A. The Legal Standard. . . . . . . . . . . . . . . . 24

B. Counsel’s Undisputed Status As Advocate and

C. Andrews Labored Under An Actual Conflict of

Interest Because The Circumstances of His

Representation Placed Him In A Position

Inherently Conducive To Divided Loyalties—

A Determination That Does Not Depend On His

Subjective Awareness Of The Conflict. . . . . . . 29

D. The Panel’s Rule of Subjective Awareness Is

Contrary To The Law . . . . . . . . . . . . . . . 37

Beets v. Collins, 986 F.2d 1478 (5^th Cir. 1993) . 3, 8, 38, 43,

53

Commonwealth of Pennsylvania v. Fontana, 415 A.2d 4

Cuyler v. Sullivan, 446 U.S. 335 (1980) ........ 24, 25, 27, 39,

Holloway v. Arkansas, 435 U.S. 475 (1978) ...... 24, 27, 29, 39,

Tumey v. Ohio, 273 U.S. 510 (1927) ......................... 32

UNITED STATES COURT OF APPEALS

On Appeal From the United States District Court

Ms. Betty Lou Beets, by her counsel, files this brief on rehearing en banc. This brief follows Respondent’s opening brief, which addressed the issue on which the court below granted relief. In addition, this pleading is Ms. Beets’ opening brief on the two issues which are the subject of a cross-appeal.

Appellant’s statement of this Court’s jurisdiction is accurate.

Ms. Beets accepts appellant’s statement of the course of prior proceedings, with two exceptions. In his brief, the Attorney General incorrectly suggests Ms. Beets’ Petition for Writ of Habeas Corpus raised only the three issues presently before this Court on appeal. Brief of Respondent at 4. On December 3, 1990, Ms. Beets filed her first Petition for Writ of Habeas Corpus in the United States District Court for the Eastern District of Texas, Tyler Division. This petition raised 28 grounds for relief. On January 22 and 23, 1991 and April 1, 1991, the court held an evidentiary hearing in connection with three of those 28 claims (the conflict of interest claim, the ineffective assistance of counsel claim, and the Giglio claim). On April 29, 1991, Chief Judge Parker entered an order granting the writ of habeas corpus, concluding Ms. Beets had been denied her Sixth Amendment right to the conflict-free assistance of counsel. The district court denied relief on the other two grounds. Thus, this appeal involves only the claims that were resolved in the court below. The great majority of Ms. Beets’ claims have never been addressed by a federal court.

Furthermore, Ms. Beets also wishes to correct an error in the panel opinion regarding the prior collateral proceedings in state court. The panel majority unfairly criticizes Ms. Beets for failing to present in state court the allegations regarding trial counsel’s conflict of interest in the same manner as in the federal petition. Beets v. Collins, 986 F.2d 1478, 1482 (5^th Cir. 1993). On November 1, 1989, Ms. Beets filed an Application for Writ of Habeas Corpus in state court. Before the state answered, Ms. Beets amended her application; this Amended Application included the identical allegations and supporting documents subsequently presented in federal district court. The panel apparently failed to consider this Amended Application. In his brief to this Court, the Attorney General neglected to correct this misperception.

The Attorney General directs this Court to the facts as set out in the opinion of the Texas Court of Criminal Appeals. Brief for Appellant at 5; compare Beets v. State, 767 S.W.2d 711, 731-33 (Tex. Crim. App. 1988)(on rehearing). The facts dispositive of this appeal, however, were, in the main, developed in the post-conviction proceedings and thus are not necessarily reflected in the state court’s opinion. The relevant facts will be set forth in this section of the brief.

Jimmy Don Beets disappeared August 6, 1983. His overturned boat was found in Lake Athens, Texas, leading to speculation that he had drowned in a fishing accident. In the ensuing months, Ms. Beets made no attempt either to ascertain the existence of, or to recover, any benefits potentially owed to her, as a result of her husband’s disappearance. Over a year after her husband disappeared, in an unrelated incident, Ms. Beets’ trailer home was destroyed by fire. Ms. Beets filed a claim with her insurer for the loss of the trailer and its contents but the insurer refused to pay. Exhibit 1, Affidavit of E. Ray Andrews; R. IV at 80-81, 138.

Seeking assistance with her fire insurance claim, Ms. Beets contacted E. Ray Andrews. Andrews had represented Ms. Beets on various civil matters in the past. When she first contacted him, her exclusive concern was with the fire insurance claim. Exhibit 1, Affidavit of E. Ray Andrews at para. 3-4; R. IV at 80-82. Andrews knew that Ms. Beets’ husband had worked for the City of Dallas prior to his disappearance; thus, in his initial meeting with Ms. Beets, Andrews questioned her about both the fire insurance claim and any claim she may have had to death benefits (insurance or pension proceeds). It is undisputed that it was Andrews who first suggested to Ms. Beets that she might have been entitled to benefits arising out of her husband’s disappearance. It is also undisputed that Ms. Beets had no idea what, if any, benefits she might have been entitled to as a result of her husband’s disappearance. Exhibit 1, Affidavit of E. Ray Andrews at para. 7; R. IV at 81, 138.

Andrews offered, on a contingent fee basis, to pursue Ms. Beets’ fire insurance claim, as well as any claim to any benefits she might have been entitled to in connection with her husband’s disappearance. Andrews acknowledges that while Ms. Beets accepted his offer, she showed no interest in anything but her fire insurance claim. Exhibit 1 at para. 8-13. Andrews was ultimately able to establish that benefits existed, and informed Ms. Beets of this fact. He had relatively little experience in this area of the law, however, and so associated Bruce and Randell Roberts, two attorneys in nearby Tyler, to assist him. In Andrews’ office, Randell Roberts met with Andrews and Ms. Beets to discuss the claims. Id. At this meeting, Mr. Roberts questioned Ms. Beets about the benefits. While Ms. Beets "may have had a vague sense that benefits existed, . . . this would only be because [Andrews had] told her as much." Id. at para. 11. Nonetheless, because Andrews had already determined that benefits existed, Roberts agreed to assist in the representation, and eventually turned the matter over to his brother, Bruce Roberts. Affidavit of Randell Roberts, Exhibit 37 at para. 2-6; Affidavit of Bruce Roberts, Exhibit 38 at para. 3. Bruce Roberts ultimately determined that Ms. Beets was entitled to various pension and insurance benefits provided by the City of Dallas. In June of 1985, the City sent a check payable to Ms. Beets through Andrews, her attorney. R. S.F. VI at 454.

Before Andrews received the payment from the City, Ms. Beets was arrested and charged with the capital murder of her husband, whose body was found buried in her front yard. The indictment alleged Ms. Beets murdered her husband "for remuneration and the promise of remuneration; namely money from the proceeds of retirement benefits from the employment of Jimmy Don Beets with the City of Dallas, insurance policies on the said Jimmy Don Beets in which the defendant is the named beneficiary, and the estate of Jimmy Don Beets." R. S.F. Transcript Vol. I at 3; see also V.T.C.A., Penal Code, Section 19.03(a)(3).

