text:
WHEAT v. UNITED STATES
- 1980-1989
Legal provision: Right to Counsel
Chief Justice William H. Rehnquist: Mr. Cleary, you may proceed whenever you're ready.
Mr. Cleary: Mr. Chief Justice, and may it please the Court:
The reason the Petitioner chose Mr. Iredale as his attorney in this case was best stated by the trial judge, who said
"were I in his position, I would want Mr. Iredale representing me, too, because he did a fantastic job in the prior trial and I can fully understand why he wanted him as his attorney. "
This case turns on the question of right to counsel of choice.
I would suggest that it's a disqualification issue clear and simple.
The issue is presented where all parties waived any potential conflict, and the question decided here was the question as to the timing.
The timing in this case was that the attorney following basically the guidelines of Cuyler v. Sullivan entered the case at the time he could, when he disposed of the other two.
When the second guilty plea was entered, he indicated I am now going... I am retained by this defendant who has seen my superior trial skills and wants me.
He has his independent attorney, this is not someone else, the attorney knows of the performance and says we want him.
The trial judge says, when presented initially with it, if the clients have no problem and the prosecutor has no problem, I see no problem.
At this time, the prosecutor said we don't plan to call this person as a witness, but there is a potential, a possibility.
No time previously was this individual considered as a witness.
The following Monday, a written objection is filed to the appearance of this attorney because (1) he would not be involved, Gomez-Barajas would not be involved, but now there's other person who wasn't going to be a witness will now be a witness.
That witness would provide no adverse information against the Petitioner.
That witness would provide adverse information and substantiate the Government's principal witness that he was a large-scale dope dealer because, in fact, he did deliver marijuana to this individual's home.
The key question was, did that marijuana get to the Petitioner's home.
The answer was there was no showing in the record, and the Government just assumed that that connection was sufficient to knock out counsel.
I think it's also important to note in this case is the District Court finding, and these things are so critical for, I think, an appellate tribunal.
In this case, the Court said based on the representations of the Government, so there was no factual finding.
It was assumed that what the Government presented in its written papers were sufficient.
Second, I have no choice but to file... find irreconcilable conflict, not a discretionary, a balancing of the issues.
There was no hearing.
Unidentified Justice: Excuse me.
Were any of the Government's representations contradicted at that time?
Mr. Cleary: Yes, Your Honor, they were.
Flat out.
Throughout the initial hearing.
Unidentified Justice: Not conclusions, but representations, specifically what was contradicted.
I'm not sure that means that the district judge was not making any evaluation of his own.
It would be a natural way to say it based on the Government's representations, there being no contradiction of those.
I have no choice.
Mr. Cleary: Right.
Unidentified Justice: What factual representation was contradicted?
Mr. Cleary: The factual representation was contradicted, first, as to Mr. Iredale being... I mean, Mr. Wheat, the Petitioner, being a possible witness against Mr. Gomez-Barajas, if his deal fell through.
The arrangement as to the non-marijuana charges.
That is to say, the other charges and the Government's representation was that, gee whiz, if that fell apart, Mr. Wheat might be a possible witness against Mr. Gomez-Barajas, and on that record, we have flatly contradicted by the assertions of Mr. Iredale that there is no way he could be a witness in that transaction.
So, we do have a classic confrontation.
Unidentified Justice: Were they talking about the prosecution calling him as a witness or the defense?
Mr. Cleary: No.
In that case, Your Honor, there was an assertion by the prosecutor that he thought there might be a possibility.
However, in his written statement of which the judge based the decision on, he stated only as to the deal.
I think both sides acknowledged that Gomez-Barajas would not be a witness.
Unidentified Justice: Well, is that somewhere in the record?
So that we know that the District Court credited that rather than the Government's representation?
Mr. Cleary: Well, the Government didn't say he was going to be called as a witness.
The Government said that the reason that Gomez-Barajas was going to be involved was if the plea fell apart, then the Petitioner might be a possible government witness against Gomez-Barajas.
The Government, in its representation to the Court, did not even suggest that Mr. Gomez-Barajas would be a witness for them or the defense.
Unidentified Justice: Perhaps I'm just not getting all of it, but in your answer to Justice Scalia's question, you say the Government.
The Government represented that someone might be a witness.
Mr. Cleary: That's... maybe there's... there's two individuals.
Gomez-Barajas and Bravo.
Bravo was a witness in the trial.
There's no question as to that.
Unidentified Justice: But when the Government is speaking before the trial, all they can do is represent as to possibilities.
They can't say in fact yes, he will surely be called.
Mr. Cleary: Well, I think in the sequence in this case, sticking to the record that we have on the 22nd of August, the statement of the... at the first time Bravo entered a plea and indicating that now Mr. Iredale is the attorney for the Petitioner, the Government says, at this time, we have no plans to call him.
They already made the adjudication.
They have the trial the following week.
There is the possibility.
So, I think at this time, what we have so close to the trial after the plea is entered an indication that he is not a viable true-to-form and anticipated witness.
Unidentified Justice: Then, the Government changed its representation shortly after that, didn't they?
Mr. Cleary: That's correct.
Unidentified Justice: And are you saying that the Government's second representation was contradicted?
Mr. Cleary: Yes.
I think the defense said, yes, he is going to be calling him as a witness.
What was the contradiction was as to whether or not that witness would give evidence that would, in effect, be adverse towards the Petitioner.
And I think that the concern was that what the witness had to say and in the case we had... and what's important, I think, is the time sequence on this.
The original case, Mr. Iredale represented Gomez-Barajas.
In April of 1985, some several months before, appointed counsel represented the witness Bravo.
Bravo relieved the appointed counsel and at that time, Mr. Iredale was representing two defendants with the approval of the court and no objection from the Government.
And I think then to see the sequence of events where they have no objection to multiple representation as such, to shift after Iredale has successfully engaged them and really done damage to their witnesses, the same witnesses the Petitioner would be facing, changed the ball park.
I think, further, that what the Court also said after it found an irrebuttable presumption of conflict, it said no waiver is possible.
It didn't say a question about an intelligent knowing and voluntary waiver, which I think is an appropriate inquiry for a court, but said no waiver is possible.
Unidentified Justice: Mr. Cleary, did you ask for a hearing?
The trial is on Tuesday and these arguments are taking place on Monday.
Did you ask for an evidentiary hearing?
Mr. Cleary: What happened was, Your Honor, that at first, the previous Thursday is when Bravo, the witness, entered the plea, and the court indicated it had no objection and at that time, the representations were made that all parties involved had consent and the court said, but I will give the Government an opportunity to object if it wishes to object, and what had happened is the Government filed the written paper, the memoranda, on the following Monday.
The trial is scheduled for Tuesday, and at that time, on Monday, given the Government's objections, the court never inquired as to a hearing and the offer was made and there was a clear cut offer of proof, that these individuals would testify that they (1) had no conflict and that they were willing to waive any type of conflict, potential or actual.
Unidentified Justice: Am I correct that you did not ask for an evidentiary hearing?
You just submitted it on offers of proof?
Mr. Cleary: I think that they asked for the question of taking a waiver, but I think the judge foreclosed it by saying waivers are not possible.
So, the inquiry of what could be said as to the nature of the conflicts or their intelligent waiver was never considered below.
I think that in this case, the representation as to conflict are minimal.
I think that the concern is we have like a double standard.
In Cuyler, this Court found where we had two attorneys representing three defendants, and the first one went first to trial and was convicted of murder.
The attorney still representing the other two and found that there was multiple representations.
The court held that multiple representation doesn't work to the disadvantage, that the right to counsel of choice is that it's a benefit.
You should have the ability to choose who your attorney might be.
In that opinion, there was at least some concern given for the deference that was owed to the choice of the client and the attorneys involved.
In Cuyler, we had a situation where there was a potential conflict and this Court found an implicit waiver.
In this case, we suggest that what we have at most is a speculative or potential conflict and should it not be able to be overcome by an expressed waiver,--
Unidentified Justice: Mr. Cleary, you're not suggesting that in a voluntary knowing waiver on the part of a defendant is the final answer to any conflict, are you?
That that ought to just guarantee the selection of this particular lawyer?
Mr. Cleary: --I am suggesting that a knowing intelligent and voluntary waiver, I mean one fully explored by the court,--
Unidentified Justice: I think the question asked you can be answered yes or no, and then you can explain your answer.
Mr. Cleary: --Yes.
Unidentified Justice: You say that a voluntary knowing intelligent waiver can concludes the matter?
Mr. Cleary: Yes.
Unidentified Justice: Even though you could say there would be a conflict?
Mr. Cleary: Yes, Your Honor.
If I can give an example.
Unidentified Justice: Yes.
Mr. Cleary: The famous Loeb Leopold case was two University of Chicago law students who murdered a young boy, and they both made accusations, one accusing the other.
They picked a single attorney, Clarence Darrow, to represent them, and could the prosecutor come in and move to disqualify like here, on the grounds that there would be a conflict of interest between the two or should not the two be allowed to make the choice that may be notwithstanding the conflict, their best interests might be served by a state escaping the scaffold, and I think that in that context, we could have an actual conflict that can be waived.
In the context of this case before the Court now, my suggestion is there's only two potential conflicts.
Unidentified Justice: But how about, you know, the ABA standards on conflicts, state bar standards on conflicts?
You know, they are not favored, to put it mildly.
Mr. Cleary: The standards the Court refers to is that they lean towards, and I would say as a general rule, the preference is to have separate counsel, and to that extent, where I track the other lawyers.
