Karnezis’ ruling it was perhaps likely that the two defendants
would have been tried jointly, there was no evidence to suggest
that the women would change their stories and provide Rosado with
an alibi. There was certainly no evidence strong enough to create
a serious potential that McMurray would have to take the stand and
be subject to cross-examination by Rodriguez’s counsel.

Although the State described McMurray @s an integra] witness
to the trial court when making its motion to disqualify Brent, the
fact that the above scenario was highly unlikely to play out
illustrates perhaps why McMurray’s name was not even on the witness
list. The State contends that McMurray was inadvertently omitted
from the list because he had begun investigating the case afler it
began and claims that it had simply failed to update the Answer to
Discovery. As Rodriguez points out, however, McMurray interviewed
Rosado on June 24, 1995 and discovery did not close until
February 15, 1996. If McMurray really was as integral to the
State’s case against Rodriguez as it averred, it had ample time to
include his name on the witness list.

While the State may have been acting in good faith, and may
have believed that McMurray would Lestify, courts are required by
Wheat to evaluate the facts and circumstances, including any
attempt by the Government to manufacture a conflict to prevent a
defendant from obtaining particularly able counsel. Wheat, 486
U.S, at 163. In this case, however, Judge Karnezis heard no

arguments from the parties on the disqualification motion, He did

-13~



respect to Rodriguez’s first claim, the claim before this Court,
the appellate court found that the trial court did not abuse its

discretion in ordering Brent to withdraw. Citing Wheat v. United

uy

States, 486 U.S. 153, 159 (1988), the appellate court explained
that the presumption in favor of Rodriguez’s counsel of choice
could be overcome by either a demonstration of actual conflict or
by a showing of a serious potential for conflict. The court
explained that because McMurray had interviewed witnesses and co-
defendants who implicated Rodriguez in the murder, McMurray was a
possible witness against Rodriguez. It found that the trial court
had considered the appearance of impropriety, and the probability
that Rodriguez could have raised an ineffective assistance of
counsel claim based on the conflict of interest on appeal if the
court had accepted Rodriguez's waiver of conflict and if Rodriguez
had been convicted.

Rodriguez filed a petition for rehearing on December 26, 2000,
which was denied by the appellate court on February 2, 2001. He
then filed a petition for leave to appeal with the Supreme Court of
Illinois, which was denied on June 6, 2001. On March 26, 2002,
Rodriguez timely filed the instant petition for writ of habeas
corpus. In his petition, Rodriguez claims that the trial judge
violated his Sixth and Fourteenth Amendment rights to counsel of
choice when he disqualified his attorney based on a potential

conflict of interest.



curium}; cf. United States v. Mendoza-Salgado, 964 F.2d 993, 1016
(10th Cir. 1992) (explaining that automatic reversal is limited to
cases where the trial court unreasonably or arbitrarily interfered
with a defendant’s right to counsel of choice); see generally
Johnstone v. Kelly, 808 F.2d 214, 217 (2d Cir. 1986) (characterizing
the language in Flanagan, 465 U.8. at 267-68, as strongly
suggesting that denial of the Sixth Amendment right to self-
representation can never be harmless error). Several of the
Circuits, such as the First Circuit in Panzardi Alvarez and the
Third Circuit in Rankin, relied directly on the language from
Flanagan on this issue as support for their holdings.

In the absence of clear direction from the Seventh Circuit,
the Court declines to depart from precedent set by the decisions
cited above. Accordingly, Rodriguez need not demonstrate prejudice
resulting from the state court’s erroneous denial of his right to
counsel of choice. Given the long-standing and widespread
acceptance of the rule of automatic reversal, it can hardly be
described as a new rule of law. Thus, contrary to the State’s
argument, it is nok barred by Teague v. Lane, 489 U.S. 288 (1989),
which prohibits retroactive application of a new rule of law to
cases on collateral review.

As a final argument, Rodriguez contends that the trial court
should have permitted him to waive any conflict of interest and to
retain Brent. The Court need only address this briefly. It is
worth noting that the trial and appellate courts incorrectly

-17 -



applied a looser standard, construing Wheat to mean that
disqualification is permissible whenever a remote possibility of a
conflict of interest is present. The Court disagrees with
Rodriguez that the appellate court’s decision was “contrary to”
Wheat. A state court decision is “contrary to” clearly established
jaw only “if the state court arrives at a conclusion opposile to
that reached by [the Supreme] Court on a question of law or if the

state court decides a case differently than [the Supreme] Court has

t of materially indistinguishable facts.” Williams, 529
U.S. at 412-13. In its ruling, the appellate court correctly
identified Wheat as the governing Supreme Court decision.

