Perillo v. Johnson
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Opinion
REVISED - March 17, 2000
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-20653
PAMELA LYNN PERILLO,
Petitioner-Appellee,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellant.
Appeal from the United States District Court for the Southern District of Texas March 2, 2000 Before SMITH, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge.
Gary Johnson, the Director of the Texas Department of Criminal
Justice’s Institutional Division, ("the Director") appeals the
district court’s final judgment granting Pamela Perillo’s 28 U.S.C.
§ 2254 petition for habeas corpus relief. The district court
determined that Perillo’s trial counsel labored under an actual
conflict of interest that adversely affected counsel’s presentation
of Perillo’s defense on the issues of both guilt and punishment at
her 1980 trial. The district court therefore vacated the criminal
judgment against Perillo, both as to her conviction and her death
sentence, and ordered that Perillo be released unless the State of
Texas elected to retry her within 120 days of the date upon which
the district court’s decision became final. After an exhaustive review of the unique factual scenario presented in this case, we
affirm.
I.
This is the second time this case has been before our Court
for decision. In March 1996, our Court reviewed Perillo’s appeal
from the district court’s decision granting the Director summary
judgment and denying relief. See Perillo v. State, 79 F.3d 441
(5th Cir. 1996) (Perillo I). In that decision, we determined that
Perillo was entitled to investigate her Sixth Amendment claim
through discovery and an evidentiary hearing narrowly tailored to
address whether trial counsel Jim Skelton’s prior and concurrent
representation of Linda Fletcher, the state’s star witness against
Perillo, created an actual conflict that adversely affected
Skelton’s performance at Perillo’s trial. See id.
The parties argue that our disposition of this second appeal
is in some measure determined by our prior consideration of this
case. The Director argues that this Court’s focus in the prior
opinion upon particular factual disputes, those relating to
Skelton’s concurrent representation of Fletcher in California,
precludes the district court’s identification of any other facts
that support a finding of actual conflict in the record. We
disagree. As an initial matter, we note that the district court
did not venture far afield of our prior decision; the factual
context relied upon by the district court, the circumstances
surrounding Skelton’s cross-examination of Fletcher at Perillo’s
trial, is in fact raised in our prior opinion. See id. at 450-51.
2 Moreover, this appeal is presented in a different posture and
demands a different standard of review from the first appeal. See
Society of Roman Catholic Church of Diocese of Lafayette, Inc. v.
Interstate Fire & Casualty Co., 126 F.3d 727, 735 (5th Cir. 1997)
(noting that application of the law of the case doctrine is
inappropriate when the relevant issues are governed by different
standards of review). The prior appeal, which was from summary
judgment without discovery or an evidentiary hearing, presented the
issue of whether there was a factual dispute, which if resolved in
Perillo’s favor, would entitle her to relief. See Perillo I, 79
F.3d at 444. Thus, this Court did not purport to find an actual
conflict of interest or an adverse effect arising from that
conflict. See id. at 444, 451. The Court simply focused upon one
factual dispute, which if resolved in Perillo’s favor, would
support relief. The Court did not, and did not need to, try to
identify every factual dispute that could give rise to relief. For
that reason, our prior opinion should not be viewed as foreclosing
the district court’s reliance upon a slightly different factual
context for its determination that Perillo’s counsel Skelton
labored under an actual conflict that adversely affected his
performance.
Perillo argues that the prior opinion is binding to the extent
it constitutes this Court’s reasoned position on presumed facts
that are confirmed by the record on remand. While this argument is
closer to the mark, we take issue with Perillo’s broad suggestion
that we are constrained to afford relief on the force of our prior
3 disposition. The law of the case doctrine is a matter of judicial
discretion rather than judicial power when a court is reviewing its
own prior decision. See United States v. O’Keefe, 169 F.3d 281,
283 (5th Cir. 1999); see also United States v. Castillo, 179 F.3d
321, 326 (5th Cir. 1999), cert. granted , 120 S. Ct. 865 (2000).
. Moreover, while we may certainly choose to rely upon our prior
disposition of those factual or legal issues that are either
unaffected by the different procedural posture or unchanged by the
record on remand, those determinations identified by Perillo are
not necessarily determinative of her claim. We therefore review
the district court’s decision granting relief in light of all of
the relevant evidence, including the evidence on remand, and in
light of the standard of review appropriate to the procedural
posture of this appeal.
The present appeal is from the district court’s final judgment
that Perillo demonstrated an actual conflict of interest that
adversely affected Skelton’s presentation of her defense. See
Cuyler v. Sullivan, 100 S. Ct. 1708 (1980). The determinations of
actual conflict and adverse effect are mixed questions of fact and
law, which we review de novo. See Strickland v. Washington, 104 S.
Ct. 2052, 2070 (1984); Cuyler, 100 S. Ct. at 1715; United States v.
Placente, 81 F.3d 555, 558 (5th Cir. 1996); Perillo I, 79 F.3d at
446. The district court’s underlying factual determinations, which
were made after full discovery and two evidentiary hearings, are
entitled to substantial deference, and should be reversed only if
they are shown to be clearly erroneous. See Strickland, 104 S. Ct.
4 at 2070; Placente, 81 F.3d at 558.
II.
Perillo’s claim that she was denied her Sixth Amendment right
to effective assistance of conflict-free counsel at trial because
her trial attorney, Jim Skelton, was acting under the influence of
an actual conflict that adversely affected his performance at her
trial is governed by Cuyler v. Sullivan, 100 S. Ct. 1708 (1980) and
its progeny. See Strickland v. Washington, 104 S. Ct. 2052, 2064-
67 (1984); Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995) (en banc).
The Cuyler standard applicable when a criminal defendant alleges
that counsel’s performance was impaired by an actual conflict of
interest differs substantially from the Strickland standard
generally applicable to Sixth Amendment ineffectiveness claims.
See Strickland, 104 S. Ct. at 2067; see also Beets, 65 F.3d at
1265. Strickland requires a showing that counsel’s performance was
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REVISED - March 17, 2000
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-20653
PAMELA LYNN PERILLO,
Petitioner-Appellee,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellant.
Appeal from the United States District Court for the Southern District of Texas March 2, 2000 Before SMITH, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge.
Gary Johnson, the Director of the Texas Department of Criminal
Justice’s Institutional Division, ("the Director") appeals the
district court’s final judgment granting Pamela Perillo’s 28 U.S.C.
§ 2254 petition for habeas corpus relief. The district court
determined that Perillo’s trial counsel labored under an actual
conflict of interest that adversely affected counsel’s presentation
of Perillo’s defense on the issues of both guilt and punishment at
her 1980 trial. The district court therefore vacated the criminal
judgment against Perillo, both as to her conviction and her death
sentence, and ordered that Perillo be released unless the State of
Texas elected to retry her within 120 days of the date upon which
the district court’s decision became final. After an exhaustive review of the unique factual scenario presented in this case, we
affirm.
I.
This is the second time this case has been before our Court
for decision. In March 1996, our Court reviewed Perillo’s appeal
from the district court’s decision granting the Director summary
judgment and denying relief. See Perillo v. State, 79 F.3d 441
(5th Cir. 1996) (Perillo I). In that decision, we determined that
Perillo was entitled to investigate her Sixth Amendment claim
through discovery and an evidentiary hearing narrowly tailored to
address whether trial counsel Jim Skelton’s prior and concurrent
representation of Linda Fletcher, the state’s star witness against
Perillo, created an actual conflict that adversely affected
Skelton’s performance at Perillo’s trial. See id.
The parties argue that our disposition of this second appeal
is in some measure determined by our prior consideration of this
case. The Director argues that this Court’s focus in the prior
opinion upon particular factual disputes, those relating to
Skelton’s concurrent representation of Fletcher in California,
precludes the district court’s identification of any other facts
that support a finding of actual conflict in the record. We
disagree. As an initial matter, we note that the district court
did not venture far afield of our prior decision; the factual
context relied upon by the district court, the circumstances
surrounding Skelton’s cross-examination of Fletcher at Perillo’s
trial, is in fact raised in our prior opinion. See id. at 450-51.
2 Moreover, this appeal is presented in a different posture and
demands a different standard of review from the first appeal. See
Society of Roman Catholic Church of Diocese of Lafayette, Inc. v.
Interstate Fire & Casualty Co., 126 F.3d 727, 735 (5th Cir. 1997)
(noting that application of the law of the case doctrine is
inappropriate when the relevant issues are governed by different
standards of review). The prior appeal, which was from summary
judgment without discovery or an evidentiary hearing, presented the
issue of whether there was a factual dispute, which if resolved in
Perillo’s favor, would entitle her to relief. See Perillo I, 79
F.3d at 444. Thus, this Court did not purport to find an actual
conflict of interest or an adverse effect arising from that
conflict. See id. at 444, 451. The Court simply focused upon one
factual dispute, which if resolved in Perillo’s favor, would
support relief. The Court did not, and did not need to, try to
identify every factual dispute that could give rise to relief. For
that reason, our prior opinion should not be viewed as foreclosing
the district court’s reliance upon a slightly different factual
context for its determination that Perillo’s counsel Skelton
labored under an actual conflict that adversely affected his
performance.
Perillo argues that the prior opinion is binding to the extent
it constitutes this Court’s reasoned position on presumed facts
that are confirmed by the record on remand. While this argument is
closer to the mark, we take issue with Perillo’s broad suggestion
that we are constrained to afford relief on the force of our prior
3 disposition. The law of the case doctrine is a matter of judicial
discretion rather than judicial power when a court is reviewing its
own prior decision. See United States v. O’Keefe, 169 F.3d 281,
283 (5th Cir. 1999); see also United States v. Castillo, 179 F.3d
321, 326 (5th Cir. 1999), cert. granted , 120 S. Ct. 865 (2000).
. Moreover, while we may certainly choose to rely upon our prior
disposition of those factual or legal issues that are either
unaffected by the different procedural posture or unchanged by the
record on remand, those determinations identified by Perillo are
not necessarily determinative of her claim. We therefore review
the district court’s decision granting relief in light of all of
the relevant evidence, including the evidence on remand, and in
light of the standard of review appropriate to the procedural
posture of this appeal.
The present appeal is from the district court’s final judgment
that Perillo demonstrated an actual conflict of interest that
adversely affected Skelton’s presentation of her defense. See
Cuyler v. Sullivan, 100 S. Ct. 1708 (1980). The determinations of
actual conflict and adverse effect are mixed questions of fact and
law, which we review de novo. See Strickland v. Washington, 104 S.
Ct. 2052, 2070 (1984); Cuyler, 100 S. Ct. at 1715; United States v.
Placente, 81 F.3d 555, 558 (5th Cir. 1996); Perillo I, 79 F.3d at
446. The district court’s underlying factual determinations, which
were made after full discovery and two evidentiary hearings, are
entitled to substantial deference, and should be reversed only if
they are shown to be clearly erroneous. See Strickland, 104 S. Ct.
4 at 2070; Placente, 81 F.3d at 558.
II.
Perillo’s claim that she was denied her Sixth Amendment right
to effective assistance of conflict-free counsel at trial because
her trial attorney, Jim Skelton, was acting under the influence of
an actual conflict that adversely affected his performance at her
trial is governed by Cuyler v. Sullivan, 100 S. Ct. 1708 (1980) and
its progeny. See Strickland v. Washington, 104 S. Ct. 2052, 2064-
67 (1984); Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995) (en banc).
The Cuyler standard applicable when a criminal defendant alleges
that counsel’s performance was impaired by an actual conflict of
interest differs substantially from the Strickland standard
generally applicable to Sixth Amendment ineffectiveness claims.
See Strickland, 104 S. Ct. at 2067; see also Beets, 65 F.3d at
1265. Strickland requires a showing that counsel’s performance was
deficient, in that it fell below an objective standard of
reasonableness, as well as a showing of prejudice, which is defined
as a reasonable probability that counsel’s error changed the result
of the proceeding. See Strickland, 104 S. Ct. at 2064-69;
Perillo I, 79 F.3d at 447; Beets, 65 F.3d at 1265. Cuyler, on the
other hand, permits a defendant who raised no objection at trial to
recover upon a showing that an actual conflict of interest
adversely affected counsel’s performance. See Cuyler, 100 S. Ct.
at 1718; Perillo I, 79 F.3d at 447; Beets, 65 F.3d at 1264; see
also Strickland, 104 S. Ct. at 2067.
An “actual conflict” exists when defense counsel is compelled
5 to compromise his or her duty of loyalty or zealous advocacy to the
accused by choosing between or blending the divergent or competing
interests of a former or current client. See id. at 2067;
Perillo I, 79 F.3d at 447; United States v. Alvarez, 580 F.2d 1251,
1254 (5th Cir. 1978); see also Beets, 65 F.3d at 1270 (limiting
Cuyler to cases of multiple representation). “Adverse effect” may
be established with evidence that “some plausible alternative
defense strategy or tactic” could have been pursued, but was not
because of the actual conflict impairing counsel’s performance.
See Perillo I, 79 F.3d at 449. Assuming the defendant establishes
an actual conflict that adversely affected counsel’s performance,
prejudice is presumed without any further inquiry into the effect
of the actual conflict on the outcome of the defendant’s trial.
See Strickland, 104 S. Ct. at 2067; Cuyler, 100 S. Ct. at 1719;
Beets, 65 F.3d at 1265. “[U]nconstitutional multiple
representation is never harmless error.” See Cuyler, 100 S. Ct. at
1719.
