Respondents Brief — Nix v. Whiteside

No. 84-1321

IN THE :

Supreme Court of the Gnited States

OcTOBER TERM, 1984

Crispus Nix, Warden of

the Iowa State Penitentiary,

Petitioner,

v.

EMMANUEL CHARLES WHITESIDE,

Respondent.

On Writ Of Certiorari

To The United States Court of Appeals

For The Eighth Circuit

BRIEF FOR THE RESPONDENT

PATRICK REILLY GRADY

(. yinted by this Court)

Public Defender’s Office

214 First Street S.W.

Cedar Rapids, lowa 52404

(319) 398-3690

Counsel for Respondent

Oe a ee RY SS me

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 = (301) 864-6662

i

QUESTIONS PRESENTED

1. Whether criminal defense lawyers provide ineffec-

tive assistance of counsel by persuading their client not to

commit perjury at his trial when their successful effort to

prevent him from lying on the stand wins unanimous

praise from the state supreme court and the conduct of

the attorneys does not prejudice their clien: at trial.

2. Whether criminal defense lawyers, who, as officers

of the court, admonish their client that they will take

steps necessary to prevent him from committing perjury,

violate their client’s right to testify when the client subse-

quently abandons the perjury scheme and takes the stand

in his own defense.

3. Whether criminal defense lawyers, who privately

and confidentially persuade their client not to commit

perjury on the stand, act in a fashion which causes a

violation of their client’s right to due process of law when

the judge and jury at his state court trial are not informed

of the defendant’s abandoned perjury plan.

TABLE OF AUTHORITIES

i

TABLE OF CONTENTS ~

CONSTITUTIONAL, STATUTORY, AND PROFESSIONAL

RESPONSIBILITY PROVISIONS INVOLVED.........

DENTEMENT OF WE Cam 2... cn ccccesccvncccccuae

SUMMARY OF ARGUMENT................. extusanenne

PREIS 6 6.00644 108s chk indeeas

I. THE Court OF APPEALS Was Correct IN Ho.tp-

II.

ING THAT TRIAL COUNSEL’s THREATS To WITH-

DRAW FROM RESPONDENT'S Cask, INFORM THE

TRIAL JUDGE AND TEesTIFY AGAINST RESPOND-

ENT IF RESPONDENT GAVE TESTIMONY TRIAL

CouNSEL BELIEVED To BE PERJURED, EvI-

DENCED AN ACTUAL CONFLICT OF INTEREST

AND INEFFECTIVE ASSISTANCE OF CoUNSEL

WHICH JUSTIFIED A PRESUMPTION OF PREJU-

DICE SUFFICIENT To Justiry HABEAS CorpuUS

8. OTTO RP

A. Even Assuming Respondent Was Going To

Commit Perjury, Trial Counsel’s Actions Were

FOR SURE oo kcivlcdudinse baeceRNaee

B. The Fact That Trial Counsel’s Threats Were

Not Disclosed To The Trial Court Or The Jury

Did Not Limit Their Prejudicial Impact On

Respondent's Right To Counsel ............

C. The Court Of a Properly Applied The

Presumption Of Prejudice For Conflict Of

ft PP er re

D. The Timing Of Respondent’s Claims Is Of No

Significance Under-These Circumstances

RESPONDENT Was DenNiepD A Fair TRIAL, DUE

Process Or Law ANb THE EFFECTIVE

ASSISTANCE Or CouNSEL By TrIAL CoUNSEL’S

CONDITIONING FURTHER REPRESENTATION ON

THE CONTENT OF RESPONDENT'S TESTIMONY ..

COnCtamaOtl co soccer ee deeesszetrttee ee

2. €6.2O2.8.o © Oc@ @ 02 8 OO OO O'CO'O O'O O44 4.45.8 2.8

‘iii

TABLE OF AUTHORITIES

CASEs: Page

Alicea v. Gagnon, 675 F.2d 913 (7th Cir. 1982)......... 23

Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32

L.Ed.2d 530 (1972), (concurring opinion).......... 9

Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26

th cvecueesces bees ceseeesss 10

Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25

: a ered ceaceehnnesnereweees 5

Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51

nn cv cccncccesceaee i0

Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32

SS ee 8, 13, 22

Butler v. United States, 414 A.2d 844 (C.A.D.C.

SS SE eon TTT errr TT er 10, 11, 16

Commonwealth v. Duffy, 394 A.2d 965 (Pa. 1978)...... 20

Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64

si eo vcccccucusodessenes 10, 21, 24

Downton v. Perini, 511 F.Supp. 258 (N.D. Ohio 1981)... 15

Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20

es i wee cectbecebetenses 10

Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45

EE no ccc cccecccesccese 12, 22, 23, 24

Ferguson v. Georgia, 365 U.S. 570, S.Ct. 756, 5

ON 13, 14

Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47

ER ee 6

Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86

Ne eg eueens 9,17

Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28

es es aed 6 6 4t' 7, 11, 22, 23

Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45

L. Ed.2d lls ie i4

Hoffa v. United states, 385 U.S. 293, 87 S.Ct. 408, 17

ET ee 6,9

Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55

Ne ee a ds wv euupeene 4

Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47

TN oe ne ebvecencsaneess 9,11

In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682

ce wenncesees 22

In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d

EE Ber c i nbbabhaccdasiesdnvaess cei 11

iv

Table Of Authorities-— Continued

CASES: Page

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

ry errr ere rere ert Ty eT TTEE J

Johns v. Smythe, 176 F.Supp. 949 (E.D. Va. 1959) ...... 14

Johnson v. United States, 404 A.2d 162 (C.A.D.C. 1979) 11

Jones v. Barnes, __. U.S. ——_, 103 S.Ct. 3308, 77

Fg TRIE rai a in fencer Pema renee 15, 22

Lowery v. Cardwell, 575 F.2d 727 (9th Cir. 1978). .... 12, 16

Maness v. Meyers, 419. U.S. 449, 95S.Ct. 584, 42 L.Ed. 2d

RR or rt Ore rer hear yer. 9

Mastrian v. McManus, 554 F.2d 813 (8th Cir. 1977)... 6

McManzn v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25

BS a pe errr reer T 5

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

4 eS eee ree 7, 13

Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d

Cacia a cch ci kun eles ekpesenetees 15

New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59

Rie IE GPE 6.0 ccc ie 606 e 4 Kens wane ése< 7, 12, 13

Newcomb v. State, 651 P.2d 1176 (Ala. App. 1982)...... 15

North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27

RRS aeprermene er een a 5

Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 48 L.Ed.2d

ck 04006 bbb cant cieie es ee ueedeesives 7

People v. Meyers, 263 N.E.2d 81 (Ill. 1970)............ 20

Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L-Ed.2d

SRE ererrvrrrrrns. eee 9-10

Powell v. Alabama, 287 U.S . 45, 53 S.Ct. 55, 77 L.Ed.2d

I el rae ars Ate BL Je ee ee re ne ee a 5

Simmons v. United States, 390 U.S , 377, 88 S.Ct. 967, 19

aR a REDE HER ae ee ee 23

State v. Haffa, 246 lowa 1275, 71 N.W.2d 35 (1955). .... 20

State v. Hendren, 311 N.W.2d 61 (Iowa 1981).......... 14

State v. Millspaugh, 257 N.W.2d 513 (lowa 1977) ...... 21

Strickland v. Washington, __. U.S. —-_, 104 S.Ct.

