Thompkins v. Cohen
| Decision Date | 03 June 1992 |
| Docket Number | No. 90-1207,90-1207 |
| Citation | 965 F.2d 330 |
| Parties | Douglas E. THOMPKINS, Petitioner-Appellant, v. Edward L. COHEN, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Ginamarie A. Gaudio, Williams & Montgomery, Chicago, Ill., Thomas Broden (argued), University of Notre Dame, Notre Dame, Ind., and Roberta L. Ross, Ross, Burnner & Strahm, Indianapolis, Ind., for petitioner-appellant.
David A. Nowak (argued) and Kimberlie A. Forgey, Deputy Attys. Gen., Office of the Atty. Gen., Federal Litigation, Indianapolis, Ind., for respondent-appellee.
Before CUMMINGS and POSNER, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.
In 1977 a jury in an Indiana state court convicted Douglas Thompkins of first-degree murder. The judge sentenced him to life in prison. The supreme court of the state affirmed the conviction and sentence. Thompkins v. State, 270 Ind. 163, 383 N.E.2d 347 (1978). After exhausting his state remedies, Thompkins sought federal habeas corpus. He appeals from the district court's denial of his claim for relief.
Three masked men robbed a restaurant. During the course of the robbery one of them killed a customer. Another cut his hand in the escape. One turned state's evidence and testified that Thompkins had been one of the band. This testimony was corroborated by a friend of Thompkins', who testified that he had seen Thompkins after the robbery with his hand bandaged and carrying a gun, and by evidence that the blood found in the getaway car was of the same blood type as Thompkins', while the blood of the other robbers, and also of the murdered customer, was of a different type. Thompkins introduced alibi evidence.
He claims that he did not get a fair trial, and this for three principal reasons (the others have no possible merit, so they need not be discussed). The first is that his lawyer had a conflict of interest. He was under investigation for bribing police officers to reduce charges against his clients. The prosecutor's office--the same office that prosecuted Thompkins--had given the lawyer immunity in exchange for cooperation and had promised, if the lawyer fulfilled his part of the bargain, to help him retain his license to practice law. A situation of this sort (the criminal defendant's lawyer himself under criminal investigation), which unfortunately is all too common, see, e.g., United States v. Balzano, 916 F.2d 1273, 1292-93 (7th Cir.1990); United States v. Levine, 794 F.2d 1203 (7th Cir.1986), can create a conflict of interest. It may induce the lawyer to pull his punches in defending his client lest the prosecutor's office be angered by an acquittal and retaliate against the lawyer. Such retaliation would be unethical; but still the defense lawyer may fear it, at least to the extent of tempering the zeal of his defense of his client somewhat. Yet presumably the fear would have to be shown before a conflict of interest could be thought to exist. But let us pass that point by and assume that the situation in this case as we have outlined it created a conflict of interest. The existence of a conflict does not automatically entitle the defendant to habeas corpus on the ground that he was deprived of his constitutional right to the effective assistance of counsel. Unless the conflict was brought to the trial judge's attention, the defendant must point to specific instances in which the lawyer would have done something different in his conduct of the trial had there been no conflict of interest. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980); United States v. Cirrincione, 780 F.2d 620, 630-31 (7th Cir.1985). Thompkins hasn't pointed to anything, but there is a complication: the trial judge may have known about the lawyer's entanglements with the criminal justice system. If so, he was required to inquire into the matter further and determine, for example, whether the defendant wanted to be represented by this lawyer regardless. Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981); Cerro v. United States, 872 F.2d 780, 783 (7th Cir.1989).
When the lawyer was asked at Thompkins' state post-conviction hearing whether he had told Thompkins about his own legal troubles, the lawyer testified: (Emphasis added.) Thompkins' current counsel pounces on the statement we have italicized and argues that everybody includes the judge. That is conjecture. Not everybody watches the six o'clock news every night. Indianapolis is not a little village in which everybody has his nose deep in everybody else's affairs. It is true that in response to a specific question whether the judge at Thompkins' trial had known about the lawyer's legal troubles, the lawyer said, "Yeah, he knew it." But the issue was not pursued, leaving it unclear whether the lawyer was doing more than deducing that since "everybody in town was aware of it" the judge, as somebody in town, must have been aware of it. The conclusion of a syllogism is no stronger than its premises.
Neither the state courts nor the federal district court have ever made a finding on the question whether the trial judge knew about the lawyer's troubles. However, Thompkins does not complain about the absence of a finding or ask for a remand to the district court for further findings or evidence. He asks us to find on this record that the judge knew. We cannot do that; the record is too skimpy. Thompkins has failed to prove that the judge knew of the circumstances alleged to create a conflict of interest.
The second issue concerns the prosecutor's failure to give Thompkins the names of the three rebuttal witnesses before they testified. At first glance this seems a hopeless endeavor to establish a constitutional right to pretrial discovery in criminal ...
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