IN THE SUPREME COURT OF IOWA

No. 13–0224

Filed February 6, 2015

Amended April 20, 2015

STATE OF IOWA,

Appellee,

vs.

ROBERT LYNN VAUGHAN,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Lee County, John M. 

Wright, Judge.

The State seeks further review of a court of appeals decision 

reversing the defendant’s first-degree arson conviction and remanding for 

a new trial based on pretrial counsel’s conflict of interest. DECISION OF

COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT 

AFFIRMED.

Mark D. Fisher of Nidey Erdahl Tindal & Fisher, Cedar Rapids, for 

appellant.

Thomas J. Miller, Attorney General, Heather Mapes and Kevin 

Cmelik, Assistant Attorneys General, Michael P. Short, County Attorney, 

and Clinton R. Boddicker, Assistant County Attorney, for appellee.
2

MANSFIELD, Justice.

In this case, we are asked to determine whether a new trial is 

required when the district court replaces a conflicted defense attorney 

with a conflict-free attorney more than three months before trial, and 

there is no showing that the previous conflict had ongoing adverse effects

on the representation. We conclude a new trial is not required in these 

circumstances. For this reason, we affirm the district court’s judgment

of conviction and sentence. We also vacate the decision of the court of 

appeals ordering a new trial.

I. Background Facts and Proceedings.

Around 2:30 a.m. on October 20, 2011, police and firefighters 

responded to a report of a fire at 2902 Avenue M in Fort Madison. When 

officers arrived, a detached garage at that address was fully engulfed in 

flames. Robert Vaughan and his mother, Marcia Lawson, both of whom 

lived at 2902 Avenue M, were outside the home. Their house is 

approximately thirty feet from the detached garage.

Vaughan and Lawson kept a number of dogs on their property, 

who were normally caged in a kennel next to the garage. However, when

police and firefighters showed up, these dogs were either free in the yard

or secured inside a vehicle. Vaughan later claimed they had been locked 

in the kennel for the night but had escaped during the fire. Neighbors 

disputed this, stating that they had noticed the dogs—unusually—were 

not in their kennel that evening. Also, although Vaughan and his 

mother’s vehicles were normally parked next to the garage, on the night 

of the fire they were parked elsewhere on the property away from the 

garage.

As firefighters worked to extinguish the garage fire and keep it from 

spreading, one firefighter, Jared Siefken, noticed a glow coming from a 
3

window on the south side of the house itself. Siefken looked into the 

window and saw a small fire burning. He broke the window and used a 

hose on the fire. Siefken and another firefighter then entered the house 

to confirm the interior fire had been extinguished. They spotted a clear 

plastic bag full of various medications placed on a chair by the front door

of the house. Vaughan later acknowledged he takes a number of daily 

medications.

The interior house fire was contained within a computer room at 

the back of the house. Firefighters also succeeded in putting out the 

garage fire, but that structure collapsed from the damage the blaze had 

inflicted.

After ensuring the fires were no longer a hazard, the fire chief 

summoned a special agent from the division of the state fire marshal to 

the scene. The special agent concluded that the fire in the computer 

room appeared to have two separate points of origin, neither of which 

was related to the garage fire. He also came upon what he believed to be 

pieces of a broken “Molotov cocktail,” or an improvised incendiary device 

comprised of a glass bottleneck and a cloth “wick.” An investigation later 

found gasoline on the bottleneck, the wick, and the nearby carpet.

It also turned out that Vaughan had put a number of items up for 

sale the day before the fires, including a four-wheeler, a golf cart, and a 

lawn mower. In addition, Vaughan had arranged for a boat belonging to 

a third party to be moved from 2902 Avenue M to a different property. 

Vaughan later said he did this because his mother wanted the boat

moved off the property so the weeds could be cleared out before the 

winter.

Vaughan’s mother, who owned the house, submitted an insurance

claim approximately eight weeks after the fires. In addition to seeking 
4

compensation for building damage, Lawson claimed about $25,000 in 

personal property losses, representing property that she or Vaughan had 

owned that was destroyed in the fires. The personal property itemization 

took up six pages of the claim.

The insurance company hired an electrical engineering expert who 

investigated the scene of the fires and determined neither the house fire

nor the garage fire had an electrical cause. The insurance company also 

examined Vaughan under oath in connection with the claim. The 

insurance company subsequently denied the insurance claim.

On February 24, 2012, the State charged Vaughan with arson in 

the first degree. See Iowa Code §§ 712.1(1), .2 (2011). The court 

appointed W. Jon Henson, an assistant public defender, to represent 

Vaughan.

