435 U.S. 475 (1978), 76-5856, Holloway v. Arkansas

Docket Nº:No. 76-5856
Citation:435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426
Party Name:Holloway v. Arkansas
Case Date:April 03, 1978
Court:United States Supreme Court

Page 475

435 U.S. 475 (1978)

98 S.Ct. 1173, 55 L.Ed.2d 426




No. 76-5856

United States Supreme Court

April 3, 1978

Argued November 2, 1977



Petitioners, three codefendants at a state criminal trial in Arkansas, made timely motions, both a few weeks before the trial and before the jury was empaneled, for appointment of separate counsel, based on their appointed counsel's representations that, because of confidential information received from the codefendants, he was confronted with the risk of representing conflicting interests and could not, therefore, provide effective assistance for each client. The trial court denied these motions, and petitioners were subsequently convicted. The Arkansas Supreme Court affirmed, concluding that the record showed no actual conflict of interests or prejudice to petitioners.


1. The trial judge's failure either to appoint separate counsel or to take adequate steps to ascertain whether the risk of a conflict of interests was too remote to warrant separate counsel, in the face of the representations made by counsel before trial and again before the jury was empaneled, deprived petitioners of the guarantee of "assistance of counsel" under the Sixth Amendment. Pp. 481-487.

(a) The trial court has a duty to refrain from embarrassing counsel for multiple defendants by insisting or even suggesting that counsel undertake to concurrently represent interests that might conflict, when the possibility of inconsistent interests is brought home to the court by formal objections, motions, and counsel's representations. Glasser v. United States, 315 U.S. 60, 76. Pp. 484-485.

(b) An attorney's request for the appointment of separate counsel, based on his representations regarding a conflict of interests, should be granted, considering that he is in the best position professionally and ethically to determine when such a conflict exists or will probably develop at trial; that he has the obligation, upon discovering such a conflict, to advise the court at once; and, that as an officer of the court, he so advises the court virtually under oath. Pp. 485-486.

(c) Here no prospect of dilatory practices by the attorney was present to justify the trial court's failure to take adequate steps in response to the repeated motions for appointment of separate counsel. Pp. 486-487.

2. Whenever a trial court improperly requires joint representation over timely objection, reversal is automatic, and prejudice is presumed regardless

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of whether it was independently shown. Glasser v. United States, supra at 75-76. Pp. 48791.

(a) The assistance of counsel is among those "constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error," Chapman v. California, 386 U.S. 18, 23. P. 489.

(b) That an attorney representing multiple defendants with conflicting interests is physically present at pretrial proceedings, during trial, and at sentencing does not warrant departure from the general rule requiring automatic reversal. Pp. 489-490.

(c) A rule requiring a defendant to show that a conflict of interests -- which he and his counsel tried to avoid by timely objections to the joint representation -- prejudiced him in some specific fashion would not be susceptible of intelligent, evenhanded application. Pp. 490-491.

260 Ark. 250, 539 S.W.2d 435, reversed and remanded.

BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed a dissenting opinion, in which BLACKMUN and REHNQUIST, JJ., joined, post, p. 491.

BURGER, J., lead opinion

MR CHIEF JUSTICE BURGER delivered the opinion of the Court.

Petitioners, codefendants at trial, made timely motions for appointment of separate counsel, based on the representations of their appointed counsel that, because of confidential information received from the codefendants, he was confronted with the risk of representing conflicting interests and could

Page 477

not, therefore, provide effective assistance for each client. We granted certiorari to decide whether petitioners were deprived of the effective assistance of counsel by the denial of those motions. 430 U.S. 965 (1977).


Early in the morning of June 1, 1975, three men entered a Little Rock, Ark., restaurant and robbed and terrorized the five employees of the restaurant. During the course of the robbery, one of the two female employees was raped once; the other, twice. The ensuing police investigation led to the arrests of the petitioners.

On July 29, 1975, the three defendants were each charged with one count of robbery and two counts of rape. On August 5, the trial court appointed Harold Hall, a public defender, to represent all three defendants. Petitioners were then arraigned and pleaded not guilty. Two days later, their cases were set for a consolidated trial to commence September 4.

On August 13, Hall moved the court to appoint separate counsel for each petitioner because "the defendants ha[d] stated to him that there is a possibility of a conflict of interest in each of their cases. . . ." After conducting a hearing on this motion, and on petitioners' motions for a severance, the court declined to appoint separate counsel.1

Before trial, the same judge who later presided at petitioners' trial conducted a Jackson v. Denno hearing2 to determine the admissibility of a confession purportedly made by petitioner Campbell to two police officers at the time of his arrest. The essence of the confession was that Campbell had entered the restaurant with his codefendants and had remained, armed with a rifle, one flight of stairs above the site

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of the robbery and rapes (apparently serving as a lookout), but had not taken part in the rapes. The trial judge ruled the confession admissible, but ordered deletion of the references to Campbell's codefendants. At trial, one of the arresting officers testified to Campbell's confession.

On September 4, before the jury was empaneled, Hall renewed the motion for appointment of separate counsel

on the grounds that one or two of the defendants may testify and, if they do, then I will not be able to cross-examine them, because I have received confidential information from them.

The court responded, "I don't know why you wouldn't," and again denied the motion.3

The prosecution then proceeded to present its case. The manager of the restaurant identified petitioners Holloway and [98 S.Ct. 1176] Campbell as two of the robbers. Another male employee identified Holloway and petitioner Welch. A third identified only Holloway. The victim of the single rape identified Holloway and Welch as two of the robbers, but was unable to identify the man who raped her. The victim of the double rape identified Holloway as the first rapist. She was unable to identify the second rapist, but identified Campbell as one of the robbers.

On the second day of trial, after the prosecution had rested its case, Hall advised the court that, against his recommendation, all three defendants had decided to testify. He then stated:

Now, since I have been appointed, I had previously filed a motion asking the Court to appoint a separate attorney for each defendant because of a possible conflict of interest. This conflict will probably be now coming up, since each one of them wants to testify.

Page 479

THE COURT: That's all right; let them testify. There is no conflict of interest. Every time I try more than one person in this court, each one blames it on the other one.

MR. HALL: I have talked to each one of these defendants, and I have talked to them individually, not collectively.

THE COURT: Now talk to them collectively.

The court then indicated satisfaction that each petitioner understood the nature and consequences of his right to testify on his own behalf, whereupon Hall observed:

I am in a position now where I am more or less muzzled as to any cross-examination.

THE COURT: You have no right to cross-examine your own witness.

MR. HALL: Or to examine them.

THE COURT: You have a right to examine them, but have no right to cross-examine them. The prosecuting attorney does that.

MR. HALL: If one [defendant] takes the stand, somebody needs to protect the other two's interest while that one is testifying, and I can't do that, since I have talked to each one individually.

THE COURT: Well, you have talked to them, I assume, individually and collectively, too. They all say they want to testify. I think it's perfectly alright [sic] for them to testify if they want to, or not. It's their business.

* * * *

Each defendant said he wants to testify, and there will be no cross-examination of these witnesses, just a direct examination by you.

MR. HALL: Your Honor, I can't even put them on direct examination, because if I ask them --

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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. That's all you need to do.4

Holloway took the stand on his own behalf, testifying that, during the time described as the time of the robbery, he was at his brother's home. His brother had previously given similar testimony. When Welch took the witness stand, the record shows Hall advised him, as he had Holloway, that

I cannot ask you any questions that might tend to incriminate any one of the three of you. . . . Now, the only thing I can say is tell these ladies and gentlemen of the jury what you know about this case. . . .

Welch responded that he did not "have...

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