William H. Rehnquist: Mr. Cleary, you may proceed whenever you're ready.
John J. Cleary: Mr. Chief Justice, and may it please the Court: The reason the Petitioner chose Mr. Iredale as his attorney in this case was best stated by the trial judge, who said "were I in his position, I would want Mr. Iredale representing me, too, because he did a fantastic job in the prior trial and I can fully understand why he wanted him as his attorney. " This case turns on the question of right to counsel of choice. I would suggest that it's a disqualification issue clear and simple. The issue is presented where all parties waived any potential conflict, and the question decided here was the question as to the timing. The timing in this case was that the attorney following basically the guidelines of Cuyler v. Sullivan entered the case at the time he could, when he disposed of the other two. When the second guilty plea was entered, he indicated I am now going... I am retained by this defendant who has seen my superior trial skills and wants me. He has his independent attorney, this is not someone else, the attorney knows of the performance and says we want him. The trial judge says, when presented initially with it, if the clients have no problem and the prosecutor has no problem, I see no problem. At this time, the prosecutor said we don't plan to call this person as a witness, but there is a potential, a possibility. No time previously was this individual considered as a witness. The following Monday, a written objection is filed to the appearance of this attorney because (1) he would not be involved, Gomez-Barajas would not be involved, but now there's other person who wasn't going to be a witness will now be a witness. That witness would provide no adverse information against the Petitioner. That witness would provide adverse information and substantiate the Government's principal witness that he was a large-scale dope dealer because, in fact, he did deliver marijuana to this individual's home. The key question was, did that marijuana get to the Petitioner's home. The answer was there was no showing in the record, and the Government just assumed that that connection was sufficient to knock out counsel. I think it's also important to note in this case is the District Court finding, and these things are so critical for, I think, an appellate tribunal. In this case, the Court said based on the representations of the Government, so there was no factual finding. It was assumed that what the Government presented in its written papers were sufficient. Second, I have no choice but to file... find irreconcilable conflict, not a discretionary, a balancing of the issues. There was no hearing.
Antonin Scalia: Excuse me. Were any of the Government's representations contradicted at that time?
John J. Cleary: Yes, Your Honor, they were. Flat out. Throughout the initial hearing.
Antonin Scalia: Not conclusions, but representations, specifically what was contradicted. I'm not sure that means that the district judge was not making any evaluation of his own. It would be a natural way to say it based on the Government's representations, there being no contradiction of those. I have no choice.
John J. Cleary: Right.
Antonin Scalia: What factual representation was contradicted?
John J. Cleary: The factual representation was contradicted, first, as to Mr. Iredale being... I mean, Mr. Wheat, the Petitioner, being a possible witness against Mr. Gomez-Barajas, if his deal fell through. The arrangement as to the non-marijuana charges. That is to say, the other charges and the Government's representation was that, gee whiz, if that fell apart, Mr. Wheat might be a possible witness against Mr. Gomez-Barajas, and on that record, we have flatly contradicted by the assertions of Mr. Iredale that there is no way he could be a witness in that transaction. So, we do have a classic confrontation.
William H. Rehnquist: Were they talking about the prosecution calling him as a witness or the defense?
John J. Cleary: No. In that case, Your Honor, there was an assertion by the prosecutor that he thought there might be a possibility. However, in his written statement of which the judge based the decision on, he stated only as to the deal. I think both sides acknowledged that Gomez-Barajas would not be a witness.
William H. Rehnquist: Well, is that somewhere in the record? So that we know that the District Court credited that rather than the Government's representation?
John J. Cleary: Well, the Government didn't say he was going to be called as a witness. The Government said that the reason that Gomez-Barajas was going to be involved was if the plea fell apart, then the Petitioner might be a possible government witness against Gomez-Barajas. The Government, in its representation to the Court, did not even suggest that Mr. Gomez-Barajas would be a witness for them or the defense.
William H. Rehnquist: Perhaps I'm just not getting all of it, but in your answer to Justice Scalia's question, you say the Government. The Government represented that someone might be a witness.
John J. Cleary: That's... maybe there's... there's two individuals. Gomez-Barajas and Bravo. Bravo was a witness in the trial. There's no question as to that.
William H. Rehnquist: But when the Government is speaking before the trial, all they can do is represent as to possibilities. They can't say in fact yes, he will surely be called.
John J. Cleary: Well, I think in the sequence in this case, sticking to the record that we have on the 22nd of August, the statement of the... at the first time Bravo entered a plea and indicating that now Mr. Iredale is the attorney for the Petitioner, the Government says, at this time, we have no plans to call him. They already made the adjudication. They have the trial the following week. There is the possibility. So, I think at this time, what we have so close to the trial after the plea is entered an indication that he is not a viable true-to-form and anticipated witness.
William H. Rehnquist: Then, the Government changed its representation shortly after that, didn't they?
John J. Cleary: That's correct.
William H. Rehnquist: And are you saying that the Government's second representation was contradicted?
