*1 Plaintiff-Respondent, Wisconsin, State
v.
Defendant-Appellant-
Derryle McDowell,
S.
Petitioner.
Supreme Court
11,
February
argument
Oral
2004. Decided
No. 02-1203-CR.
June
Sykes, J., part. took no defendant-appellant-petitioner For the there were by Christopher briefs J. Cherella and the Law Officesof Christopher argument Cherella, Milwaukee, J. and oral by Christopher J. Cherella. argued plaintiff-respondent the cause was
For the attorney general, by Gregory Weber, with M. assistant Lautenshlager, Peggy A. attor- whom on the brief was ney general. by Pray, A. filed John
An amicus curiae brief was Findley, Madison, of the A. on behalf Wisconsin Keith Lawyers and Frank J. of Criminal Defense Association Remington School, Center, Univ. of Law and Wisconsin Findley. argument Keith A. oral petitioner, J. The BRADLEY, 1. ANN WALSH published Derryle McDowell, a deci- S. review of seeks affirming judgment appeals of court of sion of the denying postconviction relief.1 conviction and order robbery, kidnapping, McDowell was convicted dangerous using a while five counts of sexual assault party weapon, He all to a crime. contends that was as counsel that was afforded ineffective assistance trial Additionally, prejudicial. both deficient failing permit court erred asserts that circuit him new counsel. important issue of 2. This case discusses the attorneys deal with the
how criminal defense should perjury. Specifically, prospect of client it addresses un- knowledge has der what circumstances counsel trigger requirement perjury a client sufficient *8 testify in unaided narrative rather than the usual the
1 McDowell, 599, 168, AppWI 266 Wis. 2d 669 State v. 2003 the (affirming N.W.2d 204 a decision of circuit court for Milwau Moroney County. Judge presided jury E over the kee Dennis judgment Judge the of Victor trial and entered conviction. and entered presided postconviction Manian over the motion relief). denying the order postconviction 496 question and answer format.2 Prior to the decision of appeals case, the of court in this no Wisconsin case had employed defined what standard should be to deter- attorneys mine when "know" their clients will lie. agree appeals 3. We with the court of may question- defense counsel not substitute narrative ing question the for traditional and answer format unless counsel knows that the client to intends falsely. extraordinary Absent the circumstances, most knowledge expressed such be on must based the client's testify untruthfully. admission intent to We further attorneys oppos- determine that client, must advise the ing change counsel, and the circuit court of the style questioning prior to use of the narrative.
¶ 4. us, In the case before we conclude that de- performance fense counsel's was deficient in two re- (1) spects: questioning shifted narrative without (2) advising beforehand; his client he used narra- questioning believing despite tive that his client in- testify truthfully. tended to however, also conclude, We prejudice that McDowell suffered no under facts of Finally, reject this case. we McDowell's claim that the 2 Commentators described the have narrative format as follows: approach lawyer put The narrative allows the the client on the story him stand allow to tell his in a free manner. narrative occurs, lawyer engage testimony;
While this does not in the she questions presents asks no corroborating of the client and no present testimony evidence. The client is allowed to his help attorney. closing argument, court without In from the attorney rely any does not and on cannot client's false testimony. Slipakoff Brian & Thayaparan, Roshini The Criminal Defense Attorney Facing Prospective Perjury, Legal Client J. Geo. (2002) (internal omitted). Ethics citations *9 failing permit him new counsel. erred
circuit court appeals. Accordingly, affirm the we court I—I 18-year-old April was 21,1997, an woman 5. On building sexually a Bur- at West assaulted near leigh and was Street, She had exited bus Milwaukee. by guns. her The men rushed men with followed two guns head, to her her the street. With and forced off repeatedly they assaulted her, her, and robbed fondled vaginally sexually, orally penetrating her her gun penis assaults, victim barrel. After the both ejaculate. spat identify Although her the victim could not case based on evidence
attackers, State built its clothing, body, her and the scene. from her collected sample mixed of the victim's saliva Police recovered They containing DNA. also McDowell's with semen containing of the second the DNA recovered evidence eventually guilty. pled man, who appointed counsel from the 7. McDowell was day trial, the first Public Defender's Office. On State McDowell had fired informed the court that exchange The between the him over the weekend. two as follows: was Judge, just
[DEFENSE COUNSEL]: so the Court is aware, I fired and that is where was over weekend we stand. you. Only He no I can. right
THE COURT: has to fire just I that. I am [DEFENSE COUNSEL]: understand advising the that Mr. McDowell has discontinued Court any assist, is where we are. efforts to and that *10 McDowell, THE you COURT: Mr. have to understand something. [Defense counsel] is an officer of this Court. This matter has been scheduled for trial. This Court is only authority him, one that has that to fire not you. you you If going decide are not to cooperate, well situation, your is you own but any don't have rights Only to fire telling him. I do. And I am on you going weekend before trial he is not to be fired this Court. counsel], [defense
This Court knows his abili- knows ties, staying and he [The] is on case. is going [c]ase today. to trial it. right Understand You have a finality. So the people do of the State of Wisconsin. So do the this or alleged victims, victims case and that going is is to happen. what day discussing pre-trial 8. Later that while mo-
tions, defense counsel informed the did court he theory not know what the of defense be would because Wary had McDowell become unassistive. another delay, the court an indicated intent to move forward with the case.3 It stated: long
Well he be past must unassistive before this weekend, get hogwash. so let's not into That that. is go. The long Let's issue is before this with weekend of appearances amount we have had in court this on this case. If don't a theory we have formu- defense you lated and then whatever little iron[-]outs have to do, that is different. That is an ongoing process anyway during all trial.
3 The record initially indicates that the case was scheduled 26,1999. jury July Subsequently, for trial it was rescheduled for 20,1999. September 15, It again was rescheduled for November 1999, 24, again January yet and then It 2000. was rescheduled another time for March it Finally, was rescheduled for May 15, 2000, proceeded. when the trial McDowell that could The court then told explained, cooperate It with counsel.
