196
Souter, J., dissenting
should be an order vacating the conviction and affording a new trial.
But in the majority's eyes, this conclusion takes insufficient account of Wood, whatever may have been the sensible scheme staked out by Holloway and Sullivan, with a defend-ant's burden turning on whether a court was apprised of a conflicts problem prospectively or retrospectively. The majority says that Wood holds that the distinction is between cases where counsel objected and all other cases, regardless of whether a trial court was put on notice prospectively in some way other than by an objection on the record. See ante, at 172-174. In Wood, according to the majority, the trial court had notice, there was no objection on the record, and the defendant was required to show actual conflict and adverse effect.
Wood is not easy to read, and I believe the majority mis-reads it. The first step toward seeing where the majority goes wrong is to recall that the Court in Wood said outright what I quoted before, that Sullivan "mandates a reversal when the trial court has failed to make an inquiry even though it 'knows or reasonably should know that a particular conflict exists.' " 450 U. S., at 272, n. 18. This statement of a trial judge's obligation, like the statement in Sullivan that it quoted, 446 U. S., at 347, said nothing about the need for an objection on the record. True, says the majority, but the statement was dictum to be disregarded as "inconsistent" with Wood's holding. Ante, at 168-169, n. 2. This is a polite way of saying that the Wood Court did not know what it was doing; that it stated the general rule of reversal for failure to enquire when on notice (as in Holloway), but then turned around and held that such a failure called for reversal only when the defendant demonstrated an actual conflict (as in Sullivan).
This is not what happened. Wood did not hold that in the absence of objection, the Sullivan rule governs even when a judge is prospectively on notice of a risk of conflicted counsel.
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