MICKENS v. TAYLOR, WARDEN

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Syllabus
MICKENS v. TAYLOR, WARDEN
certiorari to the united states court of appeals for
the fourth circuit
No. 00–9285. Argued November 5, 2001—Decided March 27, 2002
A Virginia jury convicted petitioner of the premeditated murder of Timo-
thy Hall during or following the commission of an attempted forcible
sodomy, and sentenced petitioner to death. Petitioner filed a federal
habeas petition alleging, inter alia, that he was denied effective assist-
ance of counsel because one of his court-appointed attorneys had a con-
flict of interest at trial. Petitioner’s lead attorney, Bryan Saunders, had
represented Hall on assault and concealed-weapons charges at the time
of the murder. The same juvenile court judge who dismissed the
charges against Hall later appointed Saunders to represent petitioner.
Saunders did not disclose to the court, his co-counsel, or petitioner that
he had previously represented Hall. The District Court denied habeas
relief, and an en banc majority of the Fourth Circuit affirmed. The
majority rejected petitioner’s argument that the juvenile court judge’s
failure to inquire into a potential conflict either mandated automatic
reversal of his conviction or relieved him of the burden of showing that
a conflict of interest adversely affected his representation. The court
concluded that petitioner had not demonstrated adverse effect.
Held: In order to demonstrate a Sixth Amendment violation where the
trial court fails to inquire into a potential conflict of interest about which
it knew or reasonably should have known, a defendant must establish
that a conflict of interest adversely affected his counsel’s performance.
Pp. 166–176.
(a) A defendant alleging ineffective assistance generally must demon-
strate a reasonable probability that, but for counsel’s unprofessional er-
rors, the result of the proceeding would have been different. Strick-
land v. Washington, 466 U. S. 668, 694. An exception to this general
rule presumes a probable effect upon the outcome where assistance of
counsel has been denied entirely or during a critical stage of the pro-
ceeding. The Court has held in several cases that “circumstances of
that magnitude,” United States v. Cronic, 466 U. S. 648, 659, n. 26, may
also arise when the defendant’s attorney actively represented conflicting
interests. In Holloway v. Arkansas, 435 U. S. 475, the Court created
an automatic reversal rule where counsel is forced to represent co-
defendants over his timely objection, unless the trial court has deter-
mined that there is no conflict. In Cuyler v. Sullivan, 446 U. S. 335,

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the Court declined to extend Holloway and held that, absent objection,
a defendant must demonstrate that a conflict of interest actually af-
fected the adequacy of his representation, 446 U. S., at 348–349. Fi-
nally, in Wood v. Georgia, 450 U. S. 261, the Court granted certiorari to
consider an equal-protection violation, but then remanded for the trial
court to determine whether a conflict of interest that the record
strongly suggested actually existed, id., at 273. Pp. 166–170.
(b) This Court rejects petitioner’s argument that the remand instruc-
tion in Wood, directing the trial court to grant a new hearing if it deter-
mined that “an actual conflict of interest existed,” 450 U. S., at 273, es-
tablished that where the trial judge neglects a duty to inquire into a
potential conflict the defendant, to obtain reversal, need only show that
his lawyer was subject to a conflict of interest, not that the conflict
adversely affected counsel’s performance. As used in the remand in-
struction, “an actual conflict of interest” meant precisely a conflict that
affected counsel’s performance—as opposed to a mere theoretical divi-
sion of loyalties. It was shorthand for Sullivan’s statement that
“a defendant who shows that a conflict of interest actually affected the
adequacy of his representation need not demonstrate prejudice in order
to obtain relief,” 446 U. S., at 349–350 (emphasis added). The notion
that Wood created a new rule sub silentio is implausible. Moreover,
petitioner’s proposed rule of automatic reversal makes little policy
sense. Thus, to void the conviction petitioner had to establish, at a
minimum, that the conflict of interest adversely affected his counsel’s
performance. The Fourth Circuit having found no such effect, the de-
nial of habeas relief must be affirmed. Pp. 170–174.
(c) The case was presented and argued on the assumption that (absent
some exception for failure to inquire) Sullivan would be applicable to a
conflict rooted in counsel’s obligations to former clients. The Court
does not rule upon the correctness of that assumption. Pp. 174–176.
240 F. 3d 348, affirmed.
Scalia, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Kennedy, and Thomas, JJ., joined. Kennedy, J.,
filed a concurring opinion, in which O’Connor, J., joined, post, p. 176.
Stevens, J., post, p. 179, and Souter, J., post, p. 189, filed dissenting
opinions. Breyer, J., filed a dissenting opinion, in which Ginsburg, J.,
joined, post, p. 209.
Robert J. Wagner, by appointment of the Court, 533 U. S.
927, argued the cause for petitioner. With him on the briefs
were Robert E. Lee and Mark E. Olive.

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Opinion of the Court
Robert Q. Harris, Assistant Attorney General of Virginia,
argued the cause for respondent. With him on the brief was
Randolph A. Beales, Attorney General.
Irving L. Gornstein argued the cause for the United
States as amicus curiae urging affirmance. On the brief
were Solicitor General Olson, Assistant Attorney General
Chertoff, Deputy Solicitor General Dreeben, Gregory G.
Garre, and Joel M. Gershowitz.*
Justice Scalia delivered the opinion of the Court.
The question presented in this case is what a defendant
must show in order to demonstrate a Sixth Amendment vio-
lation where the trial court fails to inquire into a potential
conflict of interest about which it knew or reasonably should
have known.
I
In 1993, a Virginia jury convicted petitioner Mickens of
the premeditated murder of Timothy Hall during or follow-
ing the commission of an attempted forcible sodomy. Find-
ing the murder outrageously and wantonly vile, it sentenced
petitioner to death. In June 1998, Mickens filed a petition
for writ of habeas corpus, see 28 U. S. C. § 2254 (1994 ed. and
Supp. V), in the United States District Court for the Eastern
District of Virginia, alleging, inter alia, that he was denied
effective assistance of counsel because one of his court-
appointed attorneys had a conflict of interest at trial. Fed-
eral habeas counsel had discovered that petitioner’s lead trial
attorney, Bryan Saunders, was representing Hall (the vic-
tim) on assault and concealed-weapons charges at the time
of the murder. Saunders had been appointed to represent
Hall, a juvenile, on March 20, 1992, and had met with him
once for 15 to 30 minutes some time the following week.
Hall’s body was discovered on March 30, 1992, and four days
*Kent S. Scheidegger filed a brief for the Criminal Justice Legal Founda-
tion as amicus curiae urging affirmance.
Lawrence J. Fox filed a brief for Legal Ethicists et al. as amici curiae.

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later a juvenile court judge dismissed the charges against
him, noting on the docket sheet that Hall was deceased.
The one-page docket sheet also listed Saunders as Hall’s
counsel. On April 6, 1992, the same judge appointed Saun-
ders to represent petitioner. Saunders did not disclose to
the court, his co-counsel, or petitioner that he had previously
represented Hall. Under Virginia law, juvenile case files are
confidential and may not generally be disclosed without a
court order, see Va. Code Ann. § 16.1–305 (1999), but peti-
tioner learned about Saunders’ prior representation when
a clerk mistakenly produced Hall’s file to federal habeas
counsel.
The District Court held an evidentiary hearing and denied
petitioner’s habeas petition. A divided panel of the Court
of Appeals for the Fourth Circuit reversed, 227 F. 3d 203
(2000), and the Court of Appeals granted rehearing en banc,
240 F. 3d 348 (2001). As an initial matter, the 7-to-3 en banc
majority determined that petitioner’s failure to raise his
conflict-of-interest claim in state court did not preclude re-
view, concluding that petitioner had established cause and
that the “inquiry as to prejudice for purposes of excusing
[petitioner’s] default . . . incorporates the test for evaluating
his underlying conflict of interest claim.” Id., at 356–357.
On the merits, the Court of Appeals assumed that the juve-
nile court judge had neglected a duty to inquire into a poten-
tial conflict, but rejected petitioner’s argument that this
failure either mandated automatic reversal of his conviction
or relieved him of the burden of showing that a conflict of
interest adversely affected his representation. Relying on
Cuyler v. Sullivan, 446 U. S. 335 (1980), the court held that
a defendant must show “both an actual conflict of interest
and an adverse effect even if the trial court failed to inquire
into a potential conflict about which it reasonably should
have known,” 240 F. 3d, at 355–356. Concluding that peti-
tioner had not demonstrated adverse effect, id., at 360, it
affirmed the District Court’s denial of habeas relief. We

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granted a stay of execution of petitioner’s sentence and
granted certiorari. 532 U. S. 970 (2001).
II
The Sixth Amendment provides that a criminal defendant
shall have the right to “the Assistance of Counsel for his
defence.” This right has been accorded, we have said, “not
for its own sake, but because of the effect it has on the ability
of the accused to receive a fair trial.” United States v.
Cronic, 466 U. S. 648, 658 (1984). It follows from this that
assistance which is ineffective in preserving fairness does
not meet the constitutional mandate, see Strickland v. Wash-
ington, 466 U. S. 668, 685–686 (1984); and it also follows that
defects in assistance that have no probable effect upon the
trial’s outcome do not establish a constitutional violation.
As a general matter, a defendant alleging a Sixth Amend-
ment violation must demonstrate “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id., at 694.
There is an exception to this general rule. We have
spared the defendant the need of showing probable effect
upon the outcome, and have simply presumed such effect,
where assistance of counsel has been denied entirely or dur-
ing a critical stage of the proceeding. When that has oc-
curred, the likelihood that the verdict is unreliable is so high
that a case-by-case inquiry is unnecessary. See Cronic,
supra, at 658–659; see also Geders v. United States, 425 U. S.
80, 91 (1976); Gideon v. Wainwright, 372 U. S. 335, 344–345
(1963). But only in “circumstances of that magnitude” do
we forgo individual inquiry into whether counsel’s inade-
quate performance undermined the reliability of the verdict.
Cronic, supra, at 659, n. 26.
We have held in several cases that “circumstances of that
magnitude” may also arise when the defendant’s attorney
actively represented conflicting interests. The nub of the
question before us is whether the principle established by
these cases provides an exception to the general rule of

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Strickland under the circumstances of the present case. To
answer that question, we must examine those cases in some
detail.1
In Holloway v. Arkansas, 435 U. S. 475 (1978), defense
counsel had objected that he could not adequately represent
the divergent interests of three codefendants. Id., at 478–
480. Without inquiry, the trial court had denied counsel’s
motions for the appointment of separate counsel and had
refused to allow counsel to cross-examine any of the defend-
ants on behalf of the other two. The Holloway Court de-
ferred to the judgment of counsel regarding the existence of
a disabling conflict, recognizing that a defense attorney is in
the best position to determine when a conflict exists, that he
has an ethical obligation to advise the court of any problem,
and that his declarations to the court are “virtually made
1 Justice Breyer rejects 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), as “a sensible [and] coherent framework for dealing with” this
case, post, at 209 (dissenting opinion), and proposes instead the “categori-
cal rule,” post, at 211, that when a “breakdown in the criminal justice
system creates . . . the appearance that the proceeding will not reliably
serve its function as a vehicle for determination of guilt and innocence,
and the resulting criminal punishment will not be regarded as fundamen-
tally fair,” ibid. (internal quotation marks omitted), reversal must be de-
creed without proof of prejudice. This seems to us less a categorical rule
of decision than a restatement of the issue to be decided. Holloway, Sul-
livan, and Wood establish the framework that they do precisely because
that framework is thought to identify the situations in which the convic-
tion will reasonably not be regarded as fundamentally fair. We believe it
eminently performs that function in the case at hand, and that Justice
Breyer is mistaken to think otherwise. But if he does think otherwise,
a proper regard for the judicial function—and especially for the function
of this Court, which must lay down rules that can be followed in the innu-
merable cases we are unable to review—would counsel that he propose
some other “sensible [and] coherent framework,” rather than merely say-
ing that prior representation of the victim, plus the capital nature of the
case, plus judicial appointment of the counsel, see post, at 210, strikes him
as producing a result that will not be regarded as fundamentally fair.
This is not a rule of law but expression of an ad hoc “fairness” judgment
(with which we disagree).