John J. Cleary: Yes. No. I think the defense said, yes, he is going to be calling him as a witness. What was the contradiction was as to whether or not that witness would give evidence that would, in effect, be adverse towards the Petitioner. And I think that the concern was that what the witness had to say and in the case we had... and what's important, I think, is the time sequence on this. The original case, Mr. Iredale represented Gomez-Barajas. In April of 1985, some several months before, appointed counsel represented the witness Bravo. Bravo relieved the appointed counsel and at that time, Mr. Iredale was representing two defendants with the approval of the court and no objection from the Government. And I think then to see the sequence of events where they have no objection to multiple representation as such, to shift after Iredale has successfully engaged them and really done damage to their witnesses, the same witnesses the Petitioner would be facing, changed the ball park. I think, further, that what the Court also said after it found an irrebuttable presumption of conflict, it said no waiver is possible. It didn't say a question about an intelligent knowing and voluntary waiver, which I think is an appropriate inquiry for a court, but said no waiver is possible.
Anthony M. Kennedy: Mr. Cleary, did you ask for a hearing? The trial is on Tuesday and these arguments are taking place on Monday. Did you ask for an evidentiary hearing?
John J. Cleary: What happened was, Your Honor, that at first, the previous Thursday is when Bravo, the witness, entered the plea, and the court indicated it had no objection and at that time, the representations were made that all parties involved had consent and the court said, but I will give the Government an opportunity to object if it wishes to object, and what had happened is the Government filed the written paper, the memoranda, on the following Monday. The trial is scheduled for Tuesday, and at that time, on Monday, given the Government's objections, the court never inquired as to a hearing and the offer was made and there was a clear cut offer of proof, that these individuals would testify that they (1) had no conflict and that they were willing to waive any type of conflict, potential or actual.
Anthony M. Kennedy: Am I correct that you did not ask for an evidentiary hearing? You just submitted it on offers of proof?
John J. Cleary: I think that they asked for the question of taking a waiver, but I think the judge foreclosed it by saying waivers are not possible. So, the inquiry of what could be said as to the nature of the conflicts or their intelligent waiver was never considered below. I think that in this case, the representation as to conflict are minimal. I think that the concern is we have like a double standard. In Cuyler, this Court found where we had two attorneys representing three defendants, and the first one went first to trial and was convicted of murder. The attorney still representing the other two and found that there was multiple representations. The court held that multiple representation doesn't work to the disadvantage, that the right to counsel of choice is that it's a benefit. You should have the ability to choose who your attorney might be. In that opinion, there was at least some concern given for the deference that was owed to the choice of the client and the attorneys involved. In Cuyler, we had a situation where there was a potential conflict and this Court found an implicit waiver. In this case, we suggest that what we have at most is a speculative or potential conflict and should it not be able to be overcome by an expressed waiver,--
William H. Rehnquist: Mr. Cleary, you're not suggesting that in a voluntary knowing waiver on the part of a defendant is the final answer to any conflict, are you? That that ought to just guarantee the selection of this particular lawyer?
John J. Cleary: --I am suggesting that a knowing intelligent and voluntary waiver, I mean one fully explored by the court,--
William H. Rehnquist: I think the question asked you can be answered yes or no, and then you can explain your answer.
John J. Cleary: --Yes.
William H. Rehnquist: You say that a voluntary knowing intelligent waiver can concludes the matter?
John J. Cleary: Yes.
Byron R. White: Even though you could say there would be a conflict?
John J. Cleary: Yes, Your Honor. If I can give an example.
Byron R. White: Yes.
John J. Cleary: The famous Loeb Leopold case was two University of Chicago law students who murdered a young boy, and they both made accusations, one accusing the other. They picked a single attorney, Clarence Darrow, to represent them, and could the prosecutor come in and move to disqualify like here, on the grounds that there would be a conflict of interest between the two or should not the two be allowed to make the choice that may be notwithstanding the conflict, their best interests might be served by a state escaping the scaffold, and I think that in that context, we could have an actual conflict that can be waived. In the context of this case before the Court now, my suggestion is there's only two potential conflicts.
William H. Rehnquist: But how about, you know, the ABA standards on conflicts, state bar standards on conflicts? You know, they are not favored, to put it mildly.
John J. Cleary: The standards the Court refers to is that they lean towards, and I would say as a general rule, the preference is to have separate counsel, and to that extent, where I track the other lawyers. However, each one of those professional rules gives way and defers to the right of the defendant to choose, and I think that we have to protect that right.
William H. Rehnquist: Even in the face of a known conflict?
John J. Cleary: Even in the face of a known conflict. Would I be in a better position to choose my attorney or have the Government choose the attorney for me? And I think given that tension, I would like to think I could choose my own attorney.
William H. Rehnquist: Yes, but you can carry that to... you can say, you know, my real favorite is someone who isn't admitted to the bar.
John J. Cleary: Your Honor is correct. I think there's... the Court, I think, in Chandler v. Fretag referred to it as an unqualified right. However, I think the right to demand counsel and, therefore, would have to be a lawyer. Second,--
William H. Rehnquist: Why? I mean, on your theory, if I think someone who is not a lawyer is better, the only reason we demand a lawyer is to protect the defendant even when he doesn't want to protect himself. He thinks he knows better, that he'll be better off with his non-lawyer.
John J. Cleary: --I would have to stick to the terms of the Constitution which said counsel, and I think that the meaning and understanding of counsel at the time it was adopted in 1791 would mean a lawyer, and also at that time would mean also the right to choose a lawyer because this Court really didn't evolve the alternative appointed counsel until Powell v. Alabama.
