*1 ISLANDS, THE Appellant OF VIRGIN GOVERNMENT WEATHERWAX WILLIAM No. 95-7126 of Appeals United States Court for the Third Circuit 13, 1996
March *2 W. Ronald States L. United Attorney, Jennings, Charles Jenkins Christiansted, Croix, Assistant U.S. St. (Argued), Attorney,
U.S.V.I., Appellant for Headley-LaMont Headley-LaMont & (Argued), Marshack, Amelia Christiansted, Croix, U.S.V.I., Appellee St. Circuit Judges STAPLETON, WEIS, LEWIS
BEFORE: THE COURT OPINION OF STAPLETON, Judge Circuit has corpus proceeding that this habeas
This is the second time
Virgin
Government
previous appeal,
us. In the
been before
(3d
1994),
reversed the
Weatherwax,
We further testimony, of Weatherwax's article with its distorted reporting [would be] resulting of the trial likelihood of taint to fairness [and] prong would also be met." 20 apparent Strickland's second We, therefore, that if the district court found F.3d at instructed 580. (1) juror that a in fact had into brought on remand (2) had been in- lawyer room and that Weatherwax's this, a prima then Weatherwax would have "made out formed of [v. ineffective assistance of counsel under Strickland facie case of (1984),] 674, 2d U.S. L. Ed. S. Ct. 2052 Washington,466 facie" were established on Id. If such a case "prima standard." "[t]he remand, that, must government then we instructed counsel rela- Weatherwax's opportunity question afforded the show, the voir in order to if tive his failure dire request of 'sound on the basis trial applicable, proceeded counsel 689). Strickland, (quoting 466 U.S. at strategy.'" Id. remand, did not contest Weatherwax's government
On (1) juror possession in fact had had claims (2) had been in- lawyer room and that Weatherwax's Thus, made out a facie case of prima formed of this. Weatherwax Strickland, under and the burden ineffective assistance of counsel that Weatherwax's counsel had government shifted to the to show trial Id. proceeded strategy." on the basis of "sound burden, called Weatherwax's trial government To meet its called his attorney, Joseph. response, Michael Weatherwax sister *4 brother-in-law, trial, and were the and present during gave his who events. the account of the relevant With sole exception own below, the these was not in noted witnesses testimony conflict. and a lawyer criminal defense Joseph, experienced lifelong Islands, Virgin of the was privately resident retained with stayed during Weatherwax. Weatherwax in his home Joseph the days pretrial preparation throughout last few and trial. 23.) (J.A. it difficult very Among considered "a case." it 1 The article on the had heard the reported only testimony jury preceding day; no extra-record about or the crime. included information Weatherwax he intended strategy he to Weatherwax things, explained other on the fact part That was based selecting jury. strategy use in a racially charged atmosphere created a case had that Weatherwax's white, a so-called because Weatherwax was in the Islands Virgin "Continental," the victim was black. It was also based on anticipated the victim's death and Weatherwax's surrounding facts testified: defense. [D]id sir, a regard selecting jury?
Q. with you strategy, have A. course. Of strategy?
Q. And what was that really in which facts were not A. ... I saw this case as a case that would hear dispute compared too much in as instance, it the facts. For interpret the facts an unlicensed firearm was involved. It would undenied that an unlicensed possessed be undenied that Mr. Weatherwax dis- It would be undenied that Mr. Weatherwax firearm. an unlicensed firearm. It would be undenied that charged not have a firearm. And it would be who was shot did person be witnesses who would have undenied that there would to Mr. danger presented as to what conflicting stories Therefore, percep- I Mr. Weatherwax's thought Weatherwax. him, gist what was which is happening tion as to oí case, but whether really not whaf s happening self defense danger themselves to be in reasonably perceived the person who would jurors was the of this case and we needed gist with that situation. identify
[*] [*] [*] [*] to achieve in the you striving composition Q. What were jury? Weatherwax Sympathy.
A. certain upon profile Q. that based you doing And were persons? venire Absolutely.
A. you looking specifically? Q. What were I for as on looking many A. was Continentals possible.
Q. what reason did do that? you And for A. Sympathy. they assume that you
Q. Is another way saying identified with the defendant? Absolutely.
A. 26-27.)
(J.A. 23-24, at trial Joseph objective further testified a second his only the to convict on a lesser strategy persuade jury was event evidence of self defense did not included offense the acquittal on all counts. produce case
The selected hear Weatherwax's consisted jury ultimately largest and black It was the number of jurors. of three white nine Virgin ever seen on a Islands and Joseph jury Continentals had 28.) (J.A. at was "ecstatic." trial, the trial admon- during judge
On occasions numerous articles about trial in reading ished the avoid not, however, instruct read a He did them newspaper. newspaper. trial, had day the last of the after Weatherwax morning
On the to call just prosecution finished his as the about testimony sister, his Sally Lay, witnesses, its rebuttal Weatherwax's brother-in-law, walk juror observed from Lay, William under his arm. newspaper room into the court with a local room and, accordingly, They did not him reading observe paper juror know had been did not what portion Weatherwax and a bailiff of to. Mr. and Mrs. advised exposed Lay action but took no advised them their observation. The bailiff to their lawyer. speak Weatherwax, family and several other members Lays, informed about the newspaper
took the bailiff's advice and A entering he was the door of the courtroom. conversation "not ensued. Weatherwax the view that it was expressed right" asked to have and he as well as his relatives juror 64.) (J.A. about it. described something Lay to do Mrs. terms: response following conversation and in the ma'am, you is Q. anything you, didn't ask all I'm asking You him to just do You asked anything specific. didn't ask him to something it? do about *6 it, about file a motion something
A. We asked him to do file a motion for a mistrial and he said he would something tomorrow.
X- X- X- X- said, something Q. And that's not all he did he? He said else didn't he?
A. In this conversation?
Q. Yes. Yes,he did.
A.