Beyond those basic legal precepts, Cuyler’s “actual conflict”
and “adverse effect” elements have been described as “rather
vague.” See Beets, 65 F.3d at 1265. Even a brief review of the
precedent reveals that any categorical treatment of when an actual
conflict exists is difficult. Compare United States v. Olivares,
786 F.2d 659 (5th Cir. 1986) (cross-examination of a state witness
that was also a former client did not give rise to an actual
conflict) with United States v. Martinez, 630 F.2d 361 (5th Cir.
1980) and Alvarez, 580 F.2d 1251 (cross-examination of state
6 witness that was also a former client gave rise to an actual
conflict). Instead, the determination of actual conflict and
adverse effect is tightly bound to the particular facts of the case
at hand. See, e.g., Maiden v. Bunnell, 35 F.3d 477, 481 (9th Cir.
1994). For that reason, a fairly lengthy review of the relevant
facts, as enriched by the evidence submitted in the district court
on remand and developed in the district court’s decision, is
essential to our disposition of this case. Except where we have
expressly noted otherwise, we have adopted as without error the
district court’s explicit and implicit fact findings on remand.
III.
A. The Crimes and Perillo’s Statements to Police
More than nineteen years ago, Pam Perillo, Mike Briddle, and
Briddle’s wife, Linda Fletcher,1 were involved in the Houston
murders of Robert Banks and Robert Skeens. The grisly details of
these brutal crimes are reported in detail in Perillo v. State, 758
S.W.2d 567, 568-69 (Tex. Crim. App. 1988). Only those facts
relevant to our disposition will be paraphrased here.
Perillo met Briddle and his wife Fletcher in early 1980
through a mutual friend. Shortly thereafter, Perillo, Briddle, and
another man robbed a gentleman who was a customer at the topless
bar where Perillo worked in California. Briddle and Fletcher fled
1 Fletcher’s name at the time of the offenses was Linda Sutton Briddle. She married Fletcher after Briddle’s trial, and later married Guitterez. Linda Sutton Briddle Fletcher Guitterez is most commonly referred to in the record as Linda Fletcher, the name she carried when she testified against Perillo. For ease of reference, this opinion adopts that convention.
7 California in order to avoid apprehension for the robbery. Perillo
learned there was a warrant for her arrest and joined the couple en
route in Tucson, Arizona. The trio found transportation with
various truck drivers and eventually ended up in Houston, Texas.
See id. at 568.
On the evening of Friday, February 21, 1980, victim Robert
Banks stopped and offered them a ride. Banks, who was in the
process of moving, also offered to compensate them if they would
help him move. Briddle, Fletcher, and Perillo agreed. That night
the trio stayed with Banks in his newly rented house. The
following day, they helped Banks move some of his belongings, and
then accompanied him to a rodeo. When they returned to Banks’
home, they found Bob Skeens, a friend of Banks’ from Louisiana,
waiting for them. Skeens, who had arrived to help Banks move, was
driving a green Volkswagen. The next morning, Banks and Skeens
went to buy coffee and donuts. While Banks and Skeens were gone,
Briddle and Perillo armed themselves with guns that belonged to
Banks. See id. at 569.
When Banks and Skeens returned, Briddle and Perillo pulled the
guns on them and told them to lay down. Skeens immediately
complied but Banks, suspecting a joke, did not. Briddle struck
Banks on the side of the head with the rifle, knocking him down and
causing him to bleed. The victims were then bound with nylon rope.
Skeens’ ankles were later untied, and he was forced to walk to a
back bedroom, where he was rebound. Sometime thereafter, a piece
of rope was wrapped twice around Banks’ neck, and he was strangled.
8 About an hour later, Skeens was killed in the same manner.
Briddle, Fletcher, and Perillo loaded Skeens’ Volkswagen with
property belonging to Banks and Skeens and fled to Dallas, where
they abandoned Skeens’ car in a downtown parking garage and
purchased bus tickets to Denver. Once in Denver, Briddle and
Fletcher checked into one low-rent hotel and Perillo checked into
a different low-rent hotel located nearby. See id.
On the evening of March 3, about one week after the crimes,
Perillo turned herself in to the Denver police. Perillo then
assisted police efforts to locate and apprehend Briddle and
Fletcher at their Denver hotel. Early the next morning, Perillo
voluntarily gave her statement to the Denver police. In that
statement, Perillo claimed that she and her traveling companions
“Arthur Day,” later identified as Mike Briddle, and “Sheila Davis,”
later identified as Linda Fletcher, planned to rob and then kill
the two victims for money. Perillo also stated that she and
Briddle actually strangled the two victims, and that Fletcher was
not in the room when the two victims were finally murdered.
The next day, Perillo gave a second statement, this time to
Houston police. In her second statement, Perillo claimed that she
committed both murders alone, and that Briddle and Fletcher did not
stumble upon the crime scene until she had successfully subdued,
tied, and strangled both Banks and Skeens. Perillo did not,
however, ever sign the second statement.
9 B. Perillo’s First Trial
Briddle, Fletcher, and Perillo were all charged with capital
murder. Perillo’s confession made hers the state’s strongest
capital case and she was called to trial first. Perillo was
represented by attorneys Robert Scott and William Burge. Perillo
told Scott prior to trial that, contrary to her confession,
Fletcher had participated in Banks’ murder by pulling on one end of
the rope around Banks’ neck. Although Perillo was indicted for
both murders, only Skeens’ murder was submitted to the jury.
Neither Briddle nor Fletcher testified at Perillo’s trial. Perillo
was convicted and sentenced to death. In 1983, the Texas Court of
Criminal Appeals reversed Perillo’s first conviction and death
sentence based upon error committed during voir dire. See Perillo
v. State, 656 S.W.2d 78 (Tex. Crim. App. 1983).
C. Fletcher’s Trial and Skelton’s Continuing Relationship with Fletcher
Meanwhile, Fletcher prepared for her trial with her attorney
Jim Skelton. Prior to trial, the state offered to let Fletcher
plead guilty to non-capital murder. Skelton declined the plea
offer on Fletcher’s behalf. Eventually, the state reindicted
Fletcher on two counts of aggravated robbery and dismissed the
capital murder indictment. Fletcher proceeded to trial on the two
aggravated robbery counts in October 1980.
At Fletcher’s trial, Skelton’s strategy was to demonstrate
Fletcher’s innocence by placing all the blame on Perillo and
Briddle. Skelton argued that Fletcher came from a good background
10 and was a fundamentally different type of person than either
Briddle or Perillo. Skelton emphasized, for example, that
Fletcher’s family was well-educated, and that Fletcher’s
relationship with Briddle began as the result of some sort of
misguided sociological experiment. Skelton emphasized that both
Perillo and Briddle came from mean circumstances, and that both
Perillo and Briddle had prior criminal records. During closing
argument, Fletcher’s jury was presented with large photographs
intended to dramatically illustrate the difference between the
clean-cut and wholesome Fletcher, on the one hand, and the evil and
hardened Perillo and Briddle, on the other hand. Fletcher did not
testify at her own trial, and the state did not call either
Perillo, whose appeal was pending, or Briddle, who was still
resisting extradition from Colorado. The jury convicted Fletcher
on both counts of aggravated robbery, but Fletcher was sentenced to
only five years probation. Shortly thereafter, Fletcher returned
to her home in California to serve out her probation and obtained
an annulment of her marriage to Briddle.
After Fletcher’s trial, Fletcher and her attorney, Skelton,
stayed in contact with each other by written correspondence and
with telephone calls. Skelton also developed a close relationship
with Fletcher’s mother. In July 1981, when Fletcher planned to
remarry, Skelton was asked to come to California and give the bride
away. Skelton agreed, and traveled to California to spend several
days participating in the wedding festivities with Fletcher’s
family.
11 D. Briddle’s Trial and Skelton’s Continuing Relationship with Fletcher
In May 1981, Briddle was extradited to Texas. While Briddle’s
case was pending, Skelton closely aligned himself with the
interests of the victims’ families. Skelton encouraged the Banks
and Skeens families to contact Fletcher about the crimes in order
to obtain some closure and to explore their theory that there were
more than three people involved in the murders. At Skelton’s
urging and upon his advice, Fletcher spoke with members of the
victims’ families, including Skeens’ grieving mother, who even
traveled to California at one point to meet with Fletcher about the
crimes.
In 1982, when it came time for Briddle’s trial, Skelton was
instrumental in securing Fletcher’s testimony for the state. The
state did not subpoena Fletcher. Rather, Skelton strongly
encouraged Fletcher to volunteer her testimony against Briddle.
Skelton has testified that everyone involved, including Skelton and
Fletcher, wanted to see Briddle get the death penalty. Skelton
instructed Fletcher that she owed it to her country and to the
victims to appear against Briddle.
Skelton then represented Fletcher in her negotiations with the
state concerning her testimony against Briddle. Although Briddle’s
individual prosecutors held the view that Fletcher’s trial on the
lesser included offense of aggravated robbery would preclude her
subsequent prosecution on the capital murder charges, Skelton felt
this was an open legal question, and insisted that Fletcher be
12 granted immunity in exchange for her testimony against Briddle.
The exact type of immunity that Skelton negotiated for
Fletcher’s testimony against Briddle, whether “use” immunity or the
much broader “transactional" immunity, remains unclear. See
Perillo I, 79 F.3d at 444 (explaining the difference between use
immunity and transactional immunity). In a prior appeal of this
matter, this Court relied upon a letter from the D.A.’s office that
describes Fletcher’s immunity at Briddle’s trial in a manner
suggesting that only use immunity was being granted. That evidence
was consistent with the Director’s briefing, which stated that
Skelton had negotiated only use immunity in exchange for Fletcher’s
testimony against Briddle. See Perillo I, 79 F.3d at 448. On
remand, however, the basic premise that Fletcher had only use
immunity at Briddle’s trial has been seriously undermined.
Briddle’s trial record reflects that the state entered into a
prosecutorial agreement that Fletcher would receive immunity from
further prosecution in exchange for her testimony against Briddle.
That immunity is characterized in the record as “absolute judicial
immunity for any transactions.” Although Fletcher testified that
an unnamed judge granted the immunity, there is no documentary
evidence that the grant of immunity was ever formalized. The
record reflects that such grants would need to be (1) approved by
District Attorney Johnny Holmes, (2) presented in petition form to
the state trial judge, and then (3) enacted by order of the state
trial court. See Graham v. State, 994 S.W.2d 651, 656 (Tex. Crim.
App.) (citing Carlisle v. State, 137 S.W.2d 782 (Tex. Crim. App.
13 1940) for the proposition that a prosecutorial agreement not to
prosecute is not binding absent court approval), cert. denied, 120
S. Ct. 420 (1999). Moreover, it is evident from the questions
raised by Briddle’s trial judge that the trial court did not have
any documentary evidence demonstrating that Fletcher had been
judicially granted transactional immunity in exchange for her
testimony.
The district court found that the evidence clearly and
unambiguously established that Fletcher was granted full
transactional immunity before her testimony against Briddle. For
the foregoing reasons, we conclude that the evidence is
insufficient to support that factual determination. The evidence
relied upon merely reflects the state’s position: (1) that it did
not intend to prosecute Fletcher, (2) that Fletcher’s prior
conviction for the lesser included offense of aggravated robbery
would have precluded its further prosecution of Fletcher, and (3)
to the extent there was any remaining doubt, that the state had
entered into a prosecutorial agreement to provide Fletcher with
absolute immunity from prosecution for the underlying offenses, by
stating that fact on the record. Despite Skelton’s best efforts,
the record does not definitively reflect that Fletcher
unambiguously enjoyed complete and binding transactional immunity,
as opposed to merely a prosecutorial agreement not to prosecute.
See Graham, 994 S.W.2d at 654-56. The conclusion that there
remained some ambiguity as to Fletcher’s status is further
supported by Skelton’s recollection in this proceeding that the
14 state had granted only use immunity with respect to Fletcher’s
Briddle testimony. Without regard to whether Fletcher testified
against Briddle pursuant to use or transactional immunity, the
record is clear and the Director concedes that the agreement
Skelton negotiated for Fletcher would not have protected her from
perjury charges if her testimony was later proven false.
Prior to testifying, and while represented by Skelton,
Fletcher gave a lengthy statement to prosecutors recounting her
version of the events leading up to and following Banks’ and
Skeens’ murders. At Briddle’s trial, Fletcher repeated many of the
details contained in her statement, and was the “State’s chief
witness” against Briddle. Briddle v. Scott, 63 F.3d 364, 366 (5th
Cir. 1995). Fletcher’s testimony added otherwise unknown details
to the body of evidence which virtually ensured the death sentence.
Significantly, Fletcher’s testimony also cast Perillo in an equally
unfavorable light. Fletcher’s testimony highlighted Perillo’s
criminal history and portrayed Perillo as heartless and completely
without remorse. Fletcher testified that it was Perillo who first
suggested killing Banks, and that it was Perillo who repeatedly
brought the subject up, urging Briddle to help her murder Banks.
Fletcher also testified that she was outside in the car when the
murders took place, and that she did not participate in the murders
of the two men.
Skelton appeared at Briddle’s trial as Fletcher’s lawyer.
When Fletcher was called to testify, Briddle’s trial counsel sought
to have Skelton sworn and excluded under the rule. The prosecution
15 argued that Skelton, as Fletcher’s attorney, was exempt from the
rule. Alternatively, Briddle’s trial counsel wanted Skelton
admonished not to discuss the facts of the case with Fletcher. The
defense position was that there was no longer any attorney-client
relationship between Skelton and Fletcher given the conclusion of
Fletcher’s own trial. Both Skelton and the prosecutor objected on
the record. The prosecutor argued that the attorney-client
relationship between Skelton and Fletcher was properly continuing,
notwithstanding the fact there were no pending criminal proceedings
against Fletcher. Skelton likewise argued that he could not be
precluded from discussing the case with Fletcher because she was
his client. Although Skelton was at one point asked to remain
outside, Briddle’s trial judge changed course in response to
Skelton’s and the prosecution’s objections, and there is no
indication that Skelton left the court room at that time.
