Cite as: 535 U. S. 162 (2002)
Souter, J., dissenting
are acceptable unless it can be proved that they actually affected counsel's performance is demeaning to the profession.
Finally, "justice must satisfy the appearance of justice." Offutt v. United States, 348 U. S. 11, 14 (1954). Setting aside Mickens' conviction is the only remedy that can maintain public confidence in the fairness of the procedures employed in capital cases. Death is a different kind of punishment from any other that may be imposed in this country. "From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." Gardner v. Florida, 430 U. S. 349, 357- 358 (1977). A rule that allows the State to foist a murder victim's lawyer onto his accused is not only capricious; it poisons the integrity of our adversary system of justice.
I respectfully dissent.
Justice Souter, dissenting.
A judge who knows or should know that counsel for a criminal defendant facing, or engaged in, trial has a potential conflict of interests is obliged to enquire into the potential conflict and assess its threat to the fairness of the proceeding. See Wheat v. United States, 486 U. S. 153, 160 (1988); Wood v. Georgia, 450 U. S. 261, 272 (1981); Cuyler v. Sullivan, 446 U. S. 335, 347 (1980). Cf. Holloway v. Arkansas, 435 U. S. 475, 484 (1978). Unless the judge finds that the risk of inadequate representation is too remote for further concern, or finds that the defendant has intelligently assumed the risk and waived any potential Sixth or Fourteenth Amendment claim of inadequate counsel, the court must see that the lawyer is replaced. See ibid.; Glasser v. United States, 315 U. S. 60, 70 (1942). Cf. Wheat, supra, at 162; Ad-
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