Beets v. Collins ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 91-4606
_______________________
BETTY LOU BEETS,
Petitioner-Appellee,
versus
WAYNE SCOTT, Director Texas
Department of Criminal Justice,
Institutional Division,
Respondent-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
(September 22, 1995)
Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM,
DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, and
DeMOSS, Circuit Judges.*
EDITH H. JONES, Circuit Judge:
The issue that provoked en banc rehearing of this capital
murder case is whether a habeas corpus petitioner was deprived of
her Sixth Amendment right to effective assistance of counsel
because her attorney committed arguable ethical violations when he
obtained a contract for media rights to her story and failed to
withdraw and testify as a defense witness. More precisely, the
* Judges Stewart and Benavides were not members of the Court when
this case was argued and have elected not to participate. Judge Parker is
recused.
court has divided over the issue whether these facts should be
measured by the Strickland standard for an attorney's deficient
performance1 or by the Cuyler standard adopted for the special case
of attorney conflicts in cases of multiple client representation.2
On reconsideration, we approve Judge Higginbotham's analysis in a
concurrence to the panel opinion that Strickland more
appropriately gauges an attorney's conflict of interest that
springs not from multiple client representation but from a conflict
between the attorney's personal interest and that of his client.
Judged under Strickland, the attorney's actions in this case were
neither deficient nor prejudicial. Alternatively, however, even if
the Cuyler standard applies, we find that only a potential and not
an actual conflict arose between Beets and her lawyer. On either
ground, the writ must be denied.3
Because our analysis of the Sixth Amendment issue depends
upon a thorough recapitulation of the history of the case, the
background is described with more than usual detail.
I. BACKGROUND
A. Summary of Proceedings
On October 11, 1985, petitioner Betty Lou Beets (Beets)
was convicted of the capital murder of her fifth husband, Jimmy Don
1. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984).
2. Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 233
(1980).
3. The other issues dealt with in the panel opinion were not reheard
by the court en banc and their disposition is approved.
2
Beets (Jimmy Don). She was sentenced to death. Beets appealed
unsuccessfully to the Texas Court of Criminal Appeals, see Beets v.
State, 767 S.W.2d 711 (Tex. Crim. App. 1988), cert denied, 492 U.S.
912, 109 S. Ct. 3272, 106 L. Ed. 2d 579 (1989). Her request for a
state writ of habeas corpus having been denied, Beets sought
similar relief in federal court. 28 U.S.C. § 2254. The district
court granted the writ on finding that Beets's defense counsel at
trial was a material witness who should have resigned to testify
rather than represent her. On appeal, this court rejected Beets's
claims that her attorney labored under an actual conflict of
interest stemming from either his status as a witness or the media
rights contract. The panel majority applied the Cuyler standard to
the case and, while Judge Higginbotham agreed with the conclusion
of no actual conflict, he maintained in a separate opinion that
Strickland should be applied instead.
B. The Murder Case
Beets's fifth husband, Jimmy Don, disappeared on
August 6, 1983. See Beets v. State, 767 S.W.2d 711 (Tex. Crim.
App. 1988) (lengthy recitation of the evidence). His fishing boat
was found drifting on Lake Athens, Texas, suggesting that he had
drowned.4 More than a year later, a house that was Jimmy Don's
separate property before his death was destroyed by fire. When the
insurer, suspecting arson, refused Beets's claim for the loss,
4. Beets's son, Robbie, admitted at trial that he had set the boat
adrift to give the appearance that Jimmy Don had fallen overboard. Jimmy
Don's heart pills had been spilled on the floor of the boat to make his
disappearance seem accidental.
3
Beets sought the counsel of E. Ray Andrews, an attorney who had
represented Beets since 1981 or '82. During their discussions, it
was decided that Andrews would pursue any of Jimmy Don's insurance
or pension benefits to which Beets might be entitled.
Beets and Andrews entered into a contingent fee
arrangement covering these matters. Andrews preliminarily
determined that certain benefits existed and then sought the
assistance of two attorneys more experienced in collecting such
benefits. Andrews arranged a meeting in his office with Beets and
Randell Roberts, one of the other attorneys. Roberts agreed to
associate his firm in the matter. Roberts's brother, attorney
Bruce Roberts, eventually took over responsibility for Beets's
claims. Through his efforts, Jimmy Don's former employer, the City
of Dallas Fire Department, agreed to provide benefits to Beets.
Before Beets received the first check from the Fire
Department, she was arrested on June 8, 1985, and was charged with
the capital murder of Jimmy Don. Beets was charged with shooting
and killing her husband and, with the assistance of her son, Robbie
Branson, burying him in a sleeping bag under a planter in her front
yard.5 The body of Beets's fourth husband, Doyle Wayne Barker, was
also found in a sleeping bag buried in the back yard underneath a
patio upon which a storage shed had been erected. Beets had also
shot another former husband, Bill Lane, although he survived.
5. The planter was also described as a "wishing-well." Beets v.
State, 767 S.W. at 739.
4
Andrews, described by the federal district judge as a
"competent and tenacious criminal defense lawyer," agreed to
represent Beets on the capital murder charge. The case generated
significant local and national media interest. On October 8, just
after Beets's trial commenced, she signed a contract transferring
all literary and media rights in her case to Andrews's son.
Andrews testified at the federal habeas hearing that this contract
was signed after negotiations fell through to obtain his fee from
Beets's children. The media rights contract later apparently
became the subject of a State Bar grievance proceeding, but Andrews
was not disciplined for it.
The trial judge did not become aware of the media rights
contract during trial, although he learned of it three months later
during a hearing on Beets's motion to appoint counsel for appeal
when the prosecutor asked Beets if she had signed over the book
rights to her case to Andrews's son. The judge did not inquire
whether Beets was willing to waive her Sixth Amendment right to
conflict-free counsel.
Beets was convicted of murder for remuneration and the
promise of remuneration on the theory that she killed her husband
in order to obtain his insurance and pension benefits and his
estate. See Tex. Penal Code Ann. § 19.03(a)(3) (Vernon Supp.
1991). The Texas Court of Criminal Appeals later held that "a
person commits a murder for remuneration . . . where the actor
kills a victim in order to receive a benefit or financial
settlement paid upon the death of the victim, such as proceeds of
5
insurance and retirement benefits as in the present case." Beets
v. State, 767 S.W.2d at 737. In other words, the state was
required to show that Beets had the specific intent to receive
remuneration in the form of insurance or pension benefits or other
property upon the death of Jimmy Don.
Andrews defended Beets primarily on the ground that her
son Robbie actually murdered Jimmy Don and, second, by disputing
that the murder was for remuneration. Andrews, his co-counsel
Hargrave, the Texas Court of Criminal Appeals and the federal
district court all concur that this was the order of Andrews's
strategy. It was a good strategy, as the federal district judge
explained:
The court has carefully reviewed the record. It is
apparent that the defense counsel, E. Ray Andrews, fought
for his client to the full extent of his ability and
energy. This case was vigorously prosecuted and
vigorously defended before a careful and learned trial
judge. Andrews put forth the only evidence available to
him that had evidence that a jury could conclude had
scientific corroboration -- the results of the pathology
report which raised the issue of an altercation and head
injury unrelated to the gun shot. Such evidence, if
believed, would be consistent with the defense position
that Jimmy Don Beets was killed by petitioner's son,
Robert F. Branson, II.
Andrews strenuously cross-examined Robbie Branson, one of
Beets's children, who was at the time of the offense a teenager
living with her and Jimmy Don. Several times, he had quarrelled
heatedly with his stepfather, and he had damaged some of Jimmy
Don's property and taken money from him. Robbie had a criminal
record for burglary and was accused of trying to pass stolen
checks. Although Robbie denied killing his stepfather, Beets
6
testified that Robbie and Jimmy Don fought on the night of the
murder and, when she was in another room, she heard a shot fired in
the bedroom. She found Jimmy Don dead on the floor. Beets said
she helped Robbie dispose of the body. Together, they planned the
boating accident ruse, and Beets went off to shop in Dallas with
her daughter the next day.
Beets denied being the murderer. She said she loved
Jimmy Don and he had treated her well.
Supporting the theory that Robbie committed the murder,
the forensic pathologist, Dr. Petty, testified that Jimmy Don's
fractured cheek bone, otherwise unexplainable by his head wound
from the pistol, could have been inflicted in a fight with another
man.
Critical to the success of the non-triggerperson defense
was Beets's motion in limine to prevent the state from introducing
evidence of Barker's body, which had been dug up at the same time
as Jimmy Don's. The state trial judge initially granted this
motion but changed his mind near the end of trial. This change
made it possible for Beets's daughter Shirley Stegner to testify
for the State that Beets had killed Barker in 1981 and obtained
Shirley's help in burying him in the back yard.6 Shirley was
vulnerable as a witness because of her own criminal exposure in
Barker's murder and her unsavory personal background. Andrews made
the most of her impeachment. Nevertheless, the evidence of
6. The introduction of this evidence was upheld by the state
appellate court. Beets v. State, 767 S.W.2d 737-41.
7
Barker's violent death was devastating to the defense, as Andrews
and Hargrave both acknowledged at the federal habeas hearing.
Shirley Stegner's testimony about her mother's motive for
killing Barker also enhanced the state's proof of motive in Jimmy
Don's case. Shirley testified that her mother told her that
"she was going to kill Doyle Wayne Barker" because "she
couldn't put up with any more of him beating her and that
she didn't want him around anymore."
Her mother also told her that
"the trailer [house] was in his name and she was just a
co-signer on it and that if they were to get a divorce,
that he would end up with the trailer [house]."
Beets v. State, 767 S.W.2d at 718.
The State adduced other evidence of Beets's attempts to
enrich herself at the expense of Jimmy Don's life or his estate.
Less than six months before he died, Betty Lou applied to J.C.
Penney for a $10,000 life insurance policy in Jimmy Don's name,
which she forged on the application. She directed all further
correspondence on the policy to a daughter's home address.
Coincidentally, a relative of her husband was then employed at J.C.
Penney's and noticed some discrepancies on the paperwork, which she
brought to Jimmy Don's attention. He promptly cancelled the
policy.
After Jimmy Don's disappearance, Beets forged his
signature on the title certificate of the boat, which had been his
separate property, and sold it for $3,250. She also tried to sell
a house that had been his separate property. As has been related,
8
the house mysteriously burned down, so she sought out Andrews to
collect the fire insurance benefits.
Also important to the State was the testimony of Denny
Burris, a chaplain with the City of Dallas Fire Department. Burris
met with Beets several times during the first few weeks after Jimmy
Don was reported missing:
Burris testified that [Beets] made inquiry of him whether
she was covered by any insurance policies that [Jimmy
Don] might have had with the City of Dallas, as well as
inquiring whether she would be entitled to receive any
pension benefits that [Jimmy Don] might have accumulated.
[Beets] did not profess to Burris that she had any
specific knowledge of either insurance coverage on [Jimmy
Don]'s life or any pension benefits [Jimmy Don] might
have accumulated. Burris told her that he did not know
but would check into the matter and report back to her.
Burris did check and learned that [Jimmy Don]'s life was
insured with the total amount of insurance being
approximately $110,000. He also learned that [Beets]
would be entitled to receive approximately $1,200 each
month from [Jimmy Don]'s pension benefits. Burris
advised [Beets] of his findings, and also told her that
according to the City Attorney of Dallas that because
[Jimmy Don]'s body had not been recovered there would be
a seven year waiting period before any payment of
insurance proceeds could occur.
Beets v. State, 767 S.W.2d at 716-17. Burris's testimony implied
that right after Jimmy Don's disappearance, the "bereaved" wife was
inquiring about his death benefits. This testimony could be taken
by the jury to mean that she was already greedy or truly ignorant
about them at that time. In any event, Beets had to assume from
Burris's information that she must wait several years before
collecting them.
Andrews's strategy to negate the specific intent element
of the capital crime was to introduce Beets's testimony that she
was unaware of any potential insurance or pension benefits
9
available to her at the time she approached Andrews, eighteen
months after Jimmy Don's "disappearance," for assistance in
pursuing her fire damage claim. Beets testified that Andrews
suggested that she should pursue Jimmy Don's life insurance or
pension benefits but that she never felt entitled to them.
Bruce Roberts testified as part of the strategy that
Beets seemed interested in no other insurance claims than that
pertaining to the burned house. Beets brought Roberts what looked
like part of an insurance policy, and she mentioned pension
benefits, but she gave Roberts no other information helpful to
pursuing the claims. To Roberts, Beets appeared not to know
anything about the amount or nature of any death benefits to which
she might be entitled. Roberts confirmed that she never received
any money on her claims.
In closing argument, Andrews informed the jury that it
was his idea to pursue Jimmy Don's benefits for Beets. His
statement was not objected to.
The jury disbelieved Beets's non-triggerperson defense
and her denial of a pecuniary motive and so convicted her of
capital murder. The state court of criminal appeals affirmed.
C. Post-Conviction Proceedings
In the state habeas corpus proceedings, Beets,
represented by new counsel, filed a voluminous petition but raised
her Sixth Amendment conflict-of-interest claim only as to Andrews's
media rights contract -- and without mentioning Andrews's status as
a witness -- as claim number 34(h) on page 70 of her pleading.
10
Andrews filed an affidavit that the media rights contract did not
adversely affect his representation of Beets. The trial court,
agreeing with Andrews, stated:
(4) As to Petitioner's ineffective counsel claim,
the Court finds from personal recollection of the trial
that this case was hotly contested by Petitioner's trial
counsel and that Petitioner was vigorously defended at
every stage of the trial proceedings by her counsel.
Petitioner's grant of "book rights" to the son of her
counsel had no effect on the strategy of defense counsel.
Counsel for Petitioner made an adequate factual
investigation of the case.
The conduct of Petitioner's counsel at trial date
did not so undermine the proper functioning of the
adversarial process that the trial cannot be relied on as
having produced a just result.
The conduct of petitioner's counsel during trial was
not deficient and he presented all evidence then existing
to support the defense of his client.
The court's denial of relief was affirmed by the Texas Court of
Criminal Appeals.
Beets's federal habeas petition alleged, among many other
issues, that Andrews's failure to withdraw and offer direct
testimony that Beets was ignorant of potential death benefits
constituted an actual conflict of interest with his client. Beets
further alleged that the media rights contract gave rise to a
separate conflict of interest.
The district court, after holding an evidentiary
hearing,7 decided that Andrews's failure to withdraw and testify
7. It is not clear that Beets was actually entitled to an evidentiary
hearing. If Beets's case arose today it is even more doubtful that she would
have been so entitled under the cause-and-prejudice standard announced in
Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 118 L. Ed. 2d 318 (1992).
Under Keeney, Beets would be entitled to an evidentiary hearing only if she
could "show cause for [her] failure to develop the facts in state-court
proceedings and actual prejudice resulting from that failure." Id. at 11, 112
11
resulted in an actual conflict of interest that adversely affected
his representation of Beets. Granting the writ of habeas corpus on
this basis, the court found:
Andrews obviously should have known of his dual status as
witness and advocate prior to trial. Andrews' dual
status should have also been apparent to both the judge
and district attorney as the trial unfolded. The Court
is persuaded that the conflict never occurred to any of
the participants. The testimony that Andrews could have
provided as an independent witness related to an
essential element of the State's charge of murder for
remuneration.
The court also concluded that the media rights contract, factually
intertwined with the failure to withdraw conflict, constituted a
separate conflict of interest, but he expressly found that it did
not adversely affect Andrews's performance. In reaching his
decision on the Sixth Amendment issue, the district court applied
the test set out in Cuyler v. Sullivan, supra n.2.
II. DISCUSSION
Risen from obscurity in her state habeas petition to the
dispositive issue in federal district court are Beets's complaints
that her lawyer's ethical violations, breaches of the duty of
loyalty to his client, violated the Sixth Amendment. No doubt
Beets's constitutional right to effective counsel demands diligent
protection. The primary question before us, however, is the
applicable standard of protection.
S.Ct. at 1721. Moreover, Beets's failure to develop her claims in state court
would be excused and a hearing mandated only if she could "show that a
fundamental miscarriage of justice would result from failure to hold a federal
evidentiary hearing." Id.; cf. McCleskey v. Zant, 499 U.S. 467, 495, 111
S. Ct. 1454, 1470, 113 L. Ed. 2d 517 (1991); Murray v. Carrier, 477 U.S. 478,
496, 106 S. Ct. 2639, 2649-50, 91 L. Ed. 2d 397 (1986).
12
The Supreme Court has determined that in most Sixth
Amendment ineffectiveness cases, the defendant must show that
counsel's errors fell below an objective standard of reasonableness
and prejudiced his case, which ordinarily means establishing a
reasonable probability that counsel's errors changed the result of
the proceeding. Strickland, 466 U.S. at 686, 694, 104 S. Ct. at
2064, 2067. In some cases, however, prejudice is presumed if the
defendant shows that an actual conflict of interest adversely
affected his lawyer's performance. Cuyler, 446 U.S. at 348, 100
S.Ct. at 1718. The precise nature of Cuyler's "actual conflict"
and "adverse effect" elements is rather vague, but the Cuyler test
sets a lower threshold for reversal of a criminal conviction than
does Strickland. The Supreme Court explained the reason for this
distinction as follows:
One type of actual ineffectiveness claim warrants a
similar, though more limited, presumption of prejudice
[than a case in which the defendant effectively had no
counsel]. In Cuyler v. Sullivan, 446 U.S., at 345-350,
100 S.Ct., at 1716-1719, the Court held that prejudice is
presumed when counsel is burdened by an actual conflict
of interest. In those circumstances, counsel breaches
the duty of loyalty, perhaps the most basic of counsel's
duties. Moreover, it is difficult to measure the precise
effect on the defense of representation corrupted by
conflicting interests. Given the obligation of counsel
to avoid conflicts of interest and the ability of trial
courts to make early inquiry in certain situations likely
to give rise to conflicts, see, e.g., Fed. R. Crim. Proc.
44(c), it is reasonable for the criminal justice system
to maintain a fairly rigid rule of presumed prejudice for
conflicts of interest. Even so, the rule is not quite
the per se rule of prejudice that exists for the Sixth
Amendment claims mentioned above. Prejudice is presumed
only if the defendant demonstrates that counsel "actively
represented conflicting interests" and that "an actual
conflict of interest adversely affected his lawyer's
performance." Cuyler v. Sullivan, supra, 446 U.S., at
350, 348, 100 S. Ct., at 1719, 1718 (footnote omitted).
13
Strickland, 466 U.S. at 692, 104 S.Ct. at 2067.