On March 25, Henson was also appointed to represent George 

Cline, Jr., in an unrelated case. Cline pled guilty in his case on May 31

and was sentenced on June 1.

On May 31, Henson and Cline were meeting before Cline’s plea 

hearing. Henson mentioned that he was preparing for Vaughan’s trial. 

Cline told Henson he wanted to speak to the prosecutor about Vaughan. 

Cline did not disclose to Henson the information he had about Vaughan. 

Henson relayed Cline’s request by telephone to the prosecutor.1

1Cline later asserted that he believed he had asked Henson to put him in contact 

with law enforcement regarding Vaughan in March 2012, not on May 31, 2012, 

although he was not certain. Cline also later claimed he specifically told Henson in this 

conversation that Vaughan had tried to hire him (Cline) to set the fire, although at 

another point in his testimony he stated only that he told Henson he knew Vaughan.

Henson denied that he spoke to Cline about Vaughan before May 31 and denied 

that Cline told him anything specific about Vaughan. The prosecutor confirmed that he 

did not hear from Henson until early June, and that Henson merely told him Cline 

wanted to speak to law enforcement about Vaughan. The district court found Henson’s 

version of events more credible than Cline’s and so do we.

 
5

On August 7, a police investigator and a representative from the 

fire marshal’s office met with Cline. Cline gave a statement in which he 

claimed Vaughan had asked him, prior to the October 20, 2011 blaze, to 

start a fire on Vaughan’s property in return for a third of the insurance 

recovery. Cline also claimed to have observed Vaughan making an 

inventory of the items in the garage, supposedly for the purpose of 

committing insurance fraud.

On August 15, 2012, the State listed Cline as a witness in 

Vaughan’s case. On August 22, Henson filed a motion to withdraw from 

representing Vaughan on behalf of the public defender’s office, indicating 

that office had a conflict of interest due to the fact it represented a 

witness against Vaughan. The court granted Henson’s motion to 

withdraw without a hearing and appointed Gordon Liles to represent 

Vaughan that same day.

Henson had taken a number of depositions before withdrawing. 

Liles took additional depositions and filed a number of motions. Indeed, 

by October 18, Liles had filed an application to exceed fee guidelines 

stating he had already spent 45.7 hours on the case. On December 14, 

shortly before trial, Liles filed a further application stating that he had 

spent a total of 101 hours in pretrial preparation on the Vaughan case.

Vaughan’s trial took place over three days from December 17 to 

December 19. Various police officers, firefighters, and neighbors testified 

for the State, as did the special agent of the state fire marshal, a Division 

of Criminal Investigation criminalist, and the insurance company’s 

investigator and electrical engineer. The State also introduced into 

evidence an edited version of Vaughan’s sworn statement to the 

insurance company.
6

In addition, the State called Cline. According to Cline’s testimony, 

he had known Vaughan since 2008. Sometime in August 2011, Cline 

was at Vaughan and Lawson’s house while Vaughan was making an 

inventory of his belongings. Vaughan asked Cline if he was interested in 

making some money and whether he would be interested in starting a 

fire for him. Cline said he laughed off the proposal at the time.

Cline explained that he was still in jail for contempt of court and 

absence from custody at a halfway house at the time of his testimony.

He also stated he had asked to speak to law enforcement about Vaughan 

because he “wasn’t going to lie about it,” and not in exchange for 

favorable treatment by the prosecution.

In cross-examining Cline, Vaughan’s attorney Liles went over

Cline’s extensive criminal history. This history included convictions for 

assault with a dangerous weapon; operating while intoxicated and 

possession of illegal drugs; possession of drugs, second offense; going 

armed; possession of precursors with the intent to manufacture 

methamphetamine; absence from custody; criminal mischief; and seven 

separate convictions for driving while barred. Cline acknowledged on 

cross-examination he had forty-eight criminal convictions and had been 

to prison six separate times. Cline also admitted he did not try to tell 

anyone in law enforcement about his conversations with Vaughan until 

months after the fires occurred. Vaughan’s attorney further established 

that while absent from custody, Cline had an altercation with his 

girlfriend and attempted to kill himself. Finally, Cline admitted on crossexamination that he was aware “prosecutors can certainly do things for 

you.”

Neither Vaughan nor Lawson testified at trial. Vaughan called two 

witnesses in his defense. First, a neighbor testified, contrary to the 
7

testimony of other neighbors, that Vaughan’s vehicles had no typical 

parking spot either near or away from the garage. Second, an Iowa

Department of Human Services case manager testified that Vaughan was 

partially disabled, needed a walker to get around, and took numerous 

medications due to injuries he had suffered in a 2001 car accident.