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under oath.” Id., at 485–486 (internal quotation marks
omitted). Holloway presumed, moreover, that the conflict,
“which [the defendant] and his counsel tried to avoid by
timely objections to the joint representation,” id., at 490, un-
dermined the adversarial process. The presumption was
justified because joint representation of conflicting interests
is inherently suspect, and because counsel’s conflicting obli-
gations to multiple defendants “effectively sea[l] his lips on
crucial matters” and make it difficult to measure the precise
harm arising from counsel’s errors. Id., at 489–490. Hol-
loway thus creates an automatic reversal rule only where
defense counsel is forced to represent codefendants over his
timely objection, unless the trial court has determined that
there is no conflict. Id., at 488 (“[W]henever a trial court
improperly requires joint representation over timely objec-
tion reversal is automatic”).
In Cuyler v. Sullivan, 446 U. S. 335 (1980), the respondent
was one of three defendants accused of murder who were
tried separately, represented by the same counsel. Neither
counsel nor anyone else objected to the multiple representa-
tion, and counsel’s opening argument at Sullivan’s trial sug-
gested that the interests of the defendants were aligned.
Id., at 347–348. We declined to extend Holloway’s auto-
matic reversal rule to this situation and held that, absent
objection, a defendant must demonstrate that “a conflict of
interest actually affected the adequacy of his representa-
tion.” 446 U. S., at 348–349. In addition to describing the
defendant’s burden of proof, Sullivan addressed separately
a trial court’s duty to inquire into the propriety of a multiple
representation, construing Holloway to require inquiry only
when “the trial court knows or reasonably should know that
a particular conflict exists,” 446 U. S., at 347 2 —which is not
2 In order to circumvent Sullivan’s clear language, Justice Stevens
suggests that a trial court must scrutinize representation by appointed
counsel more closely than representation by retained counsel. Post, at
184 (dissenting opinion). But we have already rejected the notion that

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to be confused with when the trial court is aware of a vague,
unspecified possibility of conflict, such as that which “inheres
in almost every instance of multiple representation,” id., at
348. In Sullivan, no “special circumstances” triggered the
trial court’s duty to inquire. Id., at 346.
Finally, in Wood v. Georgia, 450 U. S. 261 (1981), three
indigent defendants convicted of distributing obscene mate-
rials had their probation revoked for failure to make the req-
uisite $500 monthly payments on their $5,000 fines. We
granted certiorari to consider whether this violated the
Equal Protection Clause, but during the course of our consid-
eration certain disturbing circumstances came to our atten-
tion: At the probation-revocation hearing (as at all times
since their arrest) the defendants had been represented by
the lawyer for their employer (the owner of the business that
purveyed the obscenity), and their employer paid the attor-
ney’s fees. The employer had promised his employees he
would pay their fines, and had generally kept that promise
but had not done so in these defendants’ case. This record
suggested that the employer’s interest in establishing a fa-
vorable equal-protection precedent (reducing the fines he
would have to pay for his indigent employees in the future)
diverged from the defendants’ interest in obtaining leniency
or paying lesser fines to avoid imprisonment. Moreover, the
possibility that counsel was actively representing the con-
flicting interests of employer and defendants “was suffi-
ciently apparent at the time of the revocation hearing to im-
pose upon the court a duty to inquire further.” Id., at 272.
the Sixth Amendment draws such a distinction. “A proper respect for
the Sixth Amendment disarms [the] contention that defendants who retain
their own lawyers are entitled to less protection than defendants for whom
the State appoints counsel . . . . The vital guarantee of the Sixth Amend-
ment would stand for little if the often uninformed decision to retain a
particular lawyer could reduce or forfeit the defendant’s entitlement to
constitutional protection.” Sullivan, supra, at 344.

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Because “[o]n the record before us, we [could not] be sure
whether counsel was influenced in his basic strategic deci-
sions by the interests of the employer who hired him,” ibid.,
we remanded for the trial court “to determine whether the
conflict of interest that this record strongly suggests actually
existed,” id., at 273.
Petitioner argues that the remand instruction in Wood es-
tablished an “unambiguous rule” that where the trial judge
neglects a duty to inquire into a potential conflict, the de-
fendant, to obtain reversal of the judgment, need only show
that his lawyer was subject to a conflict of interest, and need
not show that the conflict adversely affected counsel’s per-
formance. Brief for Petitioner 21.3 He relies upon the lan-
3 Petitioner no longer argues, as he did below and as Justice Souter
does now, post, at 202 (dissenting opinion), that the Sixth Amendment
requires reversal of his conviction without further inquiry into whether
the potential conflict that the judge should have investigated was real.
Compare 240 F. 3d 348, 357 (CA4 2001) (en banc), with Tr. of Oral Arg.
23–25. Some Courts of Appeals have read a footnote in Wood v. Georgia,
450 U. S., at 272, n. 18, as establishing that outright reversal is mandated
when the trial court neglects a duty to inquire into a potential conflict of
interest. See, e. g., Campbell v. Rice, 265 F. 3d 878, 884–885, 888 (CA9
2001); Ciak v. United States, 59 F. 3d 296, 302 (CA2 1995). But see Brien
v. United States, 695 F. 2d 10, 15, n. 10 (CA1 1982). The Wood footnote
says that Sullivan does not preclude “raising . . . a conflict-of-interest
problem that is apparent in the record” and that “Sullivan mandates a
reversal when the trial court has failed to make [the requisite] inquiry.”
Wood, supra, at 272, n. 18. These statements were made in response to
the dissent’s contention that the majority opinion had “gone beyond”
Cuyler v. Sullivan, see 450 U. S., at 272, n. 18, in reaching a conflict-of-
interest due process claim that had been raised neither in the petition for
certiorari nor before the state courts, see id., at 280 (White, J., dissenting).
To the extent the “mandates a reversal” statement goes beyond the asser-
tion of mere jurisdiction to reverse, it is dictum—and dictum inconsistent
with the disposition in Wood, which was not to reverse but to vacate and
remand for the trial court to conduct the inquiry it had omitted.
Justice Souter labors to suggest that the Wood remand order is part
of “a coherent scheme,” post, at 194, in which automatic reversal is re-

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guage in the remand instruction directing the trial court to
grant a new revocation hearing if it determines that “an
actual conflict of interest existed,” Wood, supra, at 273,
without requiring a further determination that the conflict
adversely affected counsel’s performance. As used in the
remand instruction, however, we think “an actual conflict of
interest” meant precisely a conflict that affected counsel’s
performance—as opposed to a mere theoretical division of
loyalties. It was shorthand for the statement in Sullivan
that “a defendant who shows that a conflict of interest actu-
ally affected the adequacy of his representation need not
demonstrate prejudice in order to obtain relief.” 446 U. S.,
at 349–350 (emphasis added).4 This is the only interpreta-
quired when the trial judge fails to inquire into a potential conflict that
was apparent before the proceeding was “held or completed,” but a de-
fendant must demonstrate adverse effect when the judge fails to inquire
into a conflict that was not apparent before the end of the proceeding, post,
at 202. The problem with this carefully concealed “coherent scheme” (no
case has ever mentioned it) is that in Wood itself the court did not decree
automatic reversal, even though it found that “the possibility of a conflict
of interest was sufficiently apparent at the time of the revocation hearing
to impose upon the court a duty to inquire further.” 450 U. S., at 272
(second emphasis added). Indeed, the State had actually notified the
judge of a potential conflict of interest “ ‘[d]uring the probation revocation
hearing.’ ” Id., at 272, and n. 20. Justice Souter’s statement that “the
signs that a conflict may have occurred were clear to the judge at the close
of the probation revocation proceeding,” post, at 201—when it became ap-
parent that counsel had neglected the “strategy more obviously in the
defendants’ interest, of requesting the court to reduce the fines or defer
their collection,” post, at 198—would more accurately be phrased “the ef-
fect of the conflict upon counsel’s performance was clear to the judge at
the close of the probation revocation proceeding.”
4 Justice Stevens asserts that this reading (and presumably Justice
Souter’s reading as well, post, at 201), is wrong, post, at 186–187; that
Wood only requires petitioner to show that a real conflict existed, not
that it affected counsel’s performance, post, at 187. This is so because we
“unambiguously stated” that a conviction must be reversed whenever the
trial court fails to investigate a potential conflict, post, at 186–187 (citing

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tion consistent with the Wood Court’s earlier description of
why it could not decide the case without a remand: “On the
record before us, we cannot be sure whether counsel was
influenced in his basic strategic decisions by the interests
of the employer who hired him. If this was the case, the
due process rights of petitioners were not respected . . . .”
450 U. S., at 272 (emphasis added). The notion that Wood
created a new rule sub silentio—and in a case where certio-
rari had been granted on an entirely different question, and
the parties had neither briefed nor argued the conflict-of-
interest issue—is implausible.5
Petitioner’s proposed rule of automatic reversal when
there existed a conflict that did not affect counsel’s perform-
ance, but the trial judge failed to make the Sullivan-
mandated inquiry, makes little policy sense. As discussed,
the rule applied when the trial judge is not aware of the
Wood footnote). As we have explained earlier, n. 3, supra, this dictum
simply contradicts the remand order in Wood.
5 We have used “actual conflict of interest” elsewhere to mean what was
required to be shown in Sullivan. See United States v. Cronic, 466 U. S.
648, 662, n. 31 (1984) (“[W]e have presumed prejudice when counsel labors
under an actual conflict of interest . . . . See Cuyler v. Sullivan, 446 U. S.
335 (1980)”). And we have used “conflict of interest” to mean a division
of loyalties that affected counsel’s performance. In Holloway, 435 U. S.,
at 482, we described our earlier opinion in Glasser v. United States, 315
U. S. 60 (1942), as follows:
“The record disclosed that Stewart failed to cross-examine a Govern-
ment witness whose testimony linked Glasser with the conspiracy and
failed to object to the admission of arguably inadmissible evidence. This
failure was viewed by the Court as a result of Stewart’s desire to protect
Kretske’s interests, and was thus ‘indicative of Stewart’s struggle to serve
two masters . . . .’ [315 U. S.], at 75. After identifying this conflict of
interests, the Court declined to inquire whether the prejudice flowing from
it was harmless and instead ordered Glasser’s conviction reversed.” (Em-
phasis added.)
Thus, the Sullivan standard is not properly read as requiring inquiry into
actual conflict as something separate and apart from adverse effect. An
“actual conflict,” for Sixth Amendment purposes, is a conflict of interest
that adversely affects counsel’s performance.

