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SCOW to address counsel’s concession of guilt when client maintains innocence

State v. Decarlos K. Chambers, 2019AP411-CR, petition for review of per curiam opinion granted 9/16/20; case activity (including briefs)

Issue presented (derived from Cambers’ petition for review):

The State charged Chambers with 1st degree reckless homicide. He maintained that he had not committed the crimes and that was absolutely innocent. He refused all plea offers. Nevertheless, during closing arguments his lawyer told the jury they should consider convicting him of 2nd degree recklessly homicide, and they did.  The issues is whether trial counsel violated Chambers’ 6th Amendment right to determine his own defense under  McCoy v. Louisiana, 138 S Ct. 1500 (2018).

In McCoy the government charged the defendant with murdering three family members. He insisted that he did not commit the crimes and told his lawyer not to concede guilty. Because the evidence was overwhelming, and the jury could return the death penalty, his lawyer told the jury that the defendant was guilty in the hopes of gaining mercy at the sentencing stage. The strategy failed. The jury convicted the defendant of 1st degree homicide and returned three death verdicts.

McCoy reversed and held that a lawyer may decide “trial management” issues like which arguments to raise and which objections to make. However, the defendant is master of his own defense. He decides whether or not to plead guilty. Id. at 1508 “When a client expressly  asserts that the objective of ‘his defence’ is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.” Id. at 1509.

If the lawyer does override the client, the client has a claim for structural error, not a claim for ineffective assistance of counsel. With structural error, prejudice is presumed. The client gets a new trial.

As noted in our post on McCoy v. Louisiana,  State v. Gordon, 2003 WI 69, ¶26, 262 Wis. 2d 380, 663 N.W. 2d 765, may no longer be good law. Gordon involved a multi-count case where trial counsel conceded that the defendant was guilty of a lesser count in order to gain credibility and win acquittal on other charges. The defendant asserted ineffective assistance of counsel, but SCOW found his trial counsel’s strategy was reasonable because the evidence of guilt on the lesser offense was overwhelming. McCoy suggests that counsel cannot concede guilt on any charge over his client’s objection.

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