Amicus Curiae Brief — Florida v. Nixon

@ Os 14 Aooy

Supreme Court. U

| FILED

4 931 > 2004

In the Supreme Court of the United: States

STATE OF FLORIDA, PETITIONER

JOE ELTON NIXON

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

CAPITAL CASE

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

THEODORE B. OLSON

Solicitor General

Counsel of Record

CHRISTOPHER A. WRAY

Assistant Attorney General

MICKAEL R. DREEBEN

Deputy Solicitor General

SRIESEINIVASAN

Assistant to the Solicitor

General

Department of Justice

Washington, D.C. 20580-0001

(202) J14-2 2217

—

QUESTION PRESENTED

Whether counsel’s strategy of conceding guilt, in the face

of overwhelming evidence, during respondent’s capital trial

in order to maintain credibility when arguing for leniency in

the sentencing phase constituted ineffective assistance per

se, where counsel discussed the strategy with respondent

and respondent neither indicated any objection nor gave

explicit consent.

(I)

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument

Argument:

Acknowledging a capital defendant’s guilt in order

to maintain credibility at sentencing is not per se

ineffective assistance of counsel where counsel dis-

cusses the strategy with the defendant and the de-

fendant raises no objection n

A. A capital defendant’s counsel can reasonably

pursue a strategy of conceding guilt in order to

maintain credibility at sentencing

B. An otherwise sound strategy of acknowledging

guilt to enhance arguments for a non-capital

sentence is not deficient performance as a matter

of law when pursued without explicit client

consent

1. Counsel does not perform deficiently as a

matter of law by pursuing a strategy of con-

ceding guilt after discussing the strategy with

the defendant and hearing no objection ..............

2. This Court should adhere to the contextual

inquiry mandated by Strickland rather than

adopt a blanket requirement of explicit

consent

3. A concession of quilt by counsel is not the

equivalent of a of guilty

C. Counsel's acknowledgment of guilt without the

defendant’s explicit consent does not result in

prejudice per se

Conclusion

am

11

11

16

16

18

IV

TABLE OF AUTHORITIES

Cases: Page

Anderson v. Calderon, 232 F.3d 1053 (9th Cir. 2000),

cert. denied, 534 U.S. 1036 (2001) 12

Atwater v. State, 788 So. 2d 223 (Fla. 2001) 20

Bell v. Cone, 535 U.S. 685 (2002) 24

Bell v. Evatt, 72 F.3d 421 (4th Cir. 1995), »ert. denied,

518 U.S. 1009 (1996) 12, 22

Boykin v. Alabama, 395 U.S. 238 (1969) 21

Brookhart v. Janis, 384 U.S. 1 (1966) 21

Faretta v. California, 422U.S. 806 (1975) 17

Government of the Virgin Islands v. Weatherwaz,

77 F.3d 1425 (3d Cir.), cert. denied, 519 U.S. 1020

(1996) 17

Haynes v. Cain, 298 F.3d 375 (5th Cir.), cert. denied,

537 U.S. 1072 (2002) 12, 18, 27

Hill v. Lockhart, 474 U.S. 52 (1985) 26

Jones v. Barnes, 463 U.S. 745 (1983) 16, 17, 21-22

Lingar v. Bowersox, 176 F.3d 453 (8th Cir. 1999), cert.

denied, 529 U.S. 1039 (20000 12, 14, 15, 19

Lockhart v. McCree, 476 U.S. 162 (1986) 14

McNeal v. Wainwright, 722 F 2d 674 (11th Cir.

1984) 20

Monge v. California, 524 U.S. 721 (1998) 25

New York v. Hill, 528 U.S. 110 (1999) 16, 17

Nixon v. State, 572 So. 2d 1336 (Fla), cert. denied,

502 U.S. 854 (1991) 2, 4, 6, 22

Parker v. Head, 244 F 3d 831 (11th Cir.), cert. denied,

534 U.S. 1046 (2001) a

Roe v. Flore’-Ortega, 528 U.S. 470 (2000) .............. 19, 22, 24, 26

Smith v. Robbins, 528 U.S. 259 (2000) 22, 26

Strickland v. Washington, 466 U.S. 668 (1984) . 7, 8,

11, 16, 17, 18, 19, 21, 23

Underwood v. Clark, 939 F 2d 473 (7th Cir. 1991) . 12, 22

22 —

Cases Continued: Page

United States v. Cronic, 466 U.S. 648 (1984) 7, 10,

11-12, 23, 24, 25

United States v. Gomes, 177 F.3d 76 (Ist Cir.),

cert. denied, 528 U.S. 911 and 941 (1999) . 12, 18, 22

United States v. Holman, 314 F 3d 837 (7th Cir.

2002), cert. denied, 538 U.S. 1058 (2003) . 12, 18, 27

United States v. Ruiz, 536 U.S. 622 (2002) 21

United States v. Tabares, 951 F. 2d 405 (Ist Cir.

1991) 12

Wainwright v. Sykes, 433 U.S. 72 (1977) 17

Wiggins v. Smith, 123 S. Ct. 2527 (2003) 16, 19

Yarborough v. Gentry, 124 S. Ct. 1 2003) . II, 12, 17

Miscellaneous:

American Bar Ass’n:

ABA Guidelines for the Appointment and Perfor-

mance of Defense Counsel in Death Penalty

Cases (Feb. 2008) (reprinted in 31 Hofstra L. Rev.

913 (2003)) 13-14, 15, 19, 20, 22

ABA Model Rules of Professional Conduct (204)... 17, 19

ABA Standards for Criminal Justice Prosecution

Function and Defense Function (3d ed. 1993) ........... 16-17

Gary Goodpaster, The Trial for Life: Effective Assis-

tance of Counsel in Death Penalty Cases, 58 N.Y.U.

L. Rev. 299 (1983) 13, 14, 15, 23

Andrea D. Lyons, Defending the Death Penalty

Case: What Makes Death Different? 42 Mercer

L. Rev. 695 (1991) 14

Victor L. Streib, Would You Lie to Save Your Clients

Life? Ethics and Effectiveness in Defending Against

Death, 42 Brandeis L.J. 405 (2004) 13, 14

Scott E. Sundby, The Capital Jury and Absolution:

The Intersection of Trial Strategy, Remorse, and

the Death Penalty, 83 Cornell L. Rev. 1557 (1998) ..... 14-15,

Welsh S. White, Effective Assistance of Counsel in

1998 U. Ill. L. Rev. 323 (1998)

* 4

*

3

In the Supreme Court of the United States

No. 03-931

STATE OF FLORIDA, PETITIONER

V.