While Fletcher was in Houston to testify for the state against
Briddle, she stayed with Skelton for between seven and ten days in
his one bedroom condominium. Fletcher stayed past the time that
her testimony was complete, and did not return home until the
verdict against Briddle was in. Briddle was sentenced to death and
has since been executed. Fletcher has testified that she was
“pleased” with the result of Briddle’s trial.
E. Perillo’s Second Trial and Skelton’s Continuing Relationship with Fletcher
1. Skelton’s Concurrent Representation of Fletcher During Perillo’s Second Trial
Eventually, Perillo’s case was scheduled for retrial. The
16 court appointed attorney Robert Pelton to represent Perillo.
Pelton had never tried a capital case before, but he ran several
machine shops with a more senior lawyer, Jim Skelton. Pelton asked
Skelton to join Perillo’s defense, and in November 1983, Skelton
was likewise appointed to represent Perillo. Skelton’s first
instinct upon being appointed was to call Fletcher to “alert her”
that he would be handling Perillo’s case.
Skelton did not similarly “alert” Perillo concerning the
circumstances of his prior representation of Fletcher. In
particular, Perillo was not made aware that Skelton’s strategy at
Fletcher’s trial was to pin the blame on Perillo and Briddle and to
develop evidence making them look as bad as possible, that Skelton
had an ongoing personal friendship with Fletcher of such a nature
that Skelton gave Fletcher away at her wedding, that Skelton had
aligned himself with the victims’ interests and encouraged Fletcher
to meet with the victims to answer their questions about the
crimes, that Skelton had negotiated a grant of immunity for
Fletcher in exchange for Fletcher’s damaging testimony against
Briddle, that Skelton continued to represent Fletcher during
Briddle’s trial, or that Fletcher’s preserved testimony at
Briddle’s trial alleged new and damaging details about Perillo’s
own conduct. To the contrary, Perillo knew nothing more than that
Skelton had secured a very favorable sentence for Fletcher and that
she hoped he would be able to do the same in her case.
Jury voir dire began in Perillo’s second trial on October 8,
1984. On October 19, 1984, Perillo’s trial judge issued a subpoena
17 to compel Fletcher, who was still living in California, to return
to Texas. Once again, Skelton’s first impulse was to call Fletcher
to alert her about the subpoena. Fletcher did not want to testify
because she wanted to “put all this” behind her. She asked Skelton
to come to California to represent her in her efforts to quash the
subpoena. Skelton left, during the pendency of Perillo’s trial,
and went to California at Fletcher’s request. While in California,
Skelton went to Fletcher’s home to meet with Fletcher and her
husband about Fletcher’s potential testimony.
Skelton and Fletcher have testified consistently that Skelton
was providing legal counsel to and representing Fletcher in the
California hearing. Skelton argued on Fletcher’s behalf that she
should not have to return to Texas. Fletcher testified that it
occurred to her at the time that Skelton might be in a conflict of
interest situation based upon his prior representation of her at
trial and his concurrent representation of she and Perillo in
California. Fletcher further testified that she at no time had the
impression that Skelton was in California to represent Perillo.
Rather, she considered him to be there as her lawyer.
Perillo’s prosecution team filed documents in support of the
subpoena, including a statement prepared by the state trial court
judge that Fletcher’s testimony was considered necessary in
Perillo’s case. Fletcher has testified that she believed at the
time of the California hearing that she could still be prosecuted
if she were to return to testify against Perillo. The state
prepared correspondence stating that, if Fletcher would return to
18 testify against Perillo, the state would “again” seek a grant of
transactional immunity in exchange for her testimony. Although
there is no record evidence suggesting that Skelton, or even
Fletcher, negotiated that renewed grant of immunity, the offer of
renewed immunity was made at a time when Skelton was simultaneously
representing Fletcher and Perillo. Without regard to which grant
of immunity (the Briddle immunity or the Perillo immunity) was
controlling, the record is clear that Fletcher could have been
prosecuted for perjury if her testimony were proven materially
false.
The record reflects that when prosecutors went looking for the
previous grant of transactional immunity relative to Briddle’s
trial, they were unable to find it. The record further contains:
(1) a written request that immunity be granted, which is signed by
district attorney Johnny Holmes, and (2) court pleadings
petitioning the court for an order granting Fletcher immunity. The
court pleadings are not, however, signed by any judicial authority.
See Graham, 994 S.W.2d at 654-56. As a consequence, the technical
status of Fletcher’s immunity when she returned to testify against
Perillo is likewise unclear. At a minimum, however, Fletcher was
the beneficiary of a prosecutorial promise not to prosecute that
arose either from Skelton’s negotiation of Fletcher’s immunity
before the Briddle trial, or from the state’s renewed offer of
immunity at a time when Skelton was representing both Fletcher and
Perillo in California.
The California court ordered Fletcher to testify, and Skelton
19 did not appeal or otherwise challenge that ruling. Skelton views
his concurrent representation of Fletcher and Perillo as without
conflict because Perillo likewise had an obvious and compelling
interest in keeping Fletcher in California. The record reflects,
however, that the California order directing Fletcher’s return, and
indeed the state’s request for Fletcher’s return, did not pose any
difficult issues. Indeed, Perillo’s prosecutors testified in this
proceeding that, where the state was paying for her return, the
state was confirming the availability of immunity, and Fletcher was
a direct witness to the events leading to a capital murder, the
California order directing her return was expected, and indeed
almost pro forma.
The apparent inevitability that Fletcher would be ordered to
return raises a serious question about the extent to which Perillo,
as opposed to Fletcher, would even potentially be benefitted by
Skelton’s services in California. Moreover, that apparent
inevitability should have brought home to Skelton the fact that his
two clients’ interests, should Fletcher be ordered to return, would
rapidly diverge. Fletcher’s primary interest would be in avoiding
further prosecution. To do so, she would need to testify in a
manner consistent with the damaging details revealed in her Briddle
testimony in order to avoid being charged with perjury or
invalidating the immunity agreement that was either negotiated by
Skelton or secured while he represented her. Perillo would need to
undermine Fletcher’s credibility and impeach Fletcher’s testimony
by any means possible, in order to minimize the effect of
20 Fletcher’s damaging testimony. Perillo would also need to
emphasize Fletcher’s own involvement in order to highlight the
disparity between Fletcher’s punishment of five years probation and
a potential death sentence in Perillo’s case.2
2. Fletcher’s Testimony Against Perillo
Fletcher returned to Houston to testify against Perillo on
November 5 or 6, 1984. Although Fletcher initially stayed at a
hotel arranged by the state, she moved to Skelton’s condominium
shortly thereafter, and stayed with Skelton throughout the duration
of Perillo’s trial.
On the afternoon that Fletcher arrived in Houston, Skelton
arranged to have her meet with another criminal defense attorney,
Will Gray, with whom Skelton shared office space. Skelton has
2 The district court made several fact findings with regard to Skelton’s agreement to represent Fletcher in California during the course of Perillo’s trial and after Fletcher had been named as a potential witness for the state. Specifically, the district court found that Skelton went to California, with Perillo’s knowledge, primarily for the purpose of representing Perillo’s interests, and only coincidentally to represent Fletcher’s interests. The district court also held that Perillo’s and Fletcher’s interests with respect to Skelton’s concurrent representation in California were identical because both women wanted to avoid the subpoena for Fletcher’s testimony at Perillo’s trial. We are unable to affirm the district court’s factual determinations on these issues. While Perillo knew Skelton was going to California, she did not know the true character of Skelton’s prior representation of Fletcher and did not understand the potential for conflict should Fletcher be ordered to return. Further, although both Fletcher and Perillo wanted to avoid the subpoena, they wanted to do so for different reasons. The record demonstrates that the possibility of avoiding the subpoena was small and the risk of an ensuing conflict should Fletcher be ordered to return was large. We therefore reject the district court’s determination that Fletcher and Perillo’s interests with respect to the California proceedings were identical.
21 testified that the sole purpose of this consultation was to seek
Gray’s advice concerning whether the attorney-client relationship
that had existed between Skelton and Fletcher might be used in some
manner to exclude or limit the effect of Fletcher’s testimony
against Perillo. Skelton denies that Gray was consulted regarding
any conflict of interest arising out of his prior and concurrent
representation of Fletcher.
Fletcher only met with Gray once, on the afternoon before she
began her testimony against Perillo on November 7, 1984. Skelton
dropped Fletcher off and picked her up from the meeting. Gray has
testified that his meeting with Fletcher left him thinking that
there was a distinct possibility that Fletcher would be charged
with perjury unless she asserted the attorney-client privilege at
Perillo’s trial. Gray was also concerned about the conflict of
interest arising from Skelton’s simultaneous relationship with both
Fletcher and Perillo. After meeting with Fletcher, Gray told
Skelton that Skelton should withdraw from Perillo’s case. Gray
agreed, however, to appear on Fletcher’s behalf when she testified
the next day.
That night Skelton and Fletcher returned to Skelton’s
condominium alone and had a lengthy conference during which Skelton
refreshed Fletcher’s recollection of her testimony against Briddle
by going through her prior testimony, which Skelton characterized
as “set in stone,” with Fletcher. Skelton also “mapped out” for
Fletcher exactly what he intended to ask her during his cross-
22 examination of her at Perillo’s trial the next day. Gray,
Fletcher’s putative attorney, was not present for this briefing
session.
Skelton claims that this evening conference at his home was
the first time he ever discussed Fletcher’s version of the facts
with her. Skelton claims he did not discuss the facts of the case
against Fletcher with her before or during her own trial, when
referring the victims’ families to her, when he attended at her
wedding, when he negotiated Fletcher’s immunity for Briddle’s
trial, when Fletcher gave a statement to prosecutors detailing
those facts before Briddle’s trial, when she stayed with him for
more than one week during Briddle’s trial, when he appeared on her
behalf at Briddle’s trial, when he represented her in California
during the course of Perillo’s trial, or at any other time prior to
that evening. Skelton’s testimony in this regard is, as the
district court ultimately found, both incredible and contradicted
by other evidence.
Without regard to whether Skelton discussed the facts of
Fletcher’s case with her prior to the evening before her Perillo
testimony, Skelton concedes that he did discuss the facts with
Fletcher that evening. Thus, Skelton met with Fletcher, the
state’s star witness, the night before she testified against
Perillo for the purpose of permitting Fletcher the opportunity to
conform her testimony against Perillo to her prior, and very
damaging, testimony in Briddle’s trial, and for the purpose of
affording Fletcher a preview of Skelton’s cross-examination on
23 Perillo’s behalf. The record reflects that several individuals
were concerned about the conflict of interest problems presented by
Skelton’s dual relationship with both Fletcher and Perillo. In
addition to Gray, there is evidence that Perillo’s prosecutors were
concerned about the conflict of interest arising out of Skelton’s
dual relationship with Fletcher and Perillo. As mentioned above,
there is evidence that Fletcher was concerned about a conflict of
interest. Finally, there is evidence that Skelton himself was
concerned about the conflict of interest arising from Skelton’s
relationship with both Fletcher and Perillo. Skelton asked
criminal defense attorney Will Gray, who had extensive experience
defending capital cases, to consult with Fletcher. Although
Skelton testified that Gray’s consultation was exclusively for the
purpose of seeing whether Fletcher’s testimony could be excluded
altogether, both Gray and Fletcher testified that Gray was supposed
to consult with Fletcher about any actual conflict that might
infringe upon her rights, given Skelton’s representation of both
Fletcher and Perillo.
Notwithstanding Gray’s advice, Skelton continued with
Perillo’s case, and the next day Fletcher appeared to testify
against Perillo. Although not introduced during the evidentiary
hearing on remand, the record contains sworn affidavits from two
individuals, one a member of the bar, stating that they were either
party to or overhead a conversation during Perillo’s trial in which
Skelton said that he had advised Fletcher to lie in Briddle’s
trial, and that Fletcher would therefore be compelled to repeat her
24 lies in Perillo’s trial, although Skelton planned to spin
Fletcher’s lies in a way that would help Perillo.3
Once Fletcher was called to the stand, the state asked
Fletcher some questions which the prosecutor has subsequently
testified were intended to address the issue of whether Skelton’s
representation of Perillo was burdened by a conflict of interest
arising from his relationship with Fletcher. Fletcher testified
that there was no longer any attorney-client relationship between
her and Skelton. Gray then interjected, stating that he
represented Fletcher, that Fletcher had been granted immunity for
her testimony, and that the extent of his counsel to Fletcher was
that she assert the attorney-client privilege where applicable.
Gray was never formally appointed to represent Fletcher. Once
Fletcher began testifying, and it became clear that she would not
follow Gray’s advice to assert her attorney-client privilege, Gray
left the courtroom, and did not stay to hear Fletcher’s testimony
or to otherwise protect her interests. There is no indication that
Gray ever had any other contact with or exposure to Fletcher. Gray
has testified in this proceeding that he feels there was an actual
conflict arising from Skelton’s multiple representation of both
Fletcher and Perillo. While Gray does not ascribe any improper
motive to Skelton in doing so, Gray believes that Skelton
inappropriately “got caught up in trying to serve two masters.”
