# Amicus Curiae Brief — Florida v. Nixon

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0730%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 175

## Text

EO U.S.
(©) MAY 12 2004

No. 03-931 OFFICE OF THE CLERK
IN THE
Supreme Court of the United States
THE STATE OF FLORIDA,
Petitioner,
vs.
JOE ELTON NIXON,

Respondent.

On Writ of Certiorari to the Supreme Court of Florida

BRIEF AMICUS CURIAE OF THE
CRIMINAL JUSTICE LEGAL FOUNDATION
IN SUPPORT OF PETITIONER ~—

KENT S. SCHEIDEGGER

CHARLES L. HOBSON
Counsel of Record

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345
Fax: (916) 446-1194
E-mail: cjlf@cjlf.org
Attorneys for Amicus Curiae
Criminal Justice Legal Foundation

QUESTIONS PRESENTED

1) In a capital case in which there is overwhelming
evidence of the defendant’s guilt, is counsel’s strategy to
concede guilt in the opening and closing statements in the guilt
phase trial ineffective assistance of counsel when the defendant
consents to this approach?

2) Can the defendant’s consent to counsel’s strategy be
implied rather than express?

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Nixon has the burden of proving that he did not consent to
counsel’s trial strategy in order to succeed under either

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A client’s consent to trial counsel’s strategy can be implied
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The trial court correctly found that Nixon consented to trial
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TABLE OF AUTHORITIES
Cases

Abshier v. State, 28 P. 3d 579

See Ge GA ED coccecctasececeeonees 19, 23
Arizona v. Fulminante, 499 U. S.279, 113 L. Ed. 2d 302,

SEE Gk Gee oc cbdcevccesccssaceeenaeas 12
Bell v. Cone, 535 U. S. 685, 152 L. Ed. 2d 914,

ER ern ree 10, 13
Bordenkircher v. Hayes, 434 U. S. 357, 54 L. Ed. 2d 604,

See Gk GSE cocc ccsucceccccseeenedecaess 20
Boykin v. Alabama, 395 U. S. 238, 23 L. Ed. 2d 274,

Sah Gs COED cocncntecésbcbocesaces 18, 19, 20
Brecht v. Abrahamson, 507 U. S. 619, 123 L. Ed. 2d 353,

SED a Gk CORED 6c ckecnécchacdocisesass 12, 13
Brookhart v. Janis, 384 U.S. 1, 16 L. Ed. 2d 314,

Sas Ge SD cn cacncocecseceuebscedecaee 18
Campbell v. United States, 365 U. S. 85, 5 L. Ed. 2d 428,

Se Oe Ge Gao Gee ocneeccccscceecessehecabouse 14
Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705,

By Oe GR, GPa cnc ccdedbcccevdetoseneedeces 12
Clark v. Community for Creative Non-Violence, 468 U. S.

288, 82 L. Ed. 2d 221, 104 S. Ct. 3065 (1984) ....... 14
Cuyler v. Sullivan, 446 U. S. 335, 64 L. Ed. 2d 333,

Sa ae GR, THEE ccctccccecccendececepecett 17
Espinoza v. Florida, 505 U. S. 1079, 120 L. Ed. 2d 854,

5S es Gk SEES 0 6 cccnccbcdedescceconeuess 24

Gerlaugh v. Stewart, 129 F. 3d 1027 (CA9 1997) ....... 23

Godinez v. Moran, 509 U. S. 389, 125 L. Ed. 2d 321,

Fa ae Gk ED Suv ccdcsdecinbadecteicaen 15
Harris v. Alabama, 513 U. S. 504, 130 L. Ed. 2d 1004,

7 8 ee 24
In re Tahl, 1 Cal. 3d 122, 81 Cal. Rptr. 577,

Ge GED Coccccoscdlnedosecesedseecs 20
Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461,

See Ge TEED cctcedbndhcdsdetebedese te 19
Jones v. Barnes, 463 U. S. 745, 77 L. Ed. 2d 987,

Se as Gk SEED cd cocovecksécadedeocdeacens 13
Kyles v. Whitley, 514 U. S. 419, 131 L. Ed. 2d 490,

SED Ee, GREED 0 ccoccedetcccbbstenbees 12, 13
Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

pes Ge HED 0 cbc cd vésceccdeccudestne 16, 17
Nixon v. Singletary, 758 So. 2d 618

CAE dabavesechconsucuce cut 5, 8, 10, 18, 19, 24
Nixon v. State, 572 So. 2d 1336 (Fla. 1990) ..... 2, 3, 4, 23
Nixon v. State, 857 So. 2d 172

DED cebubtodnes ocd beededeba 5, 6, 16, 19, 22, 23
North Carolina v. Butler, 441 U. S. 369, 60 L. Ed. 2d 286,

Be Ge BSE 6b vccccnseesnccotannvess 16, 17
Parke v. Raley, 506 U. S. 20, 121 L. Ed. 2d 391,

BEDE. Gh SEV ee dc Sc bocckccdébavioncs deuce 19
People v. Mayfield, 5 Cal. 4th 142, 19 Cal. Rptr. 2d 836,

Gee FA USNR EED cccncnccds ndotncédccscsdede 23
People v. Murphy, 8 Cal. 3d 349, 105 Cal. Rptr. 138,

503 P. 2d SOE avi ccccdeuseuedatunssécedin 20

Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158,

es Gk SED och cencantasceduaesicsscoecses 9
Ring v. Arizona, 536 U. S. 584, 153 L. Ed. 2d 556,

a Ch SD ovcsendesdcbesdesssadneees 24
Roe v. Flores-Ortega, 528 U. S. 470, 145 L. Ed. 2d 985,

Ps Ge, GPE 6 co cvcecececus 11, 13, 14, 21, 22
Schneckloth v. Bustamonte, 412 U. S. 218,

36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) ............ 16
Strickland v. Washington, 466 U. S. 668, 80 L. Ed. 2d 674,

Ss Gh SEED ocececccecuébeerseoses Passim
Taylor v. Illinois, 484 U. S. 400, 98 L. Ed. 2d 798,

es GSE ov ccecccccesecescecsseusece 15
United States v. Ash, 413 U. S. 300, 37 L. Ed. 2d 619,

Fs Gk SEED ccucescccteseccessesencdese 17
United States v. Cronic, 466 U. S. 648, 80 L. Ed. 2d 657,