However, each one of those professional rules gives way and defers to the right of the defendant to choose, and I think that we have to protect that right.
Unidentified Justice: Even in the face of a known conflict?
Mr. Cleary: Even in the face of a known conflict.
Would I be in a better position to choose my attorney or have the Government choose the attorney for me?
And I think given that tension, I would like to think I could choose my own attorney.
Unidentified Justice: Yes, but you can carry that to... you can say, you know, my real favorite is someone who isn't admitted to the bar.
Mr. Cleary: Your Honor is correct.
I think there's... the Court, I think, in Chandler v. Fretag referred to it as an unqualified right.
However, I think the right to demand counsel and, therefore, would have to be a lawyer.
Your Honor is correct.
Unidentified Justice: Why?
I mean, on your theory, if I think someone who is not a lawyer is better, the only reason we demand a lawyer is to protect the defendant even when he doesn't want to protect himself.
He thinks he knows better, that he'll be better off with his non-lawyer.
Mr. Cleary: --I would have to stick to the terms of the Constitution which said counsel, and I think that the meaning and understanding of counsel at the time it was adopted in 1791 would mean a lawyer, and also at that time would mean also the right to choose a lawyer because this Court really didn't evolve the alternative appointed counsel until Powell v. Alabama.
Unidentified Justice: Mr. Cleary, do you think the public has no right to have a trial proceeding that appears in all respects to be fair, including not having an attorney represent two defendants if there is an apparent conflict of interest?
Mr. Cleary: I think that the public's interest has to be balanced against those on trial.
I think if there was a problem as to, and this gets into the issue of was it an intelligent waiver, a knowing waiver or a voluntary waiver, I think the Court can interject itself, and there are decisions, for example, when the individual might be an attorney that's involved and wants to represent both people.
I think there are some questions as to whether or not that would be voluntary by virtue of the relationship.
My suggestion is that the public would be more scornful, that if prosecutors could come in and move to disqualify the best qualified defense lawyers and think that the person has to take someone other than the person's choice of counsel, when, in our system, we face in a criminal context the Government.
And you have to think that the person who is with you is your advocate, your soldier, your protector.
Unidentified Justice: Do you base your alleged right entirely on the Sixth Amendment?
Mr. Cleary: Yes, Your Honor.
I think that the Sixth Amendment as developed by this Court, and I think it's rather clear cut and I think, if anything, I'm here with the pristine pure right to counsel because I have 1791.
When you look at the authorities, what you had was only the right to counsel of choice.
In Powell v. Alabama, 1932, this Court held that due process because the Sixth Amendment didn't apply to the states, that there was a right to appointed counsel in a death case, but Alabama already had it, and you evaluated it, and you said that the right to counsel at that time existed only by statute.
'42 Betts v. Brady didn't find it, said no, doesn't apply.
Unidentified Justice: The Government takes the position that the right to counsel of choice, if it exists at all, is not found in the Sixth Amendment, but in due process.
Mr. Cleary: I would suggest that the argument was evolved by this Court in the context of the due process application because the only way it could be extended to the states would be through the Fourteenth Amendment due process clause.
So, I would say in embryonic form, that was the only justification.
I think since Gideon, it's very clear that the Sixth Amendment inheres in the right to counsel, so that you have it applied to the states.
Unidentified Justice: Yes, but the Government says that entitles you to adequate legal representation, but doesn't extend to a choice.
Mr. Cleary: I would say that I am not in a position to comment on the due process clause under the Fifth as was applied in the case when I had the Sixth, which, in historic traditional concept, gives the right to counsel of choice.
Unidentified Justice: Do you think the Court before... before the Court grants the request to appoint this counsel, can demand a waiver?
It sounds to me like you say counsel of choice goes to the Court, says I want to discharge my counsel and have another.
Mr. Cleary: Well, I don't think that it can be asserted in unreasonable fashion.
I think it has to be a reasonable opportunity and limits could be placed on it.
If it's a dilatory--
Unidentified Justice: What kind of limits?
Mr. Cleary: --Well, I can only use the rule of thumb of reasonable.
It should be given a reasonable opportunity to assert it, and if it will not delay the trial.
In this particular case,--
Unidentified Justice: Well, I know, but can the court insist on a waiver of what appears to be a conflict of interest?
Mr. Cleary: --If the court makes the inquiry in a federal context under Rule 44(c), the court can ask if there's a waiver.
I don't think the court can force a waiver from someone.
If it finds there is no waiver, then I think it has to say other counsel are going to be necessary.
Unidentified Justice: Well, so, he could... the court could turn it down, if there's... if a waiver is declined?
Mr. Cleary: If a waiver... if there is not an intelligent waiver, the court doesn't have to accept it.
If there's joint representation, and--
Unidentified Justice: I take it then on your position that if one of these persons is convicted and the other is acquitted, the person who is convicted is a fellow who got the waiver, that he is stuck with it, he just can never come back and say, look, that judge shouldn't have allowed this, there was obvious conflict, I was denied due process.
Mr. Cleary: --That was the situation in Cuyler v. Sullivan, where the one who was convicted and two were acquitted, and the question was this Court, and I think it was over two dissents or at least commentary that there should have been an inquiry by the court.
This Court found an implicit waiver, and in this context where we have an expressed waiver by all the parties, and this is not government witnesses, this is not the Government like we have former federal prosecutors, and the question is, yes, I think that the waiver.
This Court would have to sit down and do what it's doing now, to go through, to make the test, is it speculative, potential, actual conflict.
Unidentified Justice: Well, at least you would certainly have to, in my example, you certainly then have to at least relitigate again voluntariness, whether you were really intelligent and whether you were informed of all the circumstances, and whether you really were aware of the seriousness of the conflict when you went in.
Mr. Cleary: I think that there has to be an inquiry, and it wouldn't have to take very long.
The question is Rule 11 usually takes ten to fifteen minutes as the Court knows.
In this type of case, we have a classic example in Krebs, a Sixth Circuit case that I cited, where it was Judge Peck who wrote the opinion and the trial judge was supersensitive.
Do you want other counsel appointed, you have appointed counsel available, and he did it in a matter of minutes and that was the end of it, and in that case, it was an actual conflict because the prosecutor intimated that the attorney representing him may be involved in the criminal misconduct, and I think in that context, from an appellate tribunal, you would want a cleaner sanitized clear cut established waiver rather than the speculation about what constitutes what type of conflict and to disqualify attorneys.
Unidentified Justice: I suppose... would he also waive any claim of ineffectiveness by the counsel's performance during trial?
I thought he was going to be good, but it turns out he was wholly ineffective.
Mr. Cleary: I think the right to counsel of choice is different than the right to effective assistance of counsel, and I think one is--
Unidentified Justice: Well, when trial counsel fails to object to testimony or lets some in because it favors one of his clients but not the other, is that ineffectiveness?
Mr. Cleary: --I think that the Court, to the extent that it would ask the person, do you want to fly under your own flag, and I think we see judges do this all the time, do you want attorney X representing you, and they say unequivocally yes, then I think we should give the individual that choice, and I think an effective--
Unidentified Justice: I don't know how you're going to really protect the court system from two or three more trials about counsel if you permit... if a judge is just foreclosed from turning down this choice where there are conflicts.
Mr. Cleary: --I think, Your Honor, that what we're trying to suggest is that in this case, the judge used the atom bomb to disqualification.
There were other procedures in this case.
For example, Mr. Iredale not to examine that particular witness, and there were also other alternatives, cures that could be used in this case, other than total disqualification.
We didn't have it.
And I think that in the context of this case, where we do have something so fundamental as the right to counsel of choice, and we see that and I would say it's analogous to Faretta and it's not to be measured by Cronic or Strickland, which is the lowest minimum level of effective assistance of counsel.
Unidentified Justice: Mr. Cleary, in Faretta, we have seen many examples since Faretta of relitigating a question of whether the court was justified in letting them proceed on their own.
Mr. Cleary: Your Honor,--
Unidentified Justice: The trial court can't win in some of these situations.
If he says no, you're not capable of proceeding on your own, it's appealed, I should have been able to represent myself.
If he says yes, you are capable of representing yourself as you want to, he later comes in and says if I had any sense, I never would have tried that.
Mr. Cleary: --I think we all have to assume risks that are made in waivers.
The defendants in the police station often waive counsel thinking it's for their mythical benefit, and find out that they have to live with that mistake much later on.
Unidentified Justice: If I thought we'd have to live with it, I could easily accept the argument you're making with this, but I cannot imagine that you really think that these people are going to live with the waivers they make.
Let's assume the most voluntary informed waiver you can imagine, this counsel is going to represent all three of us and then what happens at trial is that counsel in order to save two of them allows in testimony or, indeed, elicits testimony that absolutely condemns the third.
Counsel said, well, I did the best I could, I, after all, was representing all three.
You acknowledged that I could represent all three.
You waived it.
Now, are we really going to allow that to happen?
Mr. Cleary: First of all, I think the Court denigrates the role of defense counsel because most of us are not going to put ourselves in that situation, and in Cuyler, there was a representation that certain deferences were going to be.
In that situation, no defense counsel would take himself into that position, but there can be cases where--
Unidentified Justice: We have no problem if we posit that no defense counsel will ever put himself in a situation of a bad conflict.
We don't have to worry about any of this.
I mean, that's the problem we're talking about.
