Full opinion text
TJOFLAT, Circuit Judge: This habeas corpus case provides a classic example of how a conflict of interest can prevent a law Arm from adequately representing a criminal defendant. The resolution of this case lies at the intersection of legal ethics and the constitutional protections afforded criminal defendants. The petitioner and another man faced murder charges in a Florida state court for a gruesome, drug-related killing. The State sought the death penalty. In light of the information gathered during the police investigation following the murder, the State did not have a strong case against the petitioner: all physical evidence pointed to the co-defendant; the only testimony directly identifying the petitioner as the murderer was that of a witness with serious credibility problems; and significant evidence suggested that the petitioner lacked the requisite intent to commit murder. The law firm making the petitioner’s defense had one problem: it had a long-standing, professional and social relationship with the opposing defendant. It had represented the opposing defendant for several years in various matters, including prior criminal proceedings involving charges of aggravated assault and drug possession. During this representation, the law firm acquired significant information about the opposing defendant’s activities and lifestyle, information that could have been used against him in a blameshift-ing defense for the petitioner. The professional duty of confidentiality, of course, would have made such disclosure unethical. Compounding this conflict were allegations by the opposing defendant in open court that his relationship with the law firm ran deeper than that of attorney and client. At a pretrial severance hearing covered extensively by the media, he alleged that he had been a close friend of members of the law firm and that they frequently had engaged in criminal conduct with him, including drug use and prostitution. If the law firm chose to present a defense of the petitioner that was antagonistic to their former client, they had good reason to fear that he would continue to make these allegations. At best, these allegations, even if untrue, might damage the law firm’s reputation. At worst, they could lead to disbarment and criminal charges. Thus, attacking its former client posed serious risk to the law firm’s own interests. The law firm nonetheless proceeded to represent the petitioner. Not surprisingly, it opted against a defense antagonistic to its former client and alleged criminal co-conspirator. Instead of attempting to shift the blame to this defendant, it immediately announced to the world that its new client, the petitioner, intended to rely on an insanity defense. This announcement clearly implied that the petitioner, and not the co-defendant, had committed the murder. The defense failed. The petitioner was convicted of first-degree murder, a capital offense, and is now serving a life sentence. The other defendant pled guilty to second-degree murder and is now a free man. More disturbing to this court than the unethical behavior of the lawyers who represented the petitioner is the fact that this case has made its way to our docket. At pretrial proceedings and during the trial itself, the constraints on defense counsel’s ability to represent the petitioner zealously became readily apparent, but the trial judge and the prosecutor did nothing. Since the failure of his direct appeal and through new counsel, the petitioner has argued that the law firm’s conflicts of interest prevented it from providing an effective defense before no less than four judicial decisionmakers — a state trial judge, a state district court of appeal, a federal magistrate judge, and a federal district judge. None perceived the severity of the law firm’s conflicts of interest; none produced a written opinion that suggested that these glaring conflicts received anything but cursory review. We are the first court to give the petitioner’s claims close analysis. To this task we now proceed. I. The petitioner, John Freund, appeals the denial of his petition for a writ of habeas corpus by the United States District Court for the Southern District of Florida. Freund was convicted by a Florida state court in 1985 of first-degree murder for the 1984 stabbing death of Ralph Walker. He claimed in his petition to the district court that he was deprived of his right under the Sixth and Fourteenth Amendments to effective assistance of counsel at his trial because his counsel labored under significant conflicts of interest. We agree. Accordingly, we vacate the district court’s order denying habeas corpus relief and remand the case with the instruction that the district court issue the writ. Proper analysis of Freund’s claim requires a thorough explication of the facts underlying his conviction and the history of the resulting legal proceedings. In this section, we therefore examine this background in close detail. We first describe, in part A, the backgrounds of the six people who were present at the murder scene: Freund, his co-defendant, three material witnesses from Freund’s trial, and the victim. In part B, we relate the gruesome details of the events surrounding the murder. Then, in part C, we describe the police investigation of the murder. We next focus, in part D, on the law firm that represented Freund’s co-defendant for several years before the murder trial and subsequently represented Freund at trial. Part E describes the legal proceedings surrounding Freund’s prosecution, paying particular attention to the defense strategy of the law firm representing Freund. Finally, in part F, we review Freund’s collateral attacks on his conviction, ending with the instant appeal. A. Dr. John Freund practiced oncology, the treatment of cancer, in Palm Beach, Florida. He graduated first in his class from Columbia Medical School and had an excellent reputation in the medical community for both his professional expertise and his personal demeanor. Unknown to most of his colleagues, however, Freund was homosexual and suffered from severe bouts of depression. In June 1983, he attempted suicide by injecting himself with large doses of narcotics, including morphine. A professional colleague and a police officer found him unconscious on the bedroom floor of his Palm Beach residence. After performing CPR to revive his heartbeat, they called an ambulance, which took him to the hospital. He remained in a coma for several days. Psychological tests and CAT scans of his brain taken after the suicide attempt indicated significant brain damage due to a lack of oxygen. The damage had an effect similar to a frontal lobotomy. Among Freund’s symptoms were impaired memory, reduced intelligence, inappropriate behavior, poor judgment, lack of foresight and planning, amenability to influence by others, and a reduced ability to reason and appreciate the consequences of his actions. After the suicide attempt, the local hospitals placed him on a leave of absence, suspending his hospital privileges. At first, some of his friends in the medical community attempted to help him regain his privileges, but they soon concluded that he lacked the mental capacity to return to his practice. Although he continued trying to regain these privileges, they were never returned. This suspension made practice as an oncologist all but impossible. Before the suicide attempt, Freund had befriended John Trent, the son