burger kemp argued march decided june georgia trial jury found petitioner guilty murder sentenced death petitioner coindictee thomas stevens gave full confessions crime stevens tried later separate trial georgia ordering second sentencing hearing petitioner resulted reimposition death sentence affirmed sentence throughout proceedings petitioner represented appointed counsel alvin leaphart experienced local attorney exhausting state collateral remedies petitioner represented different attorney sought habeas corpus relief federal district ground leaphart representation constitutionally inadequate particularly conflict interest since leaphart law partner appointed represent stevens trial leaphart assisted representation trial defendant strategy emphasize coindictee culpability order avoid death penalty petitioner also based sixth amendment claim ineffective representation leaphart failure present mitigating circumstances sentencing hearings allegedly inadequate investigation possibility evidentiary hearing district rejected sixth amendment claim appeals ultimately affirmed held merit petitioner claim based leaphart alleged conflict interest even assuming law partners considered one attorney determining claim requiring permitting single attorney represent codefendants per se violative constitutional guarantees effective assistance counsel overlap counsel infect leaphart representation constitute active representation competing interests actual conflict established fact leaphart prepared appellate briefs petitioner stevens make lesser culpability argument petitioner brief second appeal georgia decision sound strategic basis found federal courts attributable fact partner stevens lawyer fact assisted partner stevens representation moreover record support petitioner contention asserted actual conflict interest leaphart negotiate plea bargain life sentence prosecutor fact refused bargain take advantage petitioner lesser culpability compared stevens pp petitioner receive ineffective assistance leaphart failure develop present mitigating evidence either two sentencing hearings evidence might presented disclosed petitioner exceptionally unhappy unstable childhood based interviews petitioner mother others leaphart decided petitioner interest served presenting evidence decision supported reasonable professional judgment thus met standard set forth strickland washington pp stevens delivered opinion rehnquist white scalia joined blackmun filed dissenting opinion brennan marshall joined part ii powell joined post powell filed dissenting opinion brennan joined post joseph nursey argued cause petitioner briefs millard farmer william hill senior assistant attorney general georgia argued cause respondent brief michael bowers attorney general marion gordon first assistant attorney general susan boleyn senior assistant attorney general justice stevens delivered opinion jury superior wayne county georgia found petitioner christopher burger guilty murder sentenced death january habeas corpus proceeding contends denied constitutional right effective assistance counsel lawyer labored conflict interest failed make adequate investigation possibly mitigating circumstances offense full evidentiary hearing district rejected claim persuaded appeals judgment district must affirmed sordid story crime involves four soldiers army stationed fort stewart georgia september evening petitioner coindictee thomas stevens privates drinking club post talked telephone private james botsford arrived savannah airport agreed pick bring back base stole butcher knife sharpening tool mess hall called cab driven roger honeycutt soldier worked taxi company way airport petitioner held knife stevens held sharpening tool honeycutt forced stop automobile robbed placed backseat petitioner took driving stevens ordered honeycutt undress threw article clothing car window searching blindfolded tied hands behind back petitioner drove stevens climbed backseat honeycutt compelled honeycutt commit oral sodomy anally sodomized stopping car second time petitioner stevens placed victim nude blindfolded hands tied behind back trunk cab proceeded pick botsford airport ride back fort stewart told botsford stolen cab confirmed story conversing honeycutt trunk exchange botsford promise notify authorities promised harm honeycutt leaving botsford base ultimately however petitioner stevens drove pond wayne county gone swimming past removed cab radio stevens hiding radio bushes petitioner opened trunk asked honeycutt right answered affirmatively petitioner closed trunk started automobile put gear getting entered water honeycutt drowned week later botsford contacted authorities military police arrested petitioner stevens two men made complete confessions petitioner also took military police pond identified point honeycutt body found petitioner confession private botsford testimony primary evidence used burger trial evidence consistent defense thesis stevens rather petitioner primarily responsible plan kidnap cabdriver physical abuse victim decision kill stevens years old time killing petitioner psychologist testified iq functioned level child ii alvin leaphart appointed represent petitioner week arrest leaphart practicing law wayne county years served county attorney time served board governors state bar association percent practice criminal law tried dozen capital cases apparent lawyer thoroughly familiar practice sentencing juries local community represented petitioner proceedings resulted conviction sentence appeal georgia resulted vacation death penalty second sentencing hearing also second appeal resulted affirmance petitioner capital sentence burger state burger state cert denied leaphart paid approximately services exhausting state collateral remedies petitioner represented different attorney filed habeas corpus proceeding district southern district georgia advanced several claims including charge leaphart representation constitutionally inadequate district conducted evidentiary hearing emphatically rejected claim concluded trial instructions jury permitted base sentencing decision invalid aggravating circumstance accordingly district vacated petitioner death sentence blake zant supp appeals affirmed part reversed part reinstated death penalty burger zant issue leaphart competence adopted district opinion dissent judge johnson dissent found leaphart conflict interest partner robert smith appointed represent stevens later separate trial murder honeycutt leaphart assisted representation interviewed stevens assisted partner stevens trial moreover two partners shared legal research discussed cases one another judge johnson persuaded conflict created actual prejudice petitioner interest two reasons first two defendants sought emphasize culpability order avoid death penalty second leaphart failed negotiate plea bargain petitioner testimony stevens might traded life sentence judge johnson also persuaded leaphart performance defective conduct adequate investigation possible mitigating circumstances valid strategic explanation failure offer mitigating evidence either first second sentencing hearing appeals rendered decision decided strickland washington granted burger petition certiorari remanded case appeals consideration effectiveness counsel assistance petitioner second sentencing hearing light decision burger zant appeals turn remanded case district instructions extend revise findings appropriate conclusions claim burger zant district wrote extensive opinion issue concluded merit petitioner claim appeals affirmed basis district opinion dissent judge johnson burger kemp per curiam granted petition certiorari vacated remanded reconsideration light francis franklin question whether jury instruction impermissibly shifted burden proof issue intent burger kemp appeals assumed trial charge intent unconstitutionally shifted burden proof found error harmless beyond reasonable doubt per curiam granted certiorari affirm first consider counsel alleged conflict interest argument failure