Andrews agreed to represent Ms. Beets in connection with the capital murder charge, and Ms. Beets’ trial commenced October 7, 1985. On October 8, Andrews presented Ms. Beets with a contract, which transferred the literary and media rights in the case from Ms. Beets to Andrews’ son, E. Ray Andrews, Jr., in exchange for Andrews’ agreement to represent Ms. Beets at her capital murder trial. Exhibit 26, Media Rights Contract. The contract represented the entire fee agreement. Andrews believed that because of the notoriety surrounding this case, the media rights were worth a great deal of money. Exhibit 3, Affidavit of Gilbert Hargrave at para. 3, 6. According to published newspaper reports that appeared following the panel opinion in this case, and despite the determination by the panel that the media rights contract is "an apparent breach of [Andrews’] ethical obligations," Beets, 986 F.2d at 1488, Andrews has admitted that his son still retains the rights to Ms. Beets’ case. "Death Sentence Is Reinstated For Beets", Cedar Creek Pilot, March 21, 1993.

At the guilt phase of trial, Andrews’ "principal defense strategy" was to attack the remuneration element of the state’s case. Exhibit 1, Affidavit of E. Ray Andrews at para. 14. His sworn affidavit states: "I knew the state had to prove Ms. Beets killed her husband for the purpose of receiving benefits. That is, she had to have those benefits in mind at the time she killed her husband. Yet I knew from my discussions with her that this was not the case." Id. At the evidentiary hearing in the court below, Andrews admitted in response to questioning by the court that aside from his personal knowledge, he had no unbiased testimony to support this argument. R. IV at 78; see also, id. at 139 (testimony of Gilbert Hargrave).

This became painfully evident at trial. While Andrews did call Bruce Roberts as a witness, Roberts testified that by the time he became involved in the case, Ms. Beets knew she was entitled to benefits as a result of her husband’s death and that she wanted Roberts to pursue these benefits on her behalf. R. S.F. VI at 453. Roberts, however, could not and did not testify to the critical fact that only Andrews could provide: whatever Ms. Beets may have known about the benefits, she knew only because Andrews had told her. Matters only got worse. During the prosecutor’s summation, he reminded the jury of counsel’s attempt to have Beets declared legally dead, and accused Andrews of participating in a plan to circumvent a Texas law:

R. S.F. VII at 648. In his closing argument, Andrews defended himself before the jury by admitting he encouraged her to seek the benefits but only because he thought the efforts would reward him financially:

Id. at 646-47.

At the sentencing phase, trial counsel presented no evidence. He had not even conducted any investigation into her background, nor had he sought expert assistance. In his summation, he argued only that the jury had made a mistake in its guilt phase verdict, and that sentencing was an opportunity to correct the error. The mitigating evidence available to counsel at the time of trial was collected and presented in post-conviction proceedings and recounted in great detail in the Petition for Writ of Habeas Corpus filed in the court below. This pleading can only summarize those facts.

Ms. Beets was born February 12, 1937, to a violent, alcoholic father and a mentally ill mother. Raised in poverty and reared in violence, the record of her life is a chronicle of virtually uninterrupted physical, sexual and emotional abuse. Beginning at least with the time she was raped at age five, and continuing almost her entire life, she has been beaten, raped, tortured, and abandoned by every man she has ever depended on. She has a lengthy history of well-documented head injuries, including repeated blows at the hands of abusive men, as well as a near-fatal car accident in 1980. The undisputed record in post-conviction proceedings establishes that, as a result of her well-documented past, she suffers from Post-Traumatic Stress Disorder, Battered Women’s Syndrome and Organic Brain Damage and that she is both learning disabled and hearing-impaired.

From her birth in a sharecropper’s pineboard cabin—where her family lived in a shack without window glass, screens, electricity, plumbing, or water, and subsisted on a diet of salt pork, flour, and meal—to her near fatal bout with measles encephalitis at age six which left her hearing permanently compromised, Ms. Beets was raised in poverty and sickness. Exhibit 32, Affidavit of Louise Dunevant, at para. 2-3; Exhibit 11, Affidavit of Dr. Linda Narun; Exhibit 7, Report of Dr. Lenore Walker.

Among Ms. Beets’ earliest recollections is the time she was raped at age five. R. V at 249-50; 256-57. When she was twelve, her mother suffered a mental collapse and was institutionalized. Exhibit 7, Report of Dr. Lenore Walker; Exhibit 23, Medical Records of Eastern State Hospital; Exhibit 32, Affidavit of Louise Dunevant. After her mother’s release from the hospital, she was placed on medication but frequently became uncontrollable. Ultimately, when Ms. Beets was fifteen, her mother returned to the State Hospital where she was held for three months and treated with electroshock and deep coma insulin therapy. Exhibit 7, Report of Dr. Lenore Walker; Exhibit 23, Medical Records of Eastern State Hospital. While her mother was institutionalized, her father turned to alcohol. Even as a young teen, Ms. Beets frequently found her father passed out drunk on the kitchen floor. Exhibit 7, supra; Exhibit 33, Affidavit of Bobby Branson; R. V at 259. He grew sullen and violent, with outbursts of irrational jealousy, and often beat Ms. Beets with his belt buckle and fists. Exhibit 7, supra.

Home offered no shelter for Ms. Beets. She suffered from chronic migraine headaches and terrifying nightmares. At age 14, she weighed only 82 pounds, placing her in the lowest one percentile on standardized growth charts. Exhibit 24, School Records of Betty Lou Dunevant; Exhibit 17, Standardized Growth Charts; Exhibit 7, Report of Dr. Lenore Walker. School was little better. Because of her hearing loss and learning disability, she was isolated and confused, unable to understand her teachers, and taunted by other children. Exhibit 7, supra; Exhibit 11, Report of Dr. Linda Narun; Exhibit 32, Affidavit of Louise Dunevant. Instructors sent notes home to her parents, encouraging them to seek special medical attention, but her parents were unable or unwilling to make special accommodations. Id. Ms. Beets failed the fourth grade, and missed increasing numbers of days at school. Exhibit 24, School Records.

To escape the chaos all around her, Ms. Beets was encouraged by her mother to withdraw from school and leave home. In 1952, at age fifteen, she married for the first time. R. V. at 259-263; Exhibit 7, supra. By the time of her arrest in this case, she had been married a total of seven times to five men, all of whom were physically and emotionally abusive, and several of whom were also sexually abusive. Her first husband, within months of their marriage, beat her for some trivial transgressions, and threatened to leave her. Like her father, he was extremely jealous and overpossessive. Exhibit 7, Report of Dr. Lenore Walker at 4-5, 10; R. V at 262-645. On one occasion, he flew into a violent rage when he found her at the laundromat talking with a male friend. By force, he put her on a bus to her parents and would not allow her to take her two young children with her. On the bus, Ms. Beets took an entire bottle of sleeping pills, hoping she would die on the trip home. Eventually, he demanded a divorce, leaving her with six children between the ages of one and fifteen, no education, and no skills. Within months of the divorce, he remarried a younger woman, and promptly stopped paying child support. Yet even after he remarried, he often returned to Ms. Beets and demanded sex. Id.

In 1970, Ms. Beets married her second husband, Bill Lane. Unknown to Ms. Beets, Lane had a long history of drunkenness and extreme jealousy, accompanied by violent attacks on his former wife, as confirmed by their divorce records. Exhibit 28 & 29, Divorce Records of Bill Lane. Friends and neighbors of Ms. Beets, along with her children, recalled the life-threatening abuse he visited upon her:

Exhibit 36, Affidavit of Connie Faith at para. 10.