104 S. Ct. 2039 (1984) ........... 4, 8,9, 10, 11, 14, 18
United States v. Drayton, 536 U. S. 194, 153 L. Ed. 2d 242,

Be ae Gk SS EE occecosccccecccoseéscocses 16
United States v. Muldrow, 19 F. 3d 1332

SE SEDER ocvccecccsneepeccdedebecosececanes 16

Treatises
1 J. Strong, McCormick on Evidence (Sth ed. 1999) ...... 5
8 J. Wigmore, Evidence (McNaughton rev. 1961) ....... 5
9 J. Wigmore, Evidence (Chadbourn rev. 1981) ........ 14
Miscellaneous

Developments in the Law—Privileged Communications,
98 Harv. L. Rev. 1450 (1985) ...........02 ee eeeeees 5

vii

Lyon, Defending the Death Penalty Case: What Makes Death
. Different?, 42 Mercer L. Rev. 695 (1991) ........... 24

S. Easton, How to Win Jury Trials: Building Credibility with
Judges and Jurors (ALI-ABA 1998) ................ 24

Restatement (Third) of the Law Governing Lawyers
REED on od bdddvecsececcenbasseaussessecissoves 5

IN THE
Supreme Court of the United States

THE STATE OF FLORIDA,

Petitioner,
VS.

JOE ELTON NIXON,

Respondent.

BRIEF AMICUS CURIAE OF THE
CRIMINAL JUSTICE LEGAL FOUNDATION
IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-
profit California corporation organized to participate in
litigation relating to the criminal justice system as it affects the
public interest. CJLF seeks to bring the constitutional protec-
tion of the accused into balance with the rights of the victim
and of society to rapid, efficient, and reliable determination of
guilt and swift execution of punishment.

This case addresses the scope of the right to the effective
assistance of counsel. The Florida Supr:me Court’s holding
that a client’s consent to trial counsel’s strategy of conceding
guilt in the opening and closing arguments must be express

1. This brief was written entirely by counsel for amicus, as listed on the
cover, and not by counsel for any party. No outside contributions were
made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

dangerously overstates the Sixth Amendment right. The right
to effective assistance of counsel is not a detailed code of
conduct for crimninal defense counsel. This decision requires an
unrealistic level of formality between counsel and client, and its
definition of consent is contrary to the accepted definition of
that term. This needlessly threatens reliable convictions and
may deter counsel from representing criminal defendants. The
lost convictions and delays resulting from this overly broad
definition of ineffective assistance of counsel are contrary to the
interests of public safety and society that the CJLF was formed
to serve.

SUMMARY OF FACTS AND CASE

“On Monday, August 13, 1984, the charred body of Jeanne
Bickner was found tied to a tree in a wooded area in Leon
County,” Florida. Nixon v. State, 572 So. 2d 1336, 1337 (Fla.
1990) (Nixon J). Her car was found the next day in a Tallahas-
see drainage ditch, abandoned and burned. See ibid. That same
day police received information from Nixon’s girlfriend and his
brother that Nixon had admitted to murdering Ms. Bickner,
driving her car before burning it, and pawning two of her rings.
See ibid. Nixon was arrested and “charged with first-degree
murder, kidnapping, robbery, and arson.” Jhid.

The case for Nixon’s guilt was overwhelming. In addition
to the confessions to his girlfriend and brother, Nixon was seen
driving Ms. Bickner’s car on the last day she was seen alive
near where her body was found. See id., at 1338. Nixon’s
palm print was found on the trunk of Ms. Bickner’s car. See
ibid. He also confessed to the police, telling them

“how he met Ms. Bickner at the mall and asked her to take
him to his uncle’s house because he was having car trouble.
Once on the road, Nixon hit Bickner in the face. When she
stopped the car, Nixon put her in the trunk and then drove
to a secluded wooded area where he took her from the trunk
and tied her to a tree with jumper cables. According to

Nixon, the two talked about their lives. Ms. Bickner
offered to give Nixon money, to sign her car over to him,
begging him not to kill her. Nixon recounted how he
burned Ms. Bickner’s personal belongings and then threw
the top of the convertible into the fire. At some point after
placing a paper bag over her head, Nixon threw the smol-
dering convertible top on Ms. Bickner, setting her on fire.”
Ibid.

Ms. Bickner was alive when she was set on fire, and she burned
to death. See ibid.

In his opening statement, the defense counsel stated:

“In this case, there will be no question that Jeannie [sic]
Bickner died a horrible, horrible death. Surely she did and ©
that will be shown to you. In fact, that horrible tragedy will
be proved to your satisfaction beyond any reasonable doubt.

“In this case, there won’t by any question, none whatso-
ever, that my client, Joe Elton Nixon, caused Jeannie [sic]
Bickner’s death. Likewise, that fact will be proved to your
satisfaction beyond any reasonable doubt. This 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.” /d.,
at 1339.

Defense counsel’s closing argument contained the follow-
ing passage:

“Ladies and gentlemen of 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. For several very
obvious and apparent reasons, you have been and will
continue to be involved in a very uniquely tragic case. In
just a little while Judge Hall will give you some verdict
forms that have been prepared. He'll give you some
instructions on how to deliberate this case. After you’ve
gotten those forms and you’ve elected your foreperson and
you’ve done what you must do, you will sign those forms.

I know you are not going to take this duty lightly, and I
know what you will decide will be unanimous. I think that
what you will decide is that the State of Florida, Mr.
Hankinson and Mr. Guarisco, through them, has proved its
case against Joe Elton Nixon. I think you will find that the
State has proved beyond a reasonable doubt each and every
element of the crimes charged, first-degree premeditated
murder, kidnapping, robbery, and arson.” J/bid.

Nixon was convicted of all charges and sentenced to death. See
id., at 1338.

On his direct appeal, Nixon attacked his conviction and
sentence on several grounds, including a claim that the opening
and closing statements were per se ineffective assistance of
counsel under United States v. Cronic, 466 U. S. 648 (1984).
See Nixon, 572 So. 2d, at 1338-1339. The Florida Supreme
Court remanded the case to the trial court for a hearing to
determine whether Nixon was informed of trial counsel’s
strategy in the opening and closing statements. See ibid.