JOE ELTON NIXON

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether trial counsel’s

strategy of conceding guilt, in the face of overwhelming evi-

dence, during respondent’s capital trial in order to maintain

credibility when arguing for leniency in the sentencing phase

constituted ineffective assistance per se, where counsel dis-

cussed the strategy with respondent and respondent neither

indicated any objection nor gave explicit consent. The

United States has a substantial interest in the Court’s reso-

lution of that question because claims of ineffective assis-

tance of counsel ure frequently asserted on collateral review

of federal criminal judgments.

STATEMENT

1. On August 14, 1984, police officers in Tallahassee,

Florida, arrested respondent for the murder of Jeanne

Bickner. Bickner’s body had been discovered in a wooded

area the previous day, tied to a tree and badly charred from

(1)

burns. Her car, an orange M.G., was found in a drainage

ditch and had been burned throughout. Nixon v. State, 572

So. 2d 1336, 1337-1338 (Fla.), cert. denied, 502 U.S. 854

(1991).

After his arrest, respondent gave a detailed, taped confes-

sion. He explained that he approached Bickner at a shopping

mall and told her he was having trouble with his uncle’s car.

Bickner agreed to take respondent to his uncle’s home.

When they were on the road, respondent struck Bickner in

the face. After stopping the car, respondent put Bickner

into the trunk and drove to a wooded area, where he re-

moved her from the car and tied her to a tree with jumper

cables. Bickner offered to give respondent money and

begged him not to kill her. After the two discussed their

lives, respondent set fire to Bickner’s personal belongings

and burned the car’s convertible top. He later placed a bag

over Bickner’s head, set her on fire, and drove away in her

car. Bickner burned to death. Nixon, 572 So. 2d at 1338.

The evidence at trial included respondent’s taped confes-

sion, as well as testimony by both respondent’s girlfriend

and his brother that respondent had confessed to the crime.

They explained that respondent had admitted killing a wo-

man by burning her after tying her with jumper cables, had

shown them two of the victim’s rings, had told them later

that he pawned the rings, and had said that he was going to

burn the victim’s orange M.G. The State also demonstrated

that respondent’s palm print was on Bickner’s car, and

introduced a pawn shop receipt signed by respondent for two

of Bickner’s rings. In addition, witnesses testified that they

saw a man later identified as respondent on the afternoon of

the murder driving an orange M.G. near the site where

Bickner’s body was found. Nixon, 572 So. 2d at 1338.

3

2. Respondent wan charged with first-degree murder,

kidnapping, robbery, and arson, and the State sought a capi-

tal sentence. Respondent’s trial counsel, Michael Corin,

broached with the State the possibility of a guilty plea in

exchange for a life sentence. The State refused because of

the overwhelming evidence of guilt and the severity of the

crime. J.A. 336-339.' Corin perceived no benefit in respon-

dent’s pleading guilty without a life sentence in exchange.

Corin believed, however, that because of the strength of the

evidence against respondent, efforts to contest his guilt

would impair the credibility of arguments for a non-capital

sentence in the sentencing phase of respondent’s trial. Corin

therefore pursued a strategy of acknowledging respondent’s

guilt in order to maintain credibility with the jury when

arguing at sentencing that respondent’s life should be

spared. J.A. 254, 261, 457-459, 471-472, 505.

a. In his opening statement in the guilt phase, Corin told

the jury that “there will be no question that Jeannie Bickner

died a horrible, horrible death” and “that horrible tragedy

will be proved to your satisfaction beyond any reasonable

doubt.” Pet. App. 4a. He also stated that there won't be

any question, none, whatsoever, that my client, Joe Elton

Nixon, caused Jeannie Bickner’s death. Likewise that fact

will be proved to your satisfaction beyond any reasonable

doubt.” Ibid. Corin explained that It his case is about the

death of Joe Elton Nixon and whether it should occur within

the next few years by electrocution or maybe its natural

expiration after a lifetime of confinement.” Ibid.

! The prosecutor testified in postconviction proceedings that Corin

indicated in the plea discussions that respondent had told Corin that

respondent would plead guilty in exchange for a life sentence, J.A. 339, but

Corin could not specifically recall whether he had discussed the issue with

respondent, J. A. 498.

Corin repeated the same theme in his closing argument,

stating to the jury, “I wish I could stand before you and

argue that what happened wasn’t caused by Mr. Nixon, but

we all know better.” Pet. App. 5a. Corin said that the trial

judge would “give you some verdict forms that have been

prepared,” and that “I think that what you will decide is that

the State has proved its case.” Ibid. He explained

that, “there will by [your] decision be caused a second part of

this trial,” and that, “I will hope to be able to argue to you

and give you reasons not that [respondent] be spared one

final and terminal confinement forever, but that he not be

sentenced to die.” J.A. 73-74. The jury found respondent

guilty on all counts.”

b. In the sentencing phase, Corin attempted to show that

respondent had long suffered from severe mental and emo-

tional problems, including at the time of the murder. Corin

introduced a number of exhibits and presented the testi-

mony of eight witnesses, including respondent’s family and

friends as well as two mental health experts.

One of the experts, a psychiatrist, testified that “reports

from way back showed that there is something about [re-

spondent] that nobody could quite understand, and they felt

that there must be something neurologically wrong or some-

2 Respondent refused to attend most of the trial proceedings, in-

cluding on the days of Corin’s opening and closing arguments. Pet. App.

41a n.3; Nixon, 572 So. 2d at 1341-1342. Respondent first declined to be

present early in the trial during consideration of pretrial motions; and on a

later day, at the time of jury selection, respondent disrobed to his under-

wear and again refused to enter the courtroom. The trial judge conducted

a hearing in respondent’s cell, in which respondent threatened to disrupt

the proceedings if forced to go to the courtroom and repeatedly reiterated

his refusal to attend the proceedings. The judge found that respondent

had waived his right to be present in the courtroom, and that forcing him

to attend the proceedings would prejudice him before the jury. The trial

judge at various points in the trial revisited the issue, but respondent

declined to be present for most of the trial. Ibid.

thing wrong.” J.A. 143. He believed that respondent, while

not suffering from “gross psychosis,” has “brief psychotic

episodes,” J.A. 144, and that respondent was suffering from

impaired capacity at the time of the murder, J.A. 146-147.

The other expert, a psychologist, testified that respondent

had “borderline” intelligence and suffered from brain dam-

age, J.A. 160-161, and that his condition was “[nJot normal in

several senses,” J.A. 163. He stated that respondent “does

better in structured situations,” J.A. 171, and believed that

death would not be an appropriate sentence because respon-

dent was not “an intact human being,” J. A. 174.°

In closing arguments, after reviewing the evidence of

respondent’s mental and emotional problems, J.A. 196-209,

Corin argued that respondent should be spared a sentence of

death because he has “never been” and “never will be” an

“intact human being,” J.A. 209. He ended by stating, it's

rare when we have the opportunity to give or take life. And

you have that opportunity to give life. And I’m going to ask

you to do that.” Ibid.