Exhibit 35, Affidavit of Jim Kinson at para. 6; see also Exhibit 32, Affidavit of Louise Dunevant; Exhibit 33, Affidavit of Bobby Branson; Exhibit 42, Affidavit of Faye Stringer. Prior to leaving town for any period, Lane would administer a type of sexual branding by biting Ms. Beets on the breasts, thighs, stomach and buttocks, leaving large, black bruises to insure she would not show her body to anyone in his absence. R. V at 265-66. She went to a doctor in May, 1971, "because of her nerves" and was "worried about bills and lack of security." Exhibit 20, Medical Records of Dr. Leonard Nystrom. In July, 1971, she received stitches in the emergency room after Lane struck her in the left eye. Exhibit 21, Medical Records of Lancaster Hospital. See generally R. V at 265-270; Exhibit 7, Report of Dr. Lenore Walker at 5-7.

In 1979, after a brief but violent marriage to Ronald Threlkeld, Ms. Beets married Wayne Barker. Exhibit 33, Affidavit of Bobby Branson; Exhibit 7, Report of Dr. Lenore Walker at 7-8. Barker, like Lane, battered and terrorized his former wives. Divorce pleadings from his previous marriage called him "a violent and irrational person" who had "threatened to do serious bodily harm and injury" and had "in fact beaten and injured" his former wife. Exhibit 30 & 31, Divorce Records of Doyle Barker. Ms. Beets met the same fate as the earlier Mrs. Barker:

Exhibit 33, Affidavit of Bobby Branson at para. 6-7; see also Exhibit 34, Affidavit of Leon Lane.

On April 11, 1980, Ms. Beets almost died of head injuries from a serious car accident. She was so disfigured and her face and head so swollen her family could not recognize her. She suffered a basilar skull fracture, lacerations, and a cerebral concussion. Exhibit 18, Medical Records of Baylor Medical Center. Ms. Beets, always physically and mentally weak, sustained permanent brain damage. Exhibit 9, Report of Dr. Robert Geffner; Exhibit 8, Report of Dr. James Merikangas; Exhibit 43, Supplemental Report of Dr. Robert Geffner. She lost her equilibrium, her migraines intensified, her hearing impairment worsened, she was constantly dizzy, she lost movement on her right side, and she had greater difficulty in concentrating. Exhibit 18, Medical Records of Baylor Medical Center; Exhibit 8, Report of James R. Merikangas at 3, 5-6.

Her injuries were of no moment to Barker. His physical battering continued for the next year until his disappearance.

Exhibit 33, Affidavit of Bobby Branson at para. 11. Ms. Beets’ son-in-law saw Ms. Beets the day after her last beating by Barker in 1981:

By the time Ms. Beets met and married Jimmy Don Beets in 1982, her mind and body had been ravaged by maltreatment, chronic illness and neglect as a child, constant threats of annihilation by those who swore their love, and repeated head injuries. To escape the torment of her life, she turned to alcohol. R. V at 267-68. She bought five cases of beer weekly. An alcoholic haze helped block her deep seated fears and insecurities. Exhibit 7, Report of Dr. Lenore Walker at 5-12. To rebound from the alcohol’s depressive effects, she consumed five or six diet pills a day—five times the daily therapeutic dose. Id.; Exhibit 10, Report of Dr. Arcelia Johnson Fannin at para. 9. The primary ingredient in these pills is pharmacologically related to amphetamines. Exhibit 10, supra at para. 4. When combined with alcohol, this drug produces paranoia, hallucinations, mania, and other psychotic reactions similar to those experienced by persons who ingest LSD. Exhibit 10, Affidavit of Dr. Arcelia Johnson Fannin at para. 11. Nightmares plagued her, and she was unable to prevent intrusive and recurring thoughts of the physical violence and emotional abuse she had endured. Exhibit 7, Report of Dr. Lenore Walker at 5-12; Exhibit 8, Report of Dr. James Merikangas at 6.

None of the evidence regarding Ms. Beets’ social or mental health history was developed or presented at trial. "Trial counsel candidly admit[ted] that he did not investigate Petitioner’s social or psychological history for the purpose of discovering evidence that could be used in mitigation." R. I at 39. In addition, trial counsel admitted he never considered having Ms. Beets examined by a psychiatrist or psychologist. R. IV at 125.

Expert evaluations conducted in post-conviction proceedings establish that as a result of her history, Ms. Beets suffers from Post Traumatic Stress Disorder—Battered Women’s Syndrome and Rape Trauma Syndrome, and that she has Organic Brain Damage. Exhibit 7, Report of Dr. Lenore Walker; Exhibit 8, Report of Dr. James Merikangas; Exhibit 9, Report of Dr. Robert Geffner; Exhibit 43, Supplemental Report of Dr. Robert Geffner. She is learning disabled with an abnormally low I.Q., and is chronically hearing impaired in both ears. Exhibit 11, Affidavit of Dr. Linda Narun; Exhibit 43, Supplemental Report of Dr. Robert Geffner. Her multiple disabilities have left her extremely dependent on others with gravely impaired judgment. She easily misperceives events, and grossly overreacts to any behavior she views as threatening. Exhibit 43, Supplemental Report of Dr. Robert Geffner; Exhibit 7, Report of Dr. Lenore Walker. Her ability to think rationally and logically is compromised, as is her ability to act deliberately. Id.

E. Ray Andrews, trial counsel for Ms. Beets, labored under actual, and interrelated, conflicts of interest that adversely affected his performance. Andrews was a witness concerning an essential element of the offense. He knew from personal conversations with Ms. Beets that she knew nothing about any benefits arising out of her husband’s death before he informed her of that possibility. Thus, if she had killed her husband, she had lacked the necessary intent to be convicted of capital murder. It was Andrews who encouraged Ms. Beets to seek these benefits, Andrews who first informed Ms. Beets that benefits existed to which she may have been entitled, and Andrews who first attempted to recover them on her behalf. According to Andrews, whatever Ms. Beets knew of such benefits, she knew only because Andrews told her. From the moment Ms. Beets was arrested and charged with murdering her husband for the purpose of remuneration, Andrews had a disabling and actual conflict of interest because he was the principal witness to a nonexistence of an essential element of the offense.

In addition, Andrews had an actual conflict of interest because the circumstances of his representation placed him in a position inherently conducive to divided loyalties. Andrews’ entire fee came from an unethical contract for the media rights in Ms. Beets’ case; a contract Andrews continues to hold. In the court below, the parties agreed that Andrews could not expect to reap the full benefit of this contract unless he remained in the case, which required that he deprive Ms. Beets of his unbiased testimony. In analogous circumstances, the Supreme Court has repeatedly held that a fee arrangement of this sort, which conditions an actor’s fee on a particular course of conduct, creates an inherent and intolerable risk of divided loyalties since it tempts even well-intentioned actors to enrich themselves, rather than attend solely to the interests of the client^.

In concluding that Andrews did not have an actual conflict, the panel fashioned a rule that rewards defense counsel for his self-serving proclamations of ignorance. The panel held that a habeas petitioner cannot establish an actual conflict of interest unless defense counsel admits he was aware of his conflict at the time of trial. Yet the Supreme Court has long recognized that counsel has a professional interest in denying his own conflicts, and that even an actor’s sincere assertions of good faith will not transform an inherently intolerable arrangement into something innocuous. In addition, the well-settled authority, in this Circuit and elsewhere, holds that counsel’s subjective knowledge is irrelevant to the conflict inquiry.