The jury found Vaughan guilty of first-degree arson as charged. 

Vaughan filed posttrial motions in arrest of judgment and for a new trial. 

He alleged, among other things, the verdict was contrary to law and 

evidence. Vaughan also included a claim that his prior counsel, Henson,

had operated under a conflict of interest due to his representation of 

Cline, a prosecution witness. The trial court held a hearing on the 

combined motions and denied them both on January 22, 2013.

Vaughan appealed his conviction to this court. His appeal raised 

two grounds—insufficiency of evidence and that his pretrial counsel had 

an impermissible conflict of interest. On these bases, he requested a 

judgment of acquittal, or, alternatively, a new trial. We transferred the

case to the court of appeals.

The court of appeals issued an opinion determining there was 

sufficient evidence to support the arson charge, but holding that

Henson’s conflict of interest required reversal of Vaughan’s conviction. 

The court concluded that Henson was under an actual conflict of interest 

from the time Cline indicated he wanted to speak to the prosecutor about 

Vaughan until Henson withdrew, or from approximately May 31 until 

August 22, 2012. The court presumed this conflict to be prejudicial:

Here, Vaughan’s first attorney was laboring under an 

actual conflict at the time the depositions of material 

witnesses, including the lead investigator, were taken. The 

attorney’s torn allegiance during a critical stage of pretrial 

proceedings constitutes circumstances of such magnitude 

allowing us to presume prejudice. . . .
8

. . . .

The length of time over which counsel had an actual 

conflict, in addition to taking depositions of material 

witnesses when counsel’s allegiance was divided, allows us 

to presume prejudice. We therefore reverse and remand for 

a new trial with conflict-free counsel.

One judge dissented from the court of appeals’ opinion, believing 

the majority had misapplied established law regarding the right to 

counsel. In the dissent’s view, the trial court’s decision to permit Henson 

to withdraw and replace him with conflict-free counsel remedied any 

conflict of interest. As the dissent put it, 

The conclusion that no further relief is available is 

demonstrated by the relief the majority orders in this case: 

Vaughan’s conviction should be vacated and this matter 

remanded for trial with conflict-free counsel. But isn’t that 

what just occurred?

We granted the State’s application for further review.

II. Standard of Review.

As we have recently explained,

We review a sufficiency-of-evidence claim for correction of 

errors at law. The court considers all the evidence presented 

at trial and views the evidence in the light most favorable to 

the state. The verdict is supported by substantial evidence 

when the evidence could convince a rational trier of fact the 

defendant is guilty beyond a reasonable doubt.

State v. Copenhaver, 844 N.W.2d 442, 449 (Iowa 2014) (citations 

omitted). “In assessing the sufficiency of the evidence, we find 

circumstantial evidence equally as probative as direct.” State v. Meyers, 

799 N.W.2d 132, 138 (Iowa 2011).

We review conflict-of-interest allegations de novo. State v. 

Smitherman, 733 N.W.2d 341, 345 (Iowa 2007).
9

III. Sufficiency of the Evidence.

Vaughan claims there is insufficient evidence to support his 

conviction for first-degree arson. To obtain this conviction, the State was 

required to prove beyond a reasonable doubt that Vaughan “caus[ed] a 

fire or explosion . . . in or near any property with the intent to destroy or 

damage such property, or with the knowledge that such property [would]

probably be destroyed or damaged” and that “the presence of one or more 

persons [could] be reasonably anticipated in or near the property which 

is the subject of the arson.” Iowa Code §§ 712.1(1), .2.

Vaughan’s allegations of insufficiency stem primarily from his 

assertion that the State’s evidence “did not directly implicate” him in the 

fire. However, circumstantial evidence can be as probative as direct 

evidence. Meyers, 799 N.W.2d at 138. In fact, we have previously 

stated, “Arson is a criminal charge which often must be proved by 

circumstantial evidence, since there are seldom witnesses to the crime.” 

State v. Veverka, 271 N.W.2d 744, 747 (Iowa 1978). For example, in 

Veverka, we upheld the defendant’s felony murder conviction when we 

determined there was sufficient evidence to establish the predicate crime 

of arson. Id. at 747–48. The state produced evidence of two separate 

fires started at the crime scene, as well as proof of the use of an 

accelerant. Id. at 747. The defendant contended the fire was an 

accident. Id. We stated, “The jury was at liberty to reject defendant’s 

version that he started the fire accidentally and to infer from the other 

circumstantial evidence that he ‘willfully and maliciously’ caused the 

building to be burned . . . .” Id. at 748.

