Petition for Writ of Certiorari — Joshua Austin Ward, Petitioner v. Kentucky

__________________________________

No. _______________

__________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2024

____________________________________

JOSHUA AUSTIN WARD, Petitioner

v.

COMMONWEALTH OF KENTUCKY, Respondent

____________________________________________

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

____________________________________________

Hon. Timothy G. Arnold*

Hon. Kayley V. Barnes (application pending)

Department of Public Advocacy

5 Mill Creek Park

Frankfort, Kentucky 40601

(502) 564-8006

(502) 687-6769 (fax)

*Counsel of Record

November 20, 2024

QUESTIONS PRESENTED

Where a defendant has been permitted to proceed pro se, does his agreement to the

assistance of counsel on some issues – generally known as “hybrid representation” –

waive his right to determine which witnesses to call ? If so, must that waiver of the

defendant’s right to determine what witnesses to call be explicit and on the record?

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LIST OF PARTIES

1. Petitioner Joshua Austin Ward is represented by Hon. Timothy G. Arnold and

Hon. Kayley V. Barnes, Department of Public Advocacy, 5 Mill Creek Park,

Frankfort, Kentucky 40601.

2. Commonwealth of Kentucky, Real Party in Interest, who is represented by

Hon. Russell Coleman, Attorney General, 1024 Capital Center Drive,

Frankfort, Kentucky 40601.

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TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

LIST OF PARTIES ........................................................................................................ ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES ......................................................................................... iv

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 2

CONSTITUTIONAL PROVISIONS INVOLVED......................................................... 2

STATEMENT OF THE CASE....................................................................................... 2

REASONS FOR GRANTING THE WRIT .................................................................... 6

This Court Should Grant the Writ to Decide Whether The Final Decision Of Which

Witnesses To Call Should Be Allocated To The Lawyer Or To The Defendant. ......... 6

A.

The Final Decision Of Which Witnesses To Call Should Be Allocated To

The Defendant. ....................................................................................................... 7

B.

In Cases Where The Defendant Is Afforded The Right Of Hybrid

Representation, The Defendant’s Decision Must Control As To What Witnesses

To Call Unless There Is A Valid Waiver On The Record. ..................................... 8

C.

This Case Squarely Presents This Issue, Which Has Split the Lower

Courts .................................................................................................................... 10

CONCLUSION............................................................................................................. 18

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TABLE OF AUTHORITIES

Cases

Allen v. Morris, 845 F.2d 610 (6th Cir. 1988) ...................................................................... 17

Anderson v. State, 574 So.2d 87, 95 (Fla. 1991)................................................................. 12

Aragon v. State, 760 P.2d 1174, 1179 (Idaho 1988) .......................................................... 11

Bell v. State, 733 So.2d 372, 375 (Miss. 1999) .................................................................... 11

Berger v. California, 393 U.S. 314, 315 (1969)................................................................... 16

Blanco v. Wainwright, 507 So.2d 1377, 1383 (Fla. 1987) ................................................ 12

Boyd v. Dutton, 405 U.S. 1, 2-3 (1972) ................................................................................... 8

Burton v. State, 651 So.2d 641, 656 (Ala. Crim. App. 1993) ........................................... 12

California v. Green, 399 U.S. 149, 174 (1970) ...................................................................... 6

Carter v. Sowders, 5 F.3d 975 (6th Cir. 1993) ..................................................................... 12

Chambers v. Armontrout, 907 F.2d 825 (8th Cir. 1990)................................................... 13

Chambers v. Mississippi, 410 U.S. 284, 295 (1973) .......................................................... 16

Chambers v. Mississippi, 410 U.S. 284, 298-302 (1973) .................................................... 7

Code v. Montgomery, 799 F.2d 1481, 1483 (11th Cir. 1986) ........................................... 13

Commonwealth v. Pollini, 437 S.W.3d 144 (Ky 2014) ........................................................ 1

Commonwealth v. Porter, 569 A.2d 942, 945-46 (Pa. 1990) ............................................ 11

Commonwealth v. Stokes, 408 N.E.2d 887, 889-90 (Mass. App. Ct. 1980) .................. 11

Coy v. Iowa, 487 U.S. 1012, 1015-16 (1988).......................................................................... 7

Crane v. Kentucky, 476 U.S. 683, 690-91 (1986) .................................................................. 7

Davis v. Alaska, 415 U.S. 308, 316 (1974) .......................................................................... 15

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ................................................................... 16

-iv-

Ex parte Wellborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990) .................................. 12

Falkner v. State, 462 So.2d 1040, 1041-42 (Ala. Crim. App. 1984) ............................... 11

Faretta v. California, 422 U.S. 806 (1975) ...................................................................... 7, 10

Gomez v. Beto, 462 F.2d 596, 596-97 (5th Cir. 1972) ........................................................ 13