me me Te” | eee 6,17

Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L. Ed.2d

para qraimear aaa a Sg RO Re RY Mane 10

Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63

ee canesoewunwtl 6

Vv

Table Of Authorities— Continued

CASEs: Page

United States v. Bifield, 702 F.2d 342 (2nd Cir. 1983)... 28

United States v. Brugman, 655 F.2d 540 (4th Cir. 1981). 6

United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57

i nee eens 23

United States v. Hurt, 543 F.2d 162 (D.C. Cir. 1976)... 19

United States v. Roberts, 20 M.J. 689 (A.C.M.R.

he ae ee ed ee se cha as Coes 15, 16

United States v. Rosner, 485 F.2d 1224 (2nd Cir. 1973).. 6

United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18

L.Ed.2d 1149 (1967), (concurring opinion)......... 8

United States ex rel. Hart v. Davenport, 478 F:2d 203 (3rd

SE LCC icidun sc beeu kien sbevesawecaesasees 18-19

_ United States ex. rel. Simon v. Murphy, 349 F.Supp. 818

6 | SS Faia oe ere arr 20

United States ex. rel. Sullivan v. Cuyler, 553 F.Supp.

PG, UE sca sdvccsdncevencesbs 18, 19, 20

United States ex. rel. Wilcox v. Johnson, 555 F.2d 115 (3rd

SL tire sawenrseeubshaWetechess thes 11, 16, 22

Upjohn v. United States, 449 U.S. 383, 101 S.Ct. 677, 66

Si ENE 6 55 NEED 8 2 Reed oeccetiensecs 6, 14

Virgin Islands v. Zepp, 748 F.2d 125 (3rd Cir. 1984). 19

Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92

mF). | Sto eee CTT ee 17

Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 2

RU RAMON R lost e gt essaceunthccssenseus 6

Whiteside v. Scurr, 744 F.2d (8th Cir. 1984) 12, 16, 17, 22, 23

Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26

L.Ed.2d 446 (1970) Sept ne ere er en. Teer 8-9

CONSTITUTIONAL STATUTORY AND IOWA CODE OF

PROFESSIONAL RESPONSIBILITY PROVISIONS

Fifth Amendment, United Constitution............ 4,7, 13

Sixth Amendment, United States

PD . ccuscuasceccceet es rrTes 1, 13, 17, 18, 19

Fourteenth Amendment, United States

Ce eee ee ci deecdacens 1, 5, 7, 18, 22

Iowa Code of Professional Responsibility, E.C. nga reees 11

lowa Code of Professional Responsibility, E.C. 7-26.... 11

vil

Table Of Authorities— Continued

CASES: Page

OTHER AUTHORITIES

Bowman, “Standards of Conduct for Prosecution and

Defense Personal — An Attorney's Viewpoint,” 5

American Criminal Law Quarterly 28 (1966) ...... 15

Freeman, “Professional Responsibility of the Criminal

Defense Lawyer — The Three Hardest Questions,”

64 Mich. L. Rev. 1469 (1966) ..........%......... 15

CONSTITUTIONAL PROVISIONS INVOLVED

Fifth Amendment, United States Constitution

No person shall be . . . compelled in any criminal

case to be a witness against himself, nor deprived of

life, liberty, or property withouv due process of law

Sixth Amendment, United States Constitution

In all criminal prosecutions, the accused shall. . .

have the Assistance of Counsel for his defense.

Fourteenth Amendment, United States Constitution

No State. . . shall. . . deprive any person of life,

llberty, or property without due process of law.

STATEMENT OF FACTS

Testimony at Petitioner’s trial established that

Emmanuel Whiteside and two companions, Terry Fowler

and Derrick Doolin, went to the apartment of the victim,

Calvin Love, and his girlfriend, Kathy Sauer, to obtain

some marijuana. (App. p. 12). While there, an argument

ensued about the marijuana and Love, who was lying on a

bed, stated at least once that Sauer should get his “piece.”

(App. p. 12, 16-17, 36, 43, 49). At one point, Love got up,

went to a different part of the room and then returned to

the bed. (App. p. 16). Then, Love made a move to get off

his bed moving toward Whiteside. (App. p>. 36-7, 42-3). A

scuffle ensued and Love was fatally stabbed in the chest

by Whiteside. (App. p. 42-5, 49-51). Sauer than gave

Whiteside the marijuana and the trio left. (App. p. 15).

Testimony also showed that the room where the stab-

bing occurred was poorly lighted (App. pp. 34-5), that

Love had a reputation for carrying weapons and that he

was intoxicated the night he was killed. (App. p. 50). It

was also established that Sauer and Love's family broke

2

the padlock off his apartment door and removed every-

thing, including the carpet, the next morning. (App. pp.

8-9, 20-21). Police officers had conducted a “cursory

search” of the premises after Love had been removed by

ambulance attendants. (App. pp. 26-27).

A major point of controversy was whether Love

reached under his pillow just prior to getting off the bed

when he was stabbed. Kathy Sauer was not sure where

Love’s hands were. (App. pp. 21-22). Fowler stated Love

did not place them under the pillow while Whiteside and

Doolin stated that he did put his hands under the nvillow

prior to getting up. (App. pp. 38-39, 44-45, 49). Doolin,

Fowler and Whiteside all testified that they thought Love

had a gun but none stated that they saw one. (App. pp. 36,

45, 49-51).

At the hearing on Whiteside’s Motion for a New Trial,

Whiteside testified that when Attorney Robinson first

visited him, ne gave Robinson a written summary of the

event that stated that he saw a gui in Love's hands. (Pet.

App. A62-69)). He stated that after no gun was found,

Robinson told him he would withdraw if he claimed he

actually saw a gun. (Pet. App. A70-72). He agreed to

testify that he only thought Love had a gun based on the

threat and that he felt, based on Robinson's assurances, it

would all work out. (Pet. App. A74-75).

Gary Robinson testified that, after reading Whiteside’s

statement, Whiteside stated that he did not really see the

gun and that Whiteside acquiesced in the strategy of

trying to “create” a gun. (Pet. App. A77-79). He stated

that, when it became clear that a gun could not be found,

Whiteside insisted on testifying he saw a gun. (Pet. App.

A&4-87). Robinson said he told Whiteside he could not

condone perjury, that if he testified he saw a gun he would

withdraw, inform the court of the perjury and be available

3

as a rebuttal witness. (Pet. App. A&4-88). He stated that

his threats caused Whiteside to testify as he did. (Pet.

App. A89). Attorney Donna Paulsen testified to essen-

tially the same things as Robinson.

The trial court, in overruling Defendant's Motion for

New Trial, stated: “I find the facts to be as testified to by

Ms. Paulsen and Mr. Robinson.” (App. 56-57).

Petitioner's recital of the procedural history of the case

is adopted as essentially correct. (Brief, pp. 7-8).