Tellingly, neither the prosecutors nor Gray nor Perillo’s
3 One of those witnesses testified that Skelton also claimed to have procured a “phony annulment” for Fletcher so that she could testify against her former husband, Briddle.
25 trial judge elicited from Fletcher the full scope of Fletcher’s
relationship with Skelton. Although the fact of Skelton’s prior
representation at Fletcher’s trial was stated in the record, no one
questioned Fletcher about Skelton’s representation after Fletcher’s
trial, at Briddle’s trial, or after Perillo’s trial began. Those
facts were simply not developed, leaving both Perillo’s trial judge
and Perillo herself in the dark. Skelton did not, as he had for
Fletcher, arrange for Perillo to consult with any independent
counsel regarding the existence of a conflict of interest. Indeed,
neither the trial judge nor the prosecutors nor Skelton expressed
any interest in determining whether Perillo was aware of Skelton’s
relationship with Fletcher or whether Skelton’s dual relationship
with both Fletcher and Perillo might have any conflict of interest
implications that would impair Skelton’s presentation of Perillo’s
defense.
On direct, Fletcher repeated the damaging testimony given at
Briddle’s trial. Fletcher’s testimony tended to establish both
Perillo’s guilt and her future dangerousness by describing
extraneous offenses that were neither contained in Perillo’s
confession nor otherwise offered into evidence by the state.
Fletcher’s testimony also tended to establish that Perillo was
heartless and cruel. For example, Fletcher testified that Perillo
used a tape recorder taken from Banks’ house to make mocking
recreations of the murders. Fletcher also elaborated on her
earlier Briddle testimony without objection from Skelton. For
example, Fletcher testified at Perillo’s trial, but not at
26 Briddle’s trial, that Perillo had calmly demanded her share of the
money from the robbery as the trio fled Houston. Fletcher also
elaborated on her testimony that Perillo was using Banks’ tape
recorder on the bus to Denver by testifying that Perillo was making
statements like “the rope is too tight,” and “I don’t like looking
at your face, its turning blue” while Briddle laughed.4 There can
be little doubt that Fletcher’s testimony was “most damaging” to
Perillo. Perillo, 758 S.W.2d at 572.
On cross-examination, Skelton’s continuing obligation to
Fletcher, arising in part from his role in securing Fletcher’s
damaging Briddle testimony and the grant of immunity in her favor,
and as complicated by his decision to refresh Fletcher’s
recollection of her prior testimony and his decision to preview his
cross-examination with Fletcher, obviously hindered Skelton’s
ability to challenge or minimize Fletcher’s testimony in any
meaningful way. Skelton led Fletcher through her testimony so
consistently that the transcript reads as though Skelton himself is
testifying. Throughout the lengthy cross-examination, Fletcher
gave predominantly one word responses to the lengthy, compound
questions posed by Skelton.
Skelton began by going through some of the lengthy history of
his personal and professional relationship with Fletcher. Skelton
4 The district court found that Fletcher gave “substantially the same testimony that she had given at the trial of Briddle.” While we do not necessarily disagree with that finding, we do find some significance in the fact that Fletcher’s testimony at Perillo’s trial included damaging new details that came in unchallenged by Skelton.
27 disclosed that Fletcher had received a five year probated sentence
for her involvement in the crimes. Skelton diminished Fletcher’s
own involvement by pointing out that Perillo’s own statements “left
[Fletcher] out of it.” Skelton identified himself and Fletcher
with both the government and the victims’ families by eliciting her
testimony that she volunteered her testimony at Briddle’s trial
because it was the right thing to do and that, at his urging, she
had met with the victims’ families. Skelton bolstered Fletcher’s
credibility by eliciting testimony about her excellent background,
including her well-educated sisters, her supportive family, and
even her high school grade point average.
Skelton then proceeded to Fletcher’s version of the facts.
Fletcher repeated much of the damaging testimony given on direct.
Skelton failed to ask questions that might have impugned Fletcher’s
credibility or exposed any ulterior motives for her testimony,
although he could have fruitfully pursued both avenues. See
Perillo I, 79 F.3d at 451 n.12. Skelton failed to point out that
Fletcher’s prior statement to Denver police that she had last seen
Banks alive and well when he dropped her off on the freeway was
inconsistent with her testimony at Perillo’s trial. See id.
Skelton failed to point out that Fletcher might hold a grudge
against Perillo because Perillo turned both Fletcher and Briddle in
to the police. See id. Skelton failed to explore the import of
Fletcher’s desire to “put all this” behind her, which might have
included a motive to eliminate the one remaining person who could
remind her of and shed light upon Fletcher’s own involvement in the
28 murders. Skelton also failed to ask Fletcher questions that would
have incriminated her, or at least called into question whether she
was more involved in the murders than she claimed. For example,
Skelton failed to ask Fletcher about the fact that she had blood on
her pants when she was arrested. See id.5
Notwithstanding the fact that Skelton previewed his cross-
examination with Fletcher the night before, he also asked questions
that tended to incriminate Perillo. For example, Skelton’s cross-
examination elicited damaging evidence of Perillo’s involvement in
a host of extraneous offenses not otherwise developed by the state.
Id. For example, Fletcher testified that Perillo was heavily
involved with drugs, and that Perillo generally helped Briddle with
his “robberies.” Fletcher also offered new details with regard to
the robbery that led the trio to flee California.
Skelton also elicited false testimony from Fletcher that
operated to prejudice Perillo’s defense. For example, Fletcher
testified that she did not receive any benefit from the state in
exchange for her testimony against Briddle. As developed supra,
Fletcher received at least use immunity, and probably full
5 Skelton also failed to clarify misleading testimony concerning the fact that the only usable print recovered in the course of the investigation was Fletcher’s fingerprint, leaving the jury to conclude instead that the print belonged to Perillo. The district court chose not to rely upon this factor in its decision, stating that the record did not support the premise that the print evidence provided a basis for cross-examination of Fletcher. While we find some significance in Skelton’s failure to clarify the misleading testimony, we cannot say that the district court’s resolution of this factual issue is clearly erroneous. For that reason, we will exclude consideration of this factor in our decision.
29 transactional immunity, in exchange for her testimony against
Briddle. In addition, Skelton elicited testimony from Fletcher
that he was not present when she appeared at Briddle’s trial, a
statement that is flatly contradicted by the record in Briddle’s
case. Skelton has testified that his trial strategy was to try and
make both Fletcher and Perillo look like victims who were being
manipulated by an evil and controlling Briddle. Skelton planned to
compare Fletcher’s outstanding background with her despicable
conduct when married to Briddle in order demonstrate the strength
of Briddle’s influence. But Skelton elicited testimony that was
both damaging to Perillo and inconsistent with his stated strategy.
For example, Fletcher testified that she was crying and visibly
distraught throughout the time the robbery and murders were taking
place. But, notwithstanding the fact that Skelton previewed his
cross-examination with Fletcher, Skelton elicited Fletcher’s
testimony that Perillo was calm and “methodical” (Skelton’s word)
during the offenses. Similarly, Fletcher testified that Briddle
forced her to engage in prostitution for his benefit and that he
frequently beat her when she tried to refuse. Fletcher then
testified that Perillo refused to engage in prostitution for
Briddle’s benefit without consequence, and that Briddle never
attempted to harm Perillo.
Perillo’s prosecutors have testified that they were worried
that Fletcher’s testimony on cross-examination that she received
only a five year probated sentence might influence the jurors to
likewise impose a lighter sentence than death on Perillo. This is
30 the prosecutors’ attempt to make Skelton’s approach to Fletcher’s
cross-examination seem wise, or at least professionally reasonable.
But as Perillo’s counsel pointed out in the evidentiary hearing,
any strategy to highlight the light sentence Fletcher received by
comparison can only have been strengthened by a vigorous cross-
examination calling into question whether Fletcher was in fact more
involved in the offenses than she pretended. The fact that both
women pulled on the rope that killed Bob Banks could only have
added to the obvious disparity between the five year probated
sentence in Fletcher’s case and the death penalty being sought in
Perillo’s case. Such evidence would also have furthered Skelton’s
stated trial strategy by strengthening the contrast between
Fletcher’s background and her conduct under the influence of
Briddle.
Perillo claims, and neither Skelton nor his co-counsel Pelton
disputes, that she made a contemporaneous and vociferous objection
to counsel when Skelton was cross-examining Fletcher at trial.
Perillo claims she told both Skelton and Pelton that Fletcher was
lying and that Fletcher was inaccurately portraying Perillo as the
ringleader to cover her own more substantial involvement. As just
one example, Perillo testified in the evidentiary hearing that,
contrary to her prior confessions, Fletcher pulled on one end of
the rope that strangled Bob Banks. The fact that she did not make
this theory up for habeas review is corroborated by the testimony
of Robert Scott, who represented Perillo at her first trial. Scott
testified that Perillo told him the same story about Fletcher’s
31 active involvement prior to her first trial.
Perillo claims that she asked Skelton to cross-examine
Fletcher about her lies, but Skelton refused. He just patted
Perillo’s hand and told Perillo it would be okay. Perillo also
says that she told her lawyers she wanted to testify in order to
clarify for the record that Fletcher was lying. Perillo claims
that Skelton and Pelton refused to allow her to testify. Skelton
told Perillo that it was important for Fletcher to testify in a
manner that was consistent with her Briddle testimony. The
acrimony arising from these events and others is evidenced in
Perillo’s trial record, which includes Perillo’s post-trial and pro
se motions to remove Skelton and Pelton from her case.
Skelton called only one witness during the guilt phase of
Perillo’s trial. Skelton called Houston Police Officer West, who
took Perillo’s second and unsigned statement, in which she claimed
that she committed both murders alone. Perillo’s second, unsigned
statement was recognized as inadmissible and therefore not
introduced at Briddle’s trial. Prior to West’s testimony for the
defense, Perillo’s second statement had not been introduced into
evidence or otherwise discussed at Perillo’s second trial. Skelton
asked Officer West a few questions to establish that he took the
statement and then, inexplicably, had Officer West read the entire
lengthy statement, which was highly incriminating as to Perillo and
equally exculpatory as to Fletcher, verbatim into the record.
West’s testimony was the last evidence received before closing
arguments and submission to the jury.
32 At the close of evidence in the guilt phase, Skelton told the
jury that defending Perillo was one of the most difficult jobs he
has ever had to do because of his close relationship with the
victims’ family, and because of the horrendous and disturbing
brutality of the crimes. Skelton told the jury that his hair stood
on end when he read the state’s file, and found out the trio began
planing the offenses the night before the crimes while at the rodeo
with Banks.6 Not surprisingly, the jury returned a verdict of
guilty.
During the punishment phase, the state called the victim of
the California robbery, and two police officers who testified that
Perillo’s reputation for peaceableness was bad. Skelton and Pelton
called numerous witnesses who testified to Perillo’s pitiful family
background, Perillo’s religious conversion in prison, and Perillo’s
prospects for support from the community should she be spared the
death penalty. In his closing argument, Skelton told the jury that
he cared a great deal about the victims in this case, as evidenced
by the fact that he was responsible for securing the testimony that
ensured Briddle received the death penalty. Skelton told the jury
that the sole issue in Perillo’s trial had always been punishment,
rather than guilt. Skelton emphasized that Perillo was remorseful,
and that she deserved some credit for turning the trio in to the
police. Skelton closed with a plea for mercy. Thereafter, the
6 We note that the only source of that information would have been Fletcher’s pretrial statement or her testimony at Briddle’s trial, which Skelton claims he never read or reviewed until the night before Fletcher testified.
33 jury returned affirmative answers to the two special issues
required for imposition of the death penalty.
Skelton has testified that there was no conflict of interest
arising from his dual relationship with both Fletcher and Perillo
because Fletcher would have done anything, even lied on the stand,
to help Perillo. But Fletcher’s own testimony in this proceeding
contradicts that premise; Fletcher has testified that she was
“pleased” with the outcome of Perillo’s trial and does not care
whether Perillo gets the death penalty. Fletcher’s candid
admission of her point of view tends to support Perillo’s belief
that Fletcher’s testimony was intended to and did secure her
conviction and condemn her to death.
F. Perillo’s Direct Appeal and State Habeas Proceeding and Skelton’s Continuing Relationship with Fletcher
Perillo’s conviction and sentence were affirmed on appeal.
See Perillo v. State, 758 S.W.2d 567. In November 1991, Perillo
filed a state habeas corpus action in the convicting court.
Skelton continued to represent Fletcher during the course of
Perillo’s state habeas proceeding. In 1992, Perillo’s habeas
counsel attempted to contact Fletcher to investigate the facts
surrounding Skelton’s representation of Fletcher. Fletcher
initially agreed to an interview, but then canceled on the advice
of her counsel, Skelton. Fletcher told Perillo’s habeas counsel
that all future communications had to go through Skelton, and that
if necessary, Skelton would fly to California to resist any
subpoena for Fletcher’s testimony. Skelton never responded to
Perillo’s habeas counsel’s attempts to contact him directly.
34 In January 1994, the state court judge, who was not the judge
who presided at Perillo’s trial, entered written findings of fact
and conclusions of law, recommending denial of Perillo’s writ. The
state habeas court’s disposition relied heavily upon the
credibility of Skelton’s affidavit testimony. Perillo’s state
habeas petition was later denied by the Texas Court of Criminal
Appeals in an unpublished per curiam opinion. See Ex parte
Perillo, No. 26,367-01 (Tex. Ct. Crim. App. 1994).