Mr. Cleary: --But I think there has to be some point where the individual... in the context of this case, we have the Government using it as a tactical advantage to knock out counsel who face the same witnesses, and when you have the reason to want this particular attorney and you see not demanipulative, not be stumbling, not be mistaken guidance but a firm choice, even though it has with it certain risks, and the Court is correct, I think just the same way we have pleas of guilty, can't everybody say that the plea of guilty is wrong and that's why we have a Rule 11 hearing.
I think that the time involved in the context of this case, where all three parties waive, it was a speculative conflict that in this particular instance, there should be, I think, the right to go forward with your chosen advocate.
I would like to suggest that Faretta, I think, would be the analogous rather than Cronic v. Strickland, for determining it.
This Court made reference to that in Cronic as to distinguishment, lining up with Flanagan in every circuit that has treated it when the right has been denied.
It is done without a showing of prejudice.
I'd like to reserve my remaining time.
Chief Justice William H. Rehnquist: Thank you, Mr. Cleary.
We'll hear now from you, Mr. Kellogg.
Mr. Kellogg: Thank you, Mr. Chief Justice, and may it please the Court:
The absolute position taken by Petitioner is that he has an unqualified right to waive any conflicts of interest arising out of multiple representation stemming from the Sixth Amendment.
Now, we acknowledge at the outset that a criminal defendant in most cases has a right to choose any lawyer he wants, but that right does not stem from the Sixth Amendment, and it's an inherently qualified right.
It is not like the right to counsel or the right to self-representation which must be enforced directly by the Court in every serious criminal case.
Now, the right to choose your counsel is inherently subject to a number of significant qualifications which Petitioner ignores.
For example, the lawyer one would choose may be unwilling to represent you or his fees may be too high or he may have other commitments which conflict with the court's schedule and make him unable to appear.
He may not be admitted to the bar of the court.
He may be a lay man or a disbarred attorney.
All these sorts of reasons can limit to some extent the defendant's choice of counsel.
It is also limited by the existence of certain serious conflicts of interest.
These conflicts can be very many types.
For example, the lawyer he wants may be a former prosecutor who, while he was working for the Government, was involved in the same criminal matter or the lawyer may have been retained by third parties with interests adverse to that defendant or he may be a fact witness at the trial or implicated in the same criminal conduct with which the defendant is charged.
Courts have universally held that under those circumstances, the conflicts of interest override the defendant's right to choose his counsel and permits disqualification.
Now, the most common of these types of conflicts arises in cases where one lawyer represents more than one defendant in a given criminal case, and Rule 44(c) was designed to deal with that situation.
States that... the District Court has to inquire into every instance of multiple representation, and take such actions as may be appropriate unless there's good cause to believe that no conflicts are likely to develop at trial.
The Rule 44(c) does not itself state what actions, what measures might be appropriate if conflicts are likely to arise, but the advisory committee note to the rule makes clear that disqualification of counsel is legitimate option.
The dangers created by multiple representation that Rule 44(c) is designed to address is primarily centered around the fact as noted during the previous argument that the interest of the two defendants may diverge at trial.
Disparity of evidence in one... between the defendants may require the lawyer to forego presenting a witness or making an argument or taking other action that would help one of his clients at the expense of the other.
Unidentified Justice: Mr. Kellogg, let me throw out a question that troubles me about the case to be sure you don't overlook it.
You're mainly directing your remarks to the case in which the new counsel would be the sole attorney for the defendant, and I'm particularly concerned in this case about the fact that this lawyer was willing to be additional counsel and he could have kept the same counsel and this man just work along with him.
Why wouldn't there be adequate protection against the concerns you address if he let them both sit at counsel table?
Mr. Kellogg: Well, first of all, from the record, it's not actually clear whether Iredale was going to represent him by himself or whether he was just--
Unidentified Justice: He originally wanted to do it by himself, but it seemed to me that it was rather clear that he was willing to serve as additional counsel and just cross examine these witnesses that seemed so important to him, and I hope you cover that point as fully as you can before you get through because that's what troubles me about this case.
Mr. Kellogg: --Well, it raises problems because he was representing the other two defendants alone.
So, no other counsel would be protecting their interests independently, and with respect to his representation of Wheat, it would have involved one of his clients being a principal... not a principal witness, but certainly a witness with adverse information to the Petitioner at the trial and it was also particularly troubling about this case is the fact that he was representing defendants at widely disparate levels of what was a fairly large conspiracy.
He was representing the lead defendant, who is the ultimate source of the marijuana.
He was representing a middle level defendant, Petitioner, who was responsible for brokering large amounts of marijuana, and one of the small fish at the bottom who delivered one van load.
Unidentified Justice: But I don't see why the other lawyer wouldn't be perfectly able to look out for all the pitfalls that would concern the Court in that situation.
If you assume the other lawyer is completely independent and competent, which I gather he was from the record, he would surely, it would seem to me, understand the potential for conflict and surely there is some potential for conflict here.
Mr. Kellogg: Well, Rule 44(c) does say that the primary burden is placed on the lawyer to anticipate conflicts that are likely to develop, but there's a number of reasons why they can't do that, and Rule 44(c) goes on to state that even the defense counsel is not going to be able to anticipate all the sorts of conflicts that might arise at trial because he's not going to know fully what the nature of the Government's case is.
Also, there's the problem that in representing more than one defendant, it's difficult to give independent advice to each defendant if the multiple representation favors one at the expense of the other.
Now, with Petitioner having a separate counsel to represent him, that concern would be alleviated somewhat, but with the other two defendants not having separate counsel, that concern... that's a very legitimate concern of the District Court.
The fact that the motion to disqualify--
Unidentified Justice: Clarify one thing for me.
During the trial of this case, the man that wanted to come in, I forget his name now,--
Mr. Kellogg: --Iredale.
Unidentified Justice: --Iredale, was not going to represent another defendant during that same trial, was he?
Mr. Kellogg: No.
It would have been--
Unidentified Justice: If the trial had been almost terminated and a plea taken, but during the hearing itself, there wasn't any possibility of conflict of that kind.
Mr. Kellogg: --Well, he would have been representing a witness against Petitioner.
Unidentified Justice: But the witness would have been, in effect, a former client.
Mr. Kellogg: Yes.
Unidentified Justice: But the other lawyer--
Mr. Kellogg: He had not yet been sentenced.
Unidentified Justice: --And if it looked like it was really... he was not doing an effective job, why couldn't the court say, well, I think we better have the other lawyer examine this particular witness.
Mr. Kellogg: Well, that would have been one option.
Unidentified Justice: Why wouldn't that have been an adequate option?
Because... I know you say that there's no absolute right to counsel of your choice, but surely there is some value to letting a defendant have choice if all the other conditions are met, that he's a lawyer and that he's competent and so forth and so on.
There is some value the Court should respect, is there not?
Mr. Kellogg: There is, but the concerns here are really twofold.
First, there's the concern as the Chief Justice and Justice Scalia noted during Petitioner's argument, with the problem of adequate waivers.
Each defendant has a right to conflict-free representation, that he can waive only if he understands and appreciates all the dangers involved.
Unidentified Justice: Now, that argument would support a rule that will never respect a waiver because it may have litigation about it later.
We just won't allow waivers.
I mean, you can't push that too far.
There's got to be some situations in which a defendant can waive conflicts, and there's always a risk, you're absolutely right, there's always a risk in these situations in post-conviction proceedings they'll say I didn't know what I was doing just as you have in Faretta, but can that be an adequate reason for never accepting a waiver?
Mr. Kellogg: I think it certainly... it could be.
Rule 44(c) could be written to forbid all cases of multiple representation.
It would serve significant interests of the criminal justice system in the finality of judgments and the independent interest in the fairness and integrity of the proceedings.
Now, it's written, it doesn't go that far.
It takes a lesser position to the effect that the trial judge must have some discretion to override waivers in certain circumstances.
We're not suggesting a standard in which all cases of multiple representation would lead to disqualification, but only when there's a substantial likelihood of a serious conflict.
Unidentified Justice: What was that substantial likelihood here?
Mr. Kellogg: Substantial likelihood was created by, first, as I mentioned, disparate positions of the defendants in a criminal conspiracy.
Gomez-Barajas was the lead defendant.
Petitioner was a lesser defendant.
Whenever you have a lead defendant and the lesser defendant represented by the same attorney in a criminal proceeding, there's always a danger that the lead defendant will exercise too much influence upon the decisions of the lesser defendant.
This particularly is true in narcotics cases--
Unidentified Justice: You mean the lawyer representing the lesser defendant?
Mr. Kellogg: --That's correct.
Well, decisions... that's correct.
Decisions that the lawyer will take on behalf of that defendant.
Unidentified Justice: Well, in almost every criminal trial, there is one dominant and one secondary character, and, so, you would almost say that there is an absolute rule that the judge is never required to accept a waiver when there are two defendants, one of whom is dominant.
Mr. Kellogg: If there is reason to think that there is a hierarchial relationship between them, I would say that the potential for conflict is sufficient that the District Court would have discretion under those circumstances to disqualify the joint representation.
I'd like to explain to you in a little more detail the nature of the concerns here.
Even if the District Court goes to great lengths to get a knowing and intelligent waiver, it is still going to be subject to collateral attack on various grounds.
The defendant can easily claim that he did not foresee the actual conflicts that would develop or that he was coerced by his co-defendant or that he was misled by incompetent counsel, and there's a strong interest in the finality of the judgments in preventing such collateral attack and such uncertainty.
There is also, as Justice O'Connor pointed out, an independent interest in the fairness and the integrity of the proceedings.
