by Rona Li*
In a capital case, can a defense attorney, against his client’s express objections, concede his client’s guilt to the jury? In this Contribution, Rona Li (’19) discusses the trial strategy of a defense attorney conceding guilt to avoid a death sentence and the conflict with his client’s Sixth Amendment right to conduct his own defense. Ultimately, this Contribution argues that when a defense attorney admits his client’s guilt to the jury over his client’s unequivocal objection, he violates the defendant’s Sixth Amendment right to make fundamental decisions about his case, and further, that his actions constitute ineffective assistance of counsel.
Capital cases present a unique set of considerations for defense attorneys. In certain situations in which the prosecution’s evidence is overwhelming, the defendant may choose to admit his guilt to the jury in the hopes of maintaining credibility and convincing the jury to forgo a death sentence at the sentencing phase. The Supreme Court has ruled that it is permissible for counsel to pursue such a concession strategy without his client’s express consent when doing so may be the best chance of avoiding a death sentence.2 However, the Court has not ruled on whether counsel can concede his client’s guilt against his client’s express objection.3
This Contribution will argue that when a defense attorney admits his client’s guilt to the jury over his client’s unequivocal objection, he violates the defendant’s Sixth Amendment right to conduct his own defense and to make fundamental decisions about his case. Further, such conduct by an attorney constitutes ineffective assistance of counsel under the test outlined in United States v. Cronic.4
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The Sixth Amendment of the United States Constitution guarantees to a defendant the right to conduct his own defense.5 The Supreme Court has explained that this right is based on “the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty.”6 A defendant’s right to direct his own defense is so robust that he has the power “to supersede his lawyers” entirely and “conduct the trial himself.”7
The Sixth Amendment also guarantees the accused in a criminal proceeding the right to assistance of counsel.8 A defendant’s right to assistance of counsel in no way diminishes his right to conduct his own defense; rather, the right to assistance of counsel “was intended to supplement the other rights of the defendant, and not to impair the absolute and primary right to conduct one’s own defense.”9 Indeed, a defendant cannot be required to relinquish one constitutional right for another.10 The language of the Sixth Amendment makes clear that counsel should play an ancillary role and respect defendant’s ultimate authority to control his own defense: “an assistant, however expert, is still an assistant.”11 A defendant’s right to conduct his own defense and his right to assistance of counsel are not, and cannot be, mutually exclusive. Rather, they operate in unison to afford a defendant his full protections under the Sixth Amendment.
An attorney can make certain strategic decisions without his client’s express consent, but the defendant alone has the authority to make fundamental decisions about his case.12 Attorneys are permitted to make strategic choices of how to conduct the trial, “including the objections to make, the witnesses to call, and the arguments to advance.”13 Such matters “can be difficult to explain to a layperson,” and draw upon an attorney’s expertise and experience.14 In other words, counsel is granted the latitude to manage trial strategy because “in most instances the attorney will have a better understanding of the procedural choices than the client.”15 Indeed, requiring a client’s consent for each of the many strategic and procedural choices counsel is required to make would be impractical.16
The Supreme Court has set forth two tests to assess claims of ineffective assistance of counsel. Typically, such claims are assessed under the test outlined in Strickland v. Washington, which asks whether counsel’s performance was deficient, and if so, whether that deficient performance was unfairly prejudicial to the defendant.17 Cronic carves out an exception to the Strickland test for three scenarios in which prejudice is presumed.18 One of those scenarios is where counsel fails to subject the prosecution’s case to meaningful adversarial testing.19 The Court explained in Cronic that meaningful adversarial testing requires that defense counsel acts as his client’s advocate.20
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An attorney’s admission of his client’s guilt to the jury over his client’s express objection should be deemed unconstitutional. When a defendant decides to maintain his innocence and gives his attorney clear directions to not admit his guilt to the jury, his choice must be respected under his Sixth Amendment right to conduct his own defense. Taking advantage of assistance of counsel does not diminish this right. The Supreme Court has held that counsel “shall be an aid to a willing defendant—not an organ of the State interposed between an unwilling defendant and his right to defend himself personally.”21 Moreover, lawyers are often accurately characterized as agents who have a duty to serve their client as principle.22 When an attorney admits his client’s guilt over his client’s express objection, he fails to act as his client’s agent. Thus, when an attorney proceeds with a concession strategy against the defendant’s articulated wishes, he transgresses his authority under the counsel clause rather than providing defendant “with assistance at what, after all, is his, not counsel’s trial.”23
Further, admitting guilt in a murder trial is not one of the strategic decisions that an attorney can unilaterally make. Admitting guilt is hardly an esoteric procedural choice that the defendant is incapable of understanding. Unlike matters that depend on the rules of evidence and procedure and thus “reflect considerations more significant to the realm of the attorney than to the accused,”24 the decision to admit guilt to the jury and its corresponding implications are easily comprehensible to a layperson. Nor would prohibiting counsel from unilaterally deciding to execute a concession strategy undermine the efficiency goals underlying counsel’s authority to make trial strategy decisions. Obtaining a client’s consent to advance a concession strategy can be done in a single conversation and is therefore not impractical or unduly burdensome to the trial process.
