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Strategizing with your client, or not

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You are preparing to defend your client in a criminal trial. The charges are serious and you are taking great care to choose the right strategy. Every time you attempt to discuss your strategy with your client, however, he just sits there, totally unresponsive. Having thereby received no input or feedback from your client on how you should tactically approach the defense, you make the tactical decision on your own. Your client, due undoubtedly to the overwhelming evidence against him, is convicted. After the trial, your now disgruntled client accuses you of defective performance. What result?

Florida v. Nixon

Criminal defendant Nixon was convicted after trial of first-degree murder, robbery, arson and kidnapping, and was sentenced to death. After the convictions and sentence he alleged ineffective assistance of counsel. To determine the validity of this claim, the court examined the course of events preceding the trial.

When the prosecution refused to offer anything less than a death sentence, defense counsel decided to tactically concede guilt in the guilt phase, to maintain credibility to argue against a death sentence at the penalty phase. (Id. at 553.) When he tried to discuss this strategy with his client Nixon, however, Nixon was completely unresponsive, never agreeing or disagreeing with counsel's tactical plan. (Id.) Having received no assistance from his client, counsel proceeded to carry out his strategy; Nixon was convicted and sentenced to death. (Id.)

The Florida Supreme Court held that counsel's concession of Nixon's guilt without having received Nixon's express consent was automatically ineffective assistance of counsel, under the standard set forth in United States v. Cronic (1984) 466 U.S. 648, operating as the "functional equivalent of a guilty plea." (Id.) The U.S. Supreme Court disagreed. The court held that defense counsel's failure to obtain the defendant's express consent to employing a strategy of conceding guilt at the guilt phase of a capital trial did not automatically render counsel's performance deficient. (Id. at 554.) Despite this concession, Nixon retained his rights as a criminal defendant to have the prosecution prove the elements of the charged crimes as well as his rights to object to the introduction of evidence and to cross-examine the witnesses against him. (Id. at 561.) Although defense counsel has a duty to strategize a case with his client, "when a defendant, informed by counsel, neither consents nor objects to the course counsel describes as the most promising means to avert a sentence of death, counsel is not automatically barred from pursuing that course." (Id. at 555.)

The court held that the reasonableness of defense counsel's strategic choice to concede guilt at the guilt phase of the trial after his client was unresponsive to his informing his client of his strategy choice should be judged under Strickland v. Washington (1984) 466 U.S. 668, 688: "Did counsel's representation '(fall) below an objective standard of reasonableness?'" (Id. at 554.) The lower court erred in judging the reasonableness of defense counsel's performance under the Cronic standard and presuming deficient performance, as well as presuming prejudice. (Id. at 555.) The presumption of prejudice applies when defense counsel fails to mount a meaningful opposition to the prosecution's case; it does not apply "based solely on a defendant's failure to provide express consent to a tenable strategy counsel has adequately disclosed to and discussed with the defendant." (Id.)

Due to the recent nature of this case (Dec. 13, 2004, not yet final), stay tuned for the final outcome, as well as the progression of case law in this area. As with any recent case, please check the continuing validity of this decision before relying on the case as authority.


Patrick is a deputy district attorney in the Special Operations Division of the San Diego District Attorney's Office. She can be contacted at wendy.patrick@sddt.com. The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.

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