¶24. The court of appeals held that the defense attorney’s closing argument concession on the disorderly conduct while armed count was the functional equivalent of a guilty plea, improper if done without Gordon’s consent, and conclusively presumed to be prejudicial. Gordon, 250 Wis. 2d 702, ¶25. We disagree. A guilty plea waives trial, cross-examination of witnesses, the right to testify and call witnesses in one’s own defense, and the right to a unanimous jury verdict of guilt beyond a reasonable doubt. The concession in this case had none of these effects. Gordon had a jury trial, cross-examined the State’s witnesses, testified in his own defense, and was adjudged guilty beyond a reasonable doubt by a unanimous jury.
¶25. Gordon’s own testimony conceded the facts constituting the disorderly conduct while armed count. In summary, he admitted the following: that he had been drinking and had been involved in a domestic dispute with Wilder; that when the police arrived, he armed himself with two knives to facilitate his escape; that he refused the officer’s commands to drop the knives; that he fled the apartment while still armed with the knives and was pursued through the neighborhood by the two police officers; that when the officers caught up with him they twice commanded him to drop the knives; that he initially refused to do so; and that when he changed his mind and started to surrender the knives, the police shot him in the arm and the stomach.
¶26. Under these circumstances it was not deficient performance for Gordon’s attorney to concede the overwhelming weight of the evidence on the misdemeanor disorderly conduct count and focus his closing argument on the more serious charges in the case, which, unlike the disorderly conduct count, remained contestable after Gordon’s testimony. While conceding that the facts out of Gordon’s own mouth amounted to disorderly conduct while armed, Gordon’s attorney argued vigorously for acquittal on the more serious felony and misdemeanor counts. This was a reasonable tactical approach under the circumstances, plainly calculated to maintain credibility with the jury and enhance the prospects of acquittal on the two more serious charges. Gordon’s attorney did not concede anything that Gordon had not admitted as a factual matter on the witness stand; the concession, therefore, did not conflict with Gordon’s own testimonial admissions. Accordingly, the defense attorney’s conduct in this regard did not fall below an objective standard of reasonableness, nor was it prejudicial.
¶27. Gordon cites a number of cases that have held an attorney’s concession of guilt during trial to be the functional equivalent of a guilty plea, and presumptively prejudicial if done without the defendant’s consent, but each of these cases is factually distinguishable from this case, because each is characterized by one or more of the following: 1) a concession to all the charges (or the only charge) in the case; 2) a concession made in opening statement beforeany adversarial or evidentiary testing had occurred; 3) a concession made in the presence of a contemporaneous objection from the defendant; or 4) a concession made in direct conflict with the defendant’s testimony.
In other words, there’s no “rule of per se ineffectiveness” in cases where counsel concedes guilt on one count “in light of overwhelming evidence on that count.” ¶¶28-30. But does this mean that counsel may unilaterally derive such a strategy? Such an implication — though it might be read into the decision — would be most unwise. The Supreme Court subsequently upheld a strategic course by counsel to concede guilt in the opening phase of a capital trial in the hope of obtaining a favorable outcome at the penalty stage, Florida v. Nixon, 543 U.S. 175 (2004), but that case may be read to require consultation with if not exactly personal assent by the client. The holding’s narrowness should be kept in mind (emphasis supplied): “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.” See U.S. v. Thomas, 417 F. 3d 1053 (9th Cir 2005) (court “assume(s) that counsel’s concession of guilt without consultation or consent is deficient,” in light of Nixon‘s articulation of counsel’s duty to explain to client “overarching defense strategy”). It may be, then, that counsel is obliged to tell the defendant the strategy involves conceding guilt, but not obliged to get approval.
To the extent Nixon authorizes scrutiny of the reasonableness (as opposed to authorization) of this sort of strategy, the result, it should be mentioned, was foreshadowed by Yarborough v. Gentry, 540 U.S. 1 (2003) (“confessing a client’s shortcomings … is precisely the sort of calculated risk that lies at the heart of an advocate’s discretion”; counsel’s candor might establish credibility with the jury and direct focus toward and in favor of the theory of the defense). This sort of strategy has been approvingly termed by some courts as “confession and avoidance,” which is simply shorthand for avoiding lost credibility by arguing a lost cause; an effort, that is, to shift focus from strong evidence against the defendant to more favorable matter. U.S. v. Fredman, 9th Cir No. 03-35808, 12/10/04 (note, though, the concurrence’s stress on the utter lack of any other potential strategy, and the caution that this “tactic is not something courts ordinarily will approve” — the impact if any of Nixon, which came mere days later, on that caution remains to be seen). Same for the following, pre-Nixon authorities:U.S. v. Holman, 314 F.3d 837 (7th Cir. 2002) (“an attorney’s concession of a client’s guilt without any indication of the client’s consent to the strategy is deficient conduct for Stricklandpurposes”; however, no prejudice under the facts). Holman relied principally on Earl Wiley v. Sowders, 647 F.2d 642 (6th Cir. 1981), and Elmer Wiley v. Sowders, 669 F.2d 386 (6th Cir. 1982), and reasoned that the problem was that “Holman’s counsel essentially gave up the same constitutional rights that Holman would have relinquished had he plead guilty to Count 1 before trial.” That rationale may no longer be viable in light of Nixon; yet, if focus is on duty to consult, as opposed to obtain assent, then as noted a defeicient-performance argument could well be made.
The challenged concession by Holman’s attorney occurred, the court stressed, “at the beginning of trial,” and not “at the very end of trial,” when counsel would have been able to assess the possibility of a favorable verdict. To the extent that the inquiry is one of reasonableness then the timing of the concession may well be critical. But its timing is at least arguably meaningless if the claim of error lies in bypassing the protections of a judicial guilty plea colloquy — which is precisely the Holman court’s rationale:
… Rule 11 ensures that a guilty plea is made freely and knowingly, but if a defendant pleads not guilty, he enjoys no protection against an appeal to the jury to find him guilty. A similar side door—stipulating without a defendant’s prior consent to facts which prove the defendant’s guilt despite a not guilty plea—has long been closed. See United States v. Franzen, 668 F.2d 933, 941 (7th Cir. 1982)….
See also People v. Campbell, 802 NE 2d 1205 (Ill. SCt 2003):
… (W)e agree with defendant that defense counsel cannot stipulate to facts which establish the guilt of the accused because the constitutional right implicated in that situation is the right of a defendant in a criminal case to plead not guilty…. (W)e hold that counsel in a criminal case may waive his client’s sixth amendment right of confrontation by stipulating to the admission of evidence as long as the defendant does not object to or dissent from his attorney’s decision, and where the decision to stipulate is a matter of legitimate trial tactics or prudent trial strategy. Where the stipulation includes a statement that the evidence is sufficient to convict the defendant or where the State’s entire case is to be presented by stipulation, we find that a defendant must be personally admonished about the stipulation and must personally agree to the stipulation.
But it does seem clear, after Nixon, that establishing deficient performance in the concession of guilt isn’t enough — you must also show prejudice, see, e.g., U.S. v. Thomas.