Moreover, the decision to maintain innocence or admit guilt in a capital case involves a value judgment personal to the defendant. Capital offenses are reserved for the most serious crimes, and the decision of whether to admit guilt to such a crime should belong to the defendant alone.25 To allow defense counsel to override his client’s decision to maintain innocence in a capital case would be to condone a brand of paternalism repugnant to the values of defendant autonomy enshrined by the Sixth Amendment. The Supreme Court long held that the accused retains “the ultimate authority to make certain fundamental decisions regarding the case.”26 In a capital murder trial, a defendant’s decision that his attorney may not affirmatively declare his guilt to the jury could hardly be more fundamental to the case. Granting a defendant the authority to make this significant decision underscores “the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty.”27
Whether an attorney believes that his concession strategy will benefit the defendant is of no import. The Supreme Court has held that “although [the defendant] may conduct his own defense ultimately to his own detriment, his choice must be honored out of that respect for the individual which is the lifeblood of the law.”28 The issue is not whether conceding guilt was the strategy least likely to result in execution; it is whether a defendant’s decision to reject a concession strategy must be respected under the Sixth Amendment.
Florida v. Nixon 29 is inapposite and does not modify the analysis here. Nixon held that when the defendant is informed of counsel’s strategy to admit guilt in order to lessen defendant’s chance of receiving a death sentence, “and the defendant is unresponsive, counsel’s strategic choice is not impeded by any blanket rule demanding the defendant’s explicit consent.”30 In that case, Nixon’s lawyer attempted to explain his strategy of conceding guilt at least three times, but Nixon “never verbally approved or protested [counsel’s] proposed strategy” and “was generally unresponsive.” Nixon’s lawyer subsequently explained that he only pursued his concession strategy after “failing to elicit a definitive response from Nixon.”32 The trial court found that Nixon consented to the concession strategy through his pattern of “passively receiving information;” this Court agreed, noting that Nixon’s counsel was “not additionally required to gain express consent.”33 However, when a defendant explicitly and repeatedly communicates that he disagrees with his attorney’s concessions strategy, he cannot be deemed unresponsive. Such conduct could not be further from Nixon’s “characteristic silence” that permitted his counsel to pursue a concession strategy.34 As a result, an attorney cannot rely on Nixon to justify admitting his client’s guilt when his client has unequivocally opposed such a decision.
This conclusion coheres with the ABA Model Rules of Professional Conduct. An attorney’s ethical and professional obligations require him to “abide by a client’s decisions concerning the objectives of the representation” and to “consult with the client as to the means by which they are to be pursued.”35 Accordingly, when a defendant informs his counsel that he intends to maintain his innocence to the jury, counsel’s ethical obligations compel him to respect the defendant’s trial objectives. Thus, when counsel fails to uphold his client’s objective to maintain his innocence by declaring his guilt to the jury, counsel violates both his client’s Sixth Amendment rights and his own ethical obligations.
Finally, when an attorney pursues a concession strategy against his client’s objection, he provides ineffective assistance of counsel under the test outlined in Cronic. The adversarial process requires defense counsel to hold the prosecution to its burden of proof.36 When counsel admits his client’s guilt, he relieves prosecution of its burden of proof, resulting in a breakdown of the adversarial process. Moreover, when the attorney questions his client on the stand, there is a further breakdown of the adversarial process because they present inconsistent narratives to the jury. When the defendant and his attorney have opposing narratives, questioning resembles cross-examination with the attorney playing the role of prosecutor rather than the role of defense attorney.
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In sum, when a defense attorney pursues a concession strategy over his client’s unequivocal objection, he violates the defendant’s Sixth Amendment right to conduct his own defense and to make fundamental decisions about his case. Additionally, this conduct constitutes ineffective assistance of counsel. The Supreme Court should hold such to safeguard the integrity of defendants’ Sixth Amendment rights.