The jury recommenced that respondent be sentenced to

death, J.A. 210, and the trial court imposed a capital sen-

tence. At the close of the proceedings, the trial judge ob-

served that Joe facet of the case that doubtless will come

3 When asked to give his opinion concerning respondent’s competency,

the psychiatrist testified that “the law says he’s competent and capable of

standing trial” but he's not the most competent individual in the world

as far as making decisions is concerned.” J.A. 147. Corin had also repre-

sented respondent in an unrelated trial five months beforehand and had

raised the issue of respondent’s competency at that time. Pet. App. 55a-

56a. Respondent then was deemed competent to stand trial. In this case,

respondent sought relief in the state post-conviction proceedings on the

ground that he had been incompetent at the time of trial. Id. at 39a n. I.

Because the Florida Supreme Court granted relief on respondent’s claim

of ineffective assistance, the court has not ruled on his competency claim.

See id. at 55a-57a.

under examination is the tactics, strategy, [and] analysis

employed by defense counsel.” Pet. App. 59a. The judge

expressed his “view that the tactic employed by trial counsel

in this case was an excellent analysis of [the] reality of his

case.” Jd. at 60a. According to the judge, the evidence of

guilt “would have persuaded any jury * * * beyond all

doubt,” and “[flor trial counsel to have inferred that [respon-

dent] was not guilty of these offenses would have deprived

him of any credibility during the penalty phase.” Ibid.

3. On appeal, respondent, represented by different coun-

sel, argued that his trial counsel had rendered ineffective as-

sistance by conceding his guilt without obtaining his

approval. The Florida Supreme Court remanded for an evi-

dentiary hearing on that claim. Nixon, 572 So. 2d at 1338-

1339.

The scope of questioning of Corin on remand was limited

because respondent refused to waive his attorney-client

privilege. Nixon, 572 So. 2d at 1339. Corin did testify,

however, that he had advised respondent several times that

his objective was to save respondent’s life and that, if the

State were to reject the plea offer, his strategy was to forgo

contesting respondent’s guilt. J.A. 235-237, 253-255, 260-261.

Corin also explained that respondent, when advised of the

strategy, raised no objection. J.A. 238, 255-256. The trial

court found that “Corin reviewed with [respondent] the

defense approach” including “the probability that he would

concede” guilt, that respondent “did not protest the strat-

egy,” and that respondent had failed to demonstrate that he

had not “consent[ed] thereto” or “acquiesce[d] therein.”

Nixon, 572 So. 2d at 1340 n.3. The Florida Supreme Court

ultimately declined to resolve the claim because of the

limited state of the record. Jd. at 1340.

4. a. Respondent renewed his ineffective assistance claim

in state post-conviction proceedings. The trial court denied

relief, ruling that respondent could not demonstrate preju-

eo —

7

dice under Strickland v. Washington, 466 U.S. 668 (1984).

Pet. App. 21a.

b. A divided Florida Supreme Court remanded for an

evidentiary hearing. Pet. App. 37a-70a. While acknowledg-

ing that “counsel’s strategy may have been in [respondent’s]

best interest,” id. at 49a, the court held that it would “find

counsel to be ineffective per se” if respondent could “estab-

lish that he did not consent to counsel’s strategy,” id. at 45a-

46a. The court believed that counsel’s statements in the

guilt phase “were the functional equivalent of a guilty plea,”

and that respondent thus should prevail if “there was not an

affirmative, explicit acceptance by [respondent] of counsel’s

strategy.” Id. at 49a. The court determined that respondent

need not demonstrate prejudice under Strickland, supra,

because, in the court’s view, counsel’s strategy amounted to

a complete failure of adversarial testing and thus triggered

a per se presumption of prejudice under United States v.

Cronic, 466 U.S. 648 (1984). Pet. App. 44a-46a. If respon-

dent had not explicitly consented to counsel’s strategy, the

court held, counsel was required instead to follow a strategy

of “hold{ing] the State to its burden of proof by clearly

articulating to the jury or fact-finder that the State must

establish each element” by “proof beyond a reasonable

doubt.” Id. at 49a-50a.

e. Respondent did not testify in the hearing on remand.

He was required to waive the attorney-client vrivilege, how-

ever, Pet. App. 49a, and Corin testified that, on more than

one occasion, he had advised respondent of his planned

strategy of not contesting respondent’s guilt and focusing on

saving respondent’s life in the sentencing phase. J.A. 458,

472-473, 480. Corin stated that he would not have pursued

that strategy if respondent had raised an objection, but that

respondent gave no such indication. J.A. 472, 478. On the

8

occasions that Corin discussed the trial strategy with

respondent, respondent “did nothing.” J. A. 486-488, 501.“

The trial court ruled that, while respondent “did not pro-

vide counsel with an affirmative, explicit consent in words,”

he “did consent to the trial strategy.” Pet. App. 34a. The

court explained that the “consent occurred as a part of his

natural pattern of communication with Mr. Corin, wherein

Mr. Corin would discuss these matters with [respondent]

and [respondent] would refuse to respond.” Ibid.

d. A divided Florida Supreme Court reversed and re-

manded for a new trial. Pet. App. 2a-36a. The court con-

cluded that the evidence demonstrated, “at most,” “silent

acquiescence” rather than the “affirmative and explicit con-

sent” required by its previous decision. Id. at 8a-9a. The

court reiterated that, without explicit consent, counsel was

required to pursue a strategy emphasizing the State’s bur-

den of proof. Id. at ga.

SUMMARY OF ARGUMENT

To prevail on a claim of ineffective assistance of counsel,

the defendant must show that counsel’s performance was

unreasonable and that the deficient performance rendered

the result of the trial unreliable. Strickland v. Washington,

466 U.S. 668 (1984). The Florida Supreme Court erred both

in holding that counsel’s performance was unreasonable as a

matter of law and in holding that the allegedly deficient

performance was prejudicial per se.

‘ Corin stated that he met with respondent after opening statements,

and respondent, who had read about the opening statements in the

newspaper, indicated displeasure. J.A. 459-460. Corin also testified that

he had discussed the trial strategy with respondent before the trial began

and respondent had indicated no objection at that time, J.A. 482-483, and

that, by the time of opening statements, the decision had been made to

proceed with the strategy of conceding respondent’s guilt, J.A. 487-488.

9

A. A well-recognized goal of defense representation in

capital cases is for counsel to avoid compromising the case

for leniency in the sentencing phase by presenting a futile

guilt-phase challenge in the face of overwhelming evidence.

In the circumstances of a particular case, counsel therefore

can reasonably conclude that the best strategy for avoiding a

capital sentence is to acknowledge the defendant’s guilt and

thereby maintain credibility with the jury in the sentencing

phase.