The Court does agree with Rodriguez, however, that the
appellate court unreasonably applied the law set forth in Wheat to
the facts of this case. A state court decision is an “unreasonable
application of” clearly established law “if the state court
identifies the correct governing legal principle from [the Supreme]
Court's decisions but unreasonably applies that principle to the
facts of the prisoner's case.” Williams, 529 U.S. at 413. When
undertaking this inquiry, a court should ask “whether the state
court's application of clearly established federal law was
objectively unreasonable.” Id. at 409. As a result, a federal
court may not grant relief merely because it concludes that the
state court applied clearly established federal law erroneously or
incorrectly but must also conclude that the state court's

application was unreasonable. Id.



to counsel of choice to the Illinois appellate court. He then
appealed the appellate court’s decision to the Illinois Supreme
Court, which refused to grant petitioner leave to appeal.
Rodriguez has no other means by which to litigate this
constitutional claim. Because his claim is not of a jurisdictional
nature, state habeas corpus relief is unavailable to him, 735 Inu.
Comp. Stat. 5/10-101 et seg. (West 2003). He may not file a petition
for post-conviction relief because he is prohibited by principles
of res judicata from raising constitutional issues that were
litigated and rejected on direct appeal in a post~conviction
petition. 725 Tin. Comp, Svar. 5/122-1 et seq. (West 2002); sec aiso
People v. Haynes, 737 N.E,2d 169, 184 (Ill. 2000). Rodriguez has
exhausted his state remedies and the Court may accordingly address
the merits of his claim.
A. Merits

Rodriguez brings his claim under § 2254(d) (1) and contends
that the appellate court’s decision affirming Brent’s
disqualification was contrary to, or involved an unreasonable
application of, federal law. In his reply brief, Rodriguez also
contends that even if the appellate court did apply the correct
legal standard, under § 2254{d)(2) it affirmed the trial court's
decision to disqualify Brent on an unreasonable determination of
the facts. The Court will not consider this argument, however,

because it was raised for the first time in Rodriguez’s reply



II. DISCUSSION

Section 2254 of the Anti-Terrorism and Effective Death Penalty
Act of 1996 (the “ARDPA”) entitles a prisoner to a writ of habeas
corpus if he is being held in prison pursuant to a state court
judgment obtained in violation of rights guaranteed by the United
States Constitution. 28 U.S.C. § 2254; Williams v. Yaylor, 529
U.S. 362, 375 (2000). A federal court may nol grant a writ of
habeas corpus for any claim that was adjudicated on the merits in
state court proceedings, unless the state court decision: (1) was
contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. 28 U.S.C. § 2254(d) (1)
& (2); Ellsworth v. Levenhagen, 248 F.3d 634, 638 (7th Cir. 2001).
Additionally, a federal court may not address the merits of a claim
contained in a habeas corpus petition unless the petitioner can
show that he has exhausted his state remedies and avoided
procedural default. 28 U.S.C. § 2254(b) (1) (A); Bell v. Pierson,
267 F.3d 544, 551 (7th Cir. 2001). A petitioner exhausts his state
remedies and avoids procedural default by presenting his claims
fully and fairly to the state courts. O/’Sullivan v. Boerckel, 526
U.S. 838, 842 (1999).

In this case, Rodriguez presented his claim that the trial
court abused its discretion and violated his Sixth Amendment right

- Ss



weighed the probability that Rodriguez would bring an ineffective
assistance of counsel claim had they accepted the proffered waiver.
A waiver made knowingly and intelligently “bars any later claim of
ineffective assistance growing from that conflict.” United States
v. Lowry, 971 F.2d 55, 63 (7th Cir. 1992), Section 2254(d) (1),
however, restricts the source of “clearly established” law to
Supreme Court jurisprudence. Williams, $29 U.S. at 412.
Accordingly, the state courts’ mistake does not constitute a
Separate reason for granting Rodriguez's petition,
CONCLUSION