of Harriett Trent, one of his patients, and the man with whom he would eventually be charged with murder. Harriett Trent eventually succumbed to cancer some time before the murder. While this friendship soured at some point, it was rekindled after Freund’s suicide attempt. He apparently was lured by Trent’s promises to help him regain his medical practice. Trent was a “big man” in Palm Beach and was reputed to wield significant, though illicit, influence in the community. Freund’s mental condition following his suicide attempt rendered him particularly susceptible to Trent’s influence. John Trent owned a legitimate interior design business called House of Draperies, Inc., but his main occupation was as a full-time criminal. An imposing figure standing about six feet and three inches tall and weighing 230-250 pounds, he was involved heavily in drugs (both use and sale), violence, and prostitution. He owned several rental properties. When his tenants failed to pay their rent on time, Trent had them assaulted. Trent kept more than one residence in the Palm Beach area and had different girlfriends at various locations, although he was married and had a child. Around the time of the murder, he stayed in a fancy apartment in the Palm Beach Hotel. Although the building had a doorman, someone at the front desk, and security guards, he usually answered his door with a loaded .45 pistol in his hand. When his friends came over, he often would have them immediately use cocaine with him before they did anything else. This behavior became almost ritualistic in the weeks and months preceding the murder. In fact, Trent’s demeanor had become increasingly violent and erratic following his mother’s death. Trent claimed to have ties with the local police, working as a confidential informant. He bragged that he had the West Palm Beach Police Department and Palm Beach County Sheriffs Office “in his back pocket.” He wielded significant influence over several other people, using them to further his drug dealings, work as prostitutes, entertain him, “take out” those who gave him trouble, and perform various other tasks. Four such people were at Trent’s apartment, along with Freund, on the night of the murder: three testified at Freund’s trial and the fourth was the victim. Eleanor Mills, a witness in Freund’s trial, ran a female escort service and was a frequent drug user. In early 1984, an undercover police officer arrested her after she attempted to sell him a kilogram of cocaine. While in jail following her arrest, she met Rosemary Lail, who was a friend of Trent. Lail told Mills about Trent and suggested that he could help her with the drug charges. In April 1984, several weeks before the murder, Mills was released on bail and met Trent at his apartment. He answered the door with his gun in hand and they both immediately consumed cocaine. After impressing her with his status in the community, his influence over the police, and his ability to “control things,” he offered to help her in at least two ways. First, he referred her to his law firm for legal representation on the matter. Second, he discussed having her serve as an informant with the local police. She and Trent would set somebody up on a drug deal, and she would testify for the prosecution at trial. In the weeks that followed her first meeting with Trent, the two became close, spending considerable time together, mostly using cocaine and drinking alcohol. Mills’ daughter, Lisa Angelilli, also testified at Freund’s trial. At the time Mills and Trent became associated, Angelilli was around sixteen years old. Like her mother, she was a frequent drug user. She heard stories about Trent through Mills and was anxious to meet a man of his influence and to use drugs with him. The other two people present at the scene of the crime served as henchmen for Trent. Bill Daniell was the third material witness at Freund’s trial. An ex-eonviet, he worked at House of Draperies as an electrician and also performed several “odd jobs” for Trent, including drug trafficking. He had known Trent for over thirteen years, and Trent often introduced him as Trent’s bodyguard, “killer,” or “hit man.” Finally, Ralph Walker was the victim. Walker, an African-American, also performed various tasks for Trent. He would obtain drugs for Trent, collect rent on various properties owned by Trent, and beat up whomever Trent wanted harmed. Walker had a violent temperament and, like Trent, was physically imposing, standing between six feet and six feet and three inches tall and weighing around 250 pounds. B. We turn now to the events surrounding the murder. Most of the relevant events occurred at Trent’s apartment in the Palm Beach Hotel. Sometime in the afternoon or early evening of Tuesday, June 24, 1984, Mills and Angelilli arrived at Trent’s apartment. Trent, who was in the midst of a cocaine binge that lasted for over a week, had invited them to come over so they could share cocaine, so he could meet Angelilli, and so he could offer Angelilli a job at House of Draperies. As usual, Trent answered the door with his .45 pistol in hand. The entrance to the apartment was through the bedroom. A hallway led from the bedroom to a dining room and living room area (the “main room”), which was adjoined by a kitchen. Trent led them to the main room and immediately had the women snort cocaine with him. They spent the next several hours consuming large amounts of cocaine. Trent was also drinking large quantities of bourbon. He remained armed with the .45 in a shoulder holster; a .357 magnum pistol also lay on the table at which they sat. Later in the evening, Angelilli announced that she wanted marijuana. Eager to impress Angelilli, Trent called Walker and told him to bring some marijuana over immediately. About thirty minutes later, Walker arrived with the drugs. The partying continued: all four snorted cocaine; Angelilli and Walker smoked marijuana; Trent drank bourbon; and Walker drank tequila. Walker drank and snorted more than the others. Trent and Walker started to discuss past exploits together. Their voices got louder and Walker started getting excited as they talked about injuring and killing people. During this time, Mills’ boyfriend called several times to see what Mills was doing. This angered Trent, and he began suggesting that he would send Walker to attack Mills’ boyfriend. Fearing that the boyfriend might show up at Trent’s, Mills and Angelilli left Trent’s apartment to find him. When they arrived at Mills’ residence, they could not find the boyfriend. They decided to return to Trent’s because Angelilli wanted to do more drugs and spend more time with Trent. She was “interested in” Trent and attracted to his lifestyle. Mills did not want to return, but she believed that Angelilli would go back with or without her. Mills agreed to return because she knew that Trent wanted to have sex with Angelilli and she did not want Angelilli alone at Trent’s apartment. When they returned, they resumed consuming cocaine. Trent and Walker became increasingly loud as they talked of violence. The escalating level of tension made Mills very nervous. Sometime around 10:00 or 11:00 that night, Walker began whispering to Angelilli that he wanted to have sex with her. When she ignored him, he got upset, jumped up and exclaimed, “I need some pussy right away now!” ' Mills implored Trent to calm Walker down, but Trent assured her that Walker was just “playing around” and would not