The circumstantial evidence in the present case was substantial. 

There is little doubt the fires were intentionally set. They started on the 

same property at approximately the same time, but had distinct points of 
10

origin. The remnants of a Molotov cocktail were found. An accidental 

cause—namely electrical malfunction—was ruled out.

The evidence connecting Vaughan to the conflagration was also 

substantial. Vaughan had sold several items of property and moved a 

boat he did not own off the property less than twenty-four hours before 

the fires began. Likewise, the family’s dogs and vehicles were moved out 

of harm’s way. Medications, presumably belonging to Vaughan, had 

been placed in a neat plastic bag at the front of the house, away from the 

areas where the fires began. Vaughan had a financial motive to commit 

the arson, and the version of events given in his sworn statement was 

contradicted by a number of trial witnesses. Even without taking into

account Cline’s trial testimony, the evidence implicating Vaughan in the 

crime was considerable.

There was also substantial evidence that the presence of one or 

more persons could have been reasonably anticipated in or near the 

property that was set on fire, thus supporting the jury finding that 

Vaughan was guilty of arson in the first degree. See Iowa Code § 712.2. 

Vaughan’s mother Lawson was in the home at 2902 Avenue M when the 

fires were started. Also, just eighteen feet to the east stood a neighbor’s 

house. The neighbor was in her bed at the time the fires ignited, which 

could have been readily anticipated by Vaughan. For these reasons, we 

reject Vaughan’s claim of insufficient evidence.2

2Vaughan also notes that the jury recessed for deliberations at 4:50 p.m. on 

December 19 and reached a verdict by 5:58 p.m., just one hour and eight minutes later. 

Vaughan asserts that the jurors were “under pressure due to weather concerns.” 

However, the record reflects that when the district court gave the case to the jury, it 

handled the weather concerns appropriately. The court advised the jurors, “[L]et [the 

court attendant] know whether you want to stay longer to deliberate, or whether you 

want to go home. If one of you wants to go home, the jury will go home until tomorrow 

morning.”

 
11

IV. Conflict of Interest.

Vaughan next alleges his pretrial counsel, Henson, labored under 

an impermissible conflict of interest that requires us to grant a new trial. 

As we have noted above, Cline told Henson on May 31, 2012, that he 

wanted to talk to the prosecutor about Vaughan. Henson passed along 

the message but continued working on Vaughan’s case until Cline was 

listed as a prosecution witness. At that point, Henson moved to 

withdraw and was replaced by conflict-free counsel (Liles) on August 22. 

Vaughan’s trial did not begin until December 17.

A. Relevant Caselaw. In the late 1970s and early 1980s, the 

United States Supreme Court decided a trio of conflict-of-interest cases 

that provided the initial guidance for when courts can presume prejudice 

from allegedly conflicted representation. In Holloway v. Arkansas, the 

trial court disregarded a public defender’s claim that his concurrent 

representation of three codefendants created a conflict of interest. 435 

U.S. 475, 476–77, 98 S. Ct. 1173, 1175, 55 L. Ed. 2d 426, 429–30

(1978). That Court held that “whenever a trial court improperly requires 

joint representation over timely objection[,] reversal is automatic.” Id. at 

488, 98 S. Ct. at 1181, 55 L. Ed. 2d at 437. In Cuyler v. Sullivan, in 

contrast, neither the codefendants nor their joint attorneys raised the 

issue of a conflict of interest and the trial court had no reason to know of 

the conflict. See 446 U.S. 335, 337–38, 100 S. Ct. 1708, 1712, 64 

L. Ed. 2d 333, 339–40 (1980). In that situation, the Court found the trial 

court had no duty to inquire into the possibility of a conflict, and the 

defendant challenging his conviction on appeal was required to show an 

actual conflict existed. Id. at 346–47, 100 S. Ct. at 1717–18, 64

L. Ed. 2d at 345–46. Finally, in Wood v. Georgia, the Court raised the 

issue of a conflict of interest sua sponte, after granting certiorari on 
12

another claim. See 450 U.S. 261, 262–63, 101 S. Ct. 1097, 1099, 67 

L. Ed. 2d 220, 225 (1981). The Court indicated the record was not

complete enough for it to determine whether a conflict of interest existed, 

but remanded for the lower court to determine whether it did. Id. at 

267–68, 273, 101 S. Ct. at 1101–02, 1104, 67 L. Ed. 2d at 227–28, 231. 

