderer, given the bruises on the victim's neck, blood marks

showing the victim was stabbed before or during sexual

intercourse, and, most important, petitioner's insistence on

testifying at trial that he had never met the victim. See 74

F.Supp.2d, at 607 ("[T]he record shows that other facts foreclosed

presentation of consent as a plausible alternative defense

strategy"). The basic defense at the guilt phase was that petitioner

was not at the scene; this is hardly consistent with the theory that

there was a consensual encounter.

**9 The District Court said the same for counsel's alleged

dereliction at the sentencing phase. Saunders' failure to attack the

character of the 17- year-old victim and his mother had nothing to

do with the putative conflict of interest. This strategy was rejected

as likely to backfire, not only by Saunders, but also by his co-

counsel, who owed no duty to Hall. See id., at 608 ("[T]he record

here dispels the contention that the failure to use negative

information about Hall is attributable to any conflict of interest on

the part of Saunders"). These facts, and others relied upon by the

District Court, provide compelling evidence that a theoretical

conflictdoes not establish a constitutional violation, even when the

conflict is one about which the trial judge should have known.

The constitutional question must turn on whether trial counsel had

a conflict of interest that hampered the representation, not on

whether the trial judge should have been more assiduous in taking

prophylactic measures. If it were otherwise, the judge's duty

would not be limited to cases where the attorney is suspected of

harboring a conflict of interest. The Sixth Amendment protects

the defendant against an ineffective attorney, as well as a

conflicted one. See Strickland v. Washington, 466 U.S. 668, 685-

686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It would be a major

departure to say that the trial judge must step in every time defense

counsel appears to be providing ineffective assistance, and indeed,

there is no precedent to support this proposition. As the Sixth

Amendment guarantees the defendant the assistance of counsel, the

infringement of that right must depend on a deficiency of the

lawyer, not of the trial judge. There is no reason to presume this

guarantee unfulfilled when the purported conflict has had no effect

on the representation.

*1248 With these observations, I join the opinion of the Court.

Justice STEVENS, dissenting.

**10 This case raises three uniquely important questions about a

fundamental component of our criminal justice system--the

constitutional right of a person accused of a capital offense to have

the effective assistance of counsel for his defense. [FN1] The first

is whether a capital defendant's attorney has a duty to disclose that

he was representing the defendant's alleged victim at the time of

the murder. Second, is whether, assuming disclosure of the prior

representation, the capital defendant has a right to refuse the

appointment of the conflicted attorney. Third, is whether the trial

judge, who knows or should know of such prior representation, has

a duty to obtain the defendant's consent before appointing that

lawyer to represent him. Ultimately, the question presented by

this case is whether, if these duties exist and if all of them are

violated, there exist "circumstances that are so likely to prejudice

the accused that the cost of litigating their effect in a particular

case is unjustified." United States v. Cronic, 466 U.S. 648, 658,

104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

FN1. The Sixth Amendment provides: "In all criminal

prosecutions, the accused shall enjoy the right ... to have the

Assistance of Counsel for his defence." This protection is

applicable to State, as well as federal, criminal proceedings.

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799

(1963). We have long recognized the paramount importance of

the right to effective assistance of counsel. United States v.

Cronic, 466 U.S. 648, 653-654, 104 S.Ct. 2039, 80 L.Ed.2d 657

(1984) (" 'Of all the rights that an accused person has, the right to

be represented by counsel is by far the most pervasive for it affects

his ability to assert any other rights he may have' ") (citation

omitted).

The first critical stage in the defense of a capital case is the series

of pretrial meetings between the accused and his counsel when

they decide how the case should be defended. A lawyer cannot

possibly determine how best to represent a new client unless that

client is willing to provide the lawyer with a truthful account of the

relevant facts. When an indigent defendant first meets his newly

appointed counsel, he will often falsely maintain his complete

innocence. Truthful disclosures of embarrassing or incriminating

facts are contingent on the development of the client's confidence

in the undivided loyalty of the lawyer. Quite obviously,

knowledge that the lawyer represented the victim would be a

substantial obstacle to the development of such confidence.

It is equally true that a lawyer's decision to conceal such an

important fact from his new client would have comparable

ramifications. The suppression of communication and truncated

investigation that would unavoidably follow from such a decision

would also make it difficult, if not altogether impossible, to

establish the necessary level of trust that should characterize the

"delicacy of relation" between attorney and client. [FN2]

FN2.

