Cite as: 535 U. S. 162 (2002)
Souter, J., dissenting
supra, at 491; see also Wood, supra, at 272, n. 18. That should be the result here.
I
The Court today holds, instead, that Mickens should be denied this remedy because Saunders failed to employ a formal objection as a means of bringing home to the appointing judge the risk of conflict. Ante, at 173-174. Without an objection, the majority holds, Mickens should get no relief absent a showing that the risk turned into an actual conflict with adverse effect on the representation provided to Mick-ens at trial. Ibid. But why should an objection matter when even without an objection the state judge knew or should have known of the risk and was therefore obliged to enquire further? What would an objection have added to the obligation the state judge failed to honor? The majority says that in circumstances like those now before us, we have already held such an objection necessary for reversal, absent proof of actual conflict with adverse effect, so that this case calls simply for the application of precedent, albeit precedent not very clearly stated. Ante, at 171-172.
The majority's position is error, resting on a mistaken reading of our cases. Three are on point, Holloway v. Arkansas, supra; Cuyler v. Sullivan, supra; and Wood v. Georgia, supra.
In Holloway, a trial judge appointed one public defender to represent three criminal defendants tried jointly. 435 U. S., at 477. Three weeks before trial, counsel moved for separate representation; the court held a hearing and denied the motion. Ibid. The lawyer moved again for appointment of separate counsel before the jury was empaneled, on the ground that one or two of the defendants were considering testifying at trial, in which event the one lawyer's ability to cross-examine would be inhibited. Id., at 478. The court again denied his motion. Ibid. After the prosecution rested, counsel objected to the joint representation a third time, advising the court that all three defendants had de-
191
Page: Index Previous 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 NextLast modified: October 4, 2007