It distinguished its facts from the D. C. Circuit's
opinion in In Re Investig. Befor April 1975 Grand
Jury, supra for unlike that case, the government did
not claim that the mere assertion of the Fifth Amendment
privilege has obstructed the grand jury's investigation,
but rather that the full testimony of one witness may
be damaging to another witness, creating a conflict of
loyalty in representation. Moreover, the government had
sought an immunity order for at least two witnesses,
and in any event there was no challenge by the government
to the assertion of the Fifth Amendment by the four
witnesses under subpoena.
Finally, the court dealt with defendant's contention that the
disqualification of counsel would violate the four prospective :
witnesses' Sixth Amendment right to obtain counsel of their
choice as well as their First Amendment freedom of associa-
tion. In that respect the court noted that the four witnesses
had submitted to the court their affidavits stating that the
witness wishes to be represented by the counsel and that they
were aware of the potential for a conflict of interest in
their representation. The court's answer was driect and
to the point;
Although it may be true that these four witnesses
may waive their Sixth Amendment right to effective
assistance of counsel, they cannot at the same time
waive the right of the public to an effective functioning
grand jury investigation.
The Court supported its comment in a footnote in which
it cited the following:
In a paper adapted from a speech given at the
National College of Criminal Defense Lawyers
and Public Defenders in Houston, Texas, on
June 24, 1976, Alan Y. Cole, Esq., Chairman of
the Section of Criminal Justice, American Bar
Association, has stated, after discussing the
Third Circuit 536 F.2d 1009 (1976)7 and District
of Columbia Circuit 531 F. 2d 660 (1976)7 cases,
This is a dismal scene. The attorney conduct involved in these cases is hardly of a nature that enhances the image of the profession. It
does not reflect respect for the principles
underlying the canon of ethics. It suggests
that self-regulation by the profession is es-
sentially non-existent. The judicial response
is likewise unsatisfactory to a society which
is already disenchanted with its lawyers and
its courts.
Cole, Time For a Change: Multiple Representa-
tion Should be Stopped 9-10 (unpublished) (footnote
omitted).
The court did not join in Mr. Cole's pungent
criticism of the bar and bench; however, it felt it
deserving of reflection that a leading member of
the bar, active in the defense of criminal cases,
finds the situation warrants such candid comment.
28. The court in a footnote cited Circuit Judge Lumbard's concurrence in U. S. v. Carrigan, 543 F. 2d 1053 at 1958 N.Y. (2d. Cir. 1976) in which he stated;
It would be a rare defendant who could
intelligently decide whether his interests
will be properly served by counsel who also
represents another defendant. However parallel
his interests may seem to be with those of a
co-defendant the course of events in the pros-
ecution of the case, the taking of a guilty
plea, or the conduct of the trial may radically
change the situation so as to impair the abili-
ty of counsel to represent the defendant most
effectively. Even defense counsel, who all
too frequently are not adequately informed
regarding the evidence available against their
clients, may not be in a position to judge
whether a conflict of interest between their
clients may develop.
I have thoroughly investigated the facts of this case
and am aware of the facts as they will affect each of
the defendants I represent. I have also considered what
the theory of the United States may be in the prosecution
of this case, the witnesses it may call, and the trial
strategy I will follow.
Moreover, the foregoing elements have been considered
in the light of the ethical considerations
presented by the New Jersey Disciplinary Rules,
including but not limited to DR5-105, the
Canons of Professional Ethics, and the American
Bar Association's Standards Relating to the
Defense Function, including but not limited to
8 3.5, and the commentary thereto.
I represent to the court that, having given
full consideration to the foregoing, I am
certain that there is no conflict in interest
between the defendants I represent.
I recognize that should later events dis-
close that my assessment of the matter of
conflict-in-interest was in error, I may be
subject to court-imposed or other sanctions
as may be deemed appropriate under the
circumstances.
I further state to the court that I have
conferred with each of my clients, discussed
with them the facts of the case, their own
status alone and as it may be affected by
the status of the others I represent, and the
trial strategy I plan to pursue, including the
witnesses I plan to call. I have also advised
them of their right to separate counsel;
however, I have advised them that I pres-
ently perceive no conflict in the interest of
any one defendant as against any other
defendant jointly represented by me.
Watergate Special Prosecution Force, Report 140-41
The Liry of Congress
Congressional Research Service
Washington, D.C. 20540
House Select Committee on Assassinations
Legal Remedies Available to James Earl Ray Following His
Plea of Guilty To Murder Charges and Subsequent Efforts
At Appeal and Post-Conviction Relief
This will respond to your request of October 24, 1978 for
an analysis of remaining legal remedies available to James Earl Ray following his conviction for the murder of Dr. Martin Luther King Jr., in light of the results of appeals and post conviction relief efforts already undertaken by Mr. Ray and his attorneys. Proper treatment of the subject requires (1) a look at the legal efforts undertaken to date in Mr. Ray's behalf and judicial responses to those efforts; (2) examination of Tennessee law to identify avenues still open under State law; and (3) treatment of Federal law in order to isolate available remedies at the Federal level. It should be noted at the outset that no effort is here made to address all conceivable legal efforts which might be mounted in order to assist Mr. Ray. That is, attempts to have the prisoner transferred to alternative places of incarceration, to lessen his isolation in confinement, or to otherwise alter the nature of his imprisonment are not treated here. This examination is limited to those efforts which have and might be undertaken to free him from his sentence.
|