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conflict (and thus not obligated to inquire) is that prejudice
will be presumed only if the conflict has significantly affected
counsel’s performance—thereby rendering the verdict unre-
liable, even though Strickland prejudice cannot be shown.
See Sullivan, supra, at 348–349. The trial court’s aware-
ness of a potential conflict neither renders it more likely that
counsel’s performance was significantly affected nor in any
other way renders the verdict unreliable. Cf. United States
v. Cronic, 466 U. S., at 662, n. 31. Nor does the trial judge’s
failure to make the Sullivan-mandated inquiry often make it
harder for reviewing courts to determine conflict and effect,
particularly since those courts may rely on evidence and tes-
timony whose importance only becomes established at the
trial.
Nor, finally, is automatic reversal simply an appropriate
means of enforcing Sullivan’s mandate of inquiry. Despite
Justice Souter’s belief that there must be a threat of sanc-
tion (to wit, the risk of conferring a windfall upon the defend-
ant) in order to induce “resolutely obdurate” trial judges to
follow the law, post, at 208, we do not presume that judges
are as careless or as partial as those police officers who need
the incentive of the exclusionary rule, see United States v.
Leon, 468 U. S. 897, 916–917 (1984). And in any event, the
Sullivan standard, which requires proof of effect upon repre-
sentation but (once such effect is shown) presumes prejudice,
already creates an “incentive” to inquire into a potential con-
flict. In those cases where the potential conflict is in fact an
actual one, only inquiry will enable the judge to avoid all
possibility of reversal by either seeking waiver or replacing
a conflicted attorney. We doubt that the deterrence of “judi-
cial dereliction” that would be achieved by an automatic re-
versal rule is significantly greater.
Since this was not a case in which (as in Holloway) counsel
protested his inability simultaneously to represent multiple
defendants; and since the trial court’s failure to make the
Sullivan-mandated inquiry does not reduce the petitioner’s

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burden of proof; it was at least necessary, to void the convic-
tion, for petitioner to establish that the conflict of interest
adversely affected his counsel’s performance. The Court of
Appeals having found no such effect, see 240 F. 3d, at 360,
the denial of habeas relief must be affirmed.
III
Lest today’s holding be misconstrued, we note that the
only question presented was the effect of a trial court’s fail-
ure to inquire into a potential conflict upon the Sullivan rule
that deficient performance of counsel must be shown. The
case was presented and argued on the assumption that (ab-
sent some exception for failure to inquire) Sullivan would
be applicable—requiring a showing of defective perform-
ance, but not requiring in addition (as Strickland does in
other ineffectiveness-of-counsel cases), a showing of probable
effect upon the outcome of trial. That assumption was not
unreasonable in light of the holdings of Courts of Appeals,
which have applied Sullivan “unblinkingly” to “all kinds of
alleged attorney ethical conflicts,” Beets v. Scott, 65 F. 3d
1258, 1266 (CA5 1995) (en banc). They have invoked the
Sullivan standard not only when (as here) there is a conflict
rooted in counsel’s obligations to former clients, see, e. g.,
Perillo v. Johnson, 205 F. 3d 775, 797–799 (CA5 2000);
Freund v. Butterworth, 165 F. 3d 839, 858–860 (CA11 1999);
Mannhalt v. Reed, 847 F. 2d 576, 580 (CA9 1988); United
States v. Young, 644 F. 2d 1008, 1013 (CA4 1981), but even
when representation of the defendant somehow implicates
counsel’s personal or financial interests, including a book
deal, United States v. Hearst, 638 F. 2d 1190, 1193 (CA9
1980), a job with the prosecutor’s office, Garcia v. Bunnell,
33 F. 3d 1193, 1194–1195, 1198, n. 4 (CA9 1994), the teaching
of classes to Internal Revenue Service agents, United States
v. Michaud, 925 F. 2d 37, 40–42 (CA1 1991), a romantic “en-
tanglement” with the prosecutor, Summerlin v. Stewart, 267
F. 3d 926, 935–941 (CA9 2001), or fear of antagonizing the

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175 Cite as: 535 U. S. 162 (2002)
Opinion of the Court
trial judge, United States v. Sayan, 968 F. 2d 55, 64–65
(CADC 1992).
It must be said, however, that the language of Sullivan
itself does not clearly establish, or indeed even support, such
expansive application. “[U]ntil,” it said, “a defendant shows
that his counsel actively represented conflicting interests,
he has not established the constitutional predicate for his
claim of ineffective assistance.” 446 U. S., at 350 (emphasis
added). Both Sullivan itself, see id., at 348–349, and Hol-
loway, see 435 U. S., at 490–491, stressed the high probabil-
ity of prejudice arising from multiple concurrent representa-
tion, and the difficulty of proving that prejudice. See also
Geer, Representation of Multiple Criminal Defendants: Con-
flicts of Interest and the Professional Responsibilities of the
Defense Attorney, 62 Minn. L. Rev. 119, 125–140 (1978); Low-
enthal, Joint Representation in Criminal Cases: A Critical
Appraisal, 64 Va. L. Rev. 939, 941–950 (1978). Not all attor-
ney conflicts present comparable difficulties. Thus, the Fed-
eral Rules of Criminal Procedure treat concurrent represen-
tation and prior representation differently, requiring a trial
court to inquire into the likelihood of conflict whenever
jointly charged defendants are represented by a single attor-
ney (Rule 44(c)), but not when counsel previously repre-
sented another defendant in a substantially related matter,
even where the trial court is aware of the prior representa-
tion.6 See Sullivan, supra, at 346, n. 10 (citing the Rule).
6 Federal Rule of Criminal Procedure 44(c) provides:
“Whenever two or more defendants have been jointly charged pursuant
to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are
represented by the same retained or assigned counsel or by retained or
assigned counsel who are associated in the practice of law, the court shall
promptly inquire with respect to such joint representation and shall per-
sonally advise each defendant of the right to the effective assistance of
counsel, including separate representation. Unless it appears that there
is good cause to believe no conflict of interest is likely to arise, the court
shall take such measures as may be appropriate to protect each defend-
ant’s right to counsel.”

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176 MICKENS v. TAYLOR
Kennedy, J., concurring
This is not to suggest that one ethical duty is more or less
important than another. The purpose of our Holloway and
Sullivan exceptions from the ordinary requirements of
Strickland, however, is not to enforce the Canons of Legal
Ethics, but to apply needed prophylaxis in situations where
Strickland itself is evidently inadequate to assure vindica-
tion of the defendant’s Sixth Amendment right to counsel.
See Nix v. Whiteside, 475 U. S. 157, 165 (1986) (“[B]reach of
an ethical standard does not necessarily make out a denial of
the Sixth Amendment guarantee of assistance of counsel”).
In resolving this case on the grounds on which it was pre-
sented to us, we do not rule upon the need for the Sullivan
prophylaxis in cases of successive representation. Whether
Sullivan should be extended to such cases remains, as far
as the jurisprudence of this Court is concerned, an open
question.
* * *
For the reasons stated, the judgment of the Court of
Appeals is
Affirmed.
Justice Kennedy, with whom Justice O’Connor joins,
concurring.
In its comprehensive analysis the Court has said all that
is necessary to address the issues raised by the question pre-
sented, and I join the opinion in full. The trial judge’s
failure to inquire into a suspected conflict is not the kind
of error requiring a presumption of prejudice. We did not
grant certiorari on a second question presented by peti-
tioner: whether, if we rejected his proposed presumption, he
had nonetheless established that a conflict of interest ad-
versely affected his representation. I write separately to
emphasize that the facts of this case well illustrate why a
wooden rule requiring reversal is inappropriate for cases
like this one.

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177 Cite as: 535 U. S. 162 (2002)
Kennedy, J., concurring
At petitioner’s request, the District Court conducted an
evidentiary hearing on the conflict claim and issued a thor-
ough opinion, which found that counsel’s brief representation
of the victim had no effect whatsoever on the course of peti-
tioner’s trial. See Mickens v. Greene, 74 F. Supp. 2d 586
(ED Va. 1999). The District Court’s findings depend upon
credibility judgments made after hearing the testimony of
petitioner’s counsel, Bryan Saunders, and other witnesses.
As a reviewing court, our role is not to speculate about coun-
sel’s motives or about the plausibility of alternative litigation
strategies. Our role is to defer to the District Court’s fac-
tual findings unless we can conclude they are clearly errone-
ous. See Lackawanna County District Attorney v. Coss,
532 U. S. 394, 406 (2001) (opinion of O’Connor, J.). The Dis-
trict Court found that Saunders did not believe he had any
obligation to his former client, Timothy Hall, that would
interfere with the litigation. See 74 F. Supp. 2d, at 606
(“[T]he Court concludes that, as a factual matter, Saunders
did not believe that any continuing duties to a former client
might interfere with his consideration of all facts and options
for his current client” (internal quotation marks and alter-
ation omitted)). Although the District Court concluded
that Saunders probably did learn some matters that were
confidential, it found that nothing the attorney learned was
relevant to the subsequent murder case. See ibid. (“[T]he
record here confirms that Saunders did not learn any con-
fidential information from Hall that was relevant to Mickens’
defense either on the merits or at sentencing” (emphasis de-
leted)). Indeed, even if Saunders had learned relevant in-
formation, the District Court found that he labored under
the impression he had no continuing duty at all to his de-
ceased client. See id., at 605 (“[T]he record here reflects
that, as far as Saunders was concerned, his allegiance to Hall,
‘[e]nded when I walked in the courtroom and they told me
he was dead and the case was gone’ ”) (quoting Hearing
Tr. 156–157, 218 (Jan. 13, 1999)). While Saunders’ belief

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178 MICKENS v. TAYLOR
Kennedy, J., concurring
may have been mistaken, it establishes that the prior repre-
sentation did not influence the choices he made during the
course of the trial. This conclusion is a good example of
why a case-by-case inquiry is required, rather than simply
adopting an automatic rule of reversal.
Petitioner’s description of roads not taken would entail
two degrees of speculation. We would be required to as-
sume that Saunders believed he had a continuing duty to the
victim, and we then would be required to consider whether
in this hypothetical case, the counsel would have been
blocked from pursuing an alternative defense strategy. The
District Court concluded that the prosecution’s case, coupled
with the defendant’s insistence on testifying, foreclosed the
strategies suggested by petitioner after the fact. According
to the District Court, there was no plausible argument that
the victim consented to sexual relations with his murderer,
given the bruises on the victim’s neck, blood marks showing
the victim was stabbed before or during sexual intercourse,
and, most important, petitioner’s insistence on testifying at
trial that he had never met the victim. See 74 F. Supp. 2d,
at 607 (“[T]he record shows that other facts foreclosed pres-
entation of consent as a plausible alternative defense strat-
egy”). The basic defense at the guilt phase was that peti-
tioner was not at the scene; this is hardly consistent with the
theory that there was a consensual encounter.
The District Court said the same for counsel’s alleged der-
eliction at the sentencing phase. Saunders’ failure to attack
the character of the 17-year-old victim and his mother had
nothing to do with the putative conflict of interest. This
strategy was rejected as likely to backfire, not only by Saun-
ders, but also by his co-counsel, who owed no duty to Hall.
See id., at 608 (“[T]he record here dispels the contention that
the failure to use negative information about Hall is attribut-
able to any conflict of interest on the part of Saunders”).
These facts, and others relied upon by the District Court,
provide compelling evidence that a theoretical conflict does

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179 Cite as: 535 U. S. 162 (2002)
Stevens, J., dissenting
not establish a constitutional violation, even when the con-
flict is one about which the trial judge should have known.
The constitutional question must turn on whether trial
counsel had a conflict of interest that hampered the represen-
tation, not on whether the trial judge should have been more
assiduous in taking prophylactic measures. If it were other-
wise, the judge’s duty would not be limited to cases where
the attorney is suspected of harboring a conflict of interest.
The Sixth Amendment protects the defendant against an in-
effective attorney, as well as a conflicted one. See Strick-
land v. Washington, 466 U. S. 668, 685–686 (1984). It would
be a major departure to say that the trial judge must step
in every time defense counsel appears to be providing inef-
fective assistance, and indeed, there is no precedent to sup-
port this proposition. As the Sixth Amendment guarantees
the defendant the assistance of counsel, the infringement of
that right must depend on a deficiency of the lawyer, not of
the trial judge. There is no reason to presume this guaran-
tee unfulfilled when the purported conflict has had no effect
on the representation.
With these observations, I join the opinion of the Court.
Justice Stevens, dissenting.
This case raises three uniquely important questions about
a fundamental component of our criminal justice system—
the constitutional right of a person accused of a capital of-
fense to have the effective assistance of counsel for his de-
fense.1 The first is whether a capital defendant’s attorney
1 The Sixth Amendment provides: “In all criminal prosecutions, the ac-
cused shall enjoy the right . . . to have the Assistance of Counsel for his
defence.” This protection is applicable to state, as well as federal, crimi-
nal proceedings. Gideon v. Wainwright, 372 U. S. 335 (1963). We have
long recognized the paramount importance of the right to effective assist-
ance of counsel. United States v. Cronic, 466 U. S. 648, 653–654 (1984)
(“ ‘Of all the rights that an accused person has, the right to be represented
by counsel is by far the most pervasive for it affects his ability to assert
any other rights he may have’ ” (citation omitted)).