get out of hand. Trent told Mills to “call up one of your girls and get a black girl over here for Ralph.” Afraid to put any of “her girls” in danger, she pretended to make the call and told Trent she could not reach anyone. Walker became more enraged. He went into Trent’s bedroom and came back with an aluminum baseball bat. He slammed the bat onto the table with such force that he put dents in the bat. He announced that Trent would just have to “ignore this,” but he was going to have sex with Angelilli. Walker then grabbed the .357 magnum off the table and started toward Angelilli with the gun in one hand and bat in the other. Angelilli and Mills became frightened and tried to hide behind Trent. Trent reacted by knocking the .357 magnum out of Walker’s hand. When Walker reached for the .45 in Trent’s shoulder holster, Trent pulled it out first and fired it toward Walker. The bullet hit a dining room chair. Walker had dived over a couch and was on his stomach on the floor when Trent walked around the couch and pointed the gun at Walker’s head. He called Walker a “nigger” and threatened to kill Walker immediately. Keeping the gun pointed on Walker, Trent instructed Mills to get a pair of handcuffs out of his kitchen closet. As she retrieved the handcuffs, she noticed that the closet was full of guns, knives, and pills. Trent had her hold the gun while he handcuffed Walker’s hands behind his back. He then told Augel-illi to bring him his Gerber fighting knife from the closet. With the knife in one hand and gun in the other, Trent proceeded to kick Walker, lunge at him with the knife, and repeatedly yell threats, including “You’re dead Ralph Walker! You’re dead, nigger, and you’re goin’ home to your mama in a box.” He also gagged Walker with a towel and strapped duct tape around Walker’s mouth. At this point, Trent called Freund, Daniell, and Bruce Fullerton, another one of his henchmen. He informed Freund that he was having a problem with Walker and he needed Freund to come over with his “little black bag” to sedate Walker. He told Daniell to come over and bring his “piece.” He instructed Fullerton to bring a steamer trunk, a sledge hammer, and a chain saw. Freund and Daniell followed his instructions, while Fullerton apparently ignored them. Freund arrived first, about fifteen minutes after the phone call. Trent ordered him to sedate Walker. Freund injected Walker with magnesium sulfate from his bag. Dan-iell arrived shortly after Freund, while Freund was still injecting Walker. When Daniell got close to Walker, he heard Walker mumble through the tape on his mouth, “Don’t let them kill me.” After multiple injections, Freund ran out of drugs from his bag, but Walker was still conscious. Trent cursed Freund for not bringing enough drugs “to do the job.” He remarked to Daniell that Freund’s stupidity hampered Freund’s chances of becoming a member of Trent’s “elite killer squad.” Trent quickly found some Tranxene and Valium in the kitchen closet. He gave Freund the drugs along with a mortar and pestle and a bottle of vodka. Freund crushed the pills into a powder which he dissolved in the vodka. Freund, Trent, and Daniell all took turns injecting Walker with the mixture. After an injection, Walker would lose consciousness for a short time. When he started reviving, one of them would inject him again. One time when Walker revived, he started groaning loudly. Trent ripped the tape off his mouth. After Walker began to scream, Trent quickly retaped Walker’s mouth, also covering his nose. Daniell pulled the tape down so Walker could breathe. During the course of the evening, Trent related to Dan-iell on more than one occasion that he had always had a fantasy of “killing a nigger” and “fucking him in the ass.” Overcome by these gruesome events, Mills and Angelilli soon retreated to Trent’s bedroom. They could still hear Walter groaning in agony, so they begged Trent to let them leave. He refused to allow them to lqave the building, but he and a hotel doorman escorted them to another apartment within the hotel. After approximately twenty minutes, the doorman brought Mills and Angelilli back to Trent’s apartment. When they returned, Trent told Mills, ‘We had to take him out. He knows too much and we had to run an air bubble to his vein.” Despite this statement, it appears that Walker was still alive when Mills and Angelilli returned to Trent’s apartment. Freund and Trent had indeed injected air into Walker. These injections apparently did not kill Walker right away. Freund told Daniell and Trent that he was surprised they had not caused an embolism. After watching Freund and Trent repeatedly pull the plunger all the way out of a syringe stuck in Walker’s arm and then pop the plunger back in to the hilt, Daniell decided he could not watch anymore and joined the women in the bedroom. Freund stayed in the main room with Walker; Trent went back and forth between the main room and the bedroom. From his vantage point in the bedroom, Daniell saw Freund pick up Trent’s fighting knife as if “he had found a new toy” and then walk in the direction of Walker’s body. When Trent came back to the bedroom, Dan-iell asked him what Freund was doing. Trent replied that Freund “was probably fucking Ralph in the ass.” ' At one point, Angelilli walked to the bathroom. On her way, she could see into the main room. She could not see Walker because he was on the floor behind the couch. She could see Freund, however. Freund had the knife in his hand. He was laughing and making up-and-down stabbing motions behind the couch. Although she apparently could not see where the knife landed, she was positive that Freund was stabbing Walker.' She then ran into the bathroom and vomited before returning to the bedroom. Shortly thereafter, when Trent, Daniell, Mills, and Angelilli were all in the bedroom, Freund walked into the room with blood on his shirt and said, “It’s over.” Trent told him he could not leave wearing the bloody shirt and instructed him to change into one of Trent’s shirts. After washing his hands and putting on. a clean shirt, Freund started to leave. He warned Mills and Angelilli that they had not seen him there. On his way out the door, he told Trent, “It was a pleasure doing business with you. Call me again.” He telephoned about twenty minutes later to inform Trent that he had arrived home safely- After Freund left, Trent told Daniell that he should make Mills and Angelilli lie face down and then shoot them in the back of their heads because “they knew too much.” Daniell convinced him that that was not necessary, and after warning them to keep quiet until he figured out how to proceed, Trent let Mills and Angelilli go home. Daniell stayed with Trent through the next morning. At one point, Daniell saw Walker’s body in the living room in a pool of blood. Walker’s pants had been pulled down around his ankles. The next day, Wednesday, Daniell drove Trent around town. They picked up Trent’s van from House of Draperies. They returned to the Palm Beach Hotel in the van to retrieve Walker’s bicycle, which Walker had left in front of the hotel. After leaving the bicycle at House of Draperies, they drove to the apartment of one of Trent’s girlfriends. They made arrangements for the girlfriend and Fullerton to purchase a steamer trunk, which they would use to remove Walker’s body from Trent’s apartment. At some point, Trent ended up back at House of Draperies. Later that day, Mills picked Trent up