SUMMARY OF ARGUMENT

A resolution ofthe problem of client perjury requires

consideration of a number of values fundamental to the

American system of jurisprudence. They include: (1) the

value of truth seeking in the trial process; (2) the funda-

mental right to the assistance of counsel which requires

loyalty, advocacy and confidentiality by the attorney; (3)

the role of the jury in deciding what the truth is after

skillfull advocacy and cross-examination by the parties’

attorneys at trial.

Based on the values set out, it is necessary, as an initial

matter, that counsel be convinced, at least, beyond a

reasonable doubt that a defendant is going to commit per-

jury. Short of an explicit admission by the client, which

counsel did not have here, the conclusion that perjury will

be committed is never warranted.

However, as the Court of Appeals recognized, even if

perjury was going to be committed in this case, trial

counsel's response was not justified. Counsel experienced

a conflict of interest which caused him to threaten to

abandon his roles as zealous advocate and confidant of his

client based on his desire to comply with what he believed

his profession’s ethical rules required. Counsel's threats to

4

withdraw from representation, inform the trial judge and

testify against his client overstepped his role as set out

above and left his client without the assistance of conflict-

free counsel. Thus, the Court of Appeals correctly applied

the presumption of prejudice in overturning the convic-

tion. See Holloway v. Arkansas, 435 U.S. 475, 489, 98

S.Ct. 1178, 1181, 55 L.Ed.2d 425, 437 (1978).

In addition, counsel's threats violated his client’s rights

to due process, a fair trial and the effective assistance of

_ counsel by conditioning his client’s constitutional right to

counsel on restrictions counsel placed on his client’s con-

stitutional right to testify. This was especially effective in

this case where the client had been told he would not be

allowed further, substitute counsel.

This Court must affirm the well reasoned decision of the

Court of Appeals to grant Emmanuel Whiteside habeas

corpus relief.

ARGUMENT

1. THE COURT OF APPEALS WAS CORRECT IN HOLD-

ING THAT TRIAL COUNSEL'S THREATS TO

WITHDRAW FROM RESPONDENT'S CASE, INFORM

THE TRIAL JUDGE AND TESTIFY AGAINST

RESPONDENT IF RESPONDENT GAVE TESTIMONY

TRIAL COUNSEL BELIEVED TO BE PERJURED,

EVIDENCED AN ACTUAL CONFLICT OF INTEREST

AND INEFFECTIVE ASSISTANCE OF COUNSEL

WHICH JUSTIFIED A PRESUMPTION OF PREJU-

DICE SUFFICIENT TO JUSTIFY HABEAS CORPUS

RELIEF.

Petitioner premises his attack on the Court of Appeals’

decision on what he characterizes as four key facts which

assertedly vindicate trial counsel's actions. Briefly, they

are: (1) Respondent did, in fact, intend to commit perjury;

5

(2) Neither the judge nor the jury was made aware of tria!

counsel’s “admonitions”; (3) The only result was preven-

tion of perjury and, thus, Respondent was not preju-

dicied; (4) Respondent did not complain regarding trial

counsel’s actions until after the verdict was rendered and,

thus, his motives are suspect. (Pet’s. Brief, pp. 11-13).

However, a correct analysis of the facts involved and the

values at stake in this litigation show that these four

assertions are either irrelevant to the issues at hand or

are unsupported by the record when read as a whole. A

review of the constitutional and societal values impli-

cated, as expressed through the United States Constitu-

tion and this Court’s decisions, is the necessary starting

point.

Petitioner begins his legal analysis by stating that the

right to the effective assistance of counsel is based on the

desirability of accurate verdicts at trial. (Pet’s. Brief, p.

14). Though this is certainly a major goal of that right,

Petitioner's constricted reading of that fundamental right

and the conclusions he draws fail to even advance the

interest he espouses.

First, it is well established that the due process right to

counsel in criminal cases includes the right to the “guild-

ing hand of counsel at every step in the proceeding against

him.” Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64,

77 L.Ed. 158, 170 (1932). This includes not only assistance

at trial but also involves assistance in the decision

whether to proceed to trial at all. See North Carolina v.

Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d

162, 171.(1970); McMann v. Richardson, 397 U.S. 759,

769-71, 90 S.Ct. 1441, 1448-9, 25 L.Ed.2d 763, 772-3

~ (¥970).! Further, and perhaps most important in the vast

'The large percentage of guilty pleas to criminal charges was

recognized in Brady v. United States, 397 U.S. 742, 752, -90 S.Ct.

1463, 1471, 25 L.Ed.2d 747, 758-9, N. 10 (1970).

6

majority of cases, a defendant is entitled to the effective

assistance of counsel at sentencing. See Strickland v.

Washington, U.S. —__, 1048.Ct. 2052, 2064, 80 L.Ed.2d

674, (1984).

In order for counsel to competently perform this role, it

is necessary that both client and counsel be able to rely on

the attorney-client privilege. See Upjohn v. United

States, 449 U.S. 383, 390, 101 S.Ct. 677, 683, 66 L.Ed.2d

584, 592 (1981). Because of this necessity, it is not surpris-

ing that Courts of Appeals have recognized that the priv-

ilege is part of the constitutional right to counsel. See

United States v. Brugman, 655 F.2d 540, 546 (4 Cir. 1981);

Mastrian v. McManus, 554 F.2d 818, 821 (8 Cir. 1977);

United States v. Rosner, 485 F.2d 1213, 1224 (2 Cir. 1973).

Moreover, it appears that this Court has, at least, implied

that the attorney-client privilege has constitutional

underpinnings.? Weatherford v. Bursey, 429 U.S. 545,

552-4, 97 S.Ct. 837, 842-3, 51 L.Ed.2d 30, 38-39 (1977);

Geders v. United States, 425 U.S. 80, 88-89, 96 S.Ct. 1330,

1335, 47 L.Ed.2d 592, 599 (1976); Hoffa v. United States,

385 U.S. 293, 306-7, 87 S.Ct. 408, 416, 17 L.Ed.2d 374,

384-5 (1966).

Geders is especially noteworthy because, there, the

Court held that the trial court erred in forbidding con-

sultation between client and counsel during an overnight

recess called during defendant's testimony. The Court

reached this result despite claims that the truth seeking

process might suffer as a result of this consultation.

* Even if only seen as a testimonial exclusionary rule, the attorney-

client privilege is, “... a public good transcending the normally

predominant principle of utilizing all rational means for ascertaining

the truth.” Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 966,

912, 63 L.Ed.2d 186, 195 (1980).

7

Geders, 425 U.S. at 89-91, 96S.Ct. at 1336-37, 47 L. Ed.2d

at 599.