Hamburg v. State, 820 P.2d 523, 528 (Wyo. 1991) ............................................................ 11

Helton v. State, 924 S.W.2d 239, 242-43 (Ark. 1996) ........................................................ 12

Hofer v. Class, 578 N.W.2d 583, 587-88 (S.D. 1998) ......................................................... 11

In re Jeffries, 752 P.2d 1338, 1341-42 (Wash. 1988)......................................................... 11

In re King, 336 A.2d 195, 198 (Vt. 1975) ............................................................................. 11

Jackson v. State, 495 S.E.2d 768, 769-70 (S.C. 1998)....................................................... 11

Jacques v. State, 669 A.2d 1124, 1149-50 (R.I. 1995) ....................................................... 11

Johnson v. Riddle, 281 S.E.2d 843, 846 (Va. 1981) .......................................................... 12

Johnson v. Zerbst, 304 U.S. 458, 464 (1938)......................................................................... 8

Kirby v. United States, 174 U.S. 47, 55-56 (1899) ............................................................... 6

McKaskle v. Wiggins, 465 U.S. 168, 178 (1984) ............................................................. 9, 16

Moore v. Commonwealth, 983 S.W.2d 479, 484 (Ky. 1998) ............................................. 12

New York v. Hill, 528 U.S. 110, 114 (2000) .......................................................................... 8

Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987) .................................................................. 7

People v. Barrow, 549 N.E.2d 240, 248-49 (Ill. 1989) ....................................................... 10

People v. Gadson, 24 Cal. Rptr.2d 219, 225-26 (Cal. Ct. App. 1993)............................. 14

People v. Galan, 261 Cal. Rptr. 834, 835-37 (Cal. Ct. App. 1989) ................................. 14

People v. Morris, 163 N.W.2d 16, 18-19 (Mich. Ct. App. 1968) ...................................... 11

People v. Roofener, 420 N.E.2d 189 (Ill.App.Ct. 1981) ..................................................... 12

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People v. Schultheis, 638 P.2d 8, 12 (Colo. 1981) .............................................................. 11

People v. Smith, 31 A.D.2d 847, 848 (N.Y. App. Div. 1969) ............................................ 10

People v. Williams, 471 P.2d 1008, 1015-17 (Cal. 1970) .................................................. 10

Peretz v. United States, 501 U.S. 923, 936 (1991) ............................................................... 8

Phillips v. State, 989 P.2d 1017 (Okla. Crim. App. 1999) ............................................... 11

Powell v. Commonwealth, 346 S.W.2d 731, 734 (Ky. 1961) .............................................. 8

Ridley v. State, 510 S.E.2d 113, 119 (Ga. App. 1998) ....................................................... 10

Rock v. Arkansas, 483 U.S. 44, 51 (1987) .............................................................................. 7

Sanders v. Ratelle, 21 F.3d 1446, 1457-58 (9th Cir. 1994) .............................................. 13

State ex rel. Juv. Dept. v. Geist, 796 P.2d 1193, 1203 (Or. 1990) ................................... 11

State v. Ali, 407 S.E.2d 183, 189 (N.C. 1991) ..................................................................... 12

State v. Davis, 506 A.2d 86, 89 (Conn. 1986)...................................................................... 10

State v. Elm, 549 N.W.2d 471, 476 (Wis. Ct. App. 1996) ................................................. 12

State v. Glidden, 499 A.2d 1349, 1351 (N.H. 1985) .......................................................... 11

State v. Johnson, 901 S.W.2d 60, 63 (Mo. 1995) (en banc) .............................................. 10

State v. Kerley, 820 S.W.2d 753, 756 (Tenn. Crim. App. 1991) ...................................... 12

State v. Lee, 689 P.2d 153, 159 (Ariz. 1984)........................................................................ 10

State v. Lindsay, 517 N.W.2d 102, 107 (Neb. 1994).......................................................... 11

State v. Miller, 459 S.E.2d 114, 127 (W. Va. 1995) ........................................................... 12

State v. Orosco, 833 P.2d 1155, 1163 (N.M. Ct. App. 1991) ............................................ 11

State v. Pratts, 366 A.2d 1327, 1333-34 (N.J. Super. Ct. App. Div. 1975) ................... 11

State v. Thomas, 625 S.W.2d 115, 123-24 (Mo. 1981); ............................................... 12

State v. Tome, 742 P.2d 479, 482 (Mont. 1987) .................................................................. 11

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State v. Tyler, 850 P.2d 1250, 1256 (Utah 1993) ............................................................... 12

State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) ...................................................... 10

State v. White, 508 S.E.2d 253 (N.C. 1998) ......................................................................... 12

Stoppleworth v. State, 501 N.W.2d 325, 328 (N.D. 1993) ................................................ 11

Taylor v. Illinois, 484 U.S. 400, 408 (1988). ............................................................. 8, 16, 17

