ostensible theory of defense was that neither defendant was
involved in the crime, he drew comparisons between the conduct
of the participants in the armed robbery that would reflect on
the defendants should their alibis be disbelieved. For
example, in cross-examining one witness about her testimony
concerning her confinement in the back room of the jewelry
store, Sherwin elicited testimony that the female was less
While the written record is incapable of capturing the tone
of remarks and the demeanor of a speaker, this record reveals
that Sherwin's bearing toward his two clients was not evenly
balanced. He was kindly and paternal toward Thomas, calling
her "Debbie" and emphasizing her dependence on her parents. By
contrast toward petitioner he was sarcastic. Twice when
petitioner attempted to clarify a matter on which he was
confused, Sherwin publicly scorned him not to interfere
because he "didn't have a license to practice law." In
cross-examining a state witness concerning her identification
of petitioner rather than challenging the basis of her
recollection, Sherwin jokingly elicited testimony that she
remembered the fact because he reminded her of Burt Reynolds,
thereby denegrating his client and strengthening the witness'
His conduct of the trial was confused and rambling. In his
closing argument Sherwin discussed Miranda warnings and a
defendant's right not to testify, despite the fact neither
issue was presented in the case.*fn2 He also repeated the
incorrect argument earlier made in chambers that the eyewitness
identification of petitioner was strong in contrast to that of
The jury found both defendants guilty.
Sherwin's strategy to cast Thomas as a hapless victim led
astray by the "major malfactor" — petitioner, Sherwin's other
client — was most apparent at sentencing. Sherwin presented
several arguments in mitigation on Thomas' behalf, including
the fact that she had a three-year-old child, her father was
alcoholic, and she was a first offender. In addition he argued
that the State had once been willing to dismiss the charges
against her, but misrepresented to the court that the State's
offer was contingent on petitioner pleading guilty. Thus
Sherwin urged, "I might indicate to you [the court] without
prejudicing the State's case, that they were willing if the
defendants Kiel and Zembowski pleaded guilty . . . in a plea
bargaining discussion to dismiss Deborah Thomas out of the
case. She told me she was not involved, and I couldn't make
that arrangement, and that was the position taken by Mr.
Zembowski and Mr. Kiel."
Of course these remarks further emphasized Sherwin's
strategy that petitioner was responsible for Thomas'
predicament by suggesting that if petitioner had pleaded
guilty Thomas would have gone free.
Sherwin made a final unsuccessful appeal to the state's
attorney that the charge against Thomas be reduced to simple
robbery in order to make probation an available sentence.
On petitioner's behalf, by contrast, Sherwin presented no
mitigating evidence or argument. Petitioner had a wife and
four young children who depended on him for support. He had a
history of depression. He had no criminal convictions prior to
the armed robbery.
The trial judge responded to Sherwin's suggestions which had
permeated the trial that Thomas was less culpable than her
co-defendant. Her sentence was mitigated because she had
succumbed to evil influence. Correspondingly petitioner's
sentence was increased because he was responsible both for his
own conduct and Thomas'. Thus as to Thomas the court stated,
"I sorrow for you, Mrs. Thomas, and as I said, I don't believe
that you were the instigator of this crime. I do not see it in
your background. I believe you were led by Daniel Zembowski.
But . . . our Legislature has declared that [your conduct]
must require, at the minimum, a sentence of six years in the
Department of Corrections, and it is my duty and
obligation, . . . to sentence you to at least that term."
As to petitioner, in contrast, the court stated, "There is
nothing in your record to suggest that I ought to be lenient
in your case . . . Now, there's another aspect in this case
that's disturbing to the court. I think your case is further
aggravated by your involvement of Deborah Ann Thomas. I cannot
believe that she instigated this offense, a 24-year-old woman
with a 2- or 3-year old child*fn3 and I believe that you
induced her to be an accomplice in your crime of violence and
you are largely responsible for her situation today, and I
think I must take this into consideration."
Deborah Thomas was sentenced to six years in custody,
petitioner to 15 years.