decide whether your help, you help you is or don't and that "Either obviously Obviously you help[,] if don't it decision. your helps it, it that is more than but hurts situation enough?" replied your not mine. Fair call, that he Defense counsel later informed court "Yes." opening until the close of reserve his statement would the State's case. day trial, after the State had 10. On the third expressed to the
rested, reservations defense ability effectively proceed as counsel. court about *11 implied Although specific, not he that his concerns testify possibility the that McDowell would related to untruthfully. The court advised counsel that he had two (1) options: that he he could recommend McDowell testify so if intended account was untrue or not outrageous his against him; it a trier of fact would hold
that (2) by calling ground" the "middle McDowell or take testify in narrative form. acknowledged option 11. While the court third rejected request withdraw,
in motion to it that counsel's resulting only mistrial would affect "not the because the rights rights [McDowell] all the the other but nearly completed jury people" The involved in the trial. allowing to with- court further reasoned that counsel necessarily accomplish anything not since draw would attorney likely face the same McDowell's next would ethical dilemma. a short break which defense counsel After McDowell, he informed the court that
conferred with truthfully. testifying declared: his client would be He honor, spoken I have Mr. McDowell. Mr. Your with testify and that McDowell advised me he does wish to truth testifying what he would be to will be the absolute respect with anything regarding testimony. this He get up testify wishes to there and as to truth. ... Judge I light have no reason to believe in of what Mr. up McDowell has told me that he get will not there and testify as to the truth. Therefore he when takes the asking questions, I will be him specific questions stand respect with testimony jury. to his before this accepted ¶ 13. The court counsel's decision. How- something change," ever, it warned him that "should immediately proceed should advise the court and then questioning. in the narrative form subsequently gave ¶ 14. counsel Defense his opening jury statement. He told the that McDowell would never that he the victim assaulted place the area where the crime took was behind the building where his father lived. Counsel further ex- plained night had area McDowell been girlfriend, assault, had oral before sex with his ejaculated, Sunshine, and had which would account for being semen found at the scene. completing opening ¶ 15. After statement, de- fense counsel called to the witness stand. Shortly after McDowelltook the stand, received public from the a note defender’s office.Defense counsel began question *12 his examination the conventional and questions answer format and asked three about age stated, McDowell's and residence. He "Mr. then you jury McDowell, I to look want at this and tell this jury April April about the events 20 and 21 of 1997. your speak loudly clearly please." Take time and and As began answer, counsel inter- defense rupted and if asked the court it a sidebar wanted responded, certainly "I conference, and the court do." Following discussion, an off-the-record the jury court instructed the that it to was not consider the arguments closing opening of counsel as or statements restate It counsel to the then directed defense evidence. question. your "[a]gain, McDowell, Mr. take said, He jury you like for them to and tell what would time this allegations beginning regarding against you the know doing April you you on and were with where were what morning April through early 21, 1997, the hours of 20, responded please." The defendant with 1997. Proceed following narrative answer: the 20, 1997, my I father's at 4720 April bywas house
On on I had com- Burleigh. Later in the afternoon West My in the after- pany. girlfriend came over sometime ate, joked got TV movies and noon. We watched We around, evening around. And the went played as movies, my through to and I asked continued watch we gas He me to take go father could I to station. told gas I me garbage before to the so out went station to my girlfriend up was and I continued and cuddled go did to out in the back with me. And she ask she want no, me first continued to tell me but afterward she told yes. my go gas So I father I to the station. He asked can garbage. me out the told to take Sunshine, me taking garbage, Instead of me out the and my girlfriend, just go had out the to to the went door At gas gas station. That is where were at. station we my had and back father's we two sodas returned didn't apartment, go but then we inside apartment. outside around back. While we Wewent fooling was around and had oral sex was the back we sex, back, after in the and then the time we had oral that, through everything my were and like father we up coming out back out the bringing ended in the fooling garbage caught my girlfriend and me and got screaming me yelling around back there and and at telling my girlfriend go and in the house. As we us my girlfriend call her to the house told went mother, every- yell and he continued to fuss *13 thing there, at ns. Her mother wasn't he told so her to get ready to take home. got ready her Afterwards she to go fussing, argue us, and continued continued to at took we her home. And then we back. came First me my father rode around because he continued to talk me just happened there, about what back how dangerous got it was and how we could have trouble doing and what wrong. finally we was was So we my arrived back to father's house. we When arrived we in the sleep. went house and went back to is happened according days. That what to them 17. counsel Defense asked two more questions relating juvenile adjudications. McDowell's four The then prosecutor conducted brief cross-examination which during McDowell admitted had at- tempted avoid arrest and run the police. from Mc- Dowell also revealed that he was a friend of the other man had who been convicted of the assaults. There was no re-direct examination.4 In closing statement, defense
commented at on the nature DNA length of evidence. asked, He then "Where would to find you expect DNA of yours? material In house? . your . . Where else would to find you expect your DNA material around but where in fact live or or you work fre- someplace you 4Following prosecutor's cross-examination, the circuit said, right. "All court There is no re[-]direct allowed under the ruling." circumstances of appeals this Court's As the court of decision, preclusion noted its of re-direct examination appear logical corollary would to be the restriction to McDowell, questioning narrative in most instances. 2d Wis. 14, However, n. appeals, like the court we do not preclusion Instead, view that as absolute. leave to the we circuit questioning court's discretion whether additional would be appropriate under the case. circumstances *14 expectation
quent?" that observed, "There is an Counsel being you of Mr. McDowell related find evidence could Burleigh." and with 4720 West associated jury, After case was to the the submitted provided an account of the off-the- defense counsel he shifted from record that had occurred when sidebar question and answer to narrative form. He indicated proceed question planned in the and that he had to acknowledged receiving a However, he answer format. changed legal office, which his note at from previously he had note, however, mind. did that Counsel He advised McDowell as to what narrative entailed. explained: go to ahead and
Subsequent the initial decision to do regards Mr. question [McDowell's] and answer with to testimony, opinion I did fact receive an back from [sic], Attorney Tyroller an appellate Bill who is both agency, advising attorney legal as well as counsel for the go me I I did in fact advise should with narrative. Derryle way Mr. McDowell that is the we would be proceeding, already we had discussed what to, prior as a discus- prior narrative entailed result sions, he was familiar with it was that I was so what advising going do in of his him that we were terms testimony. making result So that was the of me a switch question from and answer to the narrative. During parties briefly re- deliberations, question jury:
convened to address a from "Need girlfriend act with to know time frame between sexual victim] [the was The court the time assaulted." jury it its stated that intended to instruct to use memory any, frame, relative the time if collective prosecutor nor de- between the two acts. Neither the objected. fense counsel Ultimately, jury
¶ 21. guilty found years of all prison, counts. He was sentenced to 40 first-degree consecutive, on all five counts sexual assault, probationary followed a consecutive sen- remaining tence on the two counts. McDowell subse- quently postconviction arguing, among moved for relief, things, attorney provided other that his had ineffective assistance of counsel and that the circuit court had failing permit erred in him new counsel. hearing, 22. At the Machner5 defense counsel initially
testified that he believed that McDowell and *15 girlfriend, engaged his any Sunshine, had not sexual activity building night behind the the before the as- pretrial saults based on his discussion with them. He noted inconsistencies between their accounts.6 More- explained over, he that McDowell had introduced the oral-sex-the-night-before theory only of defense after learning any challenge that scientific to the evi- DNA ultimately dence would be useless. Counsel decided not to call Sunshine as a witness.