Geders is but one of a number of occasions where mem-

bers of this Court have found that other interests must be

served aside from the truth seeking process. This is.

especially apparent where freedom from compelled self-

incrimination and the right to counsel are involved. For

example, in New Jersey v. Portash, 440 U.S. 450, 458-60,

99 S.Ct. 1292, 1297, 59 L.Ed.2d 501, 509-10 (1979), the

Court held that a criminal defendant could not be

impeached with testimony given before a grand jury

under grant of immunity. The Court distinguished cases

such as Harris v. New York, 401 U.S. 222, 9158.Ct. 643, 28

L.Ed.2d 1 (1971) and Oregon v. Hass, 420 U.S. 714, 95

S.Ct. 1215, 48 L.Ed.2d 570 (1975), where the court had

approved impeachment of a testifying defendant with

statements obtained in violation of Miranda v. Arizona,

384 U.S. 436, 86 S.Ct. 1602; 16 L.Ed.2d 694 (1966), by

pointing out that where the privilege against compelled

self-incrimination, “in its most pristine form,” is involved,

the Court will not balance that protection against the

“strong policy against countenancing perjury.” Justice

Powell, in his concurring opinion in Portash, (joined by

Rehnquist, J.), 440 U.S. at 463, 99 S.Ct. at 1299, 59

L.Ed.2d at 512-13, underscored the subservience of the

truth seeking function to this right:

“The Court today recognizes, however, that the priv-

ilege against self-incrimination protects against

more than just the use of false or inaccurate state-

ments against a criminal defendant. In addition, the

Fifth Amendment, by virtue of its incorporation

through the Fourteenth Amendment, prohibits a

State from using compulsion to extract truthful infor-

mation from a defendant, when that information is to

be used later in obtaining the individual’s conviction.”

ee ~~ ————— -

—_see,. sr

.

8

In Brooks v. Tennessee, 406 U.S. 605, 609-13, 92 S.Ct.

1891, 1893-5, 32 L.Ed.2d 358, 362-5 (1972), this Court

invalidated a State statue which required a criminal

defendant to testify as the first defense witness or not at

all on both compelled self-incrimination and right to coun-

sel grounds.* Brooks is important because not only does it

explicity recognize that these rights are of greater impor-

tance than the value of truth seeking,? it also points out

that, “ . . our adversary system reposes judgment of the

credibility of all witnesses in the jury.” Brooks, 406 U.S.

at 611-12, 92 S.Ct. at 1894-5, 32 L.Ed.2d at 363.

The fundamental role of the jury as the ultimate fact-

finder in the American criminal justice system is com-

pletely ignored in Petitioner's analysis. Yet, the issue

presented cannot be decided without consideration of,

“. ., the essential feature of a jury. . . in the interposi-

tion between the accused and his accuser of the common

sense judgment of a group of laymen, and in the com-

munity participation and shared responsibility that

results from that group’s determination of guilt or inno-

3 Justice Stewart only joined the majority in Part II of the opnion, °

(due process right to counsel). Brooks, 406 U.S. at 613, 92 St.Ct. at

1895, 32 L.Ed.2d at 364.

4 The role of defense counsel in the trial process was best explained

by Justices White, Harlan and Stewart in their partial concurrences

in United States v. Wade, 388 U.S. 218, 256-7, 87S.Ct. 1926, 1947-8, 18

L.Ed.2d 1149, 1174 (1967):

But defense has no comparable obligation to ascertain or present

the truth. Our system assigns him a different mission. He must

be and is interested in preventing the conviction of the innocent,

but, absent a voluntary plea. of guilty, we also insist that he

defend his client whether ~ is innocent or guilty. The State has

the obligation to present the evidence. Defense counsel need

a nothing, even if he knows what the truth is. He need not

rnish any witnesses to the police, or reveal any confidences of

his client, or furnish any other information to help the prosecu-

tion’s case.

9

cence.” Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct.

1893, 1906, 26 L.Ed.2d 446, 460 (1970).

Simply put, our system of jurisprudence requires that

prosecutors conscientiously and independently perform

their roles of enforcing the laws and convicting the guilty.

Prosecutors have received judicial protection in the per-

formance of those duties. Jmbler v. Pachtman, 424 U.S.

409, 424-7, 96 S.Ct. 984, 992-3 47 L.Ed.2d 128, 140-1

(1976). An important determination in the grant of that

protection is that,“ . . it is very difficult if not impossible

for attorneys to be absolutely certain of the objective

truth or falsity of the testimony which they present.”

Imbler, 424 U.S. at 440, 96 S.Ct. at 999, 47 L.Ed.2d at

149, (concurring opinion of White, J.).° Defense counsel's

role is to represent the client zealously® and “marshal the

evidence into a coherent whole consistent with the best

case on behalf of the defendant.” Argersinger v. Hamlin,

407 U.S. 25, 46, 92 S.Ct. 2006, 2017, 32 L.Ed.2d 530, 543

(1972), (concurring opinion of Powell, J.). A meaningful

right to trial by jury depends on this. /d. It is the jury’s

function to decide who is telling the truth after the parties

have presented their witnesses, with guidance of counsel,

and subjected them to the skilled cross-examination of

their adversary’s attorney. Jackson v. Virginia, 443 U.S.

307, 319, 99 S.Ct. 2781, 2789, 61 L. Ed.2d 560, 573 (1979);

Hoffa v. United States, 385 U.S. at 311, 87 S.Ct. at 418,

172 Ed.2d at 387; Glasser v. United States, 315 U.S. 60,

77, 62S.Ct. 457, 468, 86 L. Ed. 680, 703 (1942). See Pointer

v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13

5 Imbler clearly recognizes that it is up to the jury, not the attor-

neys, to resolve which witnesses are telling the truth. /mbler, 424

U.S. at 426, 96 S.Ct. at 993, 47 L.Ed. 2d at 141.

5 See Maness v. Meyers, 419 U.S. 449, 466-7, 95 S.Ct. 584, 595, 42

L.Ed.2d 574, 588 (1975). |

10

L.Ed.2d 923, 926 (1965).7 There is simply no need for

defense counsel to “. . .appear (to the Defendant) as but

another arm of the Government that has proceeded

against him.” Baldwin v. New York, 399 U.S. 66, 72, 90

S.Ct. 1886, 1890, 26 L.Ed.2d 437, 442 (1970).

As will be seen below, when the interest in truth seek-

ing is considered with the constitutional right to counsel

and the role of the jury as the ultimate factfinder, there

can be no other conclusion than that trial counsel’s actions

in this case were unjustified and the Court of Appeals was

correct in granting Respondent habeas corpus relief,

A. Even Assuming Respondent Was Going To Commit

Perjury, Trial Counsel's Actions Were Not Warranted,

Petitioner makes much of the contention that this

Court must accept the fact that Respondent was going to

perjure himself and, as aresult, trial counsel's response to

this problem was constitutionally acceptable. Respond-

ent does not concede that Summner v. Mata, 449 U.S, 449

U.S. 539, 544-5, 101 S.Ct. 764, 767, 66 L.Ed.2d 722,

729-30 (1980) dictates that this finding is “fairly supported

by the record.” This is true because, first, whether coun-

sel had the requisite level of knowledge to conclude that a

client is going to commit perjury is, at least, a mixed

question of law or fact to which the presumption of cor-

rectness does not apply. Butler v. United States, 414 A.2d

844, 849 (C.A.D.C. 1980); See Cuyler v. Sullivan, 446

U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333,

(1980).