The state habeas court did not conduct an evidentiary hearing,
and decided the case instead on the basis of the affidavits and
other documents submitted to the court. See Perillo I, 79 F.3d at
445-47. We have already determined that Perillo did not receive a
full and fair hearing on her Sixth Amendment claim in the state
habeas court. See id. at 445-46 & n.7 (explaining the significance
of the “paper” hearing in Perillo’s case with respect to the
presumption of correctness to be accorded the state court fact
findings). The evidence received on remand, particularly the
evidence relating to Skelton’s credibility, strongly supports that
legal conclusion. Further, the procedural posture of this present
appeal does not affect our prior resolution of that legal issue.
We therefore adhere to our earlier holding that, on the particular
facts of this case, the state habeas court’s fact findings are not
entitled to the presumption of correctness provided for in the pre-
AEDPA version of 28 U.S.C. § 2254(d).
35 G. Perillo’s Federal Habeas Corpus Petition and Skelton’s Continuing Relationship with Fletcher
Perillo filed this, her first federal habeas, on May 4, 1994.
Perillo’s petition is controlled by pre-AEDPA law because it was
filed before the effective date of AEDPA, see Lindh v. Murphy, 117
S. Ct. 2059 (1007), and because Texas has not opted into the
separate provisions of AEDPA making the statute retroactive for
death penalty cases, see Green v. Johnson, 116 F.3d 1115, 1120 (5th
Cir. 1997). In August 1994, without permitting discovery or an
evidentiary hearing, the district court granted summary judgment in
favor of the Director and denied relief. The district court’s
disposition of Perillo’s claim, like that of the state habeas
court, relied heavily upon the credibility of Skelton’s affidavit
testimony. Perillo appealed.
1. The Prior Appeal
On appeal, this Court was particularly concerned about the
fact that Perillo had not been given an opportunity to develop her
claim, either in the state habeas court or the federal habeas
court. We noted that “Perillo has not had the opportunity to
depose or cross-examine Skelton. Perillo has not even been able to
get Fletcher’s affidavit.” Perillo I, 79 F.3d at 445. We were
also disturbed by the fact that Skelton continued to be “Perillo’s
chief obstacle in obtaining information from Fletcher,” as well as
by the tone of Skelton’s vitriolic and unprofessional affidavits.
Id.7
7 We quoted only a small portion of Skelton’s affidavit testimony in our prior opinion. See Perillo I, 79 F.3d at 445 n.4.
36 Perillo argued that Skelton’s prior and concurrent
representation of Fletcher gave rise to an actual conflict that
adversely affected Skelton’s interests, either during Skelton’s
concurrent representation of Fletcher in California or during
Skelton’s cross-examination of Fletcher at Perillo’s trial. We
agreed, holding that Perillo had not received a full and fair
hearing of her claim in the state habeas court, see Perillo I, 79
F.3d at 445-46 & n.7, and that Perillo had alleged facts which, if
proven true, would entitle her to relief, see id. at 447-51.
Accordingly, we vacated the judgment of the district court and
remanded for discovery and an evidentiary hearing. See id. at 451.
2. Proceedings on Remand
a. The first evidentiary hearing and decision
The district court held its first evidentiary hearing on
November 25 and 26, 1996. The Court heard evidence from Skelton,
Fletcher (by video), Scott (Perillo’s counsel at her first capital
murder trial), Gray (Fletcher’s putative counsel for conflicts at
That excerpt was by no means the most callous portion of his affidavit testimony. But Skelton’s affidavit, for all its crude language, reveals a good bit about Skelton’s conflicted position at Perillo’s trial. Skelton states that Fletcher’s testimony was “set in stone,” and that it was important that she testify consistently at Perillo’s trial, without omitting any of the facts that might hurt Perillo’s case. Skelton describes Fletcher affectionately as being “very popular” and the “clown” of an upstanding middle class family. Skelton emphasizes that Fletcher was never in trouble with the law prior to her affiliation with Briddle, which only occurred as the result of a misguided college project. Skelton describes Perillo and her participation in the offenses, on the other hand, in the coarsest possible terms, stating, for example, that “[t]hinking that impeaching Linda would save Perillo makes as much sense as attempting to convince the jury that the rope accidentally ‘went off,’ flew across the room, and strangled both men to death.”
37 Perillo’s trial), Perillo, Bill Warren (Perillo’s expert on
conflict law), Pelton (Skelton’s co-counsel for Perillo’s second
capital murder trial), Crowley (lead prosecutor for Perillo’s
second capital murder trial), and Gotshall (junior prosecutor for
Perillo’s second capital murder trial), all of whom testified to
the facts developed supra. In addition, both sides offered a
substantial amount of documentary evidence in the form of exhibits.
Skelton repeated his affidavit testimony that there could be
no actual conflict because Fletcher wanted to help Perillo, and no
adverse effect because demonstrating Fletcher’s culpability in the
crime, i.e. “that Linda was a lying California bitch who tugged on
the rope with Perillo,” would not have saved Perillo from the death
penalty. Skelton’s basic premise was that the quality of his
advocacy was immaterial because Perillo’s confession was
insurmountable. Post-hearing briefs were filed by both parties.
On August 5, 1997, the district court entered an order denying
habeas relief. The district court relied heavily upon Skelton’s
testimony, expressly finding that Skelton’s testimony was credible.
The district court further agreed with Skelton that no “amount of
hostility toward or discrediting of Fletcher could have diminished,
much less neutralized, the compelling force of Perillo’s own
confession.” In so holding, the district court seems to have
confused Strickland’s standard, which requires a showing of actual
prejudice with respect to the outcome of the trial and Cuyler’s
less stringent standard, which places the focus upon whether
38 counsel’s performance was compromised by an actual conflict of
interest.
2. The second evidentiary hearing and decision
On August 19, 1997, Perillo filed a motion to reopen the
evidence and for reconsideration. The primary issue at this point
was Skelton’s credibility. Skelton’s credibility was key to such
important issues as whether Fletcher had in fact conveyed any
confidential information to Skelton when he represented her, and
whether Skelton knew that Perillo’s version of the facts implicated
Fletcher in the actual murders, a fact which might have aided
Perillo’s defense, but would almost certainly have opened Fletcher
up to perjury charges. Perillo pointed out that Skelton’s
testimony conflicted with that of other witnesses, including Robert
Scott and Will Gray, and with documents admitted into evidence.
Perillo also pointed out that Skelton was disbarred for lying to a
client the day after the district court’s decision relying upon
Skelton’s credibility to deny relief.
Perillo tendered evidence that Skelton’s August 1997
disbarment resulted from his decision to lie to a client about the
status of the client’s criminal appeal from federal conviction.
Unfortunately for Skelton, the client tape recorded Skelton’s
assertions that the client’s appeal was pending, that Skelton had
presented oral argument to an interested Fifth Circuit panel, and
later, that the client’s conviction had been affirmed on appeal.
In fact, the client’s appeal had been dismissed for want of
prosecution months before Skelton began telling the client about
39 the fictitious oral argument and affirmance. There are tape
recordings of these conversations in the record. Even when the
client confronted Skelton about the appeal being dismissed months
before, Skelton told the client he had attended oral argument and
that some unidentified lawyer named “Greg” must have dropped the
ball. Perillo argued that the newly discovered evidence was highly
probative with respect to Skelton’s credibility. Perillo also
reargued her substantive arguments for relief.
In March 1998, the district court granted Perillo’s motion to
reopen the evidence and for reconsideration. In the same order,
the district court vacated its earlier judgment denying relief.
The district court again granted discovery and set a second
evidentiary hearing for May 21, 1998. At this hearing, Skelton
admitted that he lied to his client about the appeal made the
subject of the disciplinary proceedings against him. The two tape
recorded conversations were played. Skelton also testified that
there are times when you cannot be truthful with a client. Skelton
had previously testified to the same effect in another disbarment
proceeding, in which Skelton offered testimony defending another
lawyer who delayed telling a criminal defendant that charges had
been dropped for a number of months to keep leverage over the
client for the collection of a fee. Skelton’s testimony
established that his license had been reinstated, pending final
disposition of the disciplinary proceedings.8 The hearing ended
8 Skelton has since been permanently and finally disbarred by the Texas State Bar because of conduct giving rise to two different complaints against him, the oldest of which dates back to
40 with the arguments of counsel relating to the relative importance
of Skelton’s credibility.
This time there were no post-hearing briefs, and on June 18,
1998, the district court entered a final judgment vacating
Perillo’s conviction and her death sentence. The district court
found:
Skelton’s credibility is questionable. During his testimony in this proceeding he admitted to and defended his practice of sometimes lying to his clients. One such episode, which he attempted to explain but did not defend, is the basis for current State Bar disciplinary proceedings against him, in which his disbarment has been sought.
The district court phrased its findings to express doubt about the
veracity of Skelton’s representations that he never spoke to his
client Fletcher about the facts of her case at her trial, or when
he negotiated immunity for her during Briddle’s trial, or when she
returned to testify against Briddle and stayed in his home, or at
any other time prior to the evening before her testimony in
Perillo’s second trial. The district court further noted the
substantial personal relationship between Skelton and Fletcher,
“that had arisen out of Skelton’s successful defense of Fletcher
and his later participation as her surrogate father at her
wedding.” The district court agreed with our Court’s prior
statement that Skelton’s close friendship with Fletcher, while not
necessary to the decision, “confirms the reality of the conflict of
interest position in which Skelton placed himself.” Perillo I, 79
1992. In one of those matters, Skelton sought the payment of fees from an indigent defendant that he was court appointed to represent.
41 F.3d at 451 n.13.
With respect to the actual conflict issue, the district court
held that Skelton owed Fletcher a continuing duty of loyalty based
upon his former and concurrent representation of Fletcher. Had
Skelton impeached Fletcher’s testimony, she could have been
prosecuted for perjury. By not impeaching Fletcher’s testimony,
Skelton made a choice not to pursue a plausible defensive strategy
that could have had significant impact with respect to Perillo’s
punishment.
The district court persuasively contrasted Skelton’s decision
to secure independent counsel for Fletcher on the potential for
conflicts with Skelton’s failure to likewise protect or inform his
other client, Perillo, about either the details of Skelton’s former
representation of Fletcher or the details of Skelton’s ongoing
relationship with Fletcher, let alone her rights in the event of a
conflict of interest. The district court further found, as a
matter of fact, (1) that Skelton guided Fletcher’s cross-
examination with leading questions throughout, (2) that Skelton
elicited details concerning his former representation of Fletcher,
(3) that Skelton elicited testimony that Fletcher had met with the
victim’s mother about possibly helping in the prosecution of
Briddle, (4) that Skelton made a careful record of the fact that he
had not discussed the facts of the case with Fletcher before the
previous evening, and (5) that Skelton’s cross-examination revealed
a host of extraneous bad acts by Perillo and essentially repeated
the most damaging portions of the state’s direct. Despite
42 Perillo’s persistent demands that Skelton cross-examine Fletcher
regarding her more extensive involvement in the crime, which
neither Skelton nor Pelton deny, Skelton did not attempt to
discredit or minimize Fletcher’s testimony in any way. The
district court discounted Skelton’s assertion that Fletcher wanted
to help Perillo, citing Fletcher’s testimony that she was “pleased”
with the outcome of Perillo’s trial.
With respect to adverse effect, the district court found that
Skelton’s conflict affected his performance as Perillo’s counsel,
both on the issue of guilt and on the issue of punishment. The
district court identified at least three plausible alternative
defensive strategies or tactics that could have been employed, but
were not because of Skelton’s conflict of interest. Those three
were: (1) adducing evidence that Fletcher had blood on her jeans
when arrested, indicating a more active role in the murders and
thereby impeaching Fletcher’s credibility; (2) pointing out to the
jury that Perillo turned Fletcher and Briddle in to the police,
giving Fletcher a motive for incriminating Perillo; and (3)
impeaching Fletcher’s testimony with her prior inconsistent
statement to Denver Police that she last saw Banks when he let her
off on the freeway, and that as far as she knew, Banks was alive
and well. The district court also identified at least two points
where Skelton’s performance was impaired as a result of the
conflict: (1) when Skelton permitted Fletcher to further
incriminate Perillo by eliciting testimony from Fletcher regarding
Perillo’s alleged participation in a variety of extraneous
43 offenses; and (2) when Skelton protected Fletcher from a rigorous
cross-examination by reviewing his cross-examination with Fletcher
prior to her testimony. The district court found that each of
these examples of adverse effect was proven by a preponderance of
the evidence.
The Director filed a motion for reconsideration which was
denied. The Director’s timely notice of appeal followed.
IV.
The parties’ arguments on the issue of actual conflict depend
in large part upon the distinction between concurrent and
successive representation. Several of our sister circuits have
drawn such a distinction in Sixth Amendment conflict of interest
cases, holding that an actual conflict may be more difficult to
prove when it arises from the context of successive or serial
representation rather than concurrent representation. See, e.g.,
Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir.), cert. denied,
120 S. Ct. 57 (1999); Maiden v. Bunnell, 35 F.3d 477, 480 (9th Cir.
1994); McConico v. Alabama, 919 F.2d 1543, 1546 (11th Cir. 1990).
But see Church v. Sullivan, 942 F.2d 1501, 1511 (10th Cir. 1991)
(rejecting the view that successive representation cases are
necessarily more difficult to prove). The Director seeks to rely
upon this distinction, by placing Perillo’s claim squarely in the
category of those cases involving exclusively successive, rather
than concurrent, representation. The problem is that, even if the
Director were correct that this case involved purely successive
representation, a premise with which we do not agree, Perillo would
44 still be entitled to relief.
