202
Souter, J., dissenting
ty's conclusion, see ante, at 168-169, n. 2, there was no tension at all between acknowledging the rule of reversal to be applied when a judge fails to enquire into a known risk of prospective conflict, Wood, 450 U. S., at 272, n. 18, while at the same time sending the Wood case itself back for a determination about actual, past conflict, id., at 273-274. Wood simply followed and confirmed the pre-existing scheme established by Holloway and Sullivan. When a risk of conflict appears before a proceeding has been held or completed and a judge fails to make a prospective enquiry, the remedy is to vacate any subsequent judgment against the defendant. See Holloway, 435 U. S., at 491. When the possibility of conflict does not appear until a proceeding is over and any enquiry must be retrospective, a defendant must show actual conflict with adverse effect. See Sullivan, supra, at 349.
Wood, then, does not affect the conclusion that would be reached here on the basis of Holloway and Sullivan. This case comes to us with the finding that the judge who appointed Saunders knew or should have known of the risk that he would be conflicted owing to his prior appointment to represent the victim of the crime, 74 F. Supp. 2d, at 613- 615; see n. 1, supra. We should, therefore, follow the law settled until today, in vacating the conviction and affording Mickens a new trial.
II
Since the majority will not leave the law as it is, however, the question is whether there is any merit in the rule it now adopts, of treating breaches of a judge's duty to enquire into prospective conflicts differently depending on whether defense counsel explicitly objected. There is not. The distinction is irrational on its face, it creates a scheme of incentives to judicial vigilance that is weakest in those cases presenting the greatest risk of conflict and unfair trial, and it reduces the so-called judicial duty to enquire into so many empty words.
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