Q. say? What did he — well, things during A. He said that he he said a lot of course of the conversation. recall,
Q. specifically you Lay, As can Mrs. I would like for that Mr. said. you everything to tell the Court [sic] newspaper A. He said that the with the is a white man. He was Leave it Billy's He would case. on our side. help He would file a motion for a mistrial tomorrow. alone. it, Q. he told not to about didn't he? you essentially worry So Objection. Ms. Lamont: examination. Ask her that question Court: It's cross you
before on to else. go something Mr. By Humphreys:
Q. You may question. Attorney Joseph you answer the told situation, he? worry about the didn't No, A. he did not use those words. fact, you,
Q. But he did tell as a matter of that he believed that side," had juror you your identified was "on didn't he?
A. Yes. it,
Q. And also told not to attention to didn't you bring any he?
A. Yes. 67-68.) (J.A. family nor his thereafter Neither Weatherwax brought the to the attention of the court. testified that he had monitored the newspapers daily
inflammatory material and that he had the article in that read in the to court. He described coming before paper
morning's Lays' advised upon being terms reaction following observation: [sic] and walk into me a has telling juror
A. ... So was that's a honest my impression pretty tells me court man.
Q. man? he an honest Why as to from the newspaper A. if he wanted assistance Because court, it he would have read clandes- is happening what *7 Many to court like that. He wouldn't have walked tinely. just community sports page. Many people love the people in this do their cross- they If don't puzzles. to do crossword love day. a they good don't have puzzle, word newspaper, Q. that the a you possession Do believe itself, a for mistrial? and of was a valid basis possession, in Absolutely A. not. jury?
Q. it a basis for polling Was valid A. that jury. Not
Q. wanted that you jury? Because I have used it as Absolutely. jury might A. another On excuse. polled?
Q. did that the be request jury So you A. No. sir? your part,
Q. that a decision on Was sir, that you, what I'm to tell trying A. Of course it was. That's Christian, had Almeric come anybody, including Judge if [sic] you me, is Joseph, my opinion "Michael it that tell said, Honor, "Your leave poll jury," I would have should jurymy alone." 37-38.)
(J.A. Joseph in the relates to whether testimony sole conflict a filing committed himself this conversation to during Lay a Mrs. insisted that he did: motion for mistrial.
Q. was done? your knowledge, To what care it and he would A. Mr. said he would take a motion for a mistrial tomorrow. file 48.) (J.A. at but testified that he said he would think about the matter he did not commit to a mistrial. seeking
insisted that a anyone you might Q. recall ever consider you telling Do motion for a mistrial? I that. I would call only telling anyone
A. Not do not recall not that would have moved for a mistrial on those any lawyer of the of the It was grounds composition jury. a fool because a rare of such a selected jury. Probably jury being, odds me, if mentioned that to I again was nil. And someone would have at them. probably laughed is the telling Billy my opinion I recall that it was that this Weatherwax, here, that this getting right best shot he's Mr. get. was about the best he would ever Well, Q. let's inside You told the get your thought process. fact, think Did you you,
defendant about it. think about it?
A. Of course.
Q. you Did come to a conclusion about whether or not it would important you request request to either mistrial or of the
polling jury? *8 you A. it's that understand that had been Again, important this very very feeling. a that left me with a happy, happy 33-34.) (J.A. at by Joseph
No motion for a mistrial was filed and the incident was not this habeas pursued prior filing of proceeding.
The district court credited that he made a Joseph's testimony deliberate and decision not to the pursue however, concluded, issue. It that his conversation with the during he had family Weatherwax led them to believe that the issue would pursued way. Specifically, some the district court found that some assurances "despite giving would 'file motion/ determined that Attorney Joseph the incident did not warrant (Dist. 7.) with the interfering composition Op. of the Ct. jury." its Despite Joseph's conclusion decision had been deliberate and the district court ruled that strategic, nevertheless failure to call the court's attention to the incident of alleged juror was unreasonable under the Strickland standard
misconduct It attorney's measuring performance. explained: [C]ounsel's notify juror's court decision not to misconduct, was a breach of a fundamen- in the first instance second, client, his duty his and breach of duty tal this an officer of court. court finds strategy, claim as to a this
Accepting trial counsel's and therefore counsel judge, the decision denied trial searching client, inquiry to conduct opportunity and extent of the jury's to determine the required that was such, the decision evidence. As exposure extra-judicial professional exercise cannot be said have been reasonable judgment. 16.)
(Dist. Op. at Ct. test of the Strickland prong The court then addressed second relief under the doctrine determined that the facts warranted disregard of trial counsel's of that case. It found that "because court, duty objective there are no his client's wishes to this any, if as a prejudice, which court can determine upon criteria this that a voir dire was juror's result of the misconduct. To extent finality conducted, is excused. Since con- proof prejudice that the result of the are weaker when one the assurances cerns (Dist. absent, a new trial is warranted." Ct. proceeding is reliable is 17-18.) Op. at
II. court's of fact for clear error. We findings We review the district however, independent make an on whether judgment, must constitutionally constitute ineffective assistance of facts thus found (3d Cir.), 159, Mazurkiewicz,1 counsel. F.3d cert. McAleese (1993). denied, 2d 126 L. Ed. S. Ct. 645 *9 III. duty district court that breached a to his reasoned (a) necessary to secure a voir steps client because he failed take issue whether the in fact inquiry dire directed of
408 (b) with or follow failed to consult had prejudiced de matters. Our novo from client about directions contrary leads us to a conclusion. review
A.
Washington:
of
teachings
start with the
Strickland
We
claim, the perfor-
any
case
ineffectiveness
presenting
must be whether counsel's assistance
inquiry
mance
Prevailing
the circumstances.
considering
reasonable
all
Bar Association
of
as reflected in American
practice
norms
like,
ABA Standards for Criminal
e.g.,
and the
standards
(2d
1980) ("The
Function"),
4-1.1
ed.