The Director first argues that Perillo’s claim is Teague-
barred because Cuyler does not clearly apply to cases involving
successive, as opposed to concurrent, representation. We disagree.
Cuyler has never been limited to concurrent representation cases in
this circuit. Indeed, our most recent en banc treatment of Cuyler
expressly extends Cuyler to all cases of multiple representation,
whether successive or concurrent. See Beets v. Scott, 65 F.3d
1258, 1265 (5th Cir. 1995) (en banc) (“Strickland offers a superior
framework for addressing attorney conflicts outside the multiple or
serial client context.”) & id. at 1265 n.8 (“Cuyler has been
routinely applied to cases in which an alleged attorney conflict
resulted from serial representation of criminal defendants as well
as simultaneous multiple representation. . . . For convenience, we
denominate both of these situations as ‘multiple
representation.’”). Moreover, Cuyler itself can be viewed as a
serial or successive representation case. In Cuyler, three
defendants were represented by the same two lawyers at the three
defendants’ successive trials for the same offense. When the first
defendant was tried, counsel rested after presentation of the
state’s case and without presenting a defense. See Cuyler, 100 S.
Ct. at 1712. Although the two lawyers later disagreed as to why no
defense was presented in the first trial, one of the lawyers
testified that he did not want to present a defense in the first
trial because it would prejudice the remaining two cases by
exposing potential defense witnesses. See id. at 1713. The first
45 defendant filed suit arguing that his right to conflict-free
counsel was impaired. The Third Circuit granted relief on the
basis that the multiple representation involved a “possible”
conflict of interest. The Supreme Court vacated, but remanded for
reconsideration of whether the successive representation of the
three defendants created an actual, as opposed to possible,
conflict of interest. See id. at 1719. Given that Cuyler has
routinely been applied to cases involving successive
representation, the Director’s position that Perillo’s claim is
either not governed by Cuyler or is Teague-barred because her claim
is not clearly governed by Cuyler is without merit.
Several circuits have established a separate standard for
successive, as opposed to concurrent, representation, holding that
an actual conflict may not be shown absent proof (1) that counsel
actually learned particular confidential information in the course
of the prior representation, or (2) that there is a substantial
relationship between the former and subsequent representations, or
(3) that counsel otherwise divided his loyalties. See, e.g., Enoch
v. Gramley, 70 F.3d 1490, 1496 (7th Cir. 1995); Maiden, 35 F.3d at
480; see also Freund, 165 F.3d at 859 (applying a more narrow test
requiring proof (1) that counsel learned confidential information
during the course of the first representation, or (2) that there is
a substantial relationship between the first and second
representations). The distinction drawn in these cases between
concurrent and successive representation is premised in part upon
analogous ethical rules, which may be informative but are not
46 determinative with respect to whether there is an actual conflict
for Sixth Amendment purposes. See Strickland, 104 S. Ct. at 2065.
The distinction is also premised upon generalizations about the
factual context that tends to be associated with each type of
claim. In a claim involving concurrent representation, there is an
obvious temporal relationship and the substantive relationship
between the two representations may also tend to be closer. See,
e.g., United States v. Malpiedi, 62 F.3d 465, 467-68 (2d Cir.
1995); Nealy v. Cabana, 782 F.2d 1362, 1363-65 (5th Cir. 1986).
Similarly, in a case of successive representation, both the
temporal and substantive relationship between the two
representations may be quite remote. See, e.g., Enoch, 70 F.3d at
1495-97. Those generalizations may not, however, hold universally
true. See United States v. Winkle, 722 F.2d 605, 609-12 (10th Cir.
1983); see also Church, 942 F.2d at 1511 & n.8 (rejecting focus
upon whether multiple representations were concurrent or successive
in favor of a focus upon the relationship between the multiple
representations).
Our Court has not definitively embraced the theory that there
is any real and inviolate substantive difference between conflicts
of interest arising in the context of successive, as opposed to
concurrent, representations. Instead, we have in each case focused
upon the “guiding principle in this important area of Sixth
Amendment jurisprudence,” which is whether counsel’s allegiance to
the accused was compromised by competing obligations owed to other
clients. Alvarez, 580 F.2d at 1255, 1258. That is not to say that
47 those factors employed in the threshold tests employed by our
sister circuits are without import in our own precedent. A
conflict of interest may exist by virtue of the fact that an
attorney has confidential information that is helpful to one client
but harmful to another. See United States v. Placente, 81 F.3d
555, 559 (5th Cir. 1996) (collecting cases). Likewise, we have
relied upon the relationship between the subject matter of the
multiple representations when determining whether counsel was
burdened by an actual conflict. See, e.g., Russell v. Lynaugh, 892
F.2d 1205, 1214 (5th Cir. 1989); see also Alvarez, 580 F.2d at 1259
(stating principle and collecting consistent cases). This Court
has also relied upon the temporal relationship between the prior
and subsequent representations. Where the prior representation has
not unambiguously been terminated, or is followed closely by the
subsequent representation, there is more likely to be a conflict
arising from defense counsel’s representation of the first client.
See, e.g., Stephens v. United States, 595 F.2d 1066 (1977). Where,
on the other hand, defense counsel’s prior representation
unambiguously terminated before the second representation began,
the possibility that defense counsel’s continuing obligation to his
former client will impede his representation of his current client
is generally much lower. See, e.g., Vega v. Johnson, 149 F.3d 354
(5th Cir. 1998), cert. denied, 119 S. Ct. 899 (1999). This Court
has also relied upon the character and extent of the prior
representation. Where the prior representation involved a formal
and substantial attorney-client relationship, a finding of actual
48 conflict is more likely. See, e.g., Alvarez, 580 F.2d 1251;
Castillo v. Estelle, 504 F.2d 1243 (5th Cir. 1974). Where,
however, defense counsel’s involvement in the prior representation
was either transient or insubstantial, we have been less inclined
to find an actual conflict. See United States v. Olivares, 786
F.2d 659, 663 (5th Cir. 1986). Thus, whether the facts of a
particular case give rise to an actual conflict depends, not so
much upon the label used to define the attorney’s conflict, as upon
these and any other factors that illuminate whether the character
and extensiveness of the prior representation were such that
counsel is prevented “by his interest in another’s welfare from
vigorously promoting the welfare of his [current] client.” Vega,
149 F.3d at 360.
The Director argues that we should abandon this multi-factoral
approach and adopt a more limited formulation restricting more than
even our sister circuits when an actual conflict may exist in a
case involving successive representation . The Director maintains
that an attorney’s loyalty to his current client can never be
fettered by any inconsistent duty owed to a former client, absent
proof that counsel obtained confidential information during the
course of the first representation. Stated differently, the
Director maintains that a lawyer can never owe any duty to a former
client aside from the duty to preserve confidential information.
The Director then relies upon evidence that Skelton never obtained
any confidential information from Fletcher for the legal conclusion
that Skelton could not have been burdened by an actual conflict.
49 We disagree with both the factual premise and the legal
conclusion of the Director’s argument. The rather remarkable
proposition that Skeleton learned no confidential information
during the course of his lengthy professional and personal
relationship with Fletcher depends upon the testimony of Skelton
himself. Skelton’s testimony on this point is significantly
undermined by Skelton’s additional testimony and Gray’s testimony
that good criminal practice would have required that he discuss the
facts of the case, at least to some extent, with Fletcher, and by
certain then-applicable ethical rules that would have required
Skelton to discern what Fletcher knew about the crimes. See ABA
STANDARDS FOR CRIMINAL JUSTICE, Standard 4-3.2(a) (providing that
the attorney for the accused should “seek to determine all relevant
facts known to the accused” as soon as practicable). Whatever
remaining weight that evidence could be given is completely
destroyed by the ample evidence in this record that Skelton
endorses the practice of lying in a professional context where the
truth does not suit. The district court expressly found Skelton’s
testimony to be incredible. We agree, and therefore reject
Skelton’s incredible testimony that he never obtained any
confidential information from Fletcher.
Moreover, even if Skelton’s incredible testimony were credited
as being truthful, that evidence establishes only that Skelton
never obtained any confidential information directly from Fletcher
herself. But an attorney’s duty of confidentiality is broader than
just client communications, and extends to all confidential
50 information, whether privileged or unprivileged, and whether
learned directly from the client or from another source. See
Brennan's, Inc. v. Brennan's Restaurants, Inc., 590 F.2d 168, 171-
72 (5th Cir. 1979) (discussing scope of duty of confidentiality
under ABA standards); see also Douglas v. DynMcDermott Petroleum
Operations Co., 144 F.3d 364, 369-70 (5th Cir. 1998) (discussing
scope of the duty of confidentiality under similar Louisiana
ethical rules), cert. denied, 119 S. Ct. 798 (1999). To the extent
that the relevant ethical standards are probative on the issue of
actual conflict, we note that that was the scope of the duty of
confidentiality when Perillo was tried,9 and remains the scope of
that duty today.10 Thus, Skelton’s testimony that he never learned
any confidential information directly from Fletcher is simply not
probative with respect to whether Skelton learned confidential
information about Fletcher’s case during the course of his lengthy
professional relationship with Fletcher.
We likewise reject the Director’s legal conclusion that an
9 See ABA MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 4- 101 (requiring an attorney to preserve privileged “confidence[s],” as well as unprivileged "secrets") & id. Canon 4, EC4-4 (providing that an attorney’s duty of confidentiality “exists without regard to the nature or source of the information or the fact that others share the knowledge”). Texas adopted the ABA Model Code of Professional responsibility in 1969. See TEXAS CODE OF PROFESSIONAL RESPONSIBILITY DR4-101 & id. Canon 4, EC-4 (same). 10 See ABA MODEL RULE OF PROFESSIONAL RESPONSIBILITY 1.6 & cmt. 5 (“The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”). Texas adopted the Model Rules in 1990. See TEXAS DISCIPLINARY RULE OF PROFESSIONAL CONDUCT 1.05(a) & cmt. 4 (extending Rule 1.05 to both privileged information furnished by the client and unprivileged information relating to the client).
51 attorney’s possession of confidential information is the only
factor of any importance when examining whether an attorney’s
successive representation of multiple defendants in the same
criminal episode deprived the second client of his or her Sixth
Amendment rights. The Director is essentially arguing that an
attorney can take an adverse position undermining the attorney’s
prior work the moment (or as in this case, within a few hours
after) concurrent representation ends, and without regard to
whether there has been a waiver of the conflict on the record, so
long as there is no confidential information to protect. Such an
approach would be inconsistent with our own precedent, the
applicable ethical rules, and every other circuit to have
specifically addressed the issue. While we have not expressly
adopted a rule providing that proof of a substantial and particular
relationship between two successive representations may, together
with additional evidence, support a finding of actual conflict, we
have clearly and unambiguously relied upon the relationship between
multiple representations when examining whether an attorney’s dual
relationship with two or more clients infringed upon a defendant’s
Sixth Amendment right to the effective assistance of conflict-free
counsel. See Russell, 892 F.2d at 1214; Olivares, 786 F.2d at 663;
Martinez, 630 F.2d at 362; see also Alvarez, 580 F.2d at 1254,
1257. We have also relied upon the “substantial relationship” test
when reviewing a former client’s motion to disqualify counsel from
pursuing successive and potentially adverse representation of
another client in civil cases. See, e.g., In re American Airlines,
52 972 F.2d 605, 614-16 (5th Cir. 1992) (“This Circuit adopted the
substantial relationship test before the promulgation of the Rules
of Professional Conduct.”). In that context, “[o]nce it is
established that the prior matters are substantially related to the
present case, the court will irrebuttably presume that relevant
confidential information was disclosed during the former period of
representation.” Id. at 614.
The Director relies upon the irrebuttable presumption arising
in the civil disqualification context to argue that the
“substantial relationship” test is really nothing more than a rule
of proof designed to avoid difficult evidentiary hurdles associated
with proving that counsel obtained confidential information in the
course of the first representation, which may be disclosed in the
course of the second representation. We disagree. We have refused
to “reduce the concerns underlying the substantial relationship
test to a client’s interest in preserving his confidential
information.” Id. at 616-18. To the contrary, the substantial
relationship test is concerned with both “a lawyer’s duty of
confidentiality and his duty of loyalty” to a former client. Id.
at 619.
The relevant ethical standards likewise distinguish between
the attorney’s duty not to reveal confidential information obtained
in the course of a prior representation in the course of a second
representation and an attorney’s duty not to represent adverse
interests in the same or a substantially related matter. For
example, ABA Model Rule of Professional Conduct 1.9 contains a
53 blanket provision prohibiting an attorney from accepting subsequent
employment adverse to the interests of a former client in the same
or a substantially related matter. See ABA MODEL RULE OF
PROFESSIONAL CONDUCT 1.9 & cmts. 1, 6, & 10 (distinguishing between
the duty of confidentiality and the duty to refrain from
undermining the work product produced for the former client or
advocating for an interest that is materially adverse to the former
client). Similarly, Texas Disciplinary Rule of Professional
Conduct 1.09 prohibits subsequent employment in a matter adverse to
the former client, not just when the subsequent representation will
probably involve the disclosure of confidential information learned
in the course of the former representation, but also when counsel’s
representation of the second client will call the validity of the
lawyer’s services or the work product produced for the former
client into question, or when counsel will be representing adverse
interests in the same or a substantially related matter. TEXAS
DISCIPLINARY RULES OF PROFESSIONAL CONDUCT 1.09(a)(1-3).