U.S. v. Burr, 25 F. Cas. 187, 193 (No. 14,694 (CC VA 1807). ........................................... 6

United States v. Gordon, 829 F.2d 119, 125-26 (D.C. Cir. 1987) ............................... 9, 10

Washington v. Texas, 388 U.S. 14, 18-19 (1967) ................................................................ 15

Winter v. State, 502 P.2d 733, 738 (Kan. 1972) ................................................................. 10

Statutes

28 U.S.C. § 1257(a) ..................................................................................................................... 2

Ky. Const. §11.............................................................................................................................. 6

U.S. Const. amend. VI. .............................................................................................................. 2

U.S. Const. amend. XIV ............................................................................................................ 2

Other Authorities

ABA Standards for Criminal Justice 4-5.2(b) (1980). Standard 4-3.1 ....................... 13

Acts 25:16 ....................................................................................................................... 7

Ethical Consideration 7-26 of the A.B.A. Code of Prof’l Resp. (1975) ....................... 13

Model Rules of Prof’l Conduct R. 1.2(a) (2002) ........................................................... 13

The Right of Confrontation: Its History and Modern Dress, 8 J. Pub. L. 381,

3840387 (1959) ............................................................................................................... 7

Rules

United States Supreme Court Rule 13.1, .............................................................................. 2

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__________________________________

No. _______________

__________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2024

____________________________________

JOSHUA AUSTIN WARD, Petitioner

v.

COMMONWEALTH OF KENTUCKY, Respondent

____________________________________________

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

____________________________________________

Joshua Austin Ward, Petitioner, respectfully petitions for a writ of certiorari

to review the opinion of the Kentucky Supreme Court, affirming the Boone Circuit

Court’s judgment below.

OPINIONS BELOW

The unpublished opinion of the Kentucky Supreme Court in Joshua Ward v.

Commonwealth of Kentucky, 2021-SC-0568-MR, originally issued on April 18, 2024,

and modified on August 22, 2024, is attached at Appendix A. The Petitioner sought a

petition for modification or rehearing from the Supreme Court of Kentucky. The

Kentucky Supreme Court granted modification but denied rehearing on August 22,

2024. The order denying the petition for rehearing and granting modification is

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attached in Appendix B. The Boone Circuit Court’s judgment imposing a sentence of

life imprisonment in this case are attached at Appendix C. The Boone Circuit Court’s

order granting hybrid representation is attached at Appendix D.

JURISDICTION

The Supreme Court of Kentucky’s order denying the petition for rehearing,

which made the judgment of the Kentucky Supreme Court final, was entered on

August 22, 2024. Pursuant to United States Supreme Court Rule 13.1, the Petitioner

has 90 days to seek a writ of certiorari, and this petition has been timely filed. The

Court’s jurisdiction is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourteenth Amendment of the United States Constitution provides in

relevant part: “No State shall … deprive any person of life, liberty, or property

without due process of law.” U.S. Const. amend. XIV.

The Sixth Amendment provides in relevant part: “In all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S. Const. amend. VI.

STATEMENT OF THE CASE

Josh Ward was charged with killing his ex-girlfriend, Kelli Kramer, and her

nine-year old son, Aiden Kramer in March of 2018. Ward and Kramer had broken up

over nine months earlier and Ward had not been in contact with Kramer or Aiden

since the breakup. Ward became the focus of the murder investigation when he was

misidentified in a store surveillance video where Kramer had worked four months

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before the murders. DNA evidence on the shell casings found at the crime scene

excluded Ward as a contributor. Cell phone data indicated Ward was at home, over

40 minutes away in a different state, at the time of the murders. There were no

eyewitnesses to the murders. The sole physical evidence “linking” Ward to the

murders was testimony by a firearms examiner that the shell casings found at the

crime scene matched shell casings found in a field 1 where Ward and other individuals

had target practiced eight months before the murder. No gun was ever recovered.

Despite the very weak evidence, Ward was found guilty of both murders and

sentenced to life without parole.

Prior to trial, Ward requested and was granted the right to be hybrid counsel

throughout his case. The trial court ruled that some of his responsibilities as hybrid

counsel included:

The Defendant shall be jointly responsible for crossexamination of all witnesses called by the [prosecutor]; and

to raise any objections to evidence. The Defendant shall be

jointly responsible for deciding whether to produce any

witnesses at trial or to introduce any exhibits… it will be

the Defendant’s joint responsibility to make all strategy

decision which would include whether to testify; to call

other witnesses; and, to offer exhibits and other evidence. 2

(emphasis added).

1 The Kentucky Supreme Court requested supplemental briefing and heard oral

argument on the questionable scientific validity of the ballistic matching but

ultimately ruled the issue was unpreserved and therefore did not address the

argument.

