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June 19, 1984


The opinion of the court was delivered by: POLLAK

 LOUIS H. POLLAK, District Judge.

 The contention that Mr. Gaskins was not singlemindedly faithful to Mr. Friel's interests focuses on certain claims that Mr. Gaskins had conflicts of interest that precluded or tended to preclude fulfillment of the duties of entire loyalty to Mr. Friel implicit in the constitutional mandate for assistance of counsel. Those asserted conflicts relate on the one hand to claims that Mr. Gaskins' representation of Mr. Friel was in some measure inhibited by his prior representation of, and continued friendship and colleagueship with, Robert Thomas. Thomas was perceived by Mr. Gaskins, and I think properly, as cast by the indictment against Mr. Friel in the role of an unindicted co-conspirator.

 The conflict-of-interest claims also argue that Mr. Gaskins had a direct monetary interest in civil litigation being pressed by Mr. Friel against the manufacturer of the ice cream freezer that was in Bramwells. The civil litigation that was incipient when the criminal case was being prepared for trial was litigation which took as its departure a theory that the fire originated in some electrical defect in the freezer. This theory, if credited, would have constituted not only a viable basis for the civil litigation, but a viable defense against the criminal charges.

 One of the claims of failure adequately to represent Mr. Friel also overlaps with the claim that Mr. Gaskins was hobbled by a divided loyalty between Mr. Friel and Mr. Thomas. Mr. Friel claims that Mr. Gaskins did not report to Mr. Friel prior to the trial a government proposal that Mr. Friel plead guilty and cooperate with the Government against Mr. Thomas. This proposal would presumably have carried with it the prospect of some benefits to Mr. Friel.

 There are a number of other claims, both of divided loyalty and of acts of omission on Mr. Gaskins' part, that are asserted to constitute lawyerly conduct below the standard. I will not canvass those other claims at this time, with a single exception, which I wish now to address.

 This morning's argument considered, among other matters, the claim that Mr. Gaskins failed to investigate information given to Mr. Gaskins by Mr. Friel. Mr. Friel reported to Mr. Gaskins that one Christopher Brooks asserted to Rebecca Willis and Benjamin Ward that he, Brooks, had set the Bramwells fire because he was angry at Mr. Friel who had dismissed Brooks from employment. Mr. Brooks apparently also asserted that he had tried to hide the arson by pouring water on the freezer to make it appear that an electrical difficulty in the freezer had generated the fire.

 I want to address that claim in some detail. It is common ground that Mr. Friel did say something to his attorney, Mr. Gaskins, about a confession by somebody that that somebody had set the fire that destroyed Bramwells. Mr. Friel testified in some detail about the information that he communicated to his attorney. Mr. Gaskins testified briefly, and with very little precision, about matters that clearly he did not remember very well. However, the constitutional claim brought forward by Mr. Friel, which is that Mr. Gaskins fell short of the constitutional standard of effective representation by failing to make an investigation, makes the attorney's understanding of what information had been supplied him at least the starting point for an inquiry into whether Mr. Gaskins' non-inquiry into the matter fell short of constitutional standards.

 With that in mind, I turn first to Mr. Gaskins' testimony, as it was given on direct examination:

Q. Have you ever heard of an individual named, "Christopher Brooks" or "Grace"?
Q. So you did hear at some time that Mr. Brooks had said that he burned down Bramwells.
A. Yes.
Q. Do you recall when?
A. I don't know whether or not I had heard that it was Mr. Brooks. I knew there was someone who had confessed to having burned down Bramwells.
Q. Do you recall when it was that you heard that?
A. I am certain that I heard that before the trial.
Q. Now, did you --
A. And during the trial.
Q. Did you investigate that lead?
A. No.
Q. How come?
A. Well, first of all, the person came out of that small community which included Mr. Friel, Mr. Lance, Mother Light, the girl that works at the "Black Banana", whatever her name is, all of that group of people, they were familiar with him. To me it constituted just a rumor.
I didn't receive any specific direction to investigate it. It was totally inconsistent with what the factual situation appeared to be there; namely, that someone had come in, broken a back window, and dropped a faggot through the window and in that way started the fire, which is what I understand that this person is supposed to have been saying.
And I don't believe my client, I did not perceive that my client was taking it seriously and I did not take it seriously.
Q. So Mr. Friel never told you to pursue that lead, did he?
A. Not that I ever -- no, Mr. Friel never told me to pursue that lead.

 Notes of Testimony for November 4, 1983,

 Mr. Gaskins gave comparable responses to examination by the Court:

A. My only recollection is that Mr. Friel, I got the information basically from Mr. Friel. I can't recall whether or not there was a reference to it in the tapes or not.
It appears that whoever was responsible was someone who was well-known in that small community, had come up and said that he had tried to throw something through the window, through the back window, and caused the fire.
I perceived it at this time as being of no consequence. It was totally inconsistent with our theory of how the fire started. It was totally inconsistent with any information we had about the placement and laying of glass and the two people who allegedly had overheard this confession were never presented to me as all of the other witnesses were presented to me, so I naturally assumed that Mr. Friel perceived that confession in the same light.
Q. Now, this you say was all information which to your best recollection came to you from Mr. Friel.
A. Yes, I can't explain to you, Judge, when I knew that or when it was told to me.
Q. What, if anything, do you remember about the, you just said two persons from whom the information derived, presumably before it reached Mr. Friel.
A. I only remember that there were persons. I only remember now that there were two persons because I have read the description of the incident in the papers which were filed here.
Q. Does that refresh your recollection in any way?
A. No sir, it does not. It refreshes my recollection that there were witnesses or a witness who had overheard someone confessing to have started the fire.
Q. Do you, to your best recollection, apart from hearing Mr. Friel's report, do you remember discussing this aspect, that is to say, the alleged ...

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