Similarly, although the former Model Code of Professional
Responsibility did not expressly address an attorney’s duty of
loyalty to a former client, we have held that such a duty was
implicit in certain provisions of the Code. See id. at 618
(addressing Canon 9 of the MODEL CODE OF PROFESSIONAL
RESPONSIBILITY, Canon 9); see also ABA MODEL RULE OF PROFESSIONAL
CONDUCT DR 5-105 nn. 36-37 (extending to rule prohibiting
representation of “differing interests” to the successive
representation context). Thus, contrary to the Director’s
54 argument, our Sixth Amendment precedent, our analogous
disqualification precedent, and the relevant ethical standards all
support the proposition that Skelton owed Fletcher, his former
client, not just a duty to preserve any client confidences, but
also a duty to avoid accepting employment that was adverse to her
interests in the same or a substantially related matter. At the
same time, Skelton owed Perillo, his client facing capital charges,
a duty of loyalty, which encompassed a duty to avoid conflicts of
interest by refusing subsequent employment advocating materially
adverse interests, see, e.g., Strickland, 104 S. Ct. at 2065;
Cuyler, 100 S. Ct. at 1717, and a duty to zealously advocate on her
behalf, unhampered by any competing commitments to other clients,
see, e.g., Nealy, 782 F.2d at 1365; Alvarez, 580 F.2d at 1254.
Having set forth those general principles, we proceed to an
analysis of whether Skelton was burdened by an actual conflict
between the interests of his two concurrent clients in this case.
V.
An actual conflict may exist and the Constitution is
implicated when an attorney is placed or places himself or herself
in a situation “inherently conducive to divided loyalties.”
Castillo, 504 F.2d at 1245; Johnson v. Hopper, 639 F.2d 236, 238
(5th Cir. 1981) (internal quotations omitted); Zuck v. Alabama, 588
F.2d 436, 439 (5th Cir. 1979) (internal quotations omitted); see
also Placente, 81 F.3d at 558. “An attorney who cross-examines a
former client inherently encounters divided loyalties.” United
States v. Voigt, 89 F.3d 1050, 1078 (3d Cir. 1996); Lightbourne v.
55 Dugger, 829 F.2d 1012, 1023 (11th Cir. 1987); see also Stephens,
595 F.2d at 1070; Castillo, 504 F.2d at 1245 (involving
representation of government witness against second client). “In
these circumstances, counsel is placed in the equivocal position of
having to cross-examine his own client as an adverse witness. His
zeal in defense of his client the accused is thus counterpoised
against solicitude for his client the witness.” Castillo, 504 F.2d
at 1245. But, in keeping with the requirement for an actual, as
opposed to a mere hypothetical or possible conflict, this Court has also held that something more must be shown to demonstrate that the
inherent potential for conflict actually moved into the realm of an
actual conflict. See, e.g., Olivares, 786 F.2d at 663-64.
That “something more” is amply demonstrated in this case.
Skelton represented Fletcher at her own aggravated robbery trial,
a proceeding in which she originally faced the same charge for the
same murders arising from the same facts as Perillo. Skelton’s
prior representation of Fletcher thus occurred in the same, or at
the very least, in a very closely related criminal matter. From its inception, Skelton’s prior representation of Fletcher featured
the denigration of Perillo as a prominent factor. Indeed,
Skelton’s strategy at Fletcher’s criminal trial was to develop the
most egregious and inculpatory evidence of Perillo’s own guilt, and
by comparison, Fletcher’s innocence.
After Fletcher’s trial, Skelton became closely aligned with
the victim’s interests, strongly encouraging Fletcher’s involvement
with the victim’s families’ and their attempts to independently
56 investigate the crimes. When Briddle came to trial, Skelton
strongly encouraged Fletcher to volunteer her testimony. Skelton
successfully negotiated at least use, and probably full
transactional, immunity in exchange for Fletcher’s pre-trial
statement and subsequent testimony in Briddle’s trial. Thus, once
again, Skelton’s work product in the course of his prior
representation of Fletcher led directly to the development and
preservation of the most damaging evidence against Perillo,
evidence that clearly led to Perillo’s conviction and ensured the
death penalty at Perillo’s subsequent trial. Those circumstances,
and particularly the fact that Fletcher’s immunity agreement
(Skelton’s work product in the prior representation) depended upon
the truthfulness of Fletcher’s incriminating testimony against
Perillo, should have made the potential for conflict obvious when
Pelton approached Skelton about representing Perillo.
Notwithstanding those circumstances, Skelton agreed to represent
Perillo. Having done so, Skelton immediately called Fletcher to
apprise her of the situation. Skelton did not, however, inform
Perillo concerning the details of his past representation of
Fletcher.
The inherent potential for conflict arising from Skelton’s
prior representation of Fletcher would never have come to fruition
if Fletcher had not been subpoenaed to testify at Perillo’s trial.
But she was, and at Fletcher’s request, Skelton left Perillo’s
trial and went to California to represent Fletcher’s interests.
Thus, Skelton agreed to represent the state’s star witness after
57 Perillo’s trial began, and this is not a case of purely serial
representation. See Perillo I, 79 F.3d at 449.11
As Fletcher’s counsel at the California hearing, Skelton owed
Fletcher the “unfettered duty of complete, legitimate support, not
the task of undermining and tearing down” her credibility or his
earlier work on her behalf. Stephens, 595 F.2d at 1070; see also
United States v. Winkle, 722 F.2d 605 (10th Cir. 1983) (vacating
conviction and remanding for determination of whether potential
conflict blossomed into actual conflict where defense counsel
previously represented government witness in a related civil
dispute); Alvarez, 580 F.2d at 1258 (recognizing the “conflict
inherent in allowing defense counsel to simultaneously to advise a
codefendant who has agreed to testify for the government.”); United
States v. Mahar, 550 F.2d 1005, 1008-09 (5th Cir. 1977) (same). “A
lawyer's role encompasses much more than simply advising a
prospective witness to tell the truth; he must take additional
steps to prepare him [or her] to testify.” Alvarez, 580 F.2d at
1258; see also id. (“It is during this preparatory stage that
defense counsel is torn between serving the witness' best interests
in fully cooperating with the government in supplying credible
testimony and the accused's obvious desire to discredit the
witness' testimony. The Constitution does not countenance such
11 In Perillo I, we characterized Skelton’s representation of Fletcher in California and Perillo at trial as “concurrent,” 79 F.3d at 448, and “simultaneous,” id. at 449. While not essential to our disposition, we reiterate here that we reaffirm, on the basis of the entire record as supplemented on remand, that this case involves both concurrent as well as successive representation by Skelton.
58 divided loyalties.”). Although both of Skelton’s clients wanted to
avoid Fletcher’s testimony, their reasons for doing so were very
different. Once Fletcher was directed to return to Texas, that
potential conflict between the two women’s interests ripened into
an actual conflict. From that moment on, Fletcher needed to
testify, as she did at Briddle’s trial, that she was not in the
house when the murders occurred. Perillo needed to show that
Fletcher was more actively involved in the offenses, to impeach
Fletcher’s credibility, to minimize the effect of her testimony,
and to highlight the disparity in punishment for comparable
conduct.
Skelton was laboring under an actual conflict because he had
to choose between undermining the work product resulting from his
prior representation of Fletcher by exposing her to perjury charges
and vigorously pursuing the impeachment of Fletcher. Perillo has
established that Skelton either knew or should have known prior to
Fletcher’s testimony that Perillo’s version of the facts reflected
a more active involvement by Fletcher. That information was
helpful to Perillo, in that it would further Skelton’s trial
strategy by demonstrating that Briddle had even greater control
over Fletcher and by highlighting the potential disparity between
Fletcher’ five year probated sentence and the potential death
sentence in Perillo’s case. That information was potentially
devastating to Fletcher, in that proof that she was more actively
involved than she had admitted at Briddle’s trial would, at the
very least, subject her to criminal perjury charges. See Placente,
59 81 F.3d at 558-59 (an actual conflict may exist when “counsel’s
introduction of probative evidence or plausible arguments that
would significantly benefit one defendant would damage the defense
of another defendant whom the same counsel is representing”);
Perillo I, 79 F.3d at 447 (an actual conflict may exist “when one
client would benefit by a person testifying and one client would be
harmed by it.”); Nealy, 782 F.2d at 1365 (“A defendant is entitled
to an attorney who can make a decision to use or not to use
testimony unfettered by the effect of that decision on his other
client’s case.”) (internal alternations and quotations omitted).
Further, Fletcher was testifying pursuant to a grant of immunity
that was either negotiated by Skelton or obtained during the course
of his representation of Fletcher. An actual conflict exists when
“counsel, unknown to the accused and without his [or her]
knowledgeable assent, is in a duplicitous position where his [or
her] full talents as a vigorous advocate having the single aim of
acquittal by all means fair and honorable are hobbled or fettered
or restrained by commitments to others.” Alvarez, 580 F.2d at
1254. Once Fletcher took the stand, Skelton was in no position to
undermine the validity of Fletcher’s immunity agreement, which was
either negotiated by him or obtained during the course of his
representation of Fletcher. See Stephens, 595 F.2d at 1070; see
also Winkle, 722 F.2d 605.
Skelton’s agreement to represent Fletcher after Perillo’s
trial began makes this case most closely analogous to those cases
in which counsel is still actively representing the potentially
60 adverse interest close to or during trial. In such cases, as in
this one, the actual conflict is most apparent when defense counsel
cross-examines the former client. For example, in Alvarez, 580
F.2d 1251, defense counsel represented multiple clients in a drug
conspiracy case. All of counsel’s clients except one pleaded
guilty. When the government identified two of defense counsel’s
former clients as potential government witnesses in the remaining
defendant’s trial, counsel represented those former clients in a
motion to resist testifying at the remaining defendant’s trial.
See id. at 1254. Counsel lost the battle when, as in Perillo’s
case, the government agreed to grant the two testifying clients
immunity. The Court held that, at this point, and even before the
trial started, there was an actual conflict arising out of
counsel’s “irreconcilable task of at once bolstering [to protect
their rights under their plea agreement] and discrediting [to
protect the rights of the remaining defendant] the testimony” of
the two potential witnesses. Id. at 1257. We expressly held that
even the pre-trial conflict would be sufficient to support its
decision reversing the convictions. See id. Counsel then went on
to conduct a very limited cross-examination of his former clients.
See id. at 1258.
As in Alvarez, this case involves defense counsel’s active
representation of a former client’s interests while that client was
on the stand testifying against defense counsel’s current client.
Skelton’s own testimony, as well as the remaining record evidence,
demonstrates that Skelton thought he could avoid the obvious
61 conflict with a strategy intended to reconcile Fletcher’s and
Perillo’s divergent interests. Thus, Skelton started with the
premise that Fletcher’s testimony was “set in stone,” which
simultaneously protected Fletcher’s interests and limited the
defensive theories available to Perillo. The blended result of
Skelton’s choice was an illogical and internally inconsistent trial
strategy that eludes precise statement and, as developed supra, is
simply not borne out in the record.
Finally, we note that an actual conflict may exist when an
attorney represents two clients whose interests in the outcome of
a matter are different. See Perillo I, 79 F.3d at 447. That
Perillo and Fletcher had divergent interests with respect to the
outcome of Perillo’s trial is made painfully obvious by Fletcher’s
testimony that she was “pleased” with the outcome of Perillo’s
trial and that she does not care whether Perillo gets the death
penalty. Likewise, Skelton’s continuing relationship with
Fletcher, even to the point of obstructing Perillo’s access to
Fletcher for purposes of this habeas proceeding, highlights the
reality of his two client’s divergent interests in the outcome of
Perillo’s trial.12
12 We continue to believe that Skelton’s personal relationship with Fletcher confirms the reality of Skelton’s conflicted position. See Perillo I, 79 F.3d at 451 n.13. The Director argues that this Court’s reliance upon Skelton’s personal relationship with Fletcher as a basis for finding an actual conflict is precluded by this Court’s en banc opinion in Beets. In Beets, this Court limited the application of Cuyler to the multiple representation context, holding that Cuyler does not apply when the alleged conflict is between counsel’s personal interests and his professional duty to the accused. See Beets, 65 F.3d at 1271-73. Instead, Cuyler applies only when there is an actual conflict
62 The Director maintains that any actual conflict was completely
dissipated by Will Gray’s appearance on Fletcher’s behalf at
Perillo’s trial. We disagree. The record establishes that Skelton
continued to actively represent Fletcher’s interests, even after
Fletcher’s afternoon meeting with Gray. Indeed, Skelton protected
Fletcher from perjury charges and ensured that Fletcher’s testimony
would be consistent with her prior testimony by refreshing her
recollection in a private consultation the night before her
testimony. Skelton also ignored his duty to Perillo and protected
Fletcher’s interests by refusing Perillo’s demands that he question
Fletcher on inconsistencies and falsehoods in her testimony that
Perillo has testified were intended to make Perillo look like the
ringleader and to minimize Fletcher’s own involvement. See Winkle,
722 F.2d at 609 (the inherent danger when counsel proposes to
cross-examine a former client “is in what the advocate finds
himself compelled to refrain from doing”) (internal quotations
omitted). Significantly, although Gray appeared briefly at
Perillo’s trial on Fletcher’s behalf, both Skelton and Fletcher
rejected Gray’s only substantive advice by refusing to pursue a
course that would permit Fletcher to invoke her attorney-client
between the adverse interests of two or more clients. Id. We are not persuaded that Beets requires the conclusion that an attorney’s personal relationship with a client is always immaterial when determining whether counsel labored under an actual conflict between the interests of the two clients. Nonetheless, we need not resolve the precise scope of Beets in this case because our decision that there was an actual conflict in this cases does not depend upon Skelton’s personal relationship with Fletcher. There is ample evidence to establish that conflict without reliance upon the more subjective aspects of Skelton’s relationship with Fletcher and her family.