2 Trial Court Order, page 3. – attached at Appendix D.

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Several months later at a pretrial conference, defense counsel stated on the record

that counsel’s understanding from talking with Ward was that defense counsel would

“take on all the trial work” but counsel understood Ward wanted to be involved but

not have “him do anything that counsel would be doing”. The trial court asked if the

prosecutor had anything to add but failed to ask Ward if he was in agreement with

counsel’s assertions.

The prosecutor filed a pretrial motion asking the trial court to prohibit Ward

from personally examining some of the witnesses because the witnesses feared harm

by Ward. The prosecution did not object to Ward preparing questions and consulting

with defense counsel as to cross-examining the witnesses. The trial court granted the

motion.

After the prosecutor rested its case, Ward learned that defense counsel was not

planning on recalling four of the prosecution’s witnesses that had given damaging

but incredible testimony. Ward had assumed defense counsel would recall these

witnesses for the defense so they could be questioned and impeached more

extensively, including with extrinsic documents. Ward demanded that trial counsel

call these witnesses, but defense counsel thought it would be negligent to recall these

individuals “to establish very minor tweaks.” Counsel also thought this would open

the door to cross-examination by the prosecutor which would “result in completely

obliterating the work we have done thus far.”

Due to the disagreement between Ward and defense counsel about whether to

call the aforementioned individuals as defense witnesses, the trial court held an ex-4-

parte hearing to address the issue. During the hearing, Ward said if he had known

that counsel would refuse to call the witnesses in the defense’s case in chief, he would

have demanded a more thorough cross-examination. The trial court remained neutral

but told Ward that although he was hybrid counsel, he had very experienced

attorneys representing him. The trial court reminded Ward and defense counsel that

the witnesses could be recalled, but that Ward would not be allowed to personally

conduct the direct examination of three of the four witnesses due to the pretrial

ruling. Defense counsel argued that since Ward could not personally question the

witnesses, counsel would essentially be asking the questions that Ward prepared,

which “turns me into his puppet as opposed to counsel. I no longer have autonomy.”

Ward and defense counsel discussed how to move forward privately off the

record but remained at an impasse. The trial court, by remaining neutral, effectively

resolved this matter in favor of defense counsel and merely confirmed with Ward that

the issue was preserved on the record and the trial would move forward. The subject

witnesses were not recalled. The trial court’s refusal to specifically order that Ward,

as the defendant and co-counsel, should make the ultimate decision, deprived Ward

of his of his ability to present a defense and confront witnesses.

The Kentucky Supreme Court held that the right to call witnesses was a

strategic decision and that the defense counsel, not the defendant, got to “make the

final call.” KY Supreme Court Opinion pg. 15. Even though Ward was hybrid counsel,

and the trial court’s order stated specifically that Ward was jointly responsible for

deciding who to call as witnesses, the Kentucky Supreme Court ruled that Ward did

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not have a constitutional right to personally cross-examine witnesses and that if there

was any error, it was harmless because the witnesses had already been crossexamined by counsel during the prosecution’s case-in-chief. KY Supreme Court

Opinion pg. 17.

This petition follows.

REASONS FOR GRANTING THE WRIT

This Court Should Grant the Writ to Decide Whether

The Final Decision Of Which Witnesses To Call

Should Be Allocated To The Lawyer Or To The

Defendant.

When discussing the importance of the Confrontation Clause, Chief Justice

Marshall pointedly cautioned, “I know of no principle in the preservation of which

all are more concerned. I know none, by undermining which, life, liberty, and

property, might be more endangered. It is therefore incumbent on courts to be

watchful of every inroad on a principle so truly important.” U.S. v. Burr, 25 F. Cas.

187, 193 (No. 14,694 (CC VA 1807). Ninety years later, this Court echoed that the

Sixth Amendment’s right to confrontation was “[o]ne of the fundamental guaranties

of life and liberty … a right long deemed so essential for the due protection of life

and liberty that it is guarded against legislative and judicial action by provisions in

the constitution of the United States and in the constitutions of most, if not of all,

the states composing the Union.” Kirby v. U.S., 174 U.S. 47, 55-56 (1899). See Ky.

Const. §11. More recently, Justice Scalia wrote:

The Sixth Amendment gives a criminal defendant the right

’to be confronted with the witnesses against him.’ This

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language ‘comes to us on faded parchment,’ California v.

Green, 399 U.S. 149, 174, 90 S.Ct. 1930, 1943, 26 L.Ed. 2d

489 (1970)(Harlan, J., concurring), with a lineage that

traces back to the beginnings of Western legal culture.

There are indications that a right of confrontation existed

under Roman law. The Roman Governor Festus, discussing

the proper treatment of his prisoner, Paul, stated: ‘It is not

the manner of the Romans to deliver any man up to die

before the accused has met his accusers face to face, and

has been given a chance to defend himself against the

charges.’ Acts 25:16. It has been argued that a form of the

right of confrontation was recognized in England well

before the right to jury trial. Pollitt, The Right of

Confrontation: Its History and Modern Dress, 8 J. Pub. L.