The position adopted by this court en banc may be easily
summarized. Strickland offers a superior framework for addressing
attorney conflicts outside the multiple or serial client context.8
First, Cuyler, like all the other Supreme Court cases that have
discussed a lawyer's conflict of interest, solely concerned the
representation of multiple clients. The Supreme Court has not
expanded Cuyler's presumed prejudice standard beyond cases
involving multiple representation. Although lower courts have
generally extended Cuyler to "duty of loyalty" cases, their
decisions have not grappled with the difficulties inherent in that
position, and their reasoning has been inconsistent. See note 10,
infra. Second, the demands and reasoning of legal ethics militate
against treating multiple representation cases like those in which
the lawyer's self-interest is pitted against the duty of loyalty to
his client.9 Finally, applying Cuyler in cases arising from a
lawyer's conflict of interest between himself and his client
ultimately undermines the uniformity and simplicity of Strickland.
Each of these propositions will be discussed.
8. Cuyler has been routinely applied to cases in which an alleged
attorney conflict resulted from serial representation of criminal defendants
as well as simultaneous multiple representation. See, e.g., Burger v. Kemp,
483 U.S. 776, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987). For convenience, we
denominate both of these situations as "multiple representation."
9. See Garcia v. Bunnell, 33 F.3d 1193, 1198 n.4 (9th Cir. 1994),
cert. denied, 115 S. Ct. 1374, 131 L. Ed. 2d 229 (1995) ("It is not logically
necessary that the approach of these [multiple representation] cases also
apply to conflicts between a defendant's and the attorney's own personal
interests").
14
A. Cuyler and Related Supreme Court Cases
Although the federal circuit courts have unblinkingly
applied Cuyler's "actual conflict" and "adverse effect" standards
to all kinds of alleged attorney ethical conflicts,10 a careful
reading of the Supreme Court cases belies this expansiveness.
Neither Cuyler nor its progeny strayed beyond the ethical problems
of multiple representation. One cannot read Cuyler to analyze
conflicts of interest in a context broader than that of multiple
client representation. The case came to the Supreme Court raising
10. See, e.g., United States v. Hanoum, 33 F.3d 1128, 1130-32 (9th
Cir. 1994), cert. denied, 115 S. Ct. 1702 (1995) (appeal dismissed without
prejudice to bring again with more facts supporting allegation that attorney
was having sex with defendant's wife and therefore had incentive to make sure
defendant was found guilty); Winkler v. Keane, 7 F.3d 304, 307-10 (2nd Cir.
1993), cert. denied, 114 S. Ct. 1407, 128 L. Ed. 2d 79 (1994) (no adverse effect
found in criminal defense contingency fee arrangement); United States v.
Sayan, 968 F.2d 55, 64-65 (D.C. Cir. 1992) (no actual conflict when attorney
who was appointed one week before trial failed to request a continuance
allegedly because he was afraid of adverse consequences to him and his firm if
he filed such a motion); United States v. Michaud, 925 F.2d 37, 40-42 (1st
Cir. 1991) (no Sixth Amendment violation when defense attorney in tax case
taught classes to IRS agents on how to detect tax fraud); United States v.
Salerno, 868 F.2d 524, 540-41 (2nd Cir.), cert. denied, 493 U.S. 811, 110
S. Ct. 586, 27 L. Ed. 2d 25 (1989) (no actual conflict or adverse effect when
attorney and his firm were being investigated by the government and were
allegedly unusually cooperative with the government in defendant's case);
United States v. Horton, 845 F.2d 1414, 1418-21 (7th Cir. 1988) (no actual
conflict and no adverse effect when attorney was "serious" candidate for U.S.
Attorney during his representation of the defendant); United States v. McLain,
823 F.2d 1457, 1463-64 (11th Cir. 1987) (found both actual conflict and
adverse effect when lawyer was going to be indicted on unrelated matter at
conclusion of case; lawyer had incentive to delay proceedings and evidenced
poor effort in plea negotiations); Zamora v. Dugger, 834 F.2d 956, 960-61
(11th Cir. 1987) (no actual conflict and no adverse effect on allegation that
attorney was more interested in publicity than obtaining an acquittal); United
States v. Ellison, 798 F.2d 1102, 1106-09 (7th Cir. 1986), cert. denied, 479
U.S. 1038, 107 S. Ct. 893, 93 L. Ed. 2d 845 (1987) (found both actual conflict
and adverse effect when lawyer "testified" against defendant in a Rule 32
hearing fending off allegations by defendant which would constitute
malpractice); United States v. Andrews, 790 F.2d 803, 810-11 (10th Cir. 1986),
cert. denied, 481 U.S. 1018, 107 S. Ct. 1898, 95 L. Ed. 2d 505 (1987) (no actual
conflict and no adverse effect when court refused to allow attorney to
withdraw from representation and start medical school); Roach v. Martin, 757
F.2d 1463, 1479-80 (4th Cir.), cert. denied, 474 U.S. 865, 106 S. Ct. 185, 88
L. Ed. 2d 154 (1985) (no actual conflict when attorney was being investigated by
state bar while representing defendant).
15
two issues left open by a previous multiple representation case:
whether a trial judge must sua sponte inquire into the propriety of
multiple representation, and "whether the mere possibility of a
conflict of interest warrants the conclusion that the defendant was
deprived of his right to counsel." Cuyler, 446 U.S. at 343, 100
S.Ct. at 1716. In stating its Sixth Amendment standard that has
been quoted above, the Court said:
Glasser established that unconstitutional multiple
representation is never harmless error. Once the Court
concluded that Glasser's lawyer had an actual conflict of
interest, it refused "to indulge in nice calculations as
to the amount of prejudice" attributable to the conflict.
The conflict itself demonstrated a denial of the "right
to have the effective assistance of counsel." Thus, 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. But
until a defendant shows that his counsel actively
represented conflicting interests, he has not established
the constitutional predicate for his claim of ineffective
assistance.
Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1719 (citations and
footnote omitted). While some sentences in this paragraph do not
refer explicitly to multiple representation, they must be read in
the context of the first and last sentences of the paragraph, which
do. In particular, the last sentence, which actually states the
standard, requires that counsel have "actively represented"
conflicting interests, not that he have "actively been in a
conflict situation." Further, the two cases cited as authority in
this section, Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457
(1942), and Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173
(1978), were multiple representation cases, and the footnote at the
end of the paragraph cites a law review article about multiple
16
representation: Comment, Conflict of Interests in Multiple
Representation of Criminal Co-Defendants, 68 J. Crim. L. &
Criminology 226, 231-32 (1977).
Justice Marshall's separate opinion in Cuyler, written to
challenge the adverse effect prong of the test, endeavors to define
"conflict of interests." 446 U.S. at 355 n.3, 100 S. Ct. at 1722
n.3 (Marshall, J., concurring in part and dissenting in part). In
each of the ethics codes to which he refers, Justice Marshall cites
only the canon or rule dealing with multiple client representation.
Four later Supreme Court cases have clarified the scope
of Cuyler. In the first, Wood v. Georgia, 450 U.S. 261, 101 S. Ct.
1097 (1981), three employees of an adult movie theater were
prosecuted for distributing obscenity. The theater paid for their
representation and also agreed to pay their fines. When the
theater broke its promise and did not pay, the employees' probation
was revoked and the employees were incarcerated. The Supreme Court
granted certiorari to examine whether a state could imprison a
probationer for not paying a fine, but after viewing the record,
the Court remanded the case for consideration of a possible
conflict of interest.11 Id. at 273-74, 101 S.Ct. at 1104.
In Wood, the Court was troubled by the lawyer's apparent
decision to undertake a strategy that benefitted the theater at the
expense of the employees. The opinion noted that "their [the
11. Wood was technically decided under the due process clause rather
than the Sixth Amendment, because only the former provision sets
constitutional bounds on parole revocation hearings. The Court analogized
appellants' rights in Wood to those in Cuyler, however.
17
employees'] counsel has acted as the agent of the employer," id. at
267, 101 S.Ct. at 1101; charged "that the employer and petitioners'
attorney were seeking to create a test case," id.; and concluded
its conflict discussion by noting that "if petitioners' counsel was
serving the employer's interest in setting a precedent, this
conflict in goals may well have influenced the decision of the
trial court . . . ." Id. at 268, 101 S.Ct. at 1102. While the
opinion does not say whether the lawyer formally represented the
theater or not, the lawyer was at least in the functional
equivalent of a joint representation. "[P]etitioners were
represented by their employer's lawyer, who may not have pursued
their interests single-mindedly." Id. at 271-72, 101 S.Ct. at
1103. Both the theater and the employees expected him to advance
their interests, yet to serve one might require him to fail the
others, while doing nothing could harm both.
The second case, Nix v. Whiteside, 475 U.S. 157, 106
S. Ct. 988 (1986) placed an outer bound on Cuyler. Whiteside's
counsel conditioned his representation on Whiteside's not
committing perjury. Id. at 161, 106 S.Ct. at 991. The Court held
that a "conflict" between a lawyer's ethical obligation not to aid
perjury and a client's desire to commit perjury "is not remotely
the kind of conflict of interests dealt with in Cuyler v.
Sullivan." Id. at 176, 106 S.Ct. at 999. It noted that "[i]f a
'conflict' between a client's proposal and counsel's ethical
obligation gives rise to a presumption that counsel's assistance
was prejudicially ineffective, every guilty criminal's conviction
18
would be suspect if the defendant had sought to obtain an acquittal
by illegal means." Id.
The third case, Strickland v. Washington, supra,
addressed Cuyler while defining how much prejudice a defendant must
show in the usual ineffectiveness case. The Court stated that
Cuyler "is not quite" a "per se rule of prejudice," and that
"[p]rejudice is presumed only if the defendant demonstrates that
counsel 'actively represented conflicting interests' and that 'an
actual conflict of interest adversely affected his lawyer's
performance.'" 446 U.S. at 692, 104 S. Ct. at 2067 (quoting Cuyler,
446 U.S. at 350, 348, 100 S. Ct. at 1719, 1718). The language
Strickland excerpted from Cuyler comes directly from the passage
reproduced earlier, in which the Court discussed a lawyer who
"actively represented" multiple parties.
Contrary to Beets's argument, Strickland did not say that
prejudice is presumed whenever counsel breaches the duty of
loyalty. See Beets, 986 F.2d at 1493 (Higginbotham, J.,
concurring). Strickland mentioned the duty of loyalty to
underscore the general significance of conflicts of interest. 446
U.S. at 692, 104 S. Ct. at 2067. To define when that problem
becomes serious enough to attain constitutional import, or, put
differently, when it triggers the "not quite per se rule of
prejudice," the Court quoted a section of Cuyler discussing
multiple representations. Id.
The last case in this series is Burger v. Kemp, 483 U.S.
776, 107 S. Ct. 3114 (1987), in which the Court applied the Cuyler
19
analysis to determine whether a habeas corpus petitioner's case had
been adversely affected by an "actual conflict" arising out of his
attorney's having participated with a law partner in the defense of
a co-defendant. Both men had been charged with capital murder, and
each defendant contended that he had less responsibility and was
less culpable than his co-defendant. Nevertheless, the Court found
no actual conflict and no adverse effect of the assumed multiple
representation on Burger's defense. Burger reinforces the notion
that not every potential conflict, even in multiple representation
cases, is an "actual" one for Sixth Amendment purposes.
In sum, the Supreme Court has not expanded Cuyler to
reach the ethical violations alleged in Beets's case. Cuyler, a
multiple representation case, restated a rule developed in multiple
representation cases. Nix declined to extend that rule to all
conflicts between client and lawyer. Wood simply recognized that
some third-party fee arrangements can develop into the functional
equivalent of multiple representation. Strickland cited Cuyler's
language dealing with the impact of multiple representation.
Several Justices have acknowledged this apparent limitation of
Cuyler. See Illinois v. Washington, 469 U.S. 1181, 105 S. Ct. 442
(1984) (White, J., dissenting from denial of certiorari).12 To this
12. Justice White's opinion, joined by Justices Burger and Rehnquist,
pointed out the conflict in the resolution of this issue between the Illinois
Supreme Court, Illinois v. Washington, 101 Ill. 2d 104, 461 N.E.2d 393 (1984)
(holding that Cuyler's conflict of interest standard is limited to the
multiple representation context), and numerous federal courts. See, e.g.,
Westbrook v. Zant, 704 F.2d 1487, 1498-99 (11th Cir. 1983), overruled on other
grounds, Peek v. Kemp, 784 F.2d 1479, 1494 (11th Cir. 1986) (Cuyler not
limited to the multiple representation context); United States v. Harris, 701
F.2d 1095, 1099 (4th Cir.), cert. denied, 463 U.S. 1214, 103 S. Ct. 3554, 77
L. Ed. 2d 1400 (1983); United States v. Knight, 680 F.2d 470, 471 (6th Cir.
20
day, however, the uncertainty remains.13 The dissent shares this
uncertainty, arguing on one hand that Cuyler is not limited to
multiple or serial representation cases but acknowledging that it
should not apply to most breaches of legal ethics.
B. Whether Cuyler Should Apply to Conflicts
Between an Attorney's Personal Interest
and his Client's Interest
The Sixth Amendment assures defendants of legal counsel
whose reasonably effective assistance permits a fair trial.
Strickland, 466 U.S. 668, 104 S. Ct. 2052 (1984); Nix v. Whiteside,
475 U.S. 157, 106 S. Ct. 988 (1986). In the absence of controlling
authority, we must decide whether, when a lawyer places his self-
interest above that of the client, the resulting conflict deserves
Cuyler's "not quite per se" rule of prejudice or Strickland's more
deferential standard of attorney competence. Which of these
standards better promotes a fair trial?
Those who seek to apply the Cuyler standard will argue
that the attorney's duty of loyalty to the client is of fundamental
importance. E.g., Strickland, 466 U.S. at 692, 104 S.Ct. at 2067.
Compromise that loyalty, and the attorney has negated the
1982) (per curiam), cert. denied, 459 U.S. 1102, 103 S. Ct. 723, 74 L. Ed. 2d 950
(1983); Ware v. King, 694 F.2d 89, 92 (5th Cir. 1982) (per curiam), cert.
denied, 461 U.S. 930, 103 S. Ct. 2092, 77 L. Ed. 2d 302 (1983); Alexander v.
Housewright, 667 F.2d 556, 558 (8th Cir. 1981); United States v. Hearst, 638
F.2d 1190, 1193 (9th Cir.), cert. denied, 451 U.S. 938, 101 S. Ct. 2018, 68
L. Ed. 2d 325 (1981).
13. See United States ex rel. Duncan v. O'Leary, 806 F.2d 1307, 1312
(7th Cir. 1986), cert. denied, 481 U.S. 1041, 107 S. Ct. 1982, 95 L. Ed. 2d 822
(1987) ("The precise scope of the category of claims to which the Cuyler
standard applies has not been definitively stated by the Supreme Court");
Hayes v. Lockhart, 766 F.2d 1247, 1250 (8th Cir.), cert. denied, 474 U.S. 922,
106 S. Ct. 256, 88 L. Ed. 2d 263 (1985) ("'[T]here is no litmus test to determine
whether an actual conflict exists'") (citation omitted).
21
assumption underlying Strickland's deferential approach to
reasonable professional conduct, which is that the attorney has the
best interests of the client at heart. In order to satisfy the
Sixth Amendment, any breach of the duty of loyalty must meet the
severe standard of "not quite per se" prejudice.
That position has some appeal, but in our view, it
oversimplifies legal ethics and would obscure Sixth Amendment
doctrine. Not all conflicts of interest that affect the attorney's
"duty of loyalty" have the same consequences, and they are not all
suited to Cuyler's stringent rule.14 Even the dissent does not
advocate applying the Cuyler rule to all breaches of the duty of
loyalty. The dissent contents itself with arguing that a media
rights contract and a few other breaches have a "highly
particularized and focused source" that justified application of
Cuyler.15
14. See Johnston v. Mizell, 912 F.2d 172, 177 (7th Cir. 1990), cert.
denied, 498 U.S. 1094, 111 S. Ct. 982 (1991) ("Cuyler presumption of prejudice
cannot be applied blindly to every ineffective assistance of counsel claim
involving a conflict of interest"); Williams v. Calderon, 52 F.3d 1465, 1473,
1995 WL 150857 at *5 (9th Cir. 1995) (Cuyler does not extend to defendant's
claim that pro bono attorney was burdened with impermissible conflict under
Cuyler because payment for additional investigative and psychiatric services
would have had to come out of lawyer's own pocket); United States v. Zackson,
6 F.3d 911, 919-22 (2nd Cir. 1993) (Strickland, and not Cuyler, is the
appropriate test when defendant alleged counsel's busy schedule created
conflict in his representation of the case; this is not the kind of conflict
subject to Cuyler rule).
Indeed, prior to Cuyler, a significant majority of the circuits
precluded habeas relief absent a showing of prejudice arising from a conflict
between the interests of the defendant and his attorney. See Gregory S.
Sarno, Annotation, Circumstances Giving Rise to Prejudicial Conflict of
Interests Between Criminal Defendant and Defense Counsel, 53 A.L.R. Fed. 409,
§ 3 (1981) (Second, Third, Fourth, Sixth, Seventh, and Ninth Circuits required
prejudice whereas the Fifth, Eighth, and D.C. Circuits did not).
15. The dissent's "rule" reserves Cuyler at least for attorney-client
conflicts based on media rights contracts, contingent fee arrangements and
conflicts arising from an attorney's involvement in criminal conduct with his
22
1. The scope of the "duty of loyalty" is ambiguous.
Founding constitutional doctrine on the lawyer's "duty of
loyalty" is an enterprise set in shifting sand. The term "duty of
loyalty," narrowly defined, refers to an attorney's responsibility
to place his client's interest ahead of his own interest or, in the
case of multiple representation, not to sacrifice one client's
interest for the other's. See, e.g., ABA Annotated Model Rules of
Professional Conduct, Rule 1.7 cmt. (1992). But even on this
level, legal ethics rules generally distinguish between the duty of
loyalty as measured against an attorney's self-interest and cases
of multiple representation. More troublesome, the boundaries of
the duty of loyalty are elastic; they potentially subsume or
overlap a number of other ethical responsibilities to the client.
Taking the narrow sense of the duty of loyalty, the
canons and rules of ethics treat separately conflicts arising from
the attorney's self-interest and those involving multiple client
representation. See, e.g., ABA Annotated Model Rules of
Professional Conduct, Rule 1.7:
Conflict of interest: General Rule
(a) A lawyer shall not represent a client if the
representation of that client will be directly
adverse to another client, unless . . .