* Rona Li is a 2L at New York University School of Law. This piece is a commentary on a problem written for the 2018 John J. Gibbons Criminal Procedure Moot Court Competition at Seton Hall University School of Law. The views expressed in this article do not necessarily represent the views of the author on this point. Rather, this article is a distillation of one side of an argument assigned to the team.
2. Florida v. Nixon, 543 U.S. 175, 190-193 (2004).
3. This issue is set to be decided by the Supreme Court in McCoy v. Louisiana (2018).
4. 466 U.S. 648 (1984).
5. McKaskle v. Wiggins, 465 U.S. 168, 174 (1984). See also Faretta v. California, 422 U.S.806, 819-20 (1975) (“The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails”).
6. Weaver v. Massachusetts, 137 S.Ct. 1899, 1908 (2017).
7. Snyder v. Massachusetts, 291 U.S. 97, 106 (1934).
8. U.S. Const. amend. VI. (“In all criminal prosecutions, the accused shall enjoy the right…to have the assistance of counsel for his defense.”).
9. Faretta, 422 U.S. at 816 (internal citations omitted) (emphasis added).
10. See Simmons v. United States, 390 U.S. 377, 394 (1968) (“[W]e find it intolerable that one constitutional right should have to be surrendered in order to assert another.”).
11. Faretta, 422 U.S. at 820.
12. See Gonzalez v. United States, 553 U.S. 242, 249 (2008); Jones v. Barnes, 463 U.S. 745, 751 (1983).
13. Gonzalez, 553 U.S. at 249.
14. Id.; see also Powell v. Alabama, 287 U.S. 45, 69 (1932) (“Even the intelligent and educated layman…lacks both the skill and knowledge adequately to prepare his defense.”).
15. Gonzalez, 553 U.S. at 249-50.
16. See Taylor v. Illinois, 484 U.S. 400, 418 (1988) (“The adversary process could not function effectively if every tactical decision required client approval.”).
17. 466 U.S. 668, 687 (1984).
18. United States v. Cronic, 466 U.S. 648, 658 (1984) (holding when the circumstances “are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified,” the court must presume prejudice and need not inquire into counsel’s actual performance at trial).
19. Cronic, 466 U.S. at 656. The other two scenarios are where there is a complete denial of counsel and where the surrounding circumstances make it extremely unlikely that any lawyer could provide effective assistance. Id.
20. Id. at 656 (“[T]he adversarial process protected by the Sixth Amendment requires that the accused have counsel acting in the role of an advocate.”) (internal citations omitted); see also Florida v. Nixon, 543 U.S. 175, 189 (2004) (holding there is ineffective assistance of counsel where “counsel has entirely failed to function as the client’s advocate.”).
21. Faretta v. California, 422 U.S.806, 820 (1975).
22. See, e.g., Deborah A. DeMott, The Lawyer as Agent, 67 Fordham L. Rev. 301, 301 (1998) (“the lawyer-client relationship is a commonsensical illustration of agency”).
23. McKaskle v. Wiggins, 465 U.S. 168, 170 (1984).
24. Gonzalez v. United States, 553 U.S. 242, 253 (2008).
25. See Kennedy v. Louisiana, 554 U.S. 407, 420 (2008).
26. Jones v. Barnes, 463 U.S. 745, 751 (1983). In Jones the Supreme Court enumerated certain rights—to plead guilty, waive a jury, testify on the defendant’s own behalf, or take an appeal—that may be waived only with the client’s consent. 463 U.S. at 751. But proceeding absent a client’s explicit consent is distinct from proceeding against a client’s express objections.
27. Weaver v. Massachusetts, 137 S.Ct. 1899, 1908 (2017).
28. Faretta v. California, 422 U.S.806, 834 (1975). Cf. Lee v. United States, 137 S. Ct. 1958, 1968-69 (2017) (recognizing that a defendant might prefer to reject a guilty plea and proceed to trial despite almost certain conviction).
29. 543 U.S. 175 (2004).
30. 543 U.S. at 192 (emphasis added).
31. Id. at 180.
32. Id. at 186.
33. Id. at 186-89.
34. Id. at 189.
35. Model Rules of Prof’l Conduct r. 1.2(a) (Am. Bar Ass’n 2014).
36. See United States v. Cronic, 466 U.S. 648, 656 n.19 (1984) (“[E]ven when no theory of defense is available, if the decision to stand trial has been made, counsel must hold the prosecution to its heavy burden of proof beyond reasonable doubt.”).