Florida v. Nixon leads of this edition. The Supreme Court in Nixon held that counsel's concession that his client committed murder, made without the defendant's express consent, does not automatically rank as prejudicial ineffective assistance of counsel under United States v. Cronic. In reaching the conclusion Justice Ginsburg sets out a very blunt analysis of viable strategies for capital trial counsel including concession of guilt. The case is bad for those already in the "pipeline" with similar "Cronic" type issues but the Court's reliance on the 2003 revisions of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases and their markedly more favorable language than the prior Guidelines, as well as several other reasons, provides a very strong silver lining to this otherwise miserable opinion.

Several favorable cases are also noted. In Hutchinson v. Missouri the Court grants relief as trial counsel were ineffective in failing to investigate and present evidence of the defendant's impaired intellectual functioning. In Ohio v. Burke the intermediate appellate court has held that counsel erred in not timely filing a motion for new trial. In State ex rel Mayes v. Wiggins the Missouri Supreme Court held the trial court below erred in not imposing a life sentence when "the verdict fail[ed] to show that the jury found all facts necessary for the imposition of death." The Alabama Supreme Court in Ex Parte Martin remands to permit the trial court to reconsider the weight it gave to the jury's recommendation to spare Martin's life.

Finally there is late word that Kansas has struck down its death penalty in Kansas v. Marsh, 36 states now retain the death penalty..

This edition is archived on the web at: http://capitaldefenseweekly.com/archives/041213.htm

As always thanks for reading. - k

EXECUTION INFORMATION

Since the last edition there have been no executions in the United States.

Potentially serious executions noted are:

SUPREME COURT

Florida v. Nixon, 2004 WL 2847289 (12/13/2004) Where defense counsel chooses to concede guilt in guilt phase in order to avoid a death sentence, proper standard of review of ineffective assistance of counsel claim is Washington v. Strickland & not United States v. Cronic. For those who have similar issues currently pending appeal this is a bad decision, and Nixon marks only the latest effort by the Court to limit the scope of Cronic.

The decision is clearly a loss for Nixon and those with Cronic-style claims, however, this case is not necessarily Bad for others. There are three redeeming features of the opinion that lead could lead one to conclude that the case is something other than a loss. First, the Court appears to adopt the 2003 revisions of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, such as footnote 6 and pages 14-15 of the slip op. Second the opinion marks a frank and realistic examination of life in the trenches and the hard choices capital trial counsel have to make. Finally, although the days of the grossly inexperienced trial counsel that hallmarked capital jurisprudence from the Gregg through the mid / late nineties appears to be in rapid decline, the Nixon opinion does serve as a good reference guide as to possible strategies counsel may consider in keeping a client alive. The briefs are available at the ABA's Supreme Court Preview.

Held: Counsel's failure to obtain the defendant's express consent to a strategy of conceding guilt in a capital trial does not automatically render counsel's performance deficient. Pp. ---- - ----10-16.

(a) The Florida Supreme Court erred in requiring Nixon's affirmative, explicit acceptance of Corin's strategy because it mistakenly deemed Corin's statements to the jury the functional equivalent of a guilty plea. Despite Corin's concession of Nixon's guilt, Nixon retained the rights accorded a defendant in a criminal trial. Cf. id., at 242-243, and n. 4, 89 S.Ct. 1709. The State was obliged to present during the guilt phase competent, admissible evidence establishing the essential elements of the crimes with which Nixon was charged. That aggressive evidence would thus be separated from the penalty phase, enabling the defense to concentrate that portion of the trial on mitigating factors. Further, the defense reserved the right to cross-examine witnesses for the prosecution and could endeavor, as Corin did, to exclude prejudicial evidence. Furthermore, in the event of errors in the trial or jury instructions, a concession of guilt would not hinder the defendant's right to appeal. Corin was obliged to, and in fact several times did, explain his proposed trial strategy to Nixon. Nixon's characteristic silence each time information was conveyed to him did not suffice to render unreasonable Corin's decision to concede guilt and to home in, instead, on the life or death penalty issue. Pp. ---- - ----10-12.

(b) Counsel's effectiveness should not be evaluated under the Cronic standard, but under the standard prescribed in Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674: Did counsel's representation "f [a]ll below an objective standard of reasonableness?" The Florida Supreme Court's erroneous equation of Corin's concession strategy to a guilty plea led it to apply the wrong standard. The court first presumed deficient performance, then applied the presumption of prejudice that Cronic reserved for situations in which counsel has entirely failed to function as the client's advocate, 466 U.S., at 659, 104 S.Ct. 2039. Corin's concession of Nixon's guilt does not rank as such a failure. Id., at 666, 104 S.Ct. 2039. Although a concession of guilt in a run-of-the-mine trial might present a closer question, the gravity of the potential sentence in a capital trial and the proceeding's two-phase structure vitally affect counsel's strategic calculus. Attorneys representing capital defendants face daunting challenges in developing trial strategies: Prosecutors are more likely to seek the death penalty, and to refuse to accept a plea to a life sentence, when the evidence is overwhelming and the crime heinous. Counsel therefore may reasonably decide to focus on the trial's penalty phase, at which time counsel's mission is to persuade the trier that his client's life should be spared. Defense counsel must strive at the guilt phase to avoid a counterproductive course. Mounting a "defendant did not commit the crime" defense risks destroying counsel's penalty phase credibility and may incline the jury against leniency for the defendant. In a capital case, counsel must consider in conjunction both the guilt and penalty phases in determining how best to proceed. When counsel informs the defendant of the strategy counsel believes to be in the defendant's best interest and the defendant is unresponsive, counsel's strategic choice is not impeded by any blanket rule demanding the defendant's explicit consent. Instead, if counsel's strategy, given the evidence bearing on the defendant's guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain. Pp. ---- - ----12-16.