Sandra Day O'Connor: Mr. Cleary, do you think the public has no right to have a trial proceeding that appears in all respects to be fair, including not having an attorney represent two defendants if there is an apparent conflict of interest?
John J. Cleary: I think that the public's interest has to be balanced against those on trial. I think if there was a problem as to, and this gets into the issue of was it an intelligent waiver, a knowing waiver or a voluntary waiver, I think the Court can interject itself, and there are decisions, for example, when the individual might be an attorney that's involved and wants to represent both people. I think there are some questions as to whether or not that would be voluntary by virtue of the relationship. My suggestion is that the public would be more scornful, that if prosecutors could come in and move to disqualify the best qualified defense lawyers and think that the person has to take someone other than the person's choice of counsel, when, in our system, we face in a criminal context the Government. And you have to think that the person who is with you is your advocate, your soldier, your protector.
Byron R. White: Do you base your alleged right entirely on the Sixth Amendment?
John J. Cleary: Yes, Your Honor. I think that the Sixth Amendment as developed by this Court, and I think it's rather clear cut and I think, if anything, I'm here with the pristine pure right to counsel because I have 1791. When you look at the authorities, what you had was only the right to counsel of choice. In Powell v. Alabama, 1932, this Court held that due process because the Sixth Amendment didn't apply to the states, that there was a right to appointed counsel in a death case, but Alabama already had it, and you evaluated it, and you said that the right to counsel at that time existed only by statute. '42 Betts v. Brady didn't find it, said no, doesn't apply.
Sandra Day O'Connor: The Government takes the position that the right to counsel of choice, if it exists at all, is not found in the Sixth Amendment, but in due process.
John J. Cleary: I would suggest that the argument was evolved by this Court in the context of the due process application because the only way it could be extended to the states would be through the Fourteenth Amendment due process clause. So, I would say in embryonic form, that was the only justification. I think since Gideon, it's very clear that the Sixth Amendment inheres in the right to counsel, so that you have it applied to the states.
Sandra Day O'Connor: Yes, but the Government says that entitles you to adequate legal representation, but doesn't extend to a choice.
John J. Cleary: I would say that I am not in a position to comment on the due process clause under the Fifth as was applied in the case when I had the Sixth, which, in historic traditional concept, gives the right to counsel of choice.
Byron R. White: Do you think the Court before... before the Court grants the request to appoint this counsel, can demand a waiver? It sounds to me like you say counsel of choice goes to the Court, says I want to discharge my counsel and have another.
John J. Cleary: Well, I don't think that it can be asserted in unreasonable fashion. I think it has to be a reasonable opportunity and limits could be placed on it. If it's a dilatory--
Byron R. White: What kind of limits?
John J. Cleary: --Well, I can only use the rule of thumb of reasonable. It should be given a reasonable opportunity to assert it, and if it will not delay the trial. In this particular case,--
Byron R. White: Well, I know, but can the court insist on a waiver of what appears to be a conflict of interest?
John J. Cleary: --If the court makes the inquiry in a federal context under Rule 44(c), the court can ask if there's a waiver. I don't think the court can force a waiver from someone. If it finds there is no waiver, then I think it has to say other counsel are going to be necessary.
Byron R. White: Well, so, he could... the court could turn it down, if there's... if a waiver is declined?
John J. Cleary: If a waiver... if there is not an intelligent waiver, the court doesn't have to accept it. If there's joint representation, and--
Byron R. White: I take it then on your position that if one of these persons is convicted and the other is acquitted, the person who is convicted is a fellow who got the waiver, that he is stuck with it, he just can never come back and say, look, that judge shouldn't have allowed this, there was obvious conflict, I was denied due process.
John J. Cleary: --That was the situation in Cuyler v. Sullivan, where the one who was convicted and two were acquitted, and the question was this Court, and I think it was over two dissents or at least commentary that there should have been an inquiry by the court. This Court found an implicit waiver, and in this context where we have an expressed waiver by all the parties, and this is not government witnesses, this is not the Government like we have former federal prosecutors, and the question is, yes, I think that the waiver. This Court would have to sit down and do what it's doing now, to go through, to make the test, is it speculative, potential, actual conflict.
Byron R. White: Well, at least you would certainly have to, in my example, you certainly then have to at least relitigate again voluntariness, whether you were really intelligent and whether you were informed of all the circumstances, and whether you really were aware of the seriousness of the conflict when you went in.
John J. Cleary: I think that there has to be an inquiry, and it wouldn't have to take very long. The question is Rule 11 usually takes ten to fifteen minutes as the Court knows. In this type of case, we have a classic example in Krebs, a Sixth Circuit case that I cited, where it was Judge Peck who wrote the opinion and the trial judge was supersensitive. Do you want other counsel appointed, you have appointed counsel available, and he did it in a matter of minutes and that was the end of it, and in that case, it was an actual conflict because the prosecutor intimated that the attorney representing him may be involved in the criminal misconduct, and I think in that context, from an appellate tribunal, you would want a cleaner sanitized clear cut established waiver rather than the speculation about what constitutes what type of conflict and to disqualify attorneys.