¶ 23.
In addition, defense counsel testified that
"[']What
get
asked,
McDowell had
if Sunshine and I
together
say
"[']I'llsay
and we
...,[']" and had
him,
told
[to] say
myself
help
what I need
to
if
out and
I have to
say something
say
help
untruthful
I'll
that. I need to
myself out.[']". Counsel said that he warned McDowell
Machner,
Under State
v.
92 Wis. 2d
that everything situation, he McDowell to to advised only jury hear it would be the to because he wanted opportunity. Finally, on the
¶ 24. defense counsel elaborated testimony. leading to He ex- McDowell's actual events proceed question plained in the he had intended eventually McDowell had in- format, answer as going to the truth. How- him that was tell formed acknowledged plan changed that his later ever, counsel public note from defender's when he received a urging The note him to shift to narrative. office, says "Tyroler go Tell that to the with narrative. said, Accordingly, It must be defense coun- client. narrative." conceded, He to the narrative form. sel converted advising that he without either McDow- however, did so change having or concluded ell of beforehand to lie. McDowell intended McDowell, meanwhile, at hear- testified going
ing never defense he was that he told testify untruthfully. He that he was of the maintained going employ impression that counsel was tradi- question format, and answer not the narrative. tional Furthermore, he had never testi- McDowell stated that *16 jury and was nervous and confused. fied before before he asked, that had he been would have He insisted night that before the assaults Sunshine testified performed wearing him, oral sex on that he was not ejaculated condom, scene, at and that he that crimes. never committed the post- The court denied McDowell's circuit placed that had conviction motion. It noted position, and counsel in an untenable defense way preserved had in a reacted that best both rights responsibilities. and his own ethical his client's The court further surmised that even with McDowell's complete testimony, full and the outcome of the trial light indisputable would have been no in different of the Finally, upheld scientific evidence. it the decision to proceed existing explained, with counsel. The court jury literally wings, ready "with the in the and the case proceed, present everybody to having with the witnesses and they ready proceed,
said were that that's a discretionary by Judge Moroney, call and he made that appealed. decision." McDowell appeals 27. The court of affirmed the circuit App McDowell,
court. State v.
WI
266 Wis. 2d
thoughtful
scholarly
599,
¶ 28. that standard to the case hand, at appeals the court of determined that defense counsel performance Id., was deficient his at trial. 4. It also performance concluded, however, that the deficient was prejudicial not Finally, under the circumstances of the case. Id. rejected
the court claim McDowell's that the denying request circuit court erred in for new Id., ¶ counsel. 24. It reasoned that because the circuit request court had received no counsel, for new it could failing inquiry not have erred in to make such or Id., ¶ determination. 30.7
7 The court of appeals additionally rejected McDowell's (1) assertions presented the circuit jury court erroneous
r—i H-1 opportunity presents to ad- an ¶ This case 29. attorneys deal with should defense criminal dress how perjury. in the raised prospect The issue is client of argument ineffective case: in this first context of the counsel. assistance of of counsel of ineffective assistance 30. A claim Washing- analysis v. forth Strickland set
invokes
(1984).
defendant
success,
find
ton,
To
State (1999) (citing State, 2d 183 Wis. Flores v. State ex rel. (1994); Pitsch, 124 State v. 587, 609, 516 N.W.2d (1985)). will We 633-34, 369 N.W.2d 628, 2d Wis. findings fact unless the circuit court's not disturb clearly they The ultimate Id. at 768. erroneous. are attorney's performance determination of whether minimum, however, is the constitutional falls below subject independent appellate question review. of law 634). (citing Pitsch, 2d at 124 Wis. Id. counts, dis- requiring thus sexual assault instructions on the (2) four; and retrial of the other of one of them and
missal information. inaccurate him based on circuit court sentenced did not McDowell, 4, 2d n. Because 266 Wis. however, address them review, we do not on pursue these issues here. *18 Additionally,
¶ we consider whether cir- permit failing new to in court erred cuit in discretion deter- court exercises A circuit counsel. appoint mining in a criminal new counsel to whether Lomax, 356, 359, 432 N.W.2d 146 2d case. State v. Wis. (1988). Accordingly, of the review the decision we erroneously exercised its if it court to determine circuit discretion.
Í—I HHHH begin the threshold our discussion with 33. We evaluating inquiry of ineffective claim for McDowell's do circumstances of counsel: Under what assistance knowledge prospec- attorneys have criminal defense trigger requirement perjury a sufficient tive rather than the narrative in the unaided client question question Such a and answer format? usual rights only implicates of the not the constitutional responsibilities the ethical defendant, but also criminal counsel. Supreme has not Court States 34. The United knowledge that, expressly when set forth a standard attorney requires to reveal defense met, a criminal affirmatively prevent act to client confidences perjury. Whiteside, it observed In v. Nix client testify, right scope "[w]hatever of a constitutional right elementary not extend does that such it is (1986). falsely." testifying The Court 157, 475 U.S. "[although recognized take counsel must that, further objectives of attain the means to reasonable lawful all taking steps precluded or in from client, counsel is presenting assisting any way false evidence in the client violating However, Nix Id. at 166. the law." otherwise or when no provided guidance determining attorneys had sufficient basis to conclude that their intend clients to commit perjury. Similarly, Wisconsin rules of profes-
sional do responsibility not articulate a clear minimum standard of knowledge to this case. applicable Supreme (1999-2000)8 Court Rule 20:3.3 provides relevant part:
Candor toward the tribunal.
(a) lawyer A knowingly: shall not (1) tribunal; make a false statement of fact or law to a (2) fail to disclose a fact to a tribunal when disclosure is necessary to assisting avoid a criminal or fraudulent act hy client; the (4) lawyer offer evidence that the knows to be If a false.
lawyer has offered material evidence and comes to falsity, lawyer know of its shall take reasonable remedial measures.
Ob) (a) The duties paragraph stated in apply even if compliance requires disclosure of information other- protected wise Rule 1.6 [regarding confidentiality of information received a client]. from (c) lawyer A may refuse to offer evidence that lawyer reasonably believes is false. added).