Defense
to 4-8.6
Justice
reasonable,
they
but
are
determining what is
guides
are
rules for counsel's
set of detailed
only guides.
particular
No
variety
of
satisfactorily
can
take account of
conduct
range
counsel or the
circumstances faced
defense
a crimi-
represent
how best
legitimate
regarding
decisions
with the
such set of rules would interfere
Any
nal defendant.
and re-
independence of counsel
constitutionally protected
making
have
must
tactical
strict
wide latitude counsel
Decoster,
D.C.
App.
decisions. See
Statesv.
U.S.
United
Indeed,
at
the existence of detailed
at
Judicial of attorney performance A fair assessment deferential. ... the distorting effort be made to eliminate every requires circumstances of counsel's to reconstruct the hindsight, effects conduct, the conduct from counsel's and to evaluate challenged inherent in of the difficulties the time. Because perspective evaluation, indulge strong presump- must court making range within the wide conduct falls tion counsel's assistance; is, defendant must professional reasonable circumstances, that, under the presumption overcome strategy." sound trial "might action considered challenged *10 Louisiana, 91, 101, 100 U.S. (quoting 688-89 Michel 350 466 U.S. (1955)). 83, L. 158 Ed. 76 S. Ct.
Thus, in professional provide guidance while standards counsel, do not define they of evaluating performance acceptable constitutionally and boundary constitutionally between requires only The Constitution performance.2 unacceptable be all of circum considering counsel's assistance "reasonable" of assuring "vigorous advocacy stances and the ultimate objective Moreover, the defendant's cause." Id. at 689. evaluation of "strong must with a coun begin presumption reasonableness range professional falls within wide of reasonable sel's conduct Id. assistance." Strickland, Supreme these Court principles
Applying interplay attorney's duty investigate a discussed the between strategic regarding her that matter: matter and choices choices made after law [S]trategic thorough investigation options virtually are unchal- plausible and facts relevant to complete made than strategic choices after less lengeable; are to the extent that rea- investigation precisely reasonable the limitations professional judgments support sonable on words, duty In counsel has a to make investigation. other make reasonable or to a reasonable decision investigations investigations unnecessary. any makes inef- particular case, a investigate fectiveness not to must particular in all the directly assessed for reasonableness circum- stances, applying heavy a measure deference to counsel's judgments.
Id. at 690-91. Whiteside, Court on this in Nix v. that: stating
2 The
elaborated
Supreme
point
[B]reach of an ethical standard does not
make out a denial of
Sixth
necessarily
conduct,
Amendment
assistance of counsel. When
guarantee
examining attorney
careful not
under
range
court must be
to narrow the wide
of conduct
acceptable
so
as to
Sixth Amendment
constitutionalize
standards of
restrictively
particular
conduct and
into the
to define
authority
intrude
state's
professional
thereby
proper
it
professional
applicable
practice
standards
conduct
to those
admits
apply
courts.
its
U.S.
165,
L. Ed. 2d
123,
— a with a and that that had been seen newspaper, juror article a contained given potentially damaging newspaper could that this was best that view expected Joseph's view, not to we think that the decision from Weatherwax's point inform the court was reasonable "under prevailing professional Strickland, acted in what norms." 466 U.S. 688. Joseph that he had the to be his client's best interests. He believed believed circumstances, under and he made a best judg jury possible make under the same ment that would many competent litigators incident to the court's circumstances. Bringing a that the court attention would have created possibility felt which either declare a mistrial or otherwise alter a jury Given the statement favored defense.3 Court's Supreme are effective assistance in "there countless ways any provide case," conduct and the that counsel's given "strong presumption assistance," falls within the wide of reasonable range professional request satisfied client's agree 3 We do not with the dissent could have his. "In case every he believed to be a jury. without substantial risk what favorable losing have received where the trial learns that a member or members of jury may court court must with for substantial the trial prejudice, extra-record information a potential have Government determine whether the members of the been prejudiced." (3d 1987). Thus, 134, 139 Cir. Virgin Dowling, Joseph brought Islands v. 814 F.2d had attention, had the court would have incident trial court's discretion, found had if it. affirmative to conduct voir dire would have obligation article, or more to declare mistrial. jurors excuse one or exposure more, cannot, rule that without we id. at Joseph's a matter of further was unreasonable strategy.4 investigate B. also found The district court representation Joseph's direction from to follow he failed fully ineffective because unreasonable inherently do not view as we dissenting colleague, 4 Unlike our white three jury including interest to have it in Weatherwax's that was judgment make trial necessarily jurors. Lawyers or no white having than one fewer rather jurors empirical have hard occasionally While they based on probabilities. strategy judgments on an more based frequently utilize are they rely upon, probabilities data to experience. in the own lawyer's personal nature rooted of human assessment and that he at him with a rock victim started coming had testified that the Weatherwax that, jurors as a matter of probability, believed for his life. Joseph feared *12 with more to likely identify would be racial background Weatherwax's own jurors to be than genuine and believe his fear Weatherwax victim/ is belief no to determine whether There is way racial background. assailant's inaccurate, however, and to be empirically It has not been shown accurate. empirically not hold. could attorney it is a view that a reasonable to that unwilling say we are may, nor the defense neither the prosecution Court has held that The Supreme Clause, challenges peremptory utilize state-created Protection Equal consistent with 476 U.S. Kentucky, their race. Batsonv. on a because of jury from service to exclude jurors 42, 59, 120 McCollum, (1986); 69, 106 79, 96-98, 90 505 U.S. Georgia 1712 v. L. Ed. 2d S. Ct. concluded, however, (1992). 