such instruction should not be given in any future trial unless it is requested by defendant, and that it will be considered error if it is given, absent such request, in any trial started after the date this opinion is filed.

THE COURT:  For purposes of the record--I've sent the jury from the room--included in the instructions sent with them was instruction No. 33, regarding defendant's decision not to testify.

I just need to clarify this for the record. Mr. Weinberg, this was included at your client's .request, is that right?

MR. WEINBERG:  Oh, yes; sure.

THE COURT:  We didn't put that on the record before.

MR. WEINBERG:  It's because it was already included.

Where the lost evidence is only potentially exculpatory, where by its nature the lost evidence cannot be evaluated by a fact finder, a due process violation will not be found in the absence of a showing of bad faith. . . .  [I]f the exculpatory value of the lost evidence is suitable for evaluation by a fact finder, a due process violation will be found upon a showing that the evidence was exculpatory and its destruction was deliberate.

Mr. Atley also has filed some other motions recently, where he raises questions about things that I've done or failed to do.  He has waived speedy trial. I think, as is his right, he would like to rescind the waiver, which I advised him would give him another ninety days, but at this point he has waived a speedy trial.  I think he would be entitled to reasonable time to prepare for trial with new counsel.  I took depositions in this case.  We had basic pretrial motions that are important to how the case will go forward, such as a motion to suppress and a basic motion to dismiss, based on constitutional objections to the institution of the prosecution.

I feel that there has been adequate preparation taken so that an additional--a new attorney would just clean up those items that Mr. Atley had wished to pursue prior to a trial, but I think under all the circumstances--just to be quite candid with the court, I just feel that I'm put in a very difficult position, in terms of what the canons of ethics require.

Mr. Atley, I think, as shown from the record, is a fairly difficult person to deal with.  I've had rapport with him; however, on my answering machine this morning was a--you know threat to
ask the Supreme Court to take sanctions against me, which after I talked to him last night--I mean--I had no inkling about, but--you know, I got different signals from him.  I just think that there's such a break in the attorney/client relationship that I could not be effective, and I think the outcome of this case is likely to be such that the fact of my having pursued a trial under these circumstances would raise serious questions about whether or not any future conviction would stand, that I have--I have that concern also.

THE COURT:  Does the State have anything it wishes to add?

MR. OTTESEN:  Yes, Your Honor.  I have reviewed Canon 5, which states a lawyer should exercise independent professional judgment on behalf of a client, have also reviewed the ethical considerations in the disciplinary rules under that canon, and I concur with Mr. Weinberg in the conclusions that he has drawn from them.

The State is in a very difficult position in this case, in raising--in making a specific statement or a specific claim, since Mr. Weinberg is going to be, in the near future, working with us.  Most of the cases and opinions that have dealt with changes of employment by lawyers have opted in favor of the client being given the rights,and not deprived of them, and I think that clearly, in this case, forcing this matter to trial today would be going against the general grain of those opinions.

THE COURT:  The Court has heard the arguments of counsel today and has considered this question since last week, also having reviewed the canons and the ethical considerations.  The Court finds that this motion to withdraw as counsel should be overruled and denied, and is doing so.

In this case, the Court can find that, while Mr. Weinberg is going to work at the County Attorney's Office on June 15 and did learn that would be the case on June 1, he has represented this client zealously throughout the pendency of these proceedings and has done a number of things on behalf of this client to prepare for trial today.  The Court is not advised of any information that Mr. Weinberg as worked with the MEG officers or not worked with the MEG officers, and also notes that, in this community, our court appointed attorneys, our defense bar, are people who, with some frequency, do become a county attorney for some period of time, and I am aware of no rule, nor any policy, that says when one goes from the defense bar to the prosecution that there must be a period of so many days, weeks or months, in which one cannot represent defense clients.  And the same is true on the other end, we often have county attorneys who leave the County Attorney's Office and do criminal defense, and, again, I am not aware of any policy or rule or case which states that there must be so many days, weeks or months in which those people have to make transitions from being a prosecutor to a defense counsel.

In this district, I can also point out we also have the scenario where we have part-time magistrates.  Several of our part-time magistrates, who serve one day a week in a judicial capacity, also serve on our criminal court appointment list, and are able to change their hats, and we have not raised that as a difficulty.