The Court stated, “Sullivan mandates a reversal when the trial court has 

failed to make an inquiry even though it ‘knows or reasonably should 

know that a particular conflict exists.’ ” Id. at 272 n.18, 101 S. Ct. at 

1104 n.18, 67 L. Ed. 2d at 231 n.18 (quoting Cuyler, 446 U.S. at 347, 

100 S. Ct. at 1717, 64 L. Ed. 2d at 346).

These cases, therefore, seemed to imply that reversal should be 

automatic whenever a trial court fails to inquire into a known conflict. 

See 3 Wayne R. LaFave et al., Criminal Procedure § 11.9(b), at 885 (3d ed.

2007) (“Holloway had spoken of an automatic reversal following simply 

from a violation of the duty to inquire, and the Wood description of 

Cuyler similarly spoke of a per se reversal requirement.” (Footnotes 

omitted)). Based largely on this Supreme Court precedent, in State v. 

Watson we concluded that “where the trial court knew or should have 

known of a particular conflict, reversal is required without a showing 

that the conflict adversely affected counsel’s performance, even though 

no objection was made at trial.” 620 N.W.2d 233, 237 (Iowa 2000).

In Watson, one of the defendant’s attorneys had previously 

represented a witness for the prosecution. Id. at 235, 238–39. The

attorney did not conduct the cross-examination of the witness in 

question, but it came to light at trial that the attorney had represented 

both the witness and the defendant. Id. at 234–35. Although neither the 

defendant nor the attorney objected to the dual representation, we 

nevertheless required automatic reversal because the trial court should 
13

have known about the conflict. Id. at 241–42. We concluded the Sixth 

Amendment required the trial court in such situations to inquire sua 

sponte into the potential conflict. Id. at 234, 241–42.

After our decision in Watson, the United States Supreme Court 

further clarified its conflict-of-interest jurisprudence in Mickens v. Taylor, 

535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002). Mickens

involved a scenario similar to that in Watson: the attorney had 

represented both the defendant and his alleged victim, the court had 

knowledge of the potential conflict, and the court nevertheless failed to 

inquire into the potential conflict. See id. at 164–65, 122 S. Ct. at 1240, 

152 L. Ed. 2d at 299–300. In opposition to our holding in Watson

requiring automatic reversal, however, the Supreme Court concluded 

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

which it should have been aware, the defendant still has to establish that 

the alleged conflict materialized into an actual conflict. See id. at 172–

74, 122 S. Ct. at 1244–45, 152 L. Ed. 2d at 304–05. The Court stated a

defendant demonstrates an actual conflict by showing that the conflict 

adversely affected his counsel’s performance. Id. at 171, 122 S. Ct. at 

1243, 152 L. Ed. 2d at 304 (clarifying the confusion over Wood’s 

interpretation by stating that “[a]s [it is] used in the remand instruction 

[in Wood], 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”). Many courts have indicated that 

to show an adverse effect, 

the defendant must “identify a plausible alternative defense 

strategy or tactic that defense counsel might have pursued, 

show that the alternative strategy was objectively reasonable 

under the facts of the case, and establish that the defense 

counsel’s failure to pursue that strategy or tactic was linked 

to the actual conflict.”
14

Noe v. United States, 601 F.3d 784, 790 (8th Cir. 2010) (quoting Winfield 

v. Roper, 460 F.3d 1026, 1039 (8th Cir. 2006)); accord Hovey v. Ayers, 

458 F.3d 892, 908 (9th Cir. 2006); United States v. Feyrer, 333 F.3d 110, 

116 (2d Cir. 2003); Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir. 2001) 

(en banc), aff’d without consideration of this point, 535 U.S. 162, 122 

S. Ct. 1237, 152 L. Ed. 2d 291; Perillo v. Johnson, 205 F.3d 775, 807 

(5th Cir. 2000); United States v. Morelli, 169 F.3d 798, 810 (3d Cir. 1999);

Freund v. Butterworth, 165 F.3d 839, 860 (11th Cir. 1999); State v. 

Moore, 213 P.3d 150, 165 (Ariz. 2009) (en banc); Taylor v. State, 51 A.3d 

655, 672 (Md. 2012).

Therefore, following Mickens, automatic reversal is required under 

the Sixth Amendment only when the trial court refuses to inquire into a 

conflict of interest over defendant’s or counsel’s objection. See Holloway, 

435 U.S. at 488, 98 S. Ct. at 1181, 55 L. Ed. 2d at 437. When neither 

the defendant nor his or her attorney raises the conflict of interest, the 

defendant is required to show an adverse effect on counsel’s performance 

to warrant reversal, even if the trial court should have known about the 

conflict and failed to inquire. See Mickens, 535 U.S. at 172–74, 122 

S. Ct. at 1244–45, 152 L. Ed. 2d at 304–05.

Most recently in Iowa, we decided Smitherman. See 733 N.W.2d at 

341. In that case, a public defender represented both the defendant and 

an individual who later came forth as a witness for the state. Id. at 343. 