For the reasons set forth above, Rodriguez’s petition for writ

of habeas corpus is GRANTED. Petitioner Neftaly Rodriguez shall be

released from custody on the conviction challenged in this action

unless the State of Illinois commences .proteedings ta

y
Rodriguez a new trial within one hundséd and tw nty days (120) of

the date of this Order,

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

Date: tL a Add Z



which deserves consideration.”), This right to be represented by
counsel of one’s choice must, of course, be balanced against the
essential purpose of the Sixth Amendment, which is to ensure that
each criminal defendant is provided with an effective advocate.
Wheat, 486 U.S. at 159, Accordingly, there are limited situations
in which the defendant’s right to choose his own counsel may be

restricted, Id. One such situation is when the counsel of choice

laboring under a conflict of interest. Id. at 159-60. In such
cases, Wheat held that the presumption in favor of a defendant's
choice of counsel may be overcome, but only by either: 1) a
demonstration of actual conflict, or 2) by a showing of a “serious
potential for conflict.” Id. at 164.

In assessing the seriousness of the potential conflict, courts
must consider all of the parties involved. “The decision to
disqualify an attorney in a criminal case requires an evaluation of
the interests of the defendant, the government, the witness and the
public in view of the circumstances of each particular case.”
United States v. O/Malley, 786 F.2d 786, 790 (7th Cir. 1986)
Additionally, courts must evaluate the facts and circumstances
including any attempt by the Government to manufacture a conflict
Lo prevent a defendant from obtaining particularly able counsel.
Wheat, 486 U.S. at 163.

Rodriguez argues that the TIllinois appellate court’s
affirmance of Judge Karnezis’ ruling was contrary Lo and involved

an unreasonable application of Wheat. In his view, the court


Mints Orles Fons (609)

United States District Court, Northern District of (Winois

Name af Assigned Judge Harry D, Leinenweber Sisting dudge if Other
or Magistrate Judge coe than Assigned Judge
CASE NUMBER 02 C 2184 DATE 11/24/2003
CASE USA ex rel. Neftaly Rodriguez vs. Jerry Sternes, Warden
TITLE
[In the tisliowing box (a) indicate the party tiling the motion, ¢8.. plaintiff, defendant, 3rd party plaintitl, anu! (b) slate briefly the nature
MOTION: oF Use motion being presented.
DOCKET ENTRY:
ql) Oo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) {. Answer bricl to motion due__ Reply to answer brief due
(A) Oo Ruling/Hearing on __ set for _at__
(5) Oo Status hearing| held/continued to] [set for/re-set for] on __ set for _ at
(6) 0 Pretrial conference[held/continued to} [set for/re-sel for} on set for =o
(7) o Trial{set Tor/re-set tor] on at _.
(8) u (Bench4nry trial] [Hearing] held/continued to at
(Y) im Phis case is dismissed fwith/wilhout] prejudice and without costs[by/agreement/pursuant to |
Grreerain) UC) Local Ruled. OFRCPA(ayi) OO FRCP41(a)(2).
qo) wf [Other docket entry] ENTER MEMORANDUM OPTNION AND ORDER: Rodriquez’s petition
lor writ of habeas corpus is GRANTED, Petitioner Netialy Rodriquez shall be released from custody on
the conviction challenged in this action unless the Slate of Illinois commences proceedings to afford
Rodriquez, a new trial within one hundred and twenty days (120) of the date of this order.
(ii) @ [For further detail see order attached to the original minute order.|
No notices reyvifed, advised in open court Document
Number
No notices required uy of wntiers
Notices maiied by judge's stat cote
Notiligd counsel by telephone. Nov,, Ea
SF | Ducketing to mail notices
S| Mail AQ 430 torn, socksting defo Pris
Copy to jndgchnagistrate judge,
courtroom
WAP lopnty's
initials -
Date/time received fi
central Clerk's Offive sili dep iii



A review of the information that was available to Judge
Karnezis at the time of his ruling demonstrates how unreasonable it
was for the appellate court to have found the serious potential for
conflict required by Wheat. Judge Karnezis based his decision to
disqualify Brent on MeMurray’s police reports and on the State’s
assurances that McMurray would testify. First, however, it was
clear from the police reporks that while McMurray interviewed
Rosado and alibi witnesses related to Rosado, hé never interviewed
Rodriguez. Second, the State had not included McMurray on its
witness list in its answer to discovery. At the time it made its
motion to have Brent disqualified, the State had acknowledged that
its discovery was complete. Third, while Rosado and Rodriquez’s
cases had not yet been severed when Judge Karnezis ruled on this
matter, they had implicated each other in the crime and it was

possible that they would be tried separately.