B. The Florida Supreme Court adopted a blanket rule

that, before pursuing such a strategy, counsel must obtain

the defendant’s explicit and affirmative consent. A strict

rule of explicit consent is inconsistent with the fact-specific

inquiry mandated by Strickland. In this case, respondent

refused to attend much of the trial, offered little assistance

to counsel in conducting the defense, and gave no reaction

when counsel discussed with him the strategy of acknowl-

edging guilt. In those circumstances, it was reasonable for

counsel to proceed in accordance with his considered judg-

ment that the best way to avert a capital sentence involved

conceding respondent’s guilt. That sort of tactical judgment

is consistent with counsel’s traditional role in conducting the

trial. While counsel is obligated to consult with the defen-

dant on important decisions, such as the strategy employed

here, counsel met that obligation in this case.

The Florida Supreme Court erred in concluding that a

strategy of acknowledging guilt is the functional equivalent

of entering a plea of guilty. Unlike a guilty plea, which is

sufficient in itself to convict the defendant, a strategy of

acknowledging guilt does not waive the defendant’s rights to

a jury trial or to a determination of guilt by proof beyond a

reasonable doubt. Notwithstanding an acknowledgment of

guilt, counsel can seek to exclude evidence introduced by the

prosecution, and can challenge a conviction on appeal or on

collateral review on the ground that the trial was infected by

10

error. Moreover, in a capital case, if the defendant goes to

trial rather than pleads guilty, the prosecution will be

required to present much of its evidence at the guilt phase,

thereby allowing the sentencing phase to focus centrally on

the reasons for sparing the defendant. Thus, a strategy of

conceding guilt should not be subjected to a formal and rigid

requirement of express client consent on the theory that it is

akin to a guilty plea, but instead should be assessed under

Strickland’s general test of measuring the reasonableness of

attorney performance in light of all the circumstances.

C. Even if it were thought that counsel performs defi-

ciently as a matter of law by pursuing a strategy of ac-

knowledging guilt without the defendant’s explicit consent,

that asserted error is not prejudicial per se. Counsel’s

failure to obtain explicit consent could cause prejudice only if

the defendant would have withheld consent. Given the

overwhelming evidence in this case and the pattern of

counsel’s interactions with respondent, there is no indication

that respondent would have withheld his consent to a

strategy of forgoing a guilt phase challenge in the interest of

maximizing his chances to avoid a capital sentence.

Even if respondent would have withheld consent, the

Florida Supreme Court erred in concluding that counsel’s

strategy represented a complete failure of adversarial

testing and thus was prejudicial per se under United States

v. Cronic, 466 U.S. 648 (1984). Far from a complete failure to

test the prosecution’s case, counsel made a considered judg-

ment that acknowledging guilt presented the best way to

overcome the prosecution’s case for a capital sentence.

Cronic’s per se presumption applies to situations in which

prejudice is so likely that a case-by-case inquiry into preju-

dice is unwarranted. There is no basis for applying a blanket

presumption of prejudice when counsel has made a reasoned

determination that the evidence against the defendant is so

11

overwhelming that any effort to contest it would sacrifice his

_ credibility and undermine efforts to save his client's life.

ARGUMENT

ACKNOWLEDGING A CAPITAL DEFENDANT’S

GUILT IN ORDER TO MAINTAIN CREDIBILITY AT

SENTENCING IS NOT PER SE INEFFECTIVE ASSIS-

TANCE OF COUNSEL WHERE COUNSEL DIS-

CUSSES THE STRATEGY WITH THE DEFENDANT .

AND THE DEFENDANT RAISES NO OBJECTION

In view of the strength of the evidence against respon-

dent, trial counsel made a reasonable judgment not to con-

test respondent’s guilt in an effort to bolster the credibility

of the case for leniency in the sentencing phase. Counsel did

not render ineffective assistance per se by pursuing that

strategy after he discussed it with respondent and respon-

dent indicated no objection, notwithstanding that respon-

dent had not given an affirmative and explicit consent.

A. A Capital Defendant's Counsel Can Reasonably Pursue

A Strategy Of Conceding Guilt In Order To Maintain

Credibility At Sentencing

1.- “The Sixth Amendment guarantees criminal defen-

dants the effective assistance of counsel. That right is

denied when a defense attorney’s performance falls below an

objective standard of reasonableness and thereby prejudices

the defense.” Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003)

(per curiam); Strickland v. Washington, 466 U.S. 668 (1984).

Counsel, however, enjoys “wide latitude * * * in making

tactical decisions,” and “strategic choices made” among

“plausible options are virtually unchallengeable.” Id. at 689-

690. Contesting guilt may not be a “plausible option[],” id. at

690, when the evidence is overwhelming, and “the Sixth

Amendment does not require that counsel do what is

impossible * . If there is no bona fide defense to the

12

charge, counsel cannot create one and may disserve the

interests of his client by attempting a useless charade.”

United States v. Cronic, 466 U.S. 648, 656-657 n.19 (1984).

Accordingly, counsel confronted with overwhelming evi-

dence of guilt on a charge can reasonably adopt a strategy of

acknowledging the defendant’s guilt in an effort to avoid

undermining the credibility of arguments on other charges

or on sentencing issues. See Gentry, 124 S. Ct. at 6 (“By

candidly acknowledging his client’s shortcomings, counsel

might * * buil{d] credibility with the jury and persuade[]

it to focus on the relevant issues in the case.”). As a number

of courts have held, when counsel concedes a defendant’s

guilt as a “tactical decision, designed to lead the jury to-

wards leniency on the other charges and to provide a basis

for a later argument * * * for a lighter sentence,” such a

“tactical retreat[]” is “deemed to be effective assistance.”

United States v. Tabares, 951 F.2d 405, 409 (Ist Cir. 1991)

(Breyer, J.) (citation and internal quotation marks omitted);

accord United States v. Holman, 314 F.3d 837, 840 (7th Cir.

2002), cert. denied, 538 U.S. 1058 (2003); Haynes v. Cain, 298

F.3d 375, 380-382 (5th Cir.), cert. denied, 537 U.S. 1072

(2002); Parker v. Head, 244 F.3d 831, 840-841 (11th Cir.),

cert. denied, 534 U.S. 1046 (2001); United States v. Gomes,

177 F.3d 76, 83-84 (Ist Cir.), cert. denied, 528 U.S. 911 and

941 (1999); Lingar v. Bowersox, 176 F.3d 453, 459 (8th Cir.

1999), cert. denied, 529 U.S. 1039 (2000); Beil v. Evatt, 72

F.3d 421 (4th Cir. 1995), cert. denied, 518 U.S. 1009 (1996);

Underwood v. Clark, 939 F.2d 473 (7th Cir. 1991).

2. The same considerations apply in a capital trial when

counsel acknowledges guilt in order to enhance the case for

sparing the defendant’s life in the sentencing phase. See

Parker, 244 F.3d at 840; Lingar, 176 F.3d at 459; see also

Anderson v. Calderon, 232 F.3d 1053, 1087-1090 (9th Cir.