‘Juror’s ability to perform this task was explicity: recognized in

Duncan v. Louisiana, 391 U.S. 145, 156-7, 88 S.Ct. 1444, NO5L-2, 20

L.Ed.2d 491, 499-501 (1968).

*This would be especially true if, as Petitioner argues, a client

intent on perjury waives his or her right to counsel. (Pet's Brief, p.

39). See Brewer v. Williams, 430 U.S. 387, 403-4, 97 S.Ct. 1282, 12ay,

51 L.Ed.2d 424, 439 (1977).

lI

Second, the claim that Whiteside was going to perjure

himself is not fairly supported in the record based on the

fact that Whiteside initially indicated to counsel that a gun

was present, (App. p. 55), and merely acquiesced in coun-

sel's strategic decisions that the weapon's presence was

irrevelant until shortly before trial, (Pet, App, pp. 77-9,

84-87), Mere inconsistencies in a client's confidential state-

ments to counsel do not justify a conclusion that perjury is

to be committed, Butler, 414 A.2d at 849-50, citing

Johnson vy, United States, 404 A.2d 162, 164 (C,A.D,C,

1979). See United States ex rel Wileow vy, Johnson, 555

F.2d 115, 121 (8 Cir, 1977), Any uncertainty as to which

version is accurate must be resolved in favor of the client

and submitted to the factfinder, E.C, 7-6 and 7-26 of the

lowa Code of Professional Responsibility for Lawyers,

See Imbler, 424 U.S, at 427, 968. Ct, at 998, 47 L, Ed. 2d at

141. Uncertainty is readily apparent based on the fact

that trial counsel's investigation, aimed at “creating” a

gun, (Pet, App, A77-79), did not begin until a month.after

the event, long after the victim's apartment had been

cleared out, (Pet, App. A&0, App. pp. 8&9). Thus, this

Court is not bound to accept the conclusion that Respond-

ent was going to perjure himself,

However, as the Court of Appeals stated:

For the purposes of our analysis, we presume that

agpemant would have testified falsely, We recognize,

of course, that the criminal defendants’ privilege to

testify in their own defense does not include the right

to commit perjury. See Harris vy, New York, 401 U.S,

222, 225, 91 S.Ct, 648, 645, 28 L.Ed.2d 1 (1971),

peerae ny

"It would be incongruous for the Court to allow counsel to dis.

believe his or her client on a leas than beyond a reasonable doubt

standard when the factfinder must apply that standard to the defen-

dant’s case, /n re Winship, 897 U.S, 358, 864 90 8.0L, 1068, L072 25

L. Ed. 2d 868, 875 (1970),

OOOO” l

l2

However, the fact that appellant would have com-

mitted rury does not mean that appellant has

waived his right to a fair trial, due process or effee-

tive assistance of counsel,

Whiteside vy, Seurr, 744 F.2d at 1828, citing Lowery vy,

Cardwell, 575 F.2d 727, 730 (9 Cir, 1978), The Court's

assertion that a perjury determined client does not forfeit

the right to the effective assistance of counsel is sup-

ported by this Court's decisions in New Jersey v, Portash,

440 U.S, 450, 99 S.Ct, 1292 59 L, Ed.2d 501 (1979) and

Harris v. New York, 401 U.S, 222, 91 S.Ct, 643, 28

L. Ed.2d 1 (1971), In neither case was counsel chastised

for allowing the defendant to present testimony that was

more obviously perjured than that Respondent wished to

give here, Portash had given conflicting testimony under

oath, after a grant of immunity, Portash, 440 U.S, at

451-3, 99 S.Ct, at 1298, 59 L, Ed.2d at 505-6, Harris had

given a voluntary, reliable statement to police, Harris,

401 U.S, at 224, 918,Ct, at 645, 28 L. Ed.2d at 4,

Further, Petitioner's assertion that a perjury deter-

mined client who refused to buckle under his attorney's

threats has executed a Farettasstyle waiver of counsel is

simply not supported by that or any other of this Court's

cases, (Pet's, Brief p. 39), This is especially true here

where Respondent was never warned and questioned

regarding the consequences of acting pro se, Furetta vy,

California, 422 U.S, 806, 835-6, 95 S.Ct, 2525, 2541, 45

L,. Ed.2d 562, 581-2 (1975), Moreover, a “knowing, volun-

tary and intelligent” waiver of that right was not forth-

coming because Respondent gave into trial counsel's

Wishes based, in part, on his desire not to lose the

assistance of counsel, /nfra., pp.

Thus, assuming Petitioner was going to commit per-

jury, trial counsel's actions were not justified,

3

Bh. The Fact That Trial Counsel's Threats Were Not Dis.

closed To The Trial Court Or The Jury Did Not Limit

Their Prejudicial Impact On Kespondent’s Right To

Counsel,

Next, Petitioner contends that, because trial counsel's

“admonitions” and his suspicion of perjury were not com-

municated to the trial judge or the jury, the trial process

was not tainted, (Pet.'s Brief, p, 12), Petitioner appears to

be contending that because Respondent did not call trial

counsel's bluff and expose himself to the threatened con-

sequences of his desired testimony, his rights were in no

way harmed,

Initially, it should be noted that the Court of Appeals’

preceived no difference, for Constitutional purposes,

between counsel's threats and what the result would have

been had counsel been forced to carry through on them,

Whiteside, 744 F.2d at 1831, This is consistent with this

Court's cases which have not required criminal defen-

dants to suffer the consequences of unconstitutional

restraints on their Fifth and Sixth Amendment rights in

order to merit relief, See New Jersey vy, Portash, 440 U.S,

450, 455-6, 99 S.Ct, 1292, 1295, 59 L. Ed.2d 501, 507-8

(1979); Brooks vy, Tennessee, 406 U.S, 605, 611, 92 8.Ct,

1891, 1894, 82 L.Ed. 2d 358, 363, N.6 (1972); Ferguson vy,

Georgia, 365 U.S, 570, 600-1, 81 s.Ct, 756, 772-3, 5

L,, Md, 2d 788, 801 (1961), (concurring opinions, )