Andrews’ conflicts adversely affected his performance. By failing to withdraw and testify on his client’s behalf, Andrews deprived Ms. Beets of independent testimony on an essential element of the offense. Andrews was the only witness who could testify that Ms. Beets has no prior knowledge of potential benefits. Though Andrews presented the testimony of Bruce Roberts, Roberts provided the incriminating evidence that by the time he became involved in the attempt to recover benefits, Ms. Beets knew of potential benefits, and asked Roberts to recover them on her behalf. Roberts could not testify, however, to the critical exculpatory facts—Ms. Beets learned of these benefits only through Andrews, and it was Andrews who encouraged her to seek the benefits. In addition, his dual status as advocate and witness enabled the prosecutor to attack him before the jury by accusing him of participating in a plan to circumvent a Texas law. This adversely affected his performance by placing him in the untenable position of having to defend his credibility by distancing himself from his client’s attempt to recover benefits.

Andrews failed to provide effective assistance of counsel. As he admitted in the court below, he neglected entirely to investigate and present readily available mitigating evidence. Moreover, as he also admitted in the court below, his failure was not prompted by a tactical decision. Because Andrews neither prepared for nor developed a strategy regarding the punishment phase, his performance fell outside the wide range of competent assistance.

Counsel’s failures prejudiced Ms. Beets. Had Andrews investigated and prepared for the sentencing phase, he would have discovered that Ms. Beets is a profoundly impaired woman with an extraordinarily compelling personal history. Born in poverty and sickness, and reared in violence, Ms. Beets suffers from Post Traumatic Stress Disorder-Battered Women Syndrome and Organic Brain Damage as a result of her history. She is also learning disabled and hearing impaired. She has been the victim of physical, sexual and emotional abuse virtually her entire life. The mitigating evidence available to defense counsel in the form of uncontested lay, expert, and documentary evidence could have provided a compelling mitigating explanation for the crime, as well as a tragic picture of a woman who simply did not deserve to die. At the very least, there is a reasonable probability that but for Andrews’ ineffective assistance, the result of the sentencing proceeding would have been different.

The panel’s analysis of the ineffective assistance claim suffers from a similar flaw as its treatment of the conflict claim: to the panel, trial counsel who claims to have known nothing will be excused when he does nothing. Defense counsel insisted he had no reason to suspect the existence of evidence in mitigation, and for that reason conducted no investigation in anticipation for the sentencing phase. Had he attempted the most basic investigation and uncovered even a fraction of the available evidence, the law in this circuit would have obligated him to pursue that investigation until he was able to make an informed judgment about its value. Loyd v. Whitley, 977 F.2d 149, 157-59 (5^th Cir. 1992). But because Andrews claims to have known nothing, the panel rewards his ignorance by declining to fault him for his inaction.

Finally, the State failed to disclose an offer of leniency extended to critical prosecution witnesses. At trial, the State introduced the testimony of Robert Branson and Shirley Stegner. Branson testified regarding the principal offense, while Stegner testified regarding an unadjudicated offense. Both testified in exchange for promises from the State not to pursue charges against them for their complicity in these offenses, though both denied the existence of any agreement on the stand. The existence of this agreement was established in post-conviction proceedings through the sworn testimony and affidavits of several witnesses who overheard the promise being extended. The state failed to reveal this agreement prior to trial, and failed to correct Branson’s and Stegner’s testimony when they denied any deals under oath. Consistent with the state’s agreement, no charges have been brought against these witnesses. The failure to disclose this agreement, as well as the failure to correct the perjured testimony when it occurred, violated the Fourteenth Amendment. Giglio v. United States, 405 U.S. 150 (1972); Napue v. Illinois, 360 U.S. 264 (1959).

At trial, the State presented only one theory to the jury: Betty Lou Beets was guilty of capital murder for remuneration^. To prove its case, "the State ha[d] a heavy burden of demonstrating that the murder was performed for the reason of pecuniary gain...." Beets v. State, 767 S.W.2d 711, 736-37 n.4 (Tex. Crim. App. 1987)^. The district court found that E. Ray Andrews, trial counsel for Ms. Beets, was a material witness to this essential element of the offense. Andrews could have provided unbiased testimony both that Ms. Beets knew nothing about any benefits arising out of her husband’s death, and that it was Andrews, and not Ms. Beets, who discovered and tried to secure these benefits on her behalf.

The district court also found that Andrews’ status as a witness would have been obvious to an impartial observer long before trial. Yet Andrews declined to withdraw and provide Ms. Beets his unbiased testimony. In the district court, the Attorney General offered an explanation for Andrews’ decision to remain in the case. The state argued, and Ms. Beets agreed, that Andrews’ decision to remain as counsel was the product, at least in part, of his unethical fee arrangement—a contract for all media rights in Ms. Beets’ case. This contract granted the media rights to Andrews’ son in exchange for Andrews’ agreement to serve as Ms. Beets’ counsel in her capital murder case. As the Attorney General recognized, this contract would have motivated Andrews to remain in the case rather than withdraw and testify on Ms. Beets’ behalf, since only by remaining as counsel could Andrews reap the full benefits of the contract. Andrews made his choice, remained in the case, and the jury did not hear his critical testimony.

This Court must decide whether these undisputed facts establish a violation of the Sixth Amendment right to conflict free counsel.

The most basic duty of counsel, whether appointed or retained, is the duty of loyalty. See, e.g., Strickland v. Washington, 466 U.S. 668, 692 (1984); Nealy v. Cabana, 782 F.2d 1362 (5^th Cir. 1986). If the Sixth Amendment right to the effective assistance of counsel guarantees anything, it guarantees that the accused in a criminal case be afforded counsel whose ability to act on his client’s behalf is unimpaired by a conflict of interest. See Holloway v. Arkansas, 435 U.S. 475, 489-90 (1978); Cuyler v. Sullivan, 446 U.S. 335 (1980); Wood v. Georgia, 450 U.S. 261, 271 (1981); Strickland, 466 U.S. at 692.

To obtain habeas corpus relief, the accused must demonstrate only that counsel’s performance was adversely affected by an actual conflict of interest. Cuyler, 446 U.S. at 348-49. Once an actual conflict of interest adversely affecting counsel’s performance is established, prejudice is presumed. Id. at 349-50 ("[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief."); see also Nealy, 782 F.2d at 1365 ("Adverse effect is not the equivalent of prejudice," rather, "sufficient prejudice is presumed from any adverse effect")(emphasis added)^.

Applying these principles to the facts in this case, the district court determined that counsel labored under two actual conflicts of interests.

The primary conflict—which the district court labeled the "witness/advocate conflict"—arose from counsel’s status as both advocate for Ms. Beets and witness to an essential element of the charged offense. As set out in the statement of facts, supra, the state contended at trial that Ms. Beets murdered her husband for the purpose of obtaining certain insurance proceeds and death benefits. Defense counsel’s principal strategy at the guilt phase of Ms. Beets’ trial was to attack this element of the charge. Exhibit 1, Affidavit of E. Ray Andrews at para. 14; R. IV at 77-79^.

A non-conflicted lawyer had more than enough ammunition to mount this attack, so long as he had at his disposal the critical testimony of E. Ray Andrews. Andrews knew Ms. Beets was unaware of the existence of these benefits until over a year after the murder^. Andrews’ sworn and uncontroverted testimony reveals that "[he] was the one to suggest that she may have been entitled to benefits arising out of her husband’s disappearance." In fact, according to Mr. Andrews, Ms. Beets:

Exhibit 1, Affidavit of E. Ray Andrews at para. 7. Furthermore, it was only at his insistence that she attempted to obtain these benefits. After Andrews told Ms. Beets that benefits existed to which she might have been entitled, he put Ms. Beets in touch with other counsel more experienced in securing insurance and death benefit proceeds. Id. at 8-9.

