Cite as: 535 U. S. 162 (2002)
Breyer, J., dissenting
Justice Breyer, with whom Justice Ginsburg joins, dissenting.
The Commonwealth of Virginia seeks to put the petitioner, Walter Mickens, Jr., to death after having appointed to represent him as his counsel a lawyer who, at the time of the murder, was representing the very person Mickens was accused of killing. I believe that, in a case such as this one, a categorical approach is warranted and automatic reversal is required. To put the matter in language this Court has previously used: By appointing this lawyer to represent Mick-ens, the Commonwealth created a "structural defect affecting the framework within which the trial [and sentencing] proceeds, rather than simply an error in the trial process itself." Arizona v. Fulminante, 499 U. S. 279, 310 (1991).
The parties spend a great deal of time disputing how this Court's precedents of Holloway v. Arkansas, 435 U. S. 475 (1978), Cuyler v. Sullivan, 446 U. S. 335 (1980), and Wood v. Georgia, 450 U. S. 261 (1981), resolve the case. Those precedents involve the significance of a trial judge's "failure to inquire" if that judge "knew or should have known" of a "potential" conflict. The majority and dissenting opinions dispute the meaning of these cases as well. Although I express no view at this time about how our precedents should treat most ineffective-assistance-of-counsel claims involving an alleged conflict of interest (or, for that matter, whether Holloway, Sullivan, and Wood provide a sensible or coherent framework for dealing with those cases at all), I am convinced that this case is not governed by those precedents, for the following reasons.
393. Yet Saunders did nothing to counter the mother's assertion in the post-trial victim-impact statement given to the trial judge that " 'all [she] lived for was that boy,' " id., at 421; see also App. 219-222. Saunders could not have failed to see that the mother's statement should be rebutted, and there is no apparent explanation for his failure to offer the rebuttal he knew, except that he had obtained the information as the victim's counsel and subject to an obligation of confidentiality.
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