(Emphasis Supreme Court Rule 20:3.4 provides in relevant shall . . that not part lawyer "[a] . falsify evidence, counsel or testify assist witness to falsely[.]" added). (Emphasis
8All to references the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. appeals Nix, Su- reviewed The court of 36. legal together
preme authori- Rules, with various Court appropriate McDowell, 266 balance. discern the ties9 to standard, "absent the most 599, 44. Under its 2dWis. extraordinary counsel, circumstances, criminal defense going client is to law, cannot know that a as a matter of falsely testify intent admission of the the client's absent explained its Id., ¶ The court that with do so." "extraordinary qualification circumstances," it did bright line it created or invite not mean to obscure recognized simply litigation; rather, it endless might presented truly exceptional case counsel be a direct admis- even absent the same dilemma with Id., ¶ 48. sion.10 justifi- appeals offered several The court of begin, bright-line it observed rule. To for its
cations defining adopting "would be a lesser standard (e.g., negotiated pleas step parade" of in a sad situations set jurisdictions have and courts other Commentators attorney determining an for when myriad of standards forth a testify falsely. These or her client intends "knows" his a client intends "good cause to believe" include: *20 concluding client will the "compelling support" for falsely; doubt," "a firm "knowledge beyond a reasonable perjury; commit determination," "actual knowl basis," good "a faith factual Mitchell, 781 N.E.2d Commonwealth v. generally, See edge." omitted). 2003) (citations (Mass. 1237, 1246-47 10 case, court truly exceptional of a example anAs is, couple Clyde, that modern-day Bonnie and proffered of at the scene apprehended conclusively captured on video and they testify that inform their intent to counsel of the crime who McDowell, 266 Wis. 2d 48, the bank. even at were never n. 16. pleas) compromised that, estimation, its Alford11 attorney's duty Id.,
a criminal defense to the client. explained ¶ 44. Moreover, the court that without such approach, guidance, they an counsel would lack as truly cannot "know" whether the client intends to perjury. Finally, suggested Id., commit it that the requirement knowledge ability of actual maximized the attorneys protect of criminal defense to their clients' rights. id., ¶ Sixth Amendment See support ¶ 38. Both McDowell and the amici12 appeals regarding court as to the standard it set "knowledge."13 "[t]he issue of that, McDowell writes appropriately duty decision balances defense counsel's provide along to candor to the Court at all times with continuing duty provide his or her effective and competent assistance of counsel to the client." The urge adopt approach amici, meanwhile, us to "be- anything jeopardizes right cause less the defendant's jury have a facts, decide the undermines the relation- plea guilty An is a plea where the pleads defendant Alford guilty while maintaining either admitting his innocence or not Alford, crime. See North Carolina v. having committed the (1970). U.S. 25 12The Wisconsin Association of Criminal Lawyers Defense and the Frank Remington J. University Center of the Wisconsin Law School filed an amicus brief in this case and participated arguments. in oral We echo the sentiments of the appeals court of in acknowledging analysis that our greatly was benefited their contributions. 13McDowell and only the amici differ support their for appeals' the court of qualification "extraordinary circum stances." McDowell asserts that the court should not have added subjective component objective to an otherwise test. The amici, however, willing are accept such language, acknowl edging the potential need for flexibility. future *21 loyal ship as zealous and role of defense counsel practically unworkable." advocate, and is however, contends that the stan- State, The appeals Specifi- demands too much. dard of the court approach cally, an "will allow it that such asserts prospective attorneys dodge the ethical dilemma of by practicing effectively perjury quite selective client duty only trigger ignorance their fact that would of the prospective perjury." prevent The State submits that account all that takes into a different standard —one protect the and circumstances —will both relevant facts rights and better ensure client's constitutional justice system. integrity It therefore of the criminal adopt "firm basis" standard. asks that we factual posi- difficulty State's The we have with the First, the "firm factual basis" standard is tion is twofold. really in their As noted the amici no standard at all. lawyers "[l]eaving up into to 'take brief, it to individual and decide all relevant facts and circumstances' account client exists to believe the a 'firm factual basis' whether virtually nothing lawyers perjury tells will commit they compromise their role as should when about approach, estimation, in our breeds Such an advocate." uncertainty.14 needless
14Indeed, it unclear from the facts circumstances is formed a "firm factual defense counsel ever this case whether The contends perjury. commit State that McDowell would basis" attorney however, had; the defendant notes that that he going to take the court that McDowell was specifically informed truthfully. disagreement This stand and witness believed believed or should have defense counsel about what proffered of the State's the unworkable nature demonstrates approach. *22 recognize any Second, 41. we that standard we high
adopt
given
should be
one
the constitutional
"[ejxcept
that,
considerations involved. We are mindful
attorneys
adopt
cases,
of
the rarest
who
'the role of
judge
jury
pose danger
the
or
facts,'
to determine the
depriving
advocacy
their clients of the zealous
loyal advocacy required by
Nix,
the Sixth Amendment."
(Blackmun,
concurring).
J.,
15 Although opinion one, its is a recent appeals' court of reasoning already approval. has been cited Orange with See (Client County Lawyer, Op. Formal 2003-01 Perjury and the (2004). Criminal Attorney) Defense agree ¶ 44. We with the observation of the court Supreme appeals Rule 20:3.3 must be Court harmonized with our determination here. Like the 20:3.3(c)'s appeals, "interpret sugges- court of we SCR 'may that counsel refuse to offer evidence that the tion lawyer reasonably apply believes is false' to to circum- beyond surrounding questions stances borders involving a criminal defendant's stated intention to testify falsely." McDowell, 2d In- 266 Wis. "[a]ny interpretation deed, would, other in our estima- *23 produce tion, an conflict the two irreconcilable between (citing Zielke, 39, 51, Id. rules." State v. 137 Wis. 2d 403 (1987)). N.W.2d427
¶ in- 45. On those occasions when a defendant falsely, testify forms counsel of the intention to attorney's duty attempt first shall be "to to dissuade the Nix, client from unlawful course conduct." 475 appeals noted, U.S. at 169. As the court of "we do not power persuasive to do on dismiss of counsel so legal, grounds." McDowell, ethical, and moral 266 Wis. ability recognize ¶ Moreover, 2d 53. we counsel's grounds. "By persuasive pragmatic explaining on to be may evidentiary be the of the false what weakness likely consequences account, counsel can describe the obviously, that, does not desire." Id. the defendant attorney emphasize an addition, In we that 46. seriously moving from the consider to withdraw should "deprives Nix, noted the de- case.16As withdrawal method, however, not its The withdrawal is without noted, "it not solve the difficulties. Commentators have does just passes along it the ethical dilemma to another problem; attorney." Thayaparan, supra & note 2 at 953. Slipakoff right
fendant of neither his to counsel nor right at testify truthfully." 475 U.S. 173-74. however, the motion de- If, to withdraw is in committing
nied the defendant insists perjury, that should proceed we conclude with the form, narrative the defendant beforehand of advising that entail. far from perfect, what would While we the narrative the best of recognize represents It several "best accommodates imperfect options.17 of the interests defendant's constitutional competing and the ethical right attorney's obligations." Johnson, 608, 630, v. 62 Cal. 4th 72 Cal. People App. (1998).18 2d 805 Rptr. Finally, agree we with the court of appeals inform attorneys must also counsel and opposing
the circuit court of the
change
questioning style prior
options
imperfect
conducting
separate
These
include
hearing
potential perjury, refusing
on the
to call the client to the
stand,
fully cooperating
Slipakoff
with the defendant. See
&
Johnson,
Thayaparan, supra
People
note 2 at 949-53. See also
v.