The trial court made several findings. First, it found that
trial counsel reviewed the defense with Nixon, including “the
probability that he would concede the killing of the victim by
Nixon.” It also concluded that trial counsel and Nixon had
prior attorney-client relationships, were both veterans of the
justice system, and that Nixon understood what was happening.
Since Nixon did not object to the strategy, see id., at 1340, n. 3,
the trial court then concluded that Nixon had not met his burden
of proving that he did not know or consent to the trial strategy.
See ibid. The Florida Supreme Court felt that this record was
insufficient to rule on the ineffective assistance of counsel
claim and therefore dismissed it without prejudice to raising it
again on state collateral review. See id., at 1340. Nixon’s other
claims were rejected, and his convictions and sentences were
affirmed.

Nixon then raised his ineffective assistance claim in a
motion for state post-conviction relief, which the trial court

denied without an evidentiary hearing. See Nixon v. Singletary,
758 So. 2d 618, 619 (Fla. 2000) (per curiam) (Nixon II). Nixon
appealed this decision to the Florida Supreme Court and also
filed an original habeas petition there. See ibid. The State
asked the Court to examine counsel’s opening and closing
arguments under the traditional ineffective assistance standard
of Strickland v. Washington, 466 U.S. 668 (1984), while Nixon
argued that the per se ineffective assistance standard of Cronic
was appropriate. See Nixon II, supra, at 621.

The court applied Cronic. Since the defendant has ultimate
control over whether to plead guilty, see id., at 623, and the
court considered counsel’s action to be the equivalent of a
guilty plea, it reasoned that “the dispositive issue in this case is
whether Nixon gave his consent to trial counsel to concede guilt
during the guilt phase of the trial.” /d., at 624. The Florida
Supreme Court’s efforts to obtain the facts regarding Nixon’s
consent were hindered by his invocation of the attorney-client
privilege. See ibid. The Court remanded for yet another
evidentiary hearing on consent, this time making it clear that,
by placing the effectiveness of his attorney at issue, Nixon had
waived the privilege. See id., at 624-625. This is well-estab-
lished law. “Where the client alleges a breach of duty by the
attorney, the privilege is waived to all communications relevant
to that issue.” See 8 J. Wigmore, Evidence § 2327, p. 638
(McNaughton rev. 1961); see also Restatement (Third) of the
Law Governing Lawyers § 80, p. 608 (2000); 1 J. Strong,
McCormick on Evidence §91, pp. 367-368 (Sth ed. 1999);
Developments in the Law—Privileged Communications, 98
Harv. L. Rev. 1450, 1637-1638 (1985).

Nixon did not testify at this hearing, but his trial counsel
did. See Nixon v. State, 857 So. 2d 172, 175 (Fla. 2003) (per
curiam) (Nixon III). During trial counsel’s testimony, the
following exchange took place:

“Q: [Nixon’s Postconviction Counsel] Did you discuss the

strategy of not contesting guilt with the defendant?

“A: [Corin [Nixon’s trial counsel]] I thought I answered it.
But if I didn’t answer it, then yes, he was advised as to that,
yes.

“Q: And how did he respond?

“A: To the best of my knowledge, again he did nothing,
except after it occurred that he was not real pleased. And
I think I answered that before also.

“Q: Now what do you mean by he did nothing?

“A: He did nothing. I don’t know. I don’t know what else
I can say, Mr. Evans. I have said it before.” Ibid.

Trial counsel also testified “that Nixon provided neither
verbal nor nonverbal indication that he did or did not wish to
pursue counsel’s strategy of conceding guilt.” /d., at 175-176.
Trial counsel’s testimony “essentially mirrored his testimony
given at the December 19, 1988 evidentiary hearing, at which
Nixon invoked the attorney-client privilege.” The Florida
Supreme Court concluded that “both the direct and cross-
examination of [trial counsel] Corin were extremely limited.”
Id., at 176, n. 8. The trial court again found that Nixon had
consented to counsel’s trial strategy and denied relief. See id.,
at 175.

The Florida Supreme Court reversed. Since trial counsel’s
opening and closing arguments “were the functional equivalent
of a guilty plea” there had to be substantial evidence “that
Nixon did more than silently submit to counsel’s strategy”
before this ineffective assistance claim could be dismissed. /d.,
at 176. Since this evidence did not exist, Nixon’s conviction
was vacated on the ground of ineffective assistance of counsel.
See ibid. This Court granted certiorari on March 1, 2004.

SUMMARY OF ARGUMENT

The presumption of prejudice found in United States v.
Cronic is a rare exception to the general rule that the defendant

must prove substandard conduct by counsel that prejudiced the
defense. In this case, Cronic, if applicable, would act as a
substitute for the prejudice component of Strickland v. Wash-
ington. Since the prejudice and substandard conduct compo-
nents play important roles in protecting the system from
excessive ineffective assistance claims, Cronic only applies to
nearly total breakdowns of the adversarial system. Therefore,
Cronic van only apply to Nixon’s claim, if counsel’s action was
the equivalent of a guilty plea. Since a guilty plea is valid with
the client’s consent, Nixon’s consent to the trial strategy would
extinguish his Cronic claim. If Cronic does not apply, then
consent also rebuts any claim of ineffective assistance under
Strickland v. Washington.

Cronic’s presumption of prejudice changes but does not
eliminate the defendant’s burden of proof. Any circumstances
of the case that would support applying Cronic must still be
pled and proven by the defense. This includes Nixon’s lack of
consent, which is information uniquely within his control, and
is therefore appropriate for him to bear the burden of proving.

The Florida Supreme Court’s conclusion that Nixon’s
waiver must be express contradicts both the law governing
consent and the right to the effective assistance of counsel.
Implied consent is appropriate in other constitutional contexts,
such as the waiver of the presence of counsel under Miranda v.
Arizona. Because it lacks the adversarial posture of the
interrogation room, the relationship between client and counsel
supports an even more expansive view of implied consent than
the one found in Miranda. Any attempt to graft the formality
of a guilty plea onto the censent between client and counsel in
this case misconstrues that relationship and the nature of the
guilty plea.

The Florida Supreme Court’s one-size-fits-all approach to
consent contradicts the cases governing ineffective assistance
of counsel. These cases recognized that the Sixth Amendment
does not create a set of detailed guidelines for counsel to

follow. Rather, courts must examine each case on its own
facts.

The trial court correctly found that Nixon implicitly
consented to trial counsel’s strategy. It relied on Nixon’s
burden of proving a lack of consent, counsel’s consultation with
Nixon about the strategy, and Nixon’s failure to communicate
any disapproval. Nothing more is necessary to find a valid
consent to trial counsel’s strategy.

