Ct. App. Ga. Reported below: 154 Ga. App. 775, 270 S.E. 2d 50.
Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Wood v. Georgia, ante, p. 261.
JUSTICE BRENNAN, dissenting.
I agree with JUSTICE WHITE that the record in this case presents clear evidence of waiver and that remand is therefore inappropriate. Rather than grant the petition for a writ of certiorari, however, I would vote to summarily reverse the conviction for distributing obscene materials in violation of Ga. Code § 26-2101 (1975) under the view I have frequently expressed, and to which I adhere, that such an obscenity statute is facially unconstitutional. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 113 (1973) (BRENNAN, J., dissenting); McKinney v. Alabama, 424 U.S. 669, 678 (1976) (separate opinion of BRENNAN, J.).
JUSTICE WHITE, dissenting.
We granted certiorari in Wood v. Georgia, ante, p. 261, in order to decide whether it is permissible under the Equal Protection Clause for a State to revoke an offender's probation for failure to make regular payments toward the satisfaction of a fine when nonpayment is due to the offender's indigency. This case raises the identical issue.
The majority vacated and remanded Wood v. Georgia on the ground that petitioners were perhaps deprived of
their constitutional right to adequate assistance of counsel by the possibly divided loyalties of their counsel. For reasons that I have explained in my dissent in that case, ante, at 275-281, I do not believe that the Court's disposition of Wood falls within the limits of our jurisdiction. The same jurisdictional limits apply to this case: petitioner at no point sought relief in the Georgia courts on the basis of a claim of ineffective assistance of counsel, nor has there been a final decision on this issue by the highest state court in which a decision could be had, as is required by 28 U.S.C. § 1257 (3). Beyond that, however, the State abandoned any suggestion of conflicting interest and has not raised it here.
There is, in my view, even less justification for the majority's disposition of this case than there is for the conclusion reached in Wood. Here, the potential conflict of interest was explained by the trial court to petitioner, and petitioner waived whatever constitutional right he might have had to a different attorney. The transcript in this case shows that the State's attorney raised the conflict of interest issue:
"It is my contention, and the facts would show,... that [petitioner] worked for an organization headquartered on Marietta Street; that they promised they would pay all fines, if any, the lawyer's fees, bond fees and what not and he is now in a position that if his fine had been paid, he would not be where he is. He would not be in jail....[T]he people who promised him that were the people that employed Mr. Zell to come and represent him.... If he has employed Mr. Zell, that is one thing, but if they have employed Mr. Zell to come down here and act on his behalf in this matter, I say that there is a clear and distinct conflict of interest." Tr. 2.
The trial court responded to this charge by asking petitioner if Mr. Zell was representing him and petitioner answered: "He is right now." The court continued:
"Well, do you understand that if you do ...