offer mitigating evidence iii certainly much substance petitioner argument appointment two partners represent coindictees respective trails creates possible conflict interest prejudice either clients moreover risk prejudice increased two lawyers cooperate one another planning conduct trial strategy leaphart partner assuming without deciding two law partners considered one attorney settled equiring permitting single attorney represent codefendants often referred joint representation per se violative constitutional guarantees effective assistance counsel holloway arkansas never held possibility prejudice inheres almost every instance multiple representation justifies adoption inflexible rule presume prejudice cases see cuyler sullivan instead presume prejudice defendant demonstrates counsel actively represented conflicting interests actual conflict interest adversely affected lawyer performance strickland citation omitted see also cuyler initial matter agree district overlap counsel infect leaphart representation constitute active representation competing interests particularly smaller communities supply qualified lawyers willing accept demanding unrewarding work representing capital prisoners extremely limited defendants may actually benefit joint efforts two partners supplement one another preparation many cases common defense gives strength common attack holloway arkansas quoting glasser dissenting opinion frankfurter moreover generally presume lawyer fully conscious overarching duty complete loyalty client trial courts appropriately necessarily rely large measure upon good faith good judgment defense counsel cuyler addition petitioner stevens tried separate proceedings noted cuyler provision separate murder trials three coindictees significantly reduced potential divergence interests ibid effort identify actual conflict interest petitioner points leaphart prepared briefs stevens second appeal georgia leaphart make lesser culpability argument appellate brief behalf petitioner even though relied petitioner lesser culpability trial defense given fact petitioner actually killed honeycutt immediately opening trunk ask right fact georgia expressed opinion petitioner actions outrageously wantonly vile inhuman reasonable standard human conduct burger state decision forgo issue sound strategic basis reaffirmed smith murray process winnowing weaker claims appeal focusing likely prevail far evidence incompetence hallmark effective appellate advocacy jones barnes addition determining actual conflict interest requires attribution leaphart motivation making lesser culpability argument fact partner stevens lawyer fact assisted partner representation district obviously credited testimony contrary see findings twice sustained appeals thus inappropriate factually unsupportable speculate drafting brief appeal tainted lawyer improper motivation duty search constitutional error painstaking care never exacting capital case nevertheless lower courts found lawyer performed solemn duties case lower boundary professional competence respect bar deference shared conclusion two reviewing courts prevent us substituting speculation considered opinions district judge presumably familiar legal talents character lawyers practice local bar saw heard witness testify far better position evaluate charge kind regional courts appeals far better position conduct appellate review heavily rulings also conclude asserted actual conflict interest even established harm lawyer advocacy petitioner argues joint representation adversely affected quality counsel received two ways leaphart negotiate plea agreement resulting life sentence failed take advantage petitioner lesser culpability compared coindictee stevens find neither argument provides basis relief notion prosecutor receptive plea bargain completely unsupported record evidence defendants guilt including confessions eyewitness tangible evidence overwhelming uncontradicted prosecutor need petitioner eyewitness testimony persuade jury convict stevens sentence death circumstances slightest reason appellate doubt veracity leaphart testimony ever engage plea negotiations case yes tell substance well constantly time represented burger tried negotiate plea district attorney life sentence first trial flatly refused even discuss terms got reversed sentence feature continued time try negotiate district attorney entering plea burger serve life sentence insisted trying insisted seeking death penalty app argument partner representation stevens inhibited leaphart arguing petitioner lesser culpability reliance prejudicial stevens also unsupported record argument might persuasive two defendants tried together state conducted prosecutions however defendant confession used trial neither used coindictee trials separate leaphart particular reason concern possible impact tactics petitioner trial outcome stevens trial moreover initial habeas corpus proceeding district credited leaphart uncontradicted testimony way tailored strategy toward protecting stevens district concluded testimony strongly supported examination trial record shows considerable effort gain mercy petitioner portraying stevens chief architect crime ibid effort bolster claim adverse effect resulted leaphart actual conflict interest petitioner argues tried small community facts crime widely known necessarily follows public possibly members jury knew cases tried inherently inconsistent theories brief petitioner observation nothing establish actual deleterious conflict interest leaphart work client partner representation stevens two unaffiliated lawyers complete strangers one another represented burger stevens respectively advanced defenses advanced community awareness theories inherently inconsistent undoubtedly conflict interest burger stevens nature defenses inherent conflict two participants single criminal undertaking transformed sixth amendment violation simply community might aware respective attorneys law partners iv district expressed much concern petitioner argument leaphart failed develop present mitigating evidence either two sentencing hearings see hearings leaphart offered mitigating evidence capital sentencing proceeding sufficiently like trial adversarial format existence standards decision counsel role two proceedings comparable ensure adversarial testing process works produce result standards governing decision strickland therefore must determine whether leaphart performance evaluating mitigating evidence available deciding pursue mitigating evidence undermines confidence adversarial process case embarking review district conclusions guided recent admonition subject judicial scrutiny counsel performance must highly deferential tempting defendant counsel assistance conviction adverse sentence easy examining counsel defense proved unsuccessful conclude particular act omission counsel unreasonable cf engle isaac fair assessment attorney performance requires every effort made eliminate distorting effects hindsight reconstruct circumstances counsel challenged conduct evaluate conduct counsel perspective time strickland washington leaphart aware family history prior petitioner trial talked petitioner mother several occasions attorney indiana befriended petitioner mother psychologist leaphart employed conduct examination petitioner preparation trial reviewed psychologists reports obtained help petitioner mother also interviewed stevens men fort stewart based interviews leaphart made reasonable decision client interest served presenting type evidence meetings petitioner well testimony psychologist hearing admissibility petitioner confession convinced leaphart unwise put petitioner witness stand record indicates petitioner never expressed remorse crime psychologist testimony indicates might even bragged witness stand leaphart formed opinion burger enjoyed talking crimes worried jury might regard burger attitude witness stand indifferent worse quite obviously district concluded experienced trial lawyer properly decided put either petitioner