NCJ Number
66141
Journal
St John's Law Review Volume: 54 Issue: 1 Dated: (FALL 1979) Pages: 55-77
Date Published
1979
Length
23 pages
Annotation
DRAWING ON COURT CASES, THIS ARTICLE ANALYZES AN IMPORTANT ASPECT OF THE LAW OF MULTIPLE REPRESENTATION, SPECIFICALLY, THE DEFENDANT'S RIGHT TO WAIVE ASSISTANCE OF INDEPENDENT COUNSEL.
Abstract
IN THE LANDMARK CASE OF GLASER V. UNITED STATES, THE SUPREME COURT HELD THAT REQUIRING AN ATTORNEY TO REPRESENT CODEFENDANTS WITH CONFLICTING INTERESTS, OVER THE OBJECTION OF THE ATTORNEY, DENIED ONE OF THE DEFENDANTS THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT. THE HOLDING WAS LIMITED TO INSTANCES WHERE THE DEFENDANT'S COUNSEL OBJECTED TO THE JOINT REPRESENTATION. IN HOLLOWAY V. ARKANSAS, THE COURT AGAIN ADDRESSED THE ISSUE AND RULED THAT REVERSAL OF A CONVICTION IS AUTOMATIC WHEN A TRIAL COURT IMPROPERLY REQUIRES JOINT REPRESENTATION DESPITE A TIMELY OBJECT BY THE DEFENDANT'S ATTORNEY. THE HOLLOWAY DECISION, HOWEVER, FAILED TO ADDRESS ITSELF TO THE UNRESOLVED QUESTION OF HOW STRONG A SHOWING OF CONFLICT MUST BE MADE, AND WHAT ROLE COUNSEL AND TRIAL JUDGE MUST ASSUME TO ENSURE THAT A DEFENDANT IS NOT DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL BY A CONFLICT OF INTEREST RESULTING FROM JOINT REPRESENTATION. THE ONLY APPROACH TO THE CONFLICT ISSUES WHICH SENSIBLY BALANCES BOTH THE DEFENDANT'S RIGHT TO COUNSEL OF HIS CHOICE AND THE RIGHT TO EFFECTIVE ASSISTANCE IS A JUDICIAL INQUIRY OF THE DEFENDANT WHICH APPRISES THE DEFENDANT OF THE RISKS OF CONFLICT AND PERMITS HIM TO MAKE A KNOWING AND VOLUNTARY CHOICE OF COUNSEL. AT ALL STAGES OF A CRIMINAL CASE, BOTH THE PROSECUTOR AND DEFENSE COUNSEL SHOULD BE SENSITIVE TO THE POSSIBILITY OF POTENTIAL CONFLICT. WHEN EITHER PARTY SUSPECTS CONFLICT, THE COURT SHOULD BE INFORMED OF THIS POSSIBILITY. SUCH A PROCESS WOULD HELP ALLEVIATE THE PROBLEMS OF JOINT REPRESENTATION. FOOTNOTES ARE PROVIDED. (MJW)