33, 112 Court has never Ct. 2348 The Supreme L. Ed. 2d S. of different racial and experiences from the attitudes arising aversions and affinities that empirical There is some do not affect verdicts. not exist or that they do groups evidence to the 262, 107 279, 287, 95L. Ed. 2d 481 U.S. McCleskey Kemp, v. contrary. E.g., (1987) who kill white that black defendants indicating (discussing study S. Ct. 1756 Brand, S. Jeffrey the death receiving penalty); likelihood greatest victims have Matters, Protection, Court, Race Still 1994 Denying Selection: That Jury Supreme Equal 511, that the likelihood of a have found 628 n.584 that studies (noting Wis. L. Rev. defendant); 619, and of the id. at to the race of the juror to is correlated acquit courtroom, that, in a minority operates because of the racism way 630 (arguing increase challenges to use race-based peremptory to be able ought defendant Jury Postconviction Review Nancy King, on the jury); minority participation J. Decisions, 63, Mich. L. Rev. Race on 92 Jury Measuring Discrimination: Juror Effectsof decisions); (1993) Sheri race influences juror studies (reviewing reporting 80-99 (1985) 1611, L. 1616-43 Johnson, Jury, 83 Mich. Rev. BlackInnocenceand the White Lynn the determination of racial bias on juror research influence (discussing reporting (Thomas, McCollum, J., the broad concurring) (recognizing U.S. at 61 see also 505 guilt); sense," that and common "conscious confirmed "common by experience perception, and that it influence some society may our prejudice persists and unconscious ("It (O'Connor, J., is now clear that conscious and dissenting) id. at 68 juries"); defendants and minority can affect the white way jurors perceive unconscious racism trials, the verdict of determining guilt the facts at their perhaps presented innocence."). of counsel has the Court ever held that ineffective assistance Supreme Nor on the her based judgment occurs whenever an exercises his or attorney professional We do not believe such aversions and affinities influence a verdict. may jury's belief that if would so hold with this case. presented it 412 not to when he decided with his client consult bring the court's attention. incident the rules of case law and in the
There is general agreement to make decisions the authority responsibility professional case is in a criminal conduct of the defense split regarding v. their See defendants between criminal attorneys. Jones (1983); 987, 745, 751, 77 S. Ct. 3308 Barnes, L. Ed. 2d 463 U.S. (11th denied, Cir.), cert. F.2d United States Teague, (1992); 127, 121 Bar 842, 113 1 American L. Ed. 2d 82 S. Ct. 506 U.S. (2d ed. 1980 & 4-5.2 Standards for Criminal Association § Justice 1986) this ABA While Standards]. [hereinafter general prop Supp. to draw the clear than where osition is more dividing precisely line, has some Court helps guidance Supreme provided the issue. narrow a criminal held that Court Jones, although Supreme Due an under the has an access
defendant appeal equal right Clauses, has no constitutional Protection Process and Equal non-frivolous advance to insist that counsel every appellate right at 754. The Court's the defendant wants raised. 463 U.S. argument reflected of its review recognition jurisprudence prior Jones to make certain has the ultimate that "the accused authority As decisions the case." Id. 751. fundamental examples regarding decisions," deci- those "fundamental Court pointed to waive the to trial whether to sions guilty, right concerning plead behalf, or to waive in one's own to take appeal, by jury, testify *13 806, 834, 422 counsel. also Faretta v. U.S. to See California, right (1975). 562, L. Ed. 2d Ct. 2525 45 95 S. referred to ABA Model of its Court analysis, support Jones 1.2(a), decisions on which reserves
Rule of Professional Conduct client, matters to the and then fundamental recognized expressly decisions that non-fundamental the complementary proposition her counsel on the basis of or are to be made professional by client: consultation with the exercised after judgment a client's decisions "A shall abide concerning by lawyer client consult with the . . . and shall objectives representation ... In a which are to be as to the means they pursued. by decision,. case, the client's . . shall abide criminal lawyer 413 whetherthe entered, waive trial and to plea as to be whether to Conduct, Pro- of Professional Model Rules testify.” will client added). (Final 1982) 1.2(a) (emphasis Draft posed Rule decisions, an fundamental specified of these exception With for the responsibility to take professional is attorney's duty case, client. consulting with his of the after conduct n.6. 463 U.S. 753 being recognize Standards for Criminal The ABA Justice judg- for counsel's issues reserved the' non-fundamental
among cross-examinations, what to conduct ment "whether how [and] strike,' should be made what trial motions accept jurors 4-5.2(b). recoge have also Several courts § . . . ." ABA Standards among the non-fundamental being selection as nized witness E.g., States is to make at trial. United that counsel entitled decisions (11th 1982) counsel's, 848, (holding that F.2d Cir. Long, v. 674 855 was not ineffective assistance failure to call witnesses alibi second-guess not tactical decisions "This Court will stating: witnesses."); certain State v. deciding whether call counsel (Conn. 1986) 88, 86, (holding Davis, A.2d 92 199 Conn. 506 witness, had him call that his client instructed counsel's refusal to right compulsory process); to call did not violate defendant's 931, Rptr. 353, 925, People Deere, P.2d 222 Cal. 13 v. 41 Cal. 3d 710 (Cal. 1985)(in bank); 93, 72, L. Sykes, U.S. 53 Ed: ("[The Wainwrightv. 433 (1977) 594, (Burger, concurring) 2d S. C.J., 97 Ct.. 2497 — client, the immediate and ultimate attorney], has witnesses, object, if and when to which responsibility deciding call, Circuit develop."). if and what defenses to Sixth any, similarly falls Court of has concluded that issue selection Appeals (6th 1984) Bergen, in this F.2d Cir. category. Meeks (criminal may defense counsel make assert syndrome self-defense rather than battered wife as defense at trial). murder The Eleventh Circuit has Appeals client's Court to decide authority concluded that counsel has ultimate issues introduced, concerning stipula- "what evidence should be what made, raised, should be what and what objections tions should Teague, F.2d pre-trial motions should be filed." at 1531. First Recent decisions and Eleventh Circuit Courts of *14 recognize the with Appeals prerogatives respect counsel defense
414
ineffective
rejecting
in the course of
matters
non-fundamental
Routley Singletary,
defendant corrections from the out a "Russian roulette" scene acting inmate while 1978). (Universal The Deerhunter Studios picture motion from the excerpt wished to introduce a fifteen minute prosecution counsel, mimicked. Defense allegedly the scene containing film client, film that the stipulated of his objection over strenuous held that this entirety. in its The court could be exhibited to the client, observing: of his was not ineffective assistance relevance, value, concerning probative Based on his judgments rule, likely and how the unfairly impact, judge prejudicial on a motion to prevail calculated that he would not counsel losses, In an effort to cut clip. anticipated exclude the film that the entire from the prosecution obtained stipulation shown, that the expectation would be in the three-hour movie dissipated. of the critical scene would be impact * * * * assistance, an attorney's the shoals of ineffective To avoid as it is reason- necessarily right, long need not so judgment *15 687-91, Here, at Strickland, 104 Ct. 2064. at S. 466 U.S. able. See it, acting on choice. an reasonable unarguably made counsel com- ensuing stipulation, for the a fair concession he extracted film rather than show entire prosecution to pelling And, shorter, excerpt. finally, more powerful in on the zeroing has the wishes of his client no by abide decision not to counsel's professional competence; of bearing question on the necessary instances, rather than to listening indeed, to the client in some itself constitute in- may professional judgment the dictates of competence. (footnote omitted).
11 at 227 F.3d concluded proceeding district court in this to direct instruction "do to follow Weatherwax's required to We Whether file disagree. a motion." something," such "file decision[] not a "fundamental a in this context was motion the precise at 751. the case." 463 U.S. Wherever regarding Jones, drawn, should be decision-making line client and counsel between realm and tactics strategy this fell within the squarely decision was a decision for make. thus — such as a deemed "fundamental" Some of the decisions — or to an relate plead guilty appeal whether to take of the objectives representation. directly Model Rules Cf. (1994) 1.2(a) lawyer a (stating Conduct Rule must Professional concerning represen- client's by objectives abide tation). a decisions receive full and While the accused should careful taking her a or lawyer entering guilty plea advice of before an appeal, ultimately by these decisions must be made the defendant can lawyer likely consequences herself. The inform the client decisions, but only of those the defendant knows whether she prefers prefers to bear those consequences accept costs and consequences going filing appeal. to trial or an decisions, forego
Other fundamental such as whether to assis- counsel, trial, testify tance of to waive a or to in one's own behalf, may in sense be viewed as decisions because they relate means defense to obtain the employed of the primary favorable end object representation ordinarily, Nevertheless, personal result. decisions are so and crucial these
416 take on fate that equivalent the accused's importance they As the Court of the that of representation. objectives deciding conduct his Faretta, for may example, "although explained detriment, must be his choice to his own defense own ultimately is the which for the individual of 'that honored out respect Allen, Illinois the law.'" 422 U.S. lifeblood of (quoting (1970) (Brennan, J., 337, 350-51, Ed. 2d S. Ct. 1057 25 L. U.S. *16 concurring)). incident to the decision not newspaper bring
Joseph's First, as fundamental. cannot be court's attention regarded Jo the of his not to decision did relate directly objectives seph's murder and of first at that degree point acquittal representation Instead, concerned the decision the lesser only Joseph's charges. to As the reach that defense means goal. agreed-upon employed by 1.2(a) Rule of Professional Conduct the to Model commentary states, a client's decisions while a must abide concerning lawyer by to "is the of her lawyer required representation, objectives wish the a client . . means because . may simply employ do so." lawyer funda- to make a did Weatherwax's
Nor authority usurp to decisions on whether to mental comparable personal trial, counsel, to in to waive a assistance of testify jury forego Instead, whether he decision concerned one's own behalf. Joseph's once he learned that a distorted account should object It was trial have made its to of the may way jury. testimony decision, but was not one where it respect clearly important us to the individual's disregard desirability autonomy requires in the client's best exercised judgment having professional interest. to a believe decision not
We object analogous Joseph's to the admission of inadmissible choice not object strategic situations, In both evidence tendered by hearsay prosecution. (or is of a failure to that the will consequence object Weatherwax's case learn information untested might) that it would not otherwise have learned. adversarial process instances, that from both defense counsel has power prevent but decides that it is not to strategically advantageous happening, to the district courFs make suggestion, objection. Contrary trial implicated. to a right is the defendant7s neither instance province is 77theexclusive the decision In both instances 4-5.2(b), here, if, that decision has § lawyer/7 ABAStandards second-guess basis, authority without a court is a rational call. judgment counsel's
C. thus a fundamental one and decision was not That end our lawyer" of the does not province exclusive fell into "the and tactical decisions should Important however. inquiry, with his client. ABAStandards lawyer after a consults only be made 4-5.2(b); Strickland, "duties to (noting counsel's 466 U.S. § keep decisions and important with the defendant on consult in the course developments informed of important defendant the prosecution"). and his client in the courthouse interchange between fairly, the trial cannot in our morning judgment, the last
on the fact that the Considering a failure to consult. described as entering when counsel was suddenly incident arose *17 trial, this while morning interchange, the last of the courtroom on brief, that it lasted Lay far from Mrs. indicated perfunctory. and family speak each of the members to long enough for the course of the conversa- during to "a lot of Joseph say things 67.) family client's had to Joseph listened to what the tion." 0.A. He evaluated and to their views about what should be done. report and his own view of what was in expressed that information Moreover, explained best interests. reasons Weatherwax's best could behind his view that this was the Weatherwax at the family complained for. Weatherwax nor his hope Neither them off short. Their hearing listening cutting about not him to "file a motion" and he did they was that wanted complaint true, not file one. While this is it does not mean that failed with client about the decision to be made. to consult his that counsel consult with his or her client requirement issues on which counsel has the final word serves a concerning First, number of it assures that the client will important purposes. have the to assist with his own defense. As one court opportunity
418 him experience give and attorney's noted, education "while has information, 'the technical knowledge generalized superior — knowledge sort of another superior knowledge client possesses Dugger, his case.'" Stano 921 circumstances of of the facts and (11th Cir.) (second original) 1125, alteration in n.33 F.2d 1146 Decisionmaking:In Lawyeringand Client Spiegel, Mark (quoting L. Rev. Legal 128 U. Pa. and the Consent Profession, formed (1991); (1979)), Strickland, denied, atU.S. 691 cert. U.S. 835 cf. must be investigate not to matter (noting counsel's have might that the defendant in of information light evaluated Second, the views and desires client's lawyer). supplied relevant consider be followed are concerning the best course to into account counsel. be evaluated and taken ations that must may consultation, the client views and desires of Without Third, serves to and promote to consultation be known counsel. have care relationship. We cooperative maintain a client-counsel we no threat fully perceive the record this case and reviewed had an Weatherwax accomplishment any objectives. these to him information available and convey the ample opportunity situation, nothing and about appraisal to share his own appear to have length or of the conference would character Joseph and relationship between attorney-client strained Weatherwax. may circum- between counsel client some