from House of Draperies and drove him to his Palm Beach Hotel apartment. Fullerton soon joined them, and the three began to clean up the apartment, though they left Walker’s body on the floor behind the couch. Trent and Fullerton discussed removing the body in a steamer trunk. Mills stayed at Trent’s through the night. Freund arrived around two o’clock Thursday morning. Trent, Freund, and Mills sat around the dining room table snorting cocaine, drinking, and talking for several hours. They discussed how they would dispose of Walker’s body. Trent also discussed Freund’s medical practice. He suggested he would help Freund regain his hospital privileges and declared that he would “own” Freund’s practice. During the entire night, Freund had acted oblivious to Walker’s corpse still sprawled on the floor. Freund left the apartment sometime early Thursday morning. The body remained in Trent’s living room until Thursday. During this time, Trent threatened to kill Mills and Angelilli if they said anything to the police; he also reminded them that he had the local police under his control. Similarly, Trent threatened to kill Daniell’s family if he did not help Trent conceal the body. At one point, Trent told Angelilli that Walker had gotten what he deserved and that he had to die because he knew too much. Freund returned to Trent’s apartment around 10:30 on Thursday morning. He arrived with two young men and one young woman; the four of them stayed in Trent’s bedroom, while Trent and Mills were in the main room. Trent told Mills to be sure Freund’s Mends did not come into the main room and see Walker’s corpse. Later that afternoon, after Freund and his Mends had left the apartment, Fullerton arrived with a sledgehammer and a steamer trunk he had purchased with Trent’s girl-Mend. Trent used the hammer to break Walker’s legs so that his body would fit in the trunk. Once Walker’s body was closed in the trunk, Trent, Fullerton, Mills, and another Mend of Trent carried the trunk and several items of women’s clothing to Trent’s van. They were pretending to be moving one of Trent’s girlMend’s belongings from the apartment. They loaded the trunk into Trent’s van, which they drove to House of Draperies. C. By Saturday, July 28,1984, the local police had discovered Walker’s body in Trent’s van at House of Draperies and had begun their investigation. Early that morning, Mills and Angelilli had decided to call the police. They had related the events surrounding the murder and had told the police where to find Walker’s body. Based on Mills’ and Angelilli’s statements, the police obtained and executed search warrants for House of Draperies and Trent’s apartment. At House of Draperies, they found: Walker’s badly decomposed body in the steamer trunk in Trent’s van; boxes of empty beer cans and liquor bottles; trash bags containing syringes, needle wrappers, empty drug capsules, and four empty ampules of magnesium sulfate. They found fingerprints belonging to Trent and Fullerton on the van, but none belonging to Freund. At Trent’s apartment, the police found: duct tape, a loaded .45 pistol in a shoulder holster, a loaded .357 magnum pistol, a pair of handcuffs, bottles of Tranxene and Valium prescribed for Trent by Freund, a sledgehammer, a dented aluminum baseball bat, a dining room chair with a bullet lodged in it, a Gerber fighting knife with human blood on the blade, a bag of blood-soaked towels, and an empty beer can with Mills’ fingerprints. They found no evidence that Freund had been there. Shortly afterwards, Walker’s body was brought to the coroner’s office for an autopsy. The coroner examined five stab wounds straight into Walker’s chest and one entering his lower back and extending upward and inward toward the heart. The wounds had penetrated Walker’s heart. The coroner concluded that these wounds were the cause of death. Injuries to Walker’s wrists indicated that he had been handcuffed, and duet tape was found over his mouth. His body fluids revealed high levels of cocaine, alcohol, and nordiazepam. No needle marks were found, but advanced decomposition in one area indicated the possibility that he had received multiple injections. His body was too badly decomposed to determine whether there had been any anal penetration. After the police discovered the body, Trent fled to Illinois. Daniell eventually approached the police and corroborated Mills’ and Angelilli’s story. In addition to the physical evidence found at Trent’s apartment and House of Draperies, the State thus had three material witnesses willing to testify as to Walker’s murder. Although all three witnesses later testified that they had not been offered any deals in exchange for their testimony, none had been charged, as of the time of Freund’s trial, with any crime resulting from their involvement in the murder or disposition of Walker’s corpse. Mills’ co-eaine prosecution had also been delayed until Freund’s trial was concluded. D. Sometime after the murder, Freund met with the law firm of Foley, Colton and Duncan, P.A. (the “law firm”), the law firm that would defend Freund at trial. This was not the first time that the law firm and its members became entangled in matters involving John Trent. In fact, the law firm had had extensive dealings with Trent for more than thirteen years. In the early 1970s, Robert Foley, as a member of the law firm’s predecessor, Foley and Brennan, began representing Trent in various criminal and civil matters. Over time Roger Colton and Douglas Duncan joined the law firm, which became Foley, Colton and Duncan. Colton and Duncan also personally represented Trent while members of the law firm. Until 1984, the law firm represented Trent in various eases and capacities ranging from civil collection actions involving House of Draperies and Trent’s hotels to criminal matters. In addition to representing Trent, the law firm represented Harriett Trent’s estate. Trent also referred many of his employees and friends to the law firm. According to Trent, he referred all sorts of people to the law firm, ranging from “the pillars of the community to hookers.” Mills and Daniell were among those whom Trent referred to the law firm. Approximately two months before the murder, Mills met with Colton at Trent’s Palm Beach Hotel apartment for less than an hour and explained the facts of her cocaine trafficking charges with him. She disclosed her background and prior criminal record and described her relationship with Trent. They discussed the possibility of her providing assistance to the police. The representation appears to have begun and ended with this meeting. Trent also referred Daniell to the law firm for a traffic violation. The law firm’s relationship with Trent ran deeper than that of attorney and client. Aside from being a client of the law firm, Trent became a fixture around the office. House of Draperies was less than a block away from the law firm’s offices. Trent and his employees came to these offices on a daily basis, sharing the law firm’s copier and occasionally using other office equipment. Trent also performed interior design work for the law firm’s office, as well as for Foley and Colton and the parents of Duncan. The law firm represented Trent at least until the Spring of 1984, shortly before the murder. In 1983, Trent allegedly brandished a gun on a public street and threatened to kill two people. A few days later, the police spotted him driving and knew he was wanted for assault