Byron R. White: I suppose... would he also waive any claim of ineffectiveness by the counsel's performance during trial? I thought he was going to be good, but it turns out he was wholly ineffective.
John J. Cleary: I think the right to counsel of choice is different than the right to effective assistance of counsel, and I think one is--
Byron R. White: Well, when trial counsel fails to object to testimony or lets some in because it favors one of his clients but not the other, is that ineffectiveness?
John J. Cleary: --I think that the Court, to the extent that it would ask the person, do you want to fly under your own flag, and I think we see judges do this all the time, do you want attorney X representing you, and they say unequivocally yes, then I think we should give the individual that choice, and I think an effective--
Byron R. White: I don't know how you're going to really protect the court system from two or three more trials about counsel if you permit... if a judge is just foreclosed from turning down this choice where there are conflicts.
John J. Cleary: --I think, Your Honor, that what we're trying to suggest is that in this case, the judge used the atom bomb to disqualification. There were other procedures in this case. For example, Mr. Iredale not to examine that particular witness, and there were also other alternatives, cures that could be used in this case, other than total disqualification. We didn't have it. And I think that in the context of this case, where we do have something so fundamental as the right to counsel of choice, and we see that and I would say it's analogous to Faretta and it's not to be measured by Cronic or Strickland, which is the lowest minimum level of effective assistance of counsel.
William H. Rehnquist: Mr. Cleary, in Faretta, we have seen many examples since Faretta of relitigating a question of whether the court was justified in letting them proceed on their own.
John J. Cleary: Your Honor,--
William H. Rehnquist: The trial court can't win in some of these situations. If he says no, you're not capable of proceeding on your own, it's appealed, I should have been able to represent myself. If he says yes, you are capable of representing yourself as you want to, he later comes in and says if I had any sense, I never would have tried that.
John J. Cleary: --I think we all have to assume risks that are made in waivers. The defendants in the police station often waive counsel thinking it's for their mythical benefit, and find out that they have to live with that mistake much later on.
Antonin Scalia: If I thought we'd have to live with it, I could easily accept the argument you're making with this, but I cannot imagine that you really think that these people are going to live with the waivers they make. Let's assume the most voluntary informed waiver you can imagine, this counsel is going to represent all three of us and then what happens at trial is that counsel in order to save two of them allows in testimony or, indeed, elicits testimony that absolutely condemns the third. Counsel said, well, I did the best I could, I, after all, was representing all three. You acknowledged that I could represent all three. You waived it. Now, are we really going to allow that to happen?
John J. Cleary: First of all, I think the Court denigrates the role of defense counsel because most of us are not going to put ourselves in that situation, and in Cuyler, there was a representation that certain deferences were going to be. In that situation, no defense counsel would take himself into that position, but there can be cases where--
Antonin Scalia: We have no problem if we posit that no defense counsel will ever put himself in a situation of a bad conflict. We don't have to worry about any of this. I mean, that's the problem we're talking about.
John J. Cleary: --But I think there has to be some point where the individual... in the context of this case, we have the Government using it as a tactical advantage to knock out counsel who face the same witnesses, and when you have the reason to want this particular attorney and you see not demanipulative, not be stumbling, not be mistaken guidance but a firm choice, even though it has with it certain risks, and the Court is correct, I think just the same way we have pleas of guilty, can't everybody say that the plea of guilty is wrong and that's why we have a Rule 11 hearing. I think that the time involved in the context of this case, where all three parties waive, it was a speculative conflict that in this particular instance, there should be, I think, the right to go forward with your chosen advocate. I would like to suggest that Faretta, I think, would be the analogous rather than Cronic v. Strickland, for determining it. This Court made reference to that in Cronic as to distinguishment, lining up with Flanagan in every circuit that has treated it when the right has been denied. It is done without a showing of prejudice. I'd like to reserve my remaining time.
William H. Rehnquist: Thank you, Mr. Cleary. We'll hear now from you, Mr. Kellogg.
Michael K. Kellogg: Thank you, Mr. Chief Justice, and may it please the Court: The absolute position taken by Petitioner is that he has an unqualified right to waive any conflicts of interest arising out of multiple representation stemming from the Sixth Amendment. Now, we acknowledge at the outset that a criminal defendant in most cases has a right to choose any lawyer he wants, but that right does not stem from the Sixth Amendment, and it's an inherently qualified right. It is not like the right to counsel or the right to self-representation which must be enforced directly by the Court in every serious criminal case. Now, the right to choose your counsel is inherently subject to a number of significant qualifications which Petitioner ignores. For example, the lawyer one would choose may be unwilling to represent you or his fees may be too high or he may have other commitments which conflict with the court's schedule and make him unable to appear. He may not be admitted to the bar of the court. He may be a lay man or a disbarred attorney. All these sorts of reasons can limit to some extent the defendant's choice of counsel. It is also limited by the existence of certain serious conflicts of interest. These conflicts can be very many types. For example, the lawyer he wants may be a former prosecutor who, while he was working for the Government, was involved in the same criminal matter or the lawyer may have been retained by third parties with interests adverse to that defendant or he may be a fact witness at the trial or implicated in the same criminal conduct with which the defendant is charged. Courts have universally held that under those circumstances, the conflicts of interest override the defendant's right to choose his counsel and permits disqualification. Now, the most common of these types of conflicts arises in cases where one lawyer represents more than one defendant in a given criminal case, and Rule 44(c) was designed to deal with that situation. States that... the District Court has to inquire into every instance of multiple representation, and take such actions as may be appropriate unless there's good cause to believe that no conflicts are likely to develop at trial. The Rule 44(c) does not itself state what actions, what measures might be appropriate if conflicts are likely to arise, but the advisory committee note to the rule makes clear that disqualification of counsel is legitimate option. The dangers created by multiple representation that Rule 44(c) is designed to address is primarily centered around the fact as noted during the previous argument that the interest of the two defendants may diverge at trial. Disparity of evidence in one... between the defendants may require the lawyer to forego presenting a witness or making an argument or taking other action that would help one of his clients at the expense of the other.