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180 MICKENS v. TAYLOR
Stevens, J., dissenting
has a duty to disclose that he was representing the defend-
ant’s alleged victim at the time of the murder. Second, is
whether, assuming disclosure of the prior representation, the
capital defendant has a right to refuse the appointment of
the conflicted attorney. Third, is whether the trial judge,
who knows or should know of such prior representation, has
a duty to obtain the defendant’s consent before appointing
that lawyer to represent him. Ultimately, the question pre-
sented by this case is whether, if these duties exist and if all
of them are violated, there exist “circumstances that are so
likely to prejudice the accused that the cost of litigating their
effect in a particular case is unjustified.” United States v.
Cronic, 466 U. S. 648, 658 (1984).
I
The first critical stage in the defense of a capital case is
the series of pretrial meetings between the accused and his
counsel when they decide how the case should be defended.
A lawyer cannot possibly determine how best to represent a
new client unless that client is willing to provide the lawyer
with a truthful account of the relevant facts. When an indi-
gent defendant first meets his newly appointed counsel, he
will often falsely maintain his complete innocence. Truthful
disclosures of embarrassing or incriminating facts are contin-
gent on the development of the client’s confidence in the un-
divided loyalty of the lawyer. Quite obviously, knowledge
that the lawyer represented the victim would be a substan-
tial obstacle to the development of such confidence.
It is equally true that a lawyer’s decision to conceal such
an important fact from his new client would have comparable
ramifications. The suppression of communication and trun-
cated investigation that would unavoidably follow from such
a decision would also make it difficult, if not altogether im-
possible, to establish the necessary level of trust that should

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181 Cite as: 535 U. S. 162 (2002)
Stevens, J., dissenting
characterize the “delicacy of relation” between attorney
and client.2
In this very case, it is likely that Mickens misled his coun-
sel, Bryan Saunders, given the fact that Mickens gave false
testimony at his trial denying any involvement in the crime
despite the overwhelming evidence that he had killed Timo-
thy Hall after a sexual encounter. In retrospect, it seems
obvious that the death penalty might have been avoided by
acknowledging Mickens’ involvement, but emphasizing the
evidence suggesting that their sexual encounter was consen-
sual. Mickens’ habeas counsel garnered evidence suggest-
ing that Hall was a male prostitute, App. 137, 149, 162, 169;
that the area where Hall was killed was known for prostitu-
tion, id., at 169–170; and that there was no evidence that Hall
was forced to the secluded area where he was ultimately
murdered. An unconflicted attorney could have put for-
ward a defense tending to show that Mickens killed Hall only
after the two engaged in consensual sex, but Saunders of-
fered no such defense. This was a crucial omission—a find-
ing of forcible sodomy was an absolute prerequisite to Mick-
ens’ eligibility for the death penalty.3 Of course, since that
2 Williams v. Reed, 29 F. Cas. 1386, 1390 (No. 17,733) (CC Me. 1824).
Discussing the necessity of full disclosure to the preservation of the
lawyer-client relationship, Justice Story stated: “I agree to the doctrine
urged at the bar, as to the delicacy of the relation of client and attorney,
and the duty of a full, frank, and free disclosure by the latter of every
circumstance, which may be presumed to be material, not merely to the
interests, but to the fair exercise of the judgment, of the client.”
3 At the guilt phase, the trial court judge instructed Mickens’ jury as
follows: “If you find that the Commonwealth has failed to prove beyond a
reasonable doubt that the killing occurred in the commission of, or subse-
quent to, attempted forcible sodomy . . . [but do find a malicious, willful,
deliberate, premeditated killing], then you shall find the defendant guilty
of first degree murder. If you find the defendant guilty of first degree
murder, then you shall fix his punishment at: (1) Imprisonment for life;
or (2) A specific term of imprisonment, but not less than twenty [20]
years . . . .” App. 58–59.

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182 MICKENS v. TAYLOR
Stevens, J., dissenting
strategy would have led to conviction of a noncapital offense,
counsel would have been unable to persuade the defendant
to divulge the information necessary to support such a de-
fense and then ultimately to endorse the strategy unless he
had earned the complete confidence of his client.
Saunders’ concealment of essential information about his
prior representation of the victim was a severe lapse in his
professional duty. The lawyer’s duty to disclose his repre-
sentation of a client related to the instant charge is not only
intuitively obvious, it is as old as the profession. Consider
this straightforward comment made by Justice Story in 1824:
“An attorney is bound to disclose to his client every ad-
verse retainer, and even every prior retainer, which may
affect the discretion of the latter. No man can be sup-
posed to be indifferent to the knowledge of facts, which
work directly on his interests, or bear on the freedom of
his choice of counsel. When a client employs an attor-
ney, he has a right to presume, if the latter be silent on
the point, that he has no engagements, which interfere,
in any degree, with his exclusive devotion to the cause
confided to him; that he has no interest, which may be-
tray his judgment, or endanger his fidelity.” Williams
v. Reed, 29 F. Cas. 1386, 1390 (No. 17,733) (CC Me.).
Mickens’ lawyer’s violation of this fundamental obligation of
disclosure is indefensible. The relevance of Saunders’ prior
representation of Hall to the new appointment was far too
important to be concealed.
II
If the defendant is found guilty of a capital offense, the
ensuing proceedings that determine whether he will be put
to death are critical in every sense of the word. At those
proceedings, testimony about the impact of the crime on the
victim, including testimony about the character of the victim,
may have a critical effect on the jury’s decision. Payne v.

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183 Cite as: 535 U. S. 162 (2002)
Stevens, J., dissenting
Tennessee, 501 U. S. 808 (1991). Because a lawyer’s fidu-
ciary relationship with his deceased client survives the cli-
ent’s death, Swidler & Berlin v. United States, 524 U. S. 399
(1998), Saunders necessarily labored under conflicting obliga-
tions that were irreconcilable. He had a duty to protect the
reputation and confidences of his deceased client, and a duty
to impeach the impact evidence presented by the prosecutor.4
Saunders’ conflicting obligations to his deceased client, on
the one hand, and to his living client, on the other, were
unquestionably sufficient to give Mickens the right to insist
on different representation.5 For the “right to counsel guar-
anteed by the Constitution contemplates the services of an
attorney devoted solely to the interests of his client,” Von
Moltke v. Gillies, 332 U. S. 708, 725 (1948).6 Moreover, in
my judgment, the right to conflict-free counsel is just as
firmly protected by the Constitution as the defendant’s right
4 For example, at the time of Hall’s death, Saunders was representing
Hall in juvenile court for charges arising out of an incident involving Hall’s
mother. She had sworn out a warrant for Hall’s arrest charging him with
assault and battery. Despite knowledge of this, Mickens’ lawyer offered
no rebuttal to the victim-impact statement submitted by Hall’s mother
that “ ‘all [she] lived for was that boy.’ ” Id., at 297.
5 A group of experts in legal ethics, acting as amici curiae, submit that
the conflict in issue in this case would be nonwaivable pursuant to the
standard articulated in the ABA Ann. Model Rules of Professional Con-
duct (4th ed. 1999) (hereinafter Model Rule). Brief for Legal Ethicists
et al. as Amici Curiae 16 (“[T]he standard test to determine if a conflict
is non-waiveable is whether a ‘disinterested lawyer would conclude that
the client should not agree to the representation under the circum-
stances’ ” (quoting Model Rule 1.7, Comment 5)). Unfortunately, because
Mickens was not informed of the fact that his appointed attorney was the
lawyer of the alleged victim, the questions whether Mickens would have
waived this conflict and consented to the appointment, or whether govern-
ing standards of professional responsibility would have precluded him
from doing so, remain unanswered.
6 Although the conflict in this case is plainly intolerable, I, of course, do
not suggest that every conflict, or every violation of the code of ethics, is
a violation of the Constitution.

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184 MICKENS v. TAYLOR
Stevens, J., dissenting
of self-representation recognized in Faretta v. California,
422 U. S. 806 (1975).7
III
When an indigent defendant is unable to retain his own
lawyer, the trial judge’s appointment of counsel is itself a
critical stage of a criminal trial. At that point in the pro-
ceeding, by definition, the defendant has no lawyer to protect
his interests and must rely entirely on the judge. For that
reason it is “the solemn duty of a . . . judge before whom a
defendant appears without counsel to make a thorough in-
quiry and to take all steps necessary to insure the fullest
protection of this constitutional right at every stage of the
proceedings.” Von Moltke, 332 U. S., at 722.
This duty with respect to indigent defendants is far more
imperative than the judge’s duty to investigate the possibil-
ity of a conflict that arises when retained counsel represents
either multiple or successive defendants. It is true that in
a situation of retained counsel, “[u]nless the trial court knows
or reasonably should know that a particular conflict exists,
the court need not initiate an inquiry.” Cuyler v. Sullivan,
446 U. S. 335, 347 (1980).8 But when, as was true in this
7 “[W]hen a defendant chooses to have a lawyer manage and present his
case, law and tradition may allocate to the counsel the power to make
binding decisions of trial strategy in many areas. . . . This allocation can
only be justified, however, by the defendant’s consent, at the outset, to
accept counsel as his representative. An unwanted counsel ‘represents’
the defendant only through a tenuous and unacceptable legal fiction. Un-
less the accused has acquiesced in such representation, the defense pre-
sented is not the defense guaranteed him by the Constitution, for, in a
very real sense, it is not his defense.” 422 U. S., at 820–821.
8 Part III of the Court’s opinion is a foray into an issue that is not impli-
cated by the question presented. In dicta, the Court states that Sullivan
may not even apply in the first place to successive representations. Ante,
at 175–176. Most Courts of Appeals, however, have applied Sullivan to
claims of successive representation as well as to some insidious conflicts
arising from a lawyer’s self-interest. See cases cited ante, at 174–175.
We have done the same. See Wood v. Georgia, 450 U. S. 261 (1981) (apply-
ing Sullivan to a conflict stemming from a third-party payment arrange-

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185 Cite as: 535 U. S. 162 (2002)
Stevens, J., dissenting
case, the judge is not merely reviewing the permissibility of
the defendants’ choice of counsel, but is responsible for mak-
ing the choice herself, and when she knows or should know
that a conflict does exist, the duty to make a thorough in-
quiry is manifest and unqualified.9 Indeed, under far less
compelling circumstances, we squarely held that when a rec-
ord discloses the “possibility of a conflict” between the inter-
ests of the defendants and the interests of the party paying
their counsel’s fees, the Constitution imposes a duty of in-
quiry on the state-court judge even when no objection was
made. Wood v. Georgia, 450 U. S. 261, 267, 272 (1981).
IV
Mickens had a constitutional right to the services of an
attorney devoted solely to his interests. That right was vio-
lated. The lawyer who did represent him had a duty to dis-
close his prior representation of the victim to Mickens and
to the trial judge. That duty was violated. When Mickens
had no counsel, the trial judge had a duty to “make a thor-
ough inquiry and to take all steps necessary to insure the
fullest protection of ” his right to counsel. Von Moltke, 332
ment). Neither we nor the Courts of Appeals have applied this standard
“unblinkingly,” as the Court accuses, ante, at 174, but rather have relied
upon principled reason. When a conflict of interest, whether multiple,
successive, or otherwise, poses so substantial a risk that a lawyer’s repre-
sentation would be materially and adversely affected by diverging inter-
ests or loyalties and the trial court judge knows of this and yet fails to
inquire, it is a “[c]ircumstanc[e] of [such] magnitude” that “the likelihood
that any lawyer, even a fully competent one, could provide effective assist-
ance is so small that a presumption of prejudice is appropriate without
inquiry into the actual conduct of the trial.” Cronic, 466 U. S., at 659–660.
9 There is no dispute before us as to the appointing judge’s knowledge.
The court below assumed, arguendo, that the judge who, upon Hall’s death,
dismissed Saunders from his representation of Hall and who then three
days later appointed Saunders to represent Mickens in the killing of Hall
“reasonably should have known that Saunders labored under a potential
conflict of interest arising from his previous representation of Hall.” 240
F. 3d 348, 357 (CA4 2001). This assumption has not been challenged.