857 So.2d 172, reversed and remanded.

Medellin v. Dretke, No. 04-5928. Cert granted on questions incluidng:

"1. In a case brought by a Mexican national whose rights were adjudicated in the [World Court's] Avena Judgment, must a court in the U.S. apply as the rule of decision, notwithstanding any inconsistent U.S. precedent, the Avena holding that the U.S. courts must review and reconsider the national's conviction and sentence, without resort to procedural default doctrines?

"2. In a case brought by a foreign national of a State party to the Vienna Convention, should a court in the U.S. give effect to the [World Court's] LaGrand and Avena Judgments as a matter of international judicial comity and in the interest of uniform treaty interpretation?"

Click here for a post on the case by TalkLeft, with a link to a NYT article.

Kowalski v. Tesmer, 2004 WL 2847751 (12/13/2004) (dissent) Attorneys lack standing to challenge denial of payment of costs of appeal of indigents where state law provides that a person who pleads guilty will not have their appeal paid for at taxpayer expense.

Held: The attorneys lack third-party standing to assert the rights of Michigan indigent defendants denied appellate counsel. The Court assumes that the attorneys have satisfied Article III's standing requirement and thus addresses only whether they have standing to raise the rights of others. In deciding whether to grant third-party standing, this Court asks whether the party asserting the right has a "close" relationship with the person who possesses the right, and whether there is a "hindrance" to the possessor's ability to protect his own interests. Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 113 L.Ed.2d 411. The attorneys here claim standing based on a future attorney-client relationship with as yet unascertained Michigan criminal defendants who will request, but be denied, appellate counsel under the statute. In two cases in which this Court found an attorney-client relationship sufficient to confer third-party standing--Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 109 S.Ct. 2646, 105 L.Ed.2d 528, and Department of Labor v. Triplett, 494 U.S. 715, 110 S.Ct. 1428, 108 L.Ed.2d 701--the attorneys invoked known clients' rights, not those of the hypothetical clients asserted here. And Department of Labor v. Triplett--in which an attorney disciplined by his state bar for accepting a fee prohibited by the Black Lung Benefits Act of 1972 was held to have third-party standing to invoke claimants' due process rights to challenge the fee restriction that resulted in his punishment--falls within the class of cases allowing "standing to litigate the rights of third parties when enforc[ing] the challenged restriction against the litigant would result indirectly in the violation of third parties' rights," Warth v. Seldin, 422 U.S. 490, 510, 95 S.Ct. 2197, 45 L.Ed.2d 343. The attorneys here do not have a "close relationship" with their alleged "clients"; indeed, they have no relationship at all. Nor have they demonstrated any "hindrance" to the indigents' advancing their own constitutional rights against the Michigan scheme. An indigent may seek leave to challenge the denial of appellate counsel in state court and then may seek a writ of certiorari in this Court; and both state and federal collateral review exist beyond that. The attorneys' hypothesis that, without counsel, such avenues are effectively foreclosed was disproved in the Michigan courts and this Court, where pro se indigents have pursued them. On a more fundamental level, if an attorney is all that the indigents need to perfect their challenge in state court and beyond, one wonders why these attorneys did not attend state court and assist them. The fair inference is that they did not want the state process to take its course, but wanted a federal court to short-circuit the State's adjudication of the constitutional question. Here, the indigents were appropriately dismissed under Younger because they had ample opportunities to raise their constitutional challenge in their ongoing state proceedings. An unwillingness to allow the Younger principle to be thus circumvented is an additional reason to deny the attorneys third-party standing. Pp. ---- - ----2-8.

333 F.3d 683, reversed and remanded

Devenpeck v. Alford, 2004 WL 2847718 (12/13/2004) A warrantless arrest by a law officer is reasonable under the Fourth Amendment if, given the facts known to the officer, there is probable cause to believe that a crime has been or is being committed.

Held: 1. A warrantless arrest by a law officer is reasonable under the Fourth Amendment if, given the facts known to the officer, there is probable cause to believe that a crime has been or is being committed. The Ninth Circuit's additional limitation--that the offense establishing probable cause must be "closely related" to, and based on the same conduct as, the offense the arresting officer identifies at the time of arrest--is inconsistent with this Court's precedent, which holds that an arresting officer's state of mind (except for facts that he knows) is irrelevant to probable cause, see Whren v. United States, 517 U.S. 806, 812-815, 116 S.Ct. 1769, 135 L.Ed.2d 89. The "closely related offense" rule is also condemned by its perverse consequences: it will not eliminate sham arrests but will cause officers to cease providing reasons for arrest, or to cite every class of offense for which probable cause could conceivably exist. Pp. --- - ----5-9.

2. This Court will not decide in the first instance whether petitioners lacked probable cause to arrest respondent for either obstructing or impersonating an officer because the Ninth Circuit, having found those offenses legally irrelevant, did not decide that question. Pp. --- - ----9-10.