The public defender withdrew from representing the witness and the 

public defender’s office replaced the specific attorney and screened him 

from working on the defendant’s case as well. Id. at 343–44. At a 

hearing on the conflict, the court determined the public defender’s 

office’s continued representation of the defendant did not create an

impermissible conflict of interest. Id. at 345. The defendant did not 
15

object to the representation at the time, but alleged on appeal that his 

state and federal constitutional rights had been violated by the public 

defender’s office’s simultaneous representation of himself and the 

witness. Id. at 344–45. We determined that because the court had 

inquired into the conflict, Smitherman was required to show an adverse 

effect on counsel’s performance in order to prevail on his conflict-ofinterest claim. See id. at 347. We additionally recognized that “our 

holding in Watson under the Sixth Amendment is impacted by the

Supreme Court’s decision in Mickens,” but declined to determine if it had 

been overruled or whether it survived on state constitutional grounds. 

Id.

B. The Conflict in the Present Case. Vaughan argues Henson’s 

simultaneous representation of Cline and Vaughan from May to August

2012 resulted in an impermissible conflict of interest. As the court of 

appeals put it, “During discovery, depositions, and conferences with 

Vaughan, counsel knew another client was giving information about 

Vaughan to the State.” The State disputes this view, agreeing with 

Henson that there was no actual conflict until Henson knew Vaughan 

was going to be a State’s witness. We need not decide whether an actual

conflict existed before that time because we find that the appointment of 

conflict-free counsel nearly four months before trial under the 

circumstances of this case remedied any potential conflict, actual or 

otherwise.

Vaughan asserts the absence of a formal Watson hearing in the 

present case requires reversal. However, suppose Henson had not

recognized that he had a conflict on August 15, 2012, and instead either 

the State had sought or the district court acting sua sponte had ordered 

a Watson hearing. Following that hearing, presumably, Henson would 
16

have been disqualified and new counsel would have been appointed. Yet 

that is exactly what happened here. In short, the absence of a Watson 

hearing seems beside the point when the defendant received Watson

relief.

This case, therefore, is more akin to Smitherman, where the 

defendant alleged on appeal that his federal and state constitutional 

rights to counsel were violated, despite the fact the trial court did

conduct a Watson hearing and inquired into the conflict. See 733 

N.W.2d at 345, 347. When a Watson hearing occurs, Smitherman

requires the defendant demonstrate an adverse effect on counsel’s 

performance resulting from an actual conflict of interest; reversal is not 

automatic. Id. at 347–48. Although the court here did not inquire into 

the conflict, it afforded the same relief that would have resulted from an 

inquiry, namely, replacement of Vaughan’s attorney with conflict-free 

counsel.

Hence, as in Smitherman, Vaughan must demonstrate that the 

conflict had an adverse effect on counsel’s performance to warrant a new 

trial. See id. at 347. As stated above, an adverse effect occurs when 

counsel fails to pursue a plausible strategy or tactic due to the existence 

of a conflict of interest. Noe, 601 F.3d at 790. Vaughan has not met this 

burden. The record shows that he had conflict-free counsel not only 

throughout his trial but for the preceding three and one-half months. 

His new counsel aggressively cross-examined Cline at trial, covering even 

the dubiously relevant subject of whether Cline had recently had an 

altercation with his girlfriend. It is true, as the court of appeals 

observed, that some depositions (not Cline’s) were taken by Henson 

before he withdrew from the case. But Vaughan does not offer a single 

example of a question that should have been asked in one of those 
17

depositions and was not. When Liles took over in late August, he could 

have sought to redepose previously deposed witnesses. As it was, the 

record shows he conducted additional depositions and devoted over one 

hundred hours to his own pretrial preparation.

It is undisputed that Vaughan received conflict-free counsel well 

before trial. Thus, even assuming his prior counsel labored under an 

actual conflict, Vaughan must show that this arrangement was somehow 

insufficient to cure the prior conflict. He has not done that. As the 

dissenter on the court of appeals pointed out, the relief Vaughan seeks 

on appeal is essentially the relief he received from the district court—

namely, a trial with conflict-free counsel. So how have his constitutional 

rights to counsel been violated?

