206
Souter, J., dissenting
and needed most with the lawyer who keeps risk to himself, quite possibly out of self-interest. Under the majority's rule, however, it is precisely in the latter situation that the judge's incentive to take care is at its ebb. With no objection on record, a convicted defendant can get no relief without showing adverse effect, minimizing the possibility of a later reversal and the consequent inducement to judicial care.11 This makes no sense.
The Court's rule makes no sense unless, that is, the real point of this case is to eliminate the judge's constitutional duty entirely in no-objection cases, for that is certainly the practical consequence of today's holding. The defendant has the same burden to prove adverse effect (and the prospect of reversal is the same) whether the judge has no reason to know of any risk or every reason to know about it short of
11 Lest anyone be wary that a rule requiring reversal for failure to enquire when on notice would be too onerous a check on trial judges, a survey of Courts of Appeals already applying the Holloway rule in no-objection cases shows a commendable measure of restraint and respect for the circumstances of fellow judges in state and federal trial courts, finding the duty to enquire violated only in truly outrageous cases. See, e. g., Campbell v. Rice, 265 F. 3d 878, 887-888 (CA9 2001) (reversing conviction under Holloway when trial judge failed to enquire after the prosecutor indicated defense counsel had just been arraigned by the prosecutor's office on felony drug charges); United States v. Rogers, 209 F. 3d 139, 145- 146 (CA2 2000) (reversing conviction when District Court failed to enquire on notice that counsel for defendant alleging police misconduct was a police commissioner); United States v. Allen, 831 F. 2d 1487, 1495-1496 (CA9 1987) (finding Magistrate Judge had reasonably enquired into joint representation of 17 codefendants who entered a group guilty plea, but reversing because the District Court failed to enquire when defense counsel later gave the court a list "rank[ing] the defendants by their relative culpability"). Under the majority's rule, the defendants in each of these cases should have proved that there was an actual conflict of interests that adversely affected their representation. Particularly galling in light of the first two cases is the majority's surprising and unnecessary intimation that this Court's conflicts jurisprudence should not be available or is somehow less important to those who allege conflicts in contexts other than multiple representation. See ante, at 175.
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