From these undisputed facts, the district court made a number of findings. First, the court found that Andrews was a material witness to an essential element of the charged offense. Second, the court found that "Andrews obviously should have known of his dual status as witness and advocate prior to trial," R. I at 42, and that "the dual status should also have been apparent to both the judge and district attorney as the trial unfolded." Id. at 42-43^. Finally, the district court found that, had Andrews withdrawn as counsel, he could have provided testimony as an independent witness which would have tended to disprove "an essential element of the State’s charge of murder for remuneration." Id. at 43. The Attorney General challenges none of these findings^.

Yet Andrews neither declined employment when Ms. Beets first contacted him after her arrest, nor did he withdraw from his representation. As the district court properly concluded, Andrews’ dual status as advocate and witness created an actual conflict of interest. "The roles of an advocate and of a witness are inherently inconsistent." Government of Virgin Islands v. Zepp, 748 F.2d 125, 138 (3d Cir. 1984). By remaining as counsel, Andrews could not act solely in his client’s best interests since his role as counsel prevented him from testifying on her behalf. See United States v. Reeves, 892 F.2d 1223, 1227-28 (5^th Cir. 1990)(counsel’s dual status as attorney and witness created conflict of interest and district court did not err in disqualifying counsel prior to trial); United States v. Iorizzo, 786 F.2d 52, 57 (2d Cir. 1986)(defense counsel has actual conflict of interest if "he should have been available to testify on behalf of [his client]");United States v. White, 706 F.2d 506, 509 (5^th Cir. 1983) (attorney who is witness to the offense labors under actual conflict of interest because his role as counsel renders him ineligible to testify⁾

These decisions teach that the advocate/witness conflict arises from counsel’s inability to play two roles at the same time in a single proceeding. By remaining as counsel, Andrews became ineligible to testify. White, supra. Whether he recognized his dual status, therefore, or whether he admits to his conflicted status, is irrelevant; the fact remains that E. Ray Andrews was a material witness to an essential element of the charged offense. By remaining as counsel, he labored under a condition that prevented him from acting solely in his client’s best interests, thereby creating an actual conflict of interest. Holloway, 435 U.S. at 489 (1978) (the evil in conflict of interest lies often in what counsel must refrain from doing, and not merely in what counsel must do).

Alternatively, even if this Court concludes that Andrews’ dual status as advocate and witness does not by itself create an actual conflict of interest, Ms. Beets still prevails. As the Supreme Court has recognized in a related context, an actual conflict of interest arises when the facts present a clear risk of conflicted loyalties, such that "its potential for misconduct is deemed intolerable." Young v. U.S. ex rel. Vuitton, 481 U.S. 787, 807 n.18 (1987)(describing actual conflict of interest on the part of privately retained prosecutor). This and other circuits apply an equivalent standard to Sixth Amendment conflict jurisprudence, holding that counsel has an actual conflict of interest if the circumstances of his representation are inherently conducive to divided loyalties. See, e.g., United States v. Vaquero, 997 F.2d 78, 89 (5^th Cir. 1993); Church v. Sullivan, 942 F.2d 1501, 1512 (10^th Cir. 1991); Smith v. Lockhart, 923 F.2d 1314, 1320-21 (8^th Cir. 1991); McConico v. Alabama, 919 F.2d 1543, 1546-48 (11^th Cir. 1990); Zuck v. Alabama, 588 F.2d 436, 439 (5^th Cir. 1979⁾

Applying this standard to the undisputed record in this case leaves no doubt that Andrews labored under an actual conflict of interest. As the district court expressly found, "Andrews obviously should have known of his dual status as witness and advocate prior to trial." R. I at 42^. Yet Andrews neither declined employment when Ms. Beets first contacted him after her arrest, nor withdrew from his representation to offer his testimony at her trial. In the court below, the Attorney General offered an explanation for Andrews’ decision to remain as counsel. According to the Attorney General, Andrews stood to "reap rich rewards" from the media rights contract. The Attorney General also ventured, however, that Andrews could reap these rewards only if he represented her successfully at trial. R. I at 106, Respondent’s Post-Hearing Brief at 3. The parties agreed, therefore, that Andrews’ interest in the value of the media rights created an incentive for him to remain in the case. Indeed, this incentive is explicit in the terms of the contract, which granted Andrews’ son the media rights only in exchange for Andrews’ agreement to serve as counsel in her capital murder prosecution^. Since the contract represented his sole fee, Andrews risked losing all payment for his services had he

Under analogous circumstances, the Supreme Court has repeatedly held, as a matter of law, that an arrangement of this type, where an actor’s entire fee is conditioned on a particular course of action, creates a clear and obvious risk of divided loyalties. Moreover, the Supreme Court has recognized that the existence of the conflict does not turn on whether the actor believes himself conflicted. Rather the Court has acknowledged the obvious fact of human nature—the prospect of financial gain may incline even the most noble among us to shade his decisions, perhaps only subconsciously, in a manner that will protect his financial well-being.

In Tumey v. Ohio, 273 U.S. 510 (1927), for instance, the Court considered the constitutionality of an Ohio statute that allowed a judge to be paid a small fee for his services in a particular class of cases, but only if he returned a conviction. Id. at 520. A unanimous Court found this fee arrangement unconstitutional since it created an inherent temptation on the part of even well-intended judges to convict. In reaching this result, the Court rejected the suggestion that a judge’s good faith in any given case could rescue the statute:

Id. (emphasis added); see also Connally v. Georgia, 429 U.S. 245, 250 (1977)(per curiam)(when "financial welfare ... is enhanced by positive action and is not enhanced by negative action[, t]he situation, again, is one which offers a possible temptation to the average man....")(internal citations omitted); Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972)(same)^.

To be sure, the Court imposes more exacting standards of neutrality on judicial officers than it has on other actors in the criminal justice system. Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 810 (1987). Nonetheless, in Young, the Court considered an arrangement in which the prosecutor in a contempt proceeding was paid by the party seeking a contempt conviction. The Court readily concluded that this arrangement created an actual conflict of interest since it gave rise to an "intolerable" "potential for misconduct," even on the part of honest prosecutors. Id. at 808 n.18^.

Thus, the Supreme Court has recognized that an arrangement of this sort is inherently conducive to divided loyalties. Furthermore, the Court has acknowledged that the risk does not diminish merely because the conflicted actor proclaims his good intentions. This acknowledgement is consistent with the unanimous view of the lower federal courts that have considered this question in the context of a Sixth Amendment conflict claim. Uniformly, the analysis in these cases has turned on an objective appraisal of the circumstances surrounding counsel’s representation, and not on whether counsel subjectively believed himself to be conflicted.

The law in this Circuit is illustrative. In Zuck v. Alabama, the petitioner alleged that defense counsel had an actual conflict of interest because he simultaneously represented the prosecutor in an unrelated civil matter. 588 F.2d 436, 438 (5^th Cir. 1979). The Court held that this arrangement created an actual conflict because it placed defense counsel "in a situation ‘inherently conducive to divided loyalties.’" Id. at 439 (quoting Castillo v. Estelle, 504 F.2d 1243, 1245 (5^th Cir. 1974)). "[T]he defense attorneys were subject to the encumbrance that the prosecutor might take umbrage at a vigorous defense of Zuck and dispense with the services of their firm." Id.