John Paul Stevens: Mr. Kellogg, let me throw out a question that troubles me about the case to be sure you don't overlook it. You're mainly directing your remarks to the case in which the new counsel would be the sole attorney for the defendant, and I'm particularly concerned in this case about the fact that this lawyer was willing to be additional counsel and he could have kept the same counsel and this man just work along with him. Why wouldn't there be adequate protection against the concerns you address if he let them both sit at counsel table?
Michael K. Kellogg: Well, first of all, from the record, it's not actually clear whether Iredale was going to represent him by himself or whether he was just--
John Paul Stevens: He originally wanted to do it by himself, but it seemed to me that it was rather clear that he was willing to serve as additional counsel and just cross examine these witnesses that seemed so important to him, and I hope you cover that point as fully as you can before you get through because that's what troubles me about this case.
Michael K. Kellogg: --Well, it raises problems because he was representing the other two defendants alone. So, no other counsel would be protecting their interests independently, and with respect to his representation of Wheat, it would have involved one of his clients being a principal... not a principal witness, but certainly a witness with adverse information to the Petitioner at the trial and it was also particularly troubling about this case is the fact that he was representing defendants at widely disparate levels of what was a fairly large conspiracy. He was representing the lead defendant, who is the ultimate source of the marijuana. He was representing a middle level defendant, Petitioner, who was responsible for brokering large amounts of marijuana, and one of the small fish at the bottom who delivered one van load.
John Paul Stevens: But I don't see why the other lawyer wouldn't be perfectly able to look out for all the pitfalls that would concern the Court in that situation. If you assume the other lawyer is completely independent and competent, which I gather he was from the record, he would surely, it would seem to me, understand the potential for conflict and surely there is some potential for conflict here.
Michael K. Kellogg: Well, Rule 44(c) does say that the primary burden is placed on the lawyer to anticipate conflicts that are likely to develop, but there's a number of reasons why they can't do that, and Rule 44(c) goes on to state that even the defense counsel is not going to be able to anticipate all the sorts of conflicts that might arise at trial because he's not going to know fully what the nature of the Government's case is. Also, there's the problem that in representing more than one defendant, it's difficult to give independent advice to each defendant if the multiple representation favors one at the expense of the other. Now, with Petitioner having a separate counsel to represent him, that concern would be alleviated somewhat, but with the other two defendants not having separate counsel, that concern... that's a very legitimate concern of the District Court. The fact that the motion to disqualify--
John Paul Stevens: Clarify one thing for me. During the trial of this case, the man that wanted to come in, I forget his name now,--
Michael K. Kellogg: --Iredale.
John Paul Stevens: --Iredale, was not going to represent another defendant during that same trial, was he?
Michael K. Kellogg: No. It would have been--
John Paul Stevens: If the trial had been almost terminated and a plea taken, but during the hearing itself, there wasn't any possibility of conflict of that kind.
Michael K. Kellogg: --Well, he would have been representing a witness against Petitioner.
John Paul Stevens: But the witness would have been, in effect, a former client.
Michael K. Kellogg: Yes.
John Paul Stevens: But the other lawyer--
Michael K. Kellogg: He had not yet been sentenced.
John Paul Stevens: --And if it looked like it was really... he was not doing an effective job, why couldn't the court say, well, I think we better have the other lawyer examine this particular witness.
Michael K. Kellogg: Well, that would have been one option.
John Paul Stevens: Why wouldn't that have been an adequate option? Because... I know you say that there's no absolute right to counsel of your choice, but surely there is some value to letting a defendant have choice if all the other conditions are met, that he's a lawyer and that he's competent and so forth and so on. There is some value the Court should respect, is there not?
Michael K. Kellogg: There is, but the concerns here are really twofold. First, there's the concern as the Chief Justice and Justice Scalia noted during Petitioner's argument, with the problem of adequate waivers. Each defendant has a right to conflict-free representation, that he can waive only if he understands and appreciates all the dangers involved.
John Paul Stevens: Now, that argument would support a rule that will never respect a waiver because it may have litigation about it later. We just won't allow waivers. I mean, you can't push that too far. There's got to be some situations in which a defendant can waive conflicts, and there's always a risk, you're absolutely right, there's always a risk in these situations in post-conviction proceedings they'll say I didn't know what I was doing just as you have in Faretta, but can that be an adequate reason for never accepting a waiver?
