United States v. Donald Teague

EDMONDSON, Circuit Judge,

concurring in the result in which COX and BIRCH, Circuit Judges, join:

I concur in the result in this case, but I disagree with much that is said in today’s court opinion.

I believe a defendant’s right to testify can only be described as a right to be free of unreasonable governmental interference with his testifying. See, e.g., Rock v. Arkansas, 483 U.S. 44 , 107 S.Ct. 2704 , 97 L.Ed.2d 37 (1987) (statutory per sé rule excluding hypnotically refreshed testimony impermissibly infringes on criminal defendant’s right to testify). So, I do not believe that defense counsel can violate the right to testify when the limited nature of that right is correctly understood. No one claims here that the government interfered with Teague when he sought to testify. Therefore, no right-to-testify considerations are present in this case.

On the question of ineffectiveness of counsel, defense counsel can be ineffective in the constitutional sense if counsel does not call the defendant to testify; but I think whether the lawyer is ineffective for declining to call a defendant who wished to testify would turn on the circumstances of each case. For defense counsel to be ineffective, the value of defendant’s testimony for the purpose of gaining acquittal (or perhaps a lower sentence) would have to be so great and obvious that no reasonable lawyer, given the facts of the particular case, would have exercised his judgment to exclude defendant’s testimony. Considering the imponderables of trials in general, such cases would seem to be rare. 1 And, this case is not among those rare casés.

*1536 The Supreme Court, in dicta, has said things that suggest that my view about the nature of a defendant’s right to testify may be incorrect. But, dicta is inherently unreliable for what a court will do once faced with a question squarely and once its best thoughts, along with briefs and oral argument, are focused on the precise issue.

I understand and agree that a defendant must personally decide how he will plead to the charges against him, whether he will waive trial by jury, and whether he will appeal. But these decisions are not about trial tactics; they are materially different. These decisions determine whether there is to be a fight and who will judge the fight’s outcome. But, once the client decides that there is to be a fight and that he wishes to be represented by a lawyer, I agree with those judges who say that defense counsel need not defer to the client’s desires on how the fight is to be waged. See United States v. Teague, 908 F.2d 752, 761 (11th Cir.1990) (Roney, J., dissenting), rev’d on reh’g, 953 F.2d 1525 (11th Cir.1992) (en banc); Wright v. Estelle, 572 F.2d 1071, 1072 (5th Cir.1978) (Thornberry, Clark, Roney, Gee, & Hill, JJ., specially concurring).

To allow the client the last word on trial tactics, including whether the client will himself testify, is to make the client, in effect, his own lawyer. 2 See Frank v. Bloom, 634 F.2d 1245, 1257 (6th Cir.1980). Decisions about which witnesses to call are quintessentially tactical and require a trained advocate’s judgment, tempered by his responsibilities — such as, avoiding perjured testimony — as an officer of the court. To allow the client to decide absolutely whether the client will testify is potentially to nullify all of the lawyer’s tactical efforts and to make, in fact, a mockery of the very idea that a defendant received a competent defense by means of the assistance of counsel. Put differently, allowing the client to override counsel’s tactical decisions undercuts the adversarial process that the Constitution attempts to protect as the essential ingredient to a fair trial.

In defining a defense lawyer’s constitutional duty, today’s court relies heavily on ABA ethical guidelines. I worry about this practice. I do not believe that ethical standards define or ought to define (or even to count for much in defining) the constitutional standards that apply to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 688-89 , 104 S.Ct. 2052, 2065 , 80 L.Ed.2d 674 (1984); Nix v. Whiteside, 475 U.S. 157, 165 , 106 S.Ct. 988, 993 , 89 L.Ed.2d 123 (1986) (breach of ethical standard does not necessarily constitute denial of Sixth Amendment guarantee of assistance of counsel); see also TEW v. Arky, Freed, Stearns, et al., P.A., 655 F.Supp. 10573 , 1575 (S.D.Fla. 1987), aff'd, 846 F.2d 753 (11th Cir.), cert. denied, 488 U.S. 854 , 109 S.Ct. 142 , 102 L.Ed.2d 114 (1988) (attorney disciplinary rules not designed to be basis for civil liability or create private cause of action); Miami Int’l Realty Co. v. Paynter, 841 F.2d 348 (10th Cir.1988) (violation of code of professional responsibility does not constitute negligence per se).

Federal courts are “forever adding new stories to the temple of constitutional law, and the temples have a way of collapsing when one story too many is added.” Douglas v. Jeannette, 319 U.S. 157, 181 , 63 S.Ct. *1537 877, 889 , 87 L.Ed. 1324 (1943) (Jackson, J., concurring in part and dissenting in part), quoted in Miranda v. Arizona, 384 U.S. 436, 526 , 86 S.Ct. 1602, 1654-55 , 16 L.Ed.2d 694 (1966) (Harlan J., dissenting). Effective assistance of counsel involves the lawyer’s help to win an acquittal or lower sentence, that is, “vigorous advocacy of the defendant’s cause.” See Strickland, 466 U.S. at 689 , 104 S.Ct. at 2065 . To include other ideas — such as whether the representation complied with ethical guidelines, some of which do not aim at acquittal but serve other purposes — burdens and complicates too much an already complex question of what is effective representation. Even if a defense lawyer’s blocking of his client’s testimony is unethical (leading perhaps to discipline for the lawyer), the lawyer’s representation can still be effective from a constitutional point of view if reasonable lawyers could have believed that defendant’s testimony would have significantly lessened defendant’s chance for acquittal or a lower sentence.

. A defendant's testifying raises significant legal risks for him. See United States v. Sharif, 893 F.2d 1212, 1214 (11th Cir.1990) (“When the defendant elects to testify, he runs the risk that if disbelieved, the trier of fact may conclude that the opposite of his testimony is the truth.”); United States v. Bennett, 848 F.2d 1134, 1139 (11th Cir.1988) (jury may view defendant’s false *1536 explanatory statement as substantive evidence proving guilt); United States v. Eley, 723 F.2d 1522, 1525 (11th Cir.1984) (same).

. Defendants have the right to represent themselves. But, we know it is rarely wise for one to do so. And elaborate procedural safeguards — to protect not only the defendant but also the criminal trial process—are involved. See Faretta v. California, 422 U.S. 806, 835 , 95 S.Ct. 2525, 2541 , 45 L.Ed.2d 562 (1975) (court must make defendant aware of dangers of self-representation); Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065-67 (11th Cir.1986) (listing eight factors for determining whether defendant's waiver of counsel/request to proceed pro se is knowing and intelligent); Horton v. Dugger, 895 F.2d 714, 716-17 (11th Cir.1990) (defendant must assert right to self-representation in timely manner). If the defendant-client did have the last word about testifying, I surmise that like procedures would be applicable whenever the client elected to testify over his counsel's objections. But I have not pursued this line of thought because of my view that a defendant who is represented by counsel does not — under the federal Constitution — have the last word on tactics.