As previously noted, Frank Kiel, the "career criminal," was
not tried with petitioner and Thomas because he had fled the
jurisdiction. He was later apprehended, returned to Lake
County, and upon the advice of counsel other than Sherwin,
pleaded guilty pursuant to a negotiated plea bargain. He was
sentenced by the same judge to a term of 10 years to run
concurrently with 3-year burglary sentence on unrelated
matter. Kiel would have been eligible for parole in March 1984
had he not lost good time credits as a result of a fight with
a fellow inmate. He was actually released from custody on July
9, 1984. Petitioner remains in custody.
Following her conviction, Deborah Thomas filed a petition
for post-conviction relief charging that Sherwin's conflict of
interest denied her effective assistance of counsel. She
contended that once the State offered to immunize her in
exchange for testimony against petitioner, a conflict of
interest arose. At the hearing on the petition, the State did
not challenge Thomas' new counsel's argument that Sherwin
could not effectively represent either Thomas or petitioner.
The petition was granted at the conclusion of the hearing.
Thomas then entered a negotiated plea of guilty to a lesser
charge in exchange for a two-year sentence with credit for
time served. She was released from custody on January 29,
In contrast petitioner was unsuccessful in his state appeal
and post-conviction petition in which he charged that
Sherwin's conflict of interest in representing two defendants
denied him the effective assistance of counsel guaranteed by
the Sixth Amendment to the United States Constitution.
People v. Zembowski, 94 Ill.App.3d 1204, 53 Ill.Dec. 813,
424 N.E.2d 448 (2d Dist. 1981), pet. for leave to appeal denied,
No. 55030 (Ill.Sup.Ct. Oct. 19, 1981). Having exhausted all
available state remedies (which respondents do not dispute),
Zembowski filed the instant petition in this court pursuant to
28 U.S.C. § 2254.
The foregoing facts demonstrate that petitioner was more
than ineffectively represented. His counsel worked
against petitioner's interests. But counsel's professional
misconduct is not the only factor that leads to the inescapable
conclusion that the writ of habeas corpus must issue. The state
trial court's failure to investigate the basis of the asserted
conflict also calls for relief.
The right to counsel guaranteed by the sixth amendment
embraces representation that is free from conflicts of
interest. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097,
1103, 67 L.Ed.2d 220 (1981); Glasser v. United States,
315 U.S. 60, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680 (1942). Joint
representation of co-defendants by a single attorney, while
regrettably not per se improper, is particularly subject to
sixth amendment challenge because of the likelihood that
will diverge. Holloway v. Arkansas, 435 U.S. 475, 489-91, 98
S.Ct. 1173, 1181-90, 55 L.Ed.2d 426 (1978).
The Supreme Court has fashioned two separate tests for
evaluating claims of conflict of interest arising from joint
representation, depending upon whether the conflict issue was
brought to the trial court's attention in a timely fashion. If
the conflict issue was raised, and the trial court fails to
investigate independently the basis for the claim and satisfy
itself that counsel can adequately represent multiple
defendants, "reversal is automatic" and does not depend upon
a showing that a conflict actually existed. Holloway v.
Arkansas, 435 U.S. at 488, 98 S.Ct. at 1180.
On the other hand, if the conflict issue is not raised in
the trial court, but is raised only on direct or collateral
review, reversal is warranted only on a showing "that an
actual conflict of interest adversely affected [the] lawyer's
performance." Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct.
1708, 1718, 64 L.Ed.2d 333 (1980). "Actual conflict" means an
actual divergence of interests on the part of the defendants,
such that pursuing the interest of one would be antagonistic to
the interest of the other. However, it is unnecessary under
either Holloway or Cuyler to demonstrate that actual prejudice
resulted from the joint representation, because prejudice is
presumed. Strickland v. Washington, ___ U.S. ___, 104 S.Ct.
2052, 2067, 80 L.Ed.2d 674 (1984); Cuyler v. Sullivan, 446 U.S.
at 349-50, 100 S.Ct. at 1718-19; Holloway v. Arkansas,
435 U.S. at 487-89, 98 S.Ct. at 1180-81; Glasser v. United
States, 315 U.S. at 75-76, 62 S.Ct. at 467-68.