(b) A lawyer shall not represent a client if the
representation of that client may be materially
limited by the lawyer's responsibilities to another
client. The dissent, however, makes no effort to explain why these situations
necessarily involve a greater constitutional risk than other ethical
conflicts. Indeed, in light of the fact that hardly any criminal conviction
has ever been reversed because of counsel's media rights contract, n.19 infra,
the dissent's selection seems extraordinarily result-oriented.
23
client or to a third person, or by the lawyer's own
interests unless . . . .16
The reason for distinguishing multiple representation
conflicts from those involving self-interest is clear. When
multiple representation exists, the source and consequences of the
ethical problem are straightforward: "counsel represents two
clients with competing interests and is torn between two duties.
Counsel can properly turn in no direction. He must fail one or do
nothing and fail both." Beets v. Collins, 986 F.2d at 1492,
(Higginbotham, J., concurring). "An attorney cannot properly serve
two masters." United States v. Locascio, 6 F.3d 924, 933 (2nd Cir.
1993). Conflicts between a lawyer's self-interest and his duty of
loyalty to the client, however, fall along a wide spectrum of
ethical sensitivity from merely potential danger to outright
criminal misdeeds. Sources of potential conflict, from among the
manifold variations possible, include: matters involving payment
of fees and security for fees; doing business with a client; the
use of information gained while representing a client; a lawyer's
status as a witness; and a lawyer's actions when exposed to
malpractice claims. Ethical rules typically separate each of these
16. See also, ABA Model Rules of Professional Conduct, Rule 1.8,
"Conflict of interests: prohibited transactions," which list ten separate
categories of "prohibited" transactions between an attorney and client, only
two of which, §§ (f) and (g) deal respectively with a lawyer's receipt of
compensation for representing a client from a third party and a lawyer's duty
in regard to settlement when representing two or more clients in a civil or
criminal proceeding. See generally, Developments in the Law -- Conflicts of
Interest in the Legal Profession, 94 Harv. L. Rev. 1244 (1981). For
simplicity, the ABA Model Rules will be referenced in this discussion because
they reflect prevailing standards in most United States jurisdictions. See
also Raymond L. Wise, Legal Ethics 73-76 (1979 Supp.).
24
problems, for each type deserves particular consideration. See,
e.g., ABA Annotated Model Rules of Professional Conduct, Rule 1.8.
Ultimately, the duty of loyalty in its broad sense
resonates against the lawyer's obligation to perform competent,
effective work. The ABA Model Professional Rules express this
overlap:
The lawyer's own interests should not be permitted
to have adverse effect on representation of a client.
For example, a lawyer's need for income should not lead
the lawyer to undertake matters that cannot be handled
competently and at a reasonable fee. See Rules 1.1 and
1.5.
ABA Model Rule 1.7 cmt. Rule 1.1 states the lawyer's duty of
competence, Rule 1.5 the duty to charge a reasonable fee. If the
lawyer stints on his work or is not sufficiently diligent for a
client either because he is not well paid by that client or because
of an extrinsic influence, he has potentially breached the duty of
loyalty. Where the obligation to a single client is concerned, the
duties of loyalty and competence are intertwined.
2. The effects of breaching the duty of loyalty are
clearest in multiple representation cases.
Because multiple defendant representation poses a unique,
straightforward danger of conflict, the Cuyler rule of "not quite
per se" prejudice makes eminent sense. A defendant whose attorney
"actively represented conflicting interests" has had no real lawyer
secured to him by the Sixth Amendment. As Justice Powell put it in
Cuyler, "[t]he conflict itself demonstrated a denial of the 'right
to have the effective assistance of counsel.'" 446 U.S. at 349,
100 S.Ct. at 1719 (quoting Glasser, 315 U.S. at 76, 62 S.Ct. at
25
467). Moreover, this type of conflict may be addressed by a
prophylactic rule, whereby a court, made aware of multiple
representation, can insure early in the criminal proceeding that
the client has been informed of the pitfalls of multiple
representation and knowingly waived any conflict. See, e.g., Fed.
R. Crim. P. 44(c). As Strickland pointed out, "Given . . . the
ability of trial courts to make early inquiry in situations likely
to give rise to conflicts, . . . it is reasonable for the criminal
justice system to maintain a fairly rigid rule of presumed
prejudice for conflicts of interest." 466 U.S. at 692, 104 S. Ct.
2067.
But only in the multiple representation context is the
duty of loyalty so plain. Only then is the risk of harm high
enough to employ a near-per se rule of prejudice.17 While loyalty
may be implicated in other judgments a lawyer makes, in no other
category of conflicts is the risk of prejudice so certain as to
justify an automatic presumption. See Cuyler, 446 U.S. at 349, 100
S. Ct. at 1719. When the duty of loyalty is challenged by an
attorney's self-interest, the range of possible breaches, as
previously shown, is virtually limitless. Likewise, their
consequences on the quality of representation range from wholly
benign to devastating. Compare United States v. Horton, 845 F.2d
1414, 1418-21 (7th Cir. 1988) with United States v. Ellison, 798
17. Although we have no occasion to discuss the question here, a
powerful argument can be made that a lawyer who is a potential co-defendant
with his client is burdened by a "multiple representation" conflict that ought
to be analyzed under Cuyler.
26
F.2d 1102, 1106-09 (7th Cir. 1986) and United States v. Stoia, 22
F.3d 766, 769-70 (7th Cir. 1994). Applying a near-per se rule of
prejudice to this spectrum of potential ethical problems is a
draconian remedy.
3. Strickland best addresses attorney self-interest
conflicts.
In stark contrast to multiple representation situations,
there is little meaningful distinction between a lawyer who
inadvertently fails to act and one who for selfish reasons decides
not to act. The "conflict" between the lawyer's self-interest and
that of his client is not a real conflict in the eyes of the law.
Rather than being immobilized by conflicting ethical duties among
clients, a lawyer who represents only one client is obliged to
advance the client's best interest despite his own interest or
desires. Even though his disloyalty does not leave the client
bereft of counsel, it may well impinge on the effectiveness of his
representation.
A few illustrations demonstrate the persistent overlap
between self-interested duty of loyalty problems and attorney
effectiveness:
(1) An attorney represents a client charged with white
collar crime. His fee will be paid from the
profits of the business. The attorney has an
incentive to plea bargain rather than risk the
business's closing if the client is unsuccessfully
defended.
(2) An attorney has neglected to file a competency
motion. To cover up the mistake, it is alleged, he
tardily files an inadequate motion.
27
(3) An attorney undertakes client representation
despite an overabundance of work. He then neglects
to interview a potential alibi witness.
(4) An attorney is a potential witness for a client he
has represented in the past. Rather than testify,
however, he continues to represent the client in
the case.
See also cases cited in n.10, supra. The duty of loyalty and other
ethical rules have arguably been tested or breached in each of
these cases, but each also raises a question of lawyer competency.
Because the scope of the duty of loyalty with respect to
attorney self-interest is inherently vague and overlaps with
professional effectiveness, Strickland ought to set the
constitutional norm of adequate representation. The Court has
already hinted at such a possibility:
Under the Strickland standard, breach of an ethical
standard does not necessarily make out a denial of the
Sixth Amendment guarantee of assistance of counsel.
Nix v. Whiteside, 475 U.S. at 166, 106 S.Ct. at 993. Nix invoked
Strickland, not Cuyler, as the benchmark for judging ethical
violations. In so doing, the Court hesitated "to narrow the wide
range of conduct acceptable under the Sixth Amendment so
restrictively as to constitutionalize particular standards of
professional conduct and thereby intrude into the state's proper
authority. . . ." Id. A standard that requires a showing of
prejudice and affords appropriate latitude to professional judgment
best addresses ethical breaches under the Sixth Amendment.
Strickland lists other powerful reasons supporting its
more flexible test of constitutional competence. Strickland
declined to "exhaustively define obligations of counsel [or] form
28
a checklist for judicial evaluation of attorney performance." 466
U.S. at 688, 104 S.Ct. at 2065. The Court stated that
"[p]revailing norms of practice as reflected in American Bar
Association standards . . . are guides to determining what is
reasonable, but they are only guides." Id. As Strickland astutely
warned, "[a]ny such set of rules would interfere with the
constitutionally protected independence of counsel and restrict the
wide latitude counsel must have in making tactical decisions." Id.
at 689, 104 S.Ct. at 2065. Indeed,
[T]he existence of detailed guidelines for representation
could distract counsel from the overriding mission of
vigorous advocacy of the defendant's cause. Moreover,
the purpose of the effective assistance guarantee of the
Sixth Amendment is not to improve the quality of legal
representation, although that is a goal of considerable
importance to the legal system. The purpose is simply to
ensure that criminal defendants receive a fair trial.
Id. at 689, 104 S.Ct. at 2065.
These considerations, which prompted the Court's
reluctance to micromanage standards of professional and ethical
behavior, apply with full force to the duty of loyalty with respect
to attorney self-interest. The interests of both the defendant and
society are served by a standard that, as far as possible, does not
straitjacket counsel in a stifling, redundant federal code of
professional conduct. Moreover, the purpose of the Sixth Amendment
is not primarily to police attorneys' ethical standards and create
a constitutional code of professional conduct; its purpose is to
assure a fair trial based on competent representation. Finally,
while Strickland does state that counsel owes the client a duty to
avoid conflicts of interest (citing Cuyler), this is just one duty
29
listed among others -- the duties to advocate the defendant's
cause, to consult with and keep the defendant informed, and to
employ skill and knowledge on the defendant's behalf. The Court
emphasizes these as an unexhaustive list of the basic duties of
counsel. Id. at 688, 104 S. Ct. at 2065. To list these duties is
thus the starting point, not the conclusion, of constitutional
analysis. We are firmly persuaded that it is most consistent with
Strickland to assess the duty of loyalty pitted against a lawyer's
self-interest under the Strickland test.18
4. Cuyler v. Strickland
If Cuyler's more rigid rule applies to attorney breaches
of loyalty outside the multiple representation context,
Strickland's desirable and necessary uniform standard of
constitutional ineffectiveness will be challenged.
Recharacterization of ineffectiveness claims to duty of loyalty
claims will be tempting because of Cuyler's lesser standard of
prejudice. See United States v. Stoia, 22 F.3d 766, 769-70 (7th
Cir. 1994); United States v. McLain, 823 F.2d 1457, 1463-64 (11th
Cir. 1987). A blurring of the Strickland standard is highly
undesirable. As a result of the uncertain boundary between Cuyler
and Strickland, the focus of Sixth Amendment claims would tend to
shift mischievously from the overall fairness of the criminal
18. There is another reason why multiple representation cases are more
amenable to Cuyler's fairly rigid rule of presumed prejudice. They are
amenable to prophylactic rules requiring court oversight of potential
conflicts. Self-interested duty of loyalty problems ordinarily defy
prophylactic treatment, suggesting appropriateness of a real prejudice
standard for after-the-fact review.
30
proceedings -- the goal of "prejudice" analysis -- to slurs on
counsel's integrity -- the "conflict" analysis. Confining Cuyler
to multiple representation claims poses no similar threats to
Strickland. The dissent, of course, purports to avoid unwarranted
expansion of Cuyler by confining its scope, apart from multiple
representation cases, to instances involving "extraordinary"
attorney-client conflicts "stemming from a highly particularized
and powerful source." This open-ended, though hyperbolic, language
is bereft of any animating principle and, as such, is unfortunately
guaranteed to spawn far more litigation that it resolves.
For all these reasons, we conclude that Strickland
governs the issue whether Andrews's media rights contract and
status as a witness resulted in the denial of constitutionally
adequate counsel to Beets.
C. Strickland Applied
To prevail under the Strickland standard, Beets must show
that her attorney's performance fell below an objective standard of
reasonableness and that it prejudiced the defense, undermining the
reliability of the proceeding. Strickland prejudice, as has been
noted, considers the overall result of the prosecution. Beets
alleged two ethical breaches by Andrews, the taking of a media
rights contract in full satisfaction of his fee and his failure to
withdraw and testify as a material witness. Although these lapses
are alleged to interact, they may conveniently be discussed in
turn. It is important to note that although the dissent would not
approve the following discussion of Andrews's competence under
31
Strickland, our colleagues do agree that if Strickland sets the
Sixth Amendment standard here, there is no constitutional violation
because Beets was not prejudiced by Andrews's conduct as her
counsel.
1. Media rights contract.
This court joins other courts, scholars and organizations
of the bar who have uniformly denounced the execution of literary
and media rights fee arrangements between attorneys and their
clients during the pendency of a representation.19 The Texas Code
of Professional Responsibility stated at the time of this trial:
Prior to the conclusion of all aspects of the matter
giving rise to his employment, a lawyer shall not enter
into any arrangement or understanding with a client by
which he acquires any interest in publication rights with
respect to the subject matter of his employment or
proposed employment.
Supreme Court of Texas, Code of Professional Responsibility,
DR5-104(B) (1982). See also ABA Model Rules of Professional
Conduct, Rule 1.8(d). Succinctly, a media rights contract is
offensive because it may encourage counsel to misuse the judicial
process for the sake of his enrichment and publicity-seeking, and
it necessarily trades on the misery of the victim and his family.
Perhaps because of the widely shared professional
disapproval of media rights contracts, few cases challenging them
19. See United States v. Hearst, 638 F.2d 1190 (9th Cir. 1980) cert.
denied, 451 U.S. 938, 101 S. Ct. 2018, 68 L. Ed. 2d 325 (1981); Mark R. McDonald,
Literary-Rights Fee Arrangements in California: Letting the Rabbit Guard the
Carrot Patch of Sixth Amendment Protection and Attorney Ethics?, 24 Loy. L.A.
L. Rev. 365 (1991); American Bar Ass'n Standards for Criminal Justice,
Standard 4-3.4 (2d ed. 1980); American Bar Ass'n, Model Code of Professional
Responsibility, DR 5-104(B); American Bar Ass'n, Model Rules of Professional
Conduct, Rule 1.8(d).
32
have arisen. Although the cases have been judged under various
legal standards, hardly any convictions have been reversed for a
pernicious influence of such contracts on counsel's effectiveness.20
So it must be here. Notwithstanding Andrews's apparent
breach of his ethical obligations, this court sits not to
discipline counsel but to determine whether Beets was thereby
deprived of a fair trial. The state has the duty to punish an
attorney for unethical conduct. For reasons not disclosed in the
record, the state declined to discipline Andrews for this fee
arrangement. While the media rights contract posed a serious
20. See Buenoano v. Singletary, 963 F.2d 1433, 1438-39 (11th Cir.
1992) (remanded for evidentiary hearing on whether fee arrangement that gave
first $250,000 of book and movie contract to the attorney created an actual
conflict and an adverse effect); United States v. Marrera, 768 F.2d 201, 205-
09 & n.6 (7th Cir. 1985), cert. denied, 475 U.S. 1020, 106 S. Ct. 1209, 89
L. Ed. 2d 321 (1986) (found no actual conflict and no adverse effect in fee
arrangement involving movie rights); United States v. Hearst, 638 F.2d 1190,
1193-94 (9th Cir. 1980), cert. denied, 451 U.S. 938, 101 S. Ct. 2018, 68
L. Ed. 2d 325 (1981) (remanded for a hearing on whether F. Lee Bailey's book
contract with Patty Hearst created an actual conflict of interest); Wojtowicz
v. United States, 550 F.2d 786, 793 (2d Cir.), cert. denied, 431 U.S. 972, 97
S. Ct. 2938, 53 L. Ed. 2d 1071 (1977) (Pre-Cuyler case found no prejudice from
movie rights deal); Ray v. Rose, 535 F.2d 966, 973-75 (6th Cir.), cert.
denied, 429 U.S. 1026, 97 S. Ct. 648, 50 L. Ed. 2d 629 (1976) (Pre-Cuyler case
found no prejudice from media rights contract with attorney); Maxwell v.
Superior Court, 30 Cal. 3d 705, 180 Cal. Rptr. 177, 639 P.2d 248, 257 (Cal.
1982) (publication rights contract between attorney and defendant does not per
se render counsel ineffective and conflicts of interest created thereby are
waivable); People v. Bonin, 47 Cal. 3d 808, 835, 254 Cal. Rptr. 298, 313-14, 765
P.2d 460, 475 (Cal. 1989), cert. denied, 494 U.S. 1039, 110 S. Ct. 1506, 108
L. Ed. 2d 641 (1990) (no reversible error in literary rights fee arrangement);
People v. Gacy, 125 Ill. 2d 117, 134, 530 N.E.2d 1340, 1347 (1988), cert.
denied, 490 U.S. 1085, 109 S. Ct. 2111, 104 L. Ed. 2d 671 (1989) (no conflict of
interest when attorney rejected offer by defendant to grant attorney book
rights); Stafford v. State, 669 P.2d 285, 296-97 (Okla.Crim.App.) cert.
granted and judgment vacated, 467 U.S. 1212, 104 S. Ct. 2652, 81 L. Ed. 2d 359
(1984) (no actual conflict or adverse effect from publication rights
contract); People v. Corona, 80 Cal. App. 3d 684, 720-21, 145 Cal. Rptr. 894, 916
(Cal.Ct.App. 1978) (found media rights conflict created an actual conflict and
resulted in prejudice when "trial counsel assumed a position virtually adverse
to his client and, totally unsupported by strategic or tactical
considerations, took deliberate steps to thwart the development of viable
defenses"); Dumond v. State, 743 S.W.2d 779, 784-85 (Ark. 1988) (no actual
conflict in media rights contract between attorney and defendant and his
wife).
33
potential conflict of interest, Beets failed to show how it
hindered Andrews's presentation of her defense or prejudiced her by
rendering the result of her criminal prosecution fundamentally
unreliable. Beets has not asserted that Andrews manipulated the
case to enhance publicity21 or that the contract generally clouded
his good judgment.22 Beets has shown no actual influence of the
media rights contract on the conduct of her defense. In the state
habeas proceedings, Andrews filed an affidavit in which he denied
that the media rights contract affected his representation of
Beets. The state courts accepted this unrebutted statement. At
the federal habeas hearing, Andrews's co-counsel Gilbert Hargrave
was asked by the court, "was there any action taken by Mr. Andrews
during the trial of this case that was in any way affected by the
fact that he or his son had this book deal assignment?" Hargrave
answered, "No. If there is such an action, I'm not aware of it.
I did not observe it." The federal district court concluded:
After further review of the record, the Court simply does
not believe that the media rights contract affected
Andrews' performance at any conscious level. (footnote
omitted). There is, of course, no adverse effect where
there was no effect at all.
The finding of the district court is shielded by the
clearly erroneous standard, while that of the state courts is
entitled to the presumption of correctness in habeas corpus
21. See, e.g., United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir.
1980), cert. denied, 451 U.S. 938, 101 S. Ct. 2018, 68 L. Ed. 2d 325 (1981);
People v. Corona, 80 Cal. App. 3d 684, 145 Cal. Rptr. 894 (Cal.Ct.App. 1978).