Williams v. Reed, 29 F. Cas. 1386, 1390 (No. 17,733)

(C.C.D.Me. 1824). Discussing the necessity of full disclosure to

the preservation of the lawyer-client relationship, Justice Story

stated: "I agree to the doctrine urged at the bar, as to the delicacy

of the relation of client and attorney, and the duty of a full, frank,

and free disclosure by the latter of every circumstance, which may

be presumed to be material, not merely to the interests, but to the

fair exercise of the judgment, of the client."

In this very case, it is likely that Mickens misled his counsel,

Bryan Saunders, given the fact that Mickens gave false testimony

at his trial denying any involvement in the crime despite the

overwhelming evidence that he had killed Timothy Hall after a

sexual encounter. In retrospect, it seems obvious that the death

penalty might have been avoided by acknowledging Mickens'

involvement, but emphasizing the evidence suggesting that their

sexual encounter was consensual. Mickens' habeas counsel

garnered evidence*1249 suggesting that Hall was a male

prostitute, App. 137, 149, 162, 169; that the area where Hall was

killed was known for prostitution, id., at 169-170; and that there

was no evidence that Hall was forced to the secluded area where he

was ultimately murdered. An unconflicted attorney could have

put forward a defense tending to show that Mickens killed Hall

only after the two engaged in consensual sex, but Saunders offered

no such defense. This was a crucial omission--a finding of

forcible sodomy was an absolute prerequisite to Mickens'

eligibility for the death penalty. [FN3] Of course, since that

strategy would have led to conviction of a noncapital offense,

counsel would have been unable to persuade the defendant to

divulge the information necessary to support such a defense and

then ultimately to endorse the strategy unless he had earned the

complete confidence of his client.

FN3. At the guilt phase, the trial court judge instructed Mickens'

jury as follows: "If you find that the Commonwealth has failed to

prove beyond a reasonable doubt that the killing occurred in the

commission of, or subsequent to, attempted forcible sodomy ...

[but do find a malicious, willful, deliberate, premeditated killing],

then you shall find the defendant guilty of first degree murder. If

you find the defendant guilty of first degree murder, then you shall

fix his punishment at: (1) Imprisonment for life; or (2) A specific

term of imprisonment, but not less than twenty years...." App. 58-

59.

Saunders' concealment of essential information about his prior

representation of the victim was a severe lapse in his professional

duty. The lawyer's duty to disclose his representation of a client

related to the instant charge is not only intuitively obvious, it is as

old as the profession. Consider this straightforward comment

made by Justice Story in 1824:

**11 "An attorney is bound to disclose to his client every adverse

retainer, and even every prior retainer, which may affect the

discretion of the latter. No man can be supposed to be indifferent

to the knowledge of facts, which work directly on his interests, or

bear on the freedom of his choice of counsel. When a client

employs an attorney, he has a right to presume, if the latter be

silent on the point, that he has no engagements, which interfere, in

any degree, with his exclusive devotion to the cause confided to

him; that he has no interest, which may betray his judgment, or

endanger his fidelity." Williams v. Reed, 29 F. Cas. 1386, 1390

(No. 17,733) (C.C.D.Me. 1824).

Mickens' lawyer's violation of this fundamental obligation of

disclosure is indefensible. The relevance of Saunders' prior

representation of Hall to the new appointment was far too

important to be concealed.

If the defendant is found guilty of a capital offense, the ensuing

proceedings that determine whether he will be put to death are

critical in every sense of the word. At those proceedings,

testimony about the impact of the crime on the victim, including

testimony about the character of the victim, may have a critical

effect on the jury's decision. Payne v. Tennessee, 501 U.S. 808,

111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Because a lawyer's

fiduciary relationship with his deceased client survives the client's

death, Swidler & Berlin v. United States, 524 U.S. 399, 118 S.Ct.

2081, 141 L.Ed.2d 379 (1998), Saunders necessarily labored under

conflicting obligations that were irreconcilable. He had a duty to

protect the reputation and confidences of his deceased client, and a

duty to impeach the impact evidence presented by the prosecutor.

[FN4]

FN4. For example, at the time of Hall's death, Saunders was

representing Hall in juvenile court for charges arising out of an

incident involving Hall's mother. She had sworn out a warrant for

Hall's arrest charging him with assault and battery. Despite

knowledge of this, Mickens' lawyer offered no rebuttal to the

victim-impact statement submitted by Hall's mother that " 'all [she]

lived for was that boy.' " App. 297.