In this case, Mr. Weinberg has not changed his hat yet, he will on June 15, and my personal acquaintance with Mr. Weinberg and his abilities as an attorney is that he will be one hundred percent professional and zealous on behalf of his client in this matter, and when he goes to the County Attorney's Office on June 15 he will be one hundred percent zealous in that role also.

I can appreciate the fact that the spot which Mr. Weinberg is taking will be one in which he will work frequently with the MEG officers, and I think that the MEG officers, in addition to the prosecutors and the defense bar, all get along well and understand each other's roles, and will be not inclined to testify any differently at this trial than they would be otherwise, nor will they treat Mr. Weinberg any differently after June 15, when he changes hats.

I think Mr. Weinberg has demonstrated his competency and his experience as an attorney, and, in fact, I'm sure that's why the County Attorney's Office has offered him a job, to start June 15, is that he is a competent and experienced attorney, and that he will zealously represent the State, just as he presently zealously represents the defendant.

I know the concerns that are raised that this client has stated in his own motions, that his--he feels that he cannot be properly resented by an attorney who's going to the County Attorney's Office, and that he desires to have a different attorney.  However, I don't give that a huge amount of weight, because Mr. Atley is on his third attorney at this time, and there have been other issues which have cause Mr. Atley to request attorneys, and, frankly, this case has been pending since November, and it appears to me that--perhaps this is an unknown to me, what the reason would be for this, but it appears to be some sort of a way to delay the proceedings, and the Court is not going to buy into that.

The Court will merely state that Mr. Weinberg will be expected to provide Mr. Atley with his usual high quality of representation and be zealous in his representation.

The motions that are presented here today--I'm sure Mr. Weinberg is ready to proceed, and I'm also sure that, with regard to the case that's set to begin today, Mr. Weinberg will do an excellent job in representing Mr. Atley's interests at the trial.

Normally, a defendant alleging ineffective assistance of council under the Sixth Amendment must show not only that his counsel's performance fell below minimum professional standards, but also that his counsel's failure was so prejudicial that it probably changed the outcome of his trial.  Strickland v. Washington, 466 U.S. 668, 691-96, 104 S. Ct. 2052, 2066-69, 80 L. Ed. 2d 674 (1984); United States ex rel. Duncan v. O'Leary, 806 F.2d 1307, 1312 (7th Cir. 1986), cert. denied, ___ U.S. ___, 107 S. Ct. 1982, 95 L. Ed. 2d 822 (1987).  Where a conflict of interest provides the predicate for an ineffective assistance claim, however, a defendant bears a higher burden with regard to demonstrating prejudice.  Walberg v. Israel, 766 F.2d 1071, 1075 (7th Cir. 1985) , cert. denied, 474 U.S. 1013, 106 S. Ct. 546, 88 L. Ed. 2d 475 (1985); United States v. Marrera, 768 F.2d 201, 205 (7th Cir. 1985), cert. denied, 475 U.S. 1020, 106 S. Ct. 1209, 89 L. Ed. 2d 321 (1986).  If a defendant or his attorney gives the trial court notice of the alleged conflict and the trial court fails to inquire into the conflict, a reviewing court will presume prejudice upon a showing of possible prejudice.  Holloway v. Arkansas, 435 U.S. 475 , 481-91, 98 S. Ct. 1173, 1178-82, 55 L. Ed. 2d 426 (1978); Walberg, 766 F.2d at 1075; Marrera, 768 F.2d at 205.  If however, the trial court has not been given notice of the alleged conflict, the defendant must show that "an actual conflict of interest adversely affected his lawyer's performance."  Cuyler v. Sullivan, 446 U.S. 335, 348-49, 100 S. Ct. 1708, 1718-19, 64 L. Ed. 2d 333 (1980); Marrera, 768 F.2d at 205-06; Walberg, 766 F.2d at 1075.

We now hold that when defendants make timely objections to joint representation, they need not show an actual conflict of interest when a trial court fails to inquire adequately into the basis of the objection.  In such circumstances the trial court has failed to discharge its constitutional duty under Holloway to determine whether the defendants are receiving adequate assistance of counsel, a duty separate from the Cuyler framework.  Reversal, therefore is automatic.

We note that [defense counsel] Callaway's candidacy was not a secret. . . .  Even though it might have been advisable for Callaway to have informed the court and his client of his possible future employment, any failure to do so by no means gives rise to the presumption that, in total disregard of his professional responsibilities, his representation of Horton therefore was adversely affected.  In those cases where courts have presumed that the adequacy of representation was adversely affected, a lawyer has been involved in a conflict of interest with the client "which is always real, not simply possible, and which, by its nature, is so threatening to justify a presumption that the adequacy of representation was affected."  United States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984). . . .

