# Holloway v. Arkansas

Supreme Court of the United States
435 U.S. 475
HOLLOWAY ET AL. v. ARKANSAS
Certiorari to the Supreme Court of Arkansas
No. 76-5856 Argued: Nov. 2, 1977 --- Decided: Apr. 3, 1978

## Dissenting Opinion

    Powell

## Syllabus

Petitioners, three codefendants at a state criminal trial in Arkansas, made timely motions, both a few weeks before the trial and before the jury was empaneled, for appointment of separate counsel, based on their appointed counsel's representations that, because of confidential information received from the codefendants, he was confronted with the risk of representing conflicting interests and could not, therefore, provide effective assistance for each client. The trial court denied these motions, and petitioners were subsequently convicted. The Arkansas Supreme Court affirmed, concluding that the record showed no actual conflict of interests or prejudice to petitioners.
Held:
1. The trial judge's failure either to appoint separate counsel or to take adequate steps to ascertain whether the risk of a conflict of interests was too remote to warrant separate counsel, in the face of the representations made by counsel before trial and again before the jury was empaneled, deprived petitioners of the guarantee of "assistance of counsel" under the Sixth Amendment. Pp. 481–487.
(a) The trial court has a duty to refrain from embarrassing counsel for multiple defendants by insisting or even suggesting that counsel undertake to concurrently represent interests that might conflict, when the possibility of inconsistent interests is brought home to the court by formal objections, motions, and counsel's representations. Glasser v. United States, 315 U.S. 60, 76. Pp. 484–485.
(b) An attorney's request for the appointment of separate counsel, based on his representations regarding a conflict of interests, should be granted, considering that he is in the best position professionally and ethically to determine when such a conflict exists or will probably develop at trial; that he has the obligation, upon discovering such a conflict, to advise the court at once; and, that as an officer of the court, he so advises the court virtually under oath. Pp. 485–486.
(c) Here no prospect of dilatory practices by the attorney was present to justify the trial court's failure to take adequate steps in response to the repeated motions for appointment of separate counsel. Pp. 486–487.
2. Whenever a trial court improperly requires joint representation over timely objection, reversal is automatic, and prejudice is presumed regardless [p476] of whether it was independently shown. Glasser v. United States, supra, at 75-76. Pp. 487–491.
(a) The assistance of counsel is among those "constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error," Chapman v. California, 386 U.S. 18, 23. P. 489.
(b) That an attorney representing multiple defendants with conflicting interests is physically present at pretrial proceedings, during trial, and at sentencing does not warrant departure from the general rule requiring automatic reversal. Pp. 489–490.
(c) A rule requiring a defendant to show that a conflict of interests—which he and his counsel tried to avoid by timely objections to the joint representation—prejudiced him in some specific fashion would not be susceptible of intelligent, evenhanded application. Pp. 490–491.
260 Ark. 250, 539 S.W.2d 435, reversed and remanded.
Burger, C.J., delivered the opinion of the Court, in which Brennan, Stewart, White, Marshall, and Stevens, JJ., joined. Powell, J., filed a dissenting opinion, in which Blackmun and Rehnquist, JJ., joined, post, p. 491.
Harold L. Hall argued the cause and filed a brief for petitioners.
Joseph H. Purvis, Assistant Attorney General of Arkansas, argued the cause pro hac vice for respondent. With him on the brief were Bill Clinton, Attorney General, and Robert Alston Newcomb, Assistant Attorney General.
* ↑ Howard B. Bisenberg filed a brief for the National Legal Aid and Defender Assn. as amicus curiae urging reversal. Rollie R. Rogers filed a brief for the Office of the Colorado State Public Defender as amicus curiae.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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