333 F.3d 972, reversed and remanded.

Brousseau v. Haugen, 2004 WL 2847251 (12/13/2004) (dissent) Putative violation of the Fourth Amendment' was not clearly established under governing deadly force standard, here shooting suspect as he fled in vehicle, given risk posed to persons in immediate area.

CAPITAL CASES (Favorable)

Walker v. United States, 60 M.J. 354 (MJ 12/9/2004) Petitioner's motion for extraordinary relief granted and assignment of judges to the panel reviewing Petitioner's court-martial not to be made by or under the direction of a chief judge recused from this case.

Ex parte George Martin, 2004 WL 2829051 (Ala 12/10/2004) Trial court failed “to allow the defendant the benefit of having the jury's recommendation of life imprisonment without parole treated as a mitigating factor as required by Ex parte Carroll.”

State ex rel Mayes v. Wiggins, 2004 WL 2796389 (Mo. 12/7/2004) ”[W]hen the jury is unable to agree on punishment and the verdict fails to show that the jury found all facts necessary for the imposition of death, that Respondent's only option would be to impose a life sentence”

State ex rel Baumruk v. Seigel, 2004 WL 2801200 (Mo 12/7/2004) The Supreme Court held that trial judge could not follow criminal case to another county on change of venue.

Hutchinson v. Missouri, 2004 WL 2796335 (Mo. 12/7/2004) Hutchison's trial attorneys were ineffective for failing to investigate and present evidence of his impaired intellectual functioning.

Ohio v. Burke, 2004 WL 2809079 (Ohio App. 10 Dist. 12/7/2004) “Appellate counsel acted deficiently in waiting nearly five years before bringing the newly discovered evidence to the attention of the trial court. . . .. We can think of no tactical or strategic reason for such delay. With that being said, we find that appellate counsel was under a duty to file a motion for a new trial under the facts of this case as the recantation of Dr. Norton's earlier testimony may have some bearing on appellant's culpability. Appellant's claim that appellate counsel's performance was constitutionally defective is meritorious.”

CAPITAL CASES (Other Than Favorable)

United States v. Webster, 2004 WL 2796054 (5th Cir. 12/7/2004) Relief denied on claims concerning whether: (1) the government must prove absence of mental retardation as element of capital murder; (2) statistical evidence showing that defendant's sentence was result of racial discrimination;( 3) use of inculpatory testimony elicited by government from co-defendants which was false; (4) claimed problems with discovery and (5) ineffective assistance of counsel ("(1) (1) Counsel failed to investigate and present additional evidence demonstrating mental retardation and the extreme abuse Webster suffered as a child; (2) Counsel failed to investigate and present (for purposes of mitigation and impeachment) evidence of racial discrimination in Webster's Arkansas school district; (3) Counsel allowed a "breakdown in communication and a dispute over money with the mitigation specialist" to affect the sentencing phase of trial; and (4) Counsel failed to object to the district court's factual finding regarding mental retardation.")

Nance v. Norris, 2004 WL 2827287 (8th Cir 12/10/2004) Relief denied on claims including: (1) suffiicency of evidence supporting capital murder; (2) whether actual innocence showing was sufficient to overcome procedural default; (3) failure of trial counsel to make requests for experts; (4) failure to investigate an present mitigation evidence; and (5) failure to object to victim-impact evidence.

Campbell v. Dretke, 2004 WL 2830837 (5th Cir. 12/9/2004) (unpublished) COA denied on claims including: “(1) denial of his constitutional entitlement to a lesser-included offense instruction; (2) constitutional error in instructing the jury on the conspiracy law of parties during the liability phase of his trial; (3) procedural default does not bar his claims that his trial and appellate counsel provided ineffective assistance; (4) ineffective assistance of trial counsel; (5) ineffective assistance of appellate counsel; and (6) the federal district court's denial of authorization for intellectual functioning testing.”

California v. Morrison, 2004 WL 2813484 (Cal. 12/9/2004) Relief denied on claims relating to: (1) prosecutor's improper use of peremptory under Batson; (2) exclusion of evidence of possible drug trafficking by murder victim and his family; (3) Brady; (4) prosecutor’s use of perjured testimony of victim's sister; (5) hearsay statement of victim's sister identifying defendant; (6) exclusion of evidence that large sum of money was in house where crimes took place; and (7) prosecutor's closing argument that victims were hardworking family.

California v. San Nicolas, 2004 WL 2781936 (CA 12/6/2004) Relief denied on claims relating to: (1) the sufficiency of the verdict form as it relates to first degree murder; (2) voluntariness of statement to the police; (3) failure of juror to disclose prior criminal convictions; (4) sufficiency of evidence on witness-killing death penalty special circumstance; (5) sufficiency of evidence as to raped ; (6) limitations based on defendant's proposed expert testimony; and (7) failure to provide an instruction that the death penalty is not a deterrent instruction in penalty phase.

Ohio v. Leonard, 818 N.E.2d 229 (Ohio 12/8/2004) Relief denied on claims including: (1) failure to grants fund to hire an investigator, a coroner, a crime-scene investigator, and an expert on sexual abuse or rape; (2) waiver of Miranda rights; (3) prejudicial pretrial publicity; (4 )life qualifications; (5) sufficiency; (6) admission of photographs of the dead victims; (7) admission of a statement by victim during the phone conversation that the defendant was present and hurting her; (8) trial court's instructions during guilt phase, in which court instructed jury that "a good motive is not a defense;” (9) prosecutor referring to defendant on several occasions as a liar and as manipulative and controlling; and (10) weight of aggravators vs. mitigators.