psychologist thus evaluated position subjected might literally fatal two witnesses leaphart considered using petitioner mother indiana lawyer acted petitioner big brother leaphart talked mother several occasions concluded testimony helpful might counterproductive record stood absolutely evidence petitioner prior criminal record kind testimony indicates petitioner committed least one petty offense app district judge heard testimony given direct examination sentencing hearing convinced aided petitioner case surely unreasonable leaphart concluded might well revealed matters historical fact harmed client chances life sentence indiana lawyer willing travel georgia testify petitioner behalf nothing record describes content testimony might given although leaphart unable recall details background information received indiana lawyer testified information helpful petitioner indiana lawyer apparently agreed assessment consistently conclusion petitioner present counsel even benefit hindsight submitted affidavit lawyer establishing offered substantial mitigating evidence testified accordingly leaphart judgment may erroneous record surely permit us reach conclusion finally petitioner submitted several affidavits describe evidence leaphart might used conducted thorough investigation affidavits present information petitioner troubled family background affected jury adversely introducing facts disclosed clean adult criminal record affidavits indicate affiants testified might well referred direct examination encounters law enforcement authorities example former neighbor phyllis russell stated petitioner father want associate got trouble juvenile probation record petitioner uncle earnest holtsclaw narrated petitioner got involved drugs florida cathy russell ray petitioner friend junior high school stated chris father supposed go juvenile get release join service army even apart references damaging facts papers means uniformly helpful petitioner suggest violent tendencies odds defense strategy portraying petitioner actions night murder result stevens strong influence upon example district judge pointed affidavit submitted petitioner uncle attests petitioner came broken home unwanted parents opined burger split personality sometimes burger nice normal guy times flip get violent nothing affidavit earnest holtcsclaw sic see also affidavit cathy russell ray hairtrigger temper get mad punch walls broke knuckles got one hand jury react sympathy tragic childhood burger endured hand since burger sanity issue case prosecution use testimony pointing petitioner nevertheless responsible acts emphasize unpredictable propensity violence played prominent role death burger victim see note supra itigation ay eye beholder stanley zant cir omitted ineffectiveness case particular decision investigate must directly assessed reasonableness circumstances applying heavy measure deference counsel judgments reasonableness counsel actions may determined substantially influenced defendant statements actions counsel actions usually based quite properly informed strategic choices made defendant information supplied defendant particular investigation decisions reasonable depends critically information example facts support certain potential line defense generally known counsel defendant said need investigation may considerably diminished eliminated altogether defendant given counsel reason believe pursuing certain investigations fruitless even harmful counsel failure pursue investigations may later challenged unreasonable petitioner established light circumstances identified acts omissions counsel outside wide range professionally competent assistance made showing justice sentence rendered unreliable breakdown adversary process caused deficiencies counsel assistance accordingly judgment appeals affirmed footnotes definitely finds basis concluding leaphart representation constitutionally inadequate blake zant supp added particularly concerned arguments raised respect ineffective assistance counsel certainly question wisdom propriety advancing every legitimate argument petitioner behalf however many allegations made leaphart directly contradicted record thus possibly benefit burger hand raising unfounded charges must significant chilling effect willingness experienced attorneys like leaphart undertake defense capital cases petitioner attorneys might well reconsider apparent policy routinely attacking performance trial counsel light fact leaphart smith members professional corporation form business organization relevant case described partners sake convenience opinion district published appendix appeals opinion petitioner also argues proceeding malice charge given jury guilt innocence phase trial unconstitutional francis franklin trial charged jury person sound mind discretion presumed intend natural probable consequences acts appeals observed jury instruction virtually identical one held unconstitutional franklin even though trial also instructed jury person presumed act criminal intent specific intent commit crime charged essential element crime state must prove beyond reasonable doubt appeals found error harmless beyond reasonable doubt agree appeals pretermitting inquiry whether trial judge charge jury impermissibly shifted burden proof question petitioner criminal intent commit murder evidence dispositive intent said beyond reasonable doubt jury found unnecessary rely presumption see rose clark quoting connecticut johnson powell dissenting note leaphart persisted strategy closing argument jury second sentencing hearing argued part every one acts according statement introduced evidence initiation crime act robbery acts sodomy acts tying telling get trunk saying let kill telling drive telling must get rid car must get rid fingerprints stevens stevens trial today boy seventeen years old time stevens twenty know influence twenty year old person seventeen year old person looks friend companion bears stevens one control may recommend life imprisonment even though found aggravating circumstances one aggravating circumstances given charge existed beyond reasonable doubt well law law situations moving force person follows along beating bidding individual gets convicted murder person actually perpetrated crime actually catalyst moving force carried things even though person part punishment one different punishment discretion particular situation even though say set circumstances things existed burger none except involved time going along stevens leader tr second sentencing hearing doubt potential testimony relevant mitigating evidence sentencer refused consider precluded considering counsel sought introduce see hitchcock dugger skipper south carolina eddings oklahoma lockett ohio plurality opinion light petitioner youth time offense evidence neglectful sometimes even violent family background testimony mental emotional development level several years chronological age excluded state eddings equally clear however undisputed relevancy information trial corresponding duty allow consideration bearing quite distinct question us issue whether counsel acted reasonably deciding introduce evidence apprehension contribute little client chances obtaining life sentence revealing possibly damaging details past allowing foreseeably devastating conflict testimony respect extent conversations district described first treatment issue follows foster testified leaphart made minimal efforts discuss petitioner case develop possible mitigating factors leaphart account suggested talked foster several times made adequate hardly ideal inquiries leaphart account supported bill lists two conferences totaling three half hours prior trial four conferences unstated duration prior retrial defendant exhibits thus must conclude leaphart investigation appears meet least minimal professional standards interviews burger burger mother attorney befriended burger mother addition consultation psychologist review psychologists reports obtained burger mother convinced leaphart exhaustive