In defending its position that McMurray would have served as
a witness in Rodriguez’s trial, the State argues that if Rosado and
Rodriguez had been tried jointly, and if Rosade had testified
against Rodriguez, the jury would have heard testimony from
witnesses relating to Rosado, including McMurray. If McMurray had
testified, the State theorizes, Brent would have had to have aross-—
examined him under the burden of a clear conflict of interest. In
order to place McMurray as a witness at the trial and to bring him

face to face with Brent, however, the State is forced to knit

together a rather complex set of facts. The scenario it provides

-ilil-



As the appellate court recognized, Wheat only permits a courk
to overcome the presumption in favor of petitioner’s counsel of
choice when there is a showing of either actual conflict or of
serious potential for conflicL. Wheat, 486 U.S. at 164. The
appellate court, however, found that. the trial court did not abuse

its discretion in ordering Brent to withdraw based on this sole

fact: MeMurray had interviewed witnesses and co-defendants who

implicated Rodriguez in the murder and therefore was a “possible”
witness at Rodriguez’s trial. It was objectively unreasonable for
the appellate court to find that this possibility was sufficient to
ereate a serious potential for conflict and to overcome the well-
established presumption that, under the Sixth Amendment, Rodriguez
has a right to counsel of his choice.

It is true that trial courts are given substantial latitude in
ruling on conflicts of interest, given that such rulings often take
place in the “murkier, pre-trial context when relationships between
partics are seen through a glass, darkly.” Td. at 162. This
latilude extends to “the more common cases where a potential for
conflict exists which may or may not burgeon into an actual
conflict as the trial progresses.” Id. at 163. The appellate
court, however, merely cited this latitude without exploring
whether the relationships between the parties were indeed murky at

the time Judge Karnezis made his ruling and whether such latitude

was Warranted in this case.


brief. United States ex rel. Smith v. Page, No. 96 C 3481, 1997 WL
61446, at *15 n. 10 (N.D, Tll. Feb. 6, 1997)
1. Section 2254(d) (1) Claim

A petitioner may only obtain habeas corpus relief under
§ 2254(d) (1) if he demonstrates that the decision handed down by
the last state court to consider the claim, in this case the
Illinois appellate court, is “contrary to, or involved an
unreasonable application of, clearly established Federal law as
determined by the Supreme Court of the United States.”
$ 2254(d) (1). The law applicable in this case is the standard for
when a defendant’s counsel of choice may be disqualified in light
of a conflict of interest as set out in Wheat v. United States, 486
U.S. 153 (1988).

The Sixth Amendment to the Constitution guarantees that “[i]n
all criminal prosecutions, the accused shall enjoy the right...
to have the Assistance of Counsel for his defense.” U.S. Const.
amend, VI. As the Supreme Court recognized in Wheat, the right “to
select and be represented by one’s preferred attorney is
comprehended by the Sixth Amendment.” 486 U.S. at 159; see also
Powell v. Alabama, 287 U.S. 45, 53 (1932) (“It is hardly necessary
to say that, the right to counsel being conceded, a defendant
should be afforded a fair opportunity to secure counsel of his own
choice.”); United States v. Seale, 461 F.2d 345, 358 (7th Cir.
1972) (the Sixth Amendment right to the assistance of counsel

“certainly means that it is the actual choice of the defendant



In order to avoid reading the police reports in the case
Judge Porter transferred the case to Judge Karnezis for the limited
purpose of ruling on the State’s motion to compel Brent’s
withdrawal. After reading the police reports but without hearing
any arguments from the parties, Judge Karnezis granted the motion
to disqualify Brent. In his ruling, Judge Karnezis cited the
State’s assertion that McMurray would testify, as well as the
State’s interest in having a fair trial, the avoidance of possible
impropriety, and the elimination of any possible conflict or later
claim of ineffective assistance of counsel were the court to accept
Rodriguez's waiver of conflict.

With no opposition from the State, Redriguez subsequently
moved to sever his case and was tried by Judge Porter in a
simultaneous, severed bench trial with Rosado, The State did not
eall any of the witnesses McMurray interviewed to testify against
either Rodriguez or Rosado. Nor did McMurray himself testify in
either case. On February 4, 1999, Judge Porter convicted Rodriguez
and on March 11, 1999, sentenced him to twenty-nine years
imprisonment. Rodriguez appealed his conviction to the Illinois
Court of Appeals claiming that: (1) the trial court improperly
disqualified his counsel; and (2) he was arrested without probable
eause.