By contrast, this case presents at most a remote possibility of a conflict of the type with which Cuyler was concerned.  Though it is conceivable that an unprincipled defense attorney in line for a job as United States Attorney might encourage a defendant in some circumstances to plead guilty in order for counsel to favor with his or her future employer, that is too fanciful upon which to base a per se rule of conflict.  Callaway was seeking the position of United States Attorney, a high position of great responsibility which involves appointment by the President of the United States and confirmation by the Senate.  There was no one known in the local United States Attorney's office with whom Callaway could have "curried favor" and advanced his appointment.  Nor was this case a high-publicity criminal prosecution in which there was public interest, or anything else which would attract the attention of those involved in the selection and confirmation process.  In any event, a candidate: for a high federal position in his professional field would not advance his own interests by demonstrating that he is a weak or unskilled attorney on behalf of his client's interests.  We do not believe that the fact of Callaway's unsuccessful candidacy for United States Attorney, in and of itself, gave rise to a conflict of interest as a matter of law. . . .

. . . .

Horton next argues however, that even if Callaway's vying for the position of United States Attorney did not create an actual conflict as a matter of law, his conduct during the course of his representation demonstrated that there was in fact a conflict that aversely affected Callaway's performance.  Horton maintains that Callaway "pulled his punches" at every phase of the proceedings, that he filed no substantive motions, did no substantive research, performed no independent investigation or trial preparation and failed to submit a jury instruction regarding a theory of defense.  Instead, Horton maintains, Callaway continuously pressed Horton to enter a guilty plea, but Callaway's lack of preparation and diligence in preparing the case precluded him from recommending a knowing and intelligent plea to Horton. . . .

The record in this case clearly establishes however, that even assuming a potential conflict presented itself, there clearly was no adverse effect on Callaway's performance.  On the contrary, we are convinced that Callaway made the best of a bad situation.  The record of the ex parte hearing reveals that Callaway was faced with a recalcitrant client who refused to cooperate with his counsel or the magistrate.

The Sixth Amendment to the Federal Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense."  U.S. Const. amend. VI.  The Fourteenth Amendment to the Federal Constitution makes this provision binding on the states.  Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527, 45 L. Ed. 2d 562, 566 (1975).

The purpose of this Sixth Amendment provision is to ensure that criminal defendants receive a fair trial.  Wheat, 486 U.S. at 159, 108 S. Ct. at 1696-97, 100 L. Ed. 2d at 148.  In reviewing Sixth Amendment claims, the focus is therefore "on the adversarial process, not on the accused's relationship with his lawyer as such."  Id.

The accused has a presumptive right to counsel of choice.  That right, however, is not absolute.  Id. at 159, 164, 108 S. Ct. at 1697, 699-700, 100 L. Ed. 2d at 148-49, 152 ("[T]he essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather an to ensure that a defendant will inexorably be represented by the lawyer whom he prefers."); United States v. Locascio, 6 F.3d 924, 931 (2d Cir. 1993) ("accused does not have the absolute right to counsel of her own choosing"); In re Paradyne Corp., 803 F.2d 604, 611 n.16 (11th Cir. 1986) (same); United States v. Washington, 797 F.2d 1461, 1465 (9th Cir. 1986) (same); United States v. Rankin, 779 F.2d 956, 958 (3d Cir. 1986) (same); Wilson v. Mintzes, 761 F.2d 275, 280 (6th Cir. 1985) (same).

There are times when an accused's right to counsel of choice must yield to a greater interest in maintaining high standards of professional responsibility in the courtroom.  A trial court may therefore disqualify counsel if necessary to preserve the integrity, fairness, and professionalism of trial court proceedings.  Wheat, 46 U.S. at 160, 108 S. Ct. at 1698, 100 L. Ed. 2d at 149 ("Federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them."); . . . In re Paradyne Corp., 803 F.2d at 611 n.16 (right to counsel of choice does not override broader societal interests in effective administration of justice); Washington, 797 F.2d at 1465 (right to counsel of choice must give way where its vindication would create a serious risk of undermining public confidence in the integrity of our legal system); Rankin, 779 F.2d at 958 (right to counsel of choice must be balanced against requirements of fair and proper administration of justice); . . . .

