192
Souter, J., dissenting
cided to testify; again the court refused to appoint separate lawyers. Id., at 478-480. The defendants gave inconsistent testimony and were convicted on all counts. Id., at 481.
This Court held that the motions apprised the trial judge of a "risk" that continuing the joint representation would subject defense counsel in the pending trial to the impossible obligations of simultaneously furthering the conflicting interests of the several defendants, id., at 484, and we reversed the convictions on the basis of the judge's failure to respond to the prospective conflict, without any further showing of harm, id., at 491. In particular, we rejected the argument that a defendant tried subject to such a disclosed risk should have to show actual prejudice caused by subsequent conflict. Id., at 488. We pointed out that conflicts created by multiple representation characteristically deterred a lawyer from taking some step that he would have taken if unconflicted, and we explained that the consequent absence of footprints would often render proof of prejudice virtually impossible. Id., at 489-491.
Next came Sullivan, involving multiple representation by two retained lawyers of three defendants jointly indicted but separately tried, 446 U. S., at 337. Sullivan, the defendant at the first trial, had consented to joint representation by the same lawyers retained by the two other accused, because he could not afford counsel of his own. Ibid. Sullivan was convicted of murder; the other two were acquitted in their subsequent trials. Id., at 338. Counsel made no objection to the multiple representation before or during trial, ibid.; nor did the convicted defendant argue that the trial judge otherwise knew or should have known of the risk described in Holloway, that counsel's representation might be impaired by conflicting obligations to the defendants to be tried later, 446 U. S., at 343.
This Court held that multiple representation did not raise enough risk of impaired representation in a coming trial to
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