In an unpublished opinion, the Illinois appellate court
affirmed the decision of the trial court on both claims. People

v. Rodriguez, No, 1-99-1422 (Ill. App. Ct. Dec. 5, 2000). With



not ask the State to explain how McMurray’s testimony would be
relevant or admissible and merely accepted its assurances that
McMurray had become an “integral” part of the case against
Rodriguez.

The Court is sympathetic to Judge Karnezis’ desire to avoid
any appearance of impropriety and to his sensitivity to problems
that arise when an attorney is burdened by conflicts. However, the
presumption that a defendant has the right to be represented by his
preferred counsel under the Sixth Amendment is a critical one that
courts may not take lightly. Ignoring what subsequently occurred
in Rodriguez’s case, namely that Rosado’s and Rodriguez's trials
were severed without objection from the State, and that McMurray
did not testify in either trial, given what information was
available to Judge Karnezis, it was still unreasonable for him to
find a serious potential for conflict sufficient to overcome that
presumption. It was accordingly unreasonable for the Illinois
appellate court to find that the state court did not abuse its
discretion in ordering Brent to withdraw.

The State contends that even if the appellate court did apply
Wheat unreasonably in this case, the error is subject to harmless
erroy analysis. While the Supreme Court has not definitively ruled
on whether denial of defendant’s counsel of choice requires a
showing of prejudice for reversal, the law on this issue is guided
in large part by the Court’s decision in Flanagan v. United States,

465 U.S, 259 (1984). In Flanagan, the Court noted that: “to the

—i4-


contrary” position and that Flanagan suggested that the right to
counsel of one’s choice was a structural error that was reversible
per se, The Court also acknowledged that Turk had not discussed or
even cited to Flanagan. Id. The Seventh Circuit did question
whether cases since Flanagan had limited the rule of automatic
reversal to cases of complete denial of the right to assistance of
counsel. Td, Eventually, however, while the Seventh Circuit
questioned the rationale for bringing the right to counsel of one’s
choice under that automatic reversal rule, it declined to decide

the issue. Id, at 960-61.

Despite citing to Santos, a subsequent district court decision
has categorized the right to counsel of choice as a structural
error for which prejudice is presumed, United States v. Chiapetta,
No. 99 CR 847, 2000 WL 1230454, at *3 (N.D. Ill. Aug. 23, 2000)
(citing Santos, 203 F.3d at 959-60). Likewise, the majority of
circuits that have reached the issue have held that a party need
not demonstrate prejudice in seeking to obtain reversal due to an
erroneous denial of a right to counsel of its choice. See United
States v. Panzardi Alvarez, $16 F.2d 813, 818 (1st Cir. 1987);
United States v. Rankin, 779 F.2d 956, 960 (3d Cir. 1986); Wilson
v. Mintzes, 761 F.2d 275, 285-86 (6th Cir. 1985); Crandell v.
Bunnell, 144 F.3d 1213, 1216 (9th Cir. 1998), overruled on other
grounds by Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000);

United States v. Childress, 58 F.3d 693, 736 (D.C. Cir. 1995) (per



“MoMurray”), who took part in the investigation of the crime, in an
unrelated real estate transaction, Citing this as a conflict of
interest, prior to trial the State moved to have Brent removed from
the case.

MeMurray was not an arresting officer for any of the co-
defendants and had no contact with Petitioner Rodriguez. As a
reporting officer, however, McMurray did have contact with
Rodriguez’s co-defendant Rosado. Along with other detectives,
McMurray played a role in verifying Rosado’s initial excuse and
interviewed Rosado to inform him that the excuse had not been
substantiated. He also questioned “Nana” and “Demaris,” two women
whom Rosado subsequently claimed as additional alibis. When these
women refuted Rosado’s story, McMurray again met with Rosado, who
eventually made an incriminating statement and implicated Rodriguez
in the crime.