South Carolina v. Wood, 2004 WL 2851808 (SC 12/6/2004) Relief denied on whether the trial court erred by striking a juror for cause, by failing to instruct the jury on voluntary manslaughter, and by finding a statute constitutional; and whether the trial court had subject matter jurisdiction to sentence appellant to death.

OTHER NOTABLE CASES

None currently noted.

HOT LIST

Florida v. Nixon, 2004 WL 2847289 (12/13/2004) Where defense counsel chooses to concede guilt in guilt phase in order to avoid a death sentence, proper standard of review of ineffective assistance of counsel claim is Washington v. Strickland & not United States v. Cronic.

Faced with the inevitability of going to trial on a capital charge, Corin turned his attention to the penalty phase, believing that the only way to save Nixon's life would be to present extensive mitigation evidence centering on Nixon's mental instability. Id., at 261, 473; see also id., at 102. Experienced in capital defense, see id., at 248-250, Corin feared that denying Nixon's commission of the kidnaping and murder during the guilt phase would compromise Corin's ability to persuade the jury, during the penalty phase, that Nixon's conduct was the product of his mental illness. See id., at 473, 490, 505. Corin concluded that the best strategy would be to concede guilt, thereby preserving his credibility in urging leniency during the penalty phase. Id., at 458, 505.

*5 Corin attempted to explain this strategy to Nixon at least three times. Id., at 254-255. Although Corin had represented Nixon previously on unrelated charges and the two had a good relationship in Corin's estimation, see id., at 466-467, Nixon was generally unresponsive during their discussions, id., at 478-480. He never verbally approved or protested Corin's proposed strategy. Id., at 234-238; 255; 501. Overall, Nixon gave Corin very little, if any, assistance or direction in preparing the case, id., at 478, and refused to attend pretrial dispositions of various motions, Nixon I, 572 So.2d, at 1341; App. 478. Corin eventually exercised his professional judgment to pursue the concession strategy. As he explained: "There are many times lawyers make decisions because they have to make them because the client does nothing." Id., at 486.

When Nixon's trial began on July 15, 1985, his unresponsiveness deepened into disruptive and violent behavior. On the second day of jury selection, Nixon pulled off his clothing, demanded a black judge and lawyer, refused to be escorted into the courtroom, and threatened to force the guards to shoot him. Nixon I, 572 So.2d, at 1341; 10 Record 1934-1935. An extended on-the-record colloquy followed Nixon's bizarre behavior, during which Corin urged the trial judge to explain Nixon's rights to him and ascertain whether Nixon understood the significance of absenting himself from the trial. Corin also argued that restraining Nixon and compelling him to be present would prejudice him in the eyes of the jury. Id., at 1918-1920. When the judge examined Nixon on the record in a holding cell, Nixon stated he had no interest in the trial and threatened to misbehave if forced to attend. Id., at 1926-1931. The judge ruled that Nixon had intelligently and voluntarily waived his right to be present at trial. Id., at 1938; 11 id., at 2020.

The guilt phase of the trial thus began in Nixon's absence. [FN3] In his opening statement, Corin acknowledged Nixon's guilt and urged the jury to focus on the penalty phase:

*6 "In this case, there won't be any question, none whatsoever, that my client, Joe Elton Nixon, caused Jeannie Bickner's death ... .[T]hat fact will be proved to your satisfaction beyond any doubt.

"This case is about the death of Joe Elton Nixon and whether it should occur within the next few years by electrocution or maybe its natural expiration after a lifetime of confinement.

...

"Now, in arriving at your verdict, in your penalty recommendation, for we will get that far, you are going to learn many facts ... about Joe Elton Nixon. Some of those facts are going to be good. That may not seem clear to you at this time. But, and sadly, most of the things you learn of Joe Elton Nixon are not going to be good. But, I'm suggesting to you that when you have seen all the testimony, heard all the testimony and the evidence that has been shown, there are going to be reasons why you should recommend that his life be spared." App. 71-72.

During its case in chief, the State introduced the tape of Nixon's confession, expert testimony on the manner in which Bickner died, and witness testimony regarding Nixon's confessions to his relatives and his possession of Bickner's car and personal effects. Corin cross-examined these witnesses only when he felt their statements needed clarification, see, e.g., 13 Record 2504, and he did not present a defense case, 20 id., at 3741. Corin did object to the introduction of crime scene photographs as unduly prejudicial, 13 id., at 2470, and actively contested several aspects of the jury instructions during the charge conference, 11 id., at 2050-2058. In his closing argument, Corin again conceded Nixon's guilt, App. 73, and reminded the jury of the importance of the penalty phase: "I will hope to ... argue to you and give you reasons not that Mr. Nixon's life be spared one final and terminal confinement forever, but that he not be sentenced to die," id., at 74. The jury found Nixon guilty on all counts.

At the start of the penalty phase, Corin argued to the jury that "Joe Elton Nixon is not normal organically, intellectually, emotionally or educationally or in any other way." Id., at 102. Corin presented the testimony of eight witnesses. Relatives and friends described Nixon's childhood emotional troubles and his erratic behavior in the days preceding the murder. See, e.g., id., at 108-120. A psychiatrist and a psychologist addressed Nixon's antisocial personality, his history of emotional instability and psychiatric care, his low IQ, and the possibility that at some point he suffered brain damage. Id., at 143-147; 162-166. The State presented little evidence during the penalty phase, simply incorporating its guilt-phase evidence by reference, and introducing testimony, over Corin's objection, that Nixon had removed Bickner's underwear in order to terrorize her. Id., at 105-106.