*1250 Saunders' conflicting obligations to his deceased client, on

the one hand, and to his living client, on the other, were

unquestionably sufficient to give Mickens the right to insist on

different representation. [FN5] For the "right to counsel

guaranteed by the Constitution contemplates the services of an

attorney devoted solely to the interests of his client," Von Moltke v.

Gillies, 332 U.S. 708, 725, 68 S.Ct. 316, 92 L.Ed. 309 (1948).

[FN6] Moreover, in my judgment, the right to conflict-free counsel

is just as firmly protected by the Constitution as the defendant's

right of self-representation recognized in Faretta v. California, 422

U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). [FN7]

FN5. A group of experts in legal ethics, acting as Amici Curiae,

submit that the conflict in issue in this case would be nonwaivable

pursuant to the standard articulated in the ABA Ann. Model Rules

of Professional Conduct (4th ed.1999). Brief for Legal Ethicists et

al. as Amici Curiae 16 ("[T]he standard test to determine if a

conflict is non- waiveable is whether a 'disinterested lawyer would

conclude that the client should not agree to the representation

under the circumstances.' " (quoting Model Rule 1.7, Comment 5)).

Unfortunately, because Mickens was not informed of the fact that

his appointed attorney was the lawyer of the alleged victim, the

questions whether Mickens would have waived this conflict and

consented to the appointment, or whether governing standards of

professional responsibility would have precluded him from doing

so, remain unanswered.

FN6. Although the conflict in this case is plainly intolerable, I, of

course, do not suggest that every conflict, or every violation of the

code of ethics, is a violation of the Constitution.

FN7. "[W]hen a defendant chooses to have a lawyer manage and

present his case, law and tradition may allocate to the counsel the

power to make binding decisions of trial strategy in many areas....

This allocation can only be justified, however, by the defendant's

consent, at the outset, to accept counsel as his representative. An

unwanted counsel 'represents' the defendant only through a tenuous

and unacceptable legal fiction. Unless the accused has acquiesced

in such representation, the defense presented is not the defense

guaranteed him by the Constitution, for, in a very real sense, it is

not his defense." 422 U.S., at 820-821, 95 S.Ct. 2525.

III

When an indigent defendant is unable to retain his own lawyer,

the trial judge's appointment of counsel is itself a critical stage of a

criminal trial. At that point in the proceeding, by definition, the

defendant has no lawyer to protect his interests and must rely

entirely on the judge. For that reason it is "the solemn duty of a ...

judge before whom a defendant appears without counsel to make a

thorough inquiry and to take all steps necessary to insure the fullest

protection of this constitutional right at every stage of the

proceedings." Von Moltke, 332 U.S., at 722, 68 S.Ct. 316.

This duty with respect to indigent defendants is far more

imperative than the judge's duty to investigate the possibility of a

conflict that arises when retained counsel represents either multiple

or successive defendants. It is true that in a situation of retained

counsel, "[u]nless the trial court knows or reasonably should know

that a particular conflict exists, the court need not initiate an

inquiry." Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708,

64 L.Ed.2d 333 (1980). [FN8] But when, *1251 as was true in this

case, the judge is not merely reviewing the permissibility of the

defendants' choice of counsel, but is responsible for making the

choice herself, and when she knows or should know that a conflict

does exist, the duty to make a thorough inquiry is manifest and

unqualified. [FN9] Indeed, under far less compelling

circumstances, we squarely held that when a record discloses the

"possibility of a conflict" between the interests of the defendants

and the interests of the party paying their counsel's fees, the

Constitution imposes a duty of inquiry on the statecourt judge even

when no objection was made. Wood v. Georgia, 450 U.S. 261, 267,

272, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981).

FN8. Part III of the Court's opinion is a foray into an issue that is

not implicated by the question presented. In dicta, the Court states

that Sullivan may not even apply in the first place to successive

representations. Ante, at 1244-1245. Most Courts of Appeals,

however, have applied Sullivan to claims of successive

representation as well as to some insidious conflicts arising from a

lawyer's self-interest. See cases cited ante, at 10-11. We have

done the same. See Wood v. Georgia, 450 U.S. 261, 101 S.Ct.