Other courts have held that the replacement of counsel well in 

advance of trial generally remedies a pretrial conflict of interest. See, 

e.g., United States v. Pascarella, 84 F.3d 61, 67 (2d Cir. 1996). In the 

Pascarella case, a single attorney (Gilroy) originally represented both the 

defendant and a codefendant. Id. at 65. Six months before trial, Gilroy 

was replaced by a different lawyer, Lamb. Id. On appeal, the defendant

argued that Gilroy’s pretrial conflict of interest required reversal of his 

conviction. Id. at 67. The United States Court of Appeals for the Second 

Circuit disagreed, stating, “The replacement of Gilroy by Lamb as 

Pascarella’s lawyer mooted any question regarding the propriety of 

Gilroy’s representation of Pascarella.” Id. Along similar lines, the 

Indiana Supreme Court rejected a conflict-of-interest claim in a murder 

case. See Woods v. State, 701 N.E.2d 1208, 1210, 1223–24 (Ind. 1998). 

There the allegedly conflicted attorney, who had previously represented 

the defendant’s mother, was allowed to withdraw four months before trial 
18

without a recorded hearing. Id. at 1222. As the court explained in 

overruling the defendant’s arguments,

Woods would have us overlook the fact that Rhetts 

withdrew nearly four months before trial. This is a critical 

point. Because successor counsel Wharry and Johnston 

planned and executed their defense strategy after their own 

discovery, pretrial motions, and consultations with Woods, 

any claim that Rhetts’ inaction likely affected their 

performance—or, for that matter, the fairness of the trial—

requires more than a bald allegation. Woods in effect asks 

us to presume ineffectiveness and an unfair trial where 

initial trial counsel withdraws due to a conflict. There is no 

such presumption.

Id. at 1224; see also Newton v. United States, Nos. 3:13–CV–2488–D, 

3:10–CR–304–D, 2014 WL 1294873, at *3 (N.D. Tex. Mar. 31, 2014) 

(finding no adverse effect where an attorney represented the defendant 

and his codefendant for five months before trial, but the defendant had 

conflict-free counsel for trial); Day v. United States, No. 7:07-cv-00376, 

2008 WL 222316, at *6 (W.D. Va. Jan. 25, 2008) (rejecting conflict-ofinterest claim where the conflicted counsel was replaced a year before 

trial and the defendant “does not demonstrate, or even allege, that [prior 

counsel’s] actions prevented subsequent counsel from investigating the 

case”), appeal dismissed, 285 Fed. Appx. 66 (4th Cir. 2008); Pruitt v. 

State, 514 S.E.2d 639, 648 (Ga. 1999) (rejecting conflict-of-interest claim 

based on the “obvious conflict” arising out of an attorney’s simultaneous 

representation of “the district attorney seeking the death penalty against 

the defendant” based on the fact that this attorney was replaced six 

months before trial); State v. Cummings, 721 P.2d 545, 547 (Wash. Ct. 

App. 1986) (holding that the defendant’s initial sharing of counsel with a 

codefendant did not require a new trial where substitute counsel was 

appointed for the defendant a month before trial and the defendant 

“points to nothing but the original conflict as error”).
19

Finally, although it predates the more recent conflict-of-interest 

jurisprudence discussed above, we think it is also worth mentioning our 

decision in State v. Hicks. See 277 N.W.2d 889 (Iowa 1979). There, the 

defendant argued among other things that his original attorney “was 

inexperienced and had conflicts of interest.” Id. at 896. We rejected that 

claim, noting,

Hicks’ claims do not add up to ineffective 

representation. Hicks was represented for over two months 

before trial and at trial by experienced, independent counsel; 

any conflicts of interest vanished once new counsel was 

appointed. The record shows the first attorney requested 

reports and deposed the main witnesses. Hicks’ present 

counsel deposed the three witnesses that the defendant now 

complains should have been deposed by his first attorney. 

Present counsel had two months to conduct additional 

discovery and to prepare the case in accordance with Hicks’

wishes.

Id.

In the concluding paragraphs of both his opening brief and his 

reply brief, Vaughan makes the summary assertion that he is entitled to 

a new trial “without the testimony of . . . Cline.” However, he presents no 

argument in support of his contention that Henson’s conflict should 

preclude the State from being permitted to call Cline. He also cites no 

authority. The court of appeals found the issue waived for purposes of 

this appeal and so do we. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to 

cite authority in support of an issue may be deemed waiver of that 

issue.”).

V. Conclusion.

For the foregoing reasons, we affirm Vaughan’s conviction for firstdegree arson.

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT AFFIRMED.
20

All justices concur except Appel and Hecht, JJ., who concur 

specially.
21

#13–0224, State v. Vaughan

APPEL, Justice (concurring specially).