22. See United States v. Marrera, 768 F.2d 201, 207-08 (7th Cir.
1985), cert. denied, 475 U.S. 1020, 106 S. Ct. 1209, 89 L. Ed. 2d 321 (1986).
34
proceedings. 28 U.S.C. § 2254(d). Those findings are that the
media rights contract did not affect Andrews's conduct of Beets's
defense. Accordingly, whether or not the media rights contract
represented deficient performance under Strickland, it did not
prejudicially affect Beets's defense.
Beets continues to assert, however, that because of the
media rights contract, Andrews was motivated to continue his work
as defense counsel when he should have withdrawn and testified as
a material defense witness. There is no support in the record for
a finding concerning Andrews's subjective motivation, and none has
been made by the state or federal courts. Whether a lawyer-as-
witness conflict existed, however, is a separate question to which
we now turn.
2. Andrews as defense witness.
Beets's theory that Andrews should have testified as a
defense witness runs thus: if the jury believed that Andrews first
suggested to her, eighteen months after Jimmy Don's disappearance,
the possibility of claiming Jimmy Don's death benefits from the
fire department, they could not find that Beets murdered Jimmy Don
for remuneration. Andrews was therefore a material exculpatory
witness who was ethically required to withdraw and testify on her
behalf.
Both prongs of Strickland are at issue here: whether
Andrews's performance was unconstitutionally deficient and whether
his failure to testify prejudiced the defense. From an ethical
standpoint, the lawyer-as-witness conflict, unlike the loyalty
35
conflict implicated by a media rights contract, is difficult to
sort out. This court may be guided but is not constitutionally
bound by the Texas Code of Professional Responsibility effective at
the date of trial:
If, after undertaking employment in contemplated or
pending litigation, a lawyer learns or it is obvious that
he or a lawyer in his firm ought to be called as a
witness on behalf of his client, he shall withdraw from
the conduct of the trial and his firm, if any, shall not
continue representation in the trial . . . .
Supreme Court of Texas, Code of Professional Responsibility, DR 5-
102(A) (1982) (emphasis added). For reasons that are intuitively
obvious, neither this nor similar provisions creates a bright-line
ethical rule requiring withdrawal of a lawyer whenever he might be
a witness for his client.23 The constitutional evaluation of a
lawyer's decision whether to take the stand must also be flexible
and must accord a heavy measure of deference to the lawyer's
presumed professional capability. Strickland, 466 U.S. at 690, 104
S.Ct. at 2066. The essential inquiry is what sort of testimony he
could have given in Beets's defense.
Regarding the alleged advocate/witness conflict, the
district court concluded that
23. The State contends that Roberts's testimony renders Andrews's
potential testimony merely cumulative. The State asserts that where an
attorney's testimony is not essential to the case, or would be merely
cumulative of other evidence, there is no ethical duty placed upon Texas
lawyers to withdraw from representation. See State Bar of Texas, Ethical
Considerations on Code of Professional Responsibility, EC 5-10 (1972):
It is not objectionable for a lawyer who is a potential witness to
be an advocate if it is unlikely that he will be called as a
witness because his testimony would be merely cumulative or if his
testimony will relate only to an uncontested issue.
36
Andrews obviously should have known of his dual
status as witness and advocate prior to trial. Andrews'
dual status should have also been apparent to both the
judge and district attorney as the trial unfolded. The
Court is persuaded that the conflict never occurred to
any of the participants.
The court correctly found that the experienced trial
court participants never perceived of Andrews as a potential
defense witness.24 Perhaps it can be inferred from this collective
unawareness that Andrews's exculpatory testimony was not highly
significant. But more important than speculation is a careful
review of the state court and federal habeas records, which
considerably diminishes the force of such potential testimony.
24. Nothing in the record suggests that the prosecutor or trial judge
thought Andrews was a possible witness, and Andrews was never directly asked
at the federal habeas hearing whether he should have been a defense witness.
Andrews stated that he believed Betty Beets did not commit the murders, but
she was at first reluctant to reveal the true facts to him because of the
implication for her children's guilt. Andrews did not consider withdrawing as
Beets's attorney:
Q. [McGlasson] It never occurred to you during the trial to
withdraw, to move to withdraw or no one suggested that you
should do that. Is that correct?
A. Well, it sort of occurred to me when I found out I wasn't
being paid, but I didn't. It occurred to me, I'm going to
have to be honest with you, but I didn't do it.
Q. But that was the only reason that it might have occurred to
you is that you felt like you weren't receiving any payment.
Is that correct?
A. Well, that's true. I'm not doing this as a hobby.
Q. Right. There's no other reason you could think of during
the trial why you should withdraw from this case. Is that
correct?
A. From Ms. Stegner's case I did withdraw, there became a
conflict. From Betty's case, I felt strongly toward this
case and, no, I wouldn't let her down. Unh-unh.
Q. Right. Okay.
A. Not even for money, and I didn't get any.
37
Beets relies heavily on an affidavit Andrews executed for
the federal habeas proceeding stating that Beets
had no idea whether she was entitled to benefits. She
did not even know whether benefits existed. She did not
know, for instance, whether her husband had been insured,
or whether he had a pension, nor did she know whether she
was the beneficiary. She did not know who, if anyone,
may have been her husband's insurer or what amount he may
have been insured for.
Andrews Affidavit ¶ 7. He also stated that he "was the one who
mentioned the possibility that she may have been entitled to
benefits." Id. ¶ 10, Beets, 986 F.2d at 1487.
Taken at face value, the affidavit suggests that Andrews
would have been a helpful witness to Beets. At the habeas hearing,
however, his answers to questions posed by Beets's new attorney
were not nearly as strong:
Q. Well, as your affidavit states, I believe she came
to you looking for insurance benefits, but not with
respect to the death of Jimmy Don Beets, rather for
a home that had been burned. Is that correct?
A. [Andrews] Well, I believe that was a mobile home.
Q. Correct. And it was your idea that she may have
some benefits arising from this death and she had
no idea of this. Is that correct?
A. Well, I thought it would be my idea and I think my
obligation too because I don't know if it's in this
affidavit or not, but her husband had been missing
for quite some time and everybody in the community
knew that. I knew Mr. Beets worked for the Fire
Department. It was through an investigation of
myself and two lawyers here in Tyler that we
realized that some benefits might be due and
payable.
Q. Did Ms. Beets suggest this or did you in your
initial conversations with her?
38
A. Partner, that's been a long time ago. I believe
that I went into it first. I couldn't swear to
that and I'm under oath.
Q. Well, in your affidavit you've stated that you knew
from your discussions with her that this was not
the case, that is, that the State could not prove
that she took the life of Mr. Beets for the purpose
of remuneration. Is that correct? Is that a true
statement?
A. What page are you reading from?
Q. That's Paragraph 14.
A. That was my thought and belief. Yes, that's true
and correct.
Q. And just to reference Paragraph 7 of the affidavit,
you also stated that when you first questioned Ms.
Beets you quickly discovered that she had no idea
whether she was entitled to benefits and you've
sworn that that was a true statement. Is that
correct?
A. That was a conclusion that I drew by my
conversation with Betty Beets.
The most that Andrews could persuade the jury of was his
"conclusion" that Betty Beets knew nothing of her husband's
benefits when she visited him.25
Moreover, Andrews was not the only source of testimony
that Beets was unaware of Jimmy Don's death benefits before she
visited Andrews. Beets herself so testified at trial under
questioning by Andrews. Had Andrews elicited this testimony
believing or knowing it to be false, he would be exposed to a
charge of suborning perjury.
25. Not only was Andrews's testimony limited to his inference about
Beets's knowledge, but such testimony might well have led to incriminating
cross-examination on his earlier dealings with Beets.
39
Additional testimony on Beets's ignorance of the death
benefits was adduced from Bruce Roberts. The only part of
Andrews's proposed testimony that Bruce Roberts could not replicate
was Andrews's affidavit statement that he had been the one to
suggest to Beets that she seek her missing husband's insurance and
pension benefits. Beets vastly overrates the importance of this
statement by Andrews, however. Because Andrews had no knowledge of
Beets's activities from the time of the murder until nearly two
years later when she met with him, he could not testify as to her
knowledge of what benefits might be available. Both he and Roberts
could only draw an inference or speculate upon her state of mind
from their conversations.
In any event, neither Andrews nor Roberts was the first
witness to discuss Jimmy Don's death benefits with Beets. That
distinction belonged to Denny Burris, who testified that when he
visited her a few days after the disappearance, she inquired about
benefits. The fact of inquiry does not show that she knew
beforehand of the existence of benefits, but her inquiry and
discussion with Burris necessarily weakened the argument that, many
months later, Beets's attorneys thought she knew nothing of
potential death benefits. Neither Andrews nor Roberts could dispel
a certain skepticism about that claim.
Because Andrews's potential testimony for Beets was
cumulative, he was not a necessary witness for her defense and did
not face a substantial advocate/witness conflict. His failure to
40
withdraw and testify was not professionally unreasonable under
Strickland.
Not only was Andrews's potential exculpatory testimony
largely cumulative, but when considered against the totality of
evidence that Beets committed murder for remuneration, we cannot
say that his failure to testify was prejudicial. Beets told her
daughter Shirley Stegner, in connection with the murder of Beets's
fourth husband, that she would have lost the trailer, which he
owned, if they had simply divorced. Beets surreptitiously tried to
obtain a life insurance policy on Jimmy Don only months before he
disappeared. After his death, Beets sold his boat and tried to
sell and then to collect fire insurance proceeds on his separately
owned trailer home. Chaplain Denny Burris testified that Beets was
interested in Jimmy Don's benefits within days after he "went
fishing." All of this evidence, as the Texas Court of Criminal
Appeals noted, was pertinent to the question of Beets's
remunerative motive. Finally, the cold, calculated nature of the
crime and its cover-up strongly suggested that Beets had a motive
beyond simply getting rid of her husband after one year of
marriage. She wanted it to appear that he died of natural causes.
If he had merely disappeared, suspicion would have focused on her
and she could not have benefitted from the crime. Neither we nor
the dissent can conclude that the result of her prosecution would
in reasonable probability have differed if Andrews had testified.
41
D. Alternate Cuyler Holding
Finally, even if this en banc court has erred in
suggesting that attorney conflicts of interest, apart from the
multiple representation context, should be governed by the
Strickland standard, we conclude that Beets's claim also fails to
garner relief under Cuyler. Because there was no objection at
trial to either of the alleged conflicts, Beets had to establish
the existence of an actual conflict that adversely affected her
lawyer's performance. Cuyler, 446 U.S. 348, 100 S. Ct. 1718.
The panel opinion first concluded there was no "actual
conflict" of a witness/advocate nature because, as was shown in the
preceding section, Andrews's testimony was cumulative of other
defense evidence and not materially more helpful to Beets. The
panel also concluded that Beets alleged, at most, a merely
hypothetical or speculative witness/advocate conflict, which did
not materialize into an actual conflict that forced Andrews to
choose between his self-interest and his duty to Beets. See
Stevenson v. Newsome, 774 F.2d 1558, 1561-62 (11th Cir. 1985),
cert. denied, 475 U.S. 1089, 106 S. Ct. 1476, 89 L. Ed. 2d 731 (1986)
(To establish an actual conflict "[i]t must be demonstrated that
'the attorney 'made a choice between possible alternative courses
of action, . . . If he did not make such a choice, the conflict
remained hypothetical.''") (citations omitted); United States v.
Litchfield, 959 F.2d 1514, 1518 (10th Cir. 1992); United States v.
Acevedo, 891 F.2d 607, 610 (7th Cir. 1989); United States v.
Horton, 845 F.2d 1414, 1419 (7th Cir. 1988). The panel observed
42
that Beets never proved that the potential conflict of interest
developed into an actual conflict of interest.
The dissent has agreed that a witness/advocate conflict
alone is not the sort that even under their approach should be
governed by a Cuyler inquiry. Because the entire court subscribes
to the application of Strickland to this type of conflict, we are
in agreement that Beets has not established a constitutional
violation.
As to the media rights contract, there was no "actual
conflict" under Cuyler because, as the record abundantly shows and
as two judges on the panel held, the potential conflict speculated
by Beets never materialized into an actual conflict in Andrews's
representation. The record does not demonstrate that the contract
induced Andrews to compromise his zealous representation of Beets
in favor of his own pecuniary interest. Absent a showing that
Andrews nefariously chose to compromise his efforts in such a way,
this court cannot conjecture otherwise. See, e.g., Stevenson 774
F.2d at 1561-62; see also cases cited n.20, supra.
The dissent also charges that the existence of an actual
conflict inducing constitutionally ineffective assistance of
counsel is a question of fact judged from an "objective"
standpoint. However, the Supreme Court rejected this proposition
in both Strickland and Cuyler. For instance, in Strickland, the
Court explicitly recognized that
in a federal habeas challenge to a state criminal
judgment, a state court conclusion that counsel rendered
effective assistance is not a finding of fact binding on
the federal court to the extent stated by 28 U.S.C.
43
§ 2254(d). Ineffectiveness is not a question of 'basic,
primary, or historical fact.' Rather, like the question
whether multiple representation in a particular case gave
rise to a conflict of interest, it is a mixed question of
law and fact.
Strickland, 466 U.S. at 698, 104 S.Ct. at 2070 (quoting Townsend v.
Sain, 372 U.S. 293, 309 n.6, 83 S. Ct. 745, 755 n.6 (1963)) (citing
Cuyler, 446 U.S. at 342, 100 S.Ct. at 1714). Consequently, as with
the related question of constitutional ineffectiveness of counsel,
the federal district court's finding of an actual conflict inherent
in the media rights contract is not shielded from appellate
scrutiny by the clearly erroneous rule.
Finally, even if the media rights/witness conflict was an
actual one, it did not adversely effect Andrews's representation of
his client.26 The dissent seeks to apply a three part test used by
the Second Circuit in Winkler v. Keane, 7 F.3d 304 (2d Cir. 1993),
cert. denied, 114 S. Ct. 1407 (1994), as the basis of its Cuyler
analysis. The dissent thus argues that (1) there was an "actual
conflict" for Cuyler purposes simply because of the existence of
26. With due respect, the dissent's claim that this opinion somehow
"conflates the existence and effect elements of the [Cuyler] analysis" is
mistaken. Of course, both elements are necessary before this court can grant
habeas corpus relief under Cuyler; Beets does not prove either element.
This court's structured inquiry closely mirrors and is instructed
by the Supreme Court's approach in Burger v. Kemp, 483 U.S. 776, 785, 107
S. Ct. 3114, 3121 (1987), which held that "the asserted actual conflict of
interest, even if it had been established, did not harm [the] lawyer's
advocacy." Likewise, had Beets been able to prove an actual conflict, habeas
relief should still be denied because Beets did not demonstrate that it
adversely affected her representation.
Given the approach in Burger, the dissent's critique obfuscates
the proper disposition of this case. Since both the state court and the
district court agreed that the media rights contract had no effect on
Andrews's representation of Beets, there is no need for a remand; relief under
Cuyler is unavailable as soon as the petitioner fails to prove either an
actual conflict or an adverse effect.
44
the media rights contract; (2) there was an "adverse effect" on
Andrews's representation because he could have withdrawn and
testified for Beets; and (3) the remaining question, which must be
remanded, is whether the media rights contract caused Andrews to
withdraw. Our disagreements whether there was an actual or
potential conflict and whether the conflict should be judged from
an objective or subjective standpoint are of academic interest at
this point, however. Even if we agreed with the dissent's position
on the first two Winkler issues, this en banc majority finds no
basis for a remand for additional fact finding. The state courts
did their job. Confronted with Beets's allegation that Andrews
ineffectively represented her because of the media rights contract,
Andrews filed an affidavit specifically denying the charge. The
state trial courts specifically found that the contract did not
affect his zealous representation.
This federal court must accord a presumption of
correctness to that finding. Sumner v. Mata, 449 U.S. 539, 547
(1981)27. Further, although the federal district judge declined to
27. In relevant part, 28 U.S.C. § 2254(d) provides that
In any proceeding instituted in a Federal court . . . for a writ
of habeas corpus . . ., a determination after a hearing on the
merits of a factual issue, made by a State court of competent
jurisdiction in a proceeding to which the applicant for the writ
and the State . . . were parties, . . . shall be presume to be
correct, unless the applicant shall establish or it shall
otherwise appear . . .
28 U.S.C. § 2254(d). Thus, the statute unambiguously dictates that the
presumption of correctness afforded by this court is mandatory, not
permissive. This presumption can only be rebutted if the petitioner proves
one of the statutory exceptions. See 28 U.S.C. § 2254(d)(1)-(8). Since the
45
plumb counsel's subconscious motivation, he found no conscious
effect of the media contract on Andrews's decision not to testify.
As the court put it, "Where there is no effect, there can be no
adverse effect." There is no point in remanding to give Beets a
chance to prove what she has not yet proved in state or federal
district court. The media rights contract did not adversely affect
Andrews's performance because it had no impact on his failure to
testify. See Winkler, 7 F.3d at 310 (the court adheres to state
court findings that contingent fee did not cause counsel's strategy
decisions).
Accordingly, Beets has not established that she was
deprived of constitutionally effective counsel under Cuyler because
of the media rights contract or Andrews's dual status as
witness/advocate.
CONCLUSION
For the foregoing reasons, the district court judgment
granting the writ of habeas corpus must be REVERSED.
dissent concedes that "no party has addressed the presumption of correctness,"
the presumption has not been rebutted and this court must adopt it.
Moreover, this court neither adopts nor raises this presumption
anew. To the contrary, we emphasize and rely on both the state and district
courts' fact finding that the petitioner's grant of media rights to Andrews's
son did not affect her representation at all.
46
HIGGINBOTHAM, with DAVIS and EMILIO M. GARZA, Circuit Judges,
concurring:
I concur in the opinion of the court except its alternative
holding that petitioner would be entitled to no relief if the
Cuyler standard were applicable. For the reasons stated in my
opinion concurring in the panel opinion, I would afford petitioner
at least the relief fashioned by Judge King in her dissenting
opinion's application of Cuyler, if it were applicable.
47
KING, with POLITZ, Chief Judge, GARWOOD, SMITH and WIENER, Circuit
Judges, dissenting:
I respectfully dissent from the majority's decision to reverse
the district court's judgment granting the writ.
It is important to recognize at the outset that whether an
actual conflict of interest between an attorney and his client
exists is a separate inquiry from whether we apply Cuyler v.