In his closing argument, Corin emphasized Nixon's youth, the psychiatric evidence, and the jury's discretion to consider any mitigating circumstances, id., at 194-199; Corin urged that, if not sentenced to death, "Joe Elton Nixon would [n]ever be released from confinement," id., at 207. The death penalty, Corin maintained, was appropriate only for "intact human being[s]," and "Joe Elton Nixon is not one of those. He's never been one of those. He never will be one of those." Id., at 209. Corin concluded: "You know, we're not around here all that long. And it's rare when we have the opportunity to give or take life. And you have that opportunity to give life. And I'm going to ask you to do that. Thank you." Ibid. After deliberating for approximately three hours, the jury recommended that Nixon be sentenced to death. See 21 Record 4013.

*7 In accord with the jury's recommendation, the trial court imposed the death penalty. Nixon I, 572 So.2d, at 1338. Notably, at the close of the penalty phase, the court commended Corin's performance during the trial, stating that "the tactic employed by trial counsel ... was an excellent analysis of [the] reality of his case." 21 Record 4009. The evidence of guilt "would have persuaded any jury ... beyond all doubt," and "[f]or trial counsel to have inferred that Mr. Nixon was not guilty ... would have deprived [counsel] of any credibility during the penalty phase." Id., at 4010.

On direct appeal to the Florida Supreme Court, Nixon, represented by new counsel, argued that Corin had rendered ineffective assistance by conceding Nixon's guilt without obtaining Nixon's express consent. Nixon I, 572 So.2d, at 1338-1339. Relying on United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), new counsel urged that Corin's concession should be presumed prejudicial because it left the prosecution's case unexposed to "meaningful adversarial testing," id., at 658-659, 104 S.Ct. 2039. The Florida Supreme Court remanded for an evidentiary hearing on whether Nixon consented to the strategy, see App. 216-217, but ultimately declined to rule on the matter, finding the evidence of Corin's interactions with Nixon inconclusive. Nixon I, 572 So.2d, at 1340.

In a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 (1999), Nixon renewed his Cronic-based "presumption of prejudice" ineffective-assistance-of-counsel claim. [FN4] After the trial court rejected the claim, State v. Nixon, Case No. 84-2324 (Cir.Ct., Oct. 22, 1997), App. 389-390, the Florida Supreme Court remanded for a further hearing on Nixon's consent to defense counsel's strategy. Nixon v. Singletary, 758 So.2d 618, 625 (Fla.2000) (Nixon II). Corin's concession, according to the Florida Supreme Court, was the "functional equivalent of a guilty plea" in that it allowed the prosecution's guilt-phase case to proceed essentially without opposition. Id., at 622-624. Under Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), a guilty plea cannot be inferred from silence; it must be based on express affirmations made intelligently and voluntarily. Similarly, the Florida Supreme Court stated, a concession of guilt at trial requires a defendant's "affirmative, explicit acceptance," without which counsel's performance is presumptively inadequate. Nixon II, 758 So.2d, at 624. The court acknowledged that Nixon was "very disruptive and uncooperative at trial," and that "counsel's strategy may have been in Nixon's best interest." Id., at 625. Nevertheless, the court firmly declared that "[s]ilent acquiescence is not enough," id., at 624; counsel who concedes a defendant's guilt is inevitably ineffective, the court ruled, if the defendant does not expressly approve counsel's course, id., at 625.

On remand, Corin testified that he explained his view of the case to Nixon several times, App. 479-480, and that at each consultation, Nixon "did nothing affirmative or negative," id., at 481-482; see also id., at 486-487. Failing to elicit a definitive response from Nixon, Corin stated, he chose to pursue the concession strategy because, in his professional judgment, it appeared to be "the only way to save [Nixon's] life." Id., at 472. Nixon did not testify at the hearing. The trial court found that Nixon's "natural pattern of communication" with Corin involved passively receiving information, and that Nixon consented to the strategy "through his behavior." State v. Nixon, Case No. R84-2324AF (Fla.Cir.Ct., Sept. 20, 2001), p. 13, 2 Record 378.

*8 Observing that "no competent, substantial evidence ... establish[ed] that Nixon affirmatively and explicitly agreed to counsel's strategy," the Florida Supreme Court reversed and remanded for a new trial. Nixon v. State, 857 So.2d 172, 176 (Fla.2003) (Nixon III) (emphasis in original). Three justices disagreed with the majority's determination that Corin's concession rendered his representation inadequate. Id., at 183 (Lewis, J., concurring in result); id., at 189 (Wells, J., joined by Shaw, S. J., dissenting).

* * *

[1][2] An attorney undoubtedly has a duty to consult with the client regarding "important decisions," including questions of overarching defense strategy. Strickland, 466 U.S., at 688, 104 S.Ct. 2052. That obligation, however, does not require counsel to obtain the defendant's consent to "every tactical decision." Taylor v. Illinois, 484 U.S. 400, 417-418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (an attorney has authority to manage most aspects of the defense without obtaining his client's approval). But certain decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate. A defendant, this Court affirmed, has "the ultimate authority" to determine "whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); Wainwright v. Sykes, 433 U.S. 72, 93, n. 1, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Burger, C. J., concurring). Concerning those decisions, an attorney must both consult with the defendant and obtain consent to the recommended course of action.