The Seventh Circuit has discussed the differences between
Holloway and Cuyler in several cases. Thus the court said in
Wilson v. Morris, 724 F.2d 591, 593 (7th Cir.) (en banc), cert.
denied, ___ U.S. ___, 104 S.Ct. 2357, 80 L.Ed.2d 829 (1984),
A Constitutional violation occurs, and proof of
an actual conflict is not required when a
defendant's attorney objects to joint
representation and the trial court overrules the
objection without exploring the basis of the
objection or the adequacy of the representation
in the face of a potential conflict of interest.
See also United States ex rel. Ballard v. Bengston,
702 F.2d 656, 662 and n. 5 (7th Cir. 1983) (per curiam); Dently v. Lane,
665 F.2d 113, 115-16 (7th Cir. 1981), appeal after remand
712 F.2d 1172 (7th Cir.), vacated 720 F.2d 472 (7th Cir. 1983).
Sherwin raised the conflict issue repeatedly before trial.
On numerous occasions he advised the trial court that the
defenses were antagonistic, and even though his claims may
have lacked specificity, it was the duty of the court to
inquire whether Sherwin could represent both defendants
adequately. Indeed, the trial judge expressly and repeatedly
acknowledged his duty of inquiry, stating to Sherwin that the
responsibility of determining whether all defendants could be
represented by Sherwin was "not only your responsibility, but
mine, as well." At another point in the pretrial proceedings,
when discussing the potential conflict of interest, the trial
judge stated that it "would be the court's responsibility to
make certain" that the co-defendants had different attorneys
in the event of a conflict.
Even a non-specific indication that defenses may conflict
should provoke an inquiry into the adequacy of representation
because the hazards of joint representation are so strong and
the policy of avoiding these hazards so important.
See A.B.A. Standards for Criminal Justice, Standard 4-3.5(b)
(2d Ed. 1980) (cautioning against all joint representation and
urging prophylactic inquiries by the trial court in all cases
of joint representation); Fed.R.Crim.P. 44(c) and Advisory
Committee Notes (same).
Numerous cases have recognized that non-specific objections
are sufficient to invoke Holloway. Indeed, in Holloway itself,
the Court stated that although "defense counsel might have
presented the requests for appointment of separate counsel more
vigorously and in greater detail . . . [he] was confronted with
a risk of violating, by more disclosure, his duty of
confidentiality to his clients." 435 U.S. at 485,
98 S.Ct. at 1179. Furthermore, and particularly apropos here,
several courts have held that an objection to consolidation of
cases for trial is sufficient to alert a trial judge to the
need to investigate whether a conflict of interest exists.
Smith v. Anderson, 689 F.2d 59, 64 and n. 4 (6th Cir. 1982);
United States ex rel. Vriner v. Hedrick, 500 F. Supp. 977,
982-83 (C.D.Ill. 1980).
It is clear from the record that Sherwin repeatedly stated
prior to trial that his clients' interests conflicted. The
trial court acknowledged its own obligations in assuring that
representation was free from conflict. Regrettably, the trial
court failed to investigate the basis for these statements and
Sherwin's ability to represent the codefendants effectively.
The setting aside of petitioner's conviction is therefore
mandated under Holloway.
But even if Sherwin had not brought the existence of a
conflict to the trial court's attention in a timely manner,
petitioner is entitled to habeas relief because an actual
conflict of interest was manifest throughout the trial
proceedings. For purposes of the Cuyler test, actual conflict
exists "whenever one defendant stands to gain significantly by
counsel adducing probative evidence or advancing plausible
arguments that are damaging to the cause of a co-defendant whom
counsel is also representing." United States ex rel. Gray v.
Director, Department of Corrections, 721 F.2d 586, 596-97 (7th
Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1690, 80
L.Ed.2d 163 (1984), quoting Foxworth v. Wainwright,
516 F.2d 1072, 1076 (5th Cir. 1975).
An actual conflict of interest is all the more damaging when
it consists, not of failure to take beneficial action that
independent counsel might have chosen, but of positive actions
that on their face are actually harmful to a defendant. In
United States ex rel. Williams v. Franzen, 687 F.2d 944, 949-50
(7th Cir. 1982), counsel representing several defendants put
one defendant on the stand and elicited testimony that tended
to inculpate the co-defendants while exculpating the witness.
