It is axiomatic that on a motion for summary judgment, the
moving party has the burden of showing that there is no
dispute as to any genuine issue of fact material to a judgment
in its favor. Cedillo v. International Association of Bridge &
Structural Iron Workers, Local Union No. 1, 603 F.2d 7, 10 (7th
Cir. 1979). The non-moving party is entitled to all reasonable
inferences that can be made in its favor from the evidence in
the record. United States v. Diebold, Inc., 369 U.S. 654, 655,
82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). The Court will indulge
in all reasonable presumptions against a defendant's waiver of
his sixth amendment rights. United States v. Davis,
604 F.2d 474, 482 (7th Cir. 1979); Day v. United States, 357 F.2d 907,
909 (7th Cir. 1966).
In the present case, the experienced and able state trial
judge advised the petitioner prior to trial that "there might
be some conflict between the three [co-defendants] that would
make it improper for you to have one lawyer." The trial judge
also warned Tonaldi that "I don't know whether anybody is
going to testify here, because you don't have to testify, but
if some defendant or all defendants should testify and say
something that was harmful to the other defendant that would
be a conflict in the testimony probably, and it would be
difficult for one lawyer to fairly represent all defendants
when that occurs." Tonaldi, 424 N.E.2d at 1202 n. 2.*fn3 When
asked by the court whether he objected to an attorney
representing all defendants, Tonaldi responded simply "[n]o,
sir." Respondents argue that this answer from petitioner
constitutes a valid waiver of his sixth amendment right to
effective assistance of counsel. Although the facts may
ultimately support this conclusion, the record is not
sufficiently complete to permit this Court to make such a
determination at this time.
The sixth amendment right to effective assistance of counsel
encompasses the right to representation by an attorney who
does not owe conflicting duties to other defendants.
Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 1178,
55 L.Ed.2d 426 (1978). An individual may waive that right
provided the waiver is knowing and intelligent. Id. 435 U.S. at
483 n. 5, 98 S.Ct. at 1178 n. 5, Glasser v. United States,
315 U.S. 60, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680 (1942).
Determination of whether an effective waiver has been made
depends upon "the particular facts and circumstances
surrounding that case, including the background, experience and
conduct of the accused." Johnson v. Zerbst, 304 U.S. 458, 464,
58 S.Ct. 1019, 1028, 82 L.Ed. 1461 (1938).
Tonaldi's petition for habeas relief in this case alleges
that his purported waiver of sixth amendment rights before the
trial judge was not knowing and intelligent because it was the
result of his reliance on counsel's errant advice that there
would in fact be no conflict between co-defendants. Tonaldi
also contends that he did not understand the concept of
conflict of interest as it related to his case. Cf. United
States v. Donahue, 560 F.2d 1039, 1042-43 (1st Cir. 1977).
Accordingly, Tonaldi argues, he could not appreciate the
significance of the trial court's hypothetical warnings
regarding joint representation at the time they were delivered.
The viability of these arguments on a factual level depend
in large part on Tonaldi's background and experience with the
criminal justice system. On the basis of the factual record
currently before this Court, however, we cannot conclude as a
matter of law that the trial court's warnings and Tonaldi's
acquiescence constitute a valid waiver of the right to
effective assistance of counsel. Cf. United States v. Agosto,
528 F. Supp. 1300, 1306-10 (D.Minn.
1981); United States v. Garafola, 428 F. Supp. 620, 623-24
(D.N.J. 1977), aff'd sub nom. United States v. Dolan,
570 F.2d 1177 3d 1978). Of necessity, the trial court's warnings to
petitioner were relatively abstract. Moreover, the trial
court's warnings did not advise the defendant of his right to
separate counsel.*fn4 Further, Tonaldi's two-word response to
the trial court's inquiry did not clearly manifest an
affirmative understanding of the significance of his waiving
his sixth amendment rights.*fn5 The waiver of a constitutional
right is not effective unless it is performed with "sufficient
awareness of the relevant circumstances and likely
consequences." Brady v. United States, 397 U.S. 742, 748, 90
S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970).
As a general proposition, a defendant's reliance on his
counsel's erroneous advice does not negate the knowing and
intelligent character of his subsequent waiver of
constitutional rights. It is well settled, for example, that
a guilty plea is not subject to attack on the ground that the
defendant relied on his counsel's advice unless that advice
fell below the range of competence demanded of attorneys in
criminal cases.*fn6 Tollett v. Henderson, 411 U.S. 258, 264,
93 S.Ct. 1602, 1606, 36 L.Ed.2d 235 (1973); McMann v.
Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d
763 (1970). The same principle should not, however, preclude
review of petitioner's reliance argument in the context of this
case. Although a reliance defense is likely to be a belated
attempt to invalidate a knowing and intelligent waiver in
guilty plea cases, the same defense may well be an accurate
reflection of the level of the defendant's understanding in
joint representation cases. In contrast to the nature of the
rights waived in connection with a guilty plea, the subtle, yet
fundamental, nature of the right waived in joint representation
cases could easily escape the independent understanding of the
layman, especially when advised by his counsel that no conflict
exists. See Tague, "Multiple Representation and Conflicts of
Interest in Criminal Cases," 67 Geo.L.J. 1075, 1102-03 (1979).
See generally Agosto, supra, 528 F. Supp. at 1309. Indeed, as
demonstrated by the facts of this case, even counsel will not
always appreciate the consequence of his client's waiver of the
right to a separate attorney.*fn7
The United States Supreme Court has refused to hold that
joint representation of co-defendants at criminal trials is
unconstitutional per se. Holloway v. Arkansas, 434 U.S. 475,
485, 98 S.Ct. 1173, 1179, 55 L.Ed.2d 426 (1978). Nevertheless,
the problem raised by this case exemplifies why such joint
representation should be discouraged.
A trial court, in our view, should be sensitive to the
ethical*fn8 as well as constitutional consequences of such a
trial strategy. Indeed, it may very well be the better
procedure for a Court to err on the side of precluding joint
representation, rather than be vulnerable on review to
contentions such as those of petitioner herein.
In accordance with this opinion, therefore, respondents'
motion for summary judgment is granted as to petitioner's
sufficiency of evidence claim and denied as to petitioner's
sixth amendment claim. The Court will conduct an evidentiary
inquiry to determine whether petitioner's purported waiver of
his right to separate counsel was knowing and intelligent at
the time it was made. It is so ordered.