ARGUMENT

I. Nixon has the burden of proving that he did not
consent to counsel’s trial strategy in order to succeed
under either Cronic or Strickland.

A. Cronic and Strickland.

In order for Nixon to prevail in this case, he must prove that
he did not consent to trial counsel’s concession of guilt in the
opening and closing statements. Nixon’s claim is that United
States v. Cronic, 466 U. S. 648 (1984) governs this case. See
Nixon II, 758 So. 2d, at 621. The Florida Supreme Court
adopted Nixon’s argument because it equated trial counsel’s
opening and closing statements with a guilty plea. See id., at
623-624. It then concluded that since trial counsel’s strategy
was equal to a guilty plea, Cronic’s presumption of prejudice
would prevail unless Nixon consented to the strategy. See id.,
at 624. While the trial strategy was not equal to a guilty plea,
see infra, at 18-19, the Florida Supreme Court correctly placed
consent at the center of its analysis. Nixon’s consent to trial
counsel’s plan will eliminate any ineffective assistance claim in
this case, whether it is made under Cronic or under Strickland
v. Washington, 466 U. S. 668 (1984).

Cronic is a narrow exception to the general rule governing
ineffective assistance of counsel claims. Counsel is presump-
tively competent, and the accused has the burden of overcom-
ing this presumption. See Cronic, 466 U. S., at 658. This

normally requires the accused to prove that counsel’s perfor-
defense.” Strickland, 466 U. S., at 668. The accused can only
prevail by carrying the burden of proving that “counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Jbid. Cronic is simply a rule of
convenience. Strickland’s test is unnecessary under certain
extreme circumstances. Where the circumstances of the
defendant’s representation are so clearly prejudicial to the
defense that “the cost of litigating their effect in a particular
case is unjustified,” Cronic, supra, at 658, Cronic’s presump-
tion of prejudice is appropriate. See id., at 659-660.

B. Consent and Counsell.

The Cronic rule is reserved for the nearly complete break-
down of the adversarial process. The “obvious” example “is
the complete denial of counsel.” See id., at 659. The presump-
tion also applies where “counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing . ...” Jbid.
For example, a complete inability to effectively cross-examine
prosecution witnesses would come under this definition. See
ibid. Finally, other circumstances that would prevent any
counsel from rendering effective assistance, like the circum-
stances surrounding the infamous “Scottsboro boys” trial, see
Powell v. Alabama, 287 U. S. 45 (1932),’ warrants a presump-
tion of prejudice. See Cronic, supra, at 660.

Depending upon the circumstances of the case, applying
Cronic will substitute its standard for the prejudice requirement

2. In Poweli, the defendants were indicted for a highly publicized capital
offense and faced considerable racial animosity from the community.
See 287 U. S., at 50-51. On the day of the trial, a Tennessee lawyer told
the court that he was appearing on behalf of people “interested” in the
defendants, but that he was in no way prepared to represent them. /d.,
at 55. The trial court decided that the Tennessee lawyer would
represent the defendants with whatever help the local bar could provide,
and then immediately started the trial. See id., at 56-58.

10

or for both the prejudice and the attorney misconduct compo-
nents of Strickland. For instance, it is pointless to apply either
part of the Strickland test to a failure to provide counsel.
Similarly, the circumstances surrounding the representation in
Powell substitute both for prejudice and attorney misconduct.
In such a case, “where counsel is called upon to render assis-
tance under circumstances where competent counsel very likely
could not, the defendant need not show that the proceedings
were affected.” Bell v. Cone, 535 U. S. 685, 696 (2002). In
other cases, the defendant will not have to show prejudice, but
still must prove some form of misconduct in order to prevail
under Cronic. Cronic’s second example of representation that
fits its presumption, where “counsel entirely fails to subject the
prosecutor’s case to meaningful adversarial testing,” 466 U. S..,
at 659, still requires the defendant to prove substandard
conduct. While prejudice is presumed, the defendant must still
prove attorney misconduct in the form of the complete failure
to test the prosecution’s case.

If Cronic applies to this case, it would come under the
failure to test the prosecution’s case theory. See Nixon II, 758
So. 2d, at 622. While applying Cronic to Nixon’s claim would
make a prejudice inquiry unnecessary, Nixon must still show
that counsel’s decision to concede guilt was improper. A
concession of guilt in the guilt phase of a capital trial, if
properly consented to by the defendant, is not substandard
representation. See infra, at 24-25. Therefore, if Nixon
consented to counsel’s strategy, then Cronic cannot apply to his
claim. This conclusion follows from an understanding of right
to effective assistance of counsel and Cronic’s role in adminis-
tering claims under that right.

The overwhelming majority of trials do not involve the
complete breakdown of the adversarial process contemplated in
Cronic. The facts of Cronic itself provide one example.
Cronic was facing a variety of mail fraud charges, and retained
cowasel withdrew shortly before the scheduled trial date. See
466 U. S., at 649. Counsel was appointed for Cronic, but was

11

allowed only 25 days to prepare. See ibid. The government’s
investigation was complex, taking four and one-half years and
involving the review of thousands of documents. See ibid.
Appointed counsel was “a young lawyer with a real estate
practice ....” /bid. The circumstances of Cronic’s representa-
tion did not support a presumption of prejudice, because it was
not “unlikely that the defendant could have received the
effective assistance of counsel.” /d., at 666. Absent a showing
of “specific errors made by trial counsel” Cronic’s conviction
would stand. See ibid.

While necessary, attack on judgments for effective assis-
tance of counsel contains real risks to the criminal justice
system. The Strickland Court understood that an overly broad
definition of ineffective assistance could backfire. A standard
permitting an intrusive inquiry into counsel’s performance or a
set of “detailed guidelines for evaluation would encourage the
proliferation of ineffectiveness challenges.” Strickland, 466
U. S., at 690. If this were allowed, then any conviction would
be followed by a trial of counsel’s representation of the
defendant. See ibid. This could only adversely affect counsel’s
“performance and even willingness to serve ....” Ibid. Both
parts of the Strickland standard are designed to prevent such
consequences. Review of counsel’s actions is “highly deferen-
tial” under Strickland. Id., at 689. Counsel’s performance does
not have to be optimal; under Strickland it only needs to be
reasonable. See id., at 688. The prejudice component is also
meant to prevent the right to effective assistance from damag-
ing the system. The right to effective assistance of counsel
does not exist for its own sake, but to guarantee a fair trial. See
Roe v. Flores-Ortega, 528 U. S. 470, 482 (2000) (quoting
Cronic, 466 U. S., at 658). Requiring the defendant to prove
prejudice helps to prevent the Sixth Amendment from becom-
ing a vehicle for correcting attorney errors. All lawyers make

12

The states and the federal government have a substantial
interest in preserving the integrity of their convictions.