Moreover, it is incongruous to say that it is permissible

to threaten to do an act which is impermissible to actually

do, That is, a threat may be as persuasive as the act

threatened, See Miranda y, Arizona, 384 U.S, 486, 448,

86. S.Ct, 1602, 1614, 16 L, Ed. 2d 694-709 (1966),

Thus, the fact that trial counsel's belief in Respondent's

planned perjury was not disclosed to the factfinder adds

EOE ee —

ld

nothing to Petitioner's argument because that was exactly

the prohibited act trial counsel threatened to do,

Further, it is clear that, despite Petitioner's claims to

the contrary, trial counsel's threats were not proper, Peti-

tioner spends a significant portion of his brief discussing

what an attorney may do when confronted with a perjury

determined criminal defendant, (Pet.'s Brief, pp, 33), '° As

Petitioner correctly points out, having the defendant tes-

tify in a narrative fashion to his or her version of the

events without counsel assisting in formulating or argu-

ing that version to the jury has many flaws, Prominent

among these is that it signals to the jury the lawyer's

disbelief of the client's testimony, See Johns v. Smythe,

176 F. Supp, 949, 958 (iE. D. Va, 1959),

Further, forcing a defendant to testify in narrative fash-

ion, without the assistance of counsel, has been found by

this Court to be a deprivation of the right of counsel,

Ferguson vy, Georgia, 365 U.S, 570, 596, 81S, Ct, 756, 770,

5 L,.Ed.2d 783, 798-9 (1961), Likewise, depriving the

defense of closing argument violates the right to counsel,

Herring v. New York, 442 U.S, 858, 862, 95 8,Ct, 2550,

2555, 45 L. Ed. 2d 598, 600 (1975), State v. Hendren, 311

N.W,2d 61, 63 (Lowa 1981),

Petitioner contends that it is proper for a trial attorney

in this situation to threaten to withdraw and inform the

trial court of the nature of his or her suspicions, (Pet's,

Brief, p, 30, 33-4),

' Petitioner's suggestion that rules governing counsel's response

to client perjury are best left to the States, (Pets, Brief, p, 30), is

perhaps unwise because, as noted in Upjohn, 449 U.S, at 398, 101

S.Ct, at 684, 66 L,.Ed.2d at 598, predictability is essential to the

effectiveness of the attorney-client privilege, “An uncertain priv-

ilege, or one which. . . results in widely varying applications by the

Courts is little better than no privilege at all,” /d,

1b

The most obvious flaw in this “solution” is that an

attorney cannot threaten a client with withdrawal, or any

other abandonment of their relationship of trust, in order

to exercise control over a decision that is the client's to

make, Downton vy, Perini, 511 F.Supp, 258, 267-8 (ND,

Ohio 1981), See Jones v, Barnes, —— U.S, , 108 8.Ct.

8308, 8312, 77 L. Ed.2d 987, 993 (1983),

Next, all trial counsel's withdrawal accomplishes is that

the problem is passed onto another attorney who the

defendant may only give the most recent (perjured) ver-

sion of the case to and, thus, be allowed to testify to that

version, See Newcomb y, State, 651 P.2d 1176, 1181-3, N.5

(Alk, App. 1982), Freedman, “Professional Responsibility

of the Criminal Defense Lawyer — The Three Hardest

Questions”, 64 Mich, L. Rev, 1469, 1476, This “solution” in

no way contributes to the fact-finding integrity of the

court system upon which Petitioner bases his defense of

trial counsel's actions,'' In short, the remedy does nov

justify the problem,

'! Petitioner does not address the issue of what counsel does if the

trial court denies the motion to withdraw, It has beenwuggested that,

in light of the total unaceeptability of forcing the defendant to testify

by narrative without supporting argument by counsel, counsel could

then proceed to let the defendant testify as he or she wished because,

by alerting the trial judge, counsel has, at least, fulfilled his or her

obligation to the court, See Bowman, “Standards of Conduct for

Prosecution and Defense Personnel: An Attorneys Viewpont,” 5

American Criminal Law Quarterly 28, 50 (1966),

The withdraw and disclose remedy, thus, appears to recognize that

trial counsel has a value in his or her personal autonomy; a rather

bizarre notion considering Petitioner's claim that a criminal defen-

dant has no such entitlement, (Pet's, Brief, p, 38), citing Morris y,

Slappy, 461 U.S, 1, 18, 14, 1088,Ct, 1610, 1617, 75 L, Bd. 2d 610, 621

(1983). See United States vy, Roberts, 20 M.J, 689, 698 (A.C MLR,

1985),

° #

Even more important, however, is the fact that even if

this Court were to approve of the withdraw and inform

solution to the problem presented, Petitioner cannot pre-

vai! based on trial counsel's threat to “impeach” Respond-

ent based on their confidential conversations, (Pet, App.

A&5), Despite Petitioner's protestations, none of the dis-

senting members of the Court of Appeals disagreed with

the fact that trial counsel did, in fact, threaten to testify

against Respondent; the most obvious meaning of trial

counsel's words, But, even if counsel only meant to cross. _

examine Respondent, he would still be sifigy con-

fidential information to the factfinder and communcating

his disbelief of his client's testimony; the exact harm\hat

the court's who have addressed this problem have

sought to avoid, Roberts, 20 MJ, at 691; Whiteside, 7:

F.2d at 714; Butler, 414 A2d at 852, 854; Lowery, 575 Fy

at 730; Wileow, 555 F.2d at 122, Counsel's ae were

especially flawed because no record was made as to

whether he tried less severe ways to persuqde Respond-

ent, e.g. possible perjury prosecution, in ordemy

to testify to what trial counsel believed the trut

Thus, it is clear that trial counsel did viole

tionship of confidence and trust with his

client, His

' Any suggestion by Petitioner, (Pet's, Brief, pj 48), or amicus

parties, (ABA.p. 15), that an attorney could withdraw prior to trial

and serve as a rebuttal witness at trial, and, thus, aoid a “musical

chairs” in front of the jury, only begs the question beequse: (a) new

counsel would be reduced to 4 “figurehead” as a prior gttorney calls

the client a liar based on confidential disclosures; (b) Petitioner's

characterization of the “admonition” makes it certain that any

impeachment would have taken place at the current trial; (¢) as the

ABA notes, this case does not raise the question of the extent of

counsel's ability to disclose the perjury “after he has withdrawn as

counsel,” (ABA, p, 15 N.4),

\7

threats were truly a violation of Respondent's right to the

effective assistance of counsel,

C, The Court Of Appeals Properly Applied The Presump-

tion Of Prejudice For Contliet Of Interest Cases

Petitioner's next claim is that no prejudice was sus-

tained by Respondent as a result of trial counsel's actions,

The argument is twofold, First, Petitioner contends that

the Court of Appeals erred in applying the presumption of

prejudice for conflict of interest cases, Whiteside, 744 F.2d

at 1330, (Pet's, Brief, pp. 19-23), Second, Petitioner avers

that Respondent could not meet the actual prejudice test

for ineffective assistance of counsel cases set out in Strick.

land v; Washington, — U.S, — , — , 1048,Ct, 2082,

2068, 80 L, Ed,2d 674, 698 (1084), (Petitioner's Brief, p,

23). A proper analysis of conflict of interest caselaw dem-

onstrates that the Court of Appeals was correct,

“The right to counsel guaranteed by the Constitution

contemplates the services of an attorney devoted solely to

the interests of his client.” Von Moltke v, Gillies, 382 U.S,

708, 725, 68 S.Ct, 316, 324, 92 L.Ed, 309, 321 (1948),

citing Glasser vy, United States, 315 U.S, 60, 70, 625,Ct,

457, 465, 86 L. Ed, 680, 699 (1942), “Undivided allegiance

and faithful, devoted service to a client are prized tradi-

tions of the American lawyer, It is this kind of service for

which the Sixth Amendment makes provision,” Van Mol-

the, 332 U.S, at 725-6, 688,Ct, at 324, 92 L, Ed, at 822, See

Strickland, 104 $,Ct, at 2068-5, 80 L, Ed.2d at 674-6,

Clearly, Respondent did not have an ati orney devoted

solely to the interests of his client and, thus, the Court of

Appeals correctly applied the presumption of prejudice

for conflict of interest cases, Whiteside, 744 F.2d at 1330,

18

The correct analysis for a deprivation of counsel claim

based on conflict of interest is best set out by the remand

court in United States ex. rel. Sullivan v. Cuyler, 553 F.

