In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-4147

NEFTALY RODRIGUEZ,

Petitioner-Appellee,

v.

NEDRA CHANDLER, Warden,

Dixon Correctional Center,

Respondent-Appellant.

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Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 02 C 2184—Harry D. Leinenweber, Judge.

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ARGUED MAY 25, 2004—DECIDED AUGUST 27, 2004

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Before EASTERBROOK, DIANE P. WOOD, and WILLIAMS,

Circuit Judges.

EASTERBROOK, Circuit Judge. Several months prior to

Neftaly Rodriguez’s trial for murder, the prosecutor filed a

motion to disqualify Joseph Brent as one of his lawyers.

Brent also represented detective John McMurray in an

unrelated real estate deal. The prosecutor told the judge

that McMurray was an “integral part of the case” against

Rodriguez because he had participated in the investigation

of one of Rodriguez’s co-defendants. According to the pros-
2 No. 03-4147

ecutor, Brent’s simultaneous representation of Rodriguez

and McMurray created a “per se conflict of interest”. The

thinking was not spelled out but must have been that, if

McMurray appeared on the stand, Brent would treat him

with kid gloves during cross-examination, lest he risk upsetting and losing a paying client. Relying on the prosecutorial assurance that McMurray would testify, the judge held

that a conflict existed and deemed inadequate Rodriguez’s

offer to waive his right to conflict-free counsel. The court

prevented Brent from rendering Rodriguez any further assistance. When trial arrived, however, the prosecutor failed to

call McMurray as a witness. Rodriguez was convicted and

on appeal argued that Brent had been disqualified improperly. The Appellate Court of Illinois rejected this contention,

People v. Rodriguez, 317 Ill. App. 3d 1159 (1st Dist. 2000)

(unpublished order), finding that the trial court had only

unpalatable choices—if it disqualified Brent, Rodriguez might

protest that his right to choice of counsel had been violated;

but if it accepted Rodriguez’s waiver, he might disavow it on

appeal and assert ineffective assistance of counsel. The

Appellate Court found that the trial judge did not err in

choosing the former course.

Rodriguez has petitioned for a writ of habeas corpus. 28

U.S.C. §2254. A state court’s decision may be upset on collateral review only if its decision is contrary to, or an unreasonable application of, law clearly established by the Supreme

Court. 28 U.S.C. §2254(d). Rodriguez does not contend that

the state court’s decision contradicts settled law. The

Appellate Court recognized, citing Wheat v. United States,

486 U.S. 153 (1988), that a constitutionally founded presumption in favor of a defendant’s choice of counsel can be

overcome only by a serious potential for conflict. But the

district court held that it was unreasonable for the state

tribunal to conclude that such a potential had been demonstrated, given the low likelihood that McMurray had

material evidence to give against Rodriguez. 2003 U.S. Dist.
No. 03-4147 3

LEXIS 21251 (N.D. Ill. Nov. 24, 2003). The district court

issued the writ, and Illinois appeals.

Disqualification stemmed from the prosecutor’s assurance

that McMurray was a vital witness. But McMurray did not

testify, and on collateral review Illinois does not argue that

McMurray could have provided any admissible evidence

against Rodriguez. The prosecutor has never explained this

about-face, nor did the state’s appellate court try to make

sense of it. All the prosecutor could manage in the state

proceedings was to argue that Rodriguez had not shown

that McMurray was certain not to testify. We grant the

(implied) point that decisions must be made ex ante; if

disqualification was proper on the basis of all information

known or knowable at the time the judge acted, then later

developments (such as a severance that allowed the prosecutor to withhold McMurray as a witness against Rodriguez,

while using him against other defendants) would not spoil

the decision. This differs, however, from an argument that

Rodriguez bore the burden of production and persuasion.

How could he have known the details of the prosecution’s

strategy? Under Wheat the risk of non-persuasion rests with

the prosecution rather than the defendant. The state’s

appellate court may have shared the prosecutor’s error; certainly its opinion does not disclaim it or otherwise evaluate

the prosecutor’s failure to put McMurray on the stand,

which pulled the rug out from under the trial court’s decision.

The state’s line of argument is further embarrassed by the

fact that McMurray did not testify at the co-defendant’s

trial either. In this court Illinois suggests that, if severance

had not occurred, McMurray might have testified at a joint

trial, for his investigation indicated that the co-defendant

had no alibi and likely was at the scene of the murder. But

then why didn’t McMurray testify at the other trial? And

why, if this were the limit of McMurray’s testimony, would

Brent have been inclined to cross-examine McMurray at a

joint trial? It was known before the disqualification that
4 No. 03-4147

Rodriguez and his co-defendant had made statements blaming

one another for the murder (this is why their trials were

severed). McMurray’s testimony about the co-defendant’s

alibi either would have exculpated Rodriguez or been neutral toward him. So the state’s explanation for disqualifying

Brent doesn’t hang together. While Rodriguez does not

accuse the prosecutor of acting in bad faith, that is not an

element of the constitutional theory.

