210
Breyer, J., dissenting
First, this is the kind of representational incompatibility that is egregious on its face. Mickens was represented by the murder victim's lawyer; that lawyer had represented the victim on a criminal matter; and that lawyer's representation of the victim had continued until one business day before the lawyer was appointed to represent the defendant.
Second, the conflict is exacerbated by the fact that it occurred in a capital murder case. In a capital case, the evidence submitted by both sides regarding the victim's character may easily tip the scale of the jury's choice between life or death. Yet even with extensive investigation in post-trial proceedings, it will often prove difficult, if not impossible, to determine whether the prior representation affected defense counsel's decisions regarding, for example: which avenues to take when investigating the victim's background; which witnesses to call; what type of impeachment to undertake; which arguments to make to the jury; what language to use to characterize the victim; and, as a general matter, what basic strategy to adopt at the sentencing stage. Given the subtle forms that prejudice might take, the consequent difficulty of proving actual prejudice, and the significant likelihood that it will nonetheless occur when the same lawyer represents both accused killer and victim, the cost of litigating the existence of actual prejudice in a particular case cannot be easily justified. Cf. United States v. Cronic, 466 U. S. 648, 657-658 (1984) (explaining the need for categorical approach in the event of "actual breakdown of the adversarial process").
Third, the Commonwealth itself created the conflict in the first place. Indeed, it was the same judge who dismissed the case against the victim who then appointed the victim's lawyer to represent Mickens one business day later. In light of the judge's active role in bringing about the incompatible representation, I am not sure why the concept of a judge's "duty to inquire" is thought to be central to this case. No "inquiry" by the trial judge could have shed more light
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