The title says it all - the decision of the en banc panel in Campbell v. Rice affirming the denial of a habeas petition is disturbing.
Here are the facts. The petitioner was charged by the Santa Clara Co. DA with several burglaries and attempted burglaries. What the petitioner did not know was that his trial counsel was also being prosecuted by the Santa Clara DA on drug possession charges. On the first day of trial, the trial court held an in-chambers conference, from which the petitioner was exluded. There, the DA finally disclosed to the judge that defense counsel was being prosecuted on a drug charge, that the plea offer in her case was diversion, and that counsel did not receive any special treatment from the DA, one way or the other. The DA did not tell the judge that the AG told him that since defense counsel was already on probation after a DUI conviction and had an outstanding $15,000 bench warrant, she was ineligible for diversion disposition. Based on what he was told, the judge ruled that the DA simultaneous prosecution of defense counsel did not create a conflict of interest and allowed the trial to continue. The petitioner was convicted, lost on all his direct appeals, and the habeas petition raised ineffective assistance of counsel and due process claims.
The majority rejects both claims essentially on the same grounds - that assuming there was a conflict of interest in his representation or a due process violation in his exclusion from the in-chambers conference, he cannot show prejudice. But it is not clear how exclusion of the petitioner from the in-chamber conference is not a due process / Sixth Amendment violation. It seems that permitting defense counsel to continue to represent the petitioner under such circumstances, without allowing the petitioner to learn about his attorney's inherent conflict of interest, undermines the fairness of the trial process on which our system of justice relies.
In fact, this situation might even represent a rare IAC situation where automatic reversal is warranted. While a "cold" record may not disclose this, but do you think an attorney is going to vigorously defend his client when he is facing the DA who holds the attorney's fate and freedom in their hands? Effective assistance of counsel is not merely raising issues and objections, a-la law school exam, it is also being tenacious in cross-examination, making objections, pushing for sentencing options, etc. These entangibles are at the heart of the adversarial system of justice and they are inherently compromised when an attorney defends a client and, at the same time, tries to negotiate his or her own case, with the same DA.
One interesting side issue is would the outcome here be any different if the 9th Circuit was not "straightjacketed" by AEDPA's unreasonable application standard?
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