PROBLEMS OF JOINT REPRESENTATION OF DEFENDANTS IN A CRIMINAL CASE

RICHARD H. GIRGENTI

Although there is no per se prohibition against joint representation of criminal defendants,' there are many instances where a defendant's right to effective assistance of counsel is compromised by his attorney's prior or present representation of another individual with conflicting interests. The difficulty in dealing with this problem arises from the competing interests and rights of the defendant at stake. While a defendant has the right to be protected from ineffective assistance of counsel,' he also has the right to counsel of

• Assistant District Attorney, New York County, specially assigned to the Office of Prosecution, Special Narcotics Courts, City of New York. B.A. 1971, Seton Hall University; J.D. 1974, Georgetown University Law Center. The views contained in this article are those of the author and do not necessarily reflect the views of the District Attorney of New York County or the Special Narcotics Prosecutor.

The case law contains no absolute bar to joint representation. See, eg, Holloway v. Arkansas, 435 U.S. 475, 482-83 (1978); Glasser v. United States, 315 U.S. 60, 76-77 (1942); Thacker v. Bordenkircher, 590 F.2d 640, 641-42 (6th Cir.), cert. denied, 99 S. Ct. 2827 (1979); United States v. Cox. 580 F.2d 317, 320 (8th Cir. 1978), cert. denied, 99 S.Ct. 851 (1979); United States v. Waldman, 579 F.2d 649, 651 (1st Cir. 1978); Kaplan v. Bombard, 573 F.2d 708, 712-13 (2d Cir. 1978); United States v. Dolan, 570 F.2d 1177, 1183 (3d Cir. 1978); Haggard v. Alabama, 550 F.2d 1019, 1022 (5th Cir. 1977); United States v. Mandell, 525 F.2d 671, 67477 (7th Cir. 1975), cert. denied, 423 U.S. 1049 (1976). Similarly, the Ethical Considerations of the American Bar Association Code of Professional Responsibility provides that:

If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment He should resolve all doubts against the propriety of the represen tation. A lawyer should never represent in litigation multiple clients with differing interests; and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests.

ABA CODE OF PROFESSIONAL RESPONSIBILITY, E.C. 5-15; see id., E.C. 5-14 to 5-20; D.R. 5-105. The ABA Standards also contain no per se prohibition:

Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation.

ABA STANDARDS, THE DEFENSE FUNCTION § 3.5(B)(1974).

* Avery v. Alabama, 308 U.S. 444, 450 (1940); Powell v. Alabama, 287 U.S. 45, 71 (1932); see Gideon v. Wainwright, 372 U.S. 335, 342-45 (1963); Johnson v. Zerbst, 304 U.S. 458, 46263 (1938). Although the right to adequate representation is well established, it has never been

RESTRICTIONS UPON USE OF THE ARMY IMPOSED BY THE POSSE COMITATUS ACT*

BY MAJOR H. W. C. FURMAN**

I. INTRODUCTION

A. General

As a result of a protracted struggle between a Republician President and a Democratic Congress over federal interference in elections in the South, the only legislation attempting to restrict the power of the President in the use of the national forces was passed.' Congress limited the employment of the Army as a means of law enforcement in the Army Appropriation Act fethe fiscal year 1879, providing:

"Sec. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posee comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section and any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment." &

In 1956, incident to the enactment of title 10, United State Code, as positive law, the so-called "Posse Comitatus Act" wa repealed and its substance reenacted as section 1385 of title 18, United States Code.

The enactment of the Posse Comitatus Act was the occasion for lively debate and much political wrangling but in the intervening years it has seldom been construed by the courts or the Attorney General. Nevertheless, it has produced any trouble

• This article was adapted from a thesis presented to The Judge Advocate General's School, U. S. Army, Charlottesville, Virginia, while the author was a member of the Seventh Advanced Class. The opinions and conclusions presented herein are those of the author and do not necessarily represent the views of The Judge Advocate General's School nor any other governmental agency.

** JAGC, U. S. Army, Staff Judge Advocate Section, Fort Leonard Wood, Missouri; member of the Michigan State Bar; graduate of University of Michigan Law School.

1 Corwin, The President: Office and Powers, 1787-1957 137 (1957).

2 Sec. 15, Army Appropriation Act of Jun 18, 1878, 20 Stat. 152; codified until 1956, with amendments, as 10 U.S.C. 15.

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some questions to be resolved by The Judge Advocate Genera of the Army and the judge advocates of Army posts and units.'

38

As a means of protecting the nation from that hardy spectre "the evils of a large standing army"-as was claimed by some of its proponents the act has been largely unnecessary and ineffectual. As a means of limiting the powers of the President to employ armed forces to execute the laws, the two exceptions contained in the statute have been its own undoing, though (in the author's opinion) it would have been unconstitutional otherwise. The act has succeeded in preventing the misuse of troops by commanders who might have performed some law enforcement functions viewable as an unwarranted invasion of civilian affairs. It has sheltered the Army from odious duties foreign to its normal training or operational mission. Unfortunately, the act has inhibited commanding officers in their responsibility for maintaining favorable community relations and for taking all necessary measures for the welfare and discipline of the command. While no person appears to have been prosecuted for a violation of the Posse Comitatus Act, this should not be taken as evidence that the conduct which it prohibits is well defined or understood. The variety of interpretations it has received suggest that the act is so vague and indefinite that, as a criminal statute, it might be unconstitutional.