1097, 67 L.Ed.2d 220 (1981) (applying

Sullivan

to a conflict

stemming from a third-party payment arrangement). Neither we

nor the Courts of Appeals have applied this standard

"unblinkingly," as the Court accuses, ante, at 1244, but rather have

relied upon principled reason. When a conflict of interest,

whether multiple, successive, or otherwise, poses so substantial a

risk that a lawyer's representation would be materially and

adversely affected by diverging interests or loyalties and the trial

court judge knows of this and yet fails to inquire, it is a

"[c]ircumstanc[e] of [such] magnitude" that "the likelihood that

any lawyer, even a fully competent one, could provide effective

assistance is so small that a presumption of prejudice is appropriate

without inquiry into the actual conduct of the trial." Cronic, 466

U.S., at 659-660, 104 S.Ct. 2039.

FN9. There is no dispute before us as to the appointing judge's

knowledge. Thecourt below assumed, arguendo, that the judge

who, upon Hall's death, dismissed Saunders from his

representation of Hall and who then three days later appointed

Saunders to represent Mickens in the killing of Hall "reasonably

should have known that Saunders labored under a potential conflict

of interest arising from his previous representation of Hall." 240

F.3d 348, 357 (C.A.4 2001). This assumption has not been

challenged.

**12 Mickens had a constitutional right to the services of an

attorney devoted solely to his interests. That right was violated.

The lawyer who did represent him had a duty to disclose his prior

representation of the victim to Mickens and to the trial judge.

That duty was violated. When Mickens had no counsel, the trial

judge had a duty to "make a thorough inquiry and to take all steps

necessary to insure the fullest protection of" his right to counsel.

Von Moltke, 332 U.S., at 722, 68 S.Ct. 316. Despite knowledge of

the lawyer's prior representation, she violated that duty.

We will never know whether Mickens would have received the

death penalty if those violations had not occurred nor precisely

what effect they had on Saunders' representation of Mickens.

[FN10] We do know that he did not receive the kind of

representation that the Constitution guarantees. If Mickens had

been represented by an attorney-impostor who never passed a bar

examination, we might also be unable to determine whether the

impostor's educational shortcomings " 'actually affected the

adequacy of his representation.' " Ante, at 1243 (emphasis

deleted). We would, however, surely set aside his conviction if

the person who had represented him was not a real lawyer. Four

compelling reasons make setting aside the conviction the proper

remedy in this case.

FN10. I disagree with the Court's assertion that the inquiry

mandated by Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64

L.Ed.2d 333 (1980), will not aid in the determination of conflict

and effect. Ante, at 1244. As we have stated, "the evil [of

conflict-ridden counsel] is in what the advocate finds himself

compelled to refrain from doing ... [making it] difficult to judge

intelligently the impact of a conflict on the attorney's

representation of a client." Holloway v. Arkansas, 435 U.S. 475,

490-491, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). An adequate

inquiry by the appointing or trial court judge will augment the

record thereby making it easier to evaluate the impact of the

conflict.

First, it is the remedy dictated by our holdings in Holloway v.

Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978),

Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333

(1980), and Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67

L.Ed.2d 220 (1981). In this line of precedent, our focus was

properly upon the duty of the trial court judge to inquire into a

potential conflict. This duty was triggered either via defense

counsel's objection, as was the case in Holloway, or some other

"special circumstances" whereby the serious potential for conflict

was brought to the attention of the trial court judge. Sullivan, 446

U.S., at 346, 100 S.Ct. 1708. As we unambiguously stated in

Wood, "Sullivan mandates a reversal when the trial court has failed

to make an *1252 inquiry even though it 'knows or reasonably

should know that a particular conflict exists.' " 450 U.S., at 272, n.

18, 101 S.Ct. 1097. It is thus wrong for the Court to interpret

Justice Powell's language as referring only to a division of loyalties

"that affected counsel's performance." Ante, at 1243, n. 3

(emphasis deleted). [FN11] Wood nowhere hints of this meaning

of "actual conflict of interest" 450 U.S., at 273, 101 S.Ct. 1097, nor

does it reference Sullivan in "shorthand," ante, at 1243. Rather,

Wood cites Sullivan explicitly in order to make a factual

distinction: In a circumstance, such as in Wood, in which the judge

knows or should know of the conflict, no showing of adverse effect

is required. But when, as in Sullivan, the judge lacked this

knowledge, such a showing is required. Wood, 450 U.S., at 272-

274, 101 S.Ct. 1097. [FN12]

