SUR PETITION FOR REHEARING
Present: SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS, GARTH and HIGGINBOTHAM, Circuit Judges, and GERRY, District Judge.*fn*
The petition for rehearing filed by Appellees in the above eneitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
GARTH, Circuit Judge, with whom ADAMS and ROSENN, Circuit Judges, join, dissenting from order denying petition for rehearing:
The issue presented by this appeal is whether the appellant Sullivan was deprived of his Sixth Amendment right to effective assistance of counsel, because the privately retained attorneys who represented him at his trial also represented other defendants, who had been charged with Sullivan but who were tried separately and at a date subsequent to Sullivan's conviction of murder. A panel of this court has ordered that a writ of habeas corpus issue, discharging Sullivan from state custody unless the state retries him within a reasonable time. The panel held that this case involved "dual representation" of Sullivan and the defendants in the subsequent trial, and that "[because] we cannot say on this record that the dual representation raised no possibility of prejudice or conflict of interest, however remote, our prior cases compel reversal."
In reaching this conclusion, the panel relied principally on United States ex rel. Hart v. Davenport, 478 F.2d 203 (3d Cir. 1973). As in this case, the defendant in Hart was represented by privately retained counsel. Recognizing that in the absence of state action, the attorney's ineffective assistance may not be attributed to the state under the fourteenth amendment, as it incorporates the sixth amendment, this Court held in Hart that,
[Where] the questioned conduct of such attorney takes place in the presence of the court or the state attorney, the state action basis for vindication of the alleged fourteenth amendment deprivation is the failure of the state prosecutor or state court to take necessary corrective action.
Id. at 210. Where, however, there is no indication that "the state's attorney or the court had knowledge of the alleged deprivation," or that the proceedings are fundamentally unfair because "the attorney's conduct is so lacking in competence or good faith that it [should have] shocked the conscience of the court or prosecutor as officers of the state," the requisite state involvement is missing. See id. See also Fitzgerald v. Estelle, 505 F.2d 1334, 1336-38 (5th Cir. 1975) (en banc). But although state action was found to be present in Hart, there would appear to be no evidence in the present case that the trial judge or the prosecutor was aware, or should have been aware, of the alleged conflict of interest. And certainly nothing in the record suggests that Sullivan's representation by two of Philadelphia's best known trial attorneys was so grossly deficient as to render the proceedings fundamentally unfair.
I recognize that judges elsewhere have taken the position that whenever retained counsel's representation is ineffective, state action exists "because the state adjudicatory machinery is inextricably intertwined with the conduct of an accused person's retained attorney." Fitzgerald, supra, at 1345 (Godbold, dissenting). But as I understand it, that is not the law in this Circuit or in any other court of appeals.Nor am I convinced that such an approach to the constitutional requirement of state action comports with present Supreme Court guidelines. In any event, if the majority now wishes to reounce the position taken in Hart in favor of such a rule, en banc consideration would appear to be warranted.
I believe that en banc reconsideration is appropriate for a second reason as well. Hart, upon which the panel relied in adopting a standard under which a conflict of interest exists whenever there is a possibility of prejudice, established the standard for a joint, as distinct from a dual, representation case. Joint representation, as I understand it, is the representation by the same attorney of two or more defendants at the same trial. Dual representation, on the other hand, is the representation by the same attorney of two or more defendants, each of whom is tried separately and at different times. Hence, I agree with the panel that Sullivan presents a case of dual representation. But Hart, together with all of the other cases upon which the panel has relied, involves joint representation.
I believe that there are significant and relevant distinctions that exist between joint representation cases and dual representation cases, none of which have been explored by the panel. In this statement sur petition for rehearing, I do not think it appropriate to explicate all of the differences which exist. That task is for the panel. I think it important, however, to point out that at the very least, actual prejudice must be found before relief may be afforded on a dual representation claim of the type advanced by Sullivan. I do not believe that the mere possibility of prejudice, which is the standard under Hart for a case involving joint representation, should be woodenly applied in a case where the defendants were tried separately in individual trials. Moreover, I believe that a defendant who claims that his attorney's representation of other persons at different and discrete trials, deprived him of effective assistance of counsel at his own trial, must show that he suffered actual prejudice which would have had a material effect on the outcome of his own trial.
Whether or not the "finding" by the Sullivan panel of actual prejudice is an appropriate or correct finding in the circumstances of this case does not diminish my concern for the standard enunciated in the opinion. I observe that, prior to this case, we have never established any standard for the standard enunciated in the opinion. I observe that, prior to this case, we have never established any standard for a dual representation claim, and that to my knowledge, no other Circuit has formulated such a standard. Our decision will affect the conduct of attorneys and litigants in innumerable multi-defendant cases. I therefore believe that it should be the court en banc which formulates the appropriate standard for cases involving claims of dual representation.
We should not be oblivious to the practical implications of the panel's decision either. In the wake of Sullivan, which disregards the prerequisites articulated in Hart for a finding of state action and at the same time permits a conflict of interest in a dual representation case to be predicated on the mere possibility of prejudice, however remote, it will be necessary for prosecutors and trial court judges within our jurisdiction to insist that co-defendants never be represented by the same privately retained counsel, even when they are to be tried separately. If prosecutors and judges fail to insist upon separate representation, they run the risk of having convictions overturned, as trial strategy decisions by the attorney, which in retrospect may arguably be seen as favoring one of his clients over the other, are attributed to the state for purposes of the sixth ...