Cinching a conclusion that the state court’s decision is

unreasonable is that there never was much chance (viewed

objectively) that Brent would be placed in a conflicted or

compromised position. That is so even if McMurray was

likely to testify. Rodriguez had two lawyers and offered to

have Brent’s co-counsel conduct any cross-examination of

McMurray. Illinois does not contend that Brent learned

from McMurray privileged information that he could have

passed on to co-counsel (if there had been such privileged

information, both of Rodriguez’s attorneys would have been

disqualified). Having co-counsel cross-examine McMurray

would have eliminated all risks; and this easy solution (which

the state judiciary ignored) makes it unreasonable for the

state to have denied Rodriguez the benefit of Brent’s services. A state court can be erroneous without being “unreasonable.” See Yarborough v. Alvarado, 124 S. Ct. 2140 (2004);

Price v. Vincent, 538 U.S. 634, 641-43 (2003). Yet a decision

that not only rests on mistaken premises but also makes no

sense even if those premises had been true must be called

unreasonable.

Illinois contends that any error is harmless. Rodriguez

enjoyed the services of one attorney of his own choosing

even after Brent departed, and he does not contend that his

trial counsel’s performance at trial was deficient in any

respect, let alone constitutionally ineffective. See Strickland

v. Washington, 466 U.S. 668 (1984). Our analysis of this issue

is not affected by 28 U.S.C. §2254(d), because the state’s

appellate court did not address whether any error was
No. 03-4147 5

harmless. Nor does Teague v. Lane, 489 U.S. 288 (1989), come

into play. Teague ensures that judgments are not spoiled by

constitutional rules of criminal procedure established or

materially changed after a conviction becomes final. The

key word is “procedure”. See Schriro v. Summerlin, 124 S. Ct.

2519 (2004); Bousley v. United States, 523 U.S. 614 (1998).

Teague controls the application on collateral review of new

rules governing the conduct of police, prosecutors, or courts

preceding the verdict and sentence—that is, the primary

conduct under review in the collateral attack—but not the

standards by which the federal court conducts its own

review. We therefore decide whether the error was harmless

using currently applicable federal rules.

The Supreme Court has never decided whether prejudice

is a prerequisite to reversal of a judgment following erroneous disqualification of counsel. In Flanagan v. United

States, 465 U.S. 259 (1984), the Court stated that an

erroneous disqualification could support reversal on appeal

following a conviction, see 465 U.S. at 268-69, and some

courts have understood this to imply that harmless-error

analysis would not be employed—though the Court did not

say that (the word “harmless” does not appear in the decision), and all that Flannigan establishes is that there would

be appellate jurisdiction to consider the issue after conviction and sentence (though there is none before the final

decision). The Court has since observed that whether

erroneous disqualifications may be treated as harmless is

an open question. See Richardson-Merrell, Inc. v. Koller,

472 U.S. 424, 438 (1985). We have struggled with the issue

in both criminal and civil litigation. See United States v.

Santos, 201 F.3d 953 (7th Cir. 2000); In re Lewis, 212 F.3d 980

(7th Cir. 2000); United States v. Turk, 870 F.2d 1304 (7th Cir.

1989). Turk suggests (but does not hold) that proof of

prejudice is required. (The decision in Turk rested on the

finding that the district court did not abuse its discretion in

denying the defendant’s request for a continuance to obtain
6 No. 03-4147

a new attorney.) Santos added, see 201 F.3d at 960, that it

is difficult to show prejudice (especially when one counsel of

choice remains) without also showing ineffective assistance,

in which event the propriety of the disqualification is

irrelevant. But it does not follow, and Santos did not hold, that

reversal is automatic. Many procedural errors (constitutional,

statutory, and regulatory) may be non-prejudicial, and it

would make little sense to say that the less harm a mistake

causes the more readily the appellate court must set aside the

judgment. See, e.g., United States v. Patterson, 215 F.3d 776,

778-82 (7th Cir. 2000), remanded in part on unrelated

grounds, 531 U.S. 1033 (2000), after remand, 241 F.3d 912

(2001) (the difficulty of showing prejudice from an error that

forces the defendant to use a peremptory challenge does not

justify automatic reversal).

The norm in cases on collateral review is that the petitioner

must show that the error had a substantial and injurious

effect on the outcome. See Brecht v. Abrahamson, 507 U.S.

619 (1993). As long as a defendant has counsel and is tried

before an impartial judge or jury, most blunders are assessed to see whether their effect injures the defense. Neder

v. United States, 527 U.S. 1 (1999). Defendants denied all

assistance of counsel need not show that the denial affected

the verdict. See Bell v. Cone, 535 U.S. 685 (2002); United

States v. Cronic, 466 U.S. 648 (1984). Prejudice in these situations is so likely that case-by-case inquiry is unnecessary.