Sullivan, 446 U.S. 335 (1980), or Strickland v. Washington, 466
U.S. 668 (1984), when a criminal defendant or, as here, a habeas
petitioner challenges his conviction based on the alleged existence
of an actual conflict of his trial counsel. Whether an attorney-
client conflict exists must be addressed at the commencement of the
representation not only by the attorney and his client, but also
frequently by the trial court. The same question must be addressed
as a threshold issue on appeal or on habeas review. If we allow
the context in which the question of the existence of an actual
attorney-client conflict arises here -- on retrospective review of
a conviction -- to distort the criteria for determining whether an
actual conflict exists, we inevitably skew the same inquiry when it
is made at the beginning of the representation. This we cannot do.
48
The district court's conclusion that the execution of a media
rights contract created an actual conflict of interest between E.
Ray Andrews and his client, Betty Lou Beets, is correct, and the
majority's contrary conclusion is legally and factually
insupportable. If that conflict of interest was the cause of
Andrews's failure to withdraw and testify on Beets's behalf -- an
issue that I would remand to the district court to decide -- then
Beets will have shown that it had an adverse effect on Andrews's
representation, and applying Cuyler, the writ was properly granted.
Finally, I disagree with the majority's unprecedented decision
to limit the rule of Cuyler to cases involving multiple or serial
representation. The court thereby excludes from the ambit of
Cuyler an exceptional conflict between an attorney's self-interest
and his client's interest stemming from a highly particularized and
powerfully focused source, a media rights contract. If we reserve
Cuyler for extraordinary attorney-client conflicts of that sort,
not normally encountered in law practice, and we apply Strickland
to alleged deficiencies in an attorney's performance having their
sources in the more common incidents of the attorney-client
relationship, we avoid having the Cuyler exception swallow the
Strickland rule. At the same time we preserve the benefit of the
Cuyler inquiry for those exceptional cases that lie at the heart of
the principles animating it.
I. BACKGROUND
A. Andrews's Representation
49
A full understanding of the issues in this appeal requires a
more complete examination of the facts and circumstances
surrounding E. Ray Andrews's representation of Betty Lou Beets than
the majority provides. It is clear from the record of Beets's
trial and from the record of the federal habeas proceedings that
the testimony of Andrews was critical to Beets's defense that she
did not murder Jimmy Don Beets for remuneration. It is also clear
from the record of the federal habeas proceedings that Andrews
contemplated obtaining the media rights contract very early in his
representation of Beets, long before the trial began.
As the majority notes, in late 1984, more than a year after
Jimmy Don's disappearance, the mobile home in which Beets lived was
destroyed by fire.28 The insurance company, apparently suspicious
of the claim, resisted paying on the policy. Thus, in his
testimony at the federal habeas proceeding, Andrews agreed that
Beets "came to [him] looking for insurance benefits, but not with
respect to the death of Jimmy Don Beets." Instead, Andrews
testified, Beets approached him for help in collecting the proceeds
from the insurance policy covering the mobile home.
At the habeas proceeding, Andrews testified that he believed
that he had suggested to Beets, and thought he was obligated to
suggest, pursuing any benefits that might be available as a result
of Jimmy Don's disappearance. As Andrews testified, "Ms. Beets
The mobile home was Jimmy Don's separate property, but until
Jimmy Don's disappearance, Betty Lou and Jimmy Don resided in the
mobile home together. After Jimmy Don disappeared, Betty Lou
continued to reside in the mobile home.
50
never pushed me like some clients would for money, proceeds, and it
was . . . through independent investigation that I found out that
she had money maybe due and payable or owing to her." Andrews and
Beets agreed that Andrews, in a contingent fee arrangement, would
help Beets pursue any benefits to which she might be entitled.
After his initial efforts proved unsuccessful, Andrews sought
the assistance of brothers Bruce L. and Randell C. Roberts,
attorneys who were practicing in Tyler, Texas. According to
Randell Roberts's affidavit that was admitted into the record of
the habeas proceeding in lieu of live testimony, Andrews arranged
for himself, Beets, and Randell Roberts to meet. Roberts recalled
that Andrews did most of the talking at that initial meeting, and
that:
With respect to potential life insurance benefits . . .
Ms. Beets was able to provide . . . very little
information. It was my impression that she believed at
the time that there were probably some life insurance or
pension benefits due to her, however, she appeared to
know very little about the amount of the benefits in
question or the potential insurance companies or other
sources which would be responsible for these benefits.
Eventually, Randell Roberts passed the file to his brother
Bruce, who began looking for benefits. At Beets's trial, Bruce
Roberts testified that "when [he] first took the case, [Beets's]
primary concern was . . . with the fire insurance company." Bruce
Roberts also testified that Beets had what "looked like part of a
policy from the credit union in Dallas. She also knew that she had
or was asking me to check into pension benefits." Bruce Roberts
further testified, and later reemphasized in his affidavit which
was also admitted into the record of the habeas proceeding, that
51
Beets had no idea what benefits she may have been entitled to.
Despite Beets's ignorance about any benefits she may have been due,
Bruce Roberts pursued the claims, writing letters and making
telephone calls to anyone he thought might have owed Beets money as
a result of her husband's disappearance. Bruce Roberts's
efforts met with some success, and he had Jimmy Don declared dead
and secured a settlement with the City of Dallas for some pension
funds. In early June of 1985, before the settlement was finalized,
Jimmy Don's skeletal remains were unearthed from a wishing well in
front of the mobile home. Beets was subsequently arrested and
charged with murder.29 The case, as the majority notes, generated
significant local and national media attention. Andrews agreed to
represent Beets in the murder trial, and there is evidence that
from very early on in his representation of Beets, Andrews
envisioned profiting from the Betty Lou Beets story.
The same month that Beets was arrested and that Andrews began
his representation of Beets -- June 1985 -- Andrews associated
Gilbert M. Hargrave to assist in the trial. According to
Hargrave's testimony in the federal habeas proceeding, in June of
1985, long before the trial began and before Hargrave had agreed to
According to Randell Roberts's affidavit, after Beets was
arrested, he and his brother "consulted with Mr. Andrews with
respect to [their] further involvement in either of [the fire or
the life] insurance matters. It was agreed that we would
withdraw from further involvement in either matter . . . ."
Additionally, Randell Roberts noted that "[i]n deciding to
withdraw from these matters my brother and I knew that we might
be called to testify on behalf of Ms. Beets during her trial. We
did not think that it would be appropriate for us to continue to
represent her in the other matters if we were needed to testify
on her behalf." As noted above, Bruce Roberts did testify.
52
work on the case, Andrews stated, "``I'm going to get the book
rights and I'll give you twenty percent of the book rights.'"
Hargrave also testified that "[Andrews] thought the case was a
valuable case, that the book rights were valuable, that it was
notorious, famous, . . . and that it would generate a lot of
income-producing type of publicity for himself and myself."
Additionally, well before Beets's trial commenced, Andrews
undertook efforts to secure the media rights. The record of the
federal habeas proceeding contains two draft versions of a contract
assigning the media rights of the trial to Andrews's son.
Specifically, there is a typed draft of a media rights contract
dated September 23, 1985 and a handwritten draft of the same
document, presumably written sometime earlier. Thus, even though
the majority notes that "[o]n October 8, just after Beets's trial
commenced, she signed a contract transferring all literary and
media rights in her case to Andrews's son," Beets v. Collins,
F.3d , *5 (5th Cir. 1995) (en banc), it is clear from the
record that securing the media rights was on Andrews's mind
virtually from the beginning of his representation of Beets in
connection with her indictment for Jimmy Don's murder.30 As it
The majority comments that "Andrews testified at the federal
habeas hearing that this contract was signed after negotiations
fell through to obtain his fee from Beets's children." Beets,
F.3d at *5. This is technically true; the contract was not
signed until after the trial began, and Andrews did note that he
and one of Beets's daughters "discussed finances prior to trial.
It didn't come through." This, however, does not support the
notion that the media rights contract was a last-second
alternative to a fee. As noted above, the record clearly
indicates that Andrews contemplated obtaining the media rights
long before the trial started.
53
developed, the assignment of the media rights was the consideration
for Andrews's services in defending Beets.
During the trial, Andrews had two lines of defense. His
principal strategy during the guilt phase of the trial was simply
to show that Beets did not commit the murder. Andrews, however,
left little doubt that his secondary strategy was "to try to attack
the State's proof on their claim that [Beets] did it for
remuneration." As co-counsel Hargrave testified at the habeas
proceeding, "[t]he basic theory [of the defense] was that [Beets]
was not guilty, that she hadn't committed the act that she was
under indictment for and that if she actually had that she
certainly hadn't done so for remuneration."
Accordingly, during trial, Andrews repeatedly attempted to
make clear to the jury that it was his suggestion that Beets seek
out benefits resulting from Jimmy Don's disappearance. As noted
above, Andrews elicited testimony from Bruce Roberts that pursuing
benefits from Jimmy Don's disappearance was not suggested by Beets.
Moreover, during his examination of Beets, Andrews attempted to
show that Beets was not interested in any insurance benefits.31
Specifically, during his examination of Beets, the following
colloquy took place:
Andrews: Whose suggestion was it that we try to
collect retirement and insurance money?
Beets: I don't know that anybody suggested it.
Andrews: Was it some two years later?
Beets: Yes, it was about two years later.
Andrews: Was it a lawyer [who] suggested it?
54
Further, during his closing argument, Andrews again attempted to
convey that he had suggested pursuing insurance and pension
benefits, stating:
They're saying that [Beets] killed Jimmy Don Beets for
insurance money. Ladies and gentlemen, she didn't even
know anything about insurance, how much insurance he had
or anything. Me and other lawyers inquired into this.
Never called me in nearly two years . . . . Does that
sound like somebody that's out after insurance money?
Andrews reemphasized this near the end of his argument, asking the
jury:
Did [the prosecutor] ever prove to you, people that she
ever collected any of his retirement proceeds? . . .
[T]he only proof that came in was a lawyer works for
money. If a lawyer sees . . . there's a case there,
they're going to go after it. And I probably should have
gone after it faster. I'm certainly glad now I didn't.
Viewing the record in this case, there is no question that
attempting to show that Beets did not act for remunerative purposes
was an important aspect of Andrews's strategy. Andrews's efforts
to accomplish this objective, both in examination and in argument,
were neutralized to some extent by the court's repeated instruction
Beets: I came to you.
Andrews: Did I send you . . . to some other lawyer?
Beets: I talked to Randy Roberts in your office.
Andrews: Okay. Did you ever push me to just, "Let's
get that money. Let's get that money and the
whole bit." Did you ever do that?
Beets: No, I didn't expect to get any of it.
Additionally, near the conclusion of his examination of Beets,
Andrews inquired whether Beets sought the settlement from the
city "on my [Andrews's] recommendation?" Beets replied yes.
55
that "what the lawyers say is not evidence." As Beets's counsel,
Andrews, the only person besides Beets who could testify about
exactly how the pursuit of the insurance and retirement benefits
began, was precluded from testifying, and the jury was instructed
not to consider as evidence any statements which he made about his
involvement. Moreover, it is possible that the jury discounted the
statements that he did make at trial as impermissible efforts to
bolster his client's case.
Judge Higginbotham's view about the importance to Beets's
defense of Andrews's testimony, set out succinctly in his
concurrence to the panel opinion in this case, bears repeating:
Andrews's testimony could have significantly bolstered
th[e] defense. . . . Andrews . . . could have told the
jury that he mentioned to Beets the possibility of
receiving benefits shortly after Jimmy Don's
disappearance. Any later interest or inquiry into
benefits could have been attributable to this post-murder
information. Moreover, Andrews could have established
Beets's lack of knowledge at a time closer to the murder
than Roberts' evidence. Andrews's testimony was not
merely cumulative. . . . It certainly would have been in
Beets's best interest for Andrews to have testified.
Beets v. Collins, 986 F.2d 1478, 1491 (5th Cir.) (Higginbotham, J.,
specially concurring), reh'g en banc granted, 998 F.2d 253 (5th
Cir. 1993).
B. The District Court's Findings
A full grasp of this case also requires a careful
consideration of the district court's findings. The district court
began its Order by noting that "it is apparent that the defense
counsel, E. Ray Andrews, fought for his client to the full extent
56
of his ability and energy. . . . Andrews is well known to the
Court as a competent and tenacious criminal lawyer."
Subsequently, the district court ruled against Beets on most
of her habeas claims, and then turned to "the issue which ha[d]
proven most troublesome . . . [Beets's] Sixth Amendment claim."
The court started its analysis by stating that "there are actually
two conflicts in this case, the conflict created by the media
rights contract . . . and the conflict arising from the fact that
the attorney should have been a witness instead of an advocate . .
. ." Although the district court stated that "the two conflicts
may be intertwined to a limited extent," it addressed the conflicts
separately.
After examining the framework for analyzing Sixth Amendment
challenges based on conflicts of interest, as set forth by the
Supreme Court in Cuyler v. Sullivan, 446 U.S. 335 (1980), the
district court concluded:
Mere demonstration of an actual conflict is insufficient;
the term ``adverse' must mean that some negative impact on
counsel's performance is required. After careful
consideration, this court is of the opinion that an
adverse effect on performance is demonstrated when
counsel, laboring under an actual conflict of interest,
pursues some course of conduct inconsistent with the best
interest of his client.
Applying this standard, the district court first reemphasized
that Beets had "demonstrated two actual conflicts of interest in
this case, the media rights conflict and the witness/advocate
conflict." The court then turned to the adverse effect prong of
its analysis. As to the media rights conflict, the court "simply
d[id] not believe that [it] affected Andrews'[s] performance at any
57
conscious level. There is, of course, no adverse effect when there
is no effect at all." The court also noted, however, that "[t]he
possibility exists that the media rights contract motivated Andrews
at a subconscious level to remain in the case when he should have
withdrawn and testified for Petitioner. To that limited extent,
the two conflicts are intertwined." The district court did not
explore this relationship, finding instead that "the
witness/advocate conflict is a separate conflict which did in fact
adversely affect Andrews's performance. This is sufficient under
Cuyler without a detailed analysis of Andrews'[s] possible
motivation."
As to the witness/advocate conflict, the court described
Andrews's knowledge of Beets's pursuit of benefits resulting from
her husband's death as well as Andrews's efforts to communicate
that knowledge to the jury. The district court found that those
efforts were insufficient, stating that "Andrews obviously should
have known of his dual status as a witness and advocate prior to
trial. Andrews'[s] dual status should have also been apparent to
both the judge and district attorney as the trial unfolded."
Although the district court recognized that "the conflict never
occurred to any of the participants," it also noted that "[t]he
testimony that Andrews could have provided as an independent
witness related to an essential element of the State's charge of
murder for remuneration." Thus, the district court concluded that
"counsel pursued a course of conduct inconsistent with his client's
best interest when he accepted employment or failed to withdraw and
58
testify as a witness on [Beets's] behalf." Accordingly, the
district court granted Beets's habeas petition.
With a clear understanding of the factual background and
district court findings in the case, I turn to an examination of
the substantive issues in this appeal. To establish a Sixth
Amendment violation, the Supreme Court has held that a defendant
who did not raise the objection at trial "must demonstrate that an
actual conflict of interest adversely affected his lawyer's
performance." Cuyler, 446 U.S. at 348. I first present what seem
to me to be the threshold inquiries in the context of an asserted
Sixth Amendment violation involving a conflict between the interest
of a lawyer and the interest of his client. I look then at the
question whether an actual conflict of interest existed between
Andrews and Beets, and at the question whether any such conflict
adversely affected Andrews's performance. Finally, I address why
the Cuyler standard, as opposed to the more stringent Strickland
standard, should apply to this case.
II. THE CONFLICT BETWEEN ATTORNEY AND CLIENT
A. The Threshold Inquiries
The Second Circuit's decision in Winkler v. Keane, 7 F.3d 304
(2d Cir. 1993), cert. denied, 114 S. Ct. 1407 (1994), is
particularly instructive in this case because, unlike the many
cases addressing the actual conflict issue in the multiple
representation context, Winkler addresses a conflict between the
interest of the lawyer and the interest of his client. The issue
59
presented by Winkler was whether a contingency fee agreement
between a criminal defendant and his attorney created a conflict of
interest for the attorney resulting in a violation of the
defendant's Sixth Amendment right to effective assistance of
counsel. The court began by noting that an attorney has an actual,
as opposed to a potential, conflict of interest "when, during the
course of the representation, the attorney's and defendant's
interests diverge with respect to a material factual or legal issue
or to a course of action." Id. at 307 (emphasis added) (internal
quotation omitted). Having defined when an actual conflict of
interest exists between an attorney and his client, the court went
on to analyze the alleged conflict at issue:
Winkler argues that the contingency fee created an
actual conflict of interest for trial counsel because
Winkler's interests in effective representation were
pitted against trial counsel's monetary interest. We
agree. The contingency fee agreement in this case
provided trial counsel with an extra $25,000 only if
Winkler was acquitted or otherwise not found guilty.
Thus, trial counsel had a disincentive to seek a plea
agreement, or to put forth mitigating defenses that would
result in conviction of a lesser included offense.
Plainly the contingency fee agreement created an actual
conflict of interest.
Id. at 307-08. It is important to note that the Winkler court
focused only on the objective divergence of interests between the
lawyer and his client to determine whether an actual conflict
existed. Having found such a conflict, the court went on to reject
Winkler's argument that proof of adverse effect was not needed to
grant relief under the Sixth Amendment. The court held that to
prove a Sixth Amendment violation, Winkler must meet the Cuyler
60
standard, and that standard required proof of an adverse effect.
See id. at 308.
Winkler argued that he was adversely affected by his counsel's
failure to initiate or to engage in plea bargaining and by his
counsel's failure to develop an intoxication defense to Winkler's
second degree murder charge. According to Winkler, both of these
alleged failures were motivated by his counsel's pecuniary interest
in total acquittal, which was the only outcome that would entitle
counsel to payment of the $25,000 bonus under the contingency fee
agreement. See id. at 309.
To address these adverse effect arguments, the court laid out
a test for "prov[ing] adverse effect on the basis of what an
attorney failed to do":
[a defendant first] must demonstrate that some plausible
alternative defense strategy or tactic might have been
pursued. He need not show that the defense would
necessarily have been successful if it had been used, but
that it possessed sufficient substance to be a viable
alternative. Second, he must establish that the
alternative defense was inherently in conflict with or
not undertaken due to the attorney's other loyalties or
interests.
Id. (quoting United States v. Gambino, 864 F.2d 1064, 1070 (3d Cir.
1988) (quoting United States v. Fahey, 769 F.2d 829, 836 (1st Cir.
1985)), cert. denied, 492 U.S. 906 (1989)).