The Posse Comitatus Act, in its present form, provides:

"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000. or imprisoned not more than two years, or both. This section does not apply in Alaska." 4

Merely reading the statute serves to indicate some of the issues with which this thesis is concerned. What constitutes a "part of the Army or the Air Force"? Is it the individuals, the organizations, the reserve components, only the regulars? Why are naval forces omitted? To whom does "whoever" apply? How broad is the term "or otherwise" and what does i mean to "execute the laws"? Purportedly, the statute does not apply in Alaska but what is the impact of Alaskan statehood? Does it apply in Hawaii or the overseas commands? What are the exceptions

8 This thesis topic was suggested in letters to the Commandant, The Judge Advocate General's School, U. S. Army, from the Staff Judge Advocate, U. S Army Engineer Center, Fort Belvoir, Virginia, 10 Jul 1958; The Staff Judge Advocate, Headquarters Third U. S. Army, Fort McPherson, Georgia, 15 Jul 1958; The Staff Judge Advocate, U. S. Army Signal Center, Fort Monmouth, New Jersey, 11 Aug 1958.

3 Discussed in detail in fn 40a and Section V.

418 U.S.C. 1385 (1952 Ed., Supp. V).

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"expressly authorized by the Constitution or Act of Congress"? Finally, can the requirement that the constitutional and statutory exceptions be express limit the power of the President in fulfilling his duties to "take care that the Laws be faithfully executed"? 5

B. Posse Comitatus Defined

The posse comitatus derives its name from the entourage or retainers which accompanied early Rome's proconsuls to their places of duty and from the comte or counte courts of England. It was a summons to every male in the country, over the age of fifteen, to be ready and appareled, to come to the aid of the sheriff for the purpose of preserving the public peace or for the pursuit of felons."

In the United States, a sheriff may call on the posse for aid and those persons called are required to assist or be punished.' Those states having statutes delineating the use of the posse comitatus have merely affirmed the common law.'

From section 27 of the Judiciary Act of 1789,' the United States marshal derived implied authority to summon the military forces of the United States as a posse comitatus. Although sanctioned by long practice and thought to be fairly inferred from the provisions of the Judiciary Act, no such authority was expressly conferred by statute, 10 and now such summons are forbidden by the Posse Comitatus Act."

C. Chief Executives' Use of Army in Enforcing Laws

The President, as Chief Executive, swears that he will faithfully execute his office and that he will preserve, protect and defend the Constitution.12 In executing his office he is required

5 U.S. Const. art. II, sec. 3.

15 C.J.S. 245 (1939); Black, Law Dictionary, 4th ed. 1324 (1951); Encyclopedia Britannica, 1957 ed., Vol. XVIII, 302. For details of the early English origin of the posse comitatus see Lorence, The Constitutionality of the Posse Comitatus Act, 8 Kansas City L. Rev. 164 (1940).

7 Coyles v. Hurtin, 10 Johns. 85 (N.Y. 1813); Sutton v. Allison, 47 N.C. 339 (1855); Worth v. Craven County, 118 N. C. 112, 24 S.E. 778 (1896); Commonwealth v. Martin, 7 Pa. Dist. 219 (1898); Person v. Northampton County, 19 Pa. Dist. 691 (1910); McCarthy v. Anaconda Copper Mining Co., 70 Mont. 309, 225 Pac. 391 (1924); 57 CJ. 773 (1932).

8 Comonwealth v. Martin, supra note 7.

9 Act. of Sep 24, 1789, sec. 27, 1 Stat. 73, 28 U.S.C. 547(b).

10 President Pierce's Attorney General, Caleb Cushing, expressed an opinion that a Federal marshal's authority to summon the posse comitatus included authority to summon officers, soldiers, sailors and marines. 6 Op. Atty. Gen. 466 (1854); 16 Op. Atty. Gen. 162 (1878).

11 17 Op. Atty. Gen. 71 (1881); 17 Op. Atty. Gen. 242 (1881). 12 U. S. Const. art. II, sec. 1, cl. 8.

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to "take care that the laws be faithfully executed." 11 Since the Debs decision," it is clear that it is the Chief Executive who must enforce the provisions of Article IV, section 4, of the Constitution, guaranteeing to the several states protection against "domestic violence." 15

The Chief Executive's power to employ the Army in enforcing laws has evolved through a combination of statutory provisions, administrative and judicial determinations and vigorous action on the part of the office holder.

President Washington overcame an anti-Army Congress suffciently to get legislation, in 1792, permitting him to call forth the militia" "whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state by combinations too powerful to be suppressed by the ordinary course of judicial proceedings or by the power vested in the marshals." " The President had to be "notified" by an associate justice or district judge of the United States and he had to issue a proclamation to disperse, before using the troops.1

The Third Congress, by the Act of February 28, 1795," revised the earlier measures by eliminating the judicial notification and made the President "the sole and exclusive judge" of the facts. The provisions of the Act of 1795 were extended to the national forces by a bill which provided;

"That in all cases of insurrection or obstruction to the laws, either of the United States or of any individual State or Territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States as shall be judged necessary, having first observed all the prerequisites of the law in that respect." 20

When called upon to issue a proclamation to insurgents who refused to obey certain Embargo Acts, President Jefferson ex

18 Although this act referred to militia only, Corwin says that this is without interpretative significance because of the small Regular Army of that day. Corwin, supra note 1, at 131. Washington acted under the authority of this statute to personally put down the Whiskey Rebellion. See Findlay, History of the Insurrection in the Four Western Counties of Pennsylvania (1796); Brackenridge, History of the Western Insurrection (1859); Office of The Judge Advocate General, Federal Aid in Domestic Disturbances, S. Doc. Vol. 19, 67th Cong., 2d Sess. 26-34 (1922) (hereinafter cited as Federal Aid).