Conflicts of Interest Challenges Post Mickensv. Taylor: Redefining the Defendant'sBurden in Concurrent, Successive, andPersonal Interest Conflicts

I. IntroductionA. Overview of the IssueThe United States legal system generally affords a criminal defendant the right to legal representation.1 The complete denial of representation and certain other situations of state interference can infringe the right to counsel.2 This type of denial is per se violative of the right to counsel, and the defendant need not show any effect on the trial to obtain a reversal of the conviction.3 The presence of counsel is not sufficient to satisfy the defendant's right to counsel if that attorney does not provide effective assistance.4 Unlike the per se violations, however, the defendant who is alleging that ineffective assistance of counsel denied him his Sixth Amendment right must generally demonstrate prejudice to the result of the trial.5 If the ineffective assistance of counsel claim stems from a conflict of interest that hampered the defendant's attorney, a defendant may face a burden somewhat less than a showing of prejudice.6Conflicts of interest can take many forms.7 Historically, the circuit courts have been divided between deciding that all types of conflicts of interest warrant the lower burden or deciding that some conflicts warrant the lower burden while other conflicts justify the prejudice standard applied to traditional ineffective assistance of counsel claims.8 In 2002, the Supreme Court in Mickens v. Taylor9 cautioned, but did not decide, that some circuits might be applying the lower burden to too many different types of conflict of interest situations.10 In light of this cautionary advice and other relevant Supreme Court precedent, the question is whether different types of conflicts justify imposing different levels of burden upon the defendant, and if so, when faced with a conflict of interest challenge, how does a court determine which test to apply?This Note addresses the question of what standard the courts should apply when a defendant challenges a conviction based on a conflict of interest that involves either successive representation or attorney personal interest conflict situations. It also addresses the effect that a trial court's knowledge of the potential conflict has on the choice of that standard. In Part II, this Note outlines the present approaches and the development of Supreme Court jurisprudence concerning these issues. This Note addresses, in Part ILC, the circuit courts' of appeals interpretations of the Supreme Court case law preMickens, with an emphasis on the second and Fifth Circuits' frameworks.12 In Part III, this Note examines the Supreme Court's recent decision in Mickens v. Taylor, especially its clarification of Supreme Court precedent and its statement that some courts may be applying the wrong standard in certain conflict situations.13 In Part FV, this Note explores the circuit courts' responses to Mickens.14 Then, in Part V, this Note discusses the policy concerns that should guide decisions on matching the appropriate test to the conflict situation.15 Last, in Part VI, this Note recommends a framework to analyze conflict of interest cases in order to impose the appropriate burden on the defendant.16This Note proposes that three steps are important in determining the proper test.17 First, the court must determine the nature of the conflict that the defendant is asserting and what persons are involved.18 Second, the court should determine if either the defendant or the defense counsel put the trial court on notice of a potential conflict of interest.19 Last, the court must determine what the answers to the first two questions suggest is the appropriate test for the court to apply.B. Effective Assistance of Counsel and the Sixth AmendmentThe Sixth Amendment guarantees a criminal defendant the right to counsel.20 The principal purpose of counsel is to protect the defendant's right to a fair trial.21 Central to this purpose is the Sixth Amendment guarantee to ensure that the defendant has sufficient access to trained representation. …