In applying the test, the court looked first at the failure to
initiate plea bargaining. The court noted that the state court
(which had held a hearing on the defendant's attorney-conflict
claim) had found that in an alleged contract murder case, the
61
prosecution would have been highly unlikely to accept a plea
agreement. The court held, however, that:
Winkler need not show that a strategy would have been
successful, only that it "possessed sufficient substance
to be a viable alternative." Even if it is likely to be
unsuccessful, the negotiation of a plea bargain in a case
in which the evidence is strongly against a defendant is
a viable alternative.
Id. (citation omitted). The court's determination that a viable
alternative had not been pursued did not end the adverse effect
inquiry. The court noted that the state court had found that plea
bargain possibilities were not pursued because Winkler had advised
his counsel that he was totally innocent and that he was not
interested in pleading to a lesser charge even if the opportunity
to do so were offered. See id. Thus, the Winkler court concluded
that "trial counsel did not pursue a plea bargain because Winkler
rejected this path, not because of trial counsel's monetary
interest in the outcome." Id. (emphasis added).
The court made the same kind of inquiry into the failure to
develop an intoxication defense. Because "Winkler had snorted
cocaine and smoked marijuana before the fatal event," the court
found that an intoxication defense also had sufficient substance to
be a viable alternative. See id. at 310. Nevertheless, the court
found that Winkler's counsel had discussed the possibility of a
conviction of lesser charges on the basis of intoxication, but
Winkler had rejected this alternative, again asserting his
innocence. See id. The court accepted the state court's factual
conclusion that "Winkler failed to establish that the fee
arrangement caused trial counsel not to seek a conviction for
62
lesser charges." Id. (emphasis added). The court ended by
concluding that Winkler had "failed to prove that trial counsel's
representation was adversely affected by the conflict of interest.
Thus, his Sixth Amendment right to counsel was not violated." Id.
In summary, the Winkler court made three distinct inquiries in
its Sixth Amendment analysis. First, the court determined whether
an actual conflict of interest existed between the lawyer and his
client by asking whether the attorney's and defendant's interests
diverged with respect to a material factual or legal issue or to a
course of action. Second, in addressing whether there had been an
adverse effect, the court inquired as to whether a viable
alternative might have been pursued. Third, the court made a
proximate cause inquiry, asking whether the viable alternative was
not pursued because of the conflict. A Sixth Amendment violation
was made out only if all three inquiries were affirmatively
answered -- i.e., the interests of the lawyer and his client
diverged, a viable alternative was not pursued, and the failure to
pursue the viable alternative was caused by the divergent
interests. Using this threshold framework, I proceed to Beets's
case.
B. Was there a Conflict?
As described above, the district court found that Beets
"demonstrated two actual conflicts of interest in this case, the
media rights conflict and the witness/advocate conflict." I will
address these two "conflicts" separately, turning first to the
media rights conflict.
63
1. Media Rights
A conflict of interest between Beets and Andrews existed not
later than the point at which the formal contract giving Andrews's
son the media rights to the Betty Lou Beets story was executed, and
perhaps earlier. The majority "joins other courts, scholars and
organizations of the bar who have uniformly denounced the execution
of literary and media rights fee arrangements between attorneys and
their clients during the pendency of a representation." Beets,
F.3d at *32. What the majority fails to acknowledge is the reason
for such uniform condemnation -- the extraordinarily high
probability that a media rights contract between counsel and client
will create a conflict of interest. When Andrews began his
representation of Beets on her murder charge, Texas's rules of
ethics provided that "[p]rior to conclusion of all aspects of the
matter giving rise to his employment, a lawyer shall not enter into
any arrangement or understanding with a client . . . by which he
acquires an interest in publication rights with respect to the
subject matter of his employment." State Bar Rules, art. X, § 9,
DR 5-104(B) (Texas Code of Professional Responsibility) (1984).32
Similarly, the American Bar Association's Model Code of
Professional Responsibility and Model Rules of Professional
Conduct prohibit (and continue to forbid) a lawyer from obtaining
media rights to his client's case. See Model Rules of
Professional Conduct Rule 1.8(d) (mandating that "[p]rior to the
conclusion of representation of a client, a lawyer shall not make
or negotiate an agreement giving the lawyer literary or media
rights to a portrayal or account based in substantial part on
information relating to the representation"); Model Code of
Professional Responsibility EC 5-4 (mirroring the language of the
Texas rule).
64
The reason for the rule is clear. Despite the majority's
assertions, media rights contracts are not prohibited primarily
because they "encourage counsel to misuse the judicial process for
the sake of his [own] enrichment and publicity seeking" or because
they "necessarily trade[] on the misery of the victim and his
family." Beets, F.3d at *32. While ensuring that the
judicial process is not misused and discouraging manipulation of
the suffering of others for profit are important goals,
commentators uniformly agree that the reason media contracts are
frowned upon is because "[a]n agreement by which a lawyer acquires
literary or media rights concerning the conduct of the
representation creates a conflict between the interests of the
client and the personal interests of the lawyer." Laws. Man. on
Prof. Conduct (ABA/BNA) 51:702 (1984) (emphasis added); see also
John Wesley Hall, Jr., Professional Responsibility of the Criminal
Lawyer § 12.13, at 414 (1987) ("A grave conflict of interest can
arise from a [media rights contract] . . . ." (internal quotation
omitted)); Geoffrey C. Hazard, Jr. & Susan P. Koniak, The Law and
Ethics of Lawyering 498 (1990) ("The reason for prohibiting such
arrangements is that what makes ``good copy' does not necessarily
make a good defense."); Robert P. Schuwerk & John F. Sutton, Jr.,
A Guide to the Texas Disciplinary Rules of Professional Conduct,
27A Hous. L. Rev. 133 (1990) ("The lawyer's acquisition from a
client of publication rights to portrayals or accounts of the
subject of the representation will probably create a conflict of
interests."); Charles W. Wolfram, Modern Legal Ethics § 9.3.3, at
65
525 (1986) ("The problems [with media rights contracts] are two --
conflict of interests and the revelation of client information . .
. .").
The rules against media rights contracts are designed to
prevent the specific conflict resonating in this case; simply put,
"a lawyer in a criminal case who obtains from his client
television, radio, motion picture, newspaper, magazine, book, or
other publication rights with respect to the case may be
influenced, consciously or unconsciously, to a course of conduct
that will enhance the value of his publication rights to the
prejudice of his client." State Bar Rules, art. X, § 9, EC 5-4
(Texas Code of Professional Responsibility) (1984) (emphasis
added). Plainly, a media rights contract "``may place the lawyer
under temptation to conduct the defense with an eye on the literary
aspects and its dramatic potential. If such an arrangement or
contract is part of the fee, in lieu of the fee, or a condition of
accepting the employment, it is especially reprehensible.'" Hall,
supra, § 12.12, at 414 n.19 (quoting ABA Standards, The Defense
Function Std 4-3.4, Commentary).33 In fact, a media rights contract
is so rife with conflict that under Texas's rules "client consent
See also Laws. Man. on Prof. Conduct, supra, at 51:702 (stating
that the purpose of the prohibition is to "avoid the conflict of
interest that would arise if the course of action that would
further the client's cause would at the same time diminish the
value of the lawyer's publication rights"); Schuwerk and
Sutton, supra, at 134 (noting that a lawyer who is the
beneficiary of a media rights contract "may be tempted to take
various actions in the representation of the client based on
their effect upon the value of the publication rights.").
66
will not cure a violation of [the prohibitions of media
contracts]." Schuwerk & Sutton, supra, at 134.
In the instant case, the media contract weighed on Andrews's
mind from the beginning of his representation. At the very least,
the contract placed him in a situation of divided interests.
Before the advent of the media rights contract, Beets's interest
lay in having Andrews withdraw as her counsel and testify at her
trial that he had initiated the idea of searching for Jimmy Don's
insurance and pension benefits. As her attorney, this was also
Andrews's interest because he was obligated to see to it that his
client's best defense was put forward. After the media rights
contract was confected, the interests of Beets and Andrews sharply
diverged. While Beets's interest remained in having Andrews
withdraw and testify, Andrews's interest now squarely lay in
remaining as her counsel because only then would he be entitled to
the potentially lucrative media rights. The record makes clear
that the district court did not err in finding that Beets
demonstrated that Andrews had an actual conflict of interest in
regard to the media rights contract.
2. The Lawyer as Witness
The district court also recognized a second conflict of
interest, Andrews's advocate/witness conflict. The district court
and the majority treat this conflict separately from the media
rights conflict. In a situation where a lawyer can provide
favorable testimony material to his client's case, his failure to
withdraw and testify may or may not stem from an actual conflict --
67
i.e., from a divergence of interests between the lawyer and his
client. If the failure to withdraw is caused, for example, by a
desire to stay in the case for the fee involved, a conflict of
interest may exist. As one commentator has suggested, when a
lawyer has a duty to withdraw and testify in favor of his client,
but does not do so, "[s]uch a decision would raise serious
questions about either the lawyer's competence or about the effect
of a conflict of interest." Wolfram, supra, § 7.5.2, at 381
(emphasis added). According to this commentator:
The conflict is between the lawyer's duty of loyalty to
the client, which urges the lawyer to give the needed
testimony, and the lawyer's economic instincts, which may
lead the lawyer to remain in the case as advocate in
order to continue earning a fee that otherwise would have
to be abandoned.
Id. (emphasis added). In my view, while Andrews's role as both an
advocate and a potential witness may well have violated the
applicable ethical rules,34 its significance for this case lies not
The Texas standards of professional conduct in effect at the
time of Beets's trial frowned upon an individual's acting as
counsel in a case when he may also be called upon to serve as a
witness. Specifically, the rule provided that:
If, after undertaking employment in contemplated or
pending litigation, a lawyer learns or it is obvious
that he . . . ought to be called as a witness on behalf
of his client, he shall withdraw from the conduct of
the trial and . . . shall not continue representation
in the trial.
State Bar Rules, art. X, § 9, DR 5-102 (1984). The Rule provided
for certain exceptions as well. See Texas State Bar Rules, art.
X, § 9, DR 5-101(B) (1984).
The rationale behind this rule is somewhat different from
the reasons animating the prohibition against media rights
contracts. Thus, while "the dual role [of advocate and witness]
may be detrimental to the client's interests because the lawyer
68
in its possible status as an independent conflict, but rather in
its relationship to the media rights conflict. That is, as the
district court recognized but did not explicitly resolve, the
question remaining in this case is whether the media rights
contract is what caused Andrews to remain in the case as counsel.35
C. Was Andrews's Representation Adversely Affected?
may be more impeachable on grounds of bias," it is also
recognized that:
The most cogent rationale for the advocate-witness
rule rests on protection of the fact-finding process.
[The] adversary system works best when the roles of the
judge, of the attorneys, and of the witnesses are
clearly defined. Any mixing of those roles inevitably
diminishes the effectiveness of the entire system.
Schuwerk & Sutton, supra, at 317-18 (internal quotations
omitted). Other commentators agree, noting that:
The rationales [for rules limiting a lawyer by
prohibiting media contracts and limiting a lawyer from
acting as a witness] are simple. First, the attorney
has built-in bias which must be argued to the finder of
fact. Second, it is assumed that lawyers as advocates
would bend the facts for the client or that the jury
would give the lawyer's testimony too much credence.
Third, the lawyer-witness role may inhibit effective
cross-examination.
Hall, supra, § 12.10, at 412 (footnotes omitted).
Specifically the district court stated:
The possibility exists that the media rights contract
motivated Andrews at a subconscious level to remain in
the case when he should have withdrawn and testified
for [Beets]. To that limited extent, the two conflicts
are intertwined. However, this Court has determined
that the witness/advocate conflict is a separate
conflict which did in fact adversely affect Andrews'[s]
performance. This is sufficient under Cuyler without a
detailed analysis of Andrews'[s] possible motivation.
69
Under Cuyler, a defendant does not have the burden of showing
actual prejudice -- i.e., the defendant does not have to show that
the result of the trial probably would have been different. See
Strickland, 466 U.S. at 691-96; United States v. Greig, 967 F.2d
1018, 1024 (5th Cir. 1992). Instead, the defendant needs to
demonstrate an adverse effect upon his representation, and
"Cuyler's adverse effect element establishes a relatively low
threshold for a petitioner to cross." Beets, 986 F.2d at 1490
(Higginbotham, J., specially concurring). A limited presumption of
prejudice arises from a showing of adverse effect because, as the
Supreme Court has noted, "it is difficult to measure the precise
effect on the defense of representation corrupted by conflicting
interests." Strickland, 466 U.S. at 692. To establish an adverse
effect on the basis of what an attorney failed to do, a defendant
must demonstrate that some plausible alternative defense strategy
or tactic -- "a viable alternative" -- might have been pursued.
See, e.g., Winkler, 7 F.3d at 309.
In Beets's case, Andrews's failure to testify had an adverse
effect on her defense, as Andrews's testimony was clearly a viable
alternative. Throughout the trial, Beets attacked the remuneration
element of the State's case on which her capital murder conviction
rested. Andrews had significant testimony to offer bearing on the
critical issue of whether the killing of Jimmy Don was for a
remunerative purpose, specifically to obtain Jimmy Don's life
insurance proceeds and pension benefits. If the jury reasonably
70
doubted that Beets killed her husband for the insurance money, the
murder was not a capital offense.
The majority downplays the importance of Andrews's testimony
by referring to it as "cumulative." Beets, F.3d at *40, 41.
Of course, as mentioned, Beets does not need to show that Andrews's
testimony would have been successful, but only that it possessed
sufficient substance to be a viable alternative. See Winkler, 7
F.3d at 309. Andrews's testimony clearly meets this standard, and
the suggestion that his testimony is cumulative is simply based
upon an erroneous reading of the record. As evidence of the
cumulative nature of Andrews's testimony, the majority points to
Beets's own testimony that she was unaware of Jimmy Don's death
benefits before she visited Andrews. But the jury may well have
discounted Beets's testimony because of its self-serving nature.
The majority also points to the testimony of Bruce Roberts,
who stated that more than a year after Jimmy Don's murder, Beets
seemed ignorant of his insurance and benefits. Roberts's
testimony, however, was damaging in certain respects to Beets's
defense. Although Roberts did testify that Beets's "primary
concern was . . . with the fire insurance company" and that Beets
never pressured him to collect money from the City of Dallas,
Roberts was also asked what Beets knew about benefits when she
first came to him. In response, Roberts stated:
At the time I talked to her, she had one -- well, it
looked like part of a policy, as I recall, from the
credit union in Dallas. She also knew that she had or
was asking me to check into pension benefits. Basically,
that's all the information she could give me.
71
Thus, Roberts did not definitively testify that Beets was ignorant
about the possibility of collecting benefits. Further, Roberts did
not, and could not have, testified that Andrews suggested to Beets
that they pursue Jimmy Don's insurance and pension benefits because
Roberts was not present at the meeting between Beets and Andrews at
which that suggestion was made.
Other than Beets, only Andrews could have told the jury that
he initiated the discussion regarding Jimmy Don's death benefits
with Beets, and only Andrews could have testified that she appeared
to lack knowledge of any such benefits. Further, only Andrews
could have testified that it was at his suggestion that those death
benefits were pursued. Any later interest or inquiry into benefits
by or on behalf of Beets could have been attributable to this
meeting between Beets and Andrews that took place long after Jimmy
Don's murder.
Similarly, the majority's invocation of Denny Burris's
testimony to downplay any adverse effect from the absence of
Andrews's testimony is erroneous. Burris, a disinterested witness,
stated that Beets inquired about Jimmy Don's insurance soon after
the murder. The suggestion is that because Beets discussed
insurance with Burris, a chaplain, the biased testimony of Andrews
was unlikely to have swayed the jury and its absence was
unimportant. First of all, it is again worth mentioning that any
suggestion that Andrews's testimony would not have been successful
to Beets's defense is irrelevant. Second, although Burris was a
chaplain, his assignment was to discuss with Beets the benefits due
72
to the widow of a fireman. "[I]t was not a mission to console a
widow with prayer where the widow's interest was insurance not
intercession." Beets, 986 F.2d at 1491 (Higginbotham, J.,
specially concurring). Thus, the evidence of Beets's early focus
on insurance, as the State would have it, is not so compelling.
Finally, Burris's specific testimony did not show that Beets
already knew about Jimmy Don's insurance and pension benefits.
Rather, Burris testified that, several days after Jimmy Don's
disappearance, Beets "asked about insurance, if she would be
covered and things like that."
In short, it is all too clear that Andrews's testimony was a
viable alternative, and his failure to testify had an adverse
effect on Beets's defense. I agree with the assessment of Judge
Higginbotham in his special concurrence to the panel opinion:
Andrews's testimony was not merely cumulative. I cannot
conclude that it would not have been helpful to Beets at
trial. It certainly would have been in Beets's best
interest for Andrews to have testified. Given the low
threshold established by Cuyler, I would not reject [the
district court's] conclusion that Andrews's failure to
give this evidence at trial adversely affected the
conduct of her defense.
Id. at 1491-92 (Higginbotham, J., specially concurring).
Our task is not yet complete, however, as the third Winkler
inquiry still remains on the table: whether Andrews's withdrawal
and testimony -- the "viable alternative" -- was not pursued
because of the media rights conflict. This is a fact-bound
question that the district court did not directly answer.36 After
I recognize that the ultimate question whether a conflict of
interest existed here is a mixed question of law and fact, see
73
hearing evidence, the district court found that "Andrews obviously
should have known of his dual status as witness and advocate prior
to trial." The district court also concluded that Andrews "pursued
a course of conduct inconsistent with his client's best interest
when he accepted employment or failed to withdraw and testify as a
witness on Petitioner's behalf."
On the other hand, the court concluded that the media rights
contract did not affect Andrews's performance "at any conscious
level." The court noted, however, that "[t]he possibility exists
that the media rights contract motivated Andrews at a subconscious
level to remain in the case when he should have withdrawn and
testified for Petitioner. To that limited extent, the two
conflicts are intertwined." These statements suggest that the
district court did not definitively resolve whether Andrews's
failure to withdraw and testify was attributable in some fashion to
his actual conflict of interest arising from the media rights
contract.
The majority holds that there is no need to remand this case
to the district court for an explicit finding on whether the media
rights contract caused Andrews to fail to withdraw for two reasons.
First, the majority invokes, for the first time in the five years
that this case has been in federal court, the presumption of
correctness afforded by 28 U.S.C. § 2254(d) to the findings of fact
Strickland, 466 U.S. at 698 (citing Cuyler, 446 U.S. at 342), but
its fact-bound components, such as whether Andrews's failure to
withdraw and testify was caused by the media rights contract,
should be addressed in the first instance by the district court.