Consultation a consul- fourth If the client learns from purpose. stances serve a contrary going pursue strategy tation that counsel is wish the matter is the client important enough client's the consultation forego representation, the benefits of his current representa- afford the client an to seek different may opportunity assurance given was found to have some tion. that Joseph Given "file a motion" and not to have communicated that he would *18 Weatherwax, requires this fourth further purpose final decision to discussion. on regarding to consult issues duty constitutional that counsel-act requires only
which counsel has the last word likely the circumstances and what is to be reasonably light be made in a consultation. When decisions must accomplished by trial, for it will often be unreasonable example, the heat of battle decision is made before the consultation expect any con- meaningful for opportunity either because the implemented, to be anything there is little if not exist or because sultation does consultation. gained by consultation, for coun there is an opportunity
Even where his final decision elect not to communicate may reasonably sel their views on exchanged previously when counsel and client have is not a changing representation alternative of the issue and the situations, importance nature or many trial realistic one. cannot disagreement occurs the issue over which client-counsel seriously foregoing to consider to cause the client expected situations, In other representation. of the current advantages would be change representation pointless of a consideration stage it at that in the permit the court would not because proceedings. contend,
Here, and the district court did not Weatherwax did not find, sought change representa- would have Weatherwax advised of final decision on the news- tion had he been contend, court did Weatherwax or the district issue. Nor paper find, that should have that the district court Joseph anticipated change a continuance and on might permit representation Indeed, trial. Weatherwax did not day last of Weatherwax's find, district court did not that there was an argue, and the with after opportunity meaningful consultation Weatherwax pursue newspaper made his decision not to issue. Joseph say We cannot on the basis of this record that acted Joseph unreasonably failing under all the circumstances in to tell Weatherwax, verdict,5 prior jury's of his ultimate decision on had rebuttal newspaper Joseph issue.6 witnesses to cross- 6The Nothing, verdict, no causal nexus between that account of the trial conclusion of the dient when he said he would "do deception of Weatherwax's case had this was the case. If such during district court the courtroom conference and thus that course, himself or did foreclosed testimony. conference, by jury find that through Weatherwax Whether deception other Joseph the district court was not at something." Accordingly, may counsel, made his and the occurred, however, from have been made his final decision as he pursuing alleged problem here final ultimately exposed decision on the deliberately misleading newspaper we decline to assume that there would to a distorted did in this liberty before issue after the appear to overturn proceeding. or after resolution to be issue *19 attend, and a summation examine, conference a instruction jury to consult was a fair assuming opportunity there Even to deliver. however, Weatherwax, Joseph we do not believe with further anything anticipated to have expected reasonably could contrary, On the taking that course. accomplished by would be record, we believe that in the disclosed given the circumstances believed would not have Joseph's position reasonable counsel seriously change consider a would either that Weatherwax a that, did, have permitted if he the court would representation only stage proceedings. Not representation at that change in on the jury, have been a burden an extended continuance would new counsel would have no assurance that the trial court would insisting. upon which strategy not insist on the same a short, and cons of tactical discussing pros after client, that was reasonable choice with his made a his client of that decision cannot his to make. His failure to advise unreasonable, has failed to and Weatherwax thus be said to be of constitution carry overcoming presumption burden of ally acceptable performance.
IV. also reasoned that decision not Joseph's The district court a attention was "breach bring the incident to court's (Dist. 16.) as duty Op. Joseph's of his an officerof the court." Ct. court, view, duty to the trial in the district court7s followed both bear skill and "duty bring knowledge from counsel's such testing process," will render the trial a reliable adversarial Strickland, repeated from the trial judge's 466 U.S. at that the should articles about the reading admonitions avoid trial. evidence, conviction without based on record making finding,
Weatherwax's motion, would been raised objection without assurances about have Joseph's filing had the burden of the course of events altered. This is not that Weatherwax say however, that the article affected We do showing adversely jury. say, have relief on the basis of assurances would been corpus inappropriate habeas have where was no reason to believe a different decided Weatherwax's there case in the of those assurances. absence whether or the trial opinion We no on Strickland express *20 the district court's support theory court's admonitions repeated the court him to required bring that as an officer of Joseph's duty explained, Joseph to the court's attention.7 As we have the matter the what he believed solely purpose serving acted as he did with to be the best interests of his client and in manner consistent fact, even if obligations Joseph his other to his client. Given this possibility to the court to inform it of the duty had some misconduct, the breach of that perceive why duty we no reason conviction. If counsel require should the reversal of Weatherwax's court, duty necessarily breaches a to the this does not mean that the Assuming Joseph of his client was ineffective. that representation duty some ethical to the court that would warrant did violate him, against provide sanctions that breach would no disciplinary would, effect, remedy impose for a a sanction justification Indeed, upon government. overturning the we believe that a convic tion in a situation of this kind on the basis of counsel's breach of an duty ethical to the court would create a incentive for perverse by defense counsel to "build in" reversible error for their clients violating their duties as officers of court. accordingly any
We hold that breach of Joseph's duty judgment court would not of the district court. support
V. reasons, For the the district court's foregoing judgment directing Weatherwax's retrial or release will be reversed and this case will be remanded with petition instructions that his for habeas relief be denied.
LEWIS, Judge, dissenting. Circuit
A naive assumption about race served as the sole basis for Joseph's "strategic decision" ignore the wishes of his client 7 TheWeatherwax did not a violation of the family report court's order that jurors refrain from articles about the case. reading Joseph's view there had been no likely Moreover, violation of that order was not unreasonable. investigation necessary determine whether there had been a violation could not be conducted without court was, such approval seeking approval Joseph's professional judgment, inconsis tent with his to his duty loyalty client. issue of whether had an ethical is, to the court to incident duty a debatable one. report newspaper accordingly, that the believe only I not incident. regarding norms; I professional prevailing was under decision unreasonable assumption upon underlying was also that it based believe Court in Supreme as unreasonable explicitly rejected (1986) 79,90 69, 106 2d S. Ct. 1712 L. Ed. Kentucky, 476U.S. Batson jurors that black reasonable to assume that it is (rejecting notion shared on account their solely black defendants will be partial race). Batson, I dissent.1 Accordingly, 476 U.S. 97. See charged" acknowledges "racially majority
Although
extent
case,
adequately pursues
this
I do not believe it
nature of
inform the court
not to
to which race influenced
room,
into the
juror
carrying
about the
seen
article about
inaccurate and unfavorable
which included an
*21
view,
to
whether
fairly
In
assess
order
testimony. my
client's
reasonable,
candidly
we must
ad-
choice was
Joseph's strategic
his
that influenced
decision.
assumptions
dress the
a sound
Joseph's
In
actions constituted
determining whether
the fact that
great emphasis upon
strategy, majority places
trial
the
the
was the best that
"jury
a belief that
decision stemmed from
Op.
view."
at
point
(Maj.
from
of
expected
could be
Weatherwax's
16).
concludes,
this,
decision
[strategic]
the
"the
light
majority
In
prevailing profes-
not
court was reasonable 'under
to inform the
16).
words, Joseph thought
other
(Maj. Op.
sional norms.'"2
at
This
According
issue of whether a strategic
professionally
particular
tions about
or her client and increases the likelihood that that client's constitutional
impartial
have created
Weatherwax;
a
whom
of the reasonableness or
article was
prejudicial
1994)
case
juror,
(discussing
does not
however,
jury will
racial
nature. See Government
read
a
majority, "bringing
and
felt favored the defense." (Maj.
reasonable when that decision
likelihood that the court would
require
proclivities
make-up
Government
by
(3)
that
one or more
violated.
us to decide the broader and
legitimacy
necessarily
of a
a
decision,
juror
jury.
jurors
who read the article was
Virgin
Rather,
of trial
jurors;
have
based
grounded exclusively
Virgin
Islands
strategies
required
the views
solely upon
(2)
runs
Islands v.
Op.
either
that
v.
incident to
Dowling,
at
counter
admittedly
a
declare
that are
16).
its contents were
I
finding
express
Weatherwax,
their
A mistrial or the dismissal of
Arguably, result, a a trial can be considered As after a strategic. finding itself, in and of cannot answer a decision was strategic, particular decision falls within the "wide whether that range question 466 U.S. . . . assistance." See Strickland Washington, competent (1984). 694, 674,104 Put 80 L. Ed. 2d S. Ct. 2052 differently, reasonable.3 all decisions are definition strategic by professionally determine whether a In order particular assistance," we must assess the constituted underlying "competent that, view, that decision is not basis for my inquiry Moreover, because the major- sufficiently pursued majority. does not confront felt that this was the best fully why ity from Weatherwax's its conclusion possible jury perspective, inaction was "reasonable 'under prevailing professional norms'" strikes me as least. say quite leap, think, I will to illustrate my following hypothetical, help point. Doe, man, a black is with first
Suppose charged degree John man, murder for but claims that the was in white shooting killing Furthermore, self-defense. that Doe's is all white. *22 suppose jury the course of the trial Doe's decides not to call to During attorney In Government based stereotype. inaction was unreasonable because it was motivated upon it is representation reasonable. In this that Joseph's reliance member of forego of this If the court were to have found that a particular juror the Weatherwax would still have benefitted from the actually prejudiced by reading of the juror premised upon a jury voir dire because he case, lawyer's was white. the panel seen Virgin we was deficient unless the district court determines he carrying case, however, observed belief the notion that Islands v. which decided that upon the the favorable Weatherwax, that "trial thought a the the record jury article), the is favorable to his counsel's actions here case, 20 F.3d make-up jury decisions developed then it is and I should be dismissed was favorable to his client." I was a 572, 579 presence adhere to by — the on remand solely by presumably counsel, totally illogical (3d of that client, Cir. this an including 1994), would juror simply clearly demonstrates an statement [Joseph] are explanation the white member (i.e., illegitimate our first review presumptively to indicate that that those based argue decided to insofar as because for his race- was that crime, despite man, a was witness black who the stand a heard. testimony the be request that Doe's claim counsel an ineffective assistance brings Doe appeal, On upon based incompetent was alleges lawyer that his in which he of the black testimony the eyewitness not to introduce his decision defense. aided his man, could have potentially whom Doe felt he chose not lawyer claims that charge, this Doe's response professional a he made a as witness because call this individual would have testimony witness's concluded that the judgment no the impact upon jury. had the logic, lawyer's explanation majority's
Under would have been testimony was not called because witness alone, upon would, a sufficient basis standing constitute ineffectual "reasonably 'under acted that Doe's counsel which conclude (See (favorably at 18 Maj. Op. norms.'" prevailing professional 1982) (11th Cir. Long, 674 F.2d United States citing not ineffec- call alibi witness was that counsel's failure to (holding guess "This Court will not-second stating: assistance and tive to call certain deciding counsel in whether tactical decisions of witnesses."))). it words, not find would majority In other eyewitness's felt that the why Doe's counsel necessary question introducing. testimony was not worth however, majority question answer to
Suppose, his not attorney Doe's made decision does not ask was that or would story the witness because he believed that incredible, of a black strongly testimony he felt that the but because no in the minds of an all-white carry weight would person simply not Surely, majority because the victim white. strategy a reasonable employed conclude that Doe's counsel to influence a allowing type stereotyping this of outmoded racial call witness. To countenance such an whether or not to would be "strategic decisionmaking," guise under the approach, of evil that Batson imprimatur upon type to place judicial such I have no doubt that under bury. its progeny sought circumstances, either criminal defendant permit we would form of being to risk sacrificed to odious system justice our legitimate strategic judgment. as a reasoning disguised racial *23 case reveals examination of the record this yet, And close why Joseph bring decided not to logic underlying that the newspaper incident to the court's attention is similar to very that of Doe's attorney.