[3][4] A guilty plea, we recognized in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), is an event of signal significance in a criminal proceeding. By entering a guilty plea, a defendant waives constitutional rights that inhere in a criminal trial, including the right to trial by jury, the protection against self-incrimination, and the right to confront one's accusers. Id., at 243, 89 S.Ct. 1709. While a guilty plea may be tactically advantageous for the defendant, id., at 240, 89 S.Ct. 1709, the plea is not simply a strategic choice; it is "itself a conviction," id., at 242, 89 S.Ct. 1709, and the high stakes for the defendant require "the utmost solicitude," id., at 243, 89 S.Ct. 1709. Accordingly, counsel lacks authority to consent to a guilty plea on a client's behalf, Brookhart v. Janis, 384 U.S. 1, 6-7, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); moreover, a defendant's tacit acquiescence in the decision to plead is insufficient to render the plea valid, Boykin, 395 U.S., at 242, 89 S.Ct. 1709.

*9 The Florida Supreme Court, as just observed, see supra, at ----9, required Nixon's "affirmative, explicit acceptance" of Corin's strategy because it deemed Corin's statements to the jury "the functional equivalent of a guilty plea." Nixon II, 758 So.2d, at 624. We disagree with that assessment.

[5] Despite Corin's concession, Nixon retained the rights accorded a defendant in a criminal trial. Cf. Boykin, 395 U.S., at 242-243, and n. 4, 89 S.Ct. 1709 (a guilty plea is "more than a confession which admits that the accused did various acts," it is a "stipulation that no proof by the prosecution need be advanced"). The State was obliged to present during the guilt phase competent, admissible evidence establishing the essential elements of the crimes with which Nixon was charged. That aggressive evidence would thus be separated from the penalty phase, enabling the defense to concentrate that portion of the trial on mitigating factors. See supra, at ----4, ----7. Further, the defense reserved the right to cross-examine witnesses for the prosecution and could endeavor, as Corin did, to exclude prejudicial evidence. See supra, at ----6. In addition, in the event of errors in the trial or jury instructions, a concession of guilt would not hinder the defendant's right to appeal.

Nixon nevertheless urges, relying on Brookhart v. Janis, that this Court has already extended the requirement of "affirmative, explicit acceptance" to proceedings "surrender[ing] the right to contest the prosecution's factual case on the issue of guilt or innocence." Brief for Respondent 32. Defense counsel in Brookhart had agreed to a "prima facie" bench trial at which the State would be relieved of its obligation to put on "complete proof" of guilt or persuade a jury of the defendant's guilt beyond a reasonable doubt. 384 U.S., at 5-6, 86 S.Ct. 1245. In contrast to Brookhart, there was in Nixon's case no "truncated" proceeding, id., at 6, 86 S.Ct. 1245, shorn of the need to persuade the trier "beyond a reasonable doubt," and of the defendant's right to confront and cross-examine witnesses. While the "prima facie" trial in Brookhart was fairly characterized as "the equivalent of a guilty plea," id., at 7, 86 S.Ct. 1245, the full presentation to the jury in Nixon's case does not resemble that severely abbreviated proceeding. Brookhart, in short, does not carry the weight Nixon would place on it.

Corin was obliged to, and in fact several times did, explain his proposed trial strategy to Nixon. See supra, at ----4, ----9. Given Nixon's constant resistance to answering inquiries put to him by counsel and court, see Nixon III, 857 So.2d, at 187-188 (Wells, J., dissenting), Corin was not additionally required to gain express consent before conceding Nixon's guilt. The two evidentiary hearings conducted by the Florida trial court demonstrate beyond doubt that Corin fulfilled his duty of consultation by informing Nixon of counsel's proposed strategy and its potential benefits. Nixon's characteristic silence each time information was conveyed to him, in sum, did not suffice to render unreasonable Corin's decision to concede guilt and to home in, instead, on the life or death penalty issue.

*10 The Florida Supreme Court's erroneous equation of Corin's concession strategy to a guilty plea led it to apply the wrong standard in determining whether counsel's performance ranked as ineffective assistance. The court first presumed deficient performance, then applied the presumption of prejudice that United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), reserved for situations in which counsel has entirely failed to function as the client's advocate. The Florida court therefore did not hold Nixon to the standard prescribed in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which would have required Nixon to show that counsel's concession strategy was unreasonable. As Florida Supreme Court Justice Lewis observed, that court's majority misunderstood Cronic and failed to attend to the realities of defending against a capital charge. Nixon III, 857 So.2d, at 180-183 (opinion concurring in result).

Cronic recognized a narrow exception to Strickland's holding that a defendant who asserts ineffective assistance of counsel must demonstrate not only that his attorney's performance was deficient, but also that the deficiency prejudiced the defense. Cronic instructed that a presumption of prejudice would be in order in "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." 466 U.S., at 658, 104 S.Ct. 2039. The Court elaborated: "[I]f counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." Id., at 659, 104 S.Ct. 2039; see Bell v. Cone, 535 U.S. 685, 696-697, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (for Cronic's presumed prejudice standard to apply, counsel's "failure must be complete"). We illustrated just how infrequently the "surrounding circumstances [will] justify a presumption of ineffectiveness" in Cronic itself. In that case, we reversed a Court of Appeals ruling that ranked as prejudicially inadequate the performance of an inexperienced, under-prepared attorney in a complex mail fraud trial. 466 U.S., at 662, 666, 104 S.Ct. 2039.