*24
(1998).
621-26,
608,
Cal.
4th
App.
Rptr.
72 Cal.
2d 805
62
18Contary
95,
to the assertion of the concurrence at
reject
Supreme
approach
Court did not
the narrative
in Nix v.
Whiteside,
Rather,
157, 163,
6.
expressed skepti
475 U.S.
n.
it
Despite
skepticism,
cism in it.
the narrative has continued
See,
enjoy widespread
acceptance
use and
in criminal trials.
(Del.
State,
e.g., Shockley
1989);
v.
IV
¶ 49.
turn next to
claim that he
We
McDowell's
was afforded ineffective assistance of trial counsel. As
above,
assistance,
noted
in order to
ineffective
establish
prove
performance
a defendant must
that counsel's
was
prejudicial. Strickland,
both deficient and
¶ 50. To deficient a defendant that his or her counsel "made errors must establish so functioning serious that counsel was not guaranteed as the 'counsel' by the Sixth Amendment." defendant scrutiny performance Id. Judicial of counsel's will be highly performance, Id. at Deficient deferential. may nevertheless, be demonstrated acts and omis- professionally range compe- sions "outside the wide tent assistance." Id. at 690. Here, McDowell contends that his trial
counsel's actions were deficient that he had no reason question justified and answer switch from format to the narrative format. McDowell notes that specifically client defense counsel told the court that his testify truthfully. Moreover, would McDowell observes *25 regarding change mind the did not that counsel testimony given presentation until he was of the "Tyroler in- note, us, McDowell reminds note." That he client," which did not structed counsel "inform do. defense counsel 52. The State concedes that Citing performance at trial. deficient
rendered reasoning appeals, writes, of the court of it "the State dispute ultimate conclusion that will not the court's counsel] performance [defense in rendered deficient requiring narrative format under State, The how- described above." circumstances correctly it ever, notes that under Strickland does not performance prevail counsel's on have to defend appeal. agree parties
¶ 53. with the that defense We performance Al- was deficient this case. counsel's though sympathetic dilemma, we we are to counsel's ultimately determine that his actions fell "outside competent range professionally assistance" in wide questioning respects. First, two shifted to narrative advising Second, he without his client beforehand. used questioning despite believing narrative that his client testify truthfully. intended to Accordingly, de- we address next whether deficiency prejudiced fense counsel's McDowell. Under required Strickland, a defendant is not to show that counsel's deficient conduct was outcome determinative. "[t]he Rather, id. defendant must show See at 693-94. probability that, for there is reasonable but unprofessional pro- of the errors, counsel's ceeding the result prob- A would have been different. reasonable ability probability is a sufficient to undermine confi- *26 making dence in the outcome." Id. at 694. In this reviewing determination, courts are to consider the totality of the evidence before the trier of fact. Id. at prejudice
¶ 55. McDowell asserts that should be presumed under the circumstances of the case. He purposes, maintains that for all intents and he was stage proceeding without counsel at a critical of the attorney question when his switched from and answer to prejudice narrative form. McDowell further submits that presumed attorney
should be because his had point a conflict of interest at the in time he received the "Tyroler note." Additionally, presumed,
¶ 56. even if not McDow- prejudice ell advances that he suffered actual because opportunity fully present he was not afforded the his jury. plausible defense to the He that he had contends explanation why for scene, DNA was found at the which was reconcilable with remainder of the jury fully expla- evidence. Because the never heard that prejudiced. nation, reasons, his defense was ¶ 57. The State, meanwhile, asks that we affirm appeals the conclusion of the court that McDowell prejudice. argues suffered no It case McDowell's fits none of the limited circumstances in which this presumes prejudices. Furthermore, court it describes theory "implausible" McDowell's of defense as both "improbable." pre-
¶ 58. This court has made clear that it will prejudice only Erickson, sume rare instances. category Wis. 2d at 770. In the limited of cases most presumed preju- claim, relevant to have McDowell's we by particu- dice when "the actual assistance rendered attorney so outside the bounds has been deemed lar pre- necessary has that a court for effective counsel prejudice." Id. at 771. sumed preju- presumed example, "courts have For attorney present known evidence fails to dice when an question calling com- the defendant's the court into to petency Ross] (citing [Oliver State v. trial." Id. to stand Johnson, 223-34, 2d 395 N.W.2d 133 Wis. (1986)). attorney on Likewise, an has labored "where *27 harboring a conflict of a defendant while behalf of (citing Cuyler prejudice v. automatic." Id. interest, is (1980); Kaye, Sullivan, 335, State v. 446 U.S. 349-50 (1987)). 1, 8-16, 2d 315 N.W.3d337 106 Wis. present that ¶ case, In we cannot conclude 60. question switching and action of from defense counsel's form was "so outside the answer to the narrative necessary for counsel" as to constitute bounds effective preju- presume this court must a rare instance when "[de- correctly appeals observed, dice. As the court of counsel] and McDowell was not was not absent fense during testimony." unrepresented McDowell, 266 his ¶ further indicated that 599, 71, 2d n. 23. Counsel Wis. possible of the McDowell about the use he had warned had him to narrative at trial and advised jury everything to hear in that situation he wanted the only opportunity. it would be his because reject claim that defense 61. We also McDowell's requires an of interest that counsel had a conflict prejudice. presumption Here, of counsel's automatic perceived a ethical dilemma conflict stemmed from duty loyalty ethical of to his client his between remotely obligation the kind of to the court. This is not Cuyler Kaye. Cuyler conflict of interest at issue in attorneys' multiple representation involved two of three charged defendants with murder. 446 at U.S. Similarly, Kaye attorney's representation involved one two of defendants the same arson case. 2d 106Wis. at equate loyalties To3. the divided in those with the cases potential loyalties divided here misses the mark. In every attorney's loyalty case, an client is tem- pered professional responsibility. the rules of That loyalty, type however, divided is not the of of conflict presumption interest prejudice. that rises a to the level of presumption prejudice, Absent McDow- showing prejudice. ell must make a of actual Like the appeals, acknowledge "readily court we testimony McDowell's could have been enhanced and through questioning." McDowell, clarified counsel's 2dWis. 66. It is true that narrative McDowell's specify performed account did not that Sunshine had wearing him, oral sex on that he was not condom, or ejaculated ground had on behind the build- ing day before the assaults. It is also true that actually deny not did that he had committed *28 the assaults. upon totality
¶ However, 63. consideration of the of the fact, evidence before the trier of we are satisfied prejudice that McDowell suffered no actual in this case. upon testify When called in form, the narrative produced during an account of his actions the period question. testimony in That the included date 20,1997"), ("April activity ("foolingaround had and oral ("4720 back"), Burleigh") in the sex and location West "oral-sex-the-night-before" that were critical theory his by information, defense. Such de- bracketed closing argu- statement opening fense counsel's for the to reason ment, jury a sufficient basis provided the Indeed, if it so chose.19 way to an acquittal its the indicates jury submitted question jurors. the mind of the defense was on McDowell's McDowell suffered no 64. Our conclusion that by "two even more pow- is further supported prejudice and the preposterous, his defense was erful reasons: Id., The overwhelming." State's evidence was cogently explains: court appeals on account of oral sex depended defense his McDowell's very with at the location night the before Sunshine only theory Not was that the assaults occurred. where far-fetched, supported by any going it was not to be but who, Sunshine, testimony [defense counsel] from con- given cluded, not the inconsistencies should accounts of their claimed between her and McDowell's course, But, not all. McDowell's encounter. that's depended only jury's acceptance of not on the defense account, oral-sex-the-night-before but on his also the extraordinary of the victim's semen-filled coincidence landing ejaculate. the exact location of his It saliva on just was at was not that McDowell's DNA discovered scene, with the his semen was mixed but at [defense counsel] As testified victim's saliva. only not hearing, Machner was McDowell's oral-sex- stretch, not, the-night-before standing defense a it was alone, exculpatory. [Counsel] was blunt: "The bottom in sample put penis line . mixed his her ... was .. that mouth."
