a rebuttal witness, had him in court under subpoena. I asked defense counsel what he intended to do when Garafola was called. He responded that he did not think that Garafola should testify, having not yet been sentenced, particularizing that Garafola would doubtless consult him about his, Garafola's, rights, and that he would advise Garafola of his fifth amendment privilege against compulsory self-incrimination.
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.
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.
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.
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).
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 advise the court there is no conflict in his representing the two or more defendants involved.
Clearly, then, it is primarily, if not exclusively, the responsibility of the attorney to avoid joint representation which has any possibility, no matter how remote, of a conflict of interest. If he is representing
multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment [and he is to] resolve all doubts against the propriety of the representation.