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186 MICKENS v. TAYLOR
Stevens, J., dissenting
U. S., at 722. Despite knowledge of the lawyer’s prior rep-
resentation, she violated that duty.
We will never know whether Mickens would have received
the death penalty if those violations had not occurred nor
precisely what effect they had on Saunders’ representation
of Mickens.10 We do know that he did not receive the kind
of representation that the Constitution guarantees. If
Mickens had been represented by an attorney-impostor who
never passed a bar examination, we might also be unable to
determine whether the impostor’s educational shortcomings
“ ‘actually affected the adequacy of his representation.’ ”
Ante, at 171 (emphasis deleted). We would, however, surely
set aside his conviction if the person who had represented
him was not a real lawyer. Four compelling reasons make
setting aside the conviction the proper remedy in this case.
First, it is the remedy dictated by our holdings in Hol-
loway v. Arkansas, 435 U. S. 475 (1978), Cuyler v. Sullivan,
446 U. S. 335 (1980), and Wood v. Georgia, 450 U. S. 261
(1981). In this line of precedent, our focus was properly
upon the duty of the trial court judge to inquire into a poten-
tial conflict. This duty was triggered either via defense
counsel’s objection, as was the case in Holloway, or some
other “special circumstances” whereby the serious potential
for conflict was brought to the attention of the trial court
judge. Sullivan, 446 U. S., at 346. As we unambiguously
stated in Wood, “Sullivan mandates a reversal when the
trial court has failed to make an inquiry even though it
‘knows or reasonably should know that a particular conflict
10 I disagree with the Court’s assertion that the inquiry mandated by
Cuyler v. Sullivan, 446 U. S. 335 (1980), will not aid in the determination
of conflict and effect. Ante, at 171. As we have stated, “the evil [of
conflict-ridden counsel] is in what the advocate finds himself compelled to
refrain from doing, . . . [making it] difficult to judge intelligently the im-
pact of a conflict on the attorney’s representation of a client.” Holloway
v. Arkansas, 435 U. S. 475, 490–491 (1978). An adequate inquiry by the
appointing or trial court judge will augment the record thereby making it
easier to evaluate the impact of the conflict.

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187 Cite as: 535 U. S. 162 (2002)
Stevens, J., dissenting
exists.’ ” 450 U. S., at 272, n. 18. It is thus wrong for the
Court to interpret Justice Powell’s language as referring
only to a division of loyalties “that affected counsel’s per-
formance.” Ante, at 171, and n. 3 (emphasis deleted).11
Wood nowhere hints of this meaning of “actual conflict of
interest” 450 U. S., at 273, nor does it reference Sullivan
in “shorthand,” ante, at 171. Rather, Wood cites Sullivan
explicitly in order to make a factual distinction: In a circum-
stance, such as in Wood, in which the judge knows or should
know of the conflict, no showing of adverse effect is required.
But when, as in Sullivan, the judge lacked this knowledge,
such a showing is required. Wood, 450 U. S., at 272–274.12
11 The Court concedes that if Mickens’ attorney had objected to the ap-
pointment based upon the conflict of interest and the trial court judge had
failed to inquire, then reversal without inquiry into adverse effect would
be required. Ante, at 173–174. The Court, in addition to ignoring the
mandate of Wood, reads Sullivan too narrowly. In Sullivan we did not
ask only whether an objection was made in order to ascertain whether
the trial court had a duty to inquire. Rather, we stated that “[n]othing
in the circumstances of this case indicates that the trial court had a duty
to inquire whether there was a conflict of interest. The provision of sepa-
rate trials for Sullivan and his codefendants significantly reduced the po-
tential for a divergence in their interests. No participant in Sullivan’s
trial ever objected to the multiple representation. . . . On these facts,
we conclude that the Sixth Amendment imposed upon the trial court no
affirmative duty to inquire into the propriety of multiple representation.”
446 U. S., at 347–348.
It is also counter to our precedent to treat all Sixth Amendment chal-
lenges involving conflicts of interest categorically, without inquiry into the
surrounding factual circumstances. In Cronic, we cited Holloway as an
example of a case involving “surrounding circumstances [making] it so
unlikely that any lawyer could provide effective assistance that ineffec-
tiveness was properly presumed without inquiry into actual performance
at trial.” Cronic, 466 U. S., at 661, and n. 28. The surrounding circum-
stances in the present case were far more egregious than those requiring
reversal in either Holloway or Wood.
12 Because the appointing judge knew of the conflict, there is no need in
this case to decide what should be done when the judge neither knows,
nor should know, about the existence of an intolerable conflict. Neverthe-
less the Court argues that it makes little sense to reverse automatically

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188 MICKENS v. TAYLOR
Stevens, J., dissenting
Second, it is the only remedy that responds to the real
possibility that Mickens would not have received the death
penalty if he had been represented by conflict-free counsel
during the critical stage of the proceeding in which he first
met with his lawyer. We should presume that the lawyer
for the victim of a brutal homicide is incapable of establish-
ing the kind of relationship with the defendant that is essen-
tial to effective representation.
Third, it is the only remedy that is consistent with the
legal profession’s historic and universal condemnation of the
representation of conflicting interests without the full disclo-
sure and consent of all interested parties.13 The Court’s
novel and naı¨ve assumption that a lawyer’s divided loyalties
upon a showing of actual conflict when the trial court judge knows (or
reasonably should know) of a potential conflict and yet has failed to in-
quire, but not to do so when the trial court judge does not know of the
conflict. Ante, at 172–173. Although it is true that the defendant faces
the same potential for harm as a result of a conflict in either instance, in
the former case the court committed the error and in the latter the harm
is entirely attributable to the misconduct of defense counsel. A require-
ment that the defendant show adverse effect when the court committed
no error surely does not justify such a requirement when the court did
err. It is the Court’s rule that leads to an anomalous result. Under the
Court’s analysis, if defense counsel objects to the appointment, reversal
without inquiry into adverse effect is required. Ante, at 173–174. But
counsel’s failure to object posed a greater—not a lesser—threat to Mick-
ens’ Sixth Amendment right. Had Saunders objected to the appointment,
Mickens would at least have been apprised of the conflict.
13 Every state bar in the country has an ethical rule prohibiting a lawyer
from undertaking a representation that involves a conflict of interest
unless the client has waived the conflict. University Publications of
America, National Reporter on Legal Ethics and Professional Responsibil-
ity, Vols. I–IV (2001) (reprinting the professional responsibility codes for
the 50 States). See also Model Rule 1.7, at 91–92, Comments 3 and 4 (“As
a general proposition, loyalty to a client prohibits undertaking representa-
tion directly adverse to that client without that client’s consent. . . . Loy-
alty to a client is also impaired when a lawyer cannot consider, recommend
or carry out an appropriate course of action for the client because of the
lawyer’s other responsibilities or interests”).

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189 Cite as: 535 U. S. 162 (2002)
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are acceptable unless it can be proved that they actually af-
fected counsel’s performance is demeaning to the profession.
Finally, “justice must satisfy the appearance of justice.”
Offutt v. United States, 348 U. S. 11, 14 (1954). Setting aside
Mickens’ conviction is the only remedy that can maintain
public confidence in the fairness of the procedures employed
in capital cases. Death is a different kind of punishment
from any other that may be imposed in this country. “From
the point of view of the defendant, it is different in both its
severity and its finality. From the point of view of society,
the action of the sovereign in taking the life of one of its
citizens also differs dramatically from any other legitimate
state action. It is of vital importance to the defendant and
to the community that any decision to impose the death sen-
tence be, and appear to be, based on reason rather than ca-
price or emotion.” Gardner v. Florida, 430 U. S. 349, 357–
358 (1977). A rule that allows the State to foist a murder
victim’s lawyer onto his accused is not only capricious; it poi-
sons the integrity of our adversary system of justice.
I respectfully dissent.
Justice Souter, dissenting.
A judge who knows or should know that counsel for a
criminal defendant facing, or engaged in, trial has a potential
conflict of interests is obliged to enquire into the potential
conflict and assess its threat to the fairness of the proceed-
ing. See Wheat v. United States, 486 U. S. 153, 160 (1988);
Wood v. Georgia, 450 U. S. 261, 272 (1981); Cuyler v. Sulli-
van, 446 U. S. 335, 347 (1980). Cf. Holloway v. Arkansas,
435 U. S. 475, 484 (1978). Unless the judge finds that the
risk of inadequate representation is too remote for further
concern, or finds that the defendant has intelligently as-
sumed the risk and waived any potential Sixth or Fourteenth
Amendment claim of inadequate counsel, the court must see
that the lawyer is replaced. See ibid.; Glasser v. United
States, 315 U. S. 60, 70 (1942). Cf. Wheat, supra, at 162; Ad-

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190 MICKENS v. TAYLOR
Souter, J., dissenting
visory Committee’s Notes on 1979 Amendments to Fed. Rule
Crim. Proc. 44(c), 18 U. S. C. App., p. 1655.
The District Judge reviewing the federal habeas petition
in this case found that the state judge who appointed Bryan
Saunders to represent petitioner Mickens on a capital mur-
der charge knew or should have known that obligations
stemming from Saunders’s prior representation of the vic-
tim, Timothy Hall, potentially conflicted with duties entailed
by defending Mickens.1 Mickens v. Greene, 74 F. Supp. 2d
586, 613–615 (ED Va. 1999). The state judge was therefore
obliged to look further into the extent of the risk and, if
necessary, either secure Mickens’s knowing and intelligent
assumption of the risk or appoint a different lawyer. The
state judge, however, did nothing to discharge her constitu-
tional duty of care. Id., at 614. In the one case in which
we have devised a remedy for such judicial dereliction, we
held that the ensuing judgment of conviction must be re-
versed and the defendant afforded a new trial. Holloway,
1 The parties do not dispute that the appointing judge in this case knew
or reasonably should have known that Saunders had represented Hall on
assault and battery charges brought against him by his mother and a sepa-
rate concealed-weapon charge at the time of his murder. Lodging to App.
390, 393. The name “BRYAN SAUNDERS,” in large, handwritten let-
ters, was prominently visible as the appointed lawyer on a one-page docket
sheet four inches above where the judge signed her name and wrote: “Re-
move from docket. Def[endant] deceased.” Id., at 390. The same judge
then called Saunders the next business day to ask if he would “do her a
favor” and represent the only person charged with having killed the vic-
tim. App. 142. And, if that were not enough, Mickens’s arrest warrants,
which were apparently before the judge when she appointed Saunders,
charged Mickens with the murder, “ ‘on or about March 30, 1992,’ ” of
“ ‘Timothy Jason Hall, white male, age 17.’ ” Mickens v. Greene, 74 F.
Supp. 2d 586, 614 (ED Va. 1999). The juvenile-court judge, whom cir-
cumstances had thrust into the unusual position of having to appoint coun-
sel in a notorious capital case, certainly knew or had reason to know of
the possibility that Saunders’s 14-day representation of the murder victim,
up to the start of the previous business day, may have created a risk of
impairing his representation of Mickens in his upcoming murder trial.