63 privilege. Instead, Skelton coached Fletcher through an elaborated
version of her prior testimony, once again elevating her interests
over Perillo’s by ensuring that Fletcher’s prior testimony went
unchallenged. While Skelton’s continued advice to Fletcher the
evening before the trial and coached cross-examination at trial
technically occurred within that exceedingly narrow window of time,
indeed a matter of hours, that Will Gray at least ostensibly
replaced Skelton as Fletcher’s lawyer, Skelton’s relationship with
Fletcher during that time was at least the type of functional
equivalent of representation that may give rise to fiduciary
duties. See Beets, 65 F.3d at 1267 (noting that Wood v. Georgia,
101 S. Ct. 1097 (1981) did not clearly state whether one of the
competing obligations in that case arose from a formal attorney-
client relationship, and stating that “the lawyer was at least in
the functional equivalent of a joint representation”); see also
United States v. Malpiedi, 62 F.3d at 467-69 (finding that counsel
was burdened by an actual conflict arising from counsel’s informal
advice to a grand jury witness notwithstanding the attorney’s
opinion that there was no attorney-client relationship, that his
communications with the witness was solely for the purposes of
assisting his client, and that the witness was “fair-game” for
cross-examination”); Querner v. Rindfuss, 966 S.W.2d 661, 667-68
(Tex. Ct. App.--San Antonio, writ denied) (recognizing that an
attorney’s advice may give rise to an informal fiduciary duty even
when no formal attorney-client relationship is formed). That
Skelton asked someone else to consult with Fletcher on a limited
64 issue and then rejected that lawyer’s advice cannot, in this case,
vitiate the obvious conflict arising from Skelton’s prior,
concurrent, and in fact continuing relationship with Fletcher.
The Director also argues that any duty owed to Fletcher was
obviated by her consent to Skelton’s dual representation, or by her
waiver of the attorney-client privilege between she and Skelton.
Contrary to that position, there is no evidence in this record that
Fletcher made an informed decision to consent to Skelton’s diligent
representation of Perillo, even if that representation would serve
to compromise her own interest. Likewise, there is no record
evidence that Fletcher intentionally waived her attorney-client
privilege. More importantly, the Director’s arguments in this
regard derail the relevant inquiry by focusing exclusively upon
those ethical rules intended to protect the interests of a former
client for the proposition that a subsequent client simply has no
interests to protect. The point is not whether Skelton’s
obligation to Fletcher may, with the benefit of hindsight, be
technically negated. Rather, the point is whether Skelton
compromised his duty of loyalty and zealous advocacy to Perillo by
choosing between or attempting to blend the divergent interests of
his former and current client. See Strickland, 104 S. Ct. at 2064-
67; Cuyler, 100 S. Ct. at 1718-19; Alvarez, 580 F.2d at 1255, 1258.
The injury arising from such a compromise is not lessened by a
showing that counsel did not simultaneously trample upon the rights
of his or her former client. Indeed, the very essence of a
conflict of interest is that it requires counsel to make a choice
65 between competing interests, and Perillo would not be able to show
adverse effect if Skelton had not chosen Fletcher’s interest over
her own. Therefore, while we consider Skelton’s continuing duties
of confidentiality and loyalty to Fletcher to be strong and
important evidence of Skelton’s actual conflict in this case, we do
not hold that a habeas petitioner can never prevail in a case
involving successive representation absent proof that counsel owed
some discrete and unavoidable legal duty to the former client. Our
focus must remain at all times upon the adequacy of the complaining
defendant’s representation. See Strickland, 104 S. Ct. at 2064-67;
Cuyler, 100 S. Ct. at 1718-19; Alvarez, 580 F.2d at 1255,
We emphasize that this is not a case where the defendant sat
idly by without complaint as to the substance of the government
witness’ testimony, or where the defendant actually agreed with or
relied upon the government witness’ testimony. See Alvarez, 580
F.2d at 1259 (finding conflict where defendant vociferously
objected to the substance of the first client’s testimony and
stating that there is no actual conflict where the defendant agrees
with or concedes the substance of the first client’s testimony).
Perillo vigorously protested the accuracy of Fletcher’s testimony
as it was occurring and urged Skelton to cross-examine Fletcher
on particular factual issues relating to Fletcher’s own
involvement. Likewise, this is not a case in which the defendant,
fully informed of the relationship between her counsel and the
state’s witness, nonetheless insisted upon representation by a
particular lawyer, only to turn around and claim on collateral
66 review that such representation was constitutionally deficient .
See, e.g., United States v. Casiano, 929 F.2d 1046 (5th Cir. 1991);
Olivares, 786 F.2d 659. Perillo’s objection to counsel regarding
the substance of Fletcher’s testimony and her lawyer’s refusal to
follow her instructions are amply supported in this record.
We affirm the district court’s conclusion that Perillo has
established by a preponderance of the evidence that Skelton was
“torn in his loyalty and unable to make a decision purely in the
interest of [Perillo] . . . to whom he owed undivided allegiance.”
Nealy, 782 F.2d at 1366. Having established that Skelton’s
representation of Perillo at trial was burdened by an actual
conflict, we now examine whether that conflict adversely affected
Skelton’s representation of Perillo at trial.
VI.
Cuyler’s adverse effect standard is set intentionally lower
than Strickland’s actual prejudice standard. Under Strickland, a
petitioner must “show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 104 S. Ct. at
2068. Under Cuyler, the focus is upon whether the actual conflict
burdening counsel’s performance had an actual and adverse effect on
counsel’s performance. Once it is established that there was an
adverse effect on counsel’s performance, prejudice, in terms of an
effect on the outcome of the defendant’s trial, is presumed. See
67 Beets, 65 F.3d at 1265.13
An adverse effect on counsel’s performance may be shown with
evidence that counsel’s judgment was actually “fettered by concern”
over the effect of certain trial decisions on other clients.
Perillo I, 79 F.3d at 448. As we held in Perillo I, when a
petitioner’s claim is premised solely upon what a conflicted lawyer
failed to do on his or her behalf, the petitioner must generally
13 There are at least two rationales supporting the application of a lowered standard of prejudice in Cuyler cases, both of which are demonstrated in this record. First, a cold record may not reveal “the erosion of zeal that may ensue from divided loyalty.” See United States v. Castillo, 504 F.2d at 1245; see also Strickland, 104 S. Ct. at 2067 (“[I]t is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.”); Johnson, 639 F.2d at 239 (discussing the “nigh impossible task of making a meaningful qualitative analysis of trial counsel proficiency, in a case involving divided loyalties, from an examination of the transcript alone”). That premise holds particularly true when, as here, our task is to peruse the trial transcript “for subtle variations in demeanor and lack of vigor and depth” during cross-examination. See Johnson, 639 F.2d at 239; see also Winkle, 722 F.2d at 609. “Unlike competency of representation, where an attorney’s conduct may fall anywhere along a continuum ranging from the incompetent to the superlative, conflict-laden representation is not susceptible of such fine gradations. Such representation is invidious, often escaping detection on review, and is tantamount to the denial of counsel itself.” Alvarez, 580 F.2d at 1256-57. The Supreme Court has also recognized that there are institutional reasons supporting “a fairly rigid rule of presumed prejudice for conflicts of interest.” See Strickland, 104 S. Ct. at 2067. Defense counsel owes the client a duty of loyalty, which includes the “duty to avoid conflicts of interest.” See id. at 2064. In addition, trial courts can play an important role in situations inherently rife with conflict by ascertaining whether the defendant understands the consequences of the potential conflict and nonetheless wants to continue with the present lawyer. See Id. at 2067. That rationale for Cuyler’s lowered standard of prejudice is likewise at play in this record. At Perillo’s trial, the trial court, the prosecutors, and Skelton himself showed every solicitude for Fletcher’s knowledge and understanding of the implications of the actual conflict burdening Skelton’s performance, without making any inquiry intended to protect Perillo’s interests.
68 establish adverse effect by demonstrating that there was some
plausible alternative defense strategy that could have been
pursued, but was not, because of the actual conflict. See id. at
449 (relying upon Beets, 65 F.3d at 1284 (King,J., dissenting),
which in turn relied upon the Second Circuit’s test for measuring
adverse effect premised upon “what an attorney failed to do").14
In this case, Perillo must show, not only that Skelton’s
performance was compromised, but that the compromises revealed in
the record were generated by the actual conflict between Fletcher’s
and Perillo’s interests.
The Director argues that there was no adverse effect on
Skelton’s performance in this case because Perillo has not
demonstrated the required causal relationship between the actual
conflict and any compromise in Skelton’s advocacy on Perillo’s
behalf. The Director first argues that there can be no finding of
adverse effect because Skelton subjectively believed that
Fletcher’s and Perillo’s interests were without significant
conflict. Thus, the Director maintains that, as a matter of
subjective fact, Skelton did not deliberately elevate Fletcher’s
interests over Perillo’s. We disagree. Skelton’s testimony is
incredible in light of abundant record evidence tending to
establish that the actual conflict was painfully obvious to
everyone concerned. Moreover, “[a]fter the fact testimony by a
14 While our analysis does not depend upon the distinction, we note that the record, including the record developed on remand after our prior disposition, establishes that more is involved in this case than mere omissions on Skelton’s behalf.
69 lawyer who was precluded by a conflict of interest from pursuing a
strategy or tactic is not helpful. Even the most candid persons
may be able to convince themselves that they actually would not
have used that strategy or tactic anyway, when the alternative is
a concession of ineffective assistance resulting from ethical
limitations.” Malpiedi, 62 F.3d at 470. We have never premised
the finding of an actual conflict or adverse effect upon evidence
that the attorney intentionally compromised his professional
loyalties; it is enough that there was an error in judgment that
adversely affected Skelton’s performance. See Castillo, 504 F.2d
at 1245 (“We do not ascribe to Castillo’s appointed attorney nor to
the appointing judge improper motives, but they are chargeable with
an error of judgment fatal to a fair trial.”).
Similarly, the Director argues there can be no finding of
impeaching Fletcher would not have aided Perillo’s defense. “But
a showing of adverse effect does not require a but for inquiry.”
Nealy, 782 F.2d at 1365 (finding adverse effect where the record
suggested that defense counsel decided against calling a particular
witness because he feared the witness would harm the petitioner’s
case, rather than because he also represented the potential
witness); see also Malpiedi, 62 F.3d at 469. To the contrary, the
defendant need only establish that there was a plausible
alternative defensive strategy that could have been pursued, but
was not because of the actual conflict of interest.
We conclude that Perillo has proven that Skelton’s performance
70 was adversely affected by the actual conflict of interest between
Fletcher’s and Perillo’s interests. The record demonstrates that
Skelton’s representation of Perillo was fettered by competing
concerns for Fletcher’s welfare from the moment the state
subpoenaed Fletcher to testify. That conflict was apparent in
Skelton’s pretrial advocacy, including his decision to protect
Fletcher’s interests by securing Gray’s advice on how to handle
Fletcher’s testimony, by reviewing Fletcher’s testimony to ensure
that her Perillo testimony would be completely consistent with her
Briddle testimony, and by his adoption of trial strategies that
would bolster Fletcher’s credibility, treat her as a friendly
witness, and permit Fletcher’s damaging Briddle testimony to remain
“set in stone.” The adverse effect on Skelton’s performance is
most dramatically illustrated by the content and structure of
Skelton’s cross-examination of Fletcher, together with his
attendant refusal to follow Perillo’s explicit instructions by
vigorously cross-examining Fletcher and his refusal to allow
Perillo to testify. That adverse effect is also illustrated by
Skelton’s desperate retreat to a completely illogical defensive
position during the guilt phase, in which Skelton’s only offering
on Perillo’s behalf was to have a police officer repeat the most
damaging elements of the state’s case against Perillo, as
supplemented by the even more incriminating and inadmissible facts
contained in Perillo’s unsigned second statement. We have no
trouble concluding, based upon the particular factual context of
this case, that Skelton compromised his duty of loyalty to Perillo,
71 his capital client on trial, in order to accommodate his concurrent
duty to avoid undermining his work product on Fletcher’s behalf by
exposing her to prosecution for perjury. Skelton may have
convinced himself that the accommodation he crafted between the two
women’s interests would be good for both, but Perillo had the right
to counsel unfettered by these competing concerns. See, e.g.,
Nealy, 782 F.2d at 1365.
Perillo has also demonstrated that there were plausible
alternative defense strategies that could have been pursued, but
were not, because of the actual conflict between Fletcher’s and
Perillo’s interests. Those plausible alternatives are detailed in
our prior opinion, as well as in the district court’s order. See,
e.g., Perillo I, 79 F.3d at 450-51 & n.12. Having reviewed the
entire record, including the record on remand, we are persuaded
that Skelton’s failure to pursue these plausible alternatives,
which could only have strengthened Perillo’s defense under
Skelton’s chosen trial strategy, was in fact caused by the actual
conflict between his obligations to Fletcher and Perillo. We
therefore hold that Skelton’s representation of Perillo was
burdened by an actual conflict which adversely affected Skelton’s
performance throughout Perillo’s trial.
CONCLUSION
The district court’s judgment granting Perillo’s 28 U.S.C.
§ 2254 petition for relief from her capital conviction and sentence
is AFFIRMED and the cause is REMANDED for further proceedings
consistent with this opinion.
Related
Cite This Page — Counsel Stack
Perillo v. Johnson, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perillo-v-johnson-ca5-2000.