investigation burger background profitable pursuit also concluded presenting background character evidence sentencing jury best unproductive worst harmful client burger kemp footnotes omitted citations transcript second sentencing hearing omitted opinion based examination burger use wechsler iq test examination based experience psychologist opinion whether appreciate consequences making confession think enjoy idea frankly great opportunity display psychopathological behavior probably shout wind much things might done appreciate trouble consequences magnitude grade deficiency relative iq beyond concept understanding right wrong psychopathology make want wrong basically within structure determined evil preacher determined good use illustration concept appreciating confession make almost compelling need psychopath pleasure joy unless point along line let world know behavior us unseemingly tr first sentencing hearing strickland washington set forth standards govern consideration criminal defendant claims denied sixth amendment right effective assistance counsel petitioner burger presents two claims case believe claim meets specified standards establishing constitutional violation therefore calls grant federal habeas corpus relief sought petitioner accordingly dissent judgment denies relief petitioner first claim rests right assistance counsel long ago glasser recognized assistance component sixth amendment right effective assistance counsel right fundamental adversarial system criminal justice public defender offices many jurisdictions rules precluding representation one criminal defendants involved offense federal rules criminal procedure rules governing professional responsibility consent criminal defendant necessary prerequisite joint representation trial inquiry whether defendant made knowing voluntary waiver right representation strongly encouraged required read majority opinion departing earlier approval practices see cuyler sullivan nn although believe case definitely misapplied sixth amendment standard informed rules recognizes unique nature claims arise conflict interest impose claims standard inadequate performance prejudice see strickland washington applies general claims ineffective assistance instead prejudice presumed defendant demonstrates attorney actively represented conflicting interests actual conflict interest adversely affected lawyer performance quoting cuyler sullivan presumption prejudice cases presenting conflict interest adversely affected counsel performance warranted duty loyalty client perhaps basic responsibility counsel difficult measure precise effect defense representation corrupted conflicting interests strickland washington difficulty assessing prejudice resulting conflict interest due part fact conflict may affect almost aspect lawyer preparation presentation case conflict primarily compels lawyer pursue certain arguments take certain actions difficult discern effect see holloway arkansas case joint representation conflicting interests evil advocate finds compelled refrain trial also possible pretrial plea negotiations sentencing process emphasis original presumption prejudice cases particularly appropriate lawyers charged knowledge obliged avoid conflict see supra judge avoid problem questioning defendant early stage criminal process case presenting situation may give rise conflict order determine whether defendant aware possible conflict whether waived right representation although purports apply ineffectiveness standard present case see ante agree conclusions contrary reasoning simply doubt petitioner attorney actively represented conflicting interests role defenses petitioner coindictee thomas stevens defense counsel appointed represent petitioner partner law firm appointed represent stevens app two lawyers interviewed defendants beginning assisted preparation cases partner sat counsel petitioner trial helped apparently others viewed two lawyers joint counsel petitioner first trial inasmuch prosecutor directed attention prospective jurors voir dire lawyers asked jurors whether ever represented either first tr partner listed appearing petitioner burger transcript trial record evidence petitioner counsel assisted stevens trial counsel conceded addition assistance pretrial research strategy interviews stevens prepared appellate briefs petitioner stevens second sentencing proceedings app see burger kemp district opinion adopted appeals noting may said two attorneys times acted one prepared trial appeal facts therefore demonstrate two actively represented petitioner stevens active representation two coindictees petitioner counsel constituted representation actual conflicting interests petitioner stevens interest diametrically opposed issue counsel considered crucial outcome petitioner case comparative culpability petitioner stevens petitioner confessed participation crime placed primary blame stevens second tr confession petitioner stated thought simply abandon taxicab ibid botsford petitioner stevens taxicab corroborated petitioner statement testimony petitioner stevens trials questioned petitioner stevens told going taxicab driver botsford replied well tom stevens said thought kill told thought crazy burger like idea killing either burger said let go drive woods somewhere let take car somewhere put like think somebody mentioned ocean see also first tr botsford agreeing petitioner sorta going along sorta sorta like stevens telling disregards direct conflict petitioner stevens respective interests instead attempts minimize active representation defendants two opines overlap counsel constitute active representation competing interests petitioner counsel ante supports assertion blandly relying perception shortage lawyers handle cases view benefits defendants may derive joint representation common defense assumption lawyers aware duty loyalty clients ante however identify record evidence indicating lawyers available appointment addition factors questionable relevance case involve common defense two coindictees counsel even consider conflict interest might exist also points fact petitioner stevens tried separately relies observation cuyler sullivan separate trials case reduced potential divergence defendants interests ante separate trials case however absolutely nothing reduce potential divergence interests two critical stages petitioner argues adversely affected conflict interest pretrial plea negotiations appeal attempt disavow existence actual conflict interest suggesting strategic reasons actions taken petitioner counsel appeal pretrial negotiations respect supported record suggestion counsel failure make lesser culpability argument appeal result sound strategic conclusion claim weak ante sheer speculation demonstrated petitioner confession botsford testimony lesser culpability argument certainly lack evidentiary foundation speculation counsel dropped claim trial weak argument appeal counterintuitive lesser culpability argument stronger appeal trial appeal reviewing cases time thus actual position able compare cases time reviewed appropriateness sentences imposed moreover speculation counsel dropped argument appeal weakness ignores fact comparative culpability directly relevant statutorily mandated appellate review capital cases georgia state statute specifies georgia review capital cases include consideration hether sentence death excessive disproportionate penalty imposed similar cases considering crime defendant code ann emphasis added evidence argument presented trial concerning petitioner role follower stevens directions petitioner lesser involvement assaultive behavior prior murder clearly relevant appeal terms statute hence even counsel base decision strategic reason suggested decision based erroneous view law thus reasonable see kimmelman morrison counsel judgment found contrary prevailing professional norms justifications offered counsel reflected ignorance law attempt shift blame inadequate preparation setting aside speculation counsel motive becomes clear joint