Id., in correctly As circuit court noted its instructions to arguments jury, closing of counsel opening statements However, ignore need them
are not evidence. we not evalu whether, trial, able ating context of the McDowellwas full present defense. essential *29 ¶ 65. In end, we determine that defense deficiency prejudicial counsel's not so was that there is probability unpro- "a that, reasonable hut for counsel's proceeding fessional errors, result of the would have probability selecting been different." Indeed, the of person profile at random with the same DNA Mc- as approximately Dowell in this case was one in six billion. reject result, As a we claim McDowell's of ineffective assistance counsel.
V ¶ 66. The final issue we consider is whether the failing permit circuit court erred in McDowell new involving appointment In counsel. situations of new trig- counsel, a circuit court's exercise discretion is gered by presentation a defendant's of a substantial complaint interpreted request could be aas for Kazee, new 366, counsel. State v. 146 Wis. 2d (1988). complaint N.W.2d 93 aWhen substantial is judge inquire made, the trial should whether there are (citations omitted). proper reasons for substitution. Id. dispute Here, there nois that on the morn- ing day trial, of the first defense counsel advised the court that McDowell had "fired"him over the weekend. dispute, There is also however, no that neither counsel explained why. Accordingly, question nor McDowell erroneously becomes whether the circuit court exer- by failing inquire cised its discretion into the matter ruling before that McDowell could not new have coun- sel. contends that defense counsel's day
disclosure on the first of trial was tantamount to a request Although acknowledges for new counsel. *30 request specific, main- McDowell was not
that counsel's "[i]t to all those that, have been obvious should tains longer as wanted was no that counsel involved attorney." that further submits McDowell McDowell's client between counsel and the conflict which arose meaningful permit a to "too divide trial was wide before representation." appeals responds that the court 69. The State
correctly not make that McDowell did concluded reasonably complaint inter- be that could substantial Alternatively, preted request it new counsel. as a for refusing argues to not court did err that the circuit permit on the facts of to withdraw based case. examining Upon that record, we note
¶ 70. actually on to withdraw did not move defense counsel acknowledged though day even he trial, the first recognize being Moreover, we "fired." though request counsel, for even no new himself made confirming spoke under- court, the circuit he standing cooperating with his benefit that would attorney. appeals, not we "do Still, like the court quick 'hogwash' A reaction. trial court's
endorse the protected right representation must be defendant's explicit request counsel, new an for and, even absent they reasonably may inquire into what courts should undermining right." problem potentially infer is McDowell, 27, n. 10. 266 Wis. 2d employ ¶ 72. Thus, we the factors set forth in State v. Lomax determine whether withdrawal of appointment counsel and the of new counsel was war- ranted under the circumstances of this case. These include:
(1) adequacy of the court's inquiry into the *31 (2) complaint; defendant's motion; the timeliness the (3) and alleged whether the conflict between the defen- attorney dant and the great was so likely that it resulted in total lack of pre- communication that adequate vented an defense and pre- a fair frustrated sentation the case. (citations omitted).
Lomax,
the circuit alleged and defense counsel between McDowell conflict great in a lack of commu it total so that resulted was adequate prevented Indeed, as an defense. nication, or likely court's observes, seems it the State regarding advisability of to McDowell remarks persuaded cooperating him to communi with counsel disagreed fact The with counsel. cate testimony presentation attorney of his over the with automatically view, "an irrecon create not, our does unjust apparently an which leads to cilable conflict Wanta, 679, 703, 224 Wis. 2d State v. verdict." 1999). (Ct. App. N.W.2d645 factors, conclude on we cannot 76. Based these erroneously its exercised discre- circuit court that the Accordingly, denying we McDowell new counsel. tion *32 reject his claim.
VI agree appeals ¶ sum, In the court of we with 77. may ques- narrative defense counsel not substitute that question.and tioning format answer for the traditional testify intends to knows that the client unless counsel falsely. extraordinary circumstances, Absent the most expressed knowledge on the client's must be based such untruthfully. testify further of We admission intent to oppos- attorneys client, that must advise determine change ing of the counsel, and the circuit court style prior questioning narrative. to use of the
526 ¶ us, In 78. the case before we conclude that performance defense counsel's was deficient in two (1) respects: questioning he shifted to narrative without (2) advising his client beforehand; and he used narra- questioning despite believing tive that his in- client truthfully. tended to We conclude, however, also prejudice that McDowell no suffered under facts Finally, reject this case. we McDowell's claim that the failing permit circuit court erred in him new counsel. Accordingly, appeals. affirm we the court of
By appeals the Court.—The decision of the court is affirmed. participate. SYKES, 79. DIANE S. J. did not (concur- PATIENCE D. J. ROGGENSACK,
ring).
agree
majority opinion's
IWhile
with
con-
judgment,
separately
clusion to affirm
I
write
(1)
knowledge
I
because would hold that:
counsel has
testify falsely
that
or
her client intends to
when his
objective
or her
is
belief based on
facts;
uncontradicted
(2)
representation
counsel's
of McDowell was not defi-
cient under the standards set forth in Strickland v.