charges. When they stopped him, they discovered diazepam and methaqual-one in his possession. Trent was arrested and charged with drug possession and aggravated assault. The State also initiated a forfeiture proceeding against Trent’s automobile in relation to the possession charge. The law firm represented Trent in both prosecutions, although it withdrew as counsel in May 1984 before the cases were resolved. It filed several pretrial motions and appeared in court for Trent before Judge Mounts, who would later preside over the murder prosecutions of both Trent and Freund. The law firm represented Trent in the forfeiture pro-eeeding, also before Judge Mounts, through final judgment, which issued before May 1984. The State asserts that the law firm’s representation of Trent terminated in May 1984. Freund points to several facts suggesting that the representation may have continued after Walker’s murder. Although he had substituted new defense counsel in his assault and possession cases, Trent called Col-ton to seek legal advice after the murder while he was hiding in Illinois. Colton suggested that Trent was in a lot of trouble and should surrender to the authorities. During a pretrial hearing, Trent testified that he discussed the facts of the murder with Colton on the phone. At an evidentiary hearing following Freund’s conviction, Colton admitted that Trent had called him after the murder, but testified that they did not discuss the facts of the murder. In any event, Trent was represented by different counsel throughout his murder trial. For reasons not revealed by the record, Freund went to the law firm for advice sometime after the murder. The law firm agreed to defend him, and he subsequently surrendered to the authorities at the law firm’s office on July 31, 1984. Trent was arrested in Illinois ten days later. Trent and Freund were both held without bond, and both were indicted as co-defendants for first-degree murder on August 23. The prosecution had begun. Both the law firm’s new client, Freund, and its longtime former client and friend, Trent, faced the possibility of the death penalty for the gruesome, drug-related murder of Ralph Walker. All the physical evidence pointed to Trent as the murderer, and no physical evidence implicated Freund at all. The only witness who claimed to have seen Freund actually commit the murder was An-gelilli, a sixteen-year-old girl who had been high on cocaine and marijuana at the time of the murder. The law firm knew that Trent had a history of arrests for violent assault and possession of the same drug found in Walker’s body: it had defended him on these exact charges just a few months earlier. Although the circumstances of the case strongly suggested that any defense of Freund would involve implicating its former client to some degree, the law firm proceeded to defend its new client. This conflict all but ensured a dramatic prosecution, especially in light of widespread media attention drawn by the sensational nature of the case. Many questions demanded answers, not the least of which was whether the law firm would seek to shift the blame to its former client or would instead present a defense somehow consistent with the interests of both its new client and its former client. E. The law firm did not take long to provide an answer. Two or three days after Freund was arraigned, Foley called a press conference to announce that Freund would rely on an insanity defense. Implicit in this announcement was an admission that, despite the paucity of evidence against him, Freund had killed Walker. Such a defense, if proven to a jury, could relieve both defendants of liability for first-degree murder: Trent could be found not guilty because he did not commit the murder, and Freund would be found not guilty because, although he committed the murder, he was insane. The case was eventually assigned to Judge Mounts, who had earlier presided over Trent’s assault and drug prosecutions as well as the forfeiture proceeding. After several hearings to determine Freund’s competency to stand trial, Judge Mounts declared him competent on February 5, 1985. Not surprisingly, it did not take long for two conflict issues to arise during pretrial proceedings. The first issue arose at a deposition on April 16, 1985. Mills refused to answer any questions posed by Duncan on the ground that her consultation with Colton regarding her cocaine trafficking charges had established an attorney-client relationship with the law firm. As a result of this relationship, she asserted that any questioning of her by Duncan, or any other member of the law firm, on Freund’s behalf would conflict with her attorney-client privilege. She admitted that she had disclosed to Trent’s counsel, in the course of the deposition, everything she had discussed with Colton. The second conflict issue arose less than a month later. On May 13, 1985, the law firm filed a motion to sever on behalf of Freund, asking the district court to sever the ease so that Freund and Trent would be prosecuted in separate proceedings. The law firm noted that if Trent decided to testify on his own behalf, it would be faced with a decision of whether and how to cross-examine its former chent. A severance should be granted, the law firm reasoned, to avoid even the remotest scintilla of an appearance of impropriety. This is not to say that an appearance of impropriety exists. Instead, there appears to be no provision contained in The Code of Professional Responsibility that prohibits a lawyer/law firm from undertaking representation of a new client who is charged with a criminal offense along with a former client. The motion concluded with a statement that an informal written opinion addressing the possible conflict had been requested from The Florida Bar. The record does not disclose whether Judge Mounts ever issued a final ruling on this motion. In light of the conflict issues raised by Mills at her deposition and by the law firm in Freund’s severance motion, Duncan wrote a letter to The Florida Bar on May 13, 1985, requesting an informal opinion on both issues. As to the law firm’s prior representation of Trent, Duncan asked two related questions: (1) whether the law firm ethically could defend Freund while Trent was a co-defendant in the same trial; and (2) whether “there [is] anything ethically wrong with arguing in a separate trial, that a former client is responsible for a homicide as opposed to the new client.” His request did not detail the law firm’s relationship with Trent beyond a statement that Foley and Colton had “represented [Trent] in the past on various legal matters, including criminal charges. Clearly, the prior representations of [Trent] are in no way connected to the instant homicide.” As to Mills’ refusal to answer questions posed by the law firm, Duncan inquired whether “there [is] anything by virtue of the one initial consultation with Ms. Mills, that would preclude my law firm from examining and questioning Ms. Mills concerning her knowledge of the homicide.” Duncan received a response on May 31, 1985. Dennis Crowley, Ethics Counsel for The Florida Bar, issued an advisory staff opinion (the “Bar opinion”). Regarding the law firm’s prior representation of Trent, the Bar opinion did not offer a direct answer to either question posed by Duncan. Perhaps wary that he did not have sufficient details of the law firm’s representation of Trent, Crowley merely outlined some relevant considerations