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Counsel – Ineffective Assistance – Deficient Performance – Examination of Witness – Defendant’s Perjurious Testimony

State v. Derryle S. McDowell, 2004 WI 70, affirming 2003 WI App 168habeas relief deniedMcDowell v. Kingston, 497 F.3d 757 (7th Cir 2007)
For McDowell: Christopher J. Cherella
Amici: Keith A. Findley, John A. Pray

Issue/Holding: (Given the significance of the holding, at-length quoting is required in regard to counsel’s performance obligations relative to a client whose testimony may be perjurious:)

¶2. This case discusses the important issue of how criminal defense attorneys should deal with the prospect of client perjury. Specifically, it addresses under what circumstances counsel has knowledge of the perjury sufficient to trigger a requirement that a client testify in the unaided narrative rather than the usual question and answer format.2 Prior to the decision of the court of appeals in this case, no Wisconsin case had defined what standard should be employed to determine when attorneys “know” their clients will lie.¶3. We agree with the court of appeals that defense counsel may not substitute narrative questioning for the traditional question and answer format unless counsel knows that the client intends to testify falsely. Absent the most extraordinary circumstances, such knowledge must be based on the client’s expressed admission of intent to testify untruthfully. We further determine that attorneys must advise the client, opposing counsel, and the circuit court of the change of questioning style prior to use of the narrative.

¶4. In the case before us, we conclude that defense counsel’s performance was deficient in two respects: (1) he shifted to narrative questioning without advising his client beforehand; and (2) he used narrative questioning despite believing that his client intended to testify truthfully. We also conclude, however, that McDowell suffered no prejudice under the facts of this case. Finally, we reject McDowell’s claim that the circuit court erred in failing to permit him new counsel. Accordingly, we affirm the court of appeals.


2 Commentators have described the narrative format as follows:

The narrative approach allows the lawyer to put the client on the stand and allow him to tell his story in a free narrative manner. While this occurs, the lawyer does not engage in the testimony; she asks no questions of the client and presents no corroborating evidence. The client is allowed to present his testimony to the court without help from the attorney. In his closing argument, the attorney does not and cannot rely on any of the client’s false testimony.

Brian Slipakoff & Roshini Thayaparan, The Criminal Defense Attorney Facing Prospective Client Perjury, 15 Geo. J. Legal Ethics 935, 951 (2002) (internal citations omitted).

There’s more to it than that, of course. A principal source of underlying tension lies in the potentially competing principles of zealous advocacy and candor toward tribunal. The court attempts to resolve the dilemma by imposing “an extremely high standard for evaluating prospective perjury”:

¶42. Thus, we are satisfied that the approach taken by the co urt of appeals was the appropriate one.15 Despite the multitude of standards, courts “generally have set an extremely high standard for” evaluating prospective perjury. Monroe H. Freedman, But Only If You “Know,” in Ethical Problems Facing the Criminal Defense Lawyer 138 (Rodney J. Uphoff, 1995).

¶43. Accordingly, we determine that an attorney may not substitute narrative questioning for the traditional question and answer format unless counsel knows that the client intends to testify falsely. Absent the most extraordinary circumstances, such knowledge must be based on the client’s expressed admission of intent to testify untruthfully. While we recognize that the defendant’s admission need not be phrased in “magic words,” it must be unambiguous and directly made to the attorney.

¶44. We agree with the observation of the court of appeals that Supreme Court Rule 20:3.3 must be harmonized with our determination here. Like the court of appeals, we “interpret SCR 20:3.3(c)’s suggestion that counsel ‘may refuse to offer evidence that the lawyer reasonably believes is false’ to apply to circumstances beyond the borders surrounding the questions involving a criminal defendant’s stated intention to testify falsely.” McDowell, 266 Wis. 2d 599, 47. Indeed, “[a]ny other interpretation would, in our estimation, produce an irreconcilable conflict between the two rules.” Id. (citing State v. Zielke, 137 Wis. 2d 39, 51, 403 N.W.2d 427 (1987)).