381, 3840387 (1959).

Coy v. Iowa, 487 U.S. 1012, 1015-16 (1988). The Kentucky courts have failed to heed

Burr’s warning, disregarding the historical underpinnings of the right of

confrontation, and inflicting a crippling blow to an indispensable constitutional

right which is essential to due process of law in a fair adversary process.

A. The Final Decision Of Which Witnesses To Call Should Be Allocated

To The Defendant.

In Faretta v. California, 422 U.S. 806 (1975), this Court recognized that the

Sixth Amendment grants to every accused individual the right to selfrepresentation, that is, to conduct one’s own defense personally, because it is the

defendant that suffers the consequences. As Justice Stewart observed, “the

language and spirit of the Sixth Amendment…contemplate that counsel…shall be

an aid to a willing defendant” and that “an assistant, however expert, is still an

assistant.”

Both the Due Process Clause and the Compulsory Process Clause of the Sixth

Amendment grant defendants the right to present witness on their own behalf.

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Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987); Rock v. Arkansas, 483 U.S. 44, 51

(1987); Crane v. Kentucky, 476 U.S. 683, 690-91 (1986); Chambers v. Mississippi,

410 U.S. 284, 298-302 (1973). The right to call witnesses has long been held as

essential to the accused’s right to a fair trial. Chambers, 410 U.S. at 294. “Few

rights are more fundamental than that of an accused to present witnesses in his

own defense.” Id. at 302. “Indeed, this right is an essential attribute of the

adversary system itself.” Taylor v. Illinois, 484 U.S. 400, 408 (1988).

B. In Cases Where The Defendant Is Afforded The Right Of Hybrid

Representation, The Defendant’s Decision Must Control As To What

Witnesses To Call Unless There Is A Valid Waiver On The Record.

Even “[t]he most basic rights of criminal defendants are… subject to waiver.”

New York v. Hill, 528 U.S. 110, 114 (2000)(quoting Peretz v. United States, 501 U.S.

923, 936 (1991)). However, any such waiver must be sufficiently clear “as to indicate

a conscious intent.” Powell v. Commonwealth, 346 S.W.2d 731, 734 (Ky. 1961). The

standard for finding a waiver of a defendant’s right to confront his accusers should

be evaluated as any other constitutional right which requires “an intentional

relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst,

304 U.S. 458, 464 (1938). These important rights “may be waived only by a

voluntary and knowing action.” Boyd v. Dutton, 405 U.S. 1, 2-3 (1972). The United

States Court of Appeals for the District of Columbia Circuit has further explained

the importance of obtaining an explicit on-the-record waiver.

On the subject of waiver, “it has been pointed out that

‘courts indulge every reasonable presumption against

waiver’ of fundamental constitutional rights and that we

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‘do not presume acquiescence in the loss of fundamental

rights.’… This protecting duty imposes the serious and

weighty responsibility upon the trial judge of determining

whether there is an intelligent and competent waiver by

the accused.” Cross [v. United States], 325 F.2d [629,] 631

(quoting Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S. Ct.

1019, 1023, 82 L. Ed. 1461 (1938)). Where the defendant is

in custody,” the serious and weighty responsibility’ of

determining whether he wants to waive a constitutional

right requires that he be brought before the court, advised

of that right, and then permitted to make ‘an intelligent

and competent waiver.’” Id.

… The slight additional burden on the criminal justice

process wrought by a personal waiver requirement is more

than offset by avoidance of lengthy appeals to determine

whether the defendant’s right to presence has been

violated. The practice of obtaining open court waivers is, as

we have noted, particularly warranted in cases like this

where the defendant is not out on bail, but remains in

custody and readily available to the court.

Further we find an on-the-record-waiver desirable because

in its absence it is difficult, if not impossible, to determine

whether the defendant has knowingly and intelligently

relinquished a known right.

United States v. Gordon, 829 F.2d 119, 125-26 (D.C. Cir. 1987) (footnote omitted).

It is plain that a defendant’s fundamental constitutional right to confront his

accusers and any witnesses against him is not of recent vintage, nor is its existence

something which can be seriously doubted or questioned. This right should be

protected with equal fervor to all other fundamental constitutional rights.

The trial court and defense counsel limited Ward’s ability to call witnesses

and present his defense. Defense counsel’s “participation over the defendant’s

objection effectively allows counsel to make or substantially interfere with any

significant tactical decisions, or to control the questioning of witnesses, or to speak

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instead of the defendant on any matter of importance” and essentially erodes the

Faretta right. McKaskle v. Wiggins, 465 U.S. 168, 178 (1984). Ward was Faretta

counsel, and his rights were interfered with which negatively impacted the outcome

of his trial.