in the abstract. The Bar opinion stated: [Wjhere the matter [in which an attorney represented a former client] is so unrelated, as to either substance or time, that the attorney could not have acquired information [from] the former client which could be used to his detriment, the attorney may ethically undertake representation adverse to his former client. If such related information was acquired during the course of former representation, [Florida’s Code of Professional Responsibility] would prohibit the proposed representation even if a severance of the former and present clients’ cases were granted. Therefore the responsibility of the former client in the present case could only be argued where no detrimental information was obtained in the previous distant or unrelated representation. As to whether the law firm could question Mills about the homicide, the Bar opinion suggested that it could as long as its questioning did not reveal any confidences or secrets between the law firm and Mills. It seemed to warn that, if Mills’ consultation with the law firm was either close in time to the homicide or related to the homicide, the law firm, would be prohibited by Florida’s Code of Professional Responsibility from questioning Mills concerning the homicide. The Bar opinion also warned Duncan that the conflict “has potential for violating” ethical rules requiring the law firm to represent Freund zealously within the bounds of the law. On June 3, 1985, Duncan filed a motion seeking an order from Judge Mounts that Mills’ submit to a deposition by the law firm. In support of his motion, he attached the Bar opinion, which he summarized as follows: “In essence, The Florida Bar has advised the undersigned law firm, that there are no ethical problems in examining Ms. Mills concerning her knowledge or lack of knowledge about the homicide giving rise to the charge of first degree murder [against Freund].” Duncan assured Judge Mounts that the law firm would “maintain the confidences and secrets that may have been disclosed by Ms. Mills to Mr. Colton during their initial consultation on the unrelated criminal charge.” ■He went on to state that, because the murder occurred after the consultation, the law firm would not be prohibited from questioning Mills about her “observations and opinions concerning the alleged homicide.” On August 20, 1985, Trent filed a motion to sever on two grounds, only one of which is relevant to the instant ease. The main ground involved the conflict arising from the law firm’s relationship with Trent: the law firm had acquired confidential information that it could use to Trent’s detriment at trial. Despite his previous motions to sever, Freund initially joined the State in opposing Trent’s severance motion. Judge Mounts conducted a hearing on Trent’s severance motion on September 3, 1985, the day jury selection for the trial was scheduled to begin. The hearing was open to the public and apparently drew a significant amount of media attention. Trent testified on his own behalf at the hearing. He began his testimony by detailing the attorney-client relationship that had developed between the law firm and him. During the course of the representation, Trent had confided his personal secrets and business affairs to both Foley and Colton. After the law firm had advised him that all communications would be completely confidential, Trent admitted his participation in multiple criminal activities involving drugs and prostitution. Although he had previously obtained substitute legal counsel for the drug and assault prosecutions, he called Colton, in lieu of the substitute law firm, after the murder. He did this because he felt Colton was still his attorney, because of his long-term relationship with the law firm, and because of his understanding of the attorney-client privilege. His testimony soon moved from his professional relationship with the law firm to a more personal and lurid relationship. He had considered Foley , and Colton to be close friends in addition to his legal counsel. Beyond discussing his criminal activities, Trent had recounted the details of his sexual exploits and interests to both lawyers. He told them about his use of “sexual devices,” including whips, chains, dildos, and handcuffs, and showed these devices to them at his Palm Beach Hotel apartment on several occasions. He also claimed to have used cocaine and other drugs in their presence, including in their office. As he developed his testimony, he soon made clear that Foley and Colton did more than listen to his tales of deviancy. With the media recording his every word, Trent made several serious allegations against both lawyers. He claimed to have delivered cocaine to their friends, sometimes at the law firm’s offices. He suggested that he had provided both men with prostitutes on many occasions, often as payment for legal services. Trent allegedly provided Foley with “so many [prostitutes] over the years ... it [was] almost a daily occurrence.” He alleged that the two attorneys had attended and participated in many of his “sex parties” involving cocaine and prostitutes. One particularly inflammatory allegation involved a sex party at the law firm’s offices. He and Foley allegedly invited several prostitutes to the offices after hours. One of them accidentally tripped the burglar alarm, which was monitored by the police. When the police arrived, Trent recounted that he had to answer the door because Foley had no pants on. These dramatic allegations caused a considerable stir in the courtroom, and Judge Mounts called a recess to give the law firm an opportunity to prepare its strategy in response. During this recess, Duncan and Freund left the courtroom and met privately in a holding cell to discuss the allegations. Duncan described the allegations as “appalling” and “shocking” and told Freund that “if your faith in our law firm to represent you is in.any way shaken, I will go back in there with you to get you new lawyers.” Freund responded that he felt the allegations would make the law firm represent him even more zealously than before. After the parties returned and the hearing resumed, Trent’s counsel called Colton to the stand. Colton flatly denied the allegations against him. At the end of Colton’s testimony, Judge Mounts personally questioned him from the bench. He elicited that Colton was an upstanding member of The Florida Bar, enjoyed a solid reputation for fairness and professionalism, and had served on several bar committees involving issues ranging from legal ethics to judicial appointments. Judge Mounts ended his rehabilitation of Colton with a remark to everyone in the packed courtroom suggesting that he hoped they all understood Colton’s excellent reputation. At the conclusion of the severance hearing, the law firm announced that it had again changed its position on severance. Despite its earlier opposition to Trent’s motion, it stated that developments at the hearing had led it to agree that a severance was in Freund’s best interest. After asserting that “the bottom line” of the Bar opinion was that there was no conflict, Duncan finally conceded that “the delicate nature” of the ethical rules pertaining to conflicts of interest made cross-examination of Trent by the law firm inappropriate. The State continued to oppose severance, relying in large part on the Bar opinion, which it described as “stating that there was no conflict of interest.” These proceedings