ADVISING CLIENT
INADEQUATE ADVICE ON RIGHT TO
TRIAL OR TO PLEAD
U.S.
Court of Appeals Cases
1998: McGurk v. Stenberg,
163 F.3d 470 (8th Cir. 1998)
Counsel ineffective in DUI third case
for failing to inform the defendant that he had the right to trial by
jury prior to his bench trial. The court found that prejudice would be
presumed because this is a "structural error" that can never be
harmless.
State
Cases
2003: State v. Stallings
658 N.W.2d 106 (Iowa 2003)
Counsel was ineffective in a first degree murder bench trial for
failing to ensure that the defendant had adequately waived his right to
trial by jury. A state court rule requires that a waiver of jury trial
must be done in writing and on the record neither of which appeared to
have been done in this case. The court held that prejudice is presumed
because "this is one of those rare cases of a ‘structural’
defect."
1998: State v. S.M.,
996 P.2d 1111 (Wash. Ct. App. 2000)
Counsel ineffective for failing to
adequately advise juvenile prior to plea to child rape. Counsel
delegated responsibility to advise the defendant to his wife/legal
assistant and her advice was incomplete and misleading. She did not
advise the defendant that his silence could not be used against him at
trial or that state would have burden of proof beyond a reasonable
doubt. She instead told him that since he admitted to charges he would
have to plead guilty and never discussed with him the right to trial or
the possibility of negotiating a plea. She also did not read to him or
insure that he read the plea form before he signed it. Counsel met with
defendant only briefly prior to plea and discussed only the hearing
procedure with him. Court held that conduct was deficient because legal
assistant is not "counsel" at all and because defendant was misinformed
and not adequately advised in any event. Prejudice found because the
record did not indicate that the defendant even understood the nature of
the charges, let alone that the plea was knowing and
voluntary.
1985: State v. Ludwig,
369 N.W.2d 722 (Wis. 1985)
Trial counsel ineffective for failing
to advise the defendant that choice whether to accept or reject plea
offer was hers because defendant rejected plea to misdemeanor on advice
of counsel because she did not know choice was hers and was convicted of
felony.
INADEQUATE ADVICE ON RIGHT TO
TESTIFY OR TO MAKE CLOSING ARGUMENT
U.S.
Court of Appeals Cases
1992: Nichols v. Butler
953 F.2d
1550 (11th Cir. 1992)
Defendant was charged
with the robbery of a convenience store, but the only evidence was a
"quick glimpse" of the defendant by the employee. The defendant had
originally agreed not to testify, but one day into a two-day trial, he
changed his mind and wanted to testify. Counsel did not inform him of
his constitutional right to testify, and stated that he would withdraw
from representation if he decided to testify. Feeling that he would be
left without counsel if he did in fact testify, the defendant decided to
follow counsel’s advise and not testify. He was convicted. Counsel
ineffective for threatening to withdraw during the trial if the
defendant in robbery trial chose to testify when the only evidence
against him was the identification by the store employee who got only a
glimpse of the robber. The threat to withdraw was seen by the court as
unprofessional conduct, and but for this conduct there was a good
probability that the defendant would have been found not guilty. New
trial granted
U.S. District
Court Cases
1998: United States v. Lore, 26 F. Supp. 2d 729 (D.N.J. 1998). Counsel
ineffective for failing to advise the defendant, who wanted to testify
in his own defense, that he could overrule the tactical decision by his
attorney that he should not testify. Defendant charged with two
co-defendants in loansharking activities. It was undisputed that he
repeatedly told counsel he wanted to testify and that counsel told him
that it was counsel's decision to make and that he would not testify.
Prejudice found because the government's evidence against Lore was
weaker than against other co-defendants and the testimony Lore proffered
in motion to vacate could have provided a rational non-criminal
explanation for what the government alleged were extortionate
activities.
1996: Campos v. United States, 930 F. Supp. 787 (E.D.N.Y. 1996). Counsel in
drug case was ineffective where government evidence consisted almost
solely of testimony of DEA agent, defendant expressed desire to testify,
but counsel refused to allow testimony and never advised defendant that
whether he testified or not was defendant's choice to make. Court found
reasonable probability that outcome may have been different if defendant
had testified.
1985: United States v. Frappier, 615 F. Supp. 51 (D.C. Mass. 1985). Counsel
ineffective for advising defendant to testify where testimony could have
been brought in by proffer under Bail Reform Act and counsel did not
properly prepare the defendant to testify.
Military Cases
1991: United States v. Henriques, 32 M.J. 832 (N.M.C.M.R. 1991). Military
defense counsel ineffective in desertion case where accused pled guilty
to absence without leave (AWOL) and then defense counsel called accused
to the witness stand to testify that he intended to return to the Navy
but did not intend to return to his unit. Defense counsel's belief that
this testimony negated guilt of desertion was erroneous because only an
intent to return to his unit would have negated an element of the
offense. Without the testimony of the accused probably would have been
convicted only of AWOL.