As Justice Steward concluded in Faretta, supra, “law and tradition may

allocate to the counsel the power to making binding decisions of trial strategy in

many areas. This allocation can only be justified, however, by the defendant’s

consent, at the outset, to accept counsel as his representative.” In this case, Ward

did not accept counsel as his representative. He was hybrid counsel. Without a

waiver on the record, Ward had the final and ultimate control as to who to call as

witnesses in his defense.

United States v. Gordon, supra, stated “Further we find an on-the-recordwaiver desirable because in its absence it is difficult, if not impossible, to determine

whether the defendant has knowingly and intelligently relinquished a known

right.” Here, Ward not only did not make a waiver on the record, his objection as the

defendant and the co-counsel was clearly stated on the record.

C. This Case Squarely Presents This Issue, Which Has Split the Lower

Courts

On the issue of who ultimately controls which, if any, witnesses will be called,

caselaw is split. A majority of state courts appear to ascribe to the view that it is a

tactical matter to be decided by the attorney. See State v. Davis, 506 A.2d 86, 89

(Conn. 1986); State v. Johnson, 901 S.W.2d 60, 63 (Mo. 1995) (en banc); People v.

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Smith, 31 A.D.2d 847, 848 (N.Y. App. Div. 1969); Ridley v. State, 510 S.E.2d 113,

119 (Ga. App. 1998); State v. Lee, 689 P.2d 153, 159 (Ariz. 1984) (en banc); Winter v.

State, 502 P.2d 733, 738 (Kan. 1972); State v. Voorhees, 596 N.W.2d 241, 255 (Minn.

1999); People v. Barrow, 549 N.E.2d 240, 248-49 (Ill. 1989); People v. Williams, 471

P.2d 1008, 1015-17 (Cal. 1970); State v. Rubenstein, 531 N.E.2d 732, 740 (Ohio Ct.

App. 1987); State v. Pratts, 366 A.2d 1327, 1333-34 (N.J. Super. Ct. App. Div.

1975); Falkner v. State, 462 So.2d 1040, 1041-42 (Ala. Crim. App. 1984); Aragon v.

State, 760 P.2d 1174, 1179 (Idaho 1988); People v. Schultheis, 638 P.2d 8, 12 (Colo.

1981) (en banc); Bell v. State, 733 So.2d 372, 375 (Miss. 1999); Phillips v. State, 989

P.2d 1017 (Okla. Crim. App. 1999); Stoppleworth v. State, 501 N.W.2d 325, 328

(N.D. 1993); People v. Morris, 163 N.W.2d 16, 18-19 (Mich. Ct. App. 1968); In re

King, 336 A.2d 195, 198 (Vt. 1975); State v. Orosco, 833 P.2d 1155, 1163 (N.M. Ct.

App. 1991); Commonwealth v. Stokes, 408 N.E.2d 887, 889-90 (Mass. App. Ct.

1980); State v. Tome, 742 P.2d 479, 482 (Mont. 1987); State v. Lindsay, 517 N.W.2d

102, 107 (Neb. 1994); ; State v. Glidden, 499 A.2d 1349, 1351 (N.H. 1985); State ex

rel. Juv. Dept. v. Geist, 796 P.2d 1193, 1203 (Or. 1990); Jacques v. State, 669 A.2d

1124, 1149-50 (R.I. 1995); Hofer v. Class, 578 N.W.2d 583, 587-88 (S.D.

1998); Commonwealth v. Porter, 569 A.2d 942, 945-46 (Pa. 1990); Jackson v. State,

495 S.E.2d 768, 769-70 (S.C. 1998); In re Jeffries, 752 P.2d 1338, 1341-42 (Wash.

1988) (“We do not disagree with petitioner's argument that the decision of whether

or not to call a witness is normally a tactical decision to be made by counsel. We do,

however, decline to adopt a rule that would suggest that taking nontactical

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considerations into account, such as a client's clearly expressed wishes,

automatically renders counsel's decision constitutionally infirm. Any such rule

would not only be illogical, but would fly in the face of our prior recognition of the

constitutional right of criminal defendants ‘to at least broadly control’ their own

defenses.”); Hamburg v. State, 820 P.2d 523, 528 (Wyo. 1991); Johnson v. Riddle,

281 S.E.2d 843, 846 (Va. 1981); Ex parte Wellborn, 785 S.W.2d 391, 393 (Tex. Crim.

App. 1990); State v. Tyler, 850 P.2d 1250, 1256 (Utah 1993); State v. Kerley, 820

S.W.2d 753, 756 (Tenn. Crim. App. 1991); Helton v. State, 924 S.W.2d 239, 242-43

(Ark. 1996); State v. Miller, 459 S.E.2d 114, 127 (W. Va. 1995); Moore v.

Commonwealth, 983 S.W.2d 479, 484 (Ky. 1998); State v. Elm, 549 N.W.2d 471, 476

(Wis. Ct. App. 1996).