The Seventh Circuit affirmed the grant of habeas relief because
of counsel's blatant breach of loyalty to the co-defendants.
This kind of palpable conflict of interest permeated the
present case. Petitioner's own counsel, Julius Sherwin, argued
to the court that petitioner was the "major malefactor" who
should bear primary responsibility for the crime. Sherwin also
argued to the court for leniency on behalf of Deborah Thomas
on the ground that she would not have been prosecuted at all
if petitioner had pleaded guilty. These most glaring lapses of
loyalty had their greatest measurable impact on sentencing,
when the offending arguments were made to the court.
The trial and sentencing judge adopted the theory advanced
by Sherwin that petitioner was the ringleader who led Thomas
astray, and considered that theory to be an aggravating factor
calling for a significantly increased sentence. By contrast,
Kiel, who was sentenced by the same judge for the same crime
but in the absence of a suggestion that he was responsible for
Thomas' misconduct, received a 10-year sentence, to run
concurrently with a separate burglary sentence, despite his
comprehensive criminal record. In the unique circumstances of
this case it is, therefore, possible to estimate the
minimum amount of prejudice to petitioner resulting from
Sherwin's conflict of interest at the sentencing stage, even
apart from the effect of his divided loyalty during other
stages of the case. Kiel has now been released from custody.
Had petitioner received a sentence equivalent to Kiel's he
would long ago have been released from prison.
But Sherwin was disloyal to petitioner before and during the
trial. He contrasted the actions of the participants in the
crime, to the disadvantage of petitioner. He falsely
contrasted the strength of the evidence against the
defendants, again to petitioner's disadvantage. And his
general demeanor toward Thomas was supportive while he was
antagonistic toward defendant. Indeed, although more difficult
to measure, Sherwin's representation of his clients during
plea negotiations, including
not only the odious fact that he was urging Thomas to accept
the plea that obligated her to testify against Kiel and
petitioner, but also Sherwin's statement to them that the
State's plea negotiation offers were a "package deal" may have
had the greatest impact of all. Had petitioner believed he was
free to accept the State's plea offer and accepted it, he
would have received only a six-year sentence, the statutory
minimum, and would have been released long ago.
These estimates of the impact of Sherwin's conflict are,
however, quite unnecessary to the question of the necessity
for habeas relief. Once it is shown that an actual conflict
existed, we should not speculate about the possible
[I]n a case of joint representation of
conflicting interests the evil . . . is in what
the advocate finds himself compelled to
refrain from doing, not only at trial but also as
to possible pretrial plea negotiations and in the
sentencing process. It may be possible in some
cases to identify from the record the prejudice
resulting from an attorney's failure to undertake
certain trial tasks, but even with a record of the
sentencing hearing available it would be difficult
to judge the impact of a conflict on the attorney's
representation of a client. And to assess the
impact of a conflict of interests on the attorney's
options, tactics, and decisions in plea
negotiations would be virtually impossible.
Holloway, 435 U.S. at 490-91, 98 S.Ct. at 1181-82 (emphasis in
original). Accordingly it is unnecessary to demonstrate
prejudice where a conflict of interest is shown. Strickland v.
Washington, 104 S.Ct. at 2067.
While proof of prejudice is unnecessary, however, the
prejudice to petitioner stemming from Sherwin's conflict of
interest is palpable. The conflicting positions which Sherwin
took at pretrial, and during the trial and sentencing and the
trial judge's explicit adoption of Sherwin's suggestions that
petitioner was responsible for Thomas' participation in the
crime and the increased sentence which petitioner accordingly
received render demonstrable that this case is an appropriate
one for habeas relief.
Petitioner's motion for summary judgment is granted.
Petitioner's conviction of the crime of armed robbery in the
Circuit Court of Lake County, Illinois under docket No. 79 CF
10 on January 18, 1980 is set aside. Respondents are ordered
to release petitioner from custody forthwith. Should
respondents appeal from this order, petitioner will be granted
bail pending appeal. Should respondents not afford petitioner
a new trial within 120 days they will be barred from bringing
petitioner to trial on the subject armed robbery charges.