74
made by the state trial court judge on Beets's state habeas
petition. The state trial court found as a fact that
"[p]etitioner's grant of ``book rights' to the son of her counsel
had no effect on the strategy of defense counsel." This finding
was based on the trial court's own personal recollection of the
trial and on Andrews's affidavit which stated that:
defense attorney had no conflict of interest throughout
the proceedings by agreeing that book rights would be his
entire fee, said defense attorney has no book rights,
these rights were given to said attorney's son and were
only given after the trial was into its third or fourth
day, the State Bar of Texas has found said defense
attorney committed no improprieties with regard to this
matter.
At no point during the course of Beets's federal habeas proceedings
has the State sought to invoke the presumption of correctness
afforded by § 2254(d). Beets filed a motion for an evidentiary
hearing along with her federal habeas petition. When the State
filed its response (and an amended response) to Beets's petition,
it did not object to the hearing and, in responding to Beets's
claim of an actual conflict of interest, the State asserted:
Respondent denies that there was any conflict of interest
in this case. However, because the Court has scheduled
an evidentiary hearing on the issue, rather than argue
the claim at this time, Respondent will rely on the facts
developed at that hearing.
(emphasis added). Finally, the State (appellant in this court) did
not raise the preclusive effect of the state court's habeas
findings in any of the many briefs it has filed with this court.
Neither the panel opinion nor Judge Higginbotham's special
concurrence mentions § 2254(d) or Sumner v. Mata, 449 U.S. 539
(1981), or any of its progeny. In a last ditch effort to avoid
75
dealing with the ambiguities in the federal district court's fact
findings, the presumption of correctness has been resurrected
despite the State's unwillingness to invoke it. Because no party
has addressed the presumption of correctness, we cannot determine
whether any of its exceptions applies. For example, we do not know
the position of the State or Beets on whether the factfinding
procedure employed by the state court was adequate to afford a full
and fair hearing or whether the material facts were adequately
developed at the state court hearing. See 28 U.S.C. § 2254(d)(3)
and (4). This case should not be decided at this late date on a
basis not raised by the parties.
The majority asserts as its second reason why, applying
Cuyler, there is no need to remand for an explicit finding on
causation the district court's statement that "the court simply
does not believe that the media rights contract affected Andrews'
performance at any conscious level." The majority ignores the
district court's recognition of a possible connection between the
media rights contract and what it termed the "witness/advocate
conflict" and its failure to resolve the ultimate question whether
they were related. The majority also ignores the contradiction
inherent in the district court's opinion in finding the
witness/advocate ethical problem to be an actual conflict (thereby
implying that it stemmed from a divergence of interests between
Andrews and Beets) while finding at the same time that the media
rights contract (the likely source of the divergence) had no
conscious effect on Andrews's performance.
76
In my view, because the district court did not explicitly
decide whether Andrews's failure to withdraw and testify was caused
by the actual conflict engendered by the media rights contract, the
wiser course is to vacate the district court's judgment granting
the writ and to remand the case so that the district court may
consider the question in the first instance. If the district court
determines on remand that Andrews's failure to withdraw and testify
was caused by the actual conflict of interest arising from the
execution of the media rights contract, with its powerful incentive
to remain in the case, then Beets will have successfully
demonstrated "that an actual conflict of interest adversely
affected [her] lawyer's performance," Cuyler, 446 U.S. at 350, and
she will be entitled to habeas relief. The judgment granting the
writ should then be reinstated. If, on the other hand, the
district court concludes that Andrews's failure to withdraw and
testify was not caused by the actual conflict stemming from the
media rights contract, then that failure should be analyzed under
Strickland. On this record, there is no reasonable probability
that the outcome of Beets's trial would have been different, and
Beets has failed to satisfy the prejudice prong of Strickland. The
writ should then be denied.
D. The Majority Opinion
Before explaining why Cuyler, as distinguished from
Strickland, applies to this case, I turn to an examination of the
problems in the majority's approach to the existence of a conflict
in this case.
77
The majority is squarely faced with the district court's fact-
bound conclusion that Beets "demonstrated two actual conflicts of
interest in this case, the media rights conflict and the
witness/advocate conflict." The majority holds, however, that
"only a potential and not an actual conflict arose between Beets
and her lawyer." Beets, F.3d at *2.
The majority discounts the district court's conclusion that an
actual conflict existed by reason of the media rights contract,
noting that:
[T]he media rights contract posed a serious potential
conflict of interest, [but] Beets failed to show how it
hindered Andrews's presentation of her defense or
prejudiced her by rendering the result of her criminal
prosecution fundamentally unreliable. Beets has not
asserted that Andrews manipulated the case to enhance
publicity or that the contract generally clouded his good
judgment. Beets has shown no actual influence of the
media rights contract on the conduct of her defense.
Beets, F.3d at *34. Moreover, the majority later seems to
resurrect the vacated panel opinion, noting that two judges held in
that opinion "[a]s to the media rights contract, there was no
``actual conflict' . . . because . . . [t]he record does not
demonstrate that the contract induced Andrews to compromise his
zealous representation of Beets in favor of his own pecuniary
interest." Id. at *43.
Similarly, in discussing whether there was a conflict in
Andrews's failure to withdraw and testify, the majority states that
"[b]ecause Andrews's potential testimony for Beets was cumulative,
he was not a necessary witness for her defense and did not face a
substantial advocate/witness conflict." Beets, F.3d at *40-41.
78
Again, the majority seems to resurrect the conclusion of the panel
opinion that "Beets alleged, at most, a merely hypothetical or
speculative witness/advocate conflict, which did not materialize
into an actual conflict that forced Andrews to choose between his
self-interest and his duty to Beets." Beets, F.3d at *42.
The majority's conclusions fail on two levels. First, the
majority suggests that an actual conflict does not exist until an
attorney makes a "choice" between his interest and the interest of
his client. Building on the requirement of a "choice," the majority
seems to add (as did the panel) a scienter element to conflict
analysis, inserting a requirement, heretofore alien to the law,
that an attorney must consciously recognize that he is operating
under a conflict before that conflict can be said to actually
exist. Second and most noticeably, the majority conflates the
existence and effect elements of the analysis by concluding that a
conflict did not exist because Beets failed to demonstrate an
effect.
1. The Function of "Choice" in Conflict Analysis
The majority looks to statements by the Seventh, Tenth, and
Eleventh Circuits to support the panel's contention that an actual
conflict does not exist until an attorney makes a "choice" between
his interest and the interest of his client. See Beets, F.3d
at *42 (citing Stevenson v. Newsome, 774 F.2d 1558, 1561-62 (11th
Cir. 1985), cert. denied, 475 U.S. 1089 (1986); United States v.
Litchfield, 959 F.2d 1514, 1518 (10th Cir. 1992); United States v.
Acevedo, 891 F.2d 607, 610 (7th Cir. 1989); United States v.
79
Horton, 845 F.2d 1414, 1419 (7th Cir. 1988)). The concept of
"making a choice" is typically used in cases where an attorney has
a potential conflict (frequently between two clients) -- i.e., a
situation where interests have not yet diverged but could do so in
the future. The courts look to whether a "choice" has been made
only to signal that a divergence of interests has occurred -- i.e.,
only to signal that a potential conflict has become an actual
conflict. The central question is whether the interests have
diverged, and the concept of "making a choice" is an analytical
tool used to answer this question.
The cases cited by the majority support this proposition. See
Stevenson, 774 F.2d at 1562 (noting that "[t]here is no evidence in
this case that [the attorney] was subject to divided loyalties
sufficient to establish an actual conflict of interest", thus,
rejecting Stevenson's allegations upon a determination that
divergent interests were absent from the case) (emphasis added);
Horton, 845 F.2d at 1420 (focusing on the absence of divergent
interests in finding no conflict was created by counsel's
application for a position as a United States Attorney by stating
that "[i]n any event, a candidate for a high federal position in
his professional field would not advance his own interest by
demonstrating that he is a weak or unskilled attorney on behalf of
his client's interests."); Acevedo, 891 F.2d at 610 (failing to
find conflict, but noting that if Acevedo had alleged in her
affidavit that her attorney was involved with her in the criminal
activity, he "would have an obvious interest in preventing Acevedo
80
from testifying and thus implicating him in the illegal scheme");
Litchfield, 959 F.2d at 1518 (rejecting defendant's claim that a
conflict of interest arose because trial counsel, concerned that
defendant was going to commit perjury, held an ex parte conference
with judge, noting that "[t]he situation presented counsel with a
difficult dilemma, and we cannot say that his ex parte discussion
with the district court was a violation of his ethical duty or
evidence of a conflict of interest.")
This focus on divergent interests to determine whether an
actual conflict of interest exists is also the focus in our
circuit: "``[a] conflict exists when defense counsel places himself
in a position conducive to divided loyalties.'" United States v.
Vaquero, 997 F.2d 78, 89 (5th Cir.) (quoting United States v.
Carpenter, 769 F.2d 258, 263 (5th Cir. 1985)), cert. denied, 114 S.
Ct. 614 (1993); accord Mitchell v. Maggio, 679 F.2d 77, 79 (5th
Cir.), cert. denied, 459 U.S. 912 (1982).
In Beets's case, divergent interests existed, at the latest,
when Andrews executed the media rights contract. At that point, it
was in Beets's interest for Andrews to withdraw and testify, while
it was in Andrews's interest to remain as counsel so that he would
receive the value of the media rights.
The majority recognizes that disagreements between the
majority and this dissent exist not only on whether there was an
actual (as opposed to a potential) conflict but also on whether the
conflict should be judged from an objective standpoint. Beets,
F.3d at *45. In my view, it is important to be clear that
81
determining whether divergent interests are present such that an
actual conflict exists contemplates an objective evaluation of the
situation in which counsel is placed.37 As the Ninth Circuit
recently noted, "[t]he existence of an actual conflict cannot be
governed solely by the perceptions of the attorney; rather, the
court itself must examine the record to discern whether the
attorney's behavior seems to have been influenced by the suggested
conflict." Sanders v. Ratelle, 21 F.3d 1446, 1452 (9th Cir. 1994).
This objective evaluation makes perfect sense, for if the rule
were as the majority suggests, counsel's actions benefiting himself
and harming his client would not be actual conflicts, irrespective
of their effect on the proceedings, as long as counsel was too
obtuse, insensitive, or selfish to recognize that the pursuit of
his own goals was coming at the expense of his client's defense.
As the Supreme Court commented in an analogous context, "[i]t is
unlikely that [an attorney] would concede that he continued
improperly to act as counsel." Wood v. Georgia, 450 U.S. 261, 265
n.5 (1981) (describing how the conflict of interest was properly
presented when the lawyer who allegedly had the conflict of
interest had prepared the brief and the petition for certiorari).
The fact that Andrews arguably chose to continue his representation
thoughtlessly as opposed to deliberately does not obviate the fact
To say that the inquiry whether an actual conflict exists
contemplates an objective evaluation of the situation in which
counsel is placed, i.e., that counsel's subjective perceptions
cannot control the outcome of that inquiry, is supported by the
Court's conclusion that the question whether a conflict exists is
a mixed question of law and fact. See Cuyler, 446 U.S. at 342.
82
that given the possible decisions he could have made as an
attorney, he undertook a course of action that benefited himself
while hindering Beets's defense. Simply put, an actual conflict is
demonstrated when a defendant objectively shows that his interest
and his attorney's interest diverged with respect to a material
factual or legal issue or to a course of action, and such a
divergence occurred in this case.38
2. Separating the Existence of a Conflict from the
Effect of a Conflict
The majority also contends that there was no actual conflict
in the context of the media rights contract "because . . . [t]he
record does not demonstrate that the contract induced Andrews to
compromise his zealous representation of Beets in favor of his own
pecuniary interest." Beets, F.3d at *43. Similarly, in the
lawyer as witness context, the majority contends that there was no
actual conflict "[b]ecause Andrews's potential testimony for Beets
Until the panel's decision (which echoes in the majority
opinion), there had been no question that the conflict inquiry is
objective in the ordinary civil context. For example, in
situations where a law firm is alleged to have a conflict of
interest stemming from serial representation, whether the
attorneys in that firm recognized or even knew about the conflict
is not controlling. Instead, if an objective standard is met,
i.e. if the "prior representations are substantially related to
the present case," then "the court will irrebuttably presume that
relevant confidential information was disclosed during the former
period of representation." In re American Airlines, 972 F.2d
605, 614 (5th Cir. 1992), cert. denied, 113 S. Ct. 1262 (1993).
In such cases, there is little doubt that a law firm could not
avoid disqualification by protesting that it neither believed nor
realized that it had a conflict of interest. See In re Martin,
817 F.2d 175, 182 (1st Cir. 1987) (noting that in examining
whether an actual conflict of interest exists, "[s]incerity or
protestations of good faith, no matter how genuine, will not be
enough. The test must be more [of] an objective one.").
83
was cumulative, [and] he was not a necessary witness for her
defense." Id. at *40. As I have pointed out above, this
conclusion has no factual support in the record. As a legal
conclusion, it has no support in the case law surrounding Cuyler;
determining whether there was an actual conflict (as distinguished
from determining whether the Sixth Amendment has been violated)
does not require a showing of an adverse effect.
As the majority concedes, Cuyler incorporates a standard less
rigorous than Strickland. See Strickland, 466 U.S. at 692 (noting
that unlike general ineffective assistance of counsel claims, the
criminal justice system "maintain[s] a fairly rigid rule of
presumed prejudice" in the conflict of interest context). The
reason for this lighter burden in conflict cases is clear. As the
Supreme Court has noted, it "is difficult to measure the precise
effect on the defense of representation corrupted by conflicting
interests," Strickland, 466 U.S. at 692, and accordingly, the Court
has "refused to indulge in nice calculations as to the amount of
prejudice attributable to the conflict." Cuyler, 446 U.S. at 349
(internal quotation omitted). The majority, however, engages in
such a calculation to determine whether a conflict even existed.
The question of whether there actually was a conflict plays an
important role in separating cases where interests diverge -- i.e,
where the attorney places his own or another's interest above the
client's interest -- from those situations where the conflict
remains potential. Whether the conflict actually affected the
representation is a separate inquiry from the question of whether
84
there was an actual conflict. Even when addressing whether a
conflict had an adverse effect, the degree of prejudice caused by
the conflict is not material once any real effect is shown. See
Cuyler, 446 U.S. at 349 ("[A] defendant who shows that a conflict
of interest actually affected the adequacy of his representation
need not demonstrate prejudice.").39
The rule that the majority espouses goes even further than
that prohibited in evaluating actual effect. The majority
collapses the question of effect into the question of actual
conflict. Just as it is improper to evaluate a foregone strategy's
potential for success when determining whether there is an adverse
effect, it is also improper to evaluate that strategy's potential
for success when determining whether there is an actual conflict of
interest.40
Circuit courts have frequently applied this principle.
Thus, as the First, Second, and Third Circuits have noted:
[a defendant first] must demonstrate that some
plausible alternative defense strategy or tactic might
have been pursued. He need not show that the defense
would necessarily have been successful if it had been
used, but that it possessed sufficient substance to be
a viable alternative. Second, he must establish that
the alternative defense was inherently in conflict with
or not undertaken due to the attorney's other loyalties
or interests.
Winkler, 7 F.3d at 309 (quoting Gambino, 864 F.2d at 1070
(alteration in original) (emphasis added)); accord Fahey, 769
F.2d at 836; see also Foxworth v. Wainwright, 516 F.2d 1072, 1077
n.7 (5th Cir. 1975) (noting, before Cuyler or Strickland, that
"[i]f an actual, significant, conflict is found . . . the degree
of prejudice is not to be considered.").
There had been some question in this court about the other
aspect of the test articulated in Cuyler; that is, whether a
petitioner was required to show that an actual conflict of
85
III. WHICH STANDARD -- CUYLER OR STRICKLAND?
The majority holds that Strickland (rather than Cuyler)
governs the analysis of Beets's claim. The majority contends
that Cuyler's analysis is applicable only to conflicts stemming
from multiple representation, and it opines that "Strickland
offers a superior framework for addressing attorney conflicts
outside the multiple or serial client context." Beets, F.3d
at *14. First, I disagree with the majority's conclusion that
Cuyler and the other Supreme Court cases addressing attorney
conflicts support its decision to limit Cuyler to the multiple
representation context.
Second, drawing on those cases and on some of the cases at
the circuit level that apply Cuyler to attorney-client conflicts,
I would apply Cuyler to a conflict between the attorney and his
client which has a highly particularized and powerfully focused
source, of a kind not frequently or normally encountered in the
practice of law. It is these exceptional situations, where the
divergence between the lawyer's self-interest and his client's
interest actually affected his representation. In Baty v.
Balkcolm, 661 F.2d 391, 395 (5th Cir. Unit B Nov. 1981), cert.
denied, 456 U.S. 1011 (1982), we stated our belief that "a
requirement of proof of adverse effect of a conflict of interest
on counsel, in addition to proof of an actual conflict, was not
the intent of the [Supreme] Court in Cuyler." Baty, 661 F.2d at
397 n.13. After the Supreme Court's decision in Strickland, we
revisited that determination, holding that "proof of some adverse
effect is required before prejudice will be presumed from a
showing that the attorney had an actual conflict of interest."
Nealy v. Cabana, 782 F.2d 1362, 1365 (5th Cir.), cert. denied,
479 U.S. 819 (1986). In none of those cases, however, did we
suggest a different standard for determining the first prong of
the Cuyler inquiry -- whether there was an actual conflict.
86
interest poses an extraordinary threat to the lawyer's duty of
loyalty, that warrant the protection of Cuyler. As this court
and other courts have recognized, the conflict stemming from a
media rights contract is such a conflict, as are the conflict
arising from the kind of contingent fee arrangement at issue in
Winkler and the conflict arising from an attorney's involvement
in the allegedly criminal conduct of his client. If we reserve
Cuyler for extraordinary attorney-client conflicts of that sort,
not normally encountered in law practice, and we apply Strickland
to alleged deficiencies in an attorney's performance having their
sources in the more common incidents of the attorney-client
relationship, we avoid having the Cuyler exception swallow the
Strickland rule. At the same time we preserve the benefit of the
Cuyler inquiry for those exceptional cases that lie at the heart
of the principles animating it.