FN11. The Court concedes that if Mickens' attorney had objected

to the appointment based upon the conflict of interest and the trial

court judge had failed to inquire, then reversal without inquiry into

adverse effect would be required. Ante, at 1244. The Court, in

addition to ignoring the mandate of Wood, reads Sullivan too

narrowly. In Sullivan we did not ask only whether an objection

was made in order to ascertain whether the trial court had a duty to

inquire. Rather, we stated that "[n]othing in the circumstances of

this case indicates that the trial court had a duty to inquire whether

there was a conflict of interest. The provision of separate trials for

Sullivan and his codefendants significantly reduced the potential

for a divergence in their interests. No participant in Sullivan's trial

ever objected to the multiple representation .... On these facts, we

conclude that the Sixth Amendment imposed upon the trial court

no affirmative duty to inquire into the propriety of multiple

representation." 446 U.S., at 347-348, 100 S.Ct. 1708. It is also

counter to our precedent to treat all Sixth Amendment challenges

involving conflicts of interest categorically, without inquiry into

the surrounding factual circumstances. In Cronic, we cited

Holloway as an example of a case involving "surrounding

circumstances [making] it so unlikely that any lawyer could

provide effective assistance that ineffectiveness was properly

presumed without inquiry into actual performance at trial."

Cronic, 466 U.S., at 661, and n. 28, 104 S.Ct. 2039. The

surrounding circumstances in the present case were far more

egregious than those requiring reversal in either Holloway or

Wood.

FN12. Because the appointing judge knew of the conflict, there is

no need in this case to decide what should be done when the judge

neither knows, nor should know, about the existence of an

intolerable conflict. Nevertheless the Court argues that it makes

little sense to reverse automatically upon a showing of actual

conflict when the trial court judge knows (or reasonably should

know) of a potential conflict and yet has failed to inquire, but not

to do so when the trial court judge does not know of the conflict.

Ante, at 1243. Although it is true that the defendant faces the

same potential for harm as a result of a conflict in either instance,

in the former case the court committed the error and in the latter

the harm is entirely attributable to the misconduct of defense

counsel. A requirement that the defendant show adverse effect

when the court committed no error surely does not justify such a

requirement when the court did err. It is the Court's rule that leads

to an anomalous result. Under the Court's analysis, if defense

counsel objects to the appointment, reversal without inquiry into

adverse effect is required. Ante, at 1244. But counsel's failure to

object posed a greater--not a lesser--threat to Mickens' Sixth

Amendment right. Had Saunders objected to the appointment,

Mickens would at least have been apprised of the conflict.

Second, it is the only remedy that responds to the real possibility

that Mickens would not have received the death penalty if he had

been represented by conflict-free counsel during the critical stage

of the proceeding in which he first met with his lawyer. We

should presume that the lawyer for the victim of a brutal homicide

is incapable of establishing the kind of relationship with the

defendant that is essential to effective representation.

**13 Third, it is the only remedy that is consistent with the legal

profession's historic and universal condemnation of the

representation of conflicting interests without the full disclosure

and consent of all interested parties. [FN13] The Court's novel and

*1253 naïve assumption that a lawyer's divided loyalties are

acceptable unless it can be proved that they actually affected

counsel's performance is demeaning to the profession.

FN13. Every state bar in the country has an ethical rule prohibiting

a lawyer from undertaking a representation that involves a conflict

of interest unless the client has waived the conflict. University

Publications of America, National Reporter on Legal Ethics and

Professional Responsibility, Vols. I-IV (2001) (reprinting the

professional responsibility codes for the 50 States). See also,

ABA Ann. Model Rule of Professional Responsibility 1.7, pp. 91-

92, Comments 3 and 4 ("As a general proposition, loyalty to a

client prohibits undertaking representation directly adverse to that

client without that client's consent .... Loyalty to a client is also

impaired when a lawyer cannot consider, recommend or carry out

an appropriate course of action for the client because of the

lawyer's other responsibilities or interests").

Finally, "justice must satisfy the appearance of justice." Offutt v.

United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954).

Setting aside Mickens' conviction is the only remedy that can

maintain public confidence in the fairness of the procedures

employed in capital cases. Death is a different kind of punishment

from any other that may be imposed in this country. "From the

point of view of the defendant, it is different in both its severity

and its finality. From the point of view of society, the action of

the sovereign in taking the life of one of its citizens also differs

dramatically from any other legitimate state action. It is of vital

importance to the defendant and to the community that any

decision to impose the death sentence be, and appear to be, based

on reason rather than caprice or emotion." Gardner v. Florida,

430 U.S. 349, 357-358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). A

rule that allows the State to foist a murder victim's lawyer onto his

accused is not only capricious; it poisons the integrity of our

adversary system of justice.