representation petitioner stevens precluded matter professional responsibility pursuing lesser culpability argument petitioner appellate brief inconsistent duty loyalty stevens argue georgia reduce petitioner sentence life imprisonment stevens culpable defendant deserved death sentence heinous murder difficult imagine direct conflict existed counsel preparing appellate brief petitioner time preparing appellate brief stevens state statute specifies one roles appellate process consider comparative culpability sentences defendants involved similar crimes counsel abandonment lesser culpability argument appeal stage two cases reviewed contemporaneously indicative struggle serve two masters see holloway arkansas quoting glasser record compels finding counsel representation conflicting interests petitioner stevens adverse effect performance petitioner counsel defense counsel representation conflicting interests also placed untenable position earlier stage proceedings pretrial plea bargaining two partners helped period two cases part pretrial preparation petitioner counsel talked petitioner stevens beginning app counsel position negotiate prosecution detriment stevens although asserted continually attempted negotiate prosecutor behalf petitioner sentence life imprisonment conceded never offered prosecutor petitioner testimony stevens certainly counsel reasonable expecting plea bargain offering prosecutor significant bargaining chip possessed petitioner testimony stevens also disagree rejection petitioner argument actual conflict interest aggravated widespread knowledge cases small area jury drawn ante juror knowledge two cases tried local law partners inconsistent theories create conflict interest order preserve credibility argument either case lawyers deny validity contradictory approach crucial feature case credibility defendant lawyer minds jury observation community awareness theories inherently inconsistent two unaffiliated lawyers advanced inconsistent defenses ante may well true says nothing difference awareness make community view cooperating credibility fails recognize although credibility two unaffiliated attorneys presenting inconsistent arguments questioned credibility two local law partners assisting two cases well questioned known lawyers working together presented inconsistent theories separate cases obviously jury might suspect one cases lawyers pressing argument believe true adverse effect conflict credibility magnified petitioner stevens cases remanded second sentencing proceeding blameshifting arguments repeated time second sentencing hearing verdicts original trials sentencing proceedings become known community community aware law partners together representing two defendants capital cases arguing inconsistent theories placed blame defendant happen trial moment lawyers credibility effectiveness counsel significantly undermined finally conclude trial case erred failing inquire whether petitioner knowingly voluntarily waived constitutional right representation opinion cuyler sullivan addressed question state trial duty make inquiry specified unless trial knows reasonably know particular conflict exists need initiate inquiry emphasis added trial judge appointed two defense counsel presided petitioner trial stevens trial known conflict outset inasmuch two confessions given two partners appointed direct conflict question defendant prime architect crime event time appeal taken trial undoubtedly familiar role comparative culpability plays appellate review capital cases georgia statute well aware primary defense defendant death sentence culpable therefore obligation inquire whether petitioner consented joint representation knowledge possible conflicts interests see glasser trial protect right accused assistance counsel properly rely assumption petitioner given knowing voluntary consent judge became aware actual conflict particularly made aware suppression hearing petitioner time appointment counsel iq functioned level diagnosed psychological problems first tr ii even conflict interest existed case still dissent denial relief petitioner deprived effective assistance counsel connection proceeding counsel failed investigate mitigating evidence failed present evidence sentencing hearing despite fact petitioner adolescent psychological problems apparent diminished mental capabilities agree adversarial nature georgia proceedings sufficiently similar trial petitioner claim governed standards apply general claims ineffective assistance counsel trial ante see strickland washington also important keep mind counsel function elaborated prevailing professional norms make adversarial testing process work particular case applying standard petitioner claim light record case yields finding inaction petitioner lawyer outside wide range professionally competent assistance prejudicial petitioner strickland specifically addressed counsel duty investigate explained trategic choices made thorough investigation law facts relevant plausible options virtually unchallengeable strategic choices made less complete investigation reasonable precisely extent reasonable professional judgments support limitations investigation words counsel duty make reasonable investigations make reasonable decision makes particular investigations unnecessary ineffectiveness case particular decision investigate must directly assessed reasonableness circumstances applying heavy measure deference counsel judgments counsel stated based decision move complete psychological examination petitioner prior experience mental hospital assumed petitioner sent examination app stated results personnel central hospital far defense concerned good added thought examinations yield psychopathic diagnosis reached psychologist examined petitioner briefly primarily administer iq test purposes hearing whether petitioner confession admissible ibid counsel failure request examination considered biased procedure constituted breakdown adversarial process fact procedure psychological examinations indigent criminal defendant jurisdiction biased role petitioner counsel least seek alternative examination process challenge biased procedure counsel decision forgo psychological examination imperiled petitioner ability counter prosecutor argument deserved executed role murder therefore undermined reliability sentencing proceeding moreover decision proceed without examination case adolescent indications significant psychological problems diminished mental capabilities faces death penalty contrary professional norms competent assistance usefulness thorough evaluation case indications capital defendant problems kind obvious see eddings oklahoma cf ake oklahoma counsel decision investigate petitioner family childhood background also within range professionally reasonable judgment viewed time decided get touch family member investigate place petitioner lived counsel provided inadequate assistance relied petitioner suggest possible witnesses mitigating evidence question petitioner whether produce evidence anything good app hardly expected yield information petitioner childhood broken home unlikely response question defendant volunteer facts father threw house mother stepfathers beat mother one stepfather involved drugs alcohol age mitigating evidence highly relevant see eddings oklahoma furthermore counsel testified spoke petitioner perhaps half dozen times longest robably hour app bare six hours provided counsel little time discuss possible mitigating evidence sentencing proceeding counsel surely also discuss detail circumstances surrounding petitioner confession challenging features phase trial moreover petitioner death sentence vacated appeal case remanded counsel perform investigation whatsoever period second hearing simply proceeded manner resulted petitioner sentenced death first hearing reason counsel spoke petitioner mother sought learning elsewhere son charged murder even petitioner mother initiated contact counsel conduct inexplicable testified never explained penalty phase