Even if the defendant is fully aware of the dangers of multiple representation, he might accept it because at the behest of a more powerful defendant, co-defendant, or in order to help a more culpable friend or family member.
Now, the--
Unidentified Justice: Well, Mr. Cleary takes the position, the rather clear position that waiver is always permitted, and that, at first blush, sounds like a hard rule.
But it seems to me that your position is that the judge can always decline the request for joint counsel.
I can't imagine an instance in, say, a narcotic trial, conspiracy, where the waivers would be allowed.
So, it seems to me that your position is equally clear and hard-lined on the other side.
Mr. Kellogg: --I think not.
If the evidence in a particular case is roughly equal against two defendants, if there doesn't seem to be any coercive relationship between them, then there would be no reason that the District Court could not allow joint representation in that case, even though it's certainly possible that conflicts would arise.
Unidentified Justice: Mr. Kellogg, perhaps I misunderstood your position.
I thought it was that the... where there's a conflict, the District Court would not be reversed for abusing discretion if he said no, but that he in exercise of his discretion could allow it.
Mr. Kellogg: He could allow it.
He could allow the representation.
That's correct.
But in the exercise of his discretion, if he does disallow the representation, it can rarely be reversed because there... the possibility for potentials of conflict are rife in any joint representation.
Unidentified Justice: Well, I'm sort of hung up on Justice Stevens' point.
If I agree with that, still and all, in this case, there was not even in the particular trial here a request for joint representation alone, but with another attorney.
Could you spell out to me what were the conflict problems with the other defendants?
How could his representation of the other two alone be prejudiced by his taking on joint representation of Wheat?
Mr. Kellogg: Well, first, with respect to Bravo, who is going to be the witness at trial against Wheat, Iredale would have received confidential information in the course of representing Bravo.
When Bravo took the witness stand, that confidential information might have been available as a good source of impeachment of Bravo.
Helpful to the Petitioner.
So, he has a choice.
He either helps the Petitioner by burying his former client or actually his current client because the client hasn't been sentenced yet in front of the very judge who's going to sentence him, or else he holds off and doesn't cross examine vigorously and thereby hurts the defendant that he's currently representing.
There's also the difficulty--
Unidentified Justice: Yes, but before you leave that witness, in fact, they didn't even cross examine him, did they?
Mr. Kellogg: --No, they did not.
In fact,--
Unidentified Justice: So, this is totally conjectural.
Mr. Kellogg: --I don't think it's conjectural because the decision has to be made in advance of trial.
It is clear that--
Unidentified Justice: But that's my point.
If you've got both lawyers there, why couldn't you see what he said?
Then, let the judge say, no, no, he's been talking about things that you probably have confidential knowledge of that I don't think you should cross examine as the lawyer.
Why couldn't the judge wait until he saw what the witness had to say, and he would have found out there was no reason in the world to deny this man the lawyer he wants?
Mr. Kellogg: --Well, he--
Unidentified Justice: Based on that particular argument.
Mr. Kellogg: --The judge knew what the witness was going to say because the judge had taken his guilty plea.
Unidentified Justice: Then, why not... then, there was no need for cross... well, I'm sorry, I shouldn't--
Mr. Kellogg: Bravo did provide evidence adverse to Petitioner.
He testified as to two overt acts in the indictment and he corroborated the testimony of the main witness against Petitioner.
Unidentified Justice: --And the Petitioner didn't dispute those two overt acts?
Those are the deliveries to the intermediary, were they not?
Mr. Kellogg: That's correct.
Now, I was going to say there's also the problem of the appearance of impropriety in representing both the witness and the defendant in the sense that the testimony of one can be curtailed to benefit the other in exchange for the cross examination being curtailed to represent the witness.
Now, for example, Bravo pleaded guilty to criminal conspiracy and acknowledged that he had participated in one single overt act, one delivery of marijuana.
He said that was the extent of my involvement.
Now, if his involvement is, in fact, greater than that, he's involved in more than one delivery and perhaps a delivery with Petitioner, then what could be more convenient than having the same counsel representing both, not cross examining Bravo about other acts, and thereby not bringing out any connection with the Petitioner.
Now, I recognize that there's not--
Unidentified Justice: And who would that hurt except the Government?
Mr. Kellogg: --Pardon?
Unidentified Justice: That would hurt the Government, not bringing that out, but how would that hurt either of the defendants?
Mr. Kellogg: Well, I think there's an independent interest here in the fairness and integrity of the criminal justice system which would not be served by allowing such an appearance of impropriety.
There's really two separate interests here.
The interest in the finality of judgments and the interests in the fairness and integrity of the particular proceedings.
Now, Petitioner--
Unidentified Justice: What about the other witness?
What about the other one that he was representing?
Mr. Kellogg: --Well, Gomez-Barajas, as I noted, was the lead defendant in the case.
He has an interest certainly in not being called as a witness against Petitioner or otherwise being embarrassed by Petitioner's defense, which could be served by having his attorney representing Petitioner.
Unidentified Justice: What is the status of his case at this point?
Mr. Kellogg: He had been acquitted on the main marijuana conspiracy and several substantive counts.
He still had other narcotics counts and tax charges to which he had entered a guilty plea, and he was awaiting sentence.
There had been a negotiated plea agreement and the District Court had indicated that he would be able to withdraw his plea if the judge did not accept the sentencing recommendation that had been made, but there had been a sentencing recommendation made in his case.
Unidentified Justice: I think your substantial likelihood test might be satisfied in the case in the sense that there would be a substantial likelihood of the conflict, but the trial judge could, nevertheless, take the waiver.
Mr. Kellogg: Well, certainly if the court--
Unidentified Justice: I know you submit the trial judge would have discretion not to take the waiver in that circumstance.
May he take the waiver?
Mr. Kellogg: --If there is a substantial likelihood of a serious conflict of interest, the trial judge still has a possibility of being able to cure that short of a waiver.
For example, through a severance or some other action.
Unidentified Justice: Well, there wasn't going to be any question of a severance in this case?
Mr. Kellogg: No.
Unidentified Justice: These were going to be trials on end, I guess, end to end.
The possibility that he could take the waiver.
Mr. Kellogg: Yes.
Unidentified Justice: And--
Mr. Kellogg: Assuming he can do something to protect against conflict.
Unidentified Justice: --And is it also your position that where there are joint trials, two people at the same trial or two people who have been charged in the same charge but going to be tried one after another, are you saying that there are circumstances involving those facts that would not present a substantial likelihood of conflict?
Mr. Kellogg: Yes.
There could be circumstances in which a substantial likelihood of a conflict was not presented.
That's correct.
Unidentified Justice: This is not it.
Mr. Kellogg: But this is not it.
However, I would stress that our principal interest in the standard fashion by the court in this case, rather than the particular facts of this case, the facts could be strong.
But the important point that we want to stress is that the two positions adopted by Petitioner in his brief, the absolute position that waiver cures everything, is unacceptable and contrary to the views of the established disciplinary standards in every Court of Appeals.
The other standard that Petitioner puts forward in his brief is to try to say that only when there is an actual conflict of interest can disqualification be permitted, and we would submit that that standard makes no sense in this context because the decision has to be made prior to trial.
As the advisory committee notes, you can't anticipate all the problems that are likely to develop in the course of a trial, and if you wait for them to develop, then it's too late.
you have invited a mistrial in the case.
The important standard that we would suggest is that the judge, trial judge finds a substantial likelihood of a serious conflict of interest and he does have discretion to disqualify counsel.
The final point that I would like to make is that even if Petitioner could somehow show that the District Court abused its discretion in this case because there wasn't a serious likelihood of conflict of interest, he still has failed to show any way in which he has been prejudiced by that decision.
There's been no challenge here to the sufficiency of the evidence or the fairness of the trial that he actually received or the competence of his counsel.
Now, the right to the assistance of counsel, this Court has repeatedly stressed, is recognized not for its own sake, but for the ability of the accused to get a fair trial.
Unidentified Justice: And tell me again why must prejudice be shown.
Mr. Kellogg: Pardon?
Unidentified Justice: Tell me again why must prejudice be shown.
Mr. Kellogg: It must be shown because of this Court's statements in Strickland and Cronic as... that the purpose of the Sixth Amendment is served as long as Petitioner received a fair trial at which he received the assistance of competent counsel so as not to cast any doubt on the reliability of the verdict.
If Petitioner is completely denied counsel, then the Court has held that the rule of automatic reversal is appropriate, but in a case where Petitioner receives the assistance of counsel and there's no question that there's a reliability of verdict, there's no reason to set that verdict aside.
Unidentified Justice: How would one ever prove prejudice, really?
Mr. Kellogg: One would prove it by showing that the trial one actually had was unfair within the meaning of Strickland because the performance of one's counsel fell measurably below the standards of the profession and undermines the reliability of the verdict.
Unidentified Justice: Well, then, you get a new trial anyway.
Mr. Kellogg: That's correct.
Unidentified Justice: That really means there's no remedy whatsoever for violating the right that's asserted here, if there is such a right, because if you require that standard, you... the judge... what the trial judge should always do is disqualify counsel, and he... as long as he's got somebody out there who crosses the threshold of minimum effectiveness, he cannot commit reversible error.
Mr. Kellogg: That's true, but there's no reason to think that the trial judge would not conscientiously--
Unidentified Justice: There's a lot of trial judges I know who don't like to be reversed.