2000), cert. denied, 534 U.S. 1036 (2001); Bell, 72 F.3d at 427-

430. From defense counsel’s perspective, the gravity of the

13

potential sentence in a capital case heightens the need to

maintain strategic focus on the sentencing implications of

counsel’s actions: “Death is different because avoiding exe-

cution is, in many capital cases, the best and only realistic

result possible.” American Bar Ass’n, ABA Guidelines for

the Appointment and Performance of Defense Counsel in

Death Penalty Cases 10.9.1 emt. (Feb. 2003) (ABA Death

Penalty Guidelines) (internal quotation marks omitted)

(reprinted in 31 Hofstra L. Rev. 913, 1040 (2003)).

The evidence of guilt against a capital defendant often is

overwhelming. See, e.g., Victor L. Streib, Would You Lie to

Save Your Client’s Life? Ethics and Effectiveness in De-

fending Against Death, 42 Brandeis L.J. 405, 414 (2004);

Welsh S. White, Effective Assistance of Counsel in Capital

Cases: The Evolving Standard of Care, 1993 U. Ill. L. Rev.

323, 368 (1993); Gary Goodpaster, The Trial for Life:

Effective Assistance of Counsel in Death Penalty Cases, 58

N.Y.U. L. Rev. 299, 329, 331 (1983). That is in part because

prosecutors are more likely to seek a sentence of death if the

case for guilt is very strong. See White, supra, at 368 n.309.

Because the guilt phase evidence may be overwhelming, and

because prosecutors, once having decided to bring a capital

charge, may be disinclined to exchange a life sentence for a

guilty plea, see ABA Death Penalty Guidelines 10.9.1 emt.

(31 Hofstra L. Rev. at 1041), “attorneys familiar with capital

cases view the penalty trial as the probable focal point of the

capital case.” White, supra, at 325; see Goodpaster, supra,

at 331 ([Blecause of the strength of the evidence of guilt,

the penalty phase trial is the only real trial the defendant

will receive.”).

In light of that focus, a basic rule of representation in

capital cases is to avoid taking a position in the guilt phase

that could compromise arguments for leniency °.. the sen-

tencing phase. “Ideally, the theory of the trial must comple-

ment, support, and lay the groundwork for the theory of

14

mitigation. Consistency is crucial because * * * counsel

risks losing credibility by making an unconvincing argument

in the first phase that the defendant did not commit the

crime, then attempting to show in the penalty phase why the

client committed the crime.” ABA Death Penalty Guide-

lines 10.11 emt. (31 Hofstra L. Rev. at 1059) (internal quota-

tion marks and footnote omitted); see id. at 10.10.1 emt. (31

Hofstra L. Rev. at 1047-1048); Scott E. Sundby, The Capital

Jury and Absolution: The Intersection of Trial Strategy,

Remorse, and the Death Penalty, 83 Cornell L. Rev. 1557,

1558-1559 (1998); Streib, supra, at 409; White, supra, at 356-

358; Goodpaster, supra, at 329. In the words of one attorney,

Aiſt is not good to put on a ‘he didn’t do it’ defense and a

‘he is sorry he did it’ mitigation. This just does not work.

The jury will give the death penalty to the client and, in

essence, the attorney.” Andrea D. Lyon, Defending the

Death Penalty Case: What Makes Death Different?, 42

Mercer L. Rev. 695, 708 (1991); see Lingar, 176 F.3d at 459.

In some situations—such as if the evidence of guilt is

largely circumstantial or if the defendant acted with others

and his individual level of participation in the murder is

unclear—counsel might contest the defendant’s guilt and

pursue a “residual doubt” strategy at sentencing. See Sund-

by, supra, at 1597-1598; Lyon, supra, at 710-711. See also

Lockhart v. McCree, 476 U.S. 162, 181 (1986). But when, as

in this case, there is overwhelming evidence that a particular

person is responsible for a capital murder. contesting the

defendant’s guilt “could so prejudice the sentencer that no

persuasive case for a life sentence can be made at the

sentencing phase.” Goodpaster, supra, at 329; White, supra,

at 357. Accordingly, one study showed that capital juries

were especially likely to view mitigation evidence favorably

“in cases in which the defendant acknowledged from the

outset of the trial that he had done the killing.” Sundby,

supra, at 1591-1592; see id. at 1595 (“Depending on the

15

nature of the evidence, the most effective defense at the

guilt-innocence phase might be as simple as * * * expressly

establishling] a theme of accepting responsibility.”).

The Florida Supreme Court held in this case, because of

the absence of explicit client consent, that rather than ac-

knowledging respondent’s responsibility for Bickner’s mur-

der, trial counsel was required to pursue a strategy of

“clearly articulating to the jury * * * that the State must

establish each element of the crime charged” by “proof

beyond a reasonable doubt.” Pet. App. 49a-50a; see id. at 9a.

But a “run-of-the-mill strategy of challenging the prosecu-

tion’s case for failing to prove guilt beyond a reasonable

doubt” can have dire implications for the sentencing phase.

Sundby, supra, at 1597; see ABA Death Penalty Guidelines

10.10.1 emt. (31 Hofstra L. Rev. at 1047); White, supra, at

357; Goodpaster, supra, at 329. In short, a “capital case

clearly is one situation in which blindly relying on the

presumption of innocence and putting the prosecution’s

evidence ‘to the test’ may prove to be fatal.” Sundby, supra,

at 1598.

5 See Lingar, 176 F.3d at 459 (By conceding guilt of second-degree

murder, “counsel could retain some credibility and gain an advantage by

winning the jury’s trust. Even if the jury convicted Lingar of first-degree

murder, the jury might then be more sympathetic to defense witnesses

testifying in the penalty phase that Lingar deserved mercy. Given the

overwhelming evidence, Lingar could not credibly deny involvement in

Allen’s killing, and denying all involvement could inflame the jury and

incite it to render a death sentence.”) (citations omitted).

16

B. An Otherwise Sound Strategy Of Acknowledging Guilt

To Enhance Arguments For A Non-Capital Sentence Is

Not Deficient Performance As A Matter Of Law When

Pursued Without Explicit Client Consent

“In any case presenting an ineffectiveness claim, the

performance inquiry must be whether counsel’s assistance

was reasonable considering all the circumstances.” Strick-

land, 466 U.S. at 688. The inquiry is “highly deferential,” id.

at 689, particularly with respect to informed tactical judg-

ments, which are “virtually unchallengeable,” id. at 690.

Given the ample evidence of respondent’s guilt, trial counsel

reasonably vlected not to contest respondent’s guilt in an

effort to maintain credibility in the sentencing proceedings

that he presumed would follow.