trial petitioner mother evidence presented finds reasonable counsel decision petitioner mother testify concluded testimony might counterproductive might reveal petty offense petitioner committed ante decision prime example however strategic choice made investigation therefore supported informed professional judgment counsel reasonably determine whether presenting character witnesses pose risk disclosing past criminal behavior petitioner without first determining whether criminal behavior although reference record incident shoplifting candy bar app another reference automobile accident indication counsel ever determined whether petitioner fact prior criminal record account provided petitioner mother petitioner hitchhiking florida thrown father house sell shoes trip get food may well outweighed relevance earlier petty theft also find troubling fact defense counsel rejected assistance another lawyer known petitioner merely basis lawyer black lawyer offered come georgia expense provide assistance counsel thought assistance might ill effect however trial petitioner white counsel testified lawyer agreed race wise lawyer testify question whether reasonable professional decision adversarial duty petitioner counsel pursue means present testimony witness best safeguard trial racial prejudice see turner murray counsel apparently made effort investigate possible racial bias petitioner jury app like counsel abandonment psychological investigation suspected unfairness examination procedure surrender perceived risk racial discrimination without effort eliminate risk inconsistent adversarial role responsibility reliability proceeding acceptance unpleasant likelihood racial prejudice trial however justify counsel failure accept assistance lawyer number ways investigating petitioner childhood background indianapolis lawyer known petitioner testimony petitioner mother federal habeas corpus hearing revealed lawyer law school worked volunteer big brother organization men spent time children relationship big brother undoubtedly familiar petitioner friends family members affidavits submitted federal hearing record indicate many persons still reside indianapolis never approached counsel sum reluctantly conclude counsel fell short duty make reasonable investigations make reasonable decision makes particular investigations unnecessary strickland washington application strickland standard case convinces investigation compelled constitutionally inadequate information reasonable professional judgment limit investigation made concluded conduct petitioner lawyer failing pursue investigation petitioner psychological problems family childhood background professionally unreasonable given circumstances known counsel time must also address question whether inadequate performance prejudiced petitioner view information adolescent psychological problems troubled childhood unfortunate family history available reasonable probability sentencer including appellate extent independently reweighs evidence concluded balance aggravating mitigating circumstances warrant death strickland washington refrain remarking similarities evidence petitioner childhood presented eddings oklahoma recognizing force evidence decision whether individual sentenced die held death sentence vacated case remanded another sentencing proceeding sentencing authority consider mitigating evidence decision present evidence sentencing authority petitioner case supported reasonable professional judgments reliability proceeding undermined defense counsel disinterest developing mitigating evidence permit informed decision reasonable possibility outcome sentencing hearing different counsel conduct undermined proper functioning adversarial process sentencing hearing relied produced result strickland washington iii petitioner denied effective assistance counsel guaranteed sixth amendment due trial counsel active representation conflicting interests given indications petitioner psychological problems diminished mental capabilities known petitioner lawyer counsel failure perform investigation problems petitioner background denied petitioner effective assistance counsel hearing petitioner entitled new trial representation counsel new hearing effective assistance counsel respectfully dissent judgment denying relief agree conclusion ante appeals affirmed extent held impermissible effect jury instruction malice given phase trial harmless beyond reasonable doubt see clarified also agree observation ante petitioner advanced question constitutionality executing person murder committed minor thus need address merits issue availability claim petitioner future proceeding cuyler sullivan noted vast majority public defender offices strong policy multiple representation approximately half never undertake representation see also lowenthal joint representation criminal cases critical appraisal rev observed cuyler private bar may less aware conflicts interests instances observation certainly supported testimony petitioner attorney case never even considered conflict might arise representation two defendants facing death penalty commission murder see app criminal rule provides relevant part whenever two defendants jointly charged represented retained assigned counsel associated practice law shall promptly inquire respect joint representation shall personally advise defendant right effective assistance counsel including separate representation ethical cannon aba code professional responsibility instances lawyer justified representing two clients differing interests nevertheless essential client given opportunity evaluate need representation free potential conflict obtain counsel desires thus lawyer may represent multiple clients explain fully client implications common representation accept continue employment clients consent lawyer required decline employment withdraw employment disciplinary rule partner associate lawyer affiliated firm may accept continue employment except preliminary matters initial hearings applications bail lawyer lawyers associated practice undertake defend one defendant criminal case duty one defendants may conflict duty another potential conflict interest representing multiple defendants grave ordinarily lawyer decline act one several codefendants except unusual situations careful investigation clear conflict likely develop ii several defendants give informed consent multiple representation iii consent defendants made matter judicial record determining presence consent defendants trial judge make appropriate inquiries respecting actual potential conflicts interest counsel whether defendants fully comprehend difficulties attorney sometimes encounters defending multiple clients instances accepting continuing employment one defendant criminal case unprofessional conduct aba standards criminal justice ed emphases original subsequent petitioner trial georgia exercising supervisory authority adopted rule capital cases codefendants must provided separate independent counsel fleming state cert denied cited provision code professional responsibility requires lawyer affiliated firm lawyer disqualified must also disqualified thereby indicated rule applies representation single attorney members firm explained rule separate independent representation especially necessary death penalty sought cases even slight conflict irrelevant guilt innocence may important sentencing phase see also bowles concurring two defendants share equal responsibility crime usually one culpable number reasons greater degree responsibility occurred one may also entitled leniency based factors age intelligence motive background previous conduct record etc common counsel eliminates practical possibility plea bargaining see hill concurring specially cautioning although presumption joint representation appropriate per se rule joint representation may capital defendants able waive right representation benefit jordan dissenting arguing defendant case permitted opportunity make informed voluntary waiver right representation