Warren Burger

“ Whenever two or more defendants who have been jointly charged, or whose cases have been consolidated, are represented by the same attorney, the trial judge should inquire into potential conflicts which may jeopardize the right of each defendant to the fidelity of his counsel. ”

“ Welch responded that he did not "have any kind of speech ready for the jury or anything. I thought I was going to be questioned." When Welch denied, from the witness stand, that he was at the restaurant the night of the robbery, Holloway interrupted, asking:
"Your Honor, are we allowed to make an objection?"
"THE COURT: No, sir. Your counsel will take care of any objections."
"MR. HALL: Your Honor, that is what I am trying to say. I can't cross-examine them."
"THE COURT: You proceed like I tell you to, Mr. Hall. You have no right to cross-examine your own witnesses anyhow." ”

“ We read the Court's opinion in Glasser, however, as holding that, whenever a trial court improperly requires joint representation over timely objection, reversal is automatic. The Glasser Court stated:
"To determine the precise degree of prejudice sustained by Glasser as a result of the [district] court's appointment of Stewart as counsel for Kretske is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial. ”

“ Generally speaking, a conflict may also prevent an attorney from challenging the admission of evidence prejudicial to one client but perhaps favorable to another, or from arguing at the sentencing hearing the relative involvement and culpability of his clients in order to minimize the culpability of one by emphasizing that of another. ”

“ Requiring or permitting a single attorney to represent codefendants, often referred to as joint representation, is not per se violative of constitutional guarantees of effective assistance of counsel. This principle recognizes that, in some cases, multiple defendants can appropriately be represented by one attorney; indeed, in some cases, certain advantages might accrue from joint representation. In Mr. Justice Frankfurter's view: "Joint representation is a means of insuring against reciprocal recrimination. A common defense often [p483] gives strength against a common attack." Glasser v. ”

“ THE COURT: (Interposing) You can just put them on the stand and tell the Court that you have advised them of their rights and they want to testify; then you tell the man to go ahead and relate what he wants to. ”

“ When an untimely motion for separate counsel is made for dilatory purposes, our holding does not impair the trial court's ability to [p487] deal with counsel who resort to such tactics. Cf. United States v. Dardi, 330 F.2d 316 (CA2) , cert. denied, 379 U.S. 845 (1964) ; People v. Kroeger, 61 Cal. 2d 236, 390 P.2d 369 (1964) . Nor does our holding preclude a trial court from exploring the adequacy of the basis of defense counsel's representations regarding a conflict of interests without improperly requiring disclosure of the confidential communications of the client. ”

“ Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. ”

“ And to assess the impact of a conflict of interests on the attorney's options, tactics, and decisions in plea negotiations would be virtually impossible. Thus, an inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation. ”

“ III The issue remains whether the error committed at petitioners' trial requires reversal of their convictions. It has generally been assumed that Glasser requires reversal, even in the absence of a showing of specific prejudice to the complaining codefendant, whenever a trial court improperly permits or requires joint representation. ”

“ For example, in this case, it may well have precluded defense counsel for Campbell from exploring possible plea negotiations and the possibility of an agreement to testify for the prosecution, provided a lesser charge or a favorable sentencing recommendation would be acceptable. ”