In evaluating disqualification issues, trial courts

must recognize a presumption in favor of [the accused's] counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.  The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court.  Wheat, 486 U.S. at 164, 108 S. Ct. at 1700, 100 L. Ed. 2d at 152.

Whether the facts show an actual conflict of interest or a serious potential for conflict of interest is a matter for the trial court's discretion.  Id.  Therefore our review of the district court's decision is for abuse of discretion.  See Locascio, 6 F.3d at 931(interpreting Wheat as providing for abuse of discretion scope of review on disqualification issues.  We find an abuse of discretion only when the party claiming such shows that the discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.  State v. Ruble, 372 N.W.2d 216, 218 (Iowa 1985). . . .

We review constitutional issues de novo.  State v. Spencer, 519 N.W.2d 357, 359 (Iowa 1994).  Wheat modifies somewhat this review.  The legal standard is actual conflict of interest or serious potential for conflict of interest.  Wheat requires that appellate courts give deference to a trial court's factual findings leading to the legal conclusion whether there is or is not an actual conflict of interest or a serious potential for conflict of interest.  See Wheat, 486 U.S. at 164, 108 S. Ct. at 1700, 100 L. Ed. 2d at 152 ("The evaluation of the facts and circumstances of each case under [the actual conflict or serious potential for conflict standard] must be left primarily to the informed judgment of the trial court."); cf. State v. Rademacher, 433 N.W.2d 754, 759 (Iowa 1988) (recognizing de novo review of constitutional claim, but giving deference to district court's factual determination on matter of prosecutorial intent to generate a mistrial).

Though it is conceivable that an unprincipled defense attorney in line for a job as United States Attorney might encourage a defendant in some circumstances to plead guilty in order for counsel to curry favor with his or her future employer, that is too fanciful upon which to base a per se rule of conflict. . . .  In any event, a candidate for a high federal position in his professional field would not advance his own interests by demonstrating that he is a weak or unskilled attorney on behalf of his client's interests.

4.  Hallucinogenic substances.  Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation, which contains any quantity of the following hallucinogenic substances, . . . :

. . . .

s.  Psilocybin.

A defendant charged with the violation of a statute has standing to claim the statute is unconstitutionally vague as applied to him or her.  A defendant does not necessarily have standing to claim, in addition, that a statute is unconstitutional as applied to others.

If a statute is constitutional as applied to the defendant, the defendant lacks standing to make a facial challenge unless a recognized exception applies.

the State is required to prove both that the defendant knowingly or intentionally possessed a controlled substance, and that the defendant knew the substance he or she possessed was a controlled substance in the prosecution of charges under either subsection 204.401(1) or subsection 204.401(3).

Of controlling importance in the Florida court's decision was the complete absence of any evidence that defendant knew that the mushrooms in his possession contained psilocybin.  The court did not strike down the statute itself as unconstitutional but held that it could not be applied to a defendant who was not shown to have criminal knowledge.  In other words, the court held that as to people who possess mushrooms without knowing they contain psilocybin, the statute failed to provide a sufficient warning of the criminality of their conduct.

#327, State v. Atley

LAVORATO, Justice (dissenting).

The attorney functions in an adversary system based upon the presupposition that the most effective means of determining truth is to present to a judge and jury a clash between proponents of conflicting views.  It is essential to the effective functioning of this system that each adversary have, . . . "entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability."

When there is a conflict of interest . . . the prejudice may be subtle, even unconscious.  It may elude detection on review.  A reviewing court deals with a cold record, capable, perhaps, of exposing gross instances of incompetence but often giving no clue to the erosion of zeal which may ensue from divided loyalty.  Accordingly, where the conflict is real . . . a denial of the right to effective representation exists, without a showing of specific prejudice.

On June 1, 1995, defendant's attorney Robert Weinberg informed defendant he had accepted a job with the Scott Count Attorney's Office, William Davis Chief Prosecutor, and informed defendant of ethical problems with his continued representation.

That the undersigned attorney was confirmed for an appointment in the office of the Scott County Attorney on June 1, 1995, said employment to begin on or about June 15,1995.

That said appointment raised an issue of potential conflict with defendant's interests which were promptly disclosed to defendant pursuant to Canon 5 of the Code of Professional Responsibility.

That the defendant filed a motion for removal of counsel on June 2, 1995, based on the disclosure of potential conflict.

That Local Rule 3.4 requires counsel's termination of employment with permission of the court when the client consents to said termination and compliance with DR 2-110, Code of Professional Responsibility, on withdrawal of counsel.