“Retrying defendants whose convictions are set aside also

imposes significant ‘social costs,’ including the expenditure

of additional time and resources for all the parties involved,
the ‘erosion of memory’ and ‘dispersion of witnesses’ that
accompany the passage of time and make obtaining convic-
tions on retrial more difficult, and the frustration of ‘soci-
ety’s interest in the prompt administration of justice.’ ”

Brecht v. Abrahamson, 507 U. S. 619, 637 (1993) (quoting

United States v. Mechanik, 475 U. S. 66, 72 (1986))

(internal quotation marks omitted by Brecht Court).
Similarly, the doctrine of harmless constitutional error is based
upon the importance of preserving convictions even in the face
of error by state actors. See ibid. (finding error harmless on
federal habeas unless it had a substantial effect on the verdict);
Chapman v. California, 386 U. S. 18, 24 (1967) (“harmless
beyond a reasonable doubt” on direct review). Errors which are
susceptible to harmless error are deemed “ ‘trial error.’ ” See
Arizona v. Fulminante, 499 U. S. 279, 307 (1991). They
“occur[ ] during the presentation of the case to the jury,”
making them susceptible to harmless error analysis because
they “may . . . be quantitatively assessed in the context of other
evidence presented in order to determine whether its admission
was harmless ....” /d., at 307-308. Error that goes to the
structure of the “trial mechanism” is incapable of this type of
analysis. See id., at 309-310. Such defects, like the complete
deprivation of the right to counsel, “infect the entire trial
process.” Brecht, 507 U. S., at 629-630.

Strickland’s prejudice requirement is analogous to a
harmless error requirement. If the erroneous representation
does not have a sufficient impact on the verdict, then the
harmless error analysis by affording greater protection to
convictions. Although similar in kind, Strickland’s hurdle is
higher than Brecht’s. See Kyles v. Whitley, 514 U.S. 419, 439

— a eee ee ee mn

13

-

(1995). In addition, while the prosecution carries the burden of
proving harmless error on direct review, see id., at 630, the
defendant bears the burden of proving prejudice under Strick-
land. See Strickland, 466 U. S., at 696.

Since Cronic suppresses this important limit on ineffective
assistance claims, it should be limited to the most extreme
cases. Thus, an “attorney’s failure to test the prosecutor’s case
. . must be complete” for Cronic to apply. Bell v. Cone, 535
U. S., at 697 (emphasis added). For example, the failure to
present any mitigating evidence or closing argument in the
penalty phase of a capital trial is analyzed under Strickland
instead of Cronic. See id., at 697-698. Whether Strickland or
Cronic applies depends upon “the magnitude of the deprivation
of the right to effective assistance of counsel.” Roe, 528 U.S.,
at 482. The difference between Strickland and Cronic is “not
of degree but of kind.” Bell, 535 U. S., at 697. In order for
Nixon’s representation to qualify for Cronic’s presumption, it
must be orders of magnitude more prejudicial than mere
attorney error.

Because Cronic is so unusual and severe, Nixon’s consent
to counsel’s strategy would eliminate his Cronic claim. The
worst characterization of trial counsel’s conduct is that it was
a slow guilty plea. If counsel’s actions are not comparable to
a guilty plea then Cronic does not apply. Whether to plead
guilty is a decision left to the exclusive control of the defen-
dant. See Jones v. Barnes, 463 U. 8. 745, 751 (1983). Since
the defendant controls this decision, an informed and voluntary
consent to counsel’s strategy ratifies it, making Cronic inappli-
cable.

Flores-Ortega illustrates this point. Counsel failed to file
a notice of appeal which led to a loss of the accused's right to
appeal his conviction. See 528 U. S., at 474. While a failure
to file an appeal requested by the defendant is “professionally
unreasonable .. . a defendant who expiicitly tells his attorney
not to file an cannot later complain that” ro appeal was
filed. Id., at 47° is in original). Even though filing an

14

appeal usually cannot harm the defendant, failing to do this is
not ineffective assistance if the client consents. While denial of
a desired appeal is presumptively prejudicial, see id., at 483,
consent ends the Cronic issue. Similar reasoning is appropriate

~~ here.

Cronic’s presumption changes but does not eliminate the
defendant’s initial burden of proof. The presumption of
ineffective assistance comes from certain circumstances of the
case which support a presumption that the fairness of the trial
was undermined. See 466 U. S., at 658 (“circumstances that
are so likely to prejudice”); id., at 659 (“circumstances of that
magnitude”); id., at 661 (“the surrounding circumstances”).
Simply alleging these circumstances cannot trigger the irrebut-
table presumption that vacates a conviction. These circum-
stances must be pled and proven by the defendant before

Cronic’s presumption applies.

In this case, Nixon must sais tial counadl's epeniog ant
closing statements along with his lack of informed consent.
Since consent would end the ineffective assistance claim before
the Cronic presumption would apply, it is sensible to address
this issue first. The extent of Nixon’s prior consent to trial
counsel’s approach in the opening and closing statements is
only known to Nixon and his trial counsel. “[T]he burden of
proving a particular fact is said to be put on the party who
presumably has peculiar means of knowledge... .” 9 J. Wig-
more, Evidence § 2486, p. 290 (Chadbourn rev. 1981) (empha-
sis in original); Campbell v. United States, 365 U. S. 85, 96
(1961) (“the ordinary rule, based on considerations of fairness,
does not place the burden upon a litigant of establishing facts
peculiarly within the knowledge of his adversary”). Since
Nixon was raising his claim to overturn his conviction, the case
for placing the burden of proving a lack of consent on him is
compelling. “[T]he general rule [is] that one seeking relief
bears the burden of demonstrating that he is entitled to it.”
Clark v. Community for Creative Nonviolence, 468 U.S. 288,
293, n. 5 (1984).

