# Holloway v. Arkansas/Dissent Powell

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Powell
Mr. Justice Powell, with whom Mr. Justice Blackmun and Mr. Justice Rehnquist join, dissenting.
While disavowing a per se rule of separate representation, the Court holds today that the trial judge's failure in this case "either to appoint separate counsel or take adequate steps to ascertain whether the risk was to remote to warrant separate counsel" worked a violation of the guarantee of "assistance of counsel" embodied in the Sixth and Fourteenth Amendments. The Court accepts defense counsel's representations of a possible conflict of interests among his clients and of his inability to conduct effective cross-examination as being adequate to trigger the trial court's duty of inquiry. The trial court should have held an appropriate hearing on defense counsel's motions for separate representation, but our task is to decide whether this omission assumes the proportion of a constitutional violation. Because I cannot agree that, in the particular circumstances of this case, the court's failure to inquire requires reversal of petitioners' convictions, and because the Court's opinion contains seeds of a per se rule of separate representation merely upon the demand of defense counsel, I respectfully dissent.

## I

It is useful to contrast today's decision with the Court's most relevant previous ruling, Glasser v. United States, 315 U.S. 60 (1942). In that case, the trial court ordered Glasser's [p492] retained lawyer, Stewart, to represent both Glasser and his codefendant, Kretske, even though Stewart had identified "inconsistency in the defense" that counseled against joint representation. Id., at 68. This Court reversed Glasser's conviction because his lawyer had been required to undertake simultaneous representation of "conflicting interests." Id., at 70. The Glasser decision did not rest only on the determination that "[t]he possibility of the inconsistent interests of Glasser and Kretske [had been] brought home to the court . . . ." Id., at 71. Instead, the Court proceeded to find record support for Glasser's claim of "impairment" of his Sixth Amendment right to assistance of counsel. The evidence "indicative of Stewart's struggle to serve two masters [could not] seriously be doubted." Id., at 75; see also id. at 76.
Today's decision goes well beyond the limits of Glasser. I agree that the representations made by defense counsel in this case, while not as informative as the affidavit of counsel Stewart in Glasser, were sufficient to bring into play the trial court's duty to inquire further into the possibility of "conflicting interests." I question, however, whether the Constitution is violated simply by the failure to conduct that inquiry, without any additional determination that the record reveal a case of joint representation in the face of "conflicting interests." The Court's approach in this case is not premised on an ultimate finding of conflict of interest or ineffective assistance of counsel. Rather, it presumes prejudice from the failure to conduct an inquiry, equating that failure with a violation of the Sixth Amendment guarantee. The justification for this approach appears to be the difficulty of a post hoc reconstruction of the record to determine whether a different outcome, or even a different defense strategy, might have obtained had the trial court engaged in the requisite inquiry and ordered separate representation. Although such difficulty may be taken into account in the allocation of the burden of persuasion on the questions of conflict and prejudice, see infra [p493] at 495–496, I am not convinced of the need for a prophylactic gloss on the requirements of the Constitution in this area of criminal law. Cf. Miranda v. Arizona, 384 U.S. 436 (1966).
Several other aspects of the Court's opinion suggest a rule of separate representation upon demand of defense counsel. The Court leaves little room for maneuver for a trial judge who seeks to inquire into the substantiality of the defense counsel's representations. Apparently, the trial judge must order separate representation unless the asserted risk of conflict "was too remote to warrant separate counsel," ante at 484, a formulation that suggests a minimal showing on the part of defense counsel. The Court also offers the view that defense counsel in this case could not be expected to make the kind of specific proffer that was present in Glasser because of "a risk of violating, by more disclosure, his duty of confidentiality to his clients." Ante at 485. Although concededly not necessary to a decision in this case, the Court then states that the trial court's inquiry must be conducted "without improperly requiring disclosure of the confidential communications of the client." Ante at 487, and n. 11. When these intimations are coupled with the Court's policy of automatic reversal, see ante at 488–489, the path may have been cleared for potentially disruptive demands for separate counsel predicated solely on the representations of defense counsel. [p494]