[6] On the record thus far developed, Corin's concession of Nixon's guilt does not rank as a "fail[ure] to function in any meaningful sense as the Government's adversary." Ibid. [FN5] Although such a concession in a run-of-the-mine trial might present a closer question, the gravity of the potential sentence in a capital trial and the proceeding's two-phase structure vitally affect counsel's strategic calculus. Attorneys representing capital defendants face daunting challenges in developing trial strategies, not least because the defendant's guilt is often clear. Prosecutors are more likely to seek the death penalty, and to refuse to accept a plea to a life sentence, when the evidence is overwhelming and the crime heinous. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 329 (1983). [FN6] In such cases, "avoiding execution [may be] the best and only realistic result possible." ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases § 10.9.1, Commentary (rev. ed.2003), reprinted in 31 Hofstra L.Rev. 913, 1040 (2003).

*11 Counsel therefore may reasonably decide to focus on the trial's penalty phase, at which time counsel's mission is to persuade the trier that his client's life should be spared. Unable to negotiate a guilty plea in exchange for a life sentence, defense counsel must strive at the guilt phase to avoid a counterproductive course. See Lyon, Defending the Death Penalty Case: What Makes Death Different?, 42 Mercer L.Rev. 695, 708 (1991) ("It is not good to put on a 'he didn't do it' defense and a 'he is sorry he did it' mitigation. This just does not work. The jury will give the death penalty to the client and, in essence, the attorney."); Sundby, The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty, 83 Cornell L.Rev. 1557, 1589-1591 (1998) (interviews of jurors in capital trials indicate that juries approach the sentencing phase "cynically" where counsel's sentencing-phase presentation is logically inconsistent with the guilt-phase defense); id., at 1597 (in capital cases, a "run-of-the-mill strategy of challenging the prosecution's case for failing to prove guilt beyond a reasonable doubt" can have dire implications for the sentencing phase). In this light, counsel cannot be deemed ineffective for attempting to impress the jury with his candor and his unwillingness to engage in "a useless charade." See Cronic, 466 U.S., at 656-657, n. 19, 104 S.Ct. 2039. Renowned advocate Clarence Darrow, we note, famously employed a similar strategy as counsel for the youthful, cold-blooded killers Richard Loeb and Nathan Leopold. Imploring the judge to spare the boys' lives, Darrow declared: "I do not know how much salvage there is in these two boys. ... I will be honest with this court as I have tried to be from the beginning. I know that these boys are not fit to be at large." Attorney for the Damned: Clarence Darrow in the Courtroom 84 (A. Weinberg ed.1989); see Tr. of Oral Arg. 40-41 (Darrow's clients "did not expressly consent to what he did. But he saved their lives."); cf. Yarborough v. Gentry, 540 U.S. 1, 9-10, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam).

To summarize, in a capital case, counsel must consider in conjunction both the guilt and penalty phases in determining how best to proceed. When counsel informs the defendant of the strategy counsel believes to be in the defendant's best interest and the defendant is unresponsive, counsel's strategic choice is not impeded by any blanket rule demanding the defendant's explicit consent. Instead, if counsel's strategy, given the evidence bearing on the defendant's guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain.

FOCUS

Back soon.

AROUND THE WEB

The Death Penalty Information Center (Deathpenaltyinfo.org) notes:

NEW VOICES: Andrew Cuomo Calls for Reexamination of NY's Death Penalty

Andrew Cuomo (pictured), who served as U.S. Secretary of Housing and Urban Development from 1997 to 2001, recently urged New York lawmakers to put an end to the death penalty. The state is holding hearings on capital punishment in the wake of a N.Y. Court of Appeals decision finding the statute unconstitutional earlier this year. In his op-ed in The New York Times, Cuomo noted:

The Democrats, who control the Assembly, should make it clear that they will not pass a new death penalty law. This will take courage, but it is vital that they do so: We cannot rely much longer on a progressive Court of Appeals to intercede and prevent executions, as has happened since 1995, when the death penalty was reinstituted in New York. (Mr. Pataki had vowed to reinstate the death penalty in his campaign against my father, Gov. Mario M. Cuomo.) As judges appointed by Governor Cuomo retire over the next few years, Governor Pataki will install more conservative court members.

More important, there remains no evidence that the death penalty is a deterrent to crime and plenty of evidence that it is invoked arbitrarily - and often mistakenly. Last year, 267 inmates nationwide had their death sentences overturned or removed, according to the Justice Department. This is the largest number in any year since 1976, when the United States Supreme Court upheld the constitutionality of state death-penalty laws in a group of states.

Other developments since 1995 have also mirrored the growing doubts about capital punishment. In 2000, Gov. George Ryan of Illinois, a Republican who had supported the death penalty, imposed a moratorium on all executions in his state, citing instances in which death-row inmates were found to be innocent. And a report issued in November by the Justice Department reveals that death sentences nationally are now at a 30-year low.