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Souter, J., dissenting
supra, at 491; see also Wood, supra, at 272, n. 18. That
should be the result here.
I
The Court today holds, instead, that Mickens should be
denied this remedy because Saunders failed to employ a for-
mal objection as a means of bringing home to the appointing
judge the risk of conflict. Ante, at 173–174. Without an
objection, the majority holds, Mickens should get no relief
absent a showing that the risk turned into an actual conflict
with adverse effect on the representation provided to Mick-
ens at trial. Ibid. But why should an objection matter
when even without an objection the state judge knew or
should have known of the risk and was therefore obliged to
enquire further? What would an objection have added to
the obligation the state judge failed to honor? The majority
says that in circumstances like those now before us, we have
already held such an objection necessary for reversal, absent
proof of actual conflict with adverse effect, so that this case
calls simply for the application of precedent, albeit precedent
not very clearly stated. Ante, at 171–172.
The majority’s position is error, resting on a mistaken
reading of our cases. Three are on point, Holloway v.
Arkansas, supra; Cuyler v. Sullivan, supra; and Wood v.
Georgia, supra.
In Holloway, a trial judge appointed one public defender
to represent three criminal defendants tried jointly. 435
U. S., at 477. Three weeks before trial, counsel moved for
separate representation; the court held a hearing and denied
the motion. Ibid. The lawyer moved again for appoint-
ment of separate counsel before the jury was empaneled,
on the ground that one or two of the defendants were consid-
ering testifying at trial, in which event the one lawyer’s abil-
ity to cross-examine would be inhibited. Id., at 478. The
court again denied his motion. Ibid. After the prosecution
rested, counsel objected to the joint representation a third
time, advising the court that all three defendants had de-

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192 MICKENS v. TAYLOR
Souter, J., dissenting
cided to testify; again the court refused to appoint separate
lawyers. Id., at 478–480. The defendants gave inconsist-
ent testimony and were convicted on all counts. Id., at 481.
This Court held that the motions apprised the trial judge
of a “risk” that continuing the joint representation would
subject defense counsel in the pending trial to the impossible
obligations of simultaneously furthering the conflicting inter-
ests of the several defendants, id., at 484, and we reversed
the convictions on the basis of the judge’s failure to respond
to the prospective conflict, without any further showing of
harm, id., at 491. In particular, we rejected the argument
that a defendant tried subject to such a disclosed risk should
have to show actual prejudice caused by subsequent conflict.
Id., at 488. We pointed out that conflicts created by multi-
ple representation characteristically deterred a lawyer from
taking some step that he would have taken if unconflicted,
and we explained that the consequent absence of footprints
would often render proof of prejudice virtually impossible.
Id., at 489–491.
Next came Sullivan, involving multiple representation by
two retained lawyers of three defendants jointly indicted but
separately tried, 446 U. S., at 337. Sullivan, the defendant
at the first trial, had consented to joint representation by the
same lawyers retained by the two other accused, because
he could not afford counsel of his own. Ibid. Sullivan was
convicted of murder; the other two were acquitted in their
subsequent trials. Id., at 338. Counsel made no objection
to the multiple representation before or during trial, ibid.;
nor did the convicted defendant argue that the trial judge
otherwise knew or should have known of the risk described
in Holloway, that counsel’s representation might be impaired
by conflicting obligations to the defendants to be tried later,
446 U. S., at 343.
This Court held that multiple representation did not raise
enough risk of impaired representation in a coming trial to

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193 Cite as: 535 U. S. 162 (2002)
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trigger a trial court’s duty to enquire further, in the absence
of “special circumstances.” 2 Id., at 346. The most obvious
special circumstance would be an objection. See Holloway,
supra, at 488. Indeed, because multiple representation was
not suspect per se, and because counsel was in the best posi-
tion to anticipate a risk of conflict, the Court spoke at one
point as though nothing but an objection would place a court
on notice of a prospective conflict. Sullivan, 446 U. S., at
348 (“[A] defendant who raised no objection at trial must
demonstrate that an actual conflict of interest adversely af-
fected his lawyer’s performance” (footnote omitted)). But
the Court also explained that courts must rely on counsel in
“large measure,” id., at 347, that is, not exclusively, and it
spoke in general terms of a duty to enquire that arises when
“the trial court knows or reasonably should know that a par-
ticular conflict exists,” 3 ibid. (footnote omitted). Accord-
2 The constitutional rule binding the state courts is thus more lenient
than Rule 44(c) of the Federal Rules of Criminal Procedure, which
provides:
“Whenever two or more defendants have been jointly charged pursuant
to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are
represented by the same retained or assigned counsel or by retained or
assigned counsel who are associated in the practice of law, the court shall
promptly inquire with respect to such joint representation and shall per-
sonally advise each defendant of the right to the effective assistance of
counsel, including separate representation. Unless it appears that there
is good cause to believe no conflict of interest is likely to arise, the court
shall take such measures as may be appropriate to protect each defend-
ant’s right to counsel.”
See Wheat v. United States, 486 U. S. 153, 161 (1988).
3 By “particular conflict” the Court was clearly referring to a risk of
conflict detectable on the horizon rather than an “actual conflict” that had
already adversely affected the defendant’s representation. The Court
had just cited and quoted Holloway v. Arkansas, 435 U. S. 475 (1978),
which held that the judge was obligated to enquire into the risk of a pro-
spective conflict, id., at 484. This reading is confirmed by the Sullivan
Court’s subsequent terminology: Because the trial judge in Sullivan had
had no duty to enquire into “a particular conflict” upon notice of multiple

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194 MICKENS v. TAYLOR
Souter, J., dissenting
ingly, the Court did not rest the result simply on the failure
of counsel to object, but said instead that “[n]othing in the
circumstances of this case indicates that the trial court had
a duty to inquire whether there was a conflict of interest,”
ibid. For that reason, it held respondent bound to show
“that a conflict of interest actually affected the adequacy of
his representation.” Id., at 349.
The different burdens on the Holloway and Sullivan de-
fendants are consistent features of a coherent scheme for
dealing with the problem of conflicted defense counsel; a pro-
spective risk of conflict subject to judicial notice is treated
differently from a retrospective claim that a completed pro-
ceeding was tainted by conflict, although the trial judge had
not been derelict in any duty to guard against it. When
the problem comes to the trial court’s attention before any
potential conflict has become actual, the court has a duty to
act prospectively to assess the risk and, if the risk is not too
remote, to eliminate it or to render it acceptable through
a defendant’s knowing and intelligent waiver. This duty is
something more than the general responsibility to rule with-
out committing legal error; it is an affirmative obligation to
investigate a disclosed possibility that defense counsel will
be unable to act with uncompromised loyalty to his client.
It was the judge’s failure to fulfill that duty of care to enquire
further and do what might be necessary that the Holloway
Court remedied by vacating the defendant’s subsequent con-
viction. 435 U. S., at 487, 491. The error occurred when
the judge failed to act, and the remedy restored the defend-
representation alone, the convicted defendant could get no relief without
showing “actual conflict” with “adverse effect.” 446 U. S., at 347–350.
Of course, a judge who gets wind of conflict during trial may have to
enquire in both directions: prospectively to assess the risk of conflict if the
lawyer remains in place; if there is no such risk requiring removal and
mistrial, conversely, the judge may have to enquire retrospectively to see
whether a conflict has actually affected the defendant adversely. See
infra, at 202.

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195 Cite as: 535 U. S. 162 (2002)
Souter, J., dissenting
ant to the position he would have occupied if the judge had
taken reasonable steps to fulfill his obligation. But when
the problem of conflict comes to judicial attention not pro-
spectively, but only after the fact, the defendant must show
an actual conflict with adverse consequence to him in order
to get relief. Sullivan, supra, at 349. Fairness requires
nothing more, for no judge was at fault in allowing a trial to
proceed even though fraught with hidden risk.
In light of what the majority holds today, it bears repeat-
ing that, in this coherent scheme established by Holloway
and Sullivan, there is nothing legally crucial about an objec-
tion by defense counsel to tell a trial judge that conflicting
interests may impair the adequacy of counsel’s representa-
tion. Counsel’s objection in Holloway was important as a
fact sufficient to put the judge on notice that he should en-
quire. In most multiple-representation cases, it will take
just such an objection to alert a trial judge to prospective
conflict, and the Sullivan Court reaffirmed that the judge is
obliged to take reasonable prospective action whenever a
timely objection is made. 446 U. S., at 346. But the Court
also indicated that an objection is not required as a matter
of law: “Unless the trial court knows or reasonably should
know that a particular conflict exists, the court need not ini-
tiate an enquiry.” Id., at 347. The Court made this clear
beyond cavil 10 months later when Justice Powell, the same
Justice who wrote the Sullivan opinion, explained in Wood
v. Georgia that Sullivan “mandates a reversal when the trial
court has failed to make an inquiry even though it ‘knows or
reasonably should know that a particular conflict exists.’ ”
450 U. S., at 272, n. 18 (emphasis in original).
Since the District Court in this case found that the state
judge was on notice of a prospective potential conflict, 74
F. Supp. 2d, at 613–615, this case calls for nothing more than
the application of the prospective notice rule announced and
exemplified by Holloway and confirmed in Sullivan and
Wood. The remedy for the judge’s dereliction of duty

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196 MICKENS v. TAYLOR
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should be an order vacating the conviction and affording a
new trial.
But in the majority’s eyes, this conclusion takes insuffi-
cient account of Wood, whatever may have been the sensible
scheme staked out by Holloway and Sullivan, with a defend-
ant’s burden turning on whether a court was apprised of a
conflicts problem prospectively or retrospectively. The ma-
jority says that Wood holds that the distinction is between
cases where counsel objected and all other cases, regardless
of whether a trial court was put on notice prospectively in
some way other than by an objection on the record. See
ante, at 172–174. In Wood, according to the majority, the
trial court had notice, there was no objection on the record,
and the defendant was required to show actual conflict and
adverse effect.
Wood is not easy to read, and I believe the majority mis-
reads it. The first step toward seeing where the majority
goes wrong is to recall that the Court in Wood said outright
what I quoted before, that Sullivan “mandates a reversal
when the trial court has failed to make an inquiry even
though it ‘knows or reasonably should know that a particular
conflict exists.’ ” 450 U. S., at 272, n. 18. This statement of
a trial judge’s obligation, like the statement in Sullivan that
it quoted, 446 U. S., at 347, said nothing about the need for
an objection on the record. True, says the majority, but the
statement was dictum to be disregarded as “inconsistent”
with Wood’s holding. Ante, at 168–169, n. 2. This is a po-
lite way of saying that the Wood Court did not know what it
was doing; that it stated the general rule of reversal for fail-
ure to enquire when on notice (as in Holloway), but then
turned around and held that such a failure called for reversal
only when the defendant demonstrated an actual conflict (as
in Sullivan).
This is not what happened. Wood did not hold that in the
absence of objection, the Sullivan rule governs even when a
judge is prospectively on notice of a risk of conflicted counsel.