Michael K. Kellogg: I think it certainly... it could be. Rule 44(c) could be written to forbid all cases of multiple representation. It would serve significant interests of the criminal justice system in the finality of judgments and the independent interest in the fairness and integrity of the proceedings. Now, it's written, it doesn't go that far. It takes a lesser position to the effect that the trial judge must have some discretion to override waivers in certain circumstances. We're not suggesting a standard in which all cases of multiple representation would lead to disqualification, but only when there's a substantial likelihood of a serious conflict.
Anthony M. Kennedy: What was that substantial likelihood here?
Michael K. Kellogg: Substantial likelihood was created by, first, as I mentioned, disparate positions of the defendants in a criminal conspiracy. Gomez-Barajas was the lead defendant. Petitioner was a lesser defendant. Whenever you have a lead defendant and the lesser defendant represented by the same attorney in a criminal proceeding, there's always a danger that the lead defendant will exercise too much influence upon the decisions of the lesser defendant. This particularly is true in narcotics cases--
Byron R. White: You mean the lawyer representing the lesser defendant?
Michael K. Kellogg: --That's correct. Well, decisions... that's correct. Decisions that the lawyer will take on behalf of that defendant.
Anthony M. Kennedy: Well, in almost every criminal trial, there is one dominant and one secondary character, and, so, you would almost say that there is an absolute rule that the judge is never required to accept a waiver when there are two defendants, one of whom is dominant.
Michael K. Kellogg: If there is reason to think that there is a hierarchial relationship between them, I would say that the potential for conflict is sufficient that the District Court would have discretion under those circumstances to disqualify the joint representation. I'd like to explain to you in a little more detail the nature of the concerns here. Even if the District Court goes to great lengths to get a knowing and intelligent waiver, it is still going to be subject to collateral attack on various grounds. The defendant can easily claim that he did not foresee the actual conflicts that would develop or that he was coerced by his co-defendant or that he was misled by incompetent counsel, and there's a strong interest in the finality of the judgments in preventing such collateral attack and such uncertainty. There is also, as Justice O'Connor pointed out, an independent interest in the fairness and the integrity of the proceedings. Even if the defendant is fully aware of the dangers of multiple representation, he might accept it because at the behest of a more powerful defendant, co-defendant, or in order to help a more culpable friend or family member. Now, the--
Anthony M. Kennedy: Well, Mr. Cleary takes the position, the rather clear position that waiver is always permitted, and that, at first blush, sounds like a hard rule. But it seems to me that your position is that the judge can always decline the request for joint counsel. I can't imagine an instance in, say, a narcotic trial, conspiracy, where the waivers would be allowed. So, it seems to me that your position is equally clear and hard-lined on the other side.
Michael K. Kellogg: --I think not. If the evidence in a particular case is roughly equal against two defendants, if there doesn't seem to be any coercive relationship between them, then there would be no reason that the District Court could not allow joint representation in that case, even though it's certainly possible that conflicts would arise.
William H. Rehnquist: Mr. Kellogg, perhaps I misunderstood your position. I thought it was that the... where there's a conflict, the District Court would not be reversed for abusing discretion if he said no, but that he in exercise of his discretion could allow it.
Michael K. Kellogg: He could allow it. He could allow the representation. That's correct. But in the exercise of his discretion, if he does disallow the representation, it can rarely be reversed because there... the possibility for potentials of conflict are rife in any joint representation.
Antonin Scalia: Well, I'm sort of hung up on Justice Stevens' point. If I agree with that, still and all, in this case, there was not even in the particular trial here a request for joint representation alone, but with another attorney. Could you spell out to me what were the conflict problems with the other defendants? How could his representation of the other two alone be prejudiced by his taking on joint representation of Wheat?
Michael K. Kellogg: Well, first, with respect to Bravo, who is going to be the witness at trial against Wheat, Iredale would have received confidential information in the course of representing Bravo. When Bravo took the witness stand, that confidential information might have been available as a good source of impeachment of Bravo. Helpful to the Petitioner. So, he has a choice. He either helps the Petitioner by burying his former client or actually his current client because the client hasn't been sentenced yet in front of the very judge who's going to sentence him, or else he holds off and doesn't cross examine vigorously and thereby hurts the defendant that he's currently representing. There's also the difficulty--
John Paul Stevens: Yes, but before you leave that witness, in fact, they didn't even cross examine him, did they?
Michael K. Kellogg: --No, they did not. In fact,--
John Paul Stevens: So, this is totally conjectural.
Michael K. Kellogg: --I don't think it's conjectural because the decision has to be made in advance of trial. It is clear that--
John Paul Stevens: But that's my point. If you've got both lawyers there, why couldn't you see what he said? Then, let the judge say, no, no, he's been talking about things that you probably have confidential knowledge of that I don't think you should cross examine as the lawyer. Why couldn't the judge wait until he saw what the witness had to say, and he would have found out there was no reason in the world to deny this man the lawyer he wants?
Michael K. Kellogg: --Well, he--
John Paul Stevens: Based on that particular argument.
Michael K. Kellogg: --The judge knew what the witness was going to say because the judge had taken his guilty plea.
John Paul Stevens: Then, why not... then, there was no need for cross... well, I'm sorry, I shouldn't--
Michael K. Kellogg: Bravo did provide evidence adverse to Petitioner. He testified as to two overt acts in the indictment and he corroborated the testimony of the main witness against Petitioner.