However, other states have taken a different approach and found that if the

attorney and defendant disagree as to matter of trial strategy, the defendant must

be permitted the final say. Anderson v. State, 574 So.2d 87, 95 (Fla. 1991), Blanco

v. Wainwright, 507 So.2d 1377, 1383 (Fla. 1987); Burton v. State, 651 So.2d 641, 656

(Ala. Crim. App. 1993); State v. Ali, 407 S.E.2d 183, 189 (N.C. 1991)(if defense

counsel and a fully informed criminal defendant reach an impasse, the client’s

wishes must control); State v. White, 508 S.E.2d 253 (N.C. 1998); State v. Thomas,

625 S.W.2d 115, 123-24 (Mo. 1981); People v. Roofener, 420 N.E.2d 189 (Ill.App.Ct.

1981). In Carter v. Sowders, 5 F.3d 975 (6th Cir. 1993), the Sixth Circuit held the

decision of whether to stipulate to the testimony of a prosecution’s witness belongs

to the defendant and even if defense counsel’s actions “could constitute a waiver of

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the defendant’s rights under the Confrontation Clause, the waiver would not bind

[the defendant] in the absence of a showing that he consented.” Id. at 981. (see part

b).

Additionally, the legal profession also has expressed inconsistent views about

who ultimately controls decisions about which witnesses to call. For example, the

American Bar Association’s Standards for Criminal Justice provide that the

decision as to “what witnesses to call, whether and how to conduct crossexamination” are strategic and tactical decisions to be made by the defense counsel

after consultation with the client. ABA Standards for Criminal Justice 4-5.2(b)

(1980). Standard 4-3.1 provides that counsel is to establish a relationship of trust

and confidence with the accused and to discuss the objectives of the representation.

Notably in this case, the decision as to which witnesses to call was specified as

belonging jointly to both the defense counsel and to the defendant.

However, in the Model Code of Professional Responsibility, the Code provides

that “a lawyer should, however, present any admissible evidence his client desires

to have presented” unless the lawyer knows or should know that the evidence is

false. Ethical Consideration 7-26 of the A.B.A. Code of Prof’l Resp. (1975). The

Model Rules state that “[a] lawyer shall abide by a client’s decisions concerning the

objectives of representation and… shall consult with the client as to the means by

which they are to be pursued.” Model Rules of Prof’l Conduct R. 1.2(a) (2002).

Some courts have found that an attorney’s failure to investigate a potential

defense witness combined with a specific showing of the importance of that witness’

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testimony rendered counsel’s strategic choice unreasonable and counsel’s

performance deficient. See e.g., Sanders v. Ratelle, 21 F.3d 1446, 1457-58 (9th Cir.

1994); Chambers v. Armontrout, 907 F.2d 825 (8th Cir. 1990), cert. denied, 111 S.

Ct. 369 (1990); Code v. Montgomery, 799 F.2d 1481, 1483 (11th Cir. 1986); Gomez v.

Beto, 462 F.2d 596, 596-97 (5th Cir. 1972). See also People v. Gadson, 24 Cal.

Rptr.2d 219, 225-26 (Cal. Ct. App. 1993); People v. Galan, 261 Cal. Rptr. 834, 835-37

(Cal. Ct. App. 1989) (finding no ineffective assistance of counsel when the lawyer

defers to the defendant’s preference and calls witnesses that the lawyer firmly

believes should not be called).

Here, the Kentucky Supreme Court acknowledged in its opinion that

disagreements between defense counsel and a defendant that “involve

constitutional rights” are “always reserved for the defendant’s decision.” Despite

this concession, the Kentucky Supreme Court found that there was no error here

even though Ward was hybrid counsel and there was a court order specifying the

decision to call witnesses was to be made jointly. Ward’s fundamental right to

present an adequate defense, combined with his right to represent himself, was

compromised by giving defense counsel the final say as to which witnesses would be

called.

The Kentucky trial court restricted Ward’s ability to call his own witnesses

and impeach critical testimony. There was very little evidence in this circumstantial

case. The four witnesses Ward wished to recall in defense’s case in chief were

critical to Ward’s ability to present a defense and to challenge the prosecutor’s case.

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The right of an accused to have compulsory process for

obtaining witnesses in his favor stand on no lesser footing

than the other Sixth Amendment rights that we have

previously held applicable to the States. This Court had

occasion in In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed.

682 (1948), to describe what it regarded as the most basic

ingredients of due process of law it observed that:

‘A person’s right to reasonable notice of a charge against

him, and an opportunity to be heard in his defense – a right

to his day in court – are basic in our system of

jurisprudence; and these rights include, as a minimum, a

right to examine the witnesses against him, to offer

testimony, and to be represented by counsel.’ 333 U.S., at

273, 68 S. Ct. at 507 (footnote omitted).