The Florida Supreme Court did not question the sound-

ness of counsel’s strategy, recognizing that it “may have

been in [respondent’s] best interest.” Pet. App. 49a. Nor did

the court suggest that counsel chose that strategy on the

basis of an inadequate investigation. See Wiggins v. Smith,

123 S. Ct. 2527 (2003); Strickland, 466 U.S. at 690-691. The

court instead held that counsel performed deficiently at a

matter of law by pursuing that strategy without respon-

dent’s explicit and affirmative consent. Pet. App. 8a-9a, 46a-

49a. That was error.

1. Counsel does not perform deficiently as a matter

of law by pursuing a strategy of conceding guilt

after discussing the strategy with the defendant

and hearing no objection

While a criminal defendant has authority over certain

“fundamental decisions regarding the case, as to whether to

plead guilty, waive a jury, testify in his or her own behalf, or

take an appeal,” Jones v. Barnes, 463 U.S. 745, 751 (1983),

counsel bears principal responsibility for the conduct of the

defense. See id. at 753 n.6; New York v. Hill, 528 U.S. 110,

114-115 (1999); ABA Standards for Criminal Justice Prose-

17

cution Function and Defense Function 4-5.2 (3d ed. 1993)

(ABA Standards). Of particular salience, counsel has re-

sponsibility for determining “what arguments to pursue,”

Hill, 528 U.S. at 115 (citing Jones, 463 U.S. at 751), and

“what defenses to develop,” Wainwright v. Sykes, 433 U.S.

72, 93 & n.1 (1977) (Burger, C.J., concurring). In this case,

counsel’s strategy of acknowledging respondent’s guilt in

order to strengthen the case for leniency at sentencing was a

judgment about what “arguments” and “defenses” to pursue.

Cf. Gentry, 124 S. Ct. at 6 (“While confessing a client’s

shortcomings might remind the jury of facts they otherwise

would have forgotten, it might also convince them to put

aside facts they would have remembered in any event. This

is precisely the sort of calculated risk that lies at the heart of

an advocate’s discretion.”).

Although counsel bears principal responsibility for tactical

judgments about the conduct of the defense, counsel also

must “consult with the defendant on important decisions.”

Strickland, 466 U.S. at 688; see Government of the Virgin

Islands v. Weatherwax, 77 F.3d 1425, 1436 (3d Cir.), cert.

denied, 519 U.S. 1020 (1996); ABA Model Rules of Profes-

sional Conduct 1.4(b) (2004) (ABA Model Rules); ABA

Standards 4-3.8(b), 4-5.2(b). The obligation of consultation

serves several purposes. It gives the defendant an opportu-

nity to provide information uniquely in his possession in

support of his defense, it ensures counsel’s awareness of the

defendant’s views, and it also generally promotes an effec-

tive attorney-client relationship. Weatherwaæ, 77 F.3d at

1436. Moreover, if the defendant disagrees with counsel’s

judgments end considers the matter to be sufficiently impor-

tant, he might seek leave to obtain different representation

or perhaps to represent himself. Jd. at 1536-1537; see

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

Counsel’s strategy in this case to acknowledge respon-

dent’s guilt in the guilt phase was an “important decision[]”

18

about which he was required to consult with respondent.

Strickland, 466 U.S. at 688; see Holman, 314 F.3d at 840.

Counsel satisfied that obligation by discussing alternate

defenses and strategies with respondent, J.A. 260-261, 476-

477, 501-502, and by advising respondent on several occa-

sions that his objective was to save respondent’s life through

a strategy of conceding respondent’s guilt to maintain

credibility at sentencing, J.A. 254-255, 261, 458, 472-473, 480.

Respondent “was given the opportunity to express his dis-

pleasure,” J.A. 238, but “did nothing” in response, J.A. 486-

488, 501, neither giving any indication that he objected to the

strategy nor explicitly embracing it. Counsel could reason-

ably infer in those circumstances that respondent tacitly

acquiesced in the strategy, and it was not unreasonable for

counsel to proceed in accordance with his considered judg-

ment concerning how best to serve respondent's interests.“

2. This Court should adhere to the contextual in-

quiry mandated by Strickland rather than adopt

a blanket requirement of explicit consent

The Florida Supreme Court adopted a per se rule barring

trial counsel’s strategy of acknowledging guilt in the absence

of the defendant’s explicit consent. That approach draws a

hard-and-fast distinction between “silent acquiescence” and

“affirmative and explicit consent,” Pet. App. 8a-9a, regard-

less of the nature of counsel’s interactions with the defen-

® Because respondent did not give any indication that he objected to

counsel's announced strategic plan to concede guilt in order to preserve

credibility at sentencing, and because counsel would not have pursued that

strategy if respondent had objected, J.A. 472, 478, this case does not raise

the question whether counsel performs unreasonably as a matter of law by

pursuing a strategy of acknowledging the defendant’s guilt in the face of a

specific objection by the defendant. Several courts have noted that pursu-

ing a concession-of-guilt strategy in the face of client objection may raise

different issues. See Haynes, 298 F.3d at 382 (noting the issue but

declining to resolve it); Gomes, 177 F.3d at 84 (same).

19

dant or of the merits of counsel’s strategy in a particular

case.

This Court has rejected such mechanical, “per se rule[s] as

inconsistent with Strickland’s * * * circumstance-specific

reasonableness inquiry.” Roe v. Flores-Ortega, 528 U.S. 470,

478 (2000); see id. at 479-481; Wiggins, 123 S. Ct. at 2535.

Rigid rules for judging counsel’s conduct fail to “take account

of the variety of circumstances faced by defense counsel” and

can detract “from the overriding mission of vigorous advo-

cacy of the defendant’s cause.” Strickland, 466 U.S. at 688-

689. Moreover, “(t]he reasonableness of counsel’s actions

may be determined or substantially influenced by the defen-

dant’s own statements or actions.” Jd. at 691. In this case,

while counsel desired respondent’s “input in how to proceed

in the trial,” J.A. 319, respondent refused to attend most of

the trial proceedings, gave minimal assistance and “little, if

any” direction to counsel, J.A. 478-479, and “did nothing af-

firmative or negative” when counsel discussed the trial

strategy with him, J.A. 483.

There is no warrant for applying an inflexible requirement

of explicit consent in those circumstances, particularly at the

cost of preventing counsel from pursuing what he reasonably

views to be the only viable strategy for averting a capital

sentence. The Florida Supreme Court’s approach runs con-

trary to the general recognition that a “lawyer may take

such action on behalf of the client as is impliedly authorized

to carry out the representation.” ABA Model Rules 1.2(a);

see Lingar, 176 F.3d at 458 (“not necessary that [defendant]

expressly consent to the concession” of guilt by counsel as

tactical measure). In capital cases, moreover, the client

often “may be unable or unwilling to provide information

necessary for the attorney to represent the client effec-

tively,” White, supra, at 338, and AImlany capital

20

defendants are, in addition, severely impaired in ways that

make effective communication difficult,” ABA Death Penalty

Guidelines 10.5 emt. (31 Hofstra L. Rev. at 1007). Those

facto:s weigh against unduly formalizing counsel-client in-

teractions by interjecting a requirement of explicit and

affirmative consent.’

