The petition for writ of certiorari to the Supreme Court of California.

Denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth [494 U.S. 1039, 1040] and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 231, 2973 (1976) (MARSHALL, J., dissenting), I would grant the petition for certiorari and vacate the death penalty in this case. Even if I did not take this view, I would grant the petition because it raises several important and recurring questions concerning a criminal defendants Sixth Amendment right to the assistance of counsel unburdened by any conflict of interest. First, on what showing must a trial court explore a possible conflict on the part of a defendants attorney? Second, if a defendants attorney had an actual conflict, must the defendant demonstrate that the conflict adversely affected the attorneys performance in order to obtain a new trial?

On the eve of his trial for several murders and robberies, petitioner William George Bonin moved to replace Earl Hanson, who had been his attorney for over a year, with William Charvet. The prosecution opposed the motion principally on the ground that substituting Charvet would create two conflicts of interest that could jeopardize the effectiveness of Charvets representation. First, Charvet had maintained an attorney- client relationship with James Munro, Bonins alleged accomplice and a key prosecution witness against him, during which Charvet and Munro had discussed the facts of the case. Second, the prosecution maintained that Charvets retainer agreement likely included a provision giving him the literary rights to Bonins life story. The trial court initially denied Bonins motion to substitute Charvet for Hanson, in large part because it found that Charvets relationship with Munro created an actual conflict of interest. The court later permitted Charvet to represent Bonin, however, without addressing either conflict and without obtaining a waiver from Bonin of his right to conflict-free counsel.

Bonin subsequently was convicted of 10 counts of murder and robbery and sentenced to death. The California Supreme Court, in a split decision, affirmed the convictions and sentence, rejecting Bonins argument that Charvets alleged and actual conflicts of interest deprived Bonin of effective assistance of counsel. The court held that the trial court did not err by failing to explore the alleged literary rights agreement because the trial court had not been presented with sufficient evidence of such an agreement. Although the State Supreme Court did find that the trial court erred in allowing Charvets substitution after learning of his- [494 U.S. 1039, 1041] rela tionship with Munro, it refused to reverse the convictions and sentence on the ground that Bonin had not demonstrated that Charvets performance as counsel was adversely affected by this conflict of interest . 47 Cal.3d 808, 765 P.2d 460 (1989).

I would grant Bonins petition to determine whether the trial court had a duty to inquire into the potential conflict of interest arising from the alleged literary rights deal between Charvet and Bonin. It is well established that the right to effective assistance of counsel carries with it "a correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 1103, 67 L. Ed.2d 220 (1981). It is also apparent that a literary rights agreement may seriously undermine an advocates loyalty to his clients interests. In a passage quoted in the California Supreme Courts opinion, the American Bar Association underscores the dangers of such arrangements:

"A grave conflict of interest can arise out of an agreement between a lawyer and an accused giving the lawyer the right to publish boo