The court goes on to say that counsel should attempt to dissuade the client from committing perjury, ¶45, and should also consider moving to withdraw, ¶46:

¶47. If, however, the motion to withdraw is denied and the defendant insists in committing perjury, we conclude that counsel should proceed with the narrative form, advising the defendant beforehand of what that would entail. While far from perfect, we recognize that the narrative represents the best of several imperfect options.17 It “best accommodates the competing interests of the defendant’s constitutional right to testify and the attorney’s ethical obligations.” People v. Johnson, 62 Cal. App. 4th 608, 630, 72 Cal. Rptr. 2d 805 (1998).18¶48. Finally, we agree with the court of appeals that attorneys must also inform opposing counsel and the circuit court of the change of questioning style prior to use of the narrative. Courts, in turn, shall be required to examine both counsel and the defendant and make a record of the following: “(1) the basis for counsel’s conclusion that the defendant intends to testify falsely; (2) the defendant’s understanding of the right to testify, notwithstanding the intent to testify falsely; and (3) the defendant’s, and counsel’s, understanding of the nature and limitations of the narrative questioning that will result.” McDowell, 266 Wis. 2d 599, ¶57.

It’s probably fair to say that you can’t really square the circle between duty to client and duty to tribunal. Once you inform court and DA of “the basis for” your conclusion, then you’ve slipped the bounds of client confidentiality and zealous advocacy. The meta-message seems to be that candor toward tribunal occupies higher moral ground than partisan advocacy but the potential conflict between the two represents a thicket to be avoided at all costs; hence, construction of a very high wall. The theoretical tensions remain – the court’s seeming confidence that this regime indeed harmonizes the rules being a bit glib; is counsel, for example, prohibited from arguing the narrative testimony to the fact-finder? – but with a test this stringent maybe the tensions won’t ever be actualized. But “maybe not” of course also means “maybe so,” and with that in mind …The ABA promulgated a new Rule 3.3 in Feb. 2002, and Wisconsin Ethics 2000 Committee has proposed its adoption. You could do worse than the recent discussion in Nathan M. Crystal, “False Testimony by Criminal Defendants,” 2003 U. Ill. L. Rev. 1529, which Crystal himself summarizes this way:

Revised Rule 3.3 poses a number of interpretative issues. After analyzing the application of the rule to false testimony by the criminal defendant, this article concludes that the rule is likely to result in the use of the narrative solution to a much greater extent than the drafters may have intended. The 1986 case of Nix v. Whiteside held that a lawyer’s successful efforts by remonstration to prevent false testimony by a criminal defendant did not violate the defendant’s Sixth Amendment right to effective assistance of counsel. This article argues that Nix is a constitutional outlier leaving unresolved a number of Sixth, Fifth, and Fourteenth Amendment issues. The ethics and constitutionality of responses by counsel to false testimony by the criminal defendant are not much closer to resolution than they were a quarter century ago.

His prediction about increased use of narrative testimony might be exaggerated, in view of the stiff test McDowell imposes. But his suggestion that constitutional issues remain unresolved is worthy. And his punchy description of Nix v. Whiteside as a “constitutional outlier” hints at a trend which seems to be entrenched: the use of ethical rules to decide issues of criminal procedure. There are those who think that the Court simply should not have seized Whiteside as an opportunity to discuss ethical rules. But we seem well past that point, and the rules of ethics have leached into other areas (think confidentiality vs. evidentiary privilege). Ethics being what they are, they’re going to trump anything else.

For other relatively recent authority see, U.S. v. Midgett, 342 F.3d 321 (4th Cir. 2003). Noting “little consensus” on how a lawyer should deal with a client’s “potentially perjurious testimony,” the court, consistent with McDowell, held that “counsel’s mere belief, albeit a strong one supported by other evidence, was not a sufficient basis to refuse Midgett’s need for assistance in presenting his own testimony.” Tension between zealous advocacy and duty to the judicary arises when counsel knows the client intends to commit perjury. Short of that, counsel has a duty to put the client’s testimony before the jury. Midgett, it should be noted, didn’t deal with the narrative vs. Q & A problem.

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