Washington,
(1984),
explained
466 U.S.
as
v.Nix
(3)
(1986);1
Whiteside,
fully concur. majority opinion *33 31 270 2d 630.
¶ Wis. 677 N.W.2d
527
I. BACKGROUND of five counts convicted McDowell, who was 81. dangerous using weapon, as while of sexual assault complains party have he did not effective crime, to began tell his when he to counsel because assistance came to be mixed with his semen version how scene, counsel at crime defense saliva victim's testimony, form of instead to a narrative switched assisting bringing of his out all the details per- majority story. counsel's that trial The concludes although prejudicial, be- deficient, not formance was present a trial to defendant's in order to refuse cause testimony question format, answer and the usual knowledge is that the defendant trial must have counsel According majority perjury. going to the to commit opinion, knowledge based on "the client's must be untruthfully testify expressed intent admission of unambiguous admission] [and must be the client's majority attorney."2 opinion directly The made to the change presentation of to a that the narrative concludes testimony trial was deficient McDowell's personally performance3 not McDowell had because going he was untruth- told trial counsel that testimony fully;4 beginning not was of McDowell's "knowledge" provide in- that McDowell sufficient if it we were to assume was lie;5 tended to even 2 Majority op., satisfy Washington, v. 466 U.S. In order to the Strickland counsel, (1984), trial for ineffective assistance of test performance was prove defendant both that counsel's must prejudiced as a result. Id. and that the defendant was deficient at 687. 4 Majority op., 5Id. *34 adjourn-
sufficient, counsel should have asked for an ment and advised McDowell a time6 second that the testimony give he was about would have to a be in form.7 narrative
II. DISCUSSION A. Standard of Review
¶ 82. A claim of ineffective assistance of is counsel question a Franklin, mixed of fact and law. v. State 2001 WI104, 12, 582, 245 2dWis. 629 N.W.2d289. We will findings not overturn a circuit court's of fact unless they clearly are However, erroneous. Id. whether trial representation prejudicial counsel's was or deficient ato questions defendant's case are of law that we review de novo. Id. Knowledge Testify Falsely
B. of Intent to
¶ 83. Whether defense counsel should
assist
presenting
in a
defendant
criminal trial in
his testi-
mony to the trier of
when
fact
counsel
defense
believes
.testify untruthfully presents
that the defendant will
right
testify
tension between a defendant's
and the
6
Machner,
At the hearing held under State v.
92 Wis. 2d
(Ct.
797,
App. 1979),
¶ 84. with knowledge of to commit that sufficient perjury the intent only present tells his when the defendant or is attorney will lie on the stand. The her that he or she knowledge may us to conclude that sufficient State asks from than a based on facts obtained sources other be apply "firm admission, and to factual basis" defendant's necessary quantum proof for those facts. It as supra, supportive position. Mitchell, as of its cites Supreme Mitchell, In the Massachusetts 85. proof by applied Court reviewed various standards deciding with on a workable courts that have wrestled knowledge by criminal defense standard for sufficient planning or her client to commit counsel that his is require perjury.9 "a The court Mitchell decided to objective knowledge firm fact for counsel's basis" 8Majority op., Mitchell, In v. 438 Mass. 545-46 Commonwealth (S.Ct. 2003), Judicial Court noted Supreme the Massachusetts determining following standards have been used for when determining knowledge has for that a defense counsel sufficient basis," is "firm factual United perjury: client about to commit a quantum proof provided because it concluded that a proper lawyer's duty balance between of candor aiding toward the tribunal, not a client who intends testify falsely, right and a criminal defendant's to a Mass, vigorous Mitchell, defense. at 546-47. The explained require great court quan- also that to too proof, compel tum of would defense counsel to remain sharp private warning silent when a to his or her client prevent perjury by persuading could the client to truthfully or not at all. Id. at 546. agree proper I that a balance between main-
taining truth-seeking function of a trial and a right vigorous defendant's provided to a defense through effective assistance of counsel is essential. accomplish require However, to that end, I would knowledge upon objective, based uncontradicted facts as that which is sufficient show a defendant's intent present perjured testimony. recognizes This standard attorney may knowledge that an have that his client is *36 directly admitting lie, about to without the client proper to counsel. It also a strikes balance between the truth-seeking right function of a trial and a defendant's present vigorous my applying defense. In view, the majority's perjured standard will result in more testi- mony than would a standard based on knowledge Johnson, States ex rel. Wilcox v. (3d 115, 122 555 1977); F.2d Cir. United knowledge," "actual Carpio-Cotrina, States v. Del 733 F. (S.D. 95, Supp. 1990); 99 Fla. "knowledge beyond a reasonable State, doubt," (Del. Shockley v. 1373, 1989); 565 A.2d 1379 State, support," Sanborn "compelling v. 309, 474 So.2d 313 n.2 (Fla. 1985); App. "good-faith Dist. Ct. determination," People v. Bartee, (Ill. 855, 566 N.E.2d 1991); Ct. App. "good cause to believe the proposed testimony defendant's would be delib Hischke, erately untruthful," State v. (Iowa 639 N.W.2d 2002). objective, it facts, and uncontradicted
obtained from attorneys position place defense the ethical will having clients examinations of to assist with direct testifying truthfully. know are not whom course, a include, of 87. That standard could by relate intended to the client that he or she statement also satisfied facts that not true. It could be are explanation objective of how as McDowell's facts such at the saliva came to be mixed with victim's his semen explain: police that To the victim told the crime scene. ejaculated mouth in her one of her assailants had during ejaculate spat at his assault and she the sexual analysis specimen crime The of the the scene. DNA DNA the victim from the crime scene contained from In of the and DNA from McDowell. McDowell's version girlfriend performed in the fellatio him events, his on the assault same location as which sexual ejaculated scene, the occurred. McDowell said he at ejaculate landing spot the his on the same where with ejaculate spat assailant, the from her victim had ejaculate. thereby mixing her saliva his Aside from with being implausibility to hit the able ejaculate spot with as the victim had exact same ejaculate spat sexual at time of the assailant's testimony if assault, cannot be true because McDowell's persons three in the were, it there would be from DNA sample police had the vic- examined: DNA from tim, DNA from her assailant and DNA from McDowell. only specimen two However, the contained DNA from my In view, and McDowell. that is sources: victim objective, such that sufficient uncontradicted facts began supposedly oc- to relate what when McDowell girlfriend, had a suffi- curred with his defense counsel *37 "knowledge" quantum proof Mc- cient to have perjury. to commit Dowell was about 532 C. Deficient Performance performance
¶ 88. Counsel has rendered deficient representation "objective when his or her falls below an Franklin, 582, standard reasonableness." 245 2dWis. 688). (quoting Strickland, Nix, 13 466 at In U.S. cited Supreme earlier, the United States Court, in the con- of a text upon claim of ineffective assistance of counsel based attorney's response proposed
an to a client's perjury, attorney's performance discussed whether that was deficient.10 Nix, 89. In defendant, Whiteside, was
charged
attorney began
with murder. When Whiteside's
representing
a
him,
obtained
statement from Whi-
teside that he had stabbed the victim as the victim "was
pulling pistol
pillow
a
from underneath the
on the bed."