The Florida Supreme Court’s strict rule of explicit con-

sent also does not give clear guidance to counsel. State-

ments by counsel alleged to amount to concessions of guilt

can come in a variety of forms, and it is unclear precisely

what set of words—and what degree of concession—might

trigger the requirement of explicit consent. See McNeal v.

Wainwright, 722 F.2d 674, 675 (11th Cir. 1984) (evidence

“perhaps” and “at most” establishes guilt of manslaughter).

The implications of counsel’s statements might vary not only

depending on the specific choice of words, but also depending

on when they occur in the course of the proceedings. See

Atwater v. State, 788 So. 2d 223, 231 (Fla. 2001) (distinguish-

ing opinion below on ground that counsel in this case made

statements in opening argument “before any evidence was

presented”).

Rather than establishing such “detailed guidelines for

representation” depending on what words are used and

The commentary to the ABA Death Penalty Guidelines cites the

Florida Supreme Court’s second opinion in this case (Pet. App. 37a-70a) in

observing that “[sjome decisions require the client’s knowledge and

agreement.” ABA Death Penalty Guidelines 10.5 emt. (31 Hofstra L.

Rev. at 1008 n.179); see id. at 1010.10.1 cmt. (31 Hofstra L. Rev. at 1047

n.255). But the commentary also explains that “the prevalence of mental

illness and impaired reasoning is so high in the capital defendant popula-

tion that it must be assumed that the client is emotionally and intellectu-

ally impaired.” Id. at 10.5 cmt. (31 Hofstra L. Rev. at 1007) ‘internal

quotation marks omitted). Particularly if that is so, it would be impracti-

cal and counterproductive to formalize the interactions between counsel

and client in the manner prescribed by the Florida Supreme Court.

21

when they are stated, Strickland, 466 U.S. at 689, the proper

course is to “judge the reasonableness of counsel’s chal-

lenged conduct on the facts of the particular case,” id. at 690.

Under that approach, trial counsel in this case did not per-

form unreasonably by pursuing a strategy of acknowledging

respondent’s guilt after he advised respondent of that

strategy and respondent indicated no objection or concerns.

3. A concession of guilt by counsel is not the

equivalent of a plea of guilty

The Florida Supreme Court grounded its strict require-

ment of explicit consent in its conclusion that counsel’s

statements acknowledging guilt were the equivalent of a

guilty plea. Pet. App. 9a, 47a-49a. That analogy is flawed.

As this Court has explained, a “plea of guilty is more than a

confession which admits that the accused did various acts; it

is itself a conviction; nothing remains but to give judgment

and determine punishment.” Boykin v. Alabama, 395 U.S.

238, 242 (1969); see id. at 242-243 n.4. A guilty plea thus

effects a waiver of several constitutional rights, including the

rights to a jury trial and to a determination of guilt by proof

beyond a reasonable doubt. See United States v. Ruiz, 536

U.S. 622, 628-629 (2002); Boykin, 395 U.S. at 242. For those

reasons, the decision whether to enter a guilty plea is a

personal choice that ultimately resides with the defendant.

See, e.g., Jones, 463 U.S. at 751; Brookhart v. Janis, 384 U.S.

1, 7 (1966).

Statements by counsel acknowledging the defendant’s

guilt, in contrast, do not effect a waiver of the right to a jury

trial or to proof of guilt beyond a reasonable doubt, let alone

supersede the need for a trial altogether. Notwithstanding

an acknowledgi dent of guilt by counsel, the prosecution still

must prove the defendant’s guilt through competent evi-

dence. Also, the defendant can seek to exclude evidence that

is particularly prejudicial and can challenge his conviction on

22

appeal or post-conviction proceedings based on alleged

errors in the trial. In this case, for instance, counsel objected

to the introduction of photographs of the victim on the basis

that they were unduly inflammatory, and respondent chal-

lenged his conviction on appeal on that ground. Nixon, 572

So. 2d at 1342-1343. A tactical concession of guilt by counsel

thus is not the equivalent of a guilty plea. See Gomes, 177

F.3d at 84 (“Counsel’s concession was not a guilty plea,

which involves conviction without proof, and is therefore

properly hedged with protections. Here, the government

had to provide a jury with admissible evidence of guilt and

did so in abundance.”); Bell, 72 F.3d at 430; Underwood, 939

F. Ad at 474.

Contrary to the Florida Supreme Court's suggestion (Pet.

App. 47a), moreover, counsel’s strategy was not inconsistent

with respondent’s plea of not guilty. If the prosecution

declines to exchange a non-capital sentence for a guilty plea,

a defendant can rationally decide that it would further his

interests to exercise his trial rights, see ABA Death Penalty

Guidelines 10.9.2 emt. (31 Hofstra L. Rev. at 1045), including

if the trial strategy entails conceding guilt. If the trial is

infected by error and the defendant obtains a mistrial or a

reversal, the prosecution may be more willing at that point

to bargain for a guilty plea rather than retry the case.

Additionally, if the defendant goes to trial instead of

pleading guilty and moving immediately to sentencing,

This Court has drawn a similar distinction between the decision

whether to appeal and decisions concerning the conduct of an appeal.

Compare Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (defendant has

ultimate authority to decide whether to take an appeal), with Smith v.

Robbins, 528 U.S. 259, 287 (2000) (counsel can decide tc forgo filing a brief

on appeal based on reasonable determination that there are no meritorious

grounds); and Jones, 463 U.S. at 751-752 (counsel has discretion to deter-

mine what issues to press on appeal and can focus “on one central issue” to

the exclusion of others).

23

Aolften, the prosecutor will introduce no additional evidence

at the penalty stage but simply will rely on aggravating

factors arguably established by the evidence presented at

the guilt stage.” White, supra, at 344. The impact of the

prosecution’s aggravation case thus may be diminished by

the time of the penalty phase, which will focus instead on the

reasons for sparing the defendant’s life. See Sundby, supra,

at 1595; Goodpaster, supra, at 331-332. In this case, for in-

stance, apart from incorporating by reference its guilt phase

presentation, J.A. 102-103, the State’s evidentiary case at

sentencing consisted solely of introducing copies of the

judgments of respondent’s prior convictions and conducting

a brief examination of one police officer, J.A. 103-106. As a

result, counsel’s strategy of acknowledging guilt was not

incompatible with the decision to go to trial.