In reaching this conclusion, the Court rejected the state’s argument that the prosecutor was interested only in achieving justice, and not in convicting Zuck. From this premise, the state argued that the prosecutor would not have used the civil suit to manipulate Zuck’s attorneys, who therefore would not believe themselves conflicted by their concurrent representation of the prosecutor. The Court dismissed this argument, however, observing that the subjective motivations "of even the attorneys who are involved in an actual conflict in representation are irrelevant." Id. at 439. In language clearly reminiscent of the Supreme Court decision in Tumey, the Court explained:

Id. at 439-40 (emphasis added).

The rule in Zuck derives from this Court’s earlier decision in Castillo v. Estelle, 504 F.2d 1243 (5^th Cir. 1974). In Castillo, the Court held that counsel labored under an actual conflict when he simultaneously represented both the defendant in a burglary prosecution, and the victim whose home was burgled in an unrelated civil action. Id. at 1244-45. This placed counsel "in the equivocal position of having to cross-examine his own client...," a situation "so inherently conducive to divided loyalties as to amount to a denial of the right to effective representation." In reaching this conclusion, the Court "[did] not ascribe to Castillo’s appointed attorney ... improper motives." On the contrary, as the Court recognized, "the prejudice may be subtle, even unconscious." Id. at 1245 (emphasis added)^.

Other circuits have reached the same conclusion. In McConico v. Alabama, 919 F.2d 1543, 1547 (11^th Cir. 1990), for instance, in a panel that included former Justice Powell sitting by designation, the Eleventh Circuit held that counsel had an actual conflict of interest when he simultaneously represented McConico in a criminal prosecution for murder, and the victim’s sister in a civil suit to recover insurance proceeds arising out of her brother’s death.

In the criminal action, defense counsel argued McConico acted in self-defense. In the civil suit, however, to avoid the policy’s exclusion clause, defense counsel argued that McConico had not acted in self-defense. "This," the Court recognized, "is a situation of inherently divided loyalties because the success of one client depends on discrediting another." Id. The Court reached this conclusion, moreover, despite counsel’s belief that his dual representation did not "hamper his defense of appellant." "[N]onetheless," the Court held, "he was in a situation of inherent conflict." Id^.

In short, because Andrews could not have reaped the full value of his unethical contract unless he also remained as counsel for Ms. Beets and deprived her of his testimony, the circumstances of his representation, like the analogous circumstances condemned in Tumey and its progeny, were inherently conducive to divided loyalties and he labored under an actual conflict of interest.

This discussion illustrates why the panel’s rule of subjective awareness is contrary to the law. The panel would require proof that Andrews was subjectively aware of his conflict at the time of trial^.. As demonstrated above, however, such a requirement has been rejected both by the Supreme Court in analogous circumstances, and by courts across the country, including this Circuit. Furthermore, even if this Court were writing on a clean slate, it should still reject the panel’s rule, since it cannot be squared with the Supreme Court’s Sixth Amendment conflict jurisprudence and would render a violation of the right to conflict-free counsel essentially unenforceable.

Foremost, the panel’s proposed requirement of subjective awareness would make Cuyler v. Sullivan superfluous. The rule in Cuyler entails a series of interlocking premises. First, the Supreme Court recognizes that trial counsel, who has an ethical obligation to avoid conflicts of interest, is the party best suited to evaluate the risk of a conflict. Holloway, 435 U.S. at 485; Cuyler, 446 U.S. at 347. Second, the Court presumes counsel will properly fulfill his ethical obligation by conducting this evaluation and alerting the trial court to known conflicts. Holloway, 435 U.S. at 485-86; Cuyler, 446 U.S. at 347. And third, the Court allows trial courts to infer from counsel’s failure to raise a conflict that, at least in counsel’s estimation, his representation will proceed uncompromised by a conflict of interest. Cuyler, 446 U.S. at 347.

The Supreme Court has built its jurisprudence from these premises. Thus, in Holloway, the Court recognized that once counsel becomes aware of a conflict and fulfills his ethical obligation by alerting the trial court, the presiding judge must inquire into both the scope of the potential conflict and whether the accused wishes to waive his right to conflict free counsel. 435 U.S. at 484-87. Indeed, if the trial court fails to conduct the required inquiry, reversal is automatic. Id. at 488-89. By contrast, in Cuyler, the Court held that the failure to bring a conflict to the trial court’s attention—implying that counsel evaluated the risk and concluded he did not have a conflict—triggers a more rigorous standard: proof of an actual conflict and adverse affect. 446 U.S. at 348-49. Cuyler, therefore, assumes the attorney is not aware of the conflict, since if he had been aware, he would have brought it to the trial court’s attention.

Put differently, if trial counsel’s subjective belief that he did not have a conflict were enough to defeat the claim, conflict jurisprudence would begin and end with Holloway. If the attorney objected to a conflict prior to trial, a reviewing court would address whether the trial court complied with Holloway. If the attorney failed to object, his silence would indicate he did not perceive himself as laboring under a conflict. By the rule of subjective awareness, this conclusive proof that no conflict existed would bar the accused from relief. Under such a regime, Cuyler would become immaterial^.

The doctrinal limitations created by the rule of subjective awareness lead directly to the second, and perhaps more troubling, flaw in the rule: conditioning the right to conflict-free representation on an admission by defense counsel that he knew of his conflict at the time of trial, but did nothing, essentially eviscerates this fundamental right by making a violation virtually unenforceable.

The right to counsel, and the correlative right to conflict-free counsel, is indisputably fundamental. Holloway, 435 U.S. at 488. At stake in a conflict claim is the duty of loyalty, "the most basic of counsel’s duties." Strickland, 466 U.S. at 692. In recognition of the singular importance of this duty, conflict cases are the only ineffectiveness claims for which the Court employs a presumption of prejudice. Strickland, 466 U.S. at 693 ("Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.")(emphasis added).

Yet precisely because the right is so fundamental, the Court has also recognized that counsel has a professional interest in denying that he represented the accused after he became aware of a conflict. In Wood v. Georgia, for instance, the Court raised the conflict sua sponte, recognizing the issue may not otherwise have been heard. As the Court explained, "[t]he party who argued the appeal and prepared the petition for certiorari was the lawyer on whom the conflict-of-interest charge focused. It is unlikely that he would concede that he had continued improperly to act as counsel." 450 U.S. 261, 265 n.5 (1981)(emphasis added). Indeed, once an accused alleges that trial counsel labored under an actual conflict of interest, "[c]ounsel is not a fully disinterested party ... due to the collateral consequences that could result from a determination that he rendered ineffective assistance of counsel. He certainly has an interest in disavowing any conflict of interest...." Burger v. Kemp, 483 U.S. 776, 806 n.11 (1987)(Blackmun, J., dissenting on other grounds, opinion joined by Brennan, Powell, & Marshall, JJ.) (emphasis added); Cuyler, 446 U.S. at 358 (Marshall, J., dissenting in part and concurring in part)("In the usual case ..., we might expect the attorney to be unwilling to give such supportive testimony [admitting to his conflicted motivations], thereby impugning his professional efforts."⁾

The panel opinion, therefore, requires counsel to admit precisely that which the Supreme Court suggests will not be admitted—that he "continued improperly to act as counsel" even after he became aware of his conflict. Wood, 450 U.S. at 265 n.5. The rule of subjective awareness thus vitiates the right to conflict-free counsel by making it essentially unenforceable. Given the importance of the right and the protection it receives, the Court should reject any rule that leads to this result.