I respectfully dissent.

Justice SOUTER, dissenting.

A judge who knows or should know that counsel for a criminal

defendant facing, or engaged in, trial has a potential conflict of

interests is obliged to enquire into the potential conflict and assess

its threat to the fairness of the proceeding. See Wheat v. United

States, 486 U.S. 153, 160, 108 S.Ct. 1692, 100 L.Ed.2d 140

(1988); Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct.

1097, 67

L.Ed.2d 220 (1981); Cuyler v. Sullivan, 446 U.S. 335, 347, 100

S.Ct. 1708, 64 L.Ed.2d 333 (1980). Cf. Holloway v. Arkansas,

435 U.S. 475, 484, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Unless

the judge finds that the risk of inadequate representation is too

remote for further concern, or finds that the defendant has

intelligently assumed the risk and waived any potential Sixth or

Fourteenth Amendment claim of inadequate counsel, the court

must see that the lawyer is replaced. See id., at 484, 98 S.Ct.

1173; Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86

L.Ed. 680 (1942). Cf. Wheat,

supra, at 162, 108 S.Ct. 1692;

Advisory Committee's Notes on 1979 Amendments to Fed. Rule

Crim. Proc. 44(c), 18 U.S.C.App., p. 1655.

The District Judge reviewing the federal habeas petition in this

case found that the state judge who appointed Bryan Saunders to

represent petitioner Mickens on a capital murder charge knew or

should have known that obligations stemming from Saunders's

prior representation of the victim, Timothy Hall, potentially

conflicted with duties entailed by defending Mickens. [FN1]

*1254Mickens v. Greene, 74 F.Supp.2d 586, 613-615

(E.D.Va.1999). The state judge was therefore obliged to look

further into the extent of the risk and, if necessary, either secure

Mickens's knowing and intelligent assumption of the risk or

appoint a different lawyer. The state judge, however, did nothing

to discharge her constitutional duty of care. Id., at 614. In the one

case in which we have devised a remedy for such judicial

dereliction, we held that the ensuing judgment of conviction must

be reversed and the defendant afforded a new trial. Holloway,

supra, at 491, 98 S.Ct. 1173; see also Wood, supra, at 272, n. 18,

101 S.Ct. 1097. That should be the result here.

FN1. The parties do not dispute that the appointing judge in this

case knew or reasonably should have known that Saunders had

represented Hall on assault and battery charges brought against

him by his mother and a separate concealed-weapon charge at the

time of his murder. Lodging to App. 390, 393. The name

"BRYAN SAUNDERS," in large, handwritten letters, was

prominently visible as the appointed lawyer on a one-page docket

sheet four inches above where the judge signed her name and

wrote: "Remove from docket. Def[endant] deceased." Id., at

390. The same judge then called Saunders the next business day

to ask if he would "do her a favor" and represent the only person

charged with having killed the victim. App. 142. And, if that

were not enough, Mickens's arrest warrants which were apparently

before the judge when she appointed Saunders, charged Mickens

with the murder, " 'on or about March 30, 1992,' " of " 'Timothy

Jason Hall, white male, age 17.' " Mickens v. Greene, 74

F.Supp.2d 586, 614

(E.D.Va.1999). The juvenile-court judge,

whom circumstances had thrust into the unusual position of having

to appoint counsel in a notorious capital case, certainly knew or

had reason to know of the possibility that Saunders's 14-day

representation of the murder victim, up to the start of the previous

business day, may have created a risk of impairing his

representation of Mickens in his upcoming murder trial.

**14 The Court today holds, instead, that Mickens should be

denied this remedy because Saunders failed to employ a formal

objection as a means of bringing home to the appointing judge the

risk of conflict. Ante, at 1245. Without an objection, the majority

holds, Mickens should get no relief absent a showing that the risk

turned into an actual conflict with adverse effect on the

representation provided to Mickens at trial. Ibid. But why should

an objection matter when even without an objection the state judge

knew orshould have known of the risk and was therefore obliged to

enquire further? What would an objection have added to the

obligation the state judge failed to honor? The majority says that

in circumstances like those now before us, we have already held

such an objection necessary for reversal, absent proof of actual

conflict with adverse effect, so that this case calls simply for the

application of precedent, albeit precedent not very clearly stated.

