declining to consider a party affidavit attached to a brief and explaining that, “[a]s an appellate court, we are limited to the record as it comes to us from the trial court”
How later courts described this case
- declining to consider a party affidavit attached to a brief and explaining that, “[a]s an appellate court, we are limited to the record as it comes to us from the trial court”
- defendant who alleges that his lawyer was ineffective because the lawyer did not do something, must show with specificity what the lawyer should have done and how that would have either changed things or, at the very least, how that made the result of the trial either unreliable or fundamentally unfair
- refusing “to ignore the required two-prong Strickland analysis and impose a per se rule, which would require reversal in those cases where trial counsel prevents a defendant from testifying[.]”
- explaining that we will not consider undeveloped arguments
Written by the judges who cited it.
The opinion
SCHUDSON, J.
{concurring in part; dissenting in part). I join the majority's opinion on all issues except one. I write separately to declare most emphatically that a lawyer who, during a trial, threatens to withdraw from representation if the client elects to exercise the constitutional right to testify, is a lawyer who has provided ineffective assistance of counsel.
Contrary to the impression one might receive from the majority's discussion, the issue is not whether counsel's advice to Flynn was sound. Nor is the issue in this case whether a lawyer can vigorously attempt to persuade a client not to testify. The issue is whether, constitutionally, a lawyer provides ineffective assistance when, in order to persuade a client not to testify, *59 the lawyer threatens to withdraw from representation during a trial. 1
The majority acknowledges," '[T]he right to testify on one's own behalf in defense to a criminal charge is a fundamental constitutional right.'" Majority op. at 49 (quoting Rock v. Arkansas, 483 U.S. 44 , 53 n.10 (1987)). Further, the majority acknowledges, "Every criminal defendant has a Sixth Amendment right to the effective assistance of counsel." Majority op. at 46 (citing Strickland v. Washington, 466 U.S. 668, 686 (1984)). Finally, the majority also acknowledges that some constitutional errors, including deprivation of the right to counsel, so totally vitiate the jury trial right that harmless error analysis is inappropriate. Majority op. at 56 (citing Sullivan v. Louisiana, 113 S.Ct. 2078, 2081 , 124 L.Ed.2d 182, 189 (1993)). Nevertheless, the majority still asserts that "the harmless-error analysis does apply to the deprivation of a defendant's right to testify," majority id., even when that deprivation is inextricably connected to a threatened deprivation of right to counsel. I disagree.
The facts are undisputed. According to the. testimony at the postconviction motion, Flynn told his lawyer, Herbert Usow, that he was not guilty of at least one of the charges. Flynn also told Usow, repeatedly, both before and during the trial, that he wanted to testify. Usow testified that Flynn "wanted to take [the *60 stand] desperately." Usow repeatedly acknowledged that he threatened to withdraw should Flynn take the stand. Responding to Flynn's pro se questions at the postconviction motion, counsel could not have been more clear: 2
Q: You threatened to walk out of the Court on me, didn't you?
A: Yes.
Q: If I wanted to take the stand, you said: you take this case and try it myself, because I will get out of here?
A: I said I will ask the Court of my relief of my responsibility to represent you.
Later in the hearing:
Q: Did I not, Mr. Usow, did I not think it was important if I don't know nothing else, if you don't think they hear my voice, if I can get exonerated from Count One, I, at least, get up there and tell them: Yeah, I just got out of prison, that's why I am here?
A: I thought it would be poor psychology.
Q: That's exactly my point. You thought it was. I tried every way in the world to get you to agree to me to take the witness stand.
A: I tried every way in the world to stop you.
*61 Later in the hearing, responding to questions from the prosecutor, Usow further emphasized:
A: Under no circumstances, if I were to try the case over again today, would I ever allow him to take the witness stand. I think any lawyer that would, would be guilty of malpractice or certainly poor judgment, if he allowed him to take the witness stand.
Q: When you say "allow," not physically preventing him from taking the witness stand?
A: That was a choice he would have to make; but if I were defending, as I told him, I would ask the Court to relieve me of my obligation, because as I have said before, that would be tantamount to throwing in a guilty plea.
Finally, in responding to Flynn's questions on re-direct at the postconviction motion, Usow and Flynn had this exchange:
Q: You never threatened to walk out, Mr. Usow?
A: I told you at all times, if you want to take the witness stand, you would have to get another attorney.