Mr. Kellogg: --But in this respect, the right to counsel of choice would not be really any different from, for example, a District Court's decision on the severance motion or a discovery motion, which is reviewable only in the context of general review of a fair trial.
Unless the Court has any further questions.
Chief Justice William H. Rehnquist: Thank you, Mr. Kellogg.
Mr. Cleary, you have seven minutes remaining.
Mr. Cleary: Thank you, Your Honor.
First, I would start off with in Bravo's case, the attorney or substitute attorney agreed not to impeach Mr. Bravo and to indicate the, I think, lucidity and accuracy of the testimony of that witness on behalf of the Government.
He got the benefit of the bargain.
He was promised an FYCA probation, thirty days halfway house.
He testified, all right, the Government would recommend thirty days, go away, the Government so recommended.
So, we have Government satisfaction with his testimony.
As to Gomez-Barajas being the source, that is wrong.
The facts of this case indicate there were several enumerated sources of marijuana, not Gomez-Barajas, and the reason he wasn't was there was a prior acquittal and Vidal was still shaking in his boots about the examination that he might have.
The question that Justice Stevens raised is absolutely true, that there was almost on the knees begging that this super-star defense lawyer be joined to the defense team.
Please, let me have Mr. Iredale.
Let us add him to the trial team.
That's 1 RT 53-154.
However, also, there was two points for two of the witnesses, Vidal and one of the other witnesses, and the defense lawyer again says, please, please, let me have Mr. Iredale cross examine these witnesses.
That was denied.
That was not available.
Unidentified Justice: I don't see what his agreement not to... he promises that he won't cross examine which one was it?
Mr. Cleary: Bravo, Your Honor.
Unidentified Justice: Bravo.
That doesn't prove anything except that perhaps he was being induced by one of his conflicts not to do something that maybe he should have done.
Mr. Cleary: Well, I think--
Unidentified Justice: I mean,--
Mr. Cleary: --I understand the Court's position and that we're getting into certain imponderables, except that in this case, he had the advantage of two separate defense counsels.
Not only for Mr. Wheat but also the co-defendant and neither one examined Bravo.
Unidentified Justice: --Another thing.
When he said, could I be added to the defense team, what does that mean?
Was it clear that he would be in a subordinate position to someone else who would make the final call?
If he was on the defense team and still had the decisions on those matters that were matters raising his conflict, it wouldn't do anything of any assistance to simply put him in with somebody else.
Mr. Cleary: I think the only one would be as to Bravo, and I think it could be easily sanitized as an alternative other than total disqualification to say that he cannot examine Bravo, and in the context of this case, I think that would have been reasonable.
The two other issues that I find every interesting is the Washington case, the former federal prosecutor, came out of the Ninth Circuit, and in that case, the trial judge did almost like here.
This man is a former prosecutor.
He may have had confidential information.
Appearance of evil, whap, he's off the case.
The Ninth Circuit reversed, remanded, and in that case, the former federal prosecutor, we had different clients.
The client, the former client is objecting, and the court held in that case, this appearance alone won't cut it because you have to honor the right to choice, and remanded it to determine if there was confidential information.
The same procedure that could have been done here.
Diozzio is, I think, a very close case, where the Government has negotiated with two tax lawyers.
They were willing to stipulate and at the time of trial, the Government says we're going to call the two tax lawyers as witnesses.
So, they knock them off of the case, and they offered a stipulation as to what they would be, witnesses in the case.
They could not question the witness, but be an actual witness.
And the First Circuit reversed because of the tactical manipulation involved, and I think that there has to be some credence given to the right to choice.
The last thing I would say is that we have in our society at least the concept of an ordered liberty, a fundamental right of choice, the right to go with the one you want.
That kind of oozed out of Faretta and I think that rises up in this particular case.
But what's very, very important is the fact that we can't review the imponderables.
What would Iredale have done in negotiations?
They were close negotiations in this case.
Could he have finalized that?
What would Iredale have done on Vidal?
How can I prove those things?
It's impossible for me and should I suffer the detriment?
I think that this case is analogous to Faretta, and I think that it has to be a showing that this Court will enforce in a limited context, in the context of these facts, which is a potential speculative conflict where all parties waived, that there must be a Sixth Amendment right to counsel of choice.
Thank you.
Chief Justice William H. Rehnquist: Thank you, Mr. Cleary.
The case is submitted.
Unidentified Justice: The honorable court is now adjourned until Monday next at ten o'clock.


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The wind farm industry has been the fastest growing element of the renewables in the US. Despite the political obstacles facing developers, on-shore operations are expanding, and offshore operations are expected to kick off in the next few years along the East Coast. An unwelcome sign of that success may be the increased scrutiny being applied to the industry by environmentalists. The focus of environmentalists has been the impact of industrial wind farms on birds, particularly raptors entitled to special protection under federal law, such as bald and golden eagles.
Local opposition to wind power projects itself is not a novelty. The Cape Wind project, proposed for an area offshore of Nantucket, has been fighting – and in most respects overcoming – well-financed local opposition for well over a decade. But wind power projects have largely flown under the radar of environmentalists, whose natural bent would be to encourage renewable sources. One sign of change was an enforcement action taken by the Department of Justice under the Migratory Bird Treaty Act (MBTA) against Duke Energy in Colorado last November, the first ever against a wind farm operation.
The consent decree entered in that case obligated Duke Energy, among other things, to apply for permits under the Bald and Gold Eagle Protection Act, a statute with less broad coverage than the MBTA, but which had a newly developed permitting program (see 50 C.F.R. 22.26). Significantly, the Fish and Wildlife Service has modified that program to allow permits, formerly limited to 5 years, to be issued for periods up to 30 years, thereby providing certainty throughout the expected operational lifetime of a wind farm. 78 Fed. Reg. 73707 (Dec. 9, 2013).
Environmentalists are now taking dead aim at that extension. In an April 30, 2014 letter to the Department of the Interior, the American Bird Conservancy provided notice of its intent to sue for violations of NEPA, the Endangered Species Act and the Bald and Golden Eagle Protection Act because of the agency's authorization of thirty year eagle "take" permits. In giving the notice, the Conservancy particularly noted that the Fish and Wildlife Service, in establishing the program in 2009, had stated that a permit period of five years or less was appropriate "because factors may change over a longer time such that a take authorized much earlier would later be incompatible with the preservation of the bald eagle or the golden eagle." 74 Fed. Reg. 46856. The National Audubon Society is considering similar legal action.
Because neither the MBTA nor the Bald and Golden Eagle Protection Act have citizen suit provisions, another, less successful focus of environmentalists has been to attempt to bootstrap avian protection issues on other agency permitting processes, like challenges to the permitting authority of the US Bureau of Ocean Energy Management and the Corps of Engineers
The take-away: if you are planning a wind farm project, you better be prepared to lawyer up to defend against what could be meritless, but expensive and project-delaying, law suits.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
© Davis Wright Tremaine LLP
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ESP briefs Court in its historic rehearing of the Bilski case (2008)Tuesday, April 8th, 2008
BOSTON, Massachusetts, USA — April 8, 2008 — End Software Patents (ESP) has filed an amicus curiae brief in the Court of Appeals for the Federal Circuit's (CAFC) rehearing of the In re Bilski case. The rehearing could lead to the elimination of patents on software. ESP executive director Ben Klemens said, "This is an historic opportunity to fix the US patent system, as the Bilski rehearing will directly address the boundaries of the subject matter of patents. In our brief, the End Software Patents project supports the Supreme Court's long-held position that computer software should not be patentable, and has highlighted to the Court the real economic harm software patents cause the US economy."


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Book Search
Understanding Piketty's Capital in the Twenty-First Century
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Published December 2nd 2014 by Routledge
Leading Contemporary Economists
Economics at the cutting edge
Series: Routledge Studies in the History of Economics
This book describes the important contributions of several contemporary economic figures including recent Nobel Laureates. Describing their work and putting it into an historical perspective, these chapters explain how their work constitutes a major contribution to the discipline of economics and...
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Fifty Major Economists
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Series: Routledge Key Guides
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Empirical Post Keynesian Economics: Looking at the Real World
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Post-Keynesian Macroeconomics
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Series: Routledge Frontiers of Political Economy
Edited by three very well known academics in the field and contributed to by John Smithin, Laurence Moss and G. C. Harcourt, this volume reflects the breath of the honouree's interests and as such it covers a wide range of topics including political economy, labour economics, history of economic...
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Memory Stick: Economics
Economics: The Basics; Fifty Major Economists; The Basics of Essay Writing
Routledge's best-selling student guides in Economics are now available on a handy memory stick, with plenty of room for your own notes and essays. Economics: The Basics introduces the key issues in contemporary economics. Using case studies ranging from the coffee plantations of El Salvador to the...
Published September 17th 2007 by Routledge
Empirical Post Keynesian Economics
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This text highlights the major empirical questions and issues facing Post Keynesian economics today. Featuring contributions by leading Post Keynesian economists, it focuses on public policy and real-life analysis of this vibrant and dynamic economic theory. In language that is accessible to...
Published October 15th 2006 by Routledge
A New Guide to Post-Keynesian Economics
Series: Routledge Studies in Contemporary Political Economy
Eichner's classic A Guide to Post-Keynesian Economics (1978) is still seen as the definitive staging post for those wishing to familiarise themselves with the Post-Keynesian School. This book brings the story up-to-date.Of all the subgroups within heterodox economics, Post-Keynesianism has provided...
Published August 16th 2001 by Routledge


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An improved double implanted and aligned LDD transistor comprising a gate having a central alignment member and a pair of outboard alignment members having portions contiguous with the gate oxide layer. A lightly doped junction is aligned with the central alignment members and a heavily doped junction is aligned with the outboard alignment members.
1. An LDD transistor comprising a semiconductor substrate bearing thereon a gate insulating layer and a gate, characterized in that
said gate includes a central portion and a pair of outboard portions straddling said central portion, each of said central and outboard portions having laterally spaced alignment edges,
first doped source and drain regions in said substrate have their facing ends in alignment with said aligment edges of said central portion,
second doped source and drain regions in said substrate having their facing ends in alignment with said alignment edges of said outboard portions,
said first doped source and drain regions being more lightly doped than said second doped source and drain regions, and
said central portion and said outboard portions each include a conductive region, contiguous with said gate insulating layer, whereby said conductive regions extend from one of said outboard portion alignment edges to the other of said outboard portion alignment edges.
2. The LDD transistor as defined in claim 1 characterized in that said gate comprises an inverse-T shape wherein the distance between said alignment edges of said central portion defines the channel length of said transistor and the distance between said alignment edges of said central and outboard portions defines the length of said lightly doped source and drain regions.
3. The LDD transistor as defined in claim 2 characterized in that said central portion has a thickness dimension, normal to said lateral dimension, which is large enough to prevent the implantation of dopant therethrough into said substrate and said outboard portions include a first section having a thickness dimension which is less than said thickness dimension of said central portion such that dopant may be implanted into said substrate therethrough so that said lightly doped source and drain regions underlie said outboard portions.
4. The LDD transistor as defined in claim 3 characterized in that said outboard portions include a second section overlying said first section and the cumulative thickness of said first and second sections is such as to prevent the implantation of dopant therethrough into said substrate.
5. The LDD transistor as defined in claim 4 characterized in that said central portion and said first section of said outboard portions are conductive and said second section of said outboard portions is insulating.
6. The LDD transistor as defined in claim 4 characterized in that said central portion and said first and second sections of said outboard portions are conductive.
7. The LDD transistor as defined in claim 4 characterized in that said central portion and said second section of said outboard portions are insulating and said first section of said outboard portions is conductive.
8. The LDD transistor as defined in claim 5 characterized in that said central portion and said first section of said outboard portions comprise different conductive materials.
9. The LDD transistor as defined in claim 6 characterized in that said central portion and said first section of said outboard portions comprise different conductive materials.
10. The LDD transistor as defined in claim 4 characterized in that said central portion comprises a stack of layers having different etch characteristics, whereby etching thereof may be accurately controlled.
11. The LDD transistor as defined in claim 10 characterized in that said stack of materials includes an insulating layer sandwiched between conductive layers, and said second section of said outboard portions is conductive.
The present invention relates to an improved LDD transistor which avoids spacer induced degradations and exhibits reduced hot-electron effects and short-channel effects, and to several methods for its fabrication.
Recently, semiconductor device miniaturization has been driven toward smaller and smaller devices, in the sub-micron range, by means of advanced silicon fabrication technologies. As this miniaturization trend continues toward higher integration density in VLSIs and improved performance, the devices approach physical limits predicted by operating principles. For example, since reduction in device dimensions is not usually accompanied by a corresponding reduction in source-to-drain voltage, higher electric fields can be expected to be generated across the channel. Therefore, in devices with an effective channel length of 1 μm or less, simply scaling down the device dimensions, without changing the supply voltage, generally results in deteriorated performance and often causes device failure. In order to overcome degraded performance, various constraints are imposed on device design.
One of the most important problems to overcome in realizing submicron VLSIs is the hot-electron effects. On the one hand, it is desirable to decrease the channel length in order to obtain faster devices and to increase packing density. On the other hand, unless reduction in device dimensions is accompanied by a corresponding reduction in the supply voltage, higher electric fields will be generated in the substrate. Such intensified electric fields cause deterioration in device reliability. Alternatively, suitable design modifications may be introduced into the device to overcome or mitigate the effect of the intensified electric field.
It is well known that one of the severest limitations imposed on the miniaturization of transistors in VLSIs is the very high electric field across the channel, which causes hot-carrier injection into the gate oxide. Under the influence of the very high electric field, carriers (electrons or holes) originating from the channel current, which gain sufficient energy, may be injected into the gate oxide in the vicinity of the drain. These trapped carriers cause device instabilities, such as threshold voltage shift and transconductance degradation.
The device illustrated in FIG. 1 represents a conventional transistor 10 wherein n+ implanted source 12 and drain 14 junction regions in semiconductor substrate 16 are self aligned with gate 18 located upon a thin gate oxide layer 20. (It should be understood that although I will be referring almost exclusively to n doped regions, p doping is also comprehended.) Absent a reduction in the supply voltage, the likelihood of the above-described hot-electron effects is increased as dimensions are reduced and the source and drain get closer.
One solution that has been successful in reducing the electric field peak has been the addition of lightly doped n- regions between the n+ regions and the channel which cause some of the channel electric field to drop therein. In recent years various device processes, such as double-diffused drain (DDD) and lightly-doped drain (LDD), have been developed to incorporate the n- regions. These have been widely studied to ascertain their effect on alleviating hot-electron effects in short channel n-type MOSFETs. It should be noted that although the nomenclature of these design techniques refers to changes in the drain region, the MOSFET devices are generally symmetrical and the similar changes are made in both the source and drain regions.
A device 22 made by the DDD fabrication method is illustrated in FIG. 2. It includes a semiconductor substrate 24 upon which are deposited a thin gate oxide 26, such as SiO2, and a conductive semiconductor gate 28, which may be made of polycrystalline silicon (polysilicon or poly). The source and drain junction regions each include a first lightly doped (n-) implant 30 of a fast diffusing material, such as phosphorus, which is self aligned with the edge of the gate 28, which serves as a mask for this purpose. The source and drain also include a second, more heavily doped (n+) implant 32 of a slower diffusing material, such as arsenic, which is also self aligned with the same edge of the gate 28. After the dopant implants have been introduced, a long (1 hour), high temperature (>1000� C.), drive-in is utilized to diffuse the dopant materials into the substrate and to electrically activate them. Because of their differential rates of diffusion, the faster diffusing phosphorus will be driven deeper into the substrate and also will be driven laterally further beneath the gate than the slower diffusing arsenic.
Studies of the DDD devices indicate that while they are satisfactory in some respects, i.e. they do reduce somewhat the channel electric field Emax, their inherently deeper junctions, caused by the dopant being driven downwardly into the substrate, degrade the short channel effects by causing punchthrough and threshold voltage falloff of the transistor. The length (Ln -) of the n- buffer region 30 between the n+ junction 32 and the channel region 34 should be accurately controlled to precisely modify the channel electric field Emax. However, this is not possible with this technique because it relies upon the diffusion of atoms for locating their rest positions. Furthermore, while the electrical field may be reduced by interposition of a lightly doped region, this technique inherently requires high dopant doses in the n- region in order to allow the remote diffusion to occur.
The LDD device 36, shown in FIG. 3, was developed to overcome the disadvantages of the DDD. It includes a semiconductor substrate 38 upon which is deposited a gate oxide layer 40 and a gate 42. Lightly doped, n- source and drain junctions 44 are implanted into the substrate to be self aligned with the edges of the gate 42 which serves as a mask. Then, insulating outboard spacers 46, preferably made of SiO2 are deposited adjacent the gate to define Ln -, and the heavily doped n+ source and drain junctions 48 are implanted into the substrate 38 to be self aligned with the outboard edges of the spacers 46. It can be seen that the resultant structure has certain similarities with the DDD, particularly in the location of the n- region. However, a high drive in temperature is not needed because Ln - is set by the spacer width and may be accurately controlled.
Studies of the LDD devices also indicate a critical defect in this structure, attributable to the remote location of the n+ junction from the edge of the gate. This defect mechanism, known as spacer induced degradation, causes electrons to be trapped in the oxide of the n-/SiO2 spacer interface and induces a positive charge adjacent the surface of the n- at that interface. The positive charge causes a high series resistance and prevents depletion of the n- region. As a possible cure for this defect, it has been suggested to increase the dopant dose in the n- region. However, doing so would cause the n- region to be very similar to the n+ region and the channel electric field would not be lowered significantly. Another suggested cure has been the introduction of a long, high temperature drive-in step to laterally drive the n+ into closer alignment with the gate edge. Unfortunately, this will also drive the n- regions deeper and closer together, further reducing the channel length and increasing the short-channel effects.
It is the object of the present invention to provide a MOSFET design which provides self alignments for both n+ and n- source-drain implants while avoiding spacer induced degradations.
It is a further object of this invention to provide a MOSFET design which offers an excellent structure for CMOS processes in which minimum thermal processing is necessary.
The LDD transistor of my invention may be constructed, in one form, by providing a semiconductor substrate supporting a gate oxide layer and gate/mask means, wherein the gate/mask means includes a central alignment means and an outboard alignment means, the outboard alignment means being contiguous with the gate oxide layer. Lightly doped source and drain regions have their facing ends in alignment with side walls of the central alignment means and heavily doped source and drain regions have their facing ends in alignment with side walls of the outboard alignment means.
FIG. 1 is a side sectional view of a conventional single implant MOSFET device,
FIG. 2 is a side sectional view of a conventional double-diffused drain, double implanted MOSFET device,
FIG. 3 is a side sectional view of a conventional lightly-doped drain, double implanted MOSFET device,
FIG. 4 is a side sectional view of an inverse-T gate LDD transistor device, in accordance with my invention,
FIGS. 5a through 5f show the salient process steps in the fabrication of the device of FIG. 4,
FIG. 6 is a side sectional view of an LDD transistor device with a conductive spacer, in accordance with my invention,
FIG. 7 is a side sectional view of an inverse-T gate LDD transistor device having a stacked gate, in accordance with my invention, and
FIG. 8 is a side sectional view of an inverse-T gate LDD transistor device having a sandwiched stacked gate, in accordance with my invention,
FIGS. 9a and 9b show the preliminary process steps of an alternate method for producing the inverse-T gate LDD transistor device shown in FIG. 7, and
FIG. 10 is a side sectional view of the inverse-T gate LDD transistor device of FIG. 4 having been SALICIDED.
In FIGS. 4, 6, 7 and 8 there are illustrated several embodiments of my invention. In the transistor of each embodiment, the substrate 50 has implanted therein lightly doped n- source and drain regions 52, establishing a channel 54, and heavily doped n+ source and drain regions 56. A gate insulating layer 58 overlies the substrate. I have uniquely designed the gates to mask the dopant implantation process so as to accurately establish the length Ln - of the lightly doped implant and to prevent spacer induced degradation. Clearly, optimizing the implant locations and the junction depth is critical for the device designer. As the dimension Ln - is increased, the maximum electric field (Emax) and the likelihood of the hot electron effect decreases. However, this increase in length also carries with it a higher overlap capacitance which slows the device.
In these configurations of my device, the dopant profile can be simply and accurately controlled without resorting to a thermal drive-in step. Annealing serves two functions in device processing with regard to dopant implants. It is used to alter the dopant profile both laterally and in depth, and it electrically activates the implanted ions. In the process of my invention, accurate dopant profiles are achieved by the selection of appropriate masking and implantation energy, so that annealing is only required for dopant activation. Therefore, rapid thermal annealing (RTA) may be accomplished, by subjecting the device to a very high temperature for a very short time, e.g., 1000� C. for 10 seconds. This step will not enable significant diffusion to occur. Thus, my process is compatible with CMOS fabrication, in which both n and p channel devices are formed upon the same wafer, because the p-type dopant, boron, is a faster diffuser than the n- type dopants, arsenic or phosphorus. It should be clear that as applied to a CMOS wafer, a lower temperature anneal would be required for the p-type devices. The RTA parameters of time and temperature are insufficient to appreciably drive even the boron.
The device of FIG. 4 includes a gate/mask 60 upon the thin oxide layer 58, in the form of an inverse T. It comprises a thick central trunk 62, whose width is selected to define the length (LC) of the channel 54, and a pair of thin outboard legs 64, the trunk and legs being made of conductive material, preferably a heavily doped silicon. Insulating spacers 66, preferably made of SiO2, overlie the thin outboard legs 64, thereby adding substantial thickness to those portions.
A series of essential fabrication steps for making the transistor device of FIG. 4 is illustrated in FIGS. 5a through 5f.
FIG. 5a: a photoresist pattern 68 has been deposited upon a conductive layer 70 overlying the thin gate oxide layer 58 atop substrate 50. The layer 70 is preferably a heavily doped silicon, in either the polysilicon, microcrystalline or amorphous form and about 3500Å thick.
FIG. 5b: layer 70 is partially removed, as by etching, leaving a thick central trunk 62. Instead of removing the entire layer, as for a conventional LDD transistor, it is thinned to leave an outboard layer 72 of about 200 to 1000Å. Care must be taken so as not to overthin the conductive layer.
FIG. 5c: if an n-type device is desired, a phosphorus (n-) dose is implanted through the outboard layer 72, as indicated by arrows A, to form the lightly doped junctions 52. Implantation may not occur through the thick central trunk 62 which serves to mask the channel region 54.
FIG. 5d: sidewall spacers 66 are formed by depositing an insulating layer, such as CVD SiO2, and anisotropically etching it so that the outboard extent of the spacers defines the length Ln-.
FIG. 5e: the extent of layer 72 outboard of sidewall spacers 66 may then be removed, leaving outboard legs 64. This completes the definition of the inverse-T gate structure 60.
FIG. 5f: The sidewall spacers 66 atop the outboard legs 64 serve as masks to offset the arsenic (n+) dose, implanted as indicated by arrows B, to form the heavily doped junctions 56. Of course, it should be understood that the n+ implant may be made through the thinned layer 72, and that its extent outboard of the sidewall spacers may be removed as a final step, rather than as described with respect to FIG. 5e.
It should be noted that unlike the conventional LDD, the n+ source/drain implants are self-aligned to the polysilicon gate, eliminating an n+-to-gate offset which gives rise to spacer induced degradations. In contrast to the conventional DDD structure, which normally requires an additional n-drive-in to achieve an approximation of a desired Ln - dimension, the optimum Ln - dimension is readily set, by determining the width of the oxide sidewall spacer 66 (I have made the sidewall spacer 0.22 μm). No post implant drive-in is required and dopant activation may be effected by rapid thermal anneal (RTA). The application of minimum thermal energy allows the junctions to be shallow and the dopant redistribution to be substantially nonexistent, insuring high punch-through immunity.
In the alternative embodiment illustrated in FIG. 6 the gate/mask comprises a central conductive trunk 74 flanked by conductive sidewall spacers 76, both of which may be doped polysilicon. The conductive sidewall spacers effectively extend the gate laterally outwardly so that the self-aligned n+ junctions 56 are aligned to the gate.
The fabrication process may be improved by the modification of forming the gate as a stack of different materials so as to provide inherent etch stops. Even in the preferred FIG. 4 embodiment, great care must be taken to avoid overthinning of the outboard legs 64 when layer 70 is etched. To this end, I propose the structures illustrated in FIGS. 7 and 8. In FIG. 7 the gate stack 78 comprises a thin conductive base layer 80, such as doped polysilicon, upon which may be formed a thick central trunk 82 of another conductive material, such as metal or a silicide. Selection of an appropriate differential etchant will remove only the trunk material and stop at the thin polysilicon. After the n- junction has been implanted through the thin conductive base layer 80, the oxide sidewall spacers 84 will have been added and the n+ junctions will have been implanted in alignment with the sidewall spacers. Alternatively, the thick central trunk 82 may be made of an insulating material, such as SiO2 or Si3 N4, in which case it will be necessary to open a contact to the lower thin conductive base layer 80.
In FIG. 8, the gate stack 86 comprises a thin conductive base layer 88 upon which is formed a thin central dielectric layer 90, such as an oxide or a nitride, and another central conductive layer 92. The sandwiched dielectric layer 90 serves as a differential etch stop. In this manner, by selecting an appropriate first differential etchant, it is possible to stop the top layer (92) etch at the dielectric layer interface, and then to change to a second different etchant to remove the dielectric layer without thinning of the thin conductive base layer 88. As in the FIG. 7 embodiment, after the n- junction has been implanted, the insulating sidewall spacers 94 will have been added and the n+ junctions will have been implanted. If the sandwiched dielectric layer 90 is too thick, and the gate voltage would drop across it to an unacceptable level, the sidewall spacers 94 may be formed of a conductive material so that the gate voltage applied to the top conductive layer 92 of the gate will be bridged to the outboard thin conductive base layer 88.
Another fabrication option for the formation of the central trunk portion of FIG. 7 device is the lift-off method illustrated in FIGS. 9a and 9b. In this method, the substrate 50 supports the thin oxide layer 58 and a thin conductive layer 96. A negatively patterned photoresist layer 98 is deposited upon the conductive layer, leaving a notch 100. Then, a layer of metal is uniformly deposited to the desired thickness. The wafer is then treated with an appropriate solution to remove the photoresist and simultaneously lift off the metal deposited upon its surface, leaving the central trunk 82. This double step is shown in FIG. 9b. Subsequent processing follows the same steps illustrated in FIGS. 5c through 5f.
In order to reduce the series resistance of the transistor it is well known to silicide the gate, source and drain by the SALICIDING (self aligned siliciding) technique. My proposed LDD structure is compatible with SALICIDING. This may be accomplished, as illustrated in FIG. 10, by adding a second insulating spacer 102, such as SiO2 and then depositing a thin layer of titanium. After a suitable thermal anneal at about 600� C., a highly conductive layer of titanium silicide 104 is formed over the silicon gate, source and drain. A titanium nitride (annealing usually takes place in a nitrogen ambient atmosphere) layer is formed upon the insulating spacers. A suitable solution is used to strip the TiN. In fact, siliciding the gate is actually not necessary, if the central conductive layer is a refractory metal or a silicide material. By using a separate SiO2 spacer for siliciding source and drain, the silicided source-drain can be offset from the n+/n- interface. This would be very beneficial in easing the current crowding and relieving the high electric field (which would otherwise exists at the n+/n- interface in conventional SALICIDING), thus easing the aggravated hot-electron effects and elastrostatic discharge (ESD) damage observed when conventional SALICIDING is used with a single SiO2 spacer.
For those who are interested in a more complete review of the experimental results of my invention, the following published papers are hereby incorporated by reference: "A Novel Submicron LDD Transistor With Inverse-T Gate Structure" Huang et al, published in the Proceedings of the International Electron Devices Meeting, Los Angeles, CA, December 7-10, 1986; "A New LDD Transistor With Inverse-T Gate Structure" Huang et al, published in IEEE Electron Device Letters, Vol. EDL-8, No. 4, April 1987; and "Eliminating Spacer-Induced Degradations in LDD Transistors" Huang et al, published in the 3rd International Symposium on VLSI Technology, Systems and Applications, May 1987.
It should be understood that the present disclosure has been made only by way of examples and that numerous other changes in details of construction and the combination and arrangement of elements, as well as other fabrication steps and their sequence of implementation, may be resorted to, without departing from the true spirit and scope of the invention as hereinafter claimed.
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Varicose vein sufferers can benefit from ambulatory phlebectomy, an outpatient procedure that removes these bulging, painful veins and allows patients to resume their normal routines immediately after treatment. Using a series of tiny incisions, the ambulatory phlebectomy procedure actually removes the vein, preventing it from recurring. The ambulatory phlebectomy procedure is usually performed on larger, superficial veins, but can also be used to treat smaller veins in many patients. Prior to beginning the ambulatory phlebectomy procedure, your specialist will carefully mark the area to be treated, outlining the vein that will be removed. A local numbing agent will be injected along this area to eliminate discomfort during the procedure. Once the area is numb, the specialist will make incisions along the vein, removing the vein section by section. After the ambulatory phlebectomy procedure, you will be given compression stockings to wear to aid in the healing process, and will usually be given a topical antibiotic cream to apply to the incision sites. Discomfort following the ambulatory phlebectomy procedure is minimal and can be treated with mild pain relievers. Although you may experience some slight swelling or bruising following the procedure, use of the compression stockings will minimize these effects and speed the healing process. Following the ambulatory phlebectomy procedure, most patients can expect to return to their normal activities, restricting lifting and strenuous exercise for one to two weeks. The incision sites will fade over six to 12 months following the ambulatory phlebectomy procedure. Offering speedy recovery and no downtime, ambulatory phlebectomy has gained in popularity for those individuals looking to permanently rid themselves of painful varicose veins.
About UCLA Imaging & Interventional Center-Vascular Treatment
Welcome to the UCLA Imaging & Interventional Center! The Interventional Radiology section is pleased to announce the launch of our Varicose Vein Treatment program. Our physicians, nurse practitioners and technologists perform sclerotherapy, ambulatory phlebectomy, microphlebectomy and laser therapy of diseased superficial veins at both the UCLA Westwood and UCLA Santa Monica Campuses.
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text: Intended for use in Great Britain and occasionally on the Continent, chassis GFN40 is reputedly one of just two 20hp cars to wear this particular style of Weymann Saloon coachwork by Hooper & Co. First owned by (Sir) Bruce Thomas, the four-seater subsequently passed through the hands of Shane Chichester, Oscar Chichester and Douglas Gordon before entering the current ownership during the late 1970s. Rolls-Royce's Inspector Engineer from 1919-1942, Chichester Senior documented the 16,000 miles he covered aboard `EOC 888' via handwritten logs. Last on the road in 1995 (or so the tax disc affixed to its windscreen would imply), the 20hp has been kept garaged for nigh-on two decades. Now in need of recommissioning, this stylish Weymann Saloon is accompanied by its original instruction book, buff logbook, copy chassis card, Sotheby's catalogue description (from May 1971), handwritten maintenance notes spanning 1929-1963, continuation logbooks and sundry old MOTs / tax discs.


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BCAAs are amino acids. Proteins are broken down into amino acids in the stomach and small intestines and then absorbed through the small intestines. Amino acids such as BCAAs are just absorbed through the small intestines.
Once in the bloodstream, there's no difference because they are the same thing.
There's nothing wrong with BCAAs. BCAAs are great. They are an important part of protein.
But a couple of grams BCAAs don't "give you long term energy" any more than a couple of grams of protein. That doesn't make any sense at all. Your body can and will use amino acids for ATP production in the Krebs cycle. This is why a gram of BCAAs contain as many calories as a gram of protein - they both produce the same amount of energy when used as fuel in the cell.
During exercise, your muscle cells will primarily break down stored glycogen to produce glucose and then use that glucose directly to produce ATP (energy). The longer you exercise, the more those muscle glycogen stores and blood glucose get depleted. The liver will begin to break down its stored glycogen to maintain blood glucose levels, but it will eventually run out -and in someone not trained for endurance it will have trouble keeping up anyway. This is the reason sports drinks pretty much all have simple sugars - they are designed to help boost blood glucose levels to provide the cells with the fuel they need to continue working.
This is very different from a "sugar rush" while resting. When just sitting around, blood glucose levels are normal and you don't need extra fuel. A sudden infusion of glucose raises blood sugar levels which causes an insulin spike. This is
completely different
than glucose supplementation during prolonged strenuous exercise. The physiological situation is completely, completely different. Ingesting glucose during prolonged exercise will
promote diabetes and any such claim is absolutely ludicrous.
There's nothing wrong with BCAAs before, during, or after workouts. Nothing at all. There's a lot of evidence to support the idea of having amino acids entering your bloodstream during exercise to maintain nitrogen balance (prevent muscle breakdown). Whether this comes in the form of BCAA pills right before/during exercise, a whey shake half an hour before exercise, or a piece of meat an hour before exercise doesn't make that much difference.
However, the main point here is that he will be performing strenuous exercise in difficult conditions for longer periods than he is trained for.
His body will be facing depletion of glycogen, water, and ions.
In order to maintain good functional levels, he needs to replace them. The way to do this is by ingesting water, electrolytes, and glucose. BCAAs are fine if he thinks they may help prevent muscle catabolism, but BCAAs by themselves are no better than a complete protein (which includes BCAAs) ingested an hour or so before exercise.
If you play by the rules some might consider you a *. If that's a problem then, by all means, give away as many points as necessary for their approval
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Using DESY's X-ray source PETRA III, scientists have observed for the first time how layers in certain crystals buckle under high pressure, forming a complex inner structure. The study led by Prof. Sander van Smaalen from the University of Bayreuth opens the view into the complex nature of layered compounds.
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The term "Schrödinger's cat" illustrates the fundamental principle that, in quantum mechanics, a system can exist simultaneously in two mutually exclusive states. According to Schrödinger's thought experiment, the cat is placed in a seemingly paradoxical superposition of being both dead and alive.
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Nerve cells that produce dopamine for the purpose of transmitting signals to other cells affect numerous crucial brain functions. This becomes evident in diseases such as Parkinson's and schizophrenia, where dopamine transmission in the brain is impaired.
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As an organism ages, a gradual loss of cellular protein quality control occurs. This results in the increased production of toxic protein clumps, so-called aggregates. Using a comprehensive approach, researchers in the teams of F.-Ulrich Hartl and Matthias Mann at the Max Planck Institute of Biochemistry now analysed the changes in protein composition during aging.
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In this edition we present to you the idea behind the Science Year - City of the Future. Read also what Leibniz prize winner Professor Henry N. Chapman has to say about tiny particles and big opportunities, learn about current funding programmes, and discover the answer to a fascinating scientific question.
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Book Info
112 pages
AuthorJoseph Delaney
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Author's Websitewww.spooksworld.co.uk/TheAuthor.aspx
PublisherAndersen Press Ltd
Suitable for AgesFeatured Books for 9+ readers
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Publication date5th September 2013
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The Ghost Prison
Joseph Delaney
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A spine-tingling ghost story which will scare even the bravest readers! Billy's job is to guard the prison cells at night. But his prisoners are all a very special kind of creature. They are ghosts! Billy is warned to stay away from the Witch Well. Who can be imprisoned there and can Billy really stay away? An exciting story brought vividly to life through its powerful illustrations.
SynopsisThe Ghost Prison by Joseph Delaney
'This is the entrance to the Witch Well and behind that door you'd face your worst nightmare. Don't ever go through there.' Night falls, the portcullis rises in the moonlight, and young Billy starts his first night as a prison guard. But this is no ordinary prison. There are haunted cells that can't be used, whispers and cries in the night ...and the dreaded Witch Well. Billy is warned to stay away from the prisoner down in the Witch Well. But who could it be? What prisoner could be so frightening? Billy is about to find out ...
An unforgettable ghost story from the creator of the Wardstone Chronicles (Spook's Apprentice) series. With The Seventh Son film out this autumn - starring Jeff Bridges, Ben Barnes and Julianne Moore , everyone will be talking about Joseph Delaney.
Illustrated throughout by the incredible Scott M Fischer, this beautifully produced book will make the perfect Halloween gift.
ReviewsSteeped in superstition ... Will satisfy the most hardened fan of horror. -- Amanda Craig
The Times
Spine-tingling ... will scare even the bravest readers! Julia Eccleshare, Lovereading Well written and scary
Books for Keeps
A perfect Halloween read for young readers The Chronicle (Dudley) Spine tingling story with many jumpy moments - not for the faint hearted! Primary Times
About The Author
Joseph Delaney is a retired English teacher living in Lancashire. He has three children and seven grandchildren and is a wonderful public speaker available for conference, library and bookshop events. His home is in the middle of Boggart territory and his village has a boggart called the Hall Knocker, which was laid to rest under the step of a house near the church.
Most of the places in the Spook's books are based on real places in Lancashire. And the inspiration behind the stories often comes from local ghost stories and legends.
The Spook's Apprentice, The Spook's Curse and The Spook's Secret have all been shortlisted for the Lancashire children's Book for the Year Award. The Spook's Apprentice is the winner of both the Sefton Book Award and the Hampshire Book Award.
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