Ante, at 1244.

The majority's position is error, resting on a mistaken reading of

our cases. Three are on point, Holloway v. Arkansas, supra;

Cuyler v. Sullivan, supra; and Wood v. Georgia, supra.

In Holloway, a trial judge appointed one public defender to

represent three criminal defendants tried jointly. 435 U.S., at 477,

98 S.Ct. 1173. Three weeks before trial, counsel moved for

separate representation; the court held a hearing and denied the

motion. Ibid. The lawyer moved again for appointment of separate

counsel before the jury was empaneled, on the ground that one or

two of the defendants were considering testifying at trial, in which

event the one lawyer's ability to cross-examine would be inhibited.

Id., at 478, 98 S.Ct. 1173. The court again denied his motion.

Ibid. After the prosecution rested, counsel objected to the joint

representation a third time, advising the court that all three

defendants had decided to testify; again the court refused to

appoint separate lawyers. Id., at 478- 480, 98 S.Ct. 1173. The

defendants gave inconsistent testimony and were convicted on all

counts. Id., at 481, 98 S.Ct. 1173.

This Court held that the motions apprised the trial judge of a

"risk" that continuing the joint representation would subject

defense counsel in the pending trial to the impossible obligations

of simultaneously furthering the conflicting interests of the several

defendants, id., at 484, 98 S.Ct. 1173, and we reversed the

convictions on the basis of the judge's failure to respond to the

prospective conflict, without any further showing of harm, id., at

491, 98 S.Ct. 1173. In particular, we rejected the argument that a

defendant tried subject to such a disclosed risk should have to

show actual prejudice caused by subsequent conflict. Id., at 488,

98 S.Ct. 1173. We pointed *1255 out that conflicts created by

multiple representation characteristically deterred a lawyer from

taking some step that he would have taken if unconflicted, and we

explained that the consequent absence of footprints would often

render proof of prejudice virtually impossible. Id., at 489-491, 98

S.Ct. 1173.

**15 Next came Cuyler v. Sullivan, 446 U.S.335, 100 S.Ct. 1708,

64 L.Ed.2d 333 (1980), involving multiple representation by two

retained lawyers of three defendants jointly indicted but separately

tried, id., at 337, 100 S.Ct. 1708. Sullivan, the defendant at the

first trial, had consented to joint representation by the same

lawyers retained by the two other accused, because he could not

afford counsel of his own. Ibid. Sullivan was convicted of murder;

the other two were acquitted in their subsequent trials. Id., at 338,

100 S.Ct. 1708. Counsel made no objection to the multiple

representation before or during trial,

ibid.; nor did the convicted

defendant argue that the trial judge otherwise knew or should have

known of the risk described in Holloway, that counsel's

representation might be impaired by conflicting obligations to the

defendants to be tried later, id., at 343, 100 S.Ct. 1708.

This Court held that multiple representation did not raise enough

risk of impaired representation in a coming trial to trigger a trial

court's duty to enquire further, in the absence of "special

circumstances." [FN2] Id., at 346, 100 S.Ct. 1708. The most

obvious special circumstance would be an objection. See

Holloway, supra, at 488, 98 S.Ct. 1173. Indeed, because multiple

representation was not suspect per se, and because counsel was in

the best position to anticipate a risk of conflict, the Court spoke at

one point as though nothing but an objection would place a court

on notice of a prospective conflict. Cuyler, 446 U.S., at 348, 100

S.Ct. 1708 ("[A] defendant who raised no objection at trial must

demonstrate that an actual conflict of interest adversely affected

his lawyer's performance" (footnote omitted)). But the Court also

explained that courts must rely on counsel in "large measure," id.,

at 347, 100 S.Ct. 1708, that is, not exclusively, and it spoke in

general terms of a duty to enquire that arises when "the trial court

knows or reasonably should know that a particular conflict exists."

[FN3]

*1256

Ibid. (footnote omitted). Accordingly, the Court did

not rest the result simply on the failure of counsel to object, but

said instead that "[n]othing in the circumstances of this case

indicates that the trial court had a duty to inquire whether there was

a conflict of interest," ibid. For that reason, it held respondent

bound to show "that a conflict of interest actually affected the

adequacy of his representation." Id., at 349, 100 S.Ct. 1708.

FN2. The constitutional rule binding the state courts is thus more

lenient than Rule44(c) of the Federal Rules of Criminal Procedure,

which provides: