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SCOW holds defense counsel didn’t concede guilt during closing arguments

State v. Decarlos K. Chambers, 2019AP411-CR, 2021 WI 13, 2/23/21, affirming a per curiam court of appeals opinioncase activity (including briefs)

SCOTUS recently held that when a client expressly asserts that he wants to maintain his innocence, defense counsel cannot override that objective and concede guilt. If counsel does, a structural error occurs, and the client automatically gets a new trial. McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500 (2018). This appeal had the potential to clarify whether McCoy altered Wisconsin law on this subject.  See our post on McCoy. Alas, this decision does not address Wisconsin law. Instead, SCOW unanimously affirms that defense counsel did not concede her client’s guilt.

First some background. In Florida v. Nixon, 543 U.S. 175, 192 (2004) a lawyer recommended that his client concede guilt in an attempt to avoid the death penalty. The client sat unresponsive and neither approved or disapproved of the strategy. The lawyer pursued the proposed strategy, and the client was found guilty and sentenced to death. SCOTUS held that the lawyer did not provide ineffective assistance of counsel by conceding guilt without his client’s approval.

McCoy also involved a lawyer who urged his client to concede guilt in order to avoid the death penalty. But unlike in Nixon, the client expressly told his lawyer that he wanted to maintain his innocence. The lawyer conceded guilt anyway. SCOTUS held that the law governing ineffective assistance of counsel does not govern this situation. Rather, the lawyer violated the client’s 6th Amendment right to determine his own defense. The violation of that right is a structural error–meaning neither Strickland nor harmless error jurisprudence applies. McCoy, __ S. Ct. at 1510-1511. The client automatically gets a new trial.

In this case, Chambers was charged with 1st-degree reckless homicide. The State asked the court to instruct the jury on the lesser included offense of 2nd-degree homicide, and Chambers did not object. At one point during closing arguments, defense counsel stated that the jury “should consider” 2nd-degree reckless homicide, but she also repeatedly argued that the jury should find her client “not guilty.” Based on this record, SCOW unanimously held that defense counsel did not concede Chambers’ guilt. Opinion, ¶¶16-17.

Under Wisconsin law, when a defendant has conceded the facts underlying a charge, counsel may concede guilt on that charge in order to gain credibility on other charges. State v. Gordon, 2003 WI 69, ¶¶25-28, 262 Wis. 2d 380, 663 N.W.2d 765. McCoy calls Gordon‘s holding into doubt. Trial lawyers should read both cases closely before conceding guilt at trial.

SCOW’s decision leaves a number of other issues open for debate. Footnote 5 notes that SCOTUS issued McCoy in a capital murder case. SCOW “assumed without deciding” that the holding applied to non-capital murder cases.

Footnote 7 states that the parties agreed that McCoy announced a new rule of law, which can be applied retroactively to other cases pending on direct appeal. The parties’ “agreement” is questionable. The McCoy majority noted that the defendant’s right to choose his own defense dates back to cases like Faretta v. California, 422 U.S. 806, 834 (1975) and Illinois v. Allen, 397 U.S. 337, 350-351 (1970). Arguably then McCoy applied a settled rule that a defendant is “master of his defense” to a different set of facts. If so, then McCoy applies retroactively even to cases on collateral review under Teague v. Lane, 489 U.S. 288, 299-301 (1989).

SCOW’s opinion includes other footnote caveats about issues that were not decided. See Footnotes 6, 8, and 9. Bottom line: This opinion seems to have limited application to other cases. It is most noteworthy for what it did not decide.


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