15

If Nixon does not carry his burden of proving that he did
not consent to trial counsel’s strategy, then his Sixth Amend-
ment claim fails. If Cronic does not apply, then at most he can
allege that trial counsel’s strategy was deficient and prejudicial
under Strickland. Consent also eliminates this means of relief.
A necessary condition for a Strickland claim is that counsel’s
representation is substandard. See 466 U. S., at 687. If Nixon
consented to what is at worst a guilty plea, he did not receive
objectively unreasonable assistance of counsel. Communica-
tions between counsel and client can provide crucial support for
the reasonableness of counsel’s actions. While most decisions
about the conduct of the trial are left to counsel, see Taylor v.
Illinois, 484 U. S. 400, 417-418 (1988), a client’s informed
consent to a particular tactic or strategy should be dispositive
under Strickland. “The reasonableness of counsel’s actions
may be determined or substantially influenced by the defen-
dant’s own statements or actions. Counsel’s actions are usually
based, quite properly, on informed strategic choices made by

the defendant and on information supplied by the defendant.”

Strickland, supra, at 691. If a case goes to trial, then the client
will often play an important role in determining trial strategy.
See Godinez v. Moran, 509 U. S. 389, 398 (1993). An in-
formed consent to a strategy discussed between counsel and
client should be binding on any defendant making a Strickland
claim. If the client gives an informed consent to a particular
approach to the defense, then that approach is necessarily
reasonable under Strickland. Therefore, a failure to prove the
absence of consent ends Nixon’s ineffective assistance of
counsel claim.

Il. A client’s consent to trial counsel’s strategy can be
implied from the circumstances of the case.

The Florida Supreme Court held that consent to trial
counsel’s strategy would be valid only if there is “substantial
evidence which establishes that Nixon affirmatively and

16

explicitly agreed to counsel’s strategy.” Nixon II], 857 So. 2d,
at 176 (emphasis in original) (Nixon III). This asks too much
of the relationship between counsel and client. Requiring this
level of formal proof is contrary to the standard approach to the
consent issue, and is also at odds with this Court’s understand-
ing of the guarantee of effective assistance of counsel. Uphold-
ing implied consent in relations between client and counsel
does no disservice to the defendant’s right to counsel. Instead,
it recognizes that consent comes in many forms and that the
relationship between client and counsel cannot be defined by
rigid formalities.

Consent is normally determined by examining the totality
of the circumstances. See United States v. Drayton, 536 U. S.
194, 207 (2002) (consent to search). Constitutional rights can
be waived by implication, and a court can infer waiver after
examining all relevant circumstances. See North Carolina v.
Butler, 441 U. S. 369, 373 (1979). “Even when a right so
fundamental as that to counsel at trial is involved, the question
of waiver must be determined on ‘the particular facts and
circumstances surrounding that case, including the background,
experience, and conduct of the accused.’ ” Jd., at 374-375
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). This
applies to other forms of consent, such as consent to search.
See Schneckloth v. Bustamonte, 412 U.S. 218, 226-227 (1973).
The trial court correctly looked to Nixon’s relationship with
counsel and the other facts surrounding this case before
determining that there was consent. See Part Ill, infra. The
Florida Supreme Court’s decision to ignore these circumstances
and apply a bright-line rule contradicts the proper approach to
consent.

Consent is not normally susceptible to bright-line rules.
“There is no bright line test for determining consent; each is a
question of fact to be determined from the totality of the
circumstances.” United States v. Muldrow, 19 F. 3d 1332,
1336 (CA10 1994). Butler addressed whether Miranda v.
Arizona, 384 U. S. 436 (1966) required an explicit waiver of

17

the suspect’s right to the presence of counsel. See 441 U. S.., at
370. Under Miranda, an explicit waiver was acceptable, but
mere silence after Miranda warnings would not prove wiver.
See id., at 373. While an express waiver is “usually strong
proof of the validity of that waiver . . . it is not inevitably either
necessary or sufficient to establish waiver.” Jbid. The waiver
issue could not be decided by applying a bright-line rule. “The
question is not one of form, but rather whether the defendant
knowingly and voluntarily waived the rights delineated in the
Miranda case.” Ibid. Under this holistic approach, courts must
always look to all of the surrounding facts and circumstances of
the case. Even silence could support a waiver under the
appropriate circumstances.

“As was unequivocally said in Miranda, mere silence is not
enough. That does not mean that the defendant’s silence,
coupled with an understanding of his rights and a course of
conduct indicating waiver, may never support a conclusion
that a defendant has waived his rights. The courts must
presume that a defendant did not waive his rights; the
prosecution’s burden is great; but in at least some cases
waiver can be clearly inferred from the actions and words
of the person interrogated.” Jbid.

The case for an implied waiver is much stronger in the
context of an attorney-client relationship than in Miranda’s
interrogation room. Miranda deals with a situation where the
suspect “is not in the presence of persons acting solely in his
interest.” 384 U. S., at 469. It is therefore understandable that
the government has a “heavy burden” of proving waiver under
Miranda. See id., at 475. The relationship between counsel
and client is much different, and therefore consent should be
more readily inferred.

Counsel and client are allies rather than adversaries.
Counsel has a duty to represent the client with an undivided
loyalty. See Cuyler v. Sullivan, 446 U. S. 335, 346 (1980). A
lawyer is the client’s advocate and adviser, see United States v.
Ash, 413 U. S. 300, 312 (1973), not an adversary. Since the

-~

18

client has the burden of proving that counsel rendered ineffec-
tive assistance under Strickland v. Washington, 466 U.S. 568
(1984) and United States v. Cronic, 466 U.S. 648 (1984), it is
appropriate to require the defendant to prove a lack of consent
when contesting counsel’s representation. See supra, at 14-15.
A rule against implied consent is simply inconsistent with the
reality of the relationship between client and counsel.

Counsel’s consultation with Nixon, and Nixon’s lack of
objection to the strategy, also distinguishes Brookhart v. Janis,
384 U.S. 1 (1966). In that case counsel agreed to a trial by a
“prima facie trial,” a procedure where the defense agrees not to
put evidence on or cross-examine any prosecution witnesses.
See id., at 6-7. The defendant stated in open court that he did
not consent to any guilty plea. /d., at 6. This Court held that
counsel cannot enter what is the equivalent to a guilty plea
against the express wishes of his client not to plead guilty. See
id., at 7. Brookhart was also cited by Cronic as an example of
a complete failure to test the prosecution’s case. See 466 U. S.,
at 659. Since Nixon never explicitly stated any objection to
counsel’s strategy at any point during the trial, Brookhart is
inapplicable.