As the majority concedes, a lawyer's performance is deficient if "he or she 'made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" Majority op. at 46 (quoting Strickland, 466 U.S. at 687 ). It is self-evident that a lawyer threatening to not be a defendant's lawyer in order to force the defendant to relinquish a fundamental constitutional right is "not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
To characterize a proposition as "self-evident" is, at times, to sidestep critical analysis that may belie the *62 proposition. The Supreme Court, however, provided a revealing corollary when, in Sullivan v. Louisiana, 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993), it declared, "It is self-evident, we think, that the Fifth Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated." Sullivan, 113 S.Ct. at 2081 , 124 L.Ed. at 188. Thus, Sullivan helps one understand that when the inextricable linkage between two fundamental constitutional rights forms the chain of constitutional protection, cutting either link destroys the chain. Here, as in Sullivan , we have such linkage. Here, as in Sullivan , the "constitutional deprivation[ ] is a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Arizona v. Fulminante, 499 U.S. 279, 310 (1991). Thus, the prejudice/harmless error analysis is inapplicable. 3 Id.) see also Sullivan, 113 S.Ct. at 2082 , 124 L.Ed. at 189.
"The government may not require individuals to choose between two constitutional rights." Schwantes v. Schwantes, 121 Wis. 2d 607, 625 , 360 N.W.2d 69, 77 (Ct. App. 1983). Just as certainly, a lawyer may not *63 require a defendant to choose between two constitutional rights. A lawyer must never force a defendant to stay off the witness stand in order to retain legal representation. 4
*64 Flynn had the right to testify. Flynn also had the right to representation by counsel. To force him to relinquish the first right in order to retain the second was a failure to "function [ ] as the 'counsel' guaranteed the defendant by the Sixth Amendment." This failure, under Fulminante and Sullivan , is a "structural defect" that" 'transcends the criminal process.'" Fulminante, 499 U.S. at 310-311 . Thus, it does not allow for prejudice/harmless error analysis; a new trial is required. Accordingly, on this issue, I respectfully dissent.
The majority claims that this dissent "would impose a per se rule mandating reversal whenever trial counsel prevents a defendant from testifying." Majority op. at 52. That is not correct. Clearly and constitutionally, a lawyer's fair and vigorous persuasion may prevent a defendant from testifying. This dissent addresses only the unconstitutional prevention of the defendant's testimony resulting from the threatened denial of counsel during the trial.
Indeed, although the trial court did not conclude that counsel was ineffective, it noted his emphatic style:
As I look at this case before me, whatever Mr. Usow may be, argumentative, sometimes rude, assaultive to a certain extent, I don't think from the vociferous endeavor that he made during the course of your trial, that you could say he was ineffective or did not reach the usual standard that we commonly refer to as being competent within the legal field or commun ty in this County.
(Emphasis added.)
The majority quarrels with my references to "harmless-error analysis." Majority op. at 51 n. 7. Why? As the majority explains, prejudice under Strickland , and harmless error "are conceptually similar." Majority op. at 53. Understandably, the majority blends the two concepts. Majority op. at 54 ("Accordingly, we turn to the cases that discuss 'harmless error' in the context of constitutional violations only to assist our determination of whether the prejudice prong of the Strickland test should be applied in cases where trial counsel has prevented the defendant from testifying."). Therefore, except when citing the majority's own references to harmless error analysis, I refer to "prejudice/harmless error analysis."
In Nichols v. Butler, 953 F.2d 1550 (11th Cir. 1992) (en banc), a case on which the majority relies, the court effectively explained:
It is beyond question that an attorney cannot threaten to withdraw during a trial in order to coerce the defendant to relinquish his fundamental right to testify. All attorneys have an ethical obligation to represent their clients competently and zealously. An attorney should seek to withdraw from representation only where there are compelling circumstances, Model Code of Professional Responsibility EC 2-32 (1986), and only "if withdrawal can be accomplished without material adverse effect on the interests of the client." Ala.Rules of Professional Conduct 1.16(b) (1991); see also Model Code of Professional Responsibility DR 2-110(A)(2) (1986) ("a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel... and complying with applicable laws and rules"). Where a trial has already begun, the risk of prejudice to the client from withdrawal of counsel is significant. The decision by a defendant to exercise his fundamental right to testify at his own criminal trial, without more, is clearly not a sufficient reason for his attorney to seek to withdraw, even where that decision is against the advice of counsel. Of course, counsel should advise his client in the strongest terms possible if he feels that it would be unwise for the client to testify. However, to coerce his client into remaining silent by threatening to abandon him mid-trial goes beyond the bounds of proper advocacy....
. . . The testimony of a criminal defendant at his own trial is unique and inherently significant. "The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself," When the defendant testifies, the jury is given an opportunity to observe his demeanor and to judge his credibility firsthand. As the United States Supreme Court noted in Rock v. Arkansas, "the most important witness for the defense in many criminal cases is the defendant himself." Further, in a case such as this where the question was not whether a crime was committed but whether the defendant was the *64 person who committed the crime, his testimony takes on even greater importance. Indeed, "[w]here the very point of a trial is to determine whether an individual was involved in criminal activity, the testimony of the individual himself must be considered of prime importance."
Id. at 1553-1554 (footnotes and case citations omitted; emphasis in original). Although, as the majority points out, the court in Nichols did utilize Strickland's two-step analysis to measure prejudice, the court did not explicitly address whether harmless error analysis is appropriate. Clearly, under Sullivan , it is not.