In an initial hearing before the trial judge, Judge Porter,

the State asserted that McMurray had become an “integral” part of
the case, and that he would likely testify at trial. In response,
Brent noted that McMurray was not on the State’s answer to
discovery as a potential witness and that the State had

acknowledged that its discovery was complete. Brent also explained

that Rodriguez was willing to waive any conflict or, in the
alternative, to have co-counsel Grimaldi cross-examine McMurray.

In support of its motion, the State informed Judge Porter that it

planned to add McMurray to the witness list.



IN THE UNITED STATES DISTRICT COURT F | L E D
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

NOV 94 2003
UNITED STATES OF AMERICA, ex JUDGE HARRY p.
xel. NEFTALY RODRIGUEZ, US. DISTRICT COURT Wee”
Plaintiff, Case No. 02 Cc 2184
v. Hon. Harry D. Leinenweber

JERRY STERNES, Warden,

Defendant.

MEMORANDUM OPINION AND ORDER

Neftaly Rodriguez (hereinafter “Rodriguez”) is incarcerated at
Dixon Correctional Center, serving a twenty-nine~year sentence for
first degree murder. After an unsuccessful direct appeal,
Rodriguez filed this Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254, asserting that the state trial court violated his
Sixth Amendment right to counsel of choice by disqualifying one of
his attorneys for a potential conflict of interest. For the
following reasons, Lhe petition is granted.

1, BACKGROUND
Along with Robert Munoz and Angel Rosado (hereinafter

“Rosade”), Rodriguez was indicted for murder in the shooting death

of Dennis Rodriguez. Petitioner Rodriguez was initially

represented by two attorneys from separate firms, Perry Grimaldi
and Joseph Brent (hereinafter “Brent”}). Brent contemporaneously

represented Chicago police detective John McMurray (hereinalter

(§



relies on McMurray’s involvement in the investigation of Rosado.
Rosado told McMurray that he was with Nana and Demaris at the
Darwin School lot at the time of the crime. McMurray then
interviewed the two women and learned that they had not been with
Rosado at that location. As a result, McMurray interviewed Rosado
again, who then made incriminating statements and implicated
Rodriguez in the murder. The State claims that if the two women
had changed their stories to corroborate Rosado’s initial account
and had stated that they were at the Darwin School with him,
Rosado's statements regarding his activities at the crime scene
with Rodriguez would have been called into question. MeMurray

would then have been called to testify as a rebuttal witness Lo

impeach the women’s changed testimony, placing Brent (or his

partner) in the position of having to cross-examine McMurray and to
raise questions about his investigative skills.

This scenario does not work if the trials are severed, because
Rosado would have to testify at Rodriguez’s trial; his out of court
statements implicating Rodriguez are inadmissible hearsay. It is
unlikely that the State would call him unless his testimony was
consistent with the police report and he implicated Rodriguez in
the crime. In that case, there would be no need to gall MeMurray
because there would be no changed testimony to rebut. Theretore,
the scenario would only work if 1) Rosado and Rodriguez were tried
together, and 2) the two women changed their stories and placed

Rosado at the Darwin School lot. While at the time of Judge

~ 412 -



extent that an asserted right to counsel of one’s choice is like,
for example, the Sixth Amendment right to represent oneself

[o]btaining reversal for violation of such a right does not require
a showing of prejudice to the defense, since the right reflects
constitutional protection of the defendant’s free choice
independent of concern for the objective fairness of the
proceeding.” Id. at 267-68. ‘lhe Court also analogized the right
to counsel of one’s choice to the broader right to counsel and

explained that “[n]o showing of prejudice need be made to obtain
reversal in these circumstances because prejudice to the defendant
is presumed.” Id. at 268.

A year later, in Richardson-Merrell, Inc. v. Koller, 472 U.S.
424 (1985), the Court confirmed that in Flanagan it had not decided
the question of “whether prejudice is a prerequisite to reversal of
a judgment following erroneous disqualification of counsel in
criminal cases.” Id. at 438. The Court did state, however, Lhat
it had never held that prejudice was required for reversal in such
cases. Id.

Like the Supreme Court, the Seventh Circuit has not yet
reached this issue. In United Stales v. Santos, 201 F.3d 953 (7th
Cir. 72000), it explained that in a prior opinion, United States v.
Turk, 8/70 F.2d 1304 (7th Cir. 1989), it had stated that proof of
prejudice is required when a defendant is complaining of a denial
of her right to counsel of choice. Santos, 201 F.3d at 960. The
Court went on to concede, however, that “[m]ost cases hold the

- 18 -