United States Supreme Court
Cases
CONCEDING GUILT/CONTRADICTING CLIENT
U.S. Court of Appeals Cases
1997: *Rickman v. Bell,
131 F.3d 1150 (6th Cir. 1997) (affirming 864 F. Supp. 686 (M.D. Tenn.
1994)), cert. denied, 523 U.S. 1133 (1998)
Prejudiced presume because counsel did
not serve as advocate and showed contempt for his client such that he
was a "second prosecutor" and defendant would have been "better off to
have been merely denied counsel." Defense counsel presented the most
damaging evidence in the case.
1991: United States v. Swanson,
943 F.2d 1070 (9th Cir. 1991)
Prejudicial per se when trial counsel
concedes that there is no reasonable doubt concerning the only factual
issues in dispute during closing arguments.
State
Cases
2004: In the Matter of the Welfare of B.R.C.
675 N.W.2d 348 (Minn. Ct. App. Mar. 2, 2004).
Counsel ineffective in juvenile damaging property case where counsel
conceded the juvenile=s guilt
of shooting at a pickup truck and the record failed to show that the
juvenile consented in this strategy. The court declined to assume
acquiescence. AGiven a
juvenile's lack of maturity, we believe that a juvenile defendant's
consent should be express and placed on the record before a concession
of guilt can be made.@
Counsel=s concession was
inconsistent with the juvenile=s prior statements to police and
the statements of his accomplices. Counsel=s references to admissions in the
juvenile=s withdrawn guilty
plea were improper, because evidence regarding a withdrawn guilty plea
may not be admitted in a criminal trial under state law. Counsel
apparently made the concession in an attempt to convince the court to
find the juvenile guilty of a misdemeanor and avoid a felony conviction.
AWhile it may be a reasonable
trial strategy to concede an adult defendant's guilt to a
lesser-included offense in the hope of persuading the fact finder to
acquit him or her of the greater charge, juvenile dispositions are not
necessarily tied to a misdemeanor/felony distinction. Thus, the strategy
of appellant's attorney was not reasonable in this juvenile
proceeding.@ Counsel also
incorrectly assumed that by conceding guilt to a misdemeanor, the
juvenile could not be held accountable for the entire amount of
restitution.
*State v. Matthews
591 S.E.2d 535 (N.C. 2004)
Prejudice presumed in capital trial where defense counsel conceded
the defendant’s guilt to second degree murder without the defendant’s
consent, which must be established by "more than implicit consent based
on an overall trial strategy and the defendant's intelligence."
2003:
*Harvey v. State
___ So.2d ___, 2003
WL 21511339 (Fla. July 3, 2003).
Prejudice presumed where counsel conceded guilt in capital trial.
"[E]ven in cases involving a confession," counsel cannot concede guilt
without the client’s consent.
State v. Jefferson
69 P.3d 641 (Mont. 2003).
Counsel ineffective in attempted deliberate homicide case for
conceding the defendant was guilty of felony assault during his opening
and closing arguments to the jury. The defendant initially agreed to
enter into a plea agreement to plead guilty in exchange for the state
reducing the charge to felony assault. Prior to entry of the plea,
however, the defendant informed the court that he would plead not
guilty. Counsel’s conduct was deficient in admitting the defendant’s
guilt of felony assault without his consent, which was clear since he
rejected a plea to that offense. Moreover, there was no plausible
explanation for counsel’s conduct in these circumstances. Prejudice
found because counsel’s concession precluded the defendant from arguing
for a lesser offense or acquittal. "The fact that the evidence at trial
may have supported a conviction regardless of the statement is
irrelevant." Id. at 649. The defendant would not have gone to
trial if he had intended to concede guilt of felony assault. He would
have taken the plea agreement instead.
2001:*Jackson v. State
41 P.3d 395 (Okla. Crim. App. 2001).
Counsel ineffective in capital case for admitting during
voir dire and the guilt-or-innocence phase arguments that the defendant
was guilty of capital murder. Counsel had decided that the best strategy
was to admit guilt and to focus on presenting mitigation in sentencing,
but neither counsel could recall even discussing this strategy with the
defendant. When counsel conceded guilt, however, the defendant expressed
his objections to them because he wanted to argue self-defense. While
counsel may have had a valid strategy, the court held that "a complete
concession of guilt is a serious strategic decision that must only be
made after consulting with the client and after receiving the client’s
consent or acquiescence." In this case, the evidence revealed that
counsel did not consult with their client before conceding guilt.
Prejudice found because "Appellant wanted to raise the issue of
self-defense and was effectively prevented from presenting such a
defense by the concession of guilt made by trial counsel." Court holds
that in the future if defense counsel’s strategy is to concede guilt
counsel must inform the court prior to making any concessions and the
trial court must "determine from counsel and the defendant, on the
record, whether this strategy is one in which the client has consented
or acquiesced. If the client does not consent to or acquiesce in the
strategy, then counsel shall follow the client’s
wishes."
2000: State v. Carter,
14 P.3d 1138 (Kan. 2000)
Counsel ineffective in murder case for
conceding defendant's involvement despite defendant's protestations of innocence.