A. Conflict of Interest Jurisprudence
To test the majority's hypothesis that Cuyler applies only
to multiple representation cases, I look first at what the
Supreme Court and other courts have said about attorney
conflicts. It is well-settled that "[w]here a constitutional
right to counsel exists . . . there is a correlative right to
representation that is free from conflict of interest." Wood,
450 U.S. at 271; see also Cuyler, 446 U.S. at 335; Holloway v.
Arkansas, 435 U.S. 475 (1978). The Supreme Court revisited
Cuyler in Wood v. Georgia, 450 U.S. 261 (1981), and it applied
its framework to a conflict created by a third-party's payment of
87
counsel. After examining the record, the Court noted that the
defendants' employer had paid for the defendants' legal
assistance, for the defendants' bond fees, and for some of the
other fines that the defendants incurred, but it had failed to
pay the fines which resulted in the defendants' incarceration.
Wood, 450 U.S. at 267. The Court further observed that:
The fact that the employer chose to refuse payment of
these fines, even as it paid other fines and paid the
sums necessary to keep petitioners free on bond in this
case, suggests the possibility that it was seeking --
in its own interest -- a resolution of the equal
protection claim raised [in the case].
Id. (footnote omitted). The Court recognized that because the
attorney was being paid by the employer, and was therefore the
employer's agent, there was a "clear possibility of conflict of
interest." Id. In light of this possibility, the Court remanded
the case to the state court, instructing the lower court to apply
the Cuyler framework and to determine "whether the conflict of
interest that th[e] record strongly suggests actually existed at
the time of the probation revocation or earlier." Id. at 273.
The Supreme Court next discussed conflicts of interest in
Strickland. In that case, the Court was called upon to determine
the "proper standards for judging a criminal defendant's
contention that the Constitution requires a conviction . . . to
be set aside because counsel's assistance at the trial . . . was
ineffective." Strickland, 466 U.S. at 671.
Notably, when describing the standard for evaluating the
prejudicial effect of a counsel's failings, the Court
distinguished ineffectiveness claims predicated on conflicts of
88
interest. Specifically, the court noted that these claims
warranted a limited presumption of prejudice, stating that
"prejudice is presumed when counsel is burdened by an actual
conflict of interest." Strickland, 466 U.S. at 692 (citing
Cuyler, 446 U.S. at 345-50). When there is an actual conflict,
the Court emphasized that "counsel breaches the duty of loyalty,
perhaps the most basic of counsel's duties." Id. Additionally,
the Court found that a limited presumption of prejudice was
warranted because "it is difficult to measure the precise effect
on the defense of representation corrupted by conflicting
interests." Id. Further, the Court reasoned that "[g]iven the
obligation of counsel to avoid conflicts of interest and the
ability of trial courts to make early inquiry in certain
situations likely to give rise to conflicts, it is reasonable for
the criminal justice system to maintain a fairly rigid rule of
presumed prejudice for conflicts of interest." Id. (citation
omitted).
The Supreme Court has not specifically addressed whether
Cuyler applies to cases involving conflicts stemming from sources
other than multiple representation. See Illinois v. Washington,
469 U.S. 1022, 1023 (1984) (White, J., dissenting from denial of
certiorari). Nevertheless, as the majority concedes, this court,
as well as every circuit court facing the issue, has applied the
rule of Cuyler to many types of conflicts of interest.41 In
For cases applying Cuyler, see Garcia v. Bunnel, 33 F.3d 1193,
1198 n.4 (9th Cir. 1994) (applying the Cuyler standard to
conflict created by attorney accepting job with prosecution
89
fact, the Seventh, Ninth, and Eleventh Circuits have applied the
Cuyler framework to conflicts stemming from media rights
contracts. See United States v. Marrera, 768 F.2d 201, 205-09
(7th Cir. 1985) (employing Cuyler framework to claim predicated
on "conflict of interest between [the] lawyer's financial
interest in proceeds from the movie rights and [defendant's]
interest in acquittal"), cert. denied, 475 U.S. 1020 (1986);
Zamora v. Dugger, 834 F.2d 956, 960 (11th Cir. 1987) (noting that
"[t]he standard developed in Cuyler has been applied to cases in
office prior to trial, but noting that "[i]t is not logically
necessary that the approach of [Cuyler] also apply to conflicts
between a defendant's and the attorney's own personal interests;
however, we conclude that precedent so requires"), cert. denied,
115 S. Ct. 1374 (1995); Winkler v. Keane, 7 F.3d 304, 307 (2d
Cir. 1993) (applying Cuyler to conflict created by attorney
working on contingency fee in criminal case), cert. denied, 114
S. Ct. 1407 (1994); United States v. Sayan, 968 F.2d 55, 64-65
(D.C. Cir. 1992) (upholding application of Cuyler's adverse
effect test to alleged conflict created by lawyer's fear of
antagonizing judge); United States v. Michaud, 925 F.2d 37, 40
(1st Cir. 1991) (analyzing conflict of interest stemming from
attorney's association with prosecuting IRS under Cuyler
framework); United States v. Horton, 845 F.2d 1414, 1418-21 (7th
Cir. 1988) (applying Cuyler to conflict generated by defense
attorney's candidacy for U.S. Attorney); United States v.
Andrews, 790 F.2d 803, 811 (10th Cir. 1986) (finding that Cuyler
applies in situations involving "counsel's ability to represent
his client fairly, loyally or impartially"), cert. denied, 481
U.S. 1018 (1987); Roach v. Martin, 757 F.2d 1463, 1479 (4th Cir.)
(applying Cuyler when alleged conflict of interest was rooted in
fact that defense attorney was under investigation by state bar
grievance committee), cert. denied, 474 U.S. 865 (1985); Ware v.
King, 694 F.2d 89, 92 (5th Cir. 1982) (per curiam) (using Cuyler
framework to analyze claim of conflict of interest stemming from
separate civil and criminal lawsuits pending between defense
counsel and prosecutor), cert. denied, 461 U.S. 930 (1983);
United States v. Knight, 680 F.2d 470, 471 (6th Cir. 1982) (per
curiam) (undertaking Cuyler analysis in evaluating claim of
conflict of interest stemming from attorneys' knowledge that they
were under investigation for stealing documents during trial),
cert. denied, 459 U.S. 1102 (1983).
90
which defendants argue that their lawyers were more interested in
publicity than in obtaining an acquittal," and employing the
Cuyler analysis); United States v. Hearst, 638 F.2d 1190, 1193
(9th Cir. 1980) (recognizing that the conflict in Cuyler was
based on multiple representation, and observing that the case
before it was "based on private financial interests" of the
lawyer, but applying Cuyler because "[t]hese differences are
immaterial."), cert. denied, 451 U.S. 938 (1981).
Nevertheless, the majority boldly asserts that all of these
other courts have misread Cuyler and the Supreme Court's
subsequent cases, stating that "[o]ne cannot read Cuyler [as]
analyz[ing] conflicts of interest in a context broader than that
of multiple client representation." Beets, F.3d at *15. As
noted above, however, the Supreme Court did just that in Wood,
applying Cuyler to a conflict of interest stemming from the fact
that defendants' counsel was being paid by a third party. The
majority attempts to distinguish this case by stating that the
"lawyer was at least in the functional equivalent of a joint
representation. . . . Both the theater and the employees
expected him to advance their interests, yet to serve one might
require him to fail the others, while doing nothing could harm
both." Beets, F.3d at *18. The majority forces Wood into
the multiple representation category by focusing on the common
denominator of all conflicts: divided loyalties or divergent
interests between two or more entities.
B. Divided Loyalties: The Ethical Principles
91
The majority accurately notes that representation of two or
more clients whose interests are best served by divergent
litigation tactics presents a situation in which an attorney's
loyalties may be pulled in different directions by his various
clients. When such a situation arises, an attorney may be forced
to choose the interest of one client at the expense of the
interest of the other client, or the attorney may choose to do
nothing and neglect the interests of both clients. See Geoffrey
C. Hazard & W. William Hodes, 1 The Law of Lawyering § 1.7:101
(2d ed. Supp. 1992); Model Rules of Professional Conduct Rule
1.7, 1.9 (specifically addressing conflicts of interest arising
from concurrent representation and serial representation).
Multiple representation situations, however, are not the
only circumstances in which a conflict of interest may test an
attorney's duty of loyalty. A lawyer's duty of loyalty may also
be compromised when his own interests diverge from his client's
interests. See Wolfram, supra, § 7.1.3, at 317 ("The principle
of loyalty runs throughout conflicts thinking but is most
prominent in the areas of simultaneous conflicts and conflicts
involving the lawyer's personal interests."). In fact, the
general rule against conflicts of interest provides that "[a]
lawyer shall not represent a client if the representation of that
client may be materially limited by the lawyer's responsibilities
to another client or to a third person, or by the lawyer's own
interests." Model Rules of Professional Conduct Rule 1.7(b); see
also Wolfram, supra, § 7.1.2, at 315 (describing how an older
92
version of the rules governing conflicts "deal[t] with two
central situations -- when a lawyer's personal interests clash
with those of a client and when a lawyer represents at the same
time clients with differing interests"). This potential for a
conflict rooted in the attorney's self-interest is so severe that
the Model Rule of Professional Conduct 1.8 is devoted almost
entirely to prohibitions and restrictions aimed at preventing
such conflicts.42 The reason for these rules is clear. Just as
an attorney's loyalty may be pulled in different directions by
clients' divergent interests, an attorney's loyalty can be sorely
tested when his own self-interest runs counter to the interests
of his client.
Thus, the majority's attempt to draw the Cuyler line at
multiple representation is ill-considered, for there is no
logical reason why the distinction could not be used to classify
all conflicts (including those involving the attorney's self-
interest) as "multiple representations." Simply put, there is no
For example, Model Rule 1.8(a) restricts an attorney from
entering into business transactions with a client. Similarly
Rule 1.8(d) prohibits an attorney from acquiring media rights
from a client prior to the conclusion of the representation of
that client. Rule 1.8(f) severely restricts the ability of an
attorney to receive compensation from someone other than his
client, and Rule 1.5(d)(2) prohibits attorneys from entering into
contingent fee arrangements in criminal cases. See also State
Bar Rules, art. X, § 9, DR 5-101(A) (Texas Code of Professional
Responsibility) (1984) ("[A] lawyer shall not accept employment
if the exercise of his professional judgment on behalf of his
client will be or reasonably may be affected by his own
financial, business, property, or personal interests."); Hazard &
Hodes, supra, § 1.8:101 (noting that many of the transactions
prohibited in Model Rule 1.8 "involve transactions in which the
lawyer's own self-interest threaten to adversely affect the
quality of the representation to be provided").
93
intuitive reason why the Cuyler line should be drawn at conflicts
where the interests of only third parties cause the divergence
facing the attorney, as distinguished from conflicts where the
interest of the attorney himself causes the divergence that he
confronts. Indeed, there is a powerful intuitive reason why, in
some situations, that line should not be (and has not been) drawn
there. There are exceptional conflicts involving the attorney's
self-interest that, human nature being what it is, are far more
likely to impair the lawyer's ability to satisfy his duty of
loyalty to his client than are the more ordinary conflicts
between clients.
C. Where Should the Cuyler Line Be Drawn?
I recognize that not every conflict of interest pitting a
lawyer's self-interest against his client's interests should
trigger the analysis outlined in Cuyler. As one commentator
notes, "[i]n a sense, every representation begins with a lawyer-
client conflict. If the representation is for a fee, the
lawyer's economic interest will be to maximize the amount of the
fee and the client's will be to minimize it." Wolfram, supra, §
7.1.1, at 313. Conversely, if the representation is for a flat
fee, the attorney's interest will be to minimize the amount of
time spent on the case, and the client's interest will be to
maximize it. Similar conflicts inure in any contract for the
sale of goods or services; the seller's interest is to maximize
the amount the buyer spends and minimize his own costs, and the
94
buyer's interest is to minimize the amount that he spends and
maximize the quality of the goods or services.
Thus, the Cuyler exception would swallow the Strickland rule
if it were applied to every case in which a criminal defendant
complains that his lawyer failed to investigate a witness or a
defense, neglected to perform an experiment, did not hire a
witness, or otherwise failed to take action because the attorney
decided that it was not worth the time or the expense. We have
recognized that Cuyler is not meant to cover these types of
cases. Strickland appropriately governs claims for failure to
investigate43 and the like, and courts have had little difficulty
in treating such claims under Strickland's ineffectiveness
rubric. See, e.g., Williams v. Calderon, 52 F.3d 1465, 1473 (9th
Cir. 1995) (refusing to apply Cuyler when a defendant alleged
that "the fact that payment for any investigation or psychiatric
services could have come from counsel's pocket forced counsel to
choose between [the defendant's] interests and his own"); United
States v. Zackson, 6 F.3d 911, 921 (2d Cir. 1993) (finding that
Strickland, not Cuyler, was applicable to a claim that defense
counsel was "plagued by a conflict of interest, namely that he
was under enormous time constraints in regard to prior trial
commitments" (internal quotations omitted)); Yohey v. Collins,
985 F.2d 222, 227 (5th Cir. 1993) (finding that a failure to hire
Strickland itself was a claim for failure to investigate,
and in adopting its test, the Court noted that Strickland's
standard "require[d] no special amplification in order to define
counsel's duty to investigate." Strickland, 466 U.S. at 690.
95
an expert was not a conflict in the Cuyler sense and applying
Strickland to the alleged conflict).44
In addition to conflicts that are more properly treated
under Strickland as claims about competence and diligence, there
are other attorney-client conflicts frequently or normally
encountered in the practice of law that will be better handled
under Strickland. For example, the conflict claimed to exist in
United States v. Sayan, 968 F.2d 55, 64-65 (D.C. Cir. 1992),
involving a lawyer who allegedly failed to request a continuance
because he was afraid the judge would take action against him and
his law firm if he made such a request, would arise with some
frequency, as would the conflict claimed to exist in Zamora v.
Dugger, 834 F.2d 956, 960 (11th Cir. 1987), that the lawyer was
more concerned with publicity than with his client's fate. Both
these charges can be made, with some credibility, in a good
number of cases, and where they form the basis for a claim for
In differentiating between conflicts that merit the more
stringent test of Strickland and conflicts that warrant the
Cuyler methodology, courts may, as instructed to do in Strickland
when determining the reasonableness of attorney conduct, receive
some guidance from prevailing norms of professional
responsibility. Ineffective assistance claims rooted in the
failure to investigate or to devote proper attention to a case
have rightfully been treated under the uncontroversial standards
of competence and diligence. See Strickland, 466 U.S. at 690;
Zackson, 6 F.3d at 921; Model Rules of Professional Conduct Rule
1.1. ("A lawyer shall provide competent representation to a
client. Competent representation requires the legal knowledge,
skill, thoroughness and preparation reasonably necessary for the
representation."); Model Rules of Professional Conduct Rule 1.3
("A lawyer shall act with reasonable diligence and promptness in
representing a client.").
96
post-conviction relief, they should be evaluated under Strickland.
While the great majority of alleged attorney-client
conflicts arising in post-conviction proceedings -- those
frequently or normally encountered in the practice -- will be
better handled under Strickland, there are exceptional conflicts
between an attorney's self-interest and his client's interest,
stemming from highly particularized and powerfully focused
sources, of the sort not normally encountered in law practice,
that demand the application of Cuyler. A media rights contract
is such a source,45 as are the kind of contingent fee arrangement
at issue in Winkler and an attorney's involvement in the
allegedly criminal conduct of his client. These circumstances
present situations so fraught with the temptation for the lawyer
to sacrifice his client's best interest for his own benefit that
they constitute particularly serious threats to the duty of
loyalty. Not coincidentally, the Supreme Court and lower courts
have applied the Cuyler presumption to these very types of
cases.46
The majority states that "[t]he dissent has agreed that a
witness/advocate conflict alone is not the sort that even under
their approach should be governed by a Cuyler inquiry." Beets,
F.3d at *43. To the contrary, a witness/advocate "conflict"
having its source in a media rights contract, as may be the case
here, is exactly the kind of conflict that should be governed by
Cuyler.
For examples of these cases see Wood, 450 U.S. at 271-72
(applying Cuyler to a case in which a defense attorney was paid
by a third party with a possibly conflicting interest); Winkler,
7 F.3d at 308 (using Cuyler in a case where a criminal defense
attorney was paid on a contingency fee basis); Marrera, 768 F.2d
at 207 & n.6 (employing Cuyler's framework to a conflict based on
a lawyer's financial interest in media rights); Hearst, 638 F.2d
97
 The majority posits that in these cases, unlike in the
multiple representation context, the risk of prejudice is not
plain, and that "[w]hen the duty of loyalty is challenged by an
attorney's self-interest, the range of possible breaches . . . is
virtually limitless." Beets, F.3d at *26. I disagree.
The risk is all too plain. Further, Cuyler has been the law for
fifteen years, and it cites precedents at the circuit level
(including this circuit's decision in Foxworth v. Wainwright, 516
F.2d 1072 (5th Cir. 1975)), that are even older. The inescapable
fact is that the courts have not had difficulty with the boundary
problems described by the majority, as courts have been able to
separate ordinary ineffective assistance claims (even those
dressed in conflict language) from the exceptional cases that
warrant the Cuyler standard. But even if we do encounter
problems with cases at the boundaries, that is no reason to
change the rule in a case that lies at the heart of the
principles animating Cuyler.
In short, there is no authority whatsoever for limiting
Cuyler to the multiple representation situation, and, as many
courts have recognized, it makes no sense to do so in those
exceptional cases where an attorney's self-interest poses a
serious threat to the duty of loyalty.
IV. SUMMARY
at 1193 (same); Acevedo, 891 F.2d at 610-11 (employing the Cuyler
test to a situation in which an attorney may be involved in the
criminal conduct that his client is alleged to have committed).
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Under Cuyler, relief is proper on a Sixth Amendment claim of
ineffective assistance of counsel when a defendant
"demonstrate[s] that an actual conflict of interest adversely
affected his lawyer's performance." Cuyler, 446 U.S. at 348. In
the instant case, Andrews was faced with an actual conflict
because, while Beets's interest lay in having Andrews withdraw
and testify, Andrews's interest lay in remaining as her counsel,
because only then would he be entitled to the potentially
lucrative media rights. Additionally, because Andrews did not
withdraw and testify, Beets's representation was adversely
affected. A Sixth Amendment violation will be shown if the
district court concludes that the conflict was the cause of
Andrews's failure to withdraw and testify. I would vacate the
district court's judgment and remand with instructions to resolve
that issue. If the district court concludes that the conflict
was the cause of Andrews's failure to withdraw, then a Cuyler
claim has been successfully established and the judgment granting
the writ would be reinstated. If the district court concludes
that the conflict was not the cause of Andrews's failure to
withdraw, then that failure should be evaluated under Strickland.
Under that test, Beets has failed to show prejudice, i.e., that
the result of her trial would have been different had Andrews
withdrawn and testified. In that case, the writ should be
denied.
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