happened petitioner case therefore unlikely repeated georgia distinction prejudice showing showing adverse effect attorney performance apparently difficult courts discern see generally note conflicts interest representation multiple criminal defendants clarifying cuyler sullivan geo decision strickland washington made clear however demonstrating conflict adversely affected counsel performance equate standard applied general ineffectiveness claims requires showing reasonable probability counsel unprofessional errors result proceeding different standard necessary cases trigger presumption prejudice presumption cases limited nature automatic presumption prejudice arises cases actual constructive denial assistance counsel altogether cases state interference assistance counsel transcripts petitioner first trial including first sentencing hearing second sentencing hearing submitted exhibit exhibit respectively respondent answer petitioner federal habeas corpus petition district see record pleading citations transcript first trial hearing designated first tr citations second hearing designated second tr great degree deference accords lower courts conclusions matter ante emphasis heavily rulings ante appear misplaced analysis case question multiple representation mixed determination law fact requires application legal principles historical facts cuyler sullivan general ineffectiveness question performance prejudice components ineffectiveness inquiry strickland washington fact defendants given separate trials may eliminate problems created conflict interest severance alleviate numerous dilemmas faced lawyers representing two defendants charged indicted together see developments law conflicts interest legal profession harv rev geer representation multiple criminal defendants conflicts interest professional responsibilities defense attorney rev right representation counsel pretrial appellate proceedings criminal cases may significant representation trial earlier discussion hazards attorney representing one coindictee described conflicts present case joint representation conflicting interests suspect tends prevent attorney example case may well precluded defense counsel exploring possible plea negotiations possibility agreement testify prosecution provided lesser charge favorable sentencing recommendation acceptable generally speaking conflict may also prevent attorney challenging admission evidence prejudicial one client perhaps favorable another arguing sentencing hearing relative involvement culpability clients order minimize culpability one emphasizing another holloway arkansas contrary speculation counsel claim dropped lesser culpability argument weakness rather stated raise issue difference culpability two coindictees petitioner appellate brief although thought key issue trial app thought jury decision based evidence way see raise issue theory lack evidence sustain finding jury punishment give basis action certainly considered strategically sound reflects erroneous legal interpretation appellate review capital cases georgia failing argue petitioner behalf less culpable stevens counsel diminished reliability georgia proportionality review case held proportionality review important component georgia system see gregg georgia opinion stewart powell stevens therefore even counsel assistance appeal hindered actual conflict interest one may well question whether conduct regard met minimal level professional reasonableness counsel declarations permit representation stevens affect representation petitioner outweigh conflict revealed record counsel fully disinterested party proceeding due collateral consequences result determination rendered ineffective assistance counsel certainly interest disavowing conflict interest may receive appointments source clients criminal defense work partners practice app approximate fee counsel received case representation petitioner largest firm ever received criminal case ibid payment along payment received partner appointment stevens case went firm account discounts counsel failure offer prosecutor petitioner testimony stevens stating indication prosecutor receptive offer ante focuses strength evidence petitioner stevens guilt concludes reason doubt prosecutor refused discuss matter prior first trial insisted seeking death penalty remand case ante reasoning however misses point petitioner argument question whether prosecutor insisted seeking death penalty petitioner counsel attempted persuade otherwise offering petitioner testimony stevens although easy assume prosecutor indulged plea bargaining case significant evidence guilt approach ignores reality bargaining capital cases evidence guilt factor prosecutors consider rather relevant factors include aggravating mitigating circumstances surrounding case well practical considerations cost pursuing death penalty see gross mauro patterns death stan rev since death penalty prosecutions require large allocations scarce prosecutorial resources prosecutors must choose small number cases receive expensive treatment practical considerations might weigh even heavily prior second trial remand state appellate reversal first death sentence furthermore may collateral evidentiary considerations pretrial phase warrant plea life imprisonment one coindictee exchange evidence strengthen case example case prosecutor thought likelihood petitioner counsel might prevail argument petitioner confession suppressed petitioner counsel offered petitioner testimony stevens prosecutor might decided rather risk possibility case petitioner destroyed suppression confession permit petitioner plead life sentence exchange testimony stevens pursue death sentence stevens petitioner attorney duty serve role adversary system make offer petitioner behalf testify stevens petitioner willing thereby avoid possibility executed petitioner burden showing conflict interest adversely affected counsel performance therefore met suggestion whether prosecutor accepted offer determinative factor verges requiring showing prejudice course inappropriate context petitioner claim see supra counsel complete failure offer petitioner testimony stevens capital case nature petitioner lesser culpability suggested confession corroborated testimony key witness minimal professional standards counsel testified several newspaper accounts proceedings first second sentencing hearings certain people community aware sentence received first trial app record indicates persons asked voir dire second sentencing hearing whether heard first trial responded affirmatively second tr counsel made effort question prospective jurors extent knowledge earlier trials whether extended theories petitioner stevens trials argued counsel also testified explanation failure seek change venue expected jurors sat petitioner trial aware pretrial proceedings including unsuccessful effort change venue app agree observation dissenting opinion appeals defense strategy make prosecutor prove case see app tantamount strategy reliance upon strategy capital sentencing proceeding alternative investigating presenting available mitigating evidence patently unreasonable burger kemp justice powell justice brennan joins dissenting join part ii justice blackmun dissenting opinion reverse judgment appeals ground counsel unreasonably failed investigate present sentencing jury available mitigating evidence raised substantial question whether sentence death imposed seriously backward minor therefore reach question whether conflict interest resulting fact two law partners represented burger stevens separate trials write separately emphasize aspects burger claim find particularly troubling committed crime executed burger physical age years iq functioning level possibly suffered brain damage beatings younger see burger kemp johnson dissenting testimony burger mother federal habeas corpus hearing confirmed childhood turbulent filled violence app see ante affidavits burger childhood friends also attested troubled upbringing see ante defense counsel