Facilitating fairness: the judge's role in the Sixth Amendment right to effective counsel.

• Author: Capone, John
• Position: Case Note

Mickens v. Taylor, 535 U.S. 162 (2002)

1. INTRODUCTION

   Walter Mickens was convicted in a Virginia court of the premeditated murder of Timothy Hall associated with the commission of attempted forcible sodomy. (1) A jury sentenced him to death. (2) After his conviction, Mickens filed a federal habeas petition alleging that he was denied effective assistance of counsel because his defense counsel, who was courtappointed, had a conflict of interest at trial. (3) This defense attorney, Bryan Saunders, had recently represented Timothy Hall, the victim of the crime for which Mickens was being tried, on assault and concealed-weapons charges in juvenile court. (4) Furthermore, the same juvenile court judge who dismissed the charges against Hall after his death appointed Saunders to represent Mickens at his murder trial. (5) Saunders did not disclose his connection to the victim to the trial court, his co-counsel, or his client, Mickens. (6)

   The Supreme Court granted a stay of execution and granted certiorari as to the question of whether the judge's failure to inquire into a potential conflict of interest mandated an automatic reversal of Mickens' conviction. (7) The Court, in an opinion by Justice Scalia, held that, to demonstrate a Sixth Amendment violation, a defendant must establish that a conflict of interest adversely affected his counsel's performance, even when the trial court failed to inquire into a potential conflict of interest about which it knew or reasonably should have known. (8)

   This Note will argue that Mickens is not consistent with the logic and principle of the precedents regarding conflicts of interest and the right to effective assistance of counsel. First, it will critique the Court's formalistic interpretation of those precedents, focusing on its emphasis on the requirement of objection. (9) Second, it will analyze the Court's prior Sixth Amendment jurisprudence, focusing on the holding's inconsistency with the rationale and spirit of the Sixth Amendment. (10) Finally, it will argue that the rule established in Mickens will have negative implications for the justice system and the behavior of its participants.

2. BACKGROUND

   The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." (11) The Supreme Court has explained that this right is one of the most important prerequisites for the existence of a fair trial: "[o]f all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have." (12) Accordingly, the Court has stated that this right exists "not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial." (13) This protection does not only apply to federal criminal proceedings, but also to all state criminal proceedings. (14) Moreover, it applies both to defendants who retain their own lawyers and defendants for whom the State appoints counsel. (15) It is in this context that the Court has found that assistance of counsel which is ineffective in preserving fairness does not meet the mandate of the Sixth Amendment. (16)

   The main modern case that governs claims of ineffective assistance of counsel is Strickland v. Washington. (17) In Strickland, the Court held that, generally, a defendant who alleges a Sixth Amendment violation must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (18) Respondent in Strickland argued ineffective assistance of counsel at his sentencing, based on his defense counsel's failure to request psychiatric reports, to find and present character witnesses, and to seek a pre-sentence report. (19) The Supreme Court denied his petition, holding that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (20) This requires that the convicted defendant demonstrate first that counsel's performance was deficient. To demonstrate this, the defendant must show that counsel made errors so severe that he "was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." (21) The standard for judging performance is an objective standard of reasonableness, but the court's scrutiny must be deferential to the counsel's conduct. (22) Second, the deficient performance must have prejudiced the defense. (23) "This requires showing that counsel's errors were so serious as to deprive the defendant of ... a trial whose result is reliable." (24) There must be a reasonable probability that, aside from counsel's errors, "the result of the proceeding would have been different." (25) Under these guidelines, the Court round that respondent's counsel's conduct could not be found to be unreasonable, and that insufficient prejudice existed to warrant a reversal of respondent's conviction.

   The rule elucidated in Strickland is not without exception. In claiming a violation of the Sixth Amendment, the defendant in a criminal case does not need to demonstrate a probable effect upon the outcome of the trial where assistance of counsel has been denied in its entirety or in part during a critical stage of the proceeding. (26) When this occurs, the probability that the verdict is unreliable is so high that the effect is presumed, and a case-by-case inquiry is unnecessary. (27) Only in such circumstances, or in "circumstances of that magnitude," does the Court forgo inquiry concerning whether counsel's performance actually reduced the reliability of the verdict. (28)

   Although the Court has established this exception to the usual test of Strickland, it has not been categorical in its evaluation of what circumstances constitute a denial of assistance of counsel in entirety or in part during significant stages of the proceeding. It has, however, examined whether a circumstance of such magnitude can occur when defense counsel actively represents conflicting interests. (29)

   In Holloway v. Arkansas, the trial judge appointed one public defender to represent three criminal defendants who were being tried jointly. (30) Two rimes before trial, defense counsel moved for separate representation. (31) The second rime, defense counsel objected on the ground that "one or two of the defendants" were considering testifying at trial, in which event the lone attorney's ability to cross-examine would be inhibited. (32) The court held hearings on these motions and denied them. (33) After the prosecution rested, defense counsel objected to the joint representation a final time, and again the court refused to appoint separate lawyers. (34) The defendants gave inconsistent testimony and were convicted. (35) The Court acknowledged that a defense counsel "is in the best position to determine when a conflict" exists and that he has an ethical obligation to alert the court to any problems. (36) As a result, it determined that a defense counsel must be largely relied upon to make a timely objection regarding any conflicts that could possibly affect the outcome of the trial. (37) Moreover, the conflict of interest, "which [the defendant] and his counsel tried to avoid by timely objections to the joint representation," undermined the adversarial process of the judicial system. (38) This rationale is supported by the fact that counsel's conflicting obligations to multiple defendants affect his selection and presentation of essential information in representing his clients, thereby making it difficult to measure the exact harm arising from his errors. (39) Thus, the Court's ruling in Holloway creates an automatic reversal rule where defense counsel is forced to represent codefendants over his timely objection, unless the trial court has determined that there is no conflict after making a sufficient inquiry. (40)

   In Cuyler v. Sullivan, (41) the Court again faced the problem of concurrent multiple representation of codefendants. The respondent, Sullivan, was one of three defendants accused of murder. (42) Each defendant was tried separately, but they were all represented by the same counsel. (43) No one, including their counsel, objected to this multiple representation, and counsel's opening statement at Sullivan's trial suggested that the interests of all three defendants were aligned. (44) The Court did not extend Holloway's automatic reversal rule to this set of circumstances. (45) It held that, without a timely objection from his counsel, a defendant must demonstrate that "a conflict of interest actually affected the adequacy of his representation" in order to demonstrate a violation of the Sixth Amendment. (46) The Court found that, unlike the trial court in Holloway, the trial court in Sullivan was only aware of a vague, indefinite possibility of such a conflict that is inherent "in almost every instance of multiple representation." (47) Thus, absent an objection, the court found no "special circumstances" that triggered the trial court's duty to inquire. (48)

   Finally, in Wood v. Georgia, (49) the Court addressed the issue of conflicts of interest through an analysis of multiple representation as a peripheral issue. The case involved three indigent defendants "who were convicted of distributing obscene materials." (50) They had their probation revoked because they could not make the mandatory $500 monthly payments on their $5000 fines. (51) The Court initially granted certiorari to consider whether this violated the Equal Protection Clause. (52) However, during its consideration, it came to the Court's attention that the defendants had been represented by their employer's lawyer, and that their employer had paid the attorney's fees. (53) This employer had made a...