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197 Cite as: 535 U. S. 162 (2002)
Souter, J., dissenting
Careful attention to Wood shows that the case did not in-
volve prospective notice of risk unrealized, and that it held
nothing about the general rule to govern in such circum-
stances. What Wood did decide was how to deal with a pos-
sible conflict of interests that becomes known to the trial
court only at the conclusion of the trial proceeding at which
it may have occurred, and becomes known not to a later
habeas court but to the judge who handed down sentences
at trial, set probation 19 months later after appeals were
exhausted, and held a probation revocation proceeding 4
months after that.4
The Wood defendants were convicted of distributing ob-
scene material as employees of an adult bookstore and the-
ater, after trials at which they were defended by privately
retained counsel. 450 U. S., at 262–263. They were each
ordered to pay fines and sentenced to 12-month prison terms
that were suspended in favor of probation on the condition
that they pay their fines in installments, which they failed to
do. Id., at 263–264. The Wood Court indicated that by the
end of the proceeding to determine whether probation should
be revoked because of the defendants’ failure to pay, the
judge was on notice that defense counsel might have been
laboring under a conflict between the interests of the defend-
ant employees and those of their employer, possibly as early
as the time the sentences were originally handed down
nearly two years earlier, App. 11–16 in Wood v. Georgia, O. T.
1979, No. 79–6027 (Mar. 18, 1977, sentencing). See Wood,
450 U. S., at 272 (“at the revocation hearing, or at earlier
stages of the proceedings below”). The fines were so high
that the original sentencing assumption must have been that
the store and theater owner would pay them; defense counsel
was paid by the employer, at least during the trial; the State
4 The same trial judge presided over each stage of these proceedings.
See App. 11–41 in Wood v. Georgia, O. T. 1979, No. 79–6027.

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198 MICKENS v. TAYLOR
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pointed out a possible conflict to the judge; 5 and counsel was
attacking the fines with an equal protection argument, which
weakened the strategy more obviously in the defendants’ in-
terest, of requesting the court to reduce the fines or defer
their collection. Id., at 272–273. This was enough, accord-
ing to the Wood Court, to tell the judge that defense counsel
may have been acting to further the owner’s desire for a
test case on equal protection, rather than the defendants’
interests in avoiding ruinous fines or incarceration. Ibid.
What is significant is that, as this Court thus described
the circumstances putting the judge on notice, they were not
complete until the revocation hearing was finished (nearly
5 The State indicated that defense counsel labored under a possible con-
flict of interests between the employer and the defendants, but it was not
the conflict in issue here, and so, from the Wood Court’s perspective, the
State’s objection, though a relevant fact in alerting the judge like the fact
of multiple representation in Cuyler v. Sullivan, 446 U. S. 335 (1980), was
not sufficient to put the judge on notice of his constitutional duty to en-
quire into a “particular conflict,” id., at 347. State’s counsel suggested
that in arguing for forgiveness of fines owing to inability to pay, defense
counsel was merely trying to protect the employer from an obligation to
the defendants to pay the fines. App. A to Brief in Opposition in Wood
v. Georgia, O. T. 1979, No. 79–6027, at 14–15, 27–28 (transcript of Jan. 26,
1979, probation revocation hearing). But as to forgiveness of the fines,
the interests of the employer and defendants were aligned; the State’s
lawyer argued to the court nonetheless that counsel’s allegiance to the
employer prevented him from pressing the employer to honor its obliga-
tion to pay, and suggested to the judge that he should appoint separate
counsel to enforce it. Id., at 14. The judge did enquire into this alleged
conflict and accepted defense counsel’s rejoinder that such a conflict was
not relevant to a hearing on whether probation should be revoked for
inability to pay and that any such agreement to pay fines for violating the
law would surely be unenforceable as a matter of public policy. Id., at
14–17. The majority is thus mistaken in its claim that the State’s objec-
tion sufficed to put the court on notice of a duty to enquire as to the
particular conflict of interest to the Wood Court, see ante, at 170–171, n. 3,
unless the majority means to say that mention of any imagined conflict is
sufficient to put a judge on notice of a duty to enquire into the full universe
of possible conflicts.

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199 Cite as: 535 U. S. 162 (2002)
Souter, J., dissenting
two years after sentencing) and the judge knew that the law-
yer was relying heavily on equal protection instead of argu-
ments for leniency to help the defendants. The Court noted
that counsel stated he had sent a letter to the trial court
after sentencing, saying the fines were more than the defend-
ants could afford, id., at 268, n. 13, a move obviously in the
defendants’ interest. On the other hand, a reference to
“equal protection,” which the Court could have taken as a
reflection of the employer’s interest, did not occur until the
very end of the revocation hearing. See App. A to Brief in
Opposition in Wood v. Georgia, O. T. 1979, No. 79–6027, at 72
(transcript of Jan. 26, 1979, probation revocation hearing).6
The Wood Court also knew that a motion stressing equal
protection was not filed by defense counsel until two weeks
after the revocation hearing, on the day before probation was
to be revoked and the defendants locked up, App. 35–36 in
Wood v. Georgia, O. T. 1979, No. 79–6027 (Joint Motions to
Modify Conditions of Probation Order—Filed Feb. 12, 1979).
450 U. S., at 268. Since, in the Court’s view, counsel’s em-
phasis on the equal protection claim was one of the facts that
6 At one point, about a quarter of the way into the hearing, defense
counsel said: “And I think the universal rule is in the United States, be-
cause of the Fourteenth Amendment of the United States Constitution,
legal protection, you cannot, or should not, lock up an accused for failure
to pay a fine; because of his inability or her inability to pay the fine, if that
person, and this is a crucial point, Your Honor, if that person, like to quote
from Bennett versus Harper, was incapable of paying the fine, rather than
refusing and neglecting to do so.” App. A to Brief in Opposition in Wood
v. Georgia, O. T. 1979, No. 79–6027, at 19. Defense counsel also cited two
equal protection decisions of this Court, Tate v. Short, 401 U. S. 395 (1971),
and Williams v. Illinois, 399 U. S. 235 (1970); it may very well be that he
meant to say “equal protection” rather than “legal protection” or the latter
was in fact a garbled transcription, but it seems unlikely that the Wood
Court was referring to this statement when it said counsel “was pressing
a constitutional attack rather than making the arguments for leniency,”
450 U. S., at 272, because it was made to supplement, not replace, appeals
to leniency based on the specific financial situations of the individual
defendants.

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200 MICKENS v. TAYLOR
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together put the judge on notice of something amiss, and
since the record shows that it was not clear that counsel was
favoring the equal protection argument until, at the earliest,
the very close of the revocation hearing, and more likely the
day he filed his motion two weeks later, the Court could only
have meant that the judge was put on notice of a conflict that
may actually have occurred, not of a potential conflict that
might occur later.7 At that point, as the Court saw it, there
were only two further facts the judge would have needed to
know to determine whether there had been an actual dis-
qualifying conflict, and those were whether a concern for the
interest of the employer had weakened the lawyer’s argu-
ments for leniency, and whether the defendants had been
informed of the conflict and waived their rights to uncon-
flicted counsel.
This Court, of course, was in no position to resolve these
remaining issues in the first instance. Whether the lawyer’s
failure to press more aggressively for leniency was caused
by a conflicting interest, for example, had never been ex-
plored at the trial level and there was no record to consult
on the point.8 In deciding what to do, the Wood Court had
7 The phrasing of the remand instruction confirms the conclusion that
the Wood Court perceived the duty to enquire neglected by the judge as
retrospective in nature: The “[state] court [on remand] should hold a hear-
ing to determine whether the conflict of interest that this record strongly
suggests actually existed at the time of the probation revocation or ear-
lier.” Id., at 273. From the Court’s vantage point, another compelling
reason for suspecting a conflict of interests was the fact that the employer
apparently paid for the appeal, in which counsel argued the equal protec-
tion question only, id., at 267, n. 11; but, of course, this would have been
unknown to the judge at the revocation hearing.
8 There was certainly cause for reasonable disagreement on the issue.
As Justice White pointed out, absent relevant evidence in the record, it
was reasonable that the employer might have refused to pay because the
defendants were no longer employees, or because it no longer owned adult
establishments. Id., at 282–283, and n. 9 (dissenting opinion). Indeed,
counsel said that he was no longer paid by the employer for his representa-

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201 Cite as: 535 U. S. 162 (2002)
Souter, J., dissenting
two established procedural models to look to: Holloway’s
procedure of vacating judgment 9 when a judge had failed to
enquire into a prospective conflict, and Sullivan’s procedure
of determining whether the conflict that may well have oc-
curred had actually occurred with some adverse effect.
Treating the case as more like Sullivan and remanding
was obviously the correct choice. Wood was not like Hol-
loway, in which the judge was put on notice of a risk before
trial, that is, a prospective possibility of conflict. It was,
rather, much closer to Sullivan, since any notice to a court
went only to a conflict, if there was one, that had pervaded
a completed trial proceeding extending over two years. The
only difference between Wood and Sullivan was that, in
Wood, the signs that a conflict may have occurred were clear
to the judge at the close of the probation revocation proceed-
ing, whereas the claim of conflict in Sullivan was not raised
until after judgment in a separate habeas proceeding, see
446 U. S., at 338. The duty of the Wood judge could only
have been to enquire into the past (what had happened two
years earlier at sentencing, the setting of probation 19
months later, the ensuing failures to pay, and the testimony
that had already been given at the revocation hearing), just
like the responsibility of the state and federal habeas courts
reviewing the record in Sullivan in postconviction proceed-
ings, see 446 U. S., at 338–339. Since the Wood judge’s duty
was unlike the Holloway judge’s obligation to take care for
the future, it would have made no sense for the Wood Court
to impose a Holloway remedy.
The disposition in Wood therefore raises no doubt about
the consistency of the Wood Court. Contrary to the majori-
tion of the defendants once they were put on probation, id., at 281, n. 7
(White, J., dissenting).
9 In this case, the order would have been to vacate the commitment
order based on the probation violation, and perhaps even the antecedent
fine. See id., at 274, n. 21 (majority opinion).