I concur with the result and most of the court’s opinion; however, I 

think the court’s opinion misses an important aspect of this case.

To me, it is astonishing that a lawyer representing an accused in a 

criminal matter would facilitate the discovery of evidence by the 

prosecution adverse to his or her client. Yet, this is precisely what 

occurred here. When Vaughan’s attorney learned from Cline that Cline 

wanted to speak to the prosecutor about Vaughan, it was obvious Cline 

did not intend to assist in Vaughan’s defense. At that point, Vaughan’s 

attorney should have refused to contact the prosecutor on behalf of 

Cline. Instead, he facilitated the prosecution’s receipt of evidence 

adverse to his client. When he did so, he was not acting zealously on 

behalf of Vaughan. It was a disloyal act. 

Loyalty to one’s client is “perhaps the most basic of counsel’s 

duties” and is paramount to our system of criminal justice. See 

Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067, 80 

L. Ed. 2d 674, 696 (1984). As one court noted, 

The duty of loyalty is so essential to the proper functioning of 

the judicial system that its faithful discharge is mandated 

not only by the Rules of Professional Conduct, but also, in 

criminal cases, by the Sixth Amendment right of a criminal 

defendant to the effective assistance of counsel. 

State v. Holland, 876 P.2d 357, 359 (Utah 1994). The Holland court 

further explained “[t]he faithful discharge of that duty is a vital factor 

both in uncovering and making clear to a court the truth on which a just 

decision depends and in protecting the rights of persons charged with a 

crime.” Id.; see also Von Moltke v. Gillies, 332 U.S. 708, 725–26, 68 

S. Ct. 316, 324, 92 L. Ed. 309, 331–32 (1948) (plurality opinion) (“The 
22

right to counsel guaranteed by the Constitution contemplates the 

services of an attorney devoted solely to the interests of his client. . . . 

Undivided allegiance and faithful, devoted service to a client are prized 

traditions of the American lawyer.”); Simmons v. State Pub. Defender, 791 

N.W.2d 69, 75 (Iowa 2010) (noting “criminal defendants . . . are entitled 

to a real, zealous advocate who will fiercely seek to protect their 

interests”). 

Our standards of professional conduct similarly describe a lawyer’s 

duty of loyalty as “essential,” “undivided,” “complete,” “total,” “entire,” 

and “vital.” See Iowa R. Prof’l Conduct 32:1.7 cmt. 1 (noting loyalty is an 

“essential element[]” in the lawyer’s relationship with a client); 

Restatement (Third) of the Law Governing Lawyers § 16 cmt. b, at 146, 

§ 121 cmt. b, at 245 (2000) (stating “the law seeks to assure clients that 

their lawyers will represent them with undivided loyalty”); ABA Standards 

for Criminal Justice: Prosecution Function and Defense Function 4-3.5(e) 

& 4-3.5 cmt., at 162–64 (3d ed. 1993) (noting “[t]he basic rule that must 

guide every lawyer is that the lawyer’s total loyalty is due each client in 

each case” and that “[a] lawyer for an accused must give . . . complete 

loyalty”).

Even so, I do not believe that the evidence was subject to per se 

exclusion because of his counsel’s disloyalty. Even viewing the facts 

most favorably to Vaughan, the State would be entitled to admission of 

the evidence if it could meet its burden under Nix v. Williams, 467 U.S. 

431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). In that case, the state 

obtained information from a defendant regarding the location of a 

victim’s body in violation of the defendant’s right to counsel. Id. at 435–

37, 104 S. Ct. at 2504–05, 81 L. Ed. 2d at 382–83. The fact the state 

actually learned of the body’s location in violation of the defendant’s right 
23

to counsel, however, did not mean the evidence could never be used by 

the state. Id. at 437–38, 104 S. Ct. at 2506, 81 L. Ed. 2d at 383–84. 

Instead, when challenged, the state was entitled to show the evidence 

either would have been inevitably discovered or there was an 

independent, untainted source of the evidence. Id. at 443–48, 104 S. Ct. 

at 2508–11, 81 L. Ed. 2d at 387–90. 

In my view, the record thus presents a possible ineffectiveassistance claim. Vaughan’s new counsel could have sought to exclude 

the testimony of Cline on the ground that the evidence was discovered 

through an improper communication between his previous attorney and 

the prosecutor. He did not do so. Whether the failure to object to the 

admission of the evidence amounted to ineffective assistance of counsel 

is not presently before the court. 

Hecht, J., joins this special concurrence.