Cite as: 535 U. S. 162 (2002)
Breyer, J., dissenting
on the conflict than was obvious on the face of the matter, namely, that the lawyer who would represent Mickens today is the same lawyer who yesterday represented Mickens' alleged victim in a criminal case.
This kind of breakdown in the criminal justice system creates, at a minimum, the appearance that the proceeding will not " 'reliably serve its function as a vehicle for determination of guilt or innocence,' " and the resulting " 'criminal punishment' " will not " 'be regarded as fundamentally fair.' " Fulminante, supra, at 310. This appearance, together with the likelihood of prejudice in the typical case, is serious enough to warrant a categorical rule—a rule that does not require proof of prejudice in the individual case.
The Commonwealth complains that this argument "relies heavily on the immediate visceral impact of learning that a lawyer previously represented the victim of his current client." Brief for Respondent 34. And that is so. The "visceral impact," however, arises out of the obvious, unusual nature of the conflict. It arises from the fact that the Commonwealth seeks to execute a defendant, having provided that defendant with a lawyer who, only yesterday, represented the victim. In my view, to carry out a death sentence so obtained would invariably "diminis[h] faith" in the fairness and integrity of our criminal justice system. Young v. United States ex rel. Vuitton et Fils S. A., 481 U. S. 787, 811-812 (1987) (plurality opinion). Cf. United States v. Olano, 507 U. S. 725, 736 (1993) (need to correct errors that seriously affect the " 'fairness, integrity or public reputation of judicial proceedings' "). That is to say, it would diminish that public confidence in the criminal justice system upon which the successful functioning of that system continues to depend.
I therefore dissent.
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