For example, arguing to the district court that Joseph's trial, decision was reasonable and did not a new require for the attorney government stated that: be, As unlikable as it may we all have prejudices and prejudices may play Attorney Joseph, trials and based upon his education and but training more his told experience, you that, typically I speaking, don't like on my juries Continentals I say guess fairly this case can I cut Michael against the grain. He didn't do the same thing old this time. He was He I insightful. said have a different defendant with a
different . . profile. . Three Continentals on this I don't jury? want to disturb this I jury. want to leave it the way it is. It was
a tactical decision. Fie tried to He get jury. accomplished the fact of getting that once it was empaneled, he didn't want to disturb it.
He said ... I wanted to this I keep jury because knew with three on Continentals there that he had a better chance. 84). (JA Moreover, the "Proposed Findings Fact and Conclusions Law," by government submitted court, to the trial stated: Caucasian, Because the petitioner is and because he had been charged man, with killing a black Joseph decided that it was important to empanel many as Caucasians on people possible because he believed identify Caucasianswould with the petitioner. Given the murder, nature of the charge, first degree Court finds that Joseph's strategy, in that regard, was eminently reasonable. 98) added).
(JA (emphasis Simply put, Joseph disregarded his client's request that he "do something" about the newspaper incident because he felt that the three jurors, white solely white, because they were would sympa- thize with fact, Weatherwax. In Joseph's judgment was entirely motivated race. For example, [i.e. he stated that "Continentals *24 viewed as conservative retirees who are are often people] white n.4.) (See This admission Br. at Appellant's and anti-crime." to conclude Joseph for no reason whatsoever that there was reveals Weatherwax.other white would with jurors identify the that three are would who "conser- Why persons race. else than their shared charged with with an individual identify anti-crime" vative and of a firearm? illegal murder and degree possession first about the racial assumptions partisanship Joseph's troubling willing to risk so that he was deep-seated white were jurors the an who been prejudiced by white could have allowing juror, a to testimony, remain article written about client's unfavorable court, he went before the district testimony the In jury.4 Joseph's on [sic] reading the was jury if I told that say far as to "even was so to me." have made much difference See the it would not paper, the at 4. In to Opinion my opinion> Memorandum Judge Brotman's ever be considered assumptions might extent such unfortunate reasonable, basis of a professionally cannot form the they simply weighed of the interests that light decision in reasonable s attention. favor the matter to court7 bringing that white assumption of the scale was Joseph's On one side only based on their sympathize would with Weatherwax jurors which, race, backfired and which approach predictably, an shared unreasonable in Batson. explicitly Court Supreme rejected merits, but undeserving any weight, this is assumption theOn it one conclude any, might to that should pretend carry if one were the court about the informing it in favor weighed that on other of the scale were two newspaper But side incident.5 (1) explicit important considerations: Weatherwax's legitimate juror defendants of the same race. I do not 4 During in a theories. so As In the deep-seated jury variety stated against remain professionally majority's remain Rather, [sic] earlier, of social on his client hearing with I on the willing simply indefensible. view, however, the they science before unreasonableness by reading simply believe to risk allowing the district research, solely justify based that it is white man." an due a dispute the risk which tends upon unfavorable underlying is court, of Joseph's assumption unreasonable to assume that these "affinities" to his or her race. For white their race. Mrs. allowing legitimacy jurors, basis Lay article about his client's (J.A. show that testified that who my opinion, potentially 68). may accuracy is demonstrated jurors example, decision finds have Joseph biased or are in fact such of these studies or been if "said that the testimony, judgment Joseph prejudiced prejudiced partial support the fact had are is incident; about the "do something" request (2) to do so could that a failure jeopardize potential When constitutional Weatherwax's jury. impartial right another the one balanced responsible only professionally against trial court of was to inform the choice for and reasonable had occurred.6 what *25 was motivated
Because by improper, illegiti- Joseph's indefensible, about mate, outmoded stereotypical assumptions sit when are called and blacks of whites upon they proclivities citizens, decision fell and because his of their fellow in judgment assis- "the wide far outside competent range professionally entitled, affirm the tance," I would which Weatherwax was I dissent. order. district court's Accordingly, victim, I to a relative of the crime am discovered that one of the white was married jurors consider it reasonable for to want to Joseph keep confident that the would not majority Thus, her race. it seems clear to me that white on the case because of his or simply juror — trump when raised a client must concerns over juror prejudice particularly about the racial assumptions partisanship jurors. if I could conceive of a decision constituted convincing argument 6Even cannot, reasonable which I I would still conclude that his actions fell below strategy, wishes, client's the more professional ignore norms. Rather than completely action for been to the matter to the attention of appropriate bring have court, and then to ask the court not to because of its "favorable" poll make-up. majority contends that "had incident to the trial Joseph brought attention, court's the court would have had an affirmative to conduct voir dire obligation (3d 1987) ("In 134, 139 . . . ." See Government Islands v. 814 F.2d Cir. Virgin Dowling, case where the trial court learns that a member or members of the have every jury may received extra-record with for substantial the trial court potential prejudice, information added) must determine whether the members of the have been (emphasis prejudiced.") n.3). notes, (Maj. Op. at 16-17 I As the itself "the article . . . disagree. majority [newspaper] n.l) included no extra-record information about crime." Weatherwax (Maj. Op. added). attention, I believe the matter to the court's (emphasis Accordingly, by bringing client, have Joseph would accommodated the of his while request simultaneously protecting Moreover, desirable, his trial less once strategy. although Weatherwax was found guilty murder, this course of action second-degree would have enabled to file a motion for a new trial based on the incident. SeeFed. R. Crim. Proc. 33.