See Arizona v. Fulminante, 499 U.S. 279 (1991). But

shortcomings in counsel’s performance justify relief only if

the deficiencies were prejudicial. See Mickens v. Taylor, 535

U.S. 162 (2002); Strickland v. Washington, 466 U.S. 668

(1984); Morris v. Slappy, 461 U.S. 1 (1983).

It is hard to see why violations of the qualified right to

counsel of choice should lead to automatic reversal, when

deprivation of the absolute right to a competent attorney

leads to relief only if prejudice is demonstrable. An attorney

is vital to a reliable trial. A competent attorney is less
No. 03-4147 7

so—one must show that, but for counsel’s bungling, the

outcome likely would have differed. Having one’s preferred

attorney is icing on the cake. A defendant with an inept

attorney is in a more precarious position than one with a

competent lawyer who is the defendant’s second or third

choice. A rule of automatic reversal when the defendant does

not get his first-choice lawyer, but requiring proof of

prejudice when the defendant does not get even a competent

lawyer, would not make sense—particularly in cases such

as this where the defendant goes to trial with another

lawyer of his own choice. We are aware that several circuits

have held that the denial of the right to choice of counsel

never may be deemed harmless. See United States v. Panzardi

Alvarez, 816 F.2d 813 (1st Cir. 1987); United States v. Voigt,

89 F.3d 1050 (3d Cir. 1996); Wilson v. Mintzes, 761 F.2d 275

(6th Cir. 1985); Bland v. California, 20 F.3d 1469 (9th Cir.

1994), overruled on other grounds by Schell v. Witek, 218 F.3d

1017 (9th Cir. 2000). Contra, United States v.

Mendoza-Salgado, 964 F.2d 993 (10th Cir. 1992) (prejudice

required unless trial court acted “unreasonably or arbitrarily”

in disqualifying counsel). But most of these decisions rely

on Flanagan without discussing its limits (or the observation in Richardson-Merrell), and all of them precede Neder

and Mickens. Cases like Rodriguez’s, where the defendant

is represented at trial by at least one lawyer of his own

choosing, are especially poor candidates for automatic reversal.

This leaves unanswered the question posed in Santos—

how can a defendant prove prejudice when his substitute

counsel provided constitutionally adequate assistance? Maybe

the answer is that, when the defendant cannot prove prejudice, the judgment always stands. So the Supreme Court

has held even when the right at issue affects the assistance of

counsel. United States v. Morrison, 449 U.S. 361 (1981), rejected the proposition that all interference with attorneyclient relations (in Morrison, meeting with a suspect while
8 No. 03-4147

counsel was absent and disparaging the lawyer in an effort

to undermine the client’s confidence) automatically spoiled

the prosecution.

Some kind of effect must be shown. But what kind? Losing the services of one’s preferred lawyer can be similar to

receiving the services of a lawyer with a concealed conflict:

in either situation trial counsel may well do just fine, but

there may be hard-to-uncover shortcomings. The Supreme

Court resolved the difficulties facing defendants represented by a conflicted attorney by holding that relief is

possible if the conflict “adversely affects” counsel’s performance at trial. See Mickens, 535 U.S. at 170-72 & n. 5; Cuyler

v. Sullivan, 446 U.S. 335 (1980). Adverse effect might be

shown if, for example, counsel failed to pursue a reasonable

alternative defense strategy. See Rubin v. Gee, 292 F.3d 396

(4th Cir. 2002); McFarland v. Yukins, 356 F.3d 688 (6th Cir.

2004).

The adverse-effect standard lies midway between automatic reversal and requiring proof of a likely difference in

the litigation’s outcome. Until the Supreme Court settles

the question it left open in Richardson-Merrell, this middle

ground seems the closest match to situations in which the

court wrongly strips the defendant of his preferred lawyer.

Adverse effect in this situation means an identifiable difference in the quality of representation between the disqualified counsel and the attorney who represents the defendant

at trial. The difference does not have to be great enough to

undermine confidence in the outcome—that is the standard

under Strickland, see 466 U.S. at 694; Woodford v. Visciotti,

537 U.S. 19, 23-24 (2003)—but it must be enough to show

that the defendant’s representation suffered a setback from

the disqualification.

Has Rodriguez shown an adverse effect? This might be

done if Brent had expertise that his other lawyer lacked, or

if Brent had planned a line of defense that co-counsel was
No. 03-4147 9

unable to sustain on his own. So far, however, the record is

silent. Brent has not filed an affidavit detailing what he

would have done differently had he conducted the trial or

how the defense otherwise might have been affected by his

absence. It is hard to blame Rodriguez for this. Illinois argued for application of the prejudice standard from ineffective-assistance cases, which would have the practical

effect of eliminating relief in all cases when the defendant

loses his preferred lawyer, and thus of making Wheat a dead

letter. Rodriguez argued for automatic reversal, the opposite

extreme. Now that we have settled on a middle ground, both

sides should have an opportunity to produce evidence and

craft arguments bearing on the applicable standard. See 28

U.S.C. §2106. Accordingly, the judgment of the district court

is vacated, and the case is remanded for proceedings

consistent with this opinion.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-27-04