This discussion illuminates the flaw in Judge Higginbotham’s suggestion, endorsed by the Attorney General, that Cuyler should apply only in instances of multiple representation. Beets, 986 F.2d at 1492 (Higginbotham, J., specially concurring); Brief of Attorney General at 16-17. The centerpiece of this proposal is the notion that only when counsel pursues the interests of one client over another will the accused be without counsel for Sixth Amendment purposes. Id. This proposal, however, confuses an application of the principle for the principle itself.

When counsel advances the interests of one client at the expense of another, he neglects his most basic duty, the duty of loyalty, and leaves the accused effectively without counsel. From the accused’s perspective, however, counsel who sacrifices the interests of one client to advance the interests of another is indistinguishable from counsel who sacrifices the same client to advance his own interests. See, e.g., United States v. Tatum, 943 F.2d 370, 376 (4^th Cir. 1991). Indeed, as this Court has recently recognized, the risk to the accused is greater when the client’s interests compete with those of counsel, and not merely with the interests of another client. United States v. Reeves, 892 F.2d 1223, 1227-28 (5^th Cir. 1990).

In short, it would be a curious construction of the Sixth Amendment to apply Cuyler’s limited presumption of prejudice when counsel represented the co-defendant, but not when counsel was the co-defendant, which is the necessary implication of the Attorney General’s proposal. In either case, the accused has lost his constitutionally protected claim to counsel’s undivided loyalty. Certainly the client whose interests have been abandoned recognizes no difference, and neither should the law.

In his special concurrence, Judge Higginbotham noted that this Court "has failed to articulate a satisfactory definition of adverse affect." Beets, 986 F.2d at 1490 (Higginbotham, J., specially concurring). He believed, however, that the definition adopted by the district court in this case satisfied the "lesser standard" of Cuyler v. Sullivan: "an adverse effect on performance is demonstrated when counsel, laboring under an actual conflict of interest, pursues some course of conduct inconsistent with the best interests of his client." Id. Applying this standard to the facts presented by this appeal, Judge Higginbotham concluded, as did the district judge below, that "[t]he decision of E. Ray Andrews ... not to testify had an adverse effect on her defense." Id. As demonstrated below, both the legal standard and its application in this case should be affirmed by the en banc Court.

In Cuyler, the Supreme Court held that "unconstitutional multiple representation is never harmless error." 446 U.S. 335, 349 (1980)(emphasis added). "[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." Id. at 349-50^. From this limited presumption of prejudice, every circuit to address the matter has concluded that the degree of harm arising from an actual conflict of interest is both irrelevant and impossible to ascertain, and therefore has no place in conflict jurisprudence.

The law in this Circuit is particularly clear. In Nealy v. Cabana, trial counsel represented both Nealy and his co-defendant, and refused to call the co-defendant to testify on Nealy’s behalf since the testimony, though marginally helpful to Nealy, would have been damaging to the co-defendant. Nealy, 782 F.2d 1362, 1363-65 (5^th Cir. 1986). On appeal, the state contended the effect of the conflict was not sufficiently great to justify relief. Id. at 1363, 1365. This Court, however, rejected the state’s argument, observing that reversal is automatic upon proof of "any adverse effect." Id. at 1365 (emphasis added).

This view of adverse effect is the rule, and not the exception. See, e.g., Rosenwald v. United States, 898 F.2d 585, 589 (7^th Cir. 1990)(per curiam)(court grants relief even though strength of the state’s case makes it improbable the conflict caused any harm to the accused); United States ex rel. Zembowski v. DeRobertis, 771 F.2d 1057, 1064 (7^th Cir. 1985)("degree of harm is irrelevant for purposes of the Sixth Amendment" ... because "unconstitutional multiple representation is never harmless error."); Brien v. United States, 695 F.2d 10, 15 (1^st Cir. 1982)(to prevail on conflict claim, petitioner need only show conflicted attorney failed to pursue plausible strategy, and not that strategy would have been successful); United States v. Cancilla, 725 F.2d 867, 871 (2d Cir. 1984)(when conflict induced attorney to retreat from particular defense, reversal is mandated; "it is irrelevant that such a defense is unlikely to prevail and was unsuccessfully urged by [co-defendant]")(emphasis added); Thomas v. Foltz, 818 F.2d 476, 483 (6^th Cir. 1987) (pressure to plead guilty, brought to bear by conflicted attorney, requires reversal, even though strength of state’s case makes it obvious non-conflicted attorney would have given identical advice); Westbrook v. Zant, 704 F.2d 1487, 1499, & n.14 (11^th Cir. 1983)(reversible error if conflict prompted counsel to refrain from raising a particular defense, even if that defense would not have proven successful).

Moreover, this "lesser standard" for showing adverse effect is not limited to conflicts based on multiple representation. One of the most straightforward decisions on this question involves a conflict based on a contract for literary rights. In United States v. Hearst, 638 F.2d 1190 (9^th Cir. 1980), the district court denied relief because Hearst could not show the contract for literary rights had any effect on the reliability of the result. While the case was pending on appeal, the Supreme Court decided Cuyler. The Ninth Circuit vacated the opinion and remanded the case for reconsideration in light of Cuyler, along with the following admonition:

Id. at 1194 (emphasis added); see also United States v. Brown, 665 F.2d 271, 272 (9^th Cir. 1982)(even "overwhelming evidence" of guilt, leading to district court characterization that defendant "was awash in a sea of adverse evidence," cannot resolve inquiry under Cuyler; test is merely whether conflict adversely affected attorney’s performance, and strength of state’s case is irrelevant).

After considering the relevant authority from the Supreme Court and Circuits around the country, the district court synthesized the caselaw into a clear and easily applied test: "an adverse effect on performance is demonstrated when counsel, laboring under an actual conflict of interest, pursues some course of conduct inconsistent with the best interests of his client." This formulation, as Judge Higginbotham recognized, accurately captures the standard in Cuyler. On the one hand, the rule assures that a violation of the right to conflict free counsel will not become per se reversible error, since proof that counsel acted inconsistent with the client’s interests necessarily implies a showing that the proffered effect is not merely speculative or hypothetical. On the other hand, the standard honors the rule in Cuyler and its progeny that an unconstitutional conflict of interest cannot be harmless error, since it allows an accused to prevail without proof the conflict determined the outcome of the proceeding.

Arrayed against this uniform body of authority, the panel majority fashioned the following standard:

Beets, 986 F.2d at 1487. This standard, however, for which the majority cited no authority, is at odds with the law. The focus on both "the strength of Andrews’ ... testimony" and the relative force of the state’s case is relevant only if success in a conflict claim requires the accused to show some impact on the outcome. Presumably, that is, the majority would have ruled differently if the harm—measured by the value of Andrews’ missing testimony compared with the relative weakness of the state’s case—had any effect on the result. As Judge Higginbotham recognized, this test is merely a proxy for an impermissible inquiry into prejudice or harmless error, and therefore cannot be reconciled with Cuyler. Id. at 1491 (Higginbotham, J., specially concurring).