At the same time, cases in which DNA evidence has established the innocence of people convicted of capital crimes - along with concerns about racial bias in death-penalty sentencing - have further undercut support for capital punishment around the country. According to a 2004 Gallup Poll, about half of all Americans say that convicted murderers should get the death penalty. But just under half instead support a sentence of life imprisonment without the possibility of parole. Public opinion has been shifting toward this second option, according to the Gallup organization. The poll also showed that 62 % of Americans believe that capital punishment does not act as a deterrent, compared with 51 percent in 1991.

Nor does capital punishment make sense financially. Many studies show that it is more expensive for taxpayers to pursue executions than to sentence criminals to life without parole. Indeed, New York State has spent at least $160 million pursuing the death penalty since 1995.

Unfortunately, the prevailing thinking in Albany is that opposition to the death penalty is "political suicide." I disagree. While the public overall still favors the death penalty, public opinion in New York has been shifting. A poll conducted in 2003 by Quinnipiac University shows that a majority of New York Democrats oppose the death penalty and that a majority of all New Yorkers favor sentences of mandatory life without parole over execution. Such sentences did not exist in the state when the death penalty law was passed in 1995.

Leadership can change public opinion, and this shifting point of view may become even more pronounced if the Assembly Democrats wage an intense debate on the issue, informing people of the facts - and of the shortcomings of the bills awaiting action in the Legislature. While other states are instituting safeguards against police and prosecutorial misconduct and ensuring protection for mentally ill defendants in capital cases, for example, these issues are not addressed in the governor's or Senate's proposals.

For the public, the debate can begin as early as this week. The first of a series of public hearings on the death penalty is to be held in New York City on Wednesday.

The Court of Appeals ruling that suspended the state's death penalty has given New Yorkers a window of opportunity, a moment to enact a real reform. It should not be lost.

(New York Times, December 12, 2004) (emphasis added). See New Voices. See DPIC's Web page on New York Court of Appeals Ruling. Note: Hearings on the death penalty were held in Manhattan on December 15. Additional hearings will be held in Albany on January 25.

Supreme Court Clarifies the Application of Ineffective Assistance Of Counsel Standards

On December 13, 2004, the U. S. Supreme Court ruled that the effectiveness of defense counsel's performance must be judged by standards previously set out by the Court in Strickland v. Washington. In Florida v. Nixon, Joe Nixon's attorney told the jury his client was guilty without his client's express consent. After the jury sentenced Nixon to death, the Florida Supreme Court overturned Nixon's conviction, holding that counsel's concession of guilt automatically fell below an objective standard of reasonable performance, necessitating a new trial. The court ruled that counsel's performance was deficient and that the deficient performance was presumptively prejudicial to Nixon. The U.S. Supreme Court overruled the Florida court, holding that a concession of guilt by counsel made without the express consent of the defendant does not automatically constitute ineffective assistance of counsel, but must be judged by Strickland's two-pronged test: sub-par representation AND a likely effect on the outcome of the case. The case is Florida v. Nixon, No 03-931, 543 U.S. ___ (2004). See Supreme Court and Representation.

DPIC RELEASES 2004 REPORT SHOWING SHARP DECLINE IN DEATH PENALTY USE

Read the Press Release. Copies may be obtained by contacting DPIC. The report will be posted on our Web site in the near future.

Supreme Court to Consider Impact of International Ruling in Death Penalty Cases

On December 10, 2004 (Human Rights Day), the United States Supreme Court agreed to hear the case of Jose Medellin to determine what effect the United States should give to a recent ruling by the International Court of Justice at the Hague, the United Nations’ highest court. In the case of Medellin and 50 other Mexican nationals on death row, the World Court ruled that the U.S. failed to inform Mexico of their arrests, in violation of the 1963 Vienna Convention on Consular Relations. This failing interfered with Mexico's ability to lend legal assistance to those facing the death penalty. The Vienna Convention applies to Americans abroad and to foreigners arrested in the United States and requires that an arresting government notify a foreign national of the right to talk with his or her consulate. It also requires that the consulate be informed of the arrest of one of their citizens. The Supreme Court granted certiorari to determine whether the World Court's ruling supplants the holding of lower courts that Medellin should have raised this claim earlier. The World Court ruled that U.S. courts should give the death row inmates “meaningful review” of their convictions and sentences. The case is Medellin v. Dretke, No. 04-5928. (Associated Press, December 10, 2004) See Supreme Court and Foreign Nationals.

NEW RESOURCE: Center on Wrongful Convictions Examines "The Snitch System"

The Center on Wrongful Convictions at Northwestern University School of Law has released a new report entitled, The Snitch System: How Snitch Testimony Sent Randy Steidl and Other Innocent Americans to Death Row. The report highlights 51 cases of Americans who were wrongfully convicted and given death sentences based on the testimony of witnesses with incentives to lie. According to the Center, snitch testimony is the primary cause for approximately 45% of all wrongful capital convictions, making it the leading problem resulting in innocent people being sent to death row.

The report provides in-depth information on the cases of death row exonerees Verneal Jimerson, Gordon Steidl, Joseph Burrows, Perry Cobb, Steven Smith, Gary Gauger, Steven Manning, Rolando Cruz, and Madison Hobley. It concludes with recommendations on improving the reliability of testimony used to convict and sentence defendants in capital cases. (Center on Wrongful Convictions, 2004). See Resources and Innocence. Note: Snitch testimony was used to convict Cameron Willingham, who was executed in Texas in 2004. A recent investigation (see previous What's New item) by the Chicago Tribune now indicates Willingham might have been innocent.

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