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March 18, 1977

UNITED STATES of America, Plaintiff,
Michael GARAFOLA and John Dolan, Defendants

The opinion of the court was delivered by: LACEY

 The problems which can result from indifference to the biblical teaching that "no man can serve two masters," *fn1" transposed into an attorney's joint representation of two defendants, have now emerged in this matter.

 Jointly charged under 18 U.S.C. § 659 (1976), in a one-count indictment, with unlawful possession of chattels stolen from foreign commerce, Michael Garafola and John Dolan were arraigned in this district on January 14, 1977. Each entered a plea of not guilty. Because they were represented by the same attorney, my colleague, Judge Herbert J. Stern, presiding at arraignment, conducted a United States ex rel. Hart v. Davenport2 hearing. Responding to his questions, defendants and their attorney stated that there was no conflict of interest between the defendants; and the defendants, notwithstanding Judge Stern's advice on their right to separate legal representation, announced that they desired to continue to be represented by their jointly retained attorney there present. *fn3"

 On the day of trial, just before jury selection, defendants' counsel advised me that one of his clients, Garafola, had decided to retract his not guilty plea and plead guilty to the charge. A Rule 11, Fed.R.Crim.P., proceeding followed, at which Garafola, in open court, under oath and with counsel present, admitted his guilt in terms which enabled me to find a basis in fact for the guilty plea, which was then and there accepted; and a sentencing date was then set.

 Prior to commencement of the Rule 11 proceedings, I had conducted another Davenport hearing. Again, Garafola and Dolan, and their attorney, all flatly stated that there was no conflict of interest; and both Garafola and Dolan reiterated that they wanted the same attorney to continue to represent both of them.

 Following the entry of Garafola's guilty plea, the trial commenced against Dolan. The government's testimony, in summary, was that Garafola and Dolan, as railroad co-workers, had been arrested by a railroad detective while in the act of removing stolen television sets from an abandoned trailer, described by a government witness as a "well-known stash." One government witness testified that, an instant before the arrest, Dolan had picked up from the floor of the "stash," one of the stolen sets.

 Following my denial of his motion for judgment of acquittal, Dolan took the stand as the first witness in his own defense. He testified that he was in the abandoned trailer and was about to pick up a television set to remove it therefrom when he was placed under arrest. He denied knowing that the set was stolen. He was, he said, simply assisting Garafola, who had asked Dolan to help him, Garafola, "get the television sets back." It was obvious from the testimony thus presented that Dolan's defense would be that, while he may have possessed the stolen property, he lacked that state of mind requisite for guilt under 18 U.S.C. § 659. The trial day ended while Dolan was on cross-examination.

 Upon the resumption of trial the next day, I conducted a further inquiry into the conflict of interest problem. Dolan's attorney stated that he saw no ethical impropriety in his representation of Garafola and Dolan, before or during trial; that Garafola could in fact exculpate Dolan; but that he had decided not to call Garafola as a witness because he would not make a "good" impression.

 I then inquired of counsel whether any advice he now gave Garafola would be rendered by his acting solely in Garafola's interest, or would be influenced, even slightly, by his continuing representation of Dolan. Indeed, I found it further of interest to speculate on how, if Garafola, contrary to his counsel's advice, decided to testify, the latter could cross-examine Garafola while still representing him in connection with the upcoming sentence. Counsel responded by stating that he still perceived no conflict of interest between Garafola and Dolan and saw no reason why he could not continue to represent Dolan effectively.

 Because I am granting defendant's motion for mistrial for reasons unconnected with the issue of joint representation, I have the opportunity of implementing and enforcing what I regard, under the circumstances, as the appropriate standard of legal representation in a criminal case. I find that present counsel cannot effectively represent both Garafola and Dolan, and I am directing that he withdraw from representing either of them. Counsel and the two defendants are to appear before me on a date to be set, at which time the matter of future legal representation will be resolved. *fn4"

 What has occurred requires comment. The trial judge is placed in a difficult position when, at arraignment, he is confronted with joint representation by defendants' counsel. The Davenport inquiry, by and large, is an ineffective charade. The judge and counsel know the purpose of the inquiry: to forestall a convicted defendant from later successfully urging on appeal that he did not at trial have effective assistance of counsel. Put in other words, it is done to construct a predicate for claiming later that there has been a waiver of a constitutional right. For reasons I shall explicate, it fails utterly as a means of assuring an informed consent from jointly represented -- and unsophisticated -- defendants.

 In the recently decided Matter of Grand Jury Empaneled January 21, 1975, 536 F.2d 1009 (3d Cir. 1976), the court of appeals stated that, as is the case with other constitutional rights, "the Davenport right may be waived." Id. at 1012. The court went on to find that "a waiver is exactly what the district court elicited from each of the appellants at the hearings conducted in this case." Id.5 With all deference, I question whether there can be a waiver in the Johnson v. Zerbst sense. *fn6"

 Many trial judges are concerned about the ability and capacity of any defendant knowingly and intelligently to waive his sixth amendment right to the effective assistance of counsel within the context of a Davenport inquiry into joint representation. The average defendant cannot possibly understand fully and completely the extent to which his counsel's trial strategy may be affected by his representation of other defendants. Moreover, what of the situation, not uncommon, where a "strong defendant" thrusts his own attorney upon a "weak" co-defendant? The latter does not dare indicate his displeasure with the joint representation. In simple terms, the Davenport inquiry, to the extent it is directed at the defendants, is a futile exercise. There can be no real waiver. *fn7"

 Respectfully it is submitted that the trial judge cannot conduct a meaningful inquiry. He does not know the case. He cannot know the facts or the inferences which may be fairly drawn from them. He is unaware of the quality of the witnesses and the trial strategy the government and the defendants will pursue. Nor can he inquire into the defense without violating defendant's fifth and sixth amendment rights; and this is so whether the interrogation is held in open court or in camera. He is restricted to imparting vaguely contoured, abstract advice on a doctrine as to which the lawyer then and there present has undoubtedly already advised his clients. Indeed, the attorney's words will have more meaning to the defendants because they are not empty abstractions but related to the facts of the case. He has already told his clients that there is no conflict in their interests. Thus, when the defendants answer the court's inquiry, they actually are relying upon the advice received from their lawyer. If he tells them there is no conflict and that he can effectively represent them, how can their responses to the court be deemed to amount to a Johnson v. Zerbst waiver of their sixth amendment right to effective aid of counsel? Cf. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). *fn8"

 The reasoning supporting the "waiver" doctrine in this context of joint representation seemingly is founded upon an analysis of the sixth amendment from which there emerges the concept that, because there is a right to waive counsel altogether, Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), there is also a right to waive effective assistance of counsel. Like so many seemingly simple truths, this one has its frailties. The absolute, that is, counsel or none, as is so often the case, is easier to define and deal with than the relative, that is, is one counsel or another better able to represent the defendant. A trial judge can quite readily advise a defendant on the wisdom of proceeding with counsel, the bases for his advice and the pitfalls which a defendant will encounter absent counsel. On the other hand, in view of the limitations already alluded to in this opinion, the joint representation inquiry falls far short of assuring a knowing and intelligent waiver. Cf. United States v. Paz-Sierra, 367 F.2d 930, 932 (2d Cir. 1966).

 The efficacy of a trial judge's joint representation inquiry is largely a function of how the attorney views his role. As I have stated, the responses of the jointly represented defendants will in reality be their attorney's response. Predictably, once they state there is no conflict, and that they desire his continued representation, he too will ...

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