eventually convinced Judge Mounts to grant the severance. Trent went to trial first. After his trial resulted in a hung jury, the State dropped the capital charge and he pled guilty to second-degree murder. Trent received a seventeen-year sentence and, according to Freund’s initial brief in the instant appeal, has since been released. On October 21, 1985, Duncan filed a Motion to Disclose Confidential Informant. The motion stated that Duncan had received an anonymous tip that a confidential informant for the police had discovered corpses buried under House of Draperies. The motion indicated that “such evidence ... would be relevant and admissible ‘Williams Rule’ type evidence for the defense to establish that it was John Trent who actually murdered Ralph Walker.” The record does not reveal whether Judge Mounts ruled on the motion. At any rate, the law firm presented no evidence at trial suggesting that Trent, not Freund, was the actual killer. Jury selection for Freund’s trial began on October 21, 1985, and the trial itself commenced on October 23. Duncan and Foley both represented Freund at trial. The State first introduced most of the physical evidence through the testimony of various police officers who conducted the investigation. The State also presented the results of Walker’s autopsy, through the testimony of the pathologist who conducted it. Through the testimony of Mills, Angelilli, and Daniell, the State next presented the details of the murder. Although there were minor inconsistencies, the three witnesses essentially recounted the events leading up to and following Walker’s murder, as described supra part I.B. They all testified that Freund was present at Trent’s apartment the night of the murder and that, at Trent’s direction, he injected Walker first with magnesium sulfate, then with mixtures of vodka and Valium and vodka and Tranxene, and finally with air. Angelilli was the only witness to testify that she thought she saw Freund stabbing Walker. All three testified that Freund was alone in the main room with Walker for a short time, after which he came into the bedroom with blood on his shirt. After describing their role in helping Trent clean up and move Walker’s body, the witnesses each concluded their direct testimony by recounting how and why they went to the police. On cross-examination of each of the three witnesses, Duncan elicited personal facts tending to detract from their credibility. He questioned Mills about “Port 0 Call for Men,” the escort service she ran. The questioning strongly implied that the service was a front for prostitution. During his cross-examination of Angelilli, Duncan elicited that just prior to the trial, Angelilli had worked as a topless dancer. While cross-examining Daniell, he elicited that Daniell was an ex-convict. Daniell also admitted to having said he “would never go back to prison except on a slab.” Duncan brought out many of the inconsistencies of each witness’ testimony on cross-examination. For example, he elicited from both Mills and Angelilli that when they originally went to the police, they made no mention of Daniell at all. They explained that they were afraid to inculpate him because they thought he was a hit man who would kill them. They did not acknowledge that he was present that night until after he had gone to the police. While cross-examining Mills, Duncan asked a series of questions about how she came to know Trent and about her prior arrest on cocaine charges. Specifically, he had her recount the basic background of the offense and Trent’s assistance from her arrest almost all the way to her meeting with Colton. Perhaps realizing that this line of questioning came very close to highlighting the law firm’s prior involvement with Trent, Duncan moved to another topic before reaching Mills’ consultation with Colton. After the State rested, Foley and Duncan presented Freund’s insanity defense. Through the testimony of several witnesses, they demonstrated that Freund had a good reputation as an oncologist before his suicide attempt. They developed the facts surrounding the suicide attempt, focusing on the changes in Freund’s personality caused by the resulting brain damage. Colleagues of Freund testified that he seemed to be a different person with severe memory problems. The defense moved to the testimony of several experts who explained the symptoms caused by the brain damage, including susceptibility to suggestion and a lack of independent judgment. Many of these experts had evaluated Freund shortly after his suicide attempt to determine whether or not he was fit to return to the practice of medicine. During its cross-examination of Freund’s witnesses and through the testimony of the witnesses it called on rebuttal, the State attempted to demonstrate that Freund knew what he was doing when he killed Walker and knew that it was wrong. When cross-examining one of the psychiatrists called by Foley, the State elicited that Freund had told the psychiatrist that he remembered the events of the night of the murder. Specifically, the jury heard the psychiatrist confirm that Freund had admitted to remembering the following: Trent called him to come over and kill Walker. When he arrived at Trent’s apartment, Walker was lying on the floor in handcuffs. He injected Walker with Demerol and Valium, knowing that these drugs would not kill Walker. He stabbed Walker several times with a letter opener. He did not know who Walker was when he stabbed him. He first stabbed Walker in the back, but then turned him over to stab him in the heart because, as a doctor, he knew that was the way “to really kill a person that is in handcuffs.” Neither Duncan nor Foley objected to this line of questioning. Judge Mounts did instruct the jury, on more than one occasion, that Freund’s statements to psychiatrists may .be treated “as evidence of mental condition only and not as evidence of the factual truth which may be contained in them.” The State called its own expert witness on rebuttal, a psychiatrist who had been appointed by the court to determine Freund’s competency to stand trial. This expert witness testified that his observations of Freund led him to believe that Freund was feigning most of his mental problems. He suggested that Freund committed the murder as an act of “homosexual perversion.” He claimed that although the stabbing may have been the result of an “irresistible impulse,” Freund definitely knew that he was killing Walker and knew that what he was doing was wrong. The witness further commented on the reports prepared by the psychiatrists that had examined Freund to determine his competency to return to the medical practice. He interpreted those reports as indicating that Freund’s condition was .improving and that Freund might have been able to return to the practice of medicine. He suggested that the psychiatrists who testified on Freund’s behalf had exaggerated in attempting to characterize the reports as supporting Freund’s insanity defense. The last witness called by the State on rebuttal, and the last witness of the entire trial, was James Stob, a friend of Freund. Stob testified that he had seen Freund a week or two before the murder. They saw each other in their cars while stopped in traffic and exchanged small talk. After reading about the murder and Freund’s arrest in the newspaper, Stob had gone to see Freund in jail. He testified that Freund denied killing Walker. The final testimony heard by