Counsel was attempting, in light of strong state evidence, to show that defendant was guilty
of felony murder in the course of armed robbery but not premeditated murder. While this
may have been strategy, defense counsel betrayed the defendant by overriding his plea of
not guilty. Counsel abandoned his client, which required the presumption of prejudice
under Cronic.
1999: Christian v. State,
712 N.E.2d 4 (Ind. 1999)
Counsel ineffective in rape case for
conceding elements of the offense in closing that contradicted the
defendant's testimony. Defendant had testified in essence that there had
been consensual foreplay but there was no penetration, which was a
required element of rape. Counsel argued consent, but conceded, contrary
to the defendant's testimony, that there was penetration. Concession was
unreasonable because the only evidence of penetration was the alleged
victim's testimony. Also unreasonable because, even though counsel was
arguing consent based on defendant's testimony, he essentially
undermined the defendant's credibility by, in effect, informing the
court that he didn't believe his own client. These acts resulted in a
breakdown of the adversarial process under Cronic and the court presumed
prejudice.
1998: State v. Harrington,
708 A.2d 731 (N.J. Super. Ct. App. Div.), cert. denied, 718 A.2d 1216 (N.J.
1998)
Counsel ineffective in murder case
charged as purposeful murder and, alternatively, felony murder for
conceding the defendant's guilt of armed robbery. The state's case
depended primarily on the testimony of his three accomplices, who all
testified pursuant to grants of immunity. The witnesses all had prior
inconsistent statements and there testimony "diverged wildly on many key
points" at trial. The defendant was convicted of both murder charges and
the trial court "merged" the felony murder into the purposeful murder
conviction. On appeal, the court reversed the purposeful murder
conviction (under plain error rule-no objection) because of the trial
court's erroneous instructions on accomplice liability. The court then
refused to reinstate the felony murder conviction due to ineffective
assistance. The trial court instructed the jury on the statutory
"nonslayer" affirmative defense, which essentially would have allowed
counsel to concede the defendant's presence without conceding guilt.
Nonetheless, despite the affirmative defense and the contradictory
evidence, defense counsel, in closing argument, conceded the defendant's
guilt of robbery, which amounted to a concession of guilt of felony
murder. The court could conceive of no reasonable strategy for doing so
in a non-capital case.
1994: *Jones v. State,
877 P.2d 1052 (Nev. 1994)
Trial counsel found ineffective during
direct appeal for admitting in closing argument that defendant was
guilty of 2nd degree murder where defendant had testified he did not
kill victim and did not consent to trial counsel's admission of guilt.
Court ruled that since defendant did not consent issue could be decided
on direct appeal because it didn't matter what strategic or tactical
reason counsel might state in evidentiary hearing.
1991: People v. Torres,
568 N.E.2d 157 (Ill. App. Ct. 1991)
Counsel ineffective in criminal sexual
assault case because he conceded that there was oral-vaginal contact but
argued no penetration. Counsel was ignorant of legal definition of
"penetration" which only required contact. Counsel also argued that
defendant was a family member which was not a defense.
State v. Anaya,
592 A.2d 1142 (N.H. 1991)
Counsel ineffective for asking jury
during closing to convict the defendant as accomplice to second degree
murder instead of first degree murder despite the facts that the
defendant had rejected a plea offer to plead to the lesser offense,
testified that he was completely innocent, and told counsel he wanted
innocence argued in closing.
1989: Long v. State,
764 S.W.2d 30 (Tex. Ct. App.
1989)
Counsel ineffective for pleading
insanity and then stipulating that the defendant was voluntarily
intoxicated.
1988: State v. Burgins,
542 N.E.2d 707 (Ohio Ct. App. 1988)
Counsel ineffective in theft case for
telling the jury during closing that he did not believe the defendant
and he expected a guilty verdict.
1987: Ferguson v. State,
507 So. 2d 94 (Miss. 1987)
Counsel per se ineffective for calling
the defendant a liar in front of the jury. No showing of prejudice
required.
1986: People v. Woods,
502 N.E.2d 1103 (Ill. App. Ct. 1986)
Counsel ineffective in burglary case
for conceding in closing argument that defendants' were guilty of theft
which contradicted their theory of innocence which had been maintained
throughout trial. Prejudice presumed.
*People v. Hattery,
488 N.E.2d 513 (Ill.), cert. denied, 478 U.S. 1013
(1986)
Counsel ineffective for admitting
guilt in opening statement, failing to advance any theory of defense,
and attempting to establish only that the defendant was compelled to
kill the victims. Court recognized that counsel pursued this course in
an effort to avoid the death penalty but presumed prejudice because a
defendant who pleads not guilty is entitled to a
defense.
Commonwealth v. Triplett,
500 N.E.2d 262 (Mass. 1986)
Counsel ineffective in murder case for
implying during the closing argument that he did not believe defendant's
testimony and asking the jury to accept the testimony of the defendant's
mother which eroded any theory of voluntary manslaughter which was the
defendant's
theory.