John Paul Stevens: --And the Petitioner didn't dispute those two overt acts? Those are the deliveries to the intermediary, were they not?
Michael K. Kellogg: That's correct. Now, I was going to say there's also the problem of the appearance of impropriety in representing both the witness and the defendant in the sense that the testimony of one can be curtailed to benefit the other in exchange for the cross examination being curtailed to represent the witness. Now, for example, Bravo pleaded guilty to criminal conspiracy and acknowledged that he had participated in one single overt act, one delivery of marijuana. He said that was the extent of my involvement. Now, if his involvement is, in fact, greater than that, he's involved in more than one delivery and perhaps a delivery with Petitioner, then what could be more convenient than having the same counsel representing both, not cross examining Bravo about other acts, and thereby not bringing out any connection with the Petitioner. Now, I recognize that there's not--
John Paul Stevens: And who would that hurt except the Government?
Michael K. Kellogg: --Pardon?
John Paul Stevens: That would hurt the Government, not bringing that out, but how would that hurt either of the defendants?
Michael K. Kellogg: Well, I think there's an independent interest here in the fairness and integrity of the criminal justice system which would not be served by allowing such an appearance of impropriety. There's really two separate interests here. The interest in the finality of judgments and the interests in the fairness and integrity of the particular proceedings. Now, Petitioner--
Antonin Scalia: What about the other witness? What about the other one that he was representing?
Michael K. Kellogg: --Well, Gomez-Barajas, as I noted, was the lead defendant in the case. He has an interest certainly in not being called as a witness against Petitioner or otherwise being embarrassed by Petitioner's defense, which could be served by having his attorney representing Petitioner.
Antonin Scalia: What is the status of his case at this point?
Michael K. Kellogg: He had been acquitted on the main marijuana conspiracy and several substantive counts. He still had other narcotics counts and tax charges to which he had entered a guilty plea, and he was awaiting sentence. There had been a negotiated plea agreement and the District Court had indicated that he would be able to withdraw his plea if the judge did not accept the sentencing recommendation that had been made, but there had been a sentencing recommendation made in his case.
Byron R. White: I think your substantial likelihood test might be satisfied in the case in the sense that there would be a substantial likelihood of the conflict, but the trial judge could, nevertheless, take the waiver.
Michael K. Kellogg: Well, certainly if the court--
Byron R. White: I know you submit the trial judge would have discretion not to take the waiver in that circumstance. May he take the waiver?
Michael K. Kellogg: --If there is a substantial likelihood of a serious conflict of interest, the trial judge still has a possibility of being able to cure that short of a waiver. For example, through a severance or some other action.
Byron R. White: Well, there wasn't going to be any question of a severance in this case?
Michael K. Kellogg: No.
Byron R. White: These were going to be trials on end, I guess, end to end. The possibility that he could take the waiver.
Michael K. Kellogg: Yes.
Byron R. White: And--
Michael K. Kellogg: Assuming he can do something to protect against conflict.
Byron R. White: --And is it also your position that where there are joint trials, two people at the same trial or two people who have been charged in the same charge but going to be tried one after another, are you saying that there are circumstances involving those facts that would not present a substantial likelihood of conflict?
Michael K. Kellogg: Yes. There could be circumstances in which a substantial likelihood of a conflict was not presented. That's correct.
Antonin Scalia: This is not it.
Michael K. Kellogg: But this is not it. However, I would stress that our principal interest in the standard fashion by the court in this case, rather than the particular facts of this case, the facts could be strong. But the important point that we want to stress is that the two positions adopted by Petitioner in his brief, the absolute position that waiver cures everything, is unacceptable and contrary to the views of the established disciplinary standards in every Court of Appeals. The other standard that Petitioner puts forward in his brief is to try to say that only when there is an actual conflict of interest can disqualification be permitted, and we would submit that that standard makes no sense in this context because the decision has to be made prior to trial. As the advisory committee notes, you can't anticipate all the problems that are likely to develop in the course of a trial, and if you wait for them to develop, then it's too late. you have invited a mistrial in the case. The important standard that we would suggest is that the judge, trial judge finds a substantial likelihood of a serious conflict of interest and he does have discretion to disqualify counsel. The final point that I would like to make is that even if Petitioner could somehow show that the District Court abused its discretion in this case because there wasn't a serious likelihood of conflict of interest, he still has failed to show any way in which he has been prejudiced by that decision. There's been no challenge here to the sufficiency of the evidence or the fairness of the trial that he actually received or the competence of his counsel. Now, the right to the assistance of counsel, this Court has repeatedly stressed, is recognized not for its own sake, but for the ability of the accused to get a fair trial.
Harry A. Blackmun: And tell me again why must prejudice be shown.
Michael K. Kellogg: Pardon?
Harry A. Blackmun: Tell me again why must prejudice be shown.
Michael K. Kellogg: It must be shown because of this Court's statements in Strickland and Cronic as... that the purpose of the Sixth Amendment is served as long as Petitioner received a fair trial at which he received the assistance of competent counsel so as not to cast any doubt on the reliability of the verdict. If Petitioner is completely denied counsel, then the Court has held that the rule of automatic reversal is appropriate, but in a case where Petitioner receives the assistance of counsel and there's no question that there's a reliability of verdict, there's no reason to set that verdict aside.