Guilty pleas do require a higher level of formality, see
Boykin v. Alabama, 395 U. S. 238, 242 (1969), and the Florida
Supreme Court did invoke Boykin in support of its decision.
See Nixon II, 758 So. 2d, at 624. This overstates the effect of
trial counsel’s strategy and understates the effect of a guilty
plea. A guilty plea waives numerous rights, including the self-
incrimination privilege, the right to jury trial and the right to
confrontation. See Boykin, supra, at 243. Given these conse-
quences, silence coupled with a bare record is insufficient to
establish the consent that due process requires. See id., at 242-
243. Counsel’s opening and closing statements may waive the
self-incrimination privilege, a right that Nixon had already
waived in each of his confessions to the police, but Nixon and
counsel could still confront witnesses, and a jury still had to
render a guilty verdict. Unlike a guilty plea, trial counsel’s

. i kee ee

9

strategy did not end the guilt phase of the trial. Nixon’s
attorney still conducted an active defense of his client. As the
dissent in the second Florida Supreme Court opinion noted:

“Even though Nixon v.as voluntarily absent from much
of the trial, Nixon’s trial counsel actively engaged in the
trial, including conducting an extensive voir dire, objection
to photographs as unduly gruesome, and moving for a
mistrial as to a portion of the State’s closing in the guilt
phase. In the penalty phase, Nixon’s trial counsel presented
the testimony of eight witnesses, including Nixon’s mother
and two mental health experts, a psychiatrist, and a psychol-
ogist. Nixon’s trial counsel introduced substantial docu-
mentary evidence, including school, institution, and
psychological reports concerning Nixon’s life from 1972 to
1985.” Nixon IT, 758 So. 2d, at 630-631 (Wells, J., dissent-
ing).

Where counsel cross-examines the prosecution witnesses, the
defendant did not give up a jury trial, and the defendant did not
testify, there is no guilty plea, even if counsel concedes guilt.
See Abshier v. State, 28 P. 3d 579, 595 (Okla. Crim. App.
2001).

Boykin held that the waiver of rights in a guilty plea could
not be presumed from a silent record. See 395 U. S., at 242.
The trial court’s ruling in the present case was drawn from the
totality of the circumstances of a record that was not silent. See
Nixon III, 857 So. 2d, at 176. Boykin also relied on the federal
standard for guilty pleas, which drew its definition of waiver
from Johnson v. Zerbst, 304 U.S. 458, 464 (1938), see Boykin,
supra, at 243, n. 5, and the Zerbst standard requires courts to
look to the totality of circumstances when examining a waiver.
See 304 U. S., at 464. Boykin’s formalities should not be used
to ignore a valid consent that can be found from the record.

Boykin’s colloquy between judge and defendant, see Parke
v. Raley, 506 U. S. 20, 30 (1992), is designed to provide a

public record that the guilty plea was knowing and voluntary.

20

See Bordenkircher v. Hayes, 434 U. S. 357, 362 (1978); see
also Boykin, 395 U. S., at 242 (“The requirement that the
prosecution spread on the record the prerequisites of a valid
waiver ...”). In a case involving overwhelming evidence of
guilt and where counsel presents a minimal defense or concedes
guilt, Boykin is not necessary so long as there is a trial. The
California Supreme Court came to this conclusion when
applying California’s version of Boykin, In re Tahl, 1 Cal. 3d
122, 460 P. 2d 449 (1969), overruled on other grounds, Mills v.
Municipal Court, 10 Cal. 3d 288, 307, 515 P. 2d 273, 286
(1973). Like Boykin, “Tahl and its offspring” are intended to
provide a record that the guilty plea was knowing and intelli-
gent. See People v. Murphy, 8 Cal. 3d 349, 366, 503 P. 2d
594, 606 (1972).

“Nothing in our decisions following TaAl indicates that the
principles expressed therein were intended to apply to jury
trials, even where the evidence of guilt is overwhelming.
When a defendant undergoes a jury trial any competent
defense counsel will inform him of his right to cail wit-
nesses on his own behalf, of his right to testify or not to
testify, and, in the absence of unusual circumstances, will
cross-examine the witnesses for the prosecution. Here,
defendant’s case was tried to a jury. Through counsel he
clearly exercised his right of confrontation by cross-exam-
ining prosecution witnesses and he took advantage of his
right against self-incrimination by not taking the witness
stand.” Jbid.

The present case is no different. The record establishes that
trial counsel consulted with Nixon about the strategy, and there
was a jury trial in which Nixon did not take the stand, and in
which prosecution witnesses were cross-examined. No more is
needed to distinguish Boykin.

It is impractical to impose the formal question and answer
process required by Boykin on agreements between client and
counsel. “There are countless ways to provide effective
assistance in a given case,” Strickland, 466 U. S., at 689, and

21

each defendant will have individual preferences in communi-
cating with counsel. The one-size-fits-all rule imposed by the
Florida Sup:eme Court improperly turns the Sixth Amendment
into a code of conduct for criminal defense counsel.

“But we have consistently declined to impose mechanical
rules on counsel—even when those rules might lead to
better representation—not simply out of deference to
counsel’s strategic choices, but because ‘the purpose of the
effective assistance guarantee of the Sixth Amendment is
not to improve the quality of legal representation, . . . [but
rather] simply to ensure that criminal defendants receive a
fair trial. ” Roe v. Flores-Ortega, 528 U. S. 470, 481
(2000) (quoting Strickland, 466 U. S., at 689).

Accepting a client’s implied consent to trial counsel’s
strategy is consistent with Flores-Ortega. That decision
addressed whether “counsel [is] deficient for not filing a notice
of appeal when the defendant has not clearly conveyed his
wishes one way or the other.” /d., at 477. This question was
best answered by answering another question, “whether counsel
in fact consulted with the defendant about an appeal.” /d., at
478. Consultation has a specific meaning in this context,
“advising the defendant about the advantages and disadvantages
of taking an appeal, and making a reasonable effort to discover
the defendant’s wishes.” Jbid. Proper consultation allows the
right to appeal to be waived by implication. If the defendant is
consulted in this manner, then “[c]ounsel performs in a
professionally unreasonable manner only by failing to follow
the defendant’s express instructions with respect to an appeal.”
Ibid.