## II

Recognition of the limits of this Court's role in adding protective layers to the requirements of the Constitution does not detract from the Sixth Amendment obligation to provide separate counsel upon a showing of reasonable probability of need. In my view, a proper accommodation of the interests of defendants in securing effective assistance of counsel and that of the State in avoiding the delay, potential for disruption, and costs inherent in the appointment of multiple counsel, can be achieved by means which sweep less broadly than the approach taken by the Court. I would follow the lead of the several Courts of Appeals that have recognized the trial court's duty of inquiry in joint representation cases without minimizing the constitutional predicate of "conflicting interests."
[p495] Ordinarily, defense counsel has the obligation to raise objections to joint representation as early as possible before the commencement of the trial. When such a motion is made, supported by a satisfactory proffer, the trial court is under a duty to conduct "the most careful inquiry to satisfy itself that no conflict of interest would be likely to result and that the parties involved had no valid objection." United States v. DeBerry, 487 F.2d 448, 453 (CA2 1973). At that hearing, the burden is on defense counsel, because his clients are in possession of the relevant facts, to make a showing of a reasonable likelihood of conflict or prejudice. Upon such a showing, separate counsel should be appointed. "If the court has carried out this duty of inquiry, then, to the extent a defendant later attacks his conviction on grounds of conflict of interest arising from joint representation, he will bear a heavy burden indeed of persuading" the reviewing court "that he was, for that reason, deprived of a fair trial." United States v. Foster, 469 F.2d 1, 5 (CA1 1972). If, however, a proper and timely motion is made, and no hearing is held, "the lack of satisfactory judicial inquiry shifts the burden of proof on the question of prejudice to the Government." United States v. Carrigan, 543 F.2d 1053, 1056 (CA2 1976).
Since the trial judge in this case failed to inquire into the [p496] substantiality of defense counsel's representations of September 4, 1975, ante, at 484 n. 7, the burden shifted to the State to establish the improbability of conflict or prejudice. I agree that the State's burden is not met simply by the assertion that the defenses of petitioners were not mutually inconsistent, for that is not an infrequent consequence of improper joint representation. Nevertheless, the record must offer some basis for a reasonable inference that "conflicting interests" hampered a potentially effective defense. See, e.g., United States v. Donahue, 560 F.2d 1039, 1044–1045 (CA1 1977). Because the State has demonstrated that such a basis cannot be found in the record of this case, I would affirm the judgment of the Supreme Court of Arkansas.
* ↑ I do not propose to resolve here the tension between the assertion of a constitutional right and a claim of lawyer-client privilege. But I reject the assumption that defense counsel will be unable to discuss in concrete terms the difficulties of joint representation in a particular case without betraying confidential communications. Nor am I persuaded that the courts will be unable to pursue a meaningful inquiry without insisting on a breach of confidentiality. Experience in the somewhat analogous area of claims of exemption from the disclosure requirements of the Freedom of Information Act, 5 U.S.C. § 552 (1976 ed.), supports this point. See, e.g., EPA v. Mink, 410 U.S. 73, 92–94 (1973); Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 20 (1973), cert. denied, 415 U.S. 977 (1974).
* ↑ Each addition of a lawyer in the trial of multiple defendants presents increased opportunities for delay in setting the trial date, in disposing of pretrial motions, in selecting the jury, and in the conduct of the trial itself. Additional lawyers also may tend to enhance the possibility of trial errors. Moreover, in light of professional canons of ethics, cf. ABA Code of Professional Responsibility, DR 5-105(D) (1969); Allen v. District Court, 184 Colo. 202, 205–206, 519 P.2d 361, 353 (1974); Tr. of Oral Arg. 6–7, 15–16, a rule requiring separate counsel virtually upon demand may disrupt the operation of public defender offices.
* ↑ See, e.g., United States v. Carrigan, 543 F.2d 1053, 1055–1056 (CA2 1976):  "The mere representation of two or more defendants by a single attorney does not automatically give rise to a constitutional deprivation of counsel. It is settled in this Circuit that some specific instance of prejudice, some real conflict of interest, resulting from a joint representation must be shown to exist before it can be said that an appellant has been denied the effective assistance of counsel. United States v. Mari, . . . 526 F.2d [117,] 119 [(CA2 1975)]; United States v. Vowteras, 500 F.2d 1210, 1211 (2d Cir.), cert. denied, 419 U.S. 1069 . . . (1974); United States v. Wisniewski, 478 F.2d 274, 281 (2d Cir.1973); United States v. Lovano, 420 F.2d 769, 773 (2d Cir.), cert. denied, 397 U.S. 1071 . . . (1970). In all of these cases, the trial court had carefully inquired as to the possibility of prejudice and elicited the personal responses of the de- [p495] fendants involved. Here, the record is barren of any inquiry by the court or any concern by the Government."  "In United States v. DeBerry, supra, 487 F.2d at 453–454, we . . . noted with approval the view of the First Circuit in United States v. Foster, 469 F.2d 1, 5 (1st Cir.1972), that the lack of satisfactory judicial inquiry shifts the burden of proof on the question of prejudice to the Government. 487 F.2d at 453 n. 6."
* ↑ Since a proper, timely objection was interposed in this case, there is no occasion to identify the circumstances which might trigger a duty of inquiry in the absence of such a motion.  Of course, a later motion may be appropriate if the conflict is not known or does not become apparent before trial proceeds. To guard against strategic disruption of the trial, however, the court may require a substantial showing of justification for such mid-trial motions.
* ↑ It is unlikely that separate counsel would have been able to develop an independent defense in this case because of the degree of overlap in the identification testimony by the State's witnesses and because of the consistency of the alibis advanced by petitioners. Campbell and Welch, who are half brothers, both used the same alibi. Since Campbell was not identified as an actual participant in the rapes, it might be argued that separate counsel would have encouraged him to endorse his earlier confession in an effort to show that he was less culpable than his two codefendants. But, given his common alibi with Welch, Campbell would have found it difficult to extricate himself from his half brother's cause. In any event, such an argument would have been an appeal to jury nullification, because, as the court below noted, Campbell's denial of direct involvement in the rapes "had no effect on his guilt as a principal." 260 Ark. 250, 256, 539 S.W.2d 435, 439 (1976). Conceivably, Holloway, who gave an independent alibi, might have wished to argue that, while the State had apprehended two of the real culprits, his arrest was due to a mistaken identification. It is most unlikely that separate counsel would have succeeded on such a tack, because each witness who identified Holloway also identified one of the other two codefendants. Moreover, petitioners do not argue in this Court that joint representation impeded effective cross-examination of the State's witnesses. In sum, this is not a case where an inquiry into the possibility of "conflicting interests" reasonably might have revealed a basis for separate representation.