Furthermore, even if the panel majority were correct in its legal standard, it has applied that standard incorrectly by mischaracterizing the testimony of Chaplain Denny Burris. Contrary to the majority’s opinion, Burris’s testimony did not "show[] that Beets already knew about Jimmy Don’s insurance and pension benefits." Id. at 1487. Burris testified Ms. Beets asked him about benefits. The logical import of her question would be that Ms. Beets did not know about such benefits until she asked. Indeed, Chaplain Burris interpreted her question in precisely this manner: from their conversation, Burris concluded Ms. Beets was genuinely ignorant of any benefits. Exhibit 40, Affidavit of Denny Burris at para. 7-8. Her question, therefore, cannot establish any "mercenary motive." Beets, 986 F.2d at 1487.

Second, the court overlooks the distinction in the roles Andrews and Burris played. Because he viewed Ms. Beets as a potential client, Andrews had an interest in questioning her in considerable detail about available benefits. Her ignorance about any benefits, therefore, even in the face of counsel’s questioning, is more telling than Burris’s observation, particularly since Burris’s "assignment was to discuss with Betty Beets benefits due the widow of a fireman." Id. at 1491 (Higginbotham, J., specially concurring). The fact that Ms. Beets asked Burris about the very issue he was dispatched to discuss hardly advances the prosecution theory.

And third, the same deficiencies attributed to Andrews’ testimony could also be said of Burris’: Burris, like Andrews, cannot speak to Ms. Beets’ state of mind at the time of the offense; he can provide only his impression based on their conversation after the fact. The majority position, therefore, is internally inconsistent: it posits that Chaplain Burris’s testimony reveals the manifest strength of the state’s case, yet it deprecates Andrews’ potential contribution as weak and insignificant, even though the testimony of both witnesses is subject to the same criticism. Id. at 1487^.

Finally, the Attorney General suggests that adverse affect should be measured by the Strickland performance prong, and claims the Supreme Court employed this approach in Burger v. Kemp, 483 U.S. 776 (1987). This is simply not correct. In Burger, petitioner and Stevens, his co-indictee, were represented by partners in the same office. 483 U.S. at 783. Burger alleged that counsel’s multiple representation became an actual conflict on direct appeal because counsel could not argue that Burger was less culpable than Stevens. The Court disagreed, holding that Burger was obviously the more culpable of the two defendants, and any argument to the contrary would have been unreasonable. Id. at 784. The circumstances of counsel’s representation, in other words, were not at all conducive to divided loyalties, since the facts did not tempt counsel to sacrifice one client in favor of another.

Moreover, contrary to the Attorney General’s argument, the Court did not inquire into the reasonableness of counsel’s actions when it addressed adverse effect. Rather, it held that the adverse effect suggested by Burger simply had no support in the record. Burger alleged that counsel did not attempt to negotiate a plea, but the record showed quite the opposite; counsel tried repeatedly to plead the case. Id. at 785-86. In addition, Burger alleged that counsel at his trial did not portray the co-indictee as the more culpable party. Again, however, the record showed otherwise; counsel expended "considerable effort to gain mercy for [Burger] by portraying Stevens as the chief architect of the crime." Id. In short, Burger failed to demonstrate that counsel acted in a manner inconsistent with his interests, and therefore could not prove adverse effect. Burger is thus entirely consistent with the rule proposed by Ms. Beets.

More importantly, the Attorney General ignores the distinction between allegations of "actual ineffectiveness," Strickland, 466 U.S. at 683, and ineffectiveness caused by a conflict of interest. As the Supreme Court recognized in Strickland, the performance prong rests on the assumption that both the accused and an appellate court can identify counsel’s errors from a review of the record. Id. at 690 ("A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.") Yet the Court has also recognized that a conflict of interest is pernicious precisely because its effect is often shielded from appellate review. See, e.g., Holloway, 435 U.S. at 490-91; Strickland, 466 U.S. at 691^. The rule in Strickland, therefore, simply cannot be transferred to the conflict model, and the argument advanced by the Attorney General should be rejected.

As the district court recognized, the most prominent adverse effect arising out of counsel’s actual conflicts of interest was his failure to provide Ms. Beets with his unbiased testimony regarding an essential element of the charged offense. In his sworn affidavit, and again at the evidentiary hearing, Andrews acknowledged, and the Attorney General admits, that if he had withdrawn and testified for Ms. Beets, he could have provided the jury with the following evidence:

• Andrews and Andrews alone devised the attempt to recover the death benefits;
• Ms. Beets was only aware of the possible existence of benefits because Andrews told her about them;
• Andrews did not contact Bruce Roberts until after he informed Ms. Beets about the existence of these benefits;
• Andrews encouraged Ms. Beets to pursue the benefits, and referred her to Bruce Roberts for this purpose, in part because he had a financial interest in doing so—i.e., a contingency fee agreement with Ms. Beets.

As Judge Higginbotham and the court below recognized, had Andrews provided this evidence, his testimony "could have significantly bolstered" the defense. Beets, 986 F.2d at 1491 (Higginbotham, J., specially concurring). Furthermore, because Andrews would have offered evidence that no other witness could provide, his "testimony was not merely cumulative ... [and] [i]t certainly would have been in Beets’s best interests for Andrews to have testified." Id. Finally, if the jury believed Andrews’ testimony and "reasonably doubted that Beets killed her husband for the insurance money, the murder was not a capital offense." Id. at 1490. Under these circumstances, Andrews’ failure to withdraw and testify must be recognized as an adverse effect on his performance.

In addition, while the failure to withdraw and testify may have been the most prominent adverse effect of Andrews’ divided loyalties, his representation suffered in other ways as well. Most importantly, the conflict forced Andrews to defend himself before the jury, and allowed the State to turn the conflict of interest to its advantage during closing arguments. During his summation, the prosecutor accused Andrews of participating in a "plan" to circumvent the seven year statutory waiting period before a missing person can be declared legally dead:

R. S.F. Vol. VII at 648 (emphasis added).

This placed Andrews in the unenviable position of having to argue his own credibility to the jury at his client’s expense. In his argument, Andrews defended his actions by distancing himself from "Betty’s plan" to break the law. Though he admitted he encouraged Ms. Beets to seek the benefits, he insisted he did so only because he thought the effort would reward him financially:

R. S.F. Vol. VII at 646-47. Counsel’s decision to defend his credibility at his client’s expense is another example of the adverse effect arising from his conflicts of interest, sufficient by itself to justify relief. United States v. Cunningham 672 F.2d 1064, 1074 (2d Cir. 1982); United States v. Kerlegon, 690 F.Supp. 541, 545 (W.D. La. 1988)(defendant inevitably suffers when counsel, who should have withdrawn to testify on client’s behalf, instead becomes unsworn witness in the case to defend his own credibility), aff’d United States v. Reeves, 892 F.2d 1223 (5^th Cir. 1990).

In sum, Ms. Beets was denied her Sixth Amendment right to conflict-free counsel. Her attorney was burdened by actual conflicts of interest that adversely affected his performance, and the judgment of the district court should be affirmed.

As did the Attorney General, Ms. Beets relies on her prior briefs to the panel in support of Points III and IV. See Brief of Attorney General at 2 n.2.

For the foregoing reasons, the judgment of the panel should not be adhered to. The judgment of the court below with respect to the conflict claim should be affirmed, while the judgment with respect to the allegations of ineffective assistance and undisclosed promises of leniency should be reversed.