Stewart did not accompany Sedlacko on the night of the
Sutton's dual role as counsel for Stewart and Sedlacko also
evidences an actual conflict of interest. When Sutton advised
Sedlacko to leave the jurisdiction, he told Sedlacko that he
expected Stewart would be acquitted and that the acquittal
would benefit Sedlacko at his trial. By so doing, Sutton
demonstrated divided loyalties destined to diminish the
effectiveness of representation at Stewart's trial. See Glasser
v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 464-465, 86
L.Ed. 680 (1942); United States v. Jeffers, 520 F.2d 1256, 1263
(7th Cir. 1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 805, 46
L.Ed.2d 656 (1976).
Respondents do not directly oppose Stewart's contention that
he was denied effective assistance of counsel. Rather, their
argument is that because Stewart knew of Sutton's
participation in the robbery and the Legion of Justice, he
waived any right to challenge the effectiveness of the
However, the cases upon which respondents rely are
inapposite, for unlike here, in most of them an actual
conflict was not found. Kaplan v. Bombard, 573 F.2d 708 (2d
Cir. 1978); United States v. Kidding, 560 F.2d 1303 (7th Cir.),
cert. denied sub nom. Brown v. United States, 434 U.S. 872, 98
S.Ct. 217, 54 L.Ed.2d 151 (1977); United States ex rel.
Robinson v. Housewright, 525 F.2d 988 (7th Cir. 1975); United
States v. Frame, 454 F.2d 1136 (9th Cir.), cert. denied,
406 U.S. 925, 92 S.Ct. 1794, 32 L.Ed.2d 126 (1972); Roberts v.
United States, 348 F. Supp. 563 (E.D.Mo. 1972), aff'd,
477 F.2d 544 (8th Cir. 1973). Moreover, none of them presented such an
egregious conflict as affected Sutton's performance. In those
cases, although the attorneys represented co-defendants, there
is no indication that their representation was hampered by a
desire to exculpate themselves.
In United States v. Jeffers, 520 F.2d 1256 (7th Cir. 1975),
cert. denied, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656
(1976) and United States v. Sheiner, 410 F.2d 337 (2d Cir.),
cert. denied, 396 U.S. 825, 90 S.Ct. 68, 24 L.Ed.2d 76 (1969),
the issue of waiver was squarely before the courts. However, in
each of those cases, the possibility of conflict was disclosed
to the trial court and the defendant was given the opportunity
to remedy potential prejudice.
Whether Stewart waived his rights is a matter of law which
must be determined by applying federal constitutional
standards to historical facts. Brewer v. Williams,
430 U.S. 387, 403-404, 97 S.Ct. 1232, 1241-1242, 51 L.Ed.2d 424 (1977).
The court must draw every reasonable presumption against waiver
of fundamental rights, Glasser v. United States, 315 U.S. 60,
70, 62 S.Ct. 457, 464-465, 86 L.Ed. 680 (1942), and the state
must prove "an intentional relinquishment or abandonment of a
known right or privilege." Brewer v. Williams, 430 U.S. 387,
404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977), quoting
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82
L.Ed. 1461 (1938).
The trial court was not apprised of the conflict of
interests until the post-conviction hearing. It was,
therefore, unable to instruct Stewart about the potential
prejudice resulting from the conflicts of interest.
Glasser v. United States, 315 U.S. 60, 71, 62 S.Ct. 457, 465,
86 L.Ed. 680 (1942); United States v. Gaines, 529 F.2d 1038,
1044 (7th Cir. 1976). In addition, Stewart was not aware that
Sedlacko, upon Sutton's instruction, would not appear at trial.
Indeed, he was advised that Sedlacko would testify and that
Sedlacko's testimony would vindicate him. It is likely that had
Stewart known of Sutton's role assuring Sedlacko's absence, he
would have re-evaluated his choice of counsel. Under these
circumstances, even if Stewart did forego objections to the
adequacy of counsel, his decision to do so was not "deliberate
and made with an understanding of the conflicting interests and
the dangers resulting from them." United States v.
Gaines, 529 F.2d 1038, 1043 (7th Cir. 1976).
The material facts are not in dispute. Sutton was presented
with actual conflicts of interest which affected his
of Stewart and Stewart did not knowingly waive his
constitutional rights. Accordingly, respondent's motion for
summary judgment is denied. Petitioner's motion for summary
judgment and his request for a writ of habeas corpus are