Harry A. Blackmun: How would one ever prove prejudice, really?
Michael K. Kellogg: One would prove it by showing that the trial one actually had was unfair within the meaning of Strickland because the performance of one's counsel fell measurably below the standards of the profession and undermines the reliability of the verdict.
Anthony M. Kennedy: Well, then, you get a new trial anyway.
Michael K. Kellogg: That's correct.
John Paul Stevens: That really means there's no remedy whatsoever for violating the right that's asserted here, if there is such a right, because if you require that standard, you... the judge... what the trial judge should always do is disqualify counsel, and he... as long as he's got somebody out there who crosses the threshold of minimum effectiveness, he cannot commit reversible error.
Michael K. Kellogg: That's true, but there's no reason to think that the trial judge would not conscientiously--
John Paul Stevens: There's a lot of trial judges I know who don't like to be reversed.
Michael K. Kellogg: --But in this respect, the right to counsel of choice would not be really any different from, for example, a District Court's decision on the severance motion or a discovery motion, which is reviewable only in the context of general review of a fair trial. Unless the Court has any further questions.
William H. Rehnquist: Thank you, Mr. Kellogg. Mr. Cleary, you have seven minutes remaining.
John J. Cleary: Thank you, Your Honor. First, I would start off with in Bravo's case, the attorney or substitute attorney agreed not to impeach Mr. Bravo and to indicate the, I think, lucidity and accuracy of the testimony of that witness on behalf of the Government. He got the benefit of the bargain. He was promised an FYCA probation, thirty days halfway house. He testified, all right, the Government would recommend thirty days, go away, the Government so recommended. So, we have Government satisfaction with his testimony. As to Gomez-Barajas being the source, that is wrong. The facts of this case indicate there were several enumerated sources of marijuana, not Gomez-Barajas, and the reason he wasn't was there was a prior acquittal and Vidal was still shaking in his boots about the examination that he might have. The question that Justice Stevens raised is absolutely true, that there was almost on the knees begging that this super-star defense lawyer be joined to the defense team. Please, let me have Mr. Iredale. Let us add him to the trial team. That's 1 RT 53-154. However, also, there was two points for two of the witnesses, Vidal and one of the other witnesses, and the defense lawyer again says, please, please, let me have Mr. Iredale cross examine these witnesses. That was denied. That was not available.
Antonin Scalia: I don't see what his agreement not to... he promises that he won't cross examine which one was it?
John J. Cleary: Bravo, Your Honor.
Antonin Scalia: Bravo. That doesn't prove anything except that perhaps he was being induced by one of his conflicts not to do something that maybe he should have done.
John J. Cleary: Well, I think--
Antonin Scalia: I mean,--
John J. Cleary: --I understand the Court's position and that we're getting into certain imponderables, except that in this case, he had the advantage of two separate defense counsels. Not only for Mr. Wheat but also the co-defendant and neither one examined Bravo.
Antonin Scalia: --Another thing. When he said, could I be added to the defense team, what does that mean? Was it clear that he would be in a subordinate position to someone else who would make the final call? If he was on the defense team and still had the decisions on those matters that were matters raising his conflict, it wouldn't do anything of any assistance to simply put him in with somebody else.
John J. Cleary: I think the only one would be as to Bravo, and I think it could be easily sanitized as an alternative other than total disqualification to say that he cannot examine Bravo, and in the context of this case, I think that would have been reasonable. The two other issues that I find every interesting is the Washington case, the former federal prosecutor, came out of the Ninth Circuit, and in that case, the trial judge did almost like here. This man is a former prosecutor. He may have had confidential information. Appearance of evil, whap, he's off the case. The Ninth Circuit reversed, remanded, and in that case, the former federal prosecutor, we had different clients. The client, the former client is objecting, and the court held in that case, this appearance alone won't cut it because you have to honor the right to choice, and remanded it to determine if there was confidential information. The same procedure that could have been done here. Diozzio is, I think, a very close case, where the Government has negotiated with two tax lawyers. They were willing to stipulate and at the time of trial, the Government says we're going to call the two tax lawyers as witnesses. So, they knock them off of the case, and they offered a stipulation as to what they would be, witnesses in the case. They could not question the witness, but be an actual witness. And the First Circuit reversed because of the tactical manipulation involved, and I think that there has to be some credence given to the right to choice. The last thing I would say is that we have in our society at least the concept of an ordered liberty, a fundamental right of choice, the right to go with the one you want. That kind of oozed out of Faretta and I think that rises up in this particular case. But what's very, very important is the fact that we can't review the imponderables. What would Iredale have done in negotiations? They were close negotiations in this case. Could he have finalized that? What would Iredale have done on Vidal? How can I prove those things? It's impossible for me and should I suffer the detriment? I think that this case is analogous to Faretta, and I think that it has to be a showing that this Court will enforce in a limited context, in the context of these facts, which is a potential speculative conflict where all parties waived, that there must be a Sixth Amendment right to counsel of choice. Thank you.
William H. Rehnquist: Thank you, Mr. Cleary. The case is submitted.
Speaker: The honorable court is now adjourned until Monday next at ten o'clock.