Supp. 1236, 1241 (E.D.Pa. 1982):

In his report, the Magistrate ably traced the evolu-

tion of the standard enunciated in Cuyler v. Sullivan,

446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)

and the division opinion which its ambiguous lan-

guage has spawned in the courts of appeals. He rea-

soned that the Court requires a finding of actual

conflict which causes the attorney to choose a course

of action adverse to his client’s interests without the

necessity of showing that the lapse in representation

affected the outcome of the trial. Thus, because he

found that counsel labored under conflicting duties

(i.e. — to present exculpatory evidence on Peti-

tioner’s behalf through the testimony of the co-defen-

dant yet to protect the codefendant from possible

self-incrimination), and that counsel chose the latter

course of action adverse to Petitioner's best interest,

he concluded that the attorney’s performance was

adversely affected within the meaning of Sullivan.

He declined to accept Respondent’s argument

advanced herein since it is “merely an attempt to

redefine the Sullivan standard in terms of prejudice.”

Findings and Recommendation at 45. I fully concur

with this analysis and adopt it herein.

The Court explained:

The danger in Sixth Amendment terms to be identi-

fied by the Sullivan analysis is the causative effect on

the lawyer’s judgment of the conflicting interests.

When the division in loyalty directly affects the law-

yer'’s judgment, representation is per se ineffective

and counsel is in essence denied altogether. This is

because the “right to counsel guaranteed by the

Sixth and Fourteenth Amendments contemplates

the service of an attorney devoted solely to the inter-

ests of his client”. United States ex rel. Hart v.

19

Davenport, 478 F.2d 208, 209 (3rd Cir. 1973). Thus, it

is the impaired lo abe itself: not the degree of incom-

petence produced by the impairment which violates

the spirit of the Sixth Amendment. This view is

evinced by the distinction drawn between conflict

ineffectiveness and incompetence ineffectiveness.

Cuyler, 553 F. Supp. at 1241-2

Thus, the task here is to identify the conflicting inter-

ests and whether counsel’s actions were affected by that

conflict.

As observed by the United States Court of Appeals for

the District of Columbia Circuit in United States v. Hurt,

543 F.d 162, 166 (D.C. Cir. 1976);

To be sure, most conflicts of interest seen in criminal

litigation arise out of a lawyer's dual psa ae ma mg of

re ow a but the constitutional principle is not

narrowly confined to instances of that type. The cases

reflect the sensitivity of the judiciary to an obligation

to apply the principle whenever counsel is so situated

that the caliber of his services may be substantially

diluted. Competition between the client’s interests

and counsel’s own interests plainly threatens that

result, and we have no doubt that the conflict cor-

rupts the relationship when counsel's duty to his

client calls for a course of action which concern for

himself suggests that he avoid.

In Hurt, 543 F.2d at 167-8, divided loyalty was found

where appellate counsel was facing a libel suit filed by trial

eounsel ead on an appeallate claim of ineffectiveness of

trial counsel. Prejudice was presumed despite the fact

that Hurt could point to no shortcomings in appellate

counsel's representation. Hurt, 543 F.2d at 168.

Other courts have likewise applied the presumption of

prejudice where trial counsel’s personal interests con-

flicted with his or her duty of loyalty to the client. See

Virgin Islands v. Zepp, 748 F.2d 125, 135-39 (3 Cir. 1984),

La

—

20

(counsel as witness exculpating self and inculpating

defendant); United States ex. rel. Simon v. Murphy, 349

F. Supp. 818, 823 (E.D.Pa. 1972), (contingent fee agree-

ment based on outcome of verdict); Commonwealth v.

Duffy, 394 A.2d 965, 967-8 (Pa. 1978), (possibility of crimi-

nal charges against counsel); People v. Meyers, 263

N.E.2d 81, 82-3 (Ill. 1970), (potential contingent fee on

related civil case affected by length of defendant’s incar-

ceration).

In the present case, it cannot be disputed that trial

~ counsel's loyalty was split between his desire to do what

he believed was demanded by ethical rules and his client’s

right to effective advocacy of his defense. This caused

counsel to choose the path dictated by his personal inter-

ests in complying with what he believed the ethical rules

required. Under Cuyler, then, the actual conlict of inter-

est is shown as well as the fact that it adversely affected

counsel’s performance as an advocate. Petitioner's

attempt to claim no “lapse of advocacy” based on the

alleged strategic soundness of trial counsel’s “admoni-

tions”, (Pet's. Brief, pp. 22-3), is “merely an attempt to

redefine the Sullivan standard in terms of prejudice.” This

is a tactic rejected by the District Court in that case.

Cuyler, 553 F. Supp. at 1241.

In sum, Respondent has shown that the Court of

Appeals correctly applied the presumption of prejudiee to

what is clearly a conflict of interest case. !*

13 Actual prejudice sufficient to undermine confidence in the ver-

dict could be shown based on the importance of the actual existence of

a weapon when one seeks to raise a claim of self defense to a murder

charge. A successful defense of self-defense must be premised on four

elements; the relevant one here whether petitioner had reasonable

grounds for his belief that he was in imminent danger of death or

great bodily injury. State v. Haffa, 246 lowa 1275, 1289, 71 N.W. 2d

35, 43 (1955). It cannot be gainsaid that the reasonableness of one’s

21

D. The Timing Of Respondent’s Claims Is Of No Signifi-

cance Under Three Circumstances.

Petitioner attacks the Court of Appeals’s decision based

on the fact that Respondent indicated his satisfaction with

counsel at the close of trial and did not complain about the

“admonitions” until after the verdict was reached. (Pet's.

Brief, pp. 13, 45). This “fact” is completely irrelevant

because, initially, sophisticated trial counsel is in a much

better position to recognize a conflict of interest than a

client. Cuyler v. Sullivan, 446 U.S. 335, 346-7, 100 S.Ct.

1708, 1717, 64 L. Ed.2d 333, 345-6 (1980). Next, Respond-

ent was in no position to complain regarding trial counsel

at that time because he had been previously told that “ . .

your chances of getting another change of attornevs are

about zero(?).” (Pet. App. A53). That is precisciy why trial

cpunsel’s threats were so effective. Respondent did not

wish to proceed pro se.

Clearly, the timing of Respondent’s claim is of no rele-

vance in this case.

belief as to whether imminent danger is present is greatly affected by

whether a gun is actually seen or only believed to be present. Trial

counsel recognized this distinction. (Pet. App. p. 87). Respondent's

Gesi.ed testimony on this issue was crucial because he was the only

one directly faced by the victim at the time Love arose from the bed.

Also, the dimness of the light in the-room could well have resulted in

Respondent being the only person who saw the gun. Knowledge of

this factor, when combined with Love's statement that he wanted his

“piece” and his reputation for carrying guns, could well have changed

the jury’s verdict in favor of self-defense. Moreover, that evidence

may have compelled the jury to find differently on the element of

malice aforethought, due to the provocation from the presence of a

gun, and Respondent would only have been convicted of man-

slaughter, a crime carrying a lesser penalty. State v. Millspaugh, 257

N.W.2d 513, 516 (lowa 1977).