knew something facts although details app prior sentencing hearing counsel interviewed burger burger mother attorney befriended burger mother also reviewed psychologists reports provided burger mother spoken psychologist testified burger iq psychological maturity suppression hearing review counsel made judgment presenting evidence sentencing addition burger chronological age facts degree participation crimes burger benefit app see ii strickland washington held defendant claim counsel assistance defective require reversal conviction death sentence two components first defendant must show counsel errors serious performance counsel guaranteed sixth amendment deficient second defendant must show suffered prejudice counsel performance context capital sentence defendant must demonstrate reasonable probability absent errors sentencer concluded balance aggravating mitigating circumstances warrant death assessing adequacy counsel performance strategic choices made thorough investigation law facts relevant plausible options virtually unchallengeable strategic choices made less complete investigation reasonable precisely extent reasonable professional judgments support limitations investigation counsel believe evidence burger violent disturbed family background benefit client burger involved beating number things indicated violence stuff earlier age app counsel reason presenting sentencing jury evidence burger mental emotional immaturity ambiguous appears counsel believed relevant testimony mitigation capital sentence something like good boy went church telling counsel explanation type mitigating evidence relevant sentencing hearing anything good anything course understanding broad generally put anything find good anybody mitigation sentence burger stunted intellectual emotional growth details tragic childhood far good true background information indicated violence stuff earlier age decisions emphasize mitigating evidence necessarily good factors mitigate individual defendant moral culpability ste diverse frailties humankind woodson north carolina plurality opinion stewart powell stevens jj emphasis added capital case defendant youthful fact child measured chronological emotional intellectual maturity evidence facts extraordinarily germane individualized inquiry sentencing jury constitutionally required perform vidence turbulent family history beatings harsh father severe emotional disturbance particularly relevant eddings oklahoma belief long held society defendants commit criminal acts attributable disadvantaged background emotional mental problems may less culpable defendants excuse california brown concurring see zant stephens defendant mental illness perhaps mitigate penalty previous observation bears emphasis outh chronological fact time condition life person may susceptible influence psychological damage history replete laws judicial recognition minors especially earlier years generally less mature responsible adults particularly formative years childhood adolescence minors often lack experience perspective judgment expected adults bellotti baird eddings oklahoma supra footnotes omitted information sentencing stage capital case may highly relevant counsel burden justifying failure investigate present similarly heightened indication counsel understood relevance much less extraordinary importance facts burger mental emotional immaturity character background investigated presented case evidence bears directly burger culpability responsibility murder fact directly supports strategy counsel claimed deemed best emphasize difference criminal responsibility two participants crime absent explanation appear record counsel decision introduce even discover mitigating evidence unreasonable performance constitutionally deficient imposing death penalty individual yet legally adult unusual raises special concern least state permits execution minor great care must taken ensure minor truly deserves treated adult specific inquiry including age actual maturity family environment education emotional mental stability prior record particularly relevant minor criminal culpability issue see fare michael powell dissenting inquiry occurred case every realistic sense burger minor according law clearly mental capacity subnormal point jury reasonably believed death appropriate punishment reasonable probability evidence presented sentencing jury case affected outcome burger demonstrated prejudice due counsel deficient performance iii conclude counsel performance case deficient deficiency may well influenced sentence burger received vacate burger death sentence remand resentencing counsel testified felt way try case take evidence try minimize burger participation crime felt case tried facts make district attorney say make use whatever rules evidence exclude harmful facts use opinion representing burger use facts show entitled treated manner person main actor thing secondary secondary position since two punishments particular situation given lesser two think way case tried way tried know today go back try manner say manner much manner using thing hope got different jury app counsel testified particular psychologist gave burger test found also opinion burger sociopath psychopathic personality cross examination confession phase attorney asked commented effect ca remember exact comment sociopath crazy belong insane asylum treated criminal compulsive behavior made something well ca put insane asylum let know felt related questions asked presence jury decided point use testimony psychologist phase opinion know question sanity used instance opinion see benefit going trying find sociologist psychologist use particular trial particular place think effective although individual may held criminally responsible age code ann age legal majority georgia years notes ante alvin leaphart appointed counsel represented petitioner state courts experienced respected lawyer concluding ineffective assistance case question view lawyer participated litigation knows judgment calls particularly trial always reasonable correct moreover yet addressed question presented thompson state crim app cert granted whether eighth amendment imposes age limitation application death penalty see eddings oklahoma also share concern expressed judge edenfield blake zant supp sd routine raising charges ineffective assistance counsel likely significant chilling effect willingness experienced lawyers undertake defense capital cases see ante case however conclude facts circumstances one disputes clearly show counsel made serious mistake judgment failing fully develop introduce mitigating evidence concedes relevant jury compelled consider see ante noted eddings oklahoma state country makes separate provision juvenile offenders citing gault enacted statutes since decision furman georgia prohibit execution persons time offense three impose prohibition age nevada sets limit age streib eighth amendment capital punishment juveniles cleveland state rev nn permitting imposition death penalty juveniles half explicitly denominate youth mitigating factor american law institute model penal code statute exclusion defendants years age time commission crime institute reasons civilized societies tolerate spectacle execution children opinion confirmed american experience punishing youthful offenders comment american bar association adopted resolution stating organization oppo ses principle imposition capital punishment person offense committed person age see aba opposes capital punishment persons international opinion issue reflected article international convenant civil political rights american convention human rights see nations human rights compilation international instruments see also weissbrodt ratification human rights covenants rev prohibit execution individuals age time crime party either treaties least nations signed ratified international covenant see weissbrodt supra european countries forbid imposition death penalty time offense streib supra citing amnesty international death penalty