the jury was Stob’s testimony on cross-examination by Duncan. Duncan pursued two strange lines of questioning, both relating to Stob’s opinion of Freund’s legal representation. Duncan first elicited that when he visited Freund in jail, Stob had recommended that Freund hire another attorney. After several somewhat argumentative questions on this recommendation, Judge Mounts sustained an objection by the State on relevancy grounds. Duncan then proceeded to elicit that Stob had disagreed with the law firm’s decision to pursue an insanity defense from the beginning of its representation of Freund. Judge Mounts again sustained an objection by the State, this time on grounds that the line of questioning was argumentative. Duncan had no more questions and Stob stepped down. The State rested its case in rebuttal, and Judge Mounts excused the jury for the day while the lawyers argued over the jury instructions. The closing arguments focused on Freund’s insanity at the time of the murder. The State argued that Freund knew exactly what he was doing and that he falsely tried to convince his psychiatrists that he was insane. It argued that Freund was guilty of first-degree murder under either of two theories: (1) the murder was premeditated; or (2) the murder was committed while Freund was engaged in the felony of kidnapping. Duncan focused on Freund’s brain damage and the testimony of the psychiatrists called on Freund’s behalf, arguing that Freund either did not know what he was doing when he stabbed Walker or, if he did know what he was doing, did not know that it was wrong. Duncan asserted that there were two victims in the case — Walker and Freund. He argued that Trent knew that Freund’s condition left him susceptible to influence and that Trent accordingly manipulated and controlled Freund, making him kill Walker. At one point, Duncan turned the argument over to Foley. After arguing that there was reasonable doubt as to Freund’s sanity, Foley then took an entirely different approach. Although the defense position throughout the proceedings, from opening statements through most of the closing argument, had been that Freund committed the murder but was insane, Foley questioned for the first time whether Freund actually committed the murder. Foley told the jury: [Freund] was told to do something. He did it, and because of the stressful situation, Ralph Walker is dead. We don’t really know who did it. I always wondered whether Trent did it and told this poor guy, “You did it. My colleagues here are telling you you did it.” The same girls were lying when they told the police they didn’t even tell them about Daniell in the sworn statement. The woman is going to get fifteen years mandatory without parole lifted for her if she cooperates, but she lies, she is in trouble and she lied about Daniell and Daniell got the word and he figured he better get in on the train also so he runs down to the police station Tuesday, I think it was, after the murder, and gives his statement and they say okay. Remember, he lied about that so we don’t know what happened there. We can’t guess what happened. We can’t guess this man into the electric chair and we can’t guess him into 25 years in the penitentiary without parole. Foléy then returned to the insanity defense and soon ended his argument. In the State’s closing argument, in addition to refuting the insanity defense, the State addressed Foley’s statements:' “Now, Mr. Foley tells you we are not even súre if Freund stabbed Walker. That’s ridiculous.” After receiving their instructions from Judge Mounts, the jury deliberated for a total of three hours over two days. They returned a verdict of guilty of murder in the first degree on November 1, 1985. At a subsequent penalty phase, the jury recommended a life sentence by a vote of ten to two. Judge Mounts accepted the recommendation and sentenced Freund to life in prison without the possibility of parole for twenty-five years. F. Still represented by the law firm, Freund appealed his conviction on grounds unrelated to the instant petition. Both the Florida Fourth District Court of Appeal and the Supreme Court of Florida affirmed his conviction. Freund v. State, 506 So.2d 437 (Fla. 4th Dist.Ct.App.1987) (per curiam), aff'd, 520 So.2d 556 (Fla.1988). After his direct appeal failed, Freund obtained new counsel to attack his conviction collaterally. Through the same counsel that represents him in the instant appeal, Freund filed a motion on March 29, 1990, to vacate the judgment and sentence, pursuant to Fla. R.Crim. P. 3.850 (the “3.850 motion”). The motion was based in part on the claim that Freund was denied his constitutional right to the effective assistance of counsel because of the law firm’s conflicts of interest. Judge Mounts denied the motion and a subsequent motion for rehearing without conducting an evidentiary hearing. Freund appealed, and on December 19, 1990, in an unpublished opinion, the Florida Fourth District Court of Appeal reversed and remanded the case for an evidentiary hearing on the ineffective assistance claim. On remand, Freund’s counsel moved to disqualify Judge Mounts on January 7, 1991. During proceedings held on Freund’s earlier motion for reconsideration of the denial of his 3.850 motion, Judge Mounts admitted to having “firm, fixed and select feelings and opinions about the credibility of’ Trent. Claiming that Trent was “one of the key witnesses in support of [Freund’s] claim of conflict of interest,” Freund’s counsel argued that Judge Mounts’ preconceived notions about Trent’s credibility should disqualify him. Judge Mounts recused on January 10, 1991, and the case was reassigned to another circuit judge, who held an evidentiary hearing on April 25,1991. At the hearing, Freund’s counsel developed the law firm’s conflicts of interest primarily through the testimony of three witnesses. The first witness was Thomas Dick. In 1983 and 1984, Dick was an auxiliary patrolman for the Riviera Beach Police Department and a friend of Trent. Trent had asked Dick to conduct a background investigation of the woman who filed the 1983 aggravated assault charges against Trent. Although he denied ever conducting an investigation, Dick did obtain the police report in that matter and met with Colton and Trent to discuss the case. At one point in this meeting, Colton told Dick that Trent “better straighten up or he’s going to be in more trouble than he knows what to do with.” While he did not refuse to investigate the assault victim, Dick claimed that he kept putting it off and never got around to it. Moving to the events following the murder, Dick testified that he learned that Trent was a fugitive in the murder investigation and that Freund, represented by Foley, had surrendered. Daniell went to see Dick shortly thereafter. Daniell told Dick that “he was [at Trent’s apartment] when whatever happened happened.” Dick convinced Daniell to turn himself in to the Palm Beach Police Department, and both men went to the police station. At some point, an officer from the department obtained Dick’s permission to record calls made to Dick’s residence. The police recorded several conversations between Dick and Trent over the next few days. The tapes of several of the telephone calls were played at the evidentiary hearing. These conversations revealed that Trent was in contact with Colton following the murder. Trent wanted to hire Dick to do some investigatory work, and he told Dick he would ar