That DR 2-110(B) requires mandatory withdrawal from employment when (2) counsel knows continued employment would violate an ethical rule or (4) counsel is discharged by his client.

That Canon 5 requires counsel to avoid the appearance of conflict with the interest of a client.

That Canon 5 requires counsel to withdraw from representation if the effectiveness of his representation is impaired by the desires of third persons.

That the undersigned attorney believes that the effectiveness of his representation has been irreparably harmed due to the expressed desire of the defendant to remove counsel from the case based on defendant's concern with a potential conflict of interest.

That the undersigned attorney cannot represent the defendant effectively at trial.

That the defendant has filed a motion for continuance, has waived speedy trial and is entitled to a reasonable time to prepare for trial with new counsel.

[m]ost of the cases and opinions that have dealt with changes of employment by lawyers have opted in favor of the client being given the rights, and not deprived of them, and I think that clearly, in this case, forcing this matter to trial today would be going against the general grain of those opinions.

Additionally, since the decision in Glasser, most courts have held that an attorney's request for the appointment of separate counsel, based on his representations as an officer of the court regarding a conflict of interests, should be granted.  In so holding, the courts have acknowledged, and given effect to several interrelated considerations.  An attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial."  Second, defense attorneys have the obligation, upon discovering a conflict of interests, to advise the court at once of the problem.  Finally, attorneys are officers of the court, and "when they address the judge solemnly upon a matter before the count, their declarations are virtually made under oath."  We find these considerations persuasive.

When a considered representation regarding a conflict in clients' interests comes from an officer of the court, it should be given the weight commensurate with the grave penalties risked for misrepresentation.

The dual representation here created an actual conflict of interest.  The prosecutor and defense attorneys here were adversaries for the purpose of this trial.  It is sufficient to establish a constitutional violation that the defense attorneys owed a duty to Zuck to endeavor to refute the prosecutor's arguments and to impeach his witnesses . . .  [T]he defense attorneys were subject to the encumbrance that the prosecutor might take umbrage at a vigorous defense of Zuck an dispense with the services of their firm . . . .  Our analysis in interest cases does not focus on the actual effect of the conflict on a particular defendant's case.  Rather, the basis of these decisions is our belief that the sixth amendment requires that a defendant may not be represented by counsel who might be tempted to dampen the ardor of his defense in order to placate his other client.  The fact that a particular lawyer may actually resist that temptation is of no moment.  The right to effective assistance of counsel is so vital to a fair trial that courts are compelled to examine every potential infringement of that right with the most exacting scrutiny.  Determining whether a particular attorney has yielded to the temptation a conflict presents requires a searching analysis of his performance at trial.  A cold, dispassionate appellate transcript simply cannot provide an adequate basis for assessing such a performance, for subtle variations in demeanor and depth of cross-examination cannot be reflected in the pages of a transcript.  For this reason, the mere existence of a temptation in the abstract is sufficient to preclude duality of representation.  A defense attorney must be free to use all his skills to provide the best possible defense for his client.  Despite the noblest of intentions, the defense attorneys here may have been tempted to be less zealous than they should have been in the presentation of Zuck's case.  This possibility is sufficient to constitute an actual conflict of interest as a matter of law.

is independent of, and in some respects in conflict with, [the accused's] interest in obtaining a judgment of acquittal.  For instance, fearing that [the accused's complaint] might later be expanded to include claims of ineffective assistance at trial, [defense counsel] would have an inordinate interest in conducting the defense in a manner calculated to minimize any opportunity for post hoc criticisms of [counsel's] efforts.  This could compromise [counsel's] professional judgment about the best means of defending this particular case; it could encourage the most standard or conservative trial strategy, as well as overcautious tactical decisions and courtroom demeanor.  Furthermore, concerns about the impending investigation might impede communications between [the accused and counsel].  [Counsel] might be apprehensive about sharing with [the accused] the reasons behind tactical defense decisions and refrain from disclosing to [the accused] any unexpected problem that arose during the course of trial.  [The accused], in turn, might be reluctant to question [counsel's] trial decisions for fear of further alienating counsel in the midst of trial.

Whether or not the court is personally acquainted with the attorney to be associated, or whether or not the attorney enjoys the confidence of the court, are considerations wholly irrelevant to the constitutional issues confronting the trial court.  It is the defendant's confidence which is at stake, not that of the court.