Similar reasoning applies to this case. A decision not to file
a notice of appeal is more difficult to defend than trial counsel’s
representation of Nixon. The failure to file in Flores-Ortega
forfeited the entire proceeding. See id., at 483. Nixon’s guilt
phase trial was not forfeited. Rather, it was part of an effort to
win the only proceeding in which Nixon had a reasonable
chance to prevail, the penalty phase. If trial counsel explained

22

his trial strategy to Nixon, and Nixon did not object to it, then
there was consent.

III. The trial court correctly found that Nixon consented
to trial counsel’s strategy.

The trial court took the correct approach to determining
whether Nixon consented to trial counsel’s strategy. At the last
evidentiary hearing, trial counsel testified that he discussied the
strategy of not contesting guilt with the defendant and that
Nixon did nothing after being advised of this. See Nixon v.
State, 857 So. 2d 172, 175 (Fla. 2003) (per curiam). The trial
court noted that it considered all of the appropriate circ: n-
stances before it issued its conclusion. See id., at 176. An
important factor was “that Nixon’s pattern of interactions with
counsel involved information being provided by [counsel],
followed by silence from Nixon. In essence, the trial court
found that Nixon’s failure to approve or disapprove verbally
was approval of counsel’s strategy.” Jbid. The trial court’s
conclusion follows the approach of Roe v. Flores-Ortega, 528
U. S. 470 (2000). Since consultation and silence is sufficient
to bar an ineffective assistance claim under that decision, see
supra, at 21, the same result is appropriate here.

Any doubts about the trial court’s conclusion are resolved
in its findings after the first evidentiary hearing. In its February
1, 1989 order, the trial court made three findings:

“1. Trial Defense Counsel Corin reviewed with Defen-
dant/Appellant Nixon the defense approach to the case in
general terms including, but not limited to, the probability
that he would concede the killing of the victim by Nixon.

“2. Corin and Nixon had previous attorney-client
relationships, both were veterans of the criminal justice
system and although Nixon manifested no reaction, he
understood what was to take place.

23

“3. Nixon made no objection and did not protest the
strategy and tactic employed at trial.

“Based on the foregoing, this Court concludes that the
Defendant/ Appellant Nixon has not sustained his burden of
proof by the applicable standard that he (a) was neither
informed nor knew of the trial strategy and tactic employed
by Defense Trial Counsel Corin nor (b) did not consent
thereto or (c) acquiesce therein.” Nixon I, 572 So. 2d, at
1340.

This is the correct approach to this case. It notes the
defendant’s burden of proving that he did not consent, and
draws the appropriate conclusion from the consultation and
silence. Nothing more was needed. The Florida Supreme
Court’s decision to ignore these findings and force trial counsel
into a particular approach to communicating with the client
cannot be squared with any reasonable definition of consent or
effective assistance of counsel.

Nixon’s trial counsel was faced with an unusually difficult
case. The evidence of his client’s guilt was overwhelming, and
the crimes were horrific. See supra, at 2-3. In addition, he had
avery .fficult and uncommunicative client. See Nixon III, 857
So. 2d, at 187-188 (Wells, J., dissenting). “If the mouthpiece
has no trumpet, blowing with all one’s might will not tear down
any walls.” Gerlaugh v. Stewart, 129 F. 3d 1027, 1043 (CA9
1997). Conceding guilt in order to make a favorable impres-
sion with the jury in the penalty phase is an acceptable trial
strategy. See Abshier v. State, 28 P. 3d 579, 594 (Okla. Crim.
App. 2001). In a near hopeless situation like this “candor may
be the most effective tool available to counsel.” People v.
Mayfield, 5 Cal. 4th 142, 177, 852 P. 2d 331, 343-344 (1993).

The hazards of sacrificing credibility in the jury’s eyes by
contesting hopeless points are well known to trial lawyers. “In
any lawsuit, there are several potential issues... . Pick the best
of these issues, and fight hard on this issue. Offer no resistance
on other issues. By conceding these other issues and focusing

24

on the issue you have chosen, you are increasing your credibil-
ity in the eyes of jurors.” S. Easton, How to Win Jury Trials:
Building Credibility with Judges and Jurors § 1.05, p. 6 (ALI-
ABA 1998).

Although a Florida capital trial is bifurcated, see Espinoza
v. Florida, 505 U. S. 1079, 1080 (1992) (per curiam), it is still
one trial before one jury. While the distinction between
elements of the offense and sentencing factors is important in
the law, see Ring v. Arizona, 536 U. S. 584, 609 (2002), that
distinction is not important to jurors, and hence it is not
important to the strategy of arguing to the jury. A loss of
credibility from contesting incontestable facts in the guilt phase
can carry over to the penalty phase. “It is not good to put on a
‘he didn’t do it’ defense and a ‘he is sorry he did it’ in mitiga-
tion. This just does not work. The jury will give the death
penalty to the client and, in essence, the attorney.” Lyon,
Defending the Death Penalty Case: What Makes Death Differ-
ent?, 42 Mercer L. Rev. 695, 708 (1991).

Nixon’s trial counsel was faced with a guilt case “that
absolutely cannot be won.” See id, at 709. Between the
forensic evidence, Nixon’s possession of the spoils, and his
confessions to people close to him as well as the police, there
was no doubt of his guilt of felony murder and of death-eligible
circumstances. The only real issue in this case was the sentence
selection decision between death and life in prison. Although
the judge is the final sentencer in Florida, judicial override of
a jury recommendation of life is permitted there only in
extreme circumstances. See Harris v. Alabama, 513 U.S. 504,
524 (1995) (Stevens, J., dissenting). Preserving credibility
before the jury, even at the expense of admitting the incontest-
able proof of guilt, was a valid strategy for winning on the only
winnable issue, as the trial judge in this case noted. See Nixon
11, 758 So. 2d, at 630 (Wells, J., dissenting).

Counsel’s decision to inform Nixon of his strategy and
Nixon’s implicit acquiescence is sufficient to establish his
consent to this valid strategy. Nixon received a vigorous

25

defense, and the guilty verdict is reliable. The Sixth Amend-
ment guarantees a fair trial, not a perfect one. Nixon got his
fair trial, and he cannot now attack the result.

CONCLUSION

The decision of the Florida Supreme Court should be
reversed.

May, 2004

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0730%3A11. Public record. Not legal advice.