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202 MICKENS v. TAYLOR
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ty’s conclusion, see ante, at 168–169, n. 2, there was no ten-
sion 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 deter-
mination about actual, past conflict, id., at 273–274. Wood
simply followed and confirmed the pre-existing scheme es-
tablished by Holloway and Sullivan. When a risk of con-
flict 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 ap-
pointed 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 de-
fense counsel explicitly objected. There is not. The dis-
tinction is irrational on its face, it creates a scheme of incen-
tives 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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Souter, J., dissenting
The most obvious reason to reject the majority’s rule
starts with the accepted view that a trial judge placed on
notice of a risk of prospective conflict has an obligation then
and there to do something about it, Holloway, supra, at 484.
The majority does not expressly repudiate that duty, see
ante, at 167–168, which is too clear for cavil. It should go
without saying that the best time to deal with a known
threat to the basic guarantee of fair trial is before the trial
has proceeded to become unfair. See Holloway, supra, at
484; Glasser, 315 U. S., at 76. Cf. Pate v. Robinson, 383 U. S.
375, 386–387 (1966) ( judge’s duty to conduct hearing as to
competency to stand trial). It would be absurd, after all, to
suggest that a judge should sit quiescent in the face of an
apparent risk that a lawyer’s conflict will render representa-
tion illusory and the formal trial a waste of time, emotion,
and a good deal of public money. And as if that were not
bad enough, a failure to act early raises the specter, con-
fronted by the Holloway Court, that failures on the part of
conflicted counsel will elude demonstration after the fact,
simply because they so often consist of what did not happen.
435 U. S., at 490–492. While a defendant can fairly be sad-
dled with the characteristically difficult burden of proving
adverse effects of conflicted decisions after the fact when the
judicial system was not to blame in tolerating the risk of
conflict, the burden is indefensible when a judge was on no-
tice of the risk but did nothing.
With so much at stake, why should it matter how a judge
learns whatever it is that would point out the risk to any-
one paying attention? Of course an objection from a
conscientious lawyer suffices to put a court on notice, as
it did in Holloway; and probably in the run of multiple-
representation cases nothing short of objection will raise the
specter of trouble. But sometimes a wide-awake judge will
not need any formal objection to see a risk of conflict, as the
federal habeas court’s finding in this very case shows. 74
F. Supp. 2d, at 613–615. Why, then, pretend contrary to fact

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204 MICKENS v. TAYLOR
Souter, J., dissenting
that a judge can never perceive a risk unless a lawyer points
it out? Why excuse a judge’s breach of judicial duty just
because a lawyer has fallen down in his own ethics or is short
on competence? Transforming the factually sufficient trig-
ger of a formal objection into a legal necessity for responding
to any breach of judicial duty is irrational.
Nor is that irrationality mitigated by the Government’s
effort to analogize the majority’s objection requirement to
the general rule that in the absence of plain error litigants
get no relief from error without objection. The Government
as amicus argues for making a formal objection crucial be-
cause judges are not the only ones obliged to take care for
the integrity of the system; defendants and their counsel
need inducements to help the courts with timely warnings.
Brief for United States as Amicus Curiae 9, 26–27. The
fallacy of the Government’s argument, however, has been on
the books since Wood was decided. See 450 U. S., at 265,
n. 5 (“It is unlikely that [the lawyer on whom the conflict of
interest charge focused] would concede that he had continued
improperly to act as counsel”). The objection requirement
works elsewhere because the objecting lawyer believes that
he sights an error being committed by the judge or opposing
counsel. See, e. g., United States v. Vonn, ante, at 72–73
(error in judge’s Rule 11 plea colloquy). That is hardly the
motive to depend on when the risk of error, if there is one,
is being created by the lawyer himself in acting subject to a
risk of conflict, 227 F. 3d 203, 213–217 (CA4 2000), vacated
en banc, 240 F. 3d 348 (CA4 2001). The law on conflicted
counsel has to face the fact that one of our leading cases
arose after a trial in which counsel may well have kept silent
about conflicts not out of obtuseness or inattention, but for
the sake of deliberately favoring a third party’s interest over
the clients, and this very case comes to us with reason to
suspect that Saunders suppressed his conflicts for the sake
of a second fee in a case getting public attention. While the
perceptive and conscientious lawyer (as in Holloway) needs

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205 Cite as: 535 U. S. 162 (2002)
Souter, J., dissenting
nothing more than ethical duty to induce an objection, the
venal lawyer is not apt to be reformed by a general rule that
says his client will have an easier time reversing a conviction
down the road if the lawyer calls attention to his own
venality.10
The irrationality of taxing defendants with a heavier bur-
den for silent lawyers naturally produces an equally irratio-
nal scheme of incentives operating on the judges. The
judge’s duty independent of objection, as described in Sulli-
van and Wood, is made concrete by reversal for failure to
honor it. The plain fact is that the specter of reversal for
failure to enquire into risk is an incentive to trial judges to
keep their eyes peeled for lawyers who wittingly or other-
wise play loose with loyalty to their clients and the funda-
mental guarantee of a fair trial. See Wheat, 486 U. S., at
161. Cf. Pate, supra, at 386–387 (reversal as remedy for
state trial judge’s failure to discharge duty to ensure compe-
tency to stand trial). That incentive is needed least when
defense counsel points out the risk with a formal objection,
10 The Government contends that not requiring a showing of adverse
effect in no-objection cases would “provide the defense with a disincentive
to bring conflicts to the attention of the trial court, since remaining silent
could afford a defendant with a reliable ground for reversal in the event
of conviction.” Brief for United States as Amicus Curiae 27. This argu-
ment, of course, has no force whatsoever in the case of the venal conflicted
lawyer who remains silent out of personal self-interest or the obtuse law-
yer who stays silent because he could not recognize a conflict if his own
life depended on it. And these are precisely the lawyers presenting the
danger in no-objection cases; the savvy and ethical lawyer would comply
with his professional duty to disclose conflict concerns to the court. But
even assuming the unlikely case of a savvy lawyer who recognizes a poten-
tial conflict and does not know for sure whether to object timely on that
basis as a matter of professional ethics, an objection on the record is still
the most reliable factually sufficient trigger of the judicial duty to enquire,
dereliction of which would result in a reversal, and it is therefore beyond
the realm of reasonable conjecture to suggest that such a lawyer would
forgo an objection on the chance that a court in postconviction proceedings
may find an alternative factual basis giving rise to a duty to enquire.

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206 MICKENS v. TAYLOR
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 objec-
tion on record, a convicted defendant can get no relief with-
out 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 en-
quire when on notice would be too onerous a check on trial judges, a sur-
vey 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 of-
fice 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 po-
lice commissioner); United States v. Allen, 831 F. 2d 1487, 1495–1496 (CA9
1987) (finding Magistrate Judge had reasonably enquired into joint repre-
sentation of 17 codefendants who entered a group guilty plea, but revers-
ing because the District Court failed to enquire when defense counsel later
gave the court a list “rank[ing] the defendants by their relative culpabil-
ity”). Under the majority’s rule, the defendants in each of these cases
should have proved that there was an actual conflict of interests that ad-
versely 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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explicit objection.12 In that latter case, the duty explicitly
described in Sullivan and Wood becomes just a matter of
words, devoid of sanction; it ceases to be any duty at all.
As that duty vanishes, so does the sensible regime under
which a defendant’s burden on conflict claims took account of
the opportunities to ensure against conflicted counsel in the
first place. Convicted defendants had two alternative ave-
nues to show entitlement to relief. A defendant might, first,
point to facts indicating that a judge knew or should have
known of a “ ‘particular conflict,’ ” Wood, 450 U. S., at 272,
n. 18 (quoting Sullivan, 446 U. S., at 347), before that risk
had a chance to play itself out with an adverse result. If he
could not carry the burden to show that the trial judge had
fallen down in the duty to guard against conflicts prospec-
12 Requiring a criminal defendant to prove a conflict’s adverse effect in
all no-objection cases only makes sense on the Court’s presumption that
the Sixth Amendment right against ineffective assistance of counsel is at
its core nothing more than a utilitarian right against unprofessional errors
that have detectable effects on outcome. See ante, at 166 (“[I]t also fol-
lows that defects in assistance that have no probable effect upon the trial’s
outcome do not establish a constitutional violation”). On this view, the
exception in Holloway for objection cases turns solely on the theory that
“harm” can safely be presumed when counsel objects to no avail at the
sign of danger. See ante, at 168. But this Court in Strickland v. Wash-
ington, 466 U. S. 668, 693–694 (1984), held that a specific “outcome-
determinative standard” is “not quite appropriate” and spoke instead of
the Sixth Amendment right as one against assistance of counsel that “un-
dermines the reliability of the result of the proceeding,” id., at 693, or
“confidence in the outcome,” id., at 694. And the Holloway Court said
that once a conflict objection is made and unheeded, the conviction “must
be reversed . . . even if no particular prejudice is shown and even if the
defendant was clearly guilty.” 435 U. S., at 489 (internal quotation marks
and citation omitted). What is clear from Strickland and Holloway is
that the right against ineffective assistance of counsel has as much to do
with public confidence in the professionalism of lawyers as with the results
of legal proceedings. A revelation that a trusted advocate could not place
his client’s interest above the interests of self and others in the satisfaction
of his professional responsibilities will destroy that confidence, regardless
of outcome.

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208 MICKENS v. TAYLOR
Souter, J., dissenting
tively, the defendant was required to show, from the perspec-
tive of an observer looking back after the allegedly conflicted
representation, that there was an actual conflict of interests
with an adverse effect. The first route was preventive,
meant to avoid the waste of costly after-the-fact litigation
where the risk was clear and easily avoidable by a reasonably
vigilant trial judge; the second was retrospective, with a
markedly heavier burden justified when the judiciary was
not at fault, but at least alleviated by dispensing with any
need to show prejudice. Today, the former system has been
skewed against recognizing judicial responsibility. The
judge’s duty applies only when a Holloway objection fails to
induce a resolutely obdurate judge to take action upon the
explicit complaint of a lawyer facing impossible demands.
In place of the forsaken judicial obligation, we can expect
more time-consuming post-trial litigation like this, and if this
case is any guide, the added time and expense are unlikely
to purchase much confidence in the judicial system.13
I respectfully dissent.
13 Whether adverse effect was shown was not the question accepted, and
I will not address the issue beyond noting that the case for an adverse
effect appears compelling in at least two respects. Before trial, Saunders
admittedly failed even to discuss with Mickens a trial strategy of reason-
able doubt about the forcible sex element, without which death was not a
sentencing option. App. 211–213; see also id., at 219. In that vein, Saun-
ders apparently failed to follow leads by looking for evidence that the
victim had engaged in prostitution, even though the victim’s body was
found on a mattress in an area where illicit sex was common. Id., at
202–217; Lodging to App. 397–398. There may be doubt whether these
failures were the result of incompetence or litigation strategy rather than
a conflicting duty of loyalty to the victim or to self to avoid professional
censure for failing to disclose the conflict risk to Mickens (though strategic
choice seems unlikely given that Saunders did not even raise the possibil-
ity of a consent defense as an option to be considered). But there is little
doubt as to the course of the second instance of alleged adverse effect:
Saunders knew for a fact that the victim’s mother had initiated charges of
assault and battery against her son just before he died because Saunders
had been appointed to defend him on those very charges, id., at 390 and

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209 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 rep-
resent him as his counsel a lawyer who, at the time of the
murder, was representing the very person Mickens was ac-
cused 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 pre-
viously used: By appointing this lawyer to represent Mick-
ens, the Commonwealth created a “structural defect affect-
ing 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 prece-
dents involve the significance of a trial judge’s “failure to
inquire” if that judge “knew or should have known” of a “po-
tential” conflict. The majority and dissenting opinions dis-
pute 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 coher-
ent framework for dealing with those cases at all), I am con-
vinced 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 rebut-
ted, and there is no apparent explanation for his failure to offer the rebut-
tal 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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210 MICKENS v. TAYLOR
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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 oc-
curred in a capital murder case. In a capital case, the evi-
dence submitted by both sides regarding the victim’s charac-
ter 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 wit-
nesses 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 diffi-
culty of proving actual prejudice, and the significant likeli-
hood that it will nonetheless occur when the same lawyer
represents both accused killer and victim, the cost of litigat-
ing the existence of actual prejudice in a particular case can-
not be easily justified. Cf. United States v. Cronic, 466 U. S.
648, 657–658 (1984) (explaining the need for categorical ap-
proach 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 incom-
patible 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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211 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’ al-
leged victim in a criminal case.
This kind of breakdown in the criminal justice system cre-
ates, at a minimum, the appearance that the proceeding will
not “ ‘reliably serve its function as a vehicle for determina-
tion of guilt or innocence,’ ” and the resulting “ ‘criminal pun-
ishment’ ” 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 cli-
ent.” Brief for Respondent 34. And that is so. The “vis-
ceral impact,” however, arises out of the obvious, unusual
nature of the conflict. It arises from the fact that the Com-
monwealth seeks to execute a defendant, having provided
that defendant with a lawyer who, only yesterday, repre-
sented the victim. In my view, to carry out a death sen-
tence 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.