See eS eee ee

<—_—oe- =

22

In sum, it has been shown that, based on the constitu-

tional and societal interests involved and the specific facts

of this case, the majority of the Court of Appeals was

correct in holding that trial counsel improperly aban-

doned his duty of loyalty to his client and that, because the

abandonment was the direct result of a conflict of interest,

the presumption of prejudice was properly applied. The

opinion of the Court at Appeals must be affirmed.

Il. RESPONDENT WAS DENIED A FAIR TRIAL, DUE

PROCESS OF LAW AND THE EFFECTIVE

ASSISTANCE OF COUNSEL BY TRIAL COUNSEL'S

CONDITIONING FURTHER REPRESENTATION ON

THE CONTENT OF RESPONDENT’S TESTIMONY.

There can be no dispute that trial counsel directly

threatenedto abandon his sole as Respondent’s advocate

if Repondent testified as he wished. (Pet. App. A85). The

Court of Appeals correctly found that this imper-

missibility forced Respondent to choose between his con-

stitutional rights to counsel and to testify. Whiteside, 744

F.2d at 1329-30, citing, United States ex. rel. Wilcox v.

Johnson, 555 F.2d 115, 120-1 (3rd Cir. 1977).

Clearly, a defendant has a due process right to testify in

his or her defense. It has been recognized by this Court in

Jones v. Barnes, ___ U.S. , 103 S.Ct. 3308, 3312,

- 77 L.Ed.2d 987, 993 (1983); Faretta v. California, 422

U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562, 572,

N. 15, (1975); Brooks v. Tennessee, 406 U.S. 605, 612, 92

S.Ct. 1891, 1895, 32 L.Ed.2d 358, 364 (1972). (“whether

the defendant is to testify is an important tactical decision

as well as a matter of constitutional right.”); Harris v.

New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28

L.Ed.2d 1, 4 (1971); Jn re Oliver, 333 U.S. 257, 273, 68

S.Ct. 499, 507,8, 92 L. Ed. 682 694 (1948). At least four

Courts of Appeals have recognized the right. Whiteside,

23

744 F.2d at 1329-30; United States v. Bifield, 702 F.2d 342,

349 (2 Cir.) cert. deu. 103 S.Ct. 2095 (1983); Alicea v.

Gagnon, 675 F.2d 913, 923 (7 Cir. 1982); Wilcox, 555 F.2d

at 118-19. Even the dissenters below did not challenge

this basic premise. Whiteside, 750 F.2d at 718, (Fagg, J.

dissenting from denial of rehearing).

Further, the right to testify does not protect a defen-

dant from all consequences of testifying falsely. The Court

of Appeal’s opinion does not dispute this. Clearly, a defen-

dant may be punished with a perjury charge or enhanced

punishment if he or she lies while testifying. United

States v. Grayson, 438 U.S. 41, 53-4, 98 S.Ct. 2610, 2617,

57 L.Ed.2d. 582 (1978). Further, a testifying defendant

may be impeached by prior inconsistent statements made

to police. Harris, 401 U.S. at 225-6, 91 S.Ct. at 645-6, 28

L.E.2d at 4/5. However, nothing in these cases suggests

that a client determined to commit perjury waives his or

her right to the assistance of counsel. Whiteside, 744 F.2d

at 1328,

This Court has held in the past that it is a violation of

due process for a defendant to be forced to sacrifice one

constitutional right to enforce another. Simmons v.

United States, 390 U.S. 377, 393-4, 88 S.Ct. 967, 976, 19

L.Ed.2d 1247, 1259 (1968). Clearly, counsel's threats put

before Respondent an intolerable “Hobson’s choice”

which was especially effective because Respondent had

been told he would not be allowed to seek another sub-

stitute counsel. (Pet. App. A53). On these facts, there was

no voluntary waiver of conflict-free counsel. Faretta, 422

U.S. at 835-6, 95 S. Ct. at 2541 45 L.Ed. 2d at 581-2.

Thus, the Court of Appeals correctly held that

Respondent's rights to due process, a fair trial and the

effective assistance of counsel were violated by trial coun-

sel’s forcing Respondent to choose bet ween the exercise of

24

two constitutional rights. The decision of the Court of

Appeals must also be affirmed on this ground.

CONCLUSION

The Court of Appeals recognized the importance of the

role of counsel as an advocate and confidant in the Amer-

ican system of jurisprudence. Thus, the Court correctly

concluded that counsel’s threats to move to withdraw from

his client’s case, inform the trial judge that Respondent

was going to commit perjury and testify against him

reflected on actual conflict of interest that adversely

affected his representation. Thus, the Court correct

applied the presumption of prejudice based on this

deprivation of counsel and held that Respondent should be

given a new trial. See Cuyler v. Sullivan, 446 U.S, 335,

100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)

Any allegation that Respondent’ alleged intention to

commit perjury constituted a knowing, intentional and

voluntary waiver of the right to counsel is without support

in either the caselaw or the facts herein. See Faretta v.

California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562

(1975).

Further, the Court of Appeals correctly found that

counsel’s threats resulted in a deprivation of his right to

the effective assistance of counsel, due process and a fair

trial because counsel conditioned his continued represen-

tation on the content of Respondent's testimony. Thus,

Respondent was forced to choose between his constitu-

tionai mght to couusel and his constitutional right to tes-

tify; an unconscionable choice.

25

Thus, this Court should affirm to the judgment of the

Court of Appeals granting Respondent a writ of habeas

corpus,

Respectfully submitted,

Patrick Reilly Grady

(appointed by this court)

Public Defender's Office

214 First Street SW

Cedar Rapids, lowa 52404

Phone: 398-3690

Counsel for Respondent

26

CERTIFICATE OF SERVICE

I, Patrick R. Grady, a member in good standing of the

bar of the Supreme Court of the United States, do hereby

certify that on July 23, 1985, I caused a copy of Respond-

ent'’s Brief in the case of Nix v, Whiteside, No, 84-1821, to

be sent by first class mail, postage prepaid to: Mr. Brent

R. Appel, Deputy Attorney General of Iowa, Hoover

State Office Building, Second Floor, Des Moines, lowa

50819,

/s/

- Patrick R, Grady

AFFIDAVIT OF SERVICE

State of lowa

County of Linn

I, Patrick R. Grady, a member in good standing of the

bar of the Supreme Court of the United States, do hereby

depose that on July 23, 1985, I caused an original and one

copy of Respondent's Brief in the case of Nix v. Whiteside,

No 84-1321 to be sent by first class mail, postage prepaid

to: Clerk, United States Supreme Court, Washington,

D.C, 20548,

/s/

Patrick R. Grady

214 First Street S.W,

Cedar Rapids, lowa 52404

Phone: (319) 398-3690

27

Subscribed and sworn to before me by the said Patrick

R. Grady on this 28rd day of July, 1985,

Julie A, Thompson

Notary Public