The right to present the testimony of witnesses, and to

compel their attendance, if necessary, is in plain terms the

right to present a defense, the right to present the

defendant’s version of the facts as well as the prosecution’s

to the jury so it may decide where the truth lies. Just as an

accused has the right to confront the prosecution’s

witnesses of the purpose of challenging their testimony,

[Ward] has the right to present his own witnesses to

establish a defense. This right is a fundamental element of

due process of law.

Washington v. Texas, 388 U.S. 14, 18-19 (1967)

Ward was prevented from recalling four of the prosecutor’s witnesses in order

to further impeach their testimony, including with extrinsic documents. Because

this was a purely circumstantial case based on testimony of these witnesses, Ward

believed these individuals to be critical to his defense. He had the right to place his

defense theory before the jury, especially given his status as co-counsel. Davis v.

Alaska, 415 U.S. 308, 316 (1974), distinguished between a general attack on

credibility and a more particular attack on credibility directed toward revealing

possible biases, prejudices or ulterior motives as they may directly relate to issues

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or personalities at hand. In Davis, this court concluded “that the jurors were

entitled to have the benefit of the defense theory before them so that they could

make an informed judgment as to the weight to place” on witness’ testimony. Id. at

317. The issue in Davis relates to limited cross examination but the conclusion still

applies to Ward’s non-existence ability to re-call witnesses. The Davis court

concluded that “defense counsel should have been permitted to expose to the jury

the facts from which jurors, as the sole triers of fact and credibility, could

appropriately draw inferences relating to the reliability of the witness.” Id. at 318.

Ward wanted to re-call the witnesses to impeach them which would allow the

jury to draw inferences relating to the reliability of the witnesses. While the

Confrontation clause does not guarantee the right to impeach the general credibility

of a witness it does guarantee the right to show bias, motive, or ulterior motive for

testifying. Delaware v. Van Arsdall, 475 U.S. 673 (1986)(constitutional violation

established if a defendant is prevented from cross-examination designed to show a

prototypical form of bias on the part of a witness. Id. at 678-79). Although the right

to confront and cross-examine is not absolute (it must bow to accommodate other

legitimate criminal trial interests), the denial or significant diminution of that right

requires that the competing interest be closely examined. Chambers v. Mississippi,

410 U.S. 284, 295 (1973) citing Berger v. California, 393 U.S. 314, 315 (1969). Rules

that deny the presentation of witnesses cannot be inflexibly applied. Taylor v.

Illinois, 484 U.S. 400, 411 (1988).

In McKaskle v. Wiggins, when there was an impasse, “all conflicts between

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Wiggins and counsel were resolved in Wiggins’ favor. The trial judge repeatedly

explained to all concerned that Wiggins’ strategic choices, not counsel’s, would

prevail.” 465 U.S. at 181. The Kentucky Supreme Court stated in its opinion “for

those witnesses whom [Ward] wanted to recall but could not personally question, it

is well established that the appropriate solution would have been for Ward to

prepare questions for counsel to use to question such witnesses on his behalf. See

Partin [v. Commonwealth], 168 S.W.3d [23,] at 28-29.” KY Supreme Court Order pg.

17. Unlike the judge in McKaskle, the trial judge did not allow Ward’s strategic

choices to prevail, nor did it allow Ward to prepare questions for counsel, nor did it

obtain a proper waiver of Ward’s rights on the record.

Considering the competing interest here, the risk of having defense counsel

act on client’s wishes despite counsel’s advice that it is a bad idea, versus Ward’s

right to confrontation and to present a defense, the Chambers rationale demands

that Ward’s right to a fair trial must prevail, especially in a case where the

defendant had been granted co-counsel status. Here Ward did not fail to comply

with some condition precedent such as in Allen v. Morris, 845 F.2d 610 (6th Cir.

1988) or Taylor v. Illinois, supra. The trial court’s broad “non-ruling” ruling

precluded Ward from presenting compelling evidence impeaching witnesses and

attacking their credibility in a purely circumstantial case where credibility was a

big factor, denied Ward the right to confront witnesses and present a defense.

Because there was an impasse regarding whether to re-call the witnesses, Ward’s

Sixth Amendment right to call witnesses should have trumped the defense counsel’s

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strategic choice to not call the individuals as witnesses. This is especially true

because Ward was hybrid counsel.

For all the foregoing reasons, this Court should grant this Petition to resolve

the critical legal question – which only this Court can finally resolve – of who

controls the witnesses to be called in a case of hybrid representation.

CONCLUSION

WHEREFORE, for the reasons set forth above, Petitioner Joshua Austin

Ward pray that this Court grant this Petition for a Writ of Certiorari, vacate the

ruling of the Kentucky Supreme Court, and remand the matter for further

proceedings.

Respectfully submitted,

___________________________________

Hon. Timothy G. Arnold*

Hon. Kayley V. Barnes (application pending)

Department of Public Advocacy

5 Mill Creek Park

Frankfort, KY 40601

(502) 564-8006

(502) 695-6769 (fax)

*Counsel of Record

November 20, 2024

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