C. Counsel’s Acknowledgment Of Guilt Without The

Defendant’s Explicit Consent Does Not Result In

Prejudice Per Se

Even if trial counsel rendered deficient performance as a

matter of law by pursuing his strategy without respondent’s

explicit consent, counsel’s performance was not prejudicial

per se. Cf. Strickland, 466 U.S. at 697 (explaining that

courts need not address performance before prejudice and

may dispose of claims on prejudice grounds when it is

“easier” to do so). The general rule for establishing preju-

dice requires a defendant to demonstrate “a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at

694. In certain narrow contexts, prejudice is presumed per

se, id. at 692, including “if counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing,” United

States v. Cronic, 466 U.S. 648, 659 (1984). The Florida Su-

preme Court erred in applying that exception in this case.

24

The Florida Supreme Court’s conclusion that trial counsel

performed deficiently was based, not on the merits of his

strategy of acknowledging respondent’s guilt, but on the

pursuit of that strategy without respondent’s explicit con-

sent. The initial question in assessing whether that pur-

ported error was prejudicial, therefore, is whether the

failure to obtain explicit consent triggers Cronic’s per se

presumption of prejudice. If the client would have granted

consent to a course of representation that the Florida Su-

preme Court acknowledged may have been in his best

interests, counsel’s failure to secure explicit consent could

not have been prejudicial. See Roe v. Flores-Ortega, 528

U.S. 470, 477, 484 (2000) (addressing counsel’s failure to file a

notice of appeal where (as here) “the defendant has not

clearly conveyed his wishes one way or the other,” and

holding that, if “the defendant cannot demonstrate that, but

for counsel’s deficient performance, he would have appealed,

counsel’s deficient performance has not deprived him of

anything”). In this case, if respondent were unable to

demonstrate that he would have withheld consent to proceed

with counsel’s strategy, “counsel’s deficient performance has

not deprived him of anything.” Jd. at 484. In view of the

overwhelming evidence of respondent’s guilt and the poten-

tial implications for the sentencing phase of mounting a futile

or frivolous guilt-phase defense, there is no reason to assume

that respondent would have withheld explicit consent.

More fundamentally, there is no warrant for concluding

that counsel’s concession of guilt in order to bolster argu-

ments against a capital sentence amounted to an “entire[]

faillure] to subject to the prosecution’s case to meaningful

adversarial testing.” Cronic, 466 U.S. at 659; see Bell v.

Cone, 535 U.S. 685, 696-697 (2002) (“When v2 spoke in

Cronic of the possibility of presuming prejudice based on an

attorney’s failure to test the prosecutor’s case, we indicated

that the attorney’s failure must be complete,” rather than a

25 Pe

“fail{ure] to do so at specific points.“). The penalty phase of a

capital trial “is in many respects a continuation of the trial on

guilt or innocence of capital murder,” Monge v. California,

524 U.S. 721, 732 (1998), and assessing the effect of repre-

sentation must take into account the unique focus of the case

on the possible imposition of the death sentence. A reasoned

strategic judgment by counsel to concede guilt in order to

bolster arguments against a capital sentence is the antithesis

of a complete failure to “subject the prosecution’s case to

meaningful adversarial testing.” Cronic, 466 U.S. at 659.

Far from an outright failure to test the prosecution’s case,

the strategy reflects a determination that the best way to

overcome the prosecution’s case for death is to acknowledge

guilt and thereby enhance the case for leniency at sen-

teneing.

The Florida Supreme Court erroneously focused on

whether counsel’s strategy entailed a failure of adversarial

testing in the guilt phase alone. See Pet. App. 44a. That

approach fails to appreciate that counsel aimed to pursue a

coherent and consistent strategy across both phases of the

trial: to avoid undermining arguments for leniency in the

penalty phase, counsel sought to refrain from contesting

respondent’s guilt in the guilt phase. See Sundby, supra, at

1588-1589 (II the defense does not approach a capital case,

even though it is bifurcated, as a unified presentation, it

greatly increases the risk that the guilt-phase presentation

will doom the case in mitigation during the penalty phase.”).

This Court has not suggested that reasoned, tactical judg-

ments of the sort at issue here could trigger Cronic’s per se

presumption of prejudice. The purpose of that presumption

is to address situations in which “the adversary process [is]

itself presumptively unreliable.” Cronic, 466 U.S. at 659.

There could be no basis for concluding that a conviction is

“presumptively unreliable” when the decision to acknowl-

edge guilt derives from a considered assessment by counsel

that the evidence against the defendant is overwhelming.

Insofar as counsel's assessment in that regard may be unrea-

sonable in a particular case, it likely would result in a finding

of prejudice under Strickland, but there is no warrant for

applying Cronic’s across- the- board presumption. See Smith

v. Robbins, 528 U.S. 259, 286-287 (2000) (concluding that

Cronic presumption of prejudice is inapplicable to claim that

counsel was ineffective in concluding that there were no

meritorious arguments to be raised on appeal, because there

is no reason to presume that counsel’s assessment was

erroneous).

Nor does this case present a situation in which a presump-

tion of prejudice applies because counsel’s deficient perform-

ance resulted in the denial of an “entire judicial proceeding.”

Flores-Ortega, 528 U.S. at 483. When counsel’s errors

“cause[] the defendant to forfeit a judicial proceeding to

which he was otherwise entitled,” id. at 485, there is no

requirement that the defendant establish that, had the

forfeited proceeding taken place, it would have produced a

result in his favor. See id. at 484 (defendant alleging

ineffective assistance based on counsel’s erroneous failure to

file a notice of appeal need not demonstrate that appeal

would have been successful); Hill v. Lockhart, 474 U.S. 52,

59 (1985) (defendant alleging ineffective assistance in con-

nection with advice concerning consequences of pleading

guilty need not demonstrate that he would have prevailed

had he gone to trial). That rule has no application here. A

strategy of conceding guilt in the guilt phase in order to

bolster arguments in the sentencing phase does not entail

the complete forfeiture of a judicial proceeding. Instead, it

reflects a tactical judgment concerning how best to conduct

the entire proceeding.

Because a per se presumption of prejudice does not apply

in this case, respondent must show a reasonable probability

that, but for counsel’s statements acknowledging his guilt,

— a oe

27

the result of his trial would have been different. See

Holman, 314 F.3d at 844-845 (applying Strickland and

finding no prejudice from counsel’s strategic acknowledg-

ment of guilt); Haynes, 298 F.3d at 380-382 (explaining that

Strickland rather than Cronic applies and finding no pre-

judice from counsel’s tactical concession of guilt). The

Florida Supreme Court did not engage that question. Con-

sequently, if this Court were to conclude that counsel’s

failure to secure explicit consent were deficient performance,

it should remand for a determination of prejudice.

CONCLUSION

The judgment of the Supreme Court of Florida should be

reversed.

Respectfully submitted.

MAY 2004