State
Cases
2007: Reeves v. State,
___ So. 2d ___, 2007 WL 1519007 (Ala. Crim. App. May 25, 2007).
Counsel ineffective in burglary case for preventing the defendant from testifying on his own
behalf after the defendant insisted that he wanted to do so. The defendant was charged with
entering the home of his wife’s ex-husband and had made a statement to police that he had
gone to the home but he did not enter the home. Counsel’s conduct was deficient because
“[a] defendant has a fundamental right to testify on his own behalf, that right is personal to
the defendant, and defense counsel may not waive that right.” Counsel’s conduct was not
explained by strategy to avoid cross about the defendant’s prior actions and stalking his wife
because she had already testified to these events and the existence of a restraining order
against the defendant. The denial of the right to testify was not “harmless,” even though the
defendant’s testimony to police was admitted into evidence because he implied in the
statement that he did not enter the home but did not specifically state that and because his
testimony would have allowed the jury to “judge[] his credibility against the victim’s,” who
was the only person to testify that he entered the home. Even without the defendant’s
testimony the jury had sought additional instruction on the elements of the charge and
reached a verdict only after receiving an Allen charge.
Visger v. State,
953 So. 2d 741 (Fla. App. 2007).
Counsel ineffective in burglary and battery case for advising the defendant not to testify.
Counsel’s conduct was deficient because the defense theory was that the defendant was
invited into the home, but without the defendant’s testimony there was no evidence to
support that theory. Counsel’s strategy to keep out information concerning the defendant’s
prior conviction of aggravated battery was not reasonable under these circumstances,
particularly where there was already evidence that the state’s two primary witnesses had
drugs in their home and one of them was a convicted felon “thus reducing any effect of
appellant's convictions on his credibility, as compared to that of the state's witnesses.” Id.
at 744. Strategic decisions must be informed decisions, where the alternatives have been
considered and rejected. Where those decisions are uninformed, counsel's judgment may be
deficient. That is the case here.” Id. It was also not “strategy” that counsel believed that
some of the defendant’s version of events was “preposterous,” but counsel failed to
investigate.
Furthermore, we find it unreasonable and deficient performance to
believe that counsel could argue to the jury a theory that appellant
was invited in without any evidence whatsoever to support it and all
the evidence clearly contrary to that theory. Such an argument
amounts to sheer speculation.
Id. at 745. Prejudice found in light of the inconsistencies in the state witnesses’ testimony,
the fact that some of their testimony “strains credulity,” and the fact that much of the actions
of the state witnesses, even according to their own testimony, “may appear more consistent
with having been involved in an attack on the appellant [who was shot in the encounter]
rather than the other way around.” Id. at 746.
2006: People v. Whiting.
849 N.E.2d 125 (Ill. App. 2006).
Counsel ineffective in aggravated battery case for advising the defendant, who desired to testify, that
she could not do so. The defendant was charged with assaulting an investigator of the Department
of Children and Family Services who was in the defendant's home to investigate and incident
between the defendant's son and local police days before. While the defendant's husband and son
testified, the defendant was prejudiced because she did not herself testify.
2004: People v. Calhoun
815 N.E.2d 492 (Ill. App. Ct. 2004)
Counsel ineffective in burglary case for coercing the defendant to
waive his right to testify because counsel did not believe the
defendant’s version of events, which contradicted the victim’s
testimony. Counsel cannot "force his client to choose between testifying
without his counsel’s assistance or not testifying at all, when defense
counsel’s determination that his client will commit perjury on the
witness stand is based solely on counsel’s assessment of the
evidence."
2002: *Cooper v. Moore
569 S.E.2d 330 (S.C. 2002)
Counsel ineffective in murder
capital case for failing to advise defendant that he had a statutory
right to personally address the jury regarding all charges in trial
closing argument. Defendant was convicted of murder, kidnaping, armed
robbery, and conspiracy to commit armed robbery and sentenced to death.
On direct appeal the court, applying in favorem vitae review,
found that reversal of the murder conviction was required because the
trial court failed to advise the defendant of his right to make a
closing argument. Because in favorem vitae review (which required
a review of the record for error regardless of counsel’s failure to
object) applied only to murder charges, the court did not address
whether the non-capital convictions should also be reversed. In
post-conviction relief proceedings, defendant asserted that counsel was
ineffective in failing to advise him of his statuary right to make a
closing argument on all charges. The court held that S.C. Code Section
16-3-28 provides that "in any criminal trial where the maximum penalty
is death or in separate sentencing proceeding following such trial, the
defendant and his counsel shall have the right to make the last
argument." The court held that the plain language of this statute allows
the capital defendant to address the jury regarding all charges whether
or not all of the charges carry the death penalty. Counsel’s conduct was
deficient in failing to advise the defendant of his statutory right to
make a closing argument during the trial. Prejudice was found because
the defendant had not testified during trial in order to avoid
cross-examination with prior conviction. Thus, the jury did not have the
opportunity to hear him argue for his innocence or to hear and consider
his side of the story. Prejudice found because the evidence against the
defendant was mostly circumstantial and not overwhelming. Thus, the
defendant’s statement could have swayed the jury to find him not guilty
on the non-capital charges.
1999: Perroro v. State,
990 S.W.2d 896 (Tex. Ct. App. 1999)
Counsel ineffective in assault and
resisting arrest case for failing to prepare the defendant for his
testimony, which resulted in the defendant opening the door for
impeachment with otherwise inadmissible evidence of a prior criminal
history.
1992: Commonwealth v. Neal,
618 A.2d 438 (Pa. Super. Ct. 1992)
Counsel ineffective for failing to
advise the defendant of his right to testify.
1991: Horton v. State,
306 S.C. 252, 411 S.E.2d 223 (1991)
Trial counsel ineffective for advising
defendant that if he testified he could be cross-examined about prior
convictions for simple possession of marijuana (not a crime of moral
turpitude) and assault and battery with intent to kill (15 years
previously and defense counsel to did get a rule from judge concerning
remoteness). Defendant did not testify because of this
advice.