upon
investiga-
Nix,
However,
time, told he had counsel that seen metallic" in the meant, victim's hand. When asked about what he "[I]n responded, Whiteside Howard Cook's case there gun. say gun, If I don't I I'm was saw dead." Id. at explained Trial to Whiteside that such testimony perjury would be and that he would not providing perjured testimony. him in assist Trial coun- if he sel also informed Whiteside that insisted on Court, was, Supreme As stated the issue "whether right the Sixth Amendment of a criminal defendant to assis attorney tance of counsel is an to coop violated when refuses testimony presenting perjured erate with the defendant at (1986). Whiteside, trial." v. 475 U.S. Nix *38 "something testifying metallic" in the he that saw would advise the court that hand, trial counsel victim's perjury going commit was to in his view Whiteside permitted impeach probably to counsel would be jury. testimony Id. before the statements, on counsel's Whiteside 91. Based say "something truthfully he saw and did not testified hand. Whiteside said that metallic" the victim's he was afraid the victim was because reason stabbed thought going was shot when he victim he was to be thereby raising reaching gun, the issue of self- for a Testimony came in that the victim had also defense. shotgun a on other occasions been seen with sawed-off police apartment of the could have and that search weapon. careless and missed been second-degree was convicted of 92. Whiteside by Supreme murder, which was affirmed the Iowa sought then review his conviction Court. Whiteside corpus The in the federal district court. habeas Eighth affirmed, court but the Circuit Court district Eighth Appeals Circuit concluded: reversed. The withdraw, threatening advise [C]ounsel's actions if judge against appellant trial the state falsely, compromised appellant impermissibly testified De- appellant's right to effective assistance of counsel. concerns, legitimate ethical counsel's spite counsel's obligations of confi- actions were inconsistent with the advocacy. dentiality and zealous (8th 1984). Scurr, F.2d 1329 Cir. Whiteside v. Supreme granted certiorari and took the The Eighth Court legal reasoning. on The
Circuit task its "[AJlthough Supreme that, Court concluded all to attain the must take reasonable lawful means objectives taking precluded from client, of the counsel is steps any way assisting presenting inor the client in violating Nix, evidence or false otherwise the law." Supreme emphasized U.S. at 166. The Court that law- yers obligation: obligation have dual ethical an advocacy the client for zealous within bounds of the obligation system justice law and an to the as a whole *39 explained: as an officer of the court. Id. at 168-69. It These legal profession standards confirm that the accepted attorney's duty has that an ethical to advance the interests of his client is limited an equally duty solemn comply to with the law and standards of conduct; professional it specifically ensures that the may client not use special duty false evidence. This of attorney prevent an upon and disclose frauds the ag recognition court from perjury derives the is tampering much a crime as jurors by with witnesses or way threats, undermines promises and the justice. administration (footnote omitted).
Id. and citations Based on these principles, Supreme the Court concluded that counsel performance. had rendered not deficient Id. at 171. my view, Nix, In under the standards set in per- McDowell's trial counsel did not render deficient formance when he switched to a narrative format for presentation testimony. of McDowell's Trial counsel objective, had uncontradicted facts sufficient to have knowledge began testifying that when McDowell about girlfriend what and his did that he was about to perjury. explain commit As I trial below, will required went further than should be in the face of impending perjury. Perjury
D. Passive Toleration majority that when trial The concludes knowledge perjury that a client will commit counsel has testimony during the client has told her because his or he must so, he or she will do nevertheless him that represent client; call the client to the continue testify; or her tell the client that his stand testimony presented in narrative format must be majority means.11 The a narrative format and what App. People Johnson, 62 Cal. 4th 621-26 cites v. (1998) being "option" support under for this best as However, the United States Su- circumstances.12 the preme only explained in was a Court Nix not perjured lawyer presentation of not to assist in the testimony, lawyer "passively tolerate" a was not to but testimony giving do otherwise false because to client's purpose trial, "we of a what was inconsistent with long Nix, for the truth.'" 475 U.S. have called a 'search *40 at 171. concluding lawyers "pas-
¶ In should not 95. testimony, sively presentation perjured the of tolerate" rejected Supreme approach Court the the United States e.g., lawyer majority us, that a of the in the case before explain to do narrative testi- should to the client how passively mony; the client to the stand and facilitate call testimony. perjured Id. at 170 n.6. The Court in Nix also approach treating pointed this a client's out that rejected perjured testimony present has been intent to rejected by the Rules courts and Model most Id. at 170. Conduct. Professional 11Majority op., ¶ 12Id., 47 n. 17.
536 beyond dispute it 96. While is that a defendant right testify defense, Fritz, has the to in his own State v. (Ct. 1997), App. 284, 292, 2d 48 Wis. N.W.2d right that preme is not absolute. As the United States Su- explained:
Court has scope right Whatever constitutional to testify, elementary right it is that such a does not testifying falsely. Having voluntarily extend to ... stand, taken petitioner obligation was under an speak truthfully.
Nix,
Therefore,
There is a communications be- flight if attorney privilege tween and client. The takes relation A client consults an attor- is abused. who ney him in the for advice that will serve commission help a fraud will have no from the law. (1933). States,
Clark v. United 289 U.S. Accordingly, I conclude that counsel would *41 example who, should follow the trial counsel Nix by explaining to that counsel would not Whiteside necessary testimony perjured if tolerate and that perjury to the court or with- would disclose Whiteside's testify truthfully. persuaded In so draw, doing, Whiteside to right maintained his Whiteside suborning per- position put in the counsel was not jury. Accordingly, above, forth for the reasons set respectfully
I concur. The notes has conceded State performance trial counsel rendered deficient at trial. Majority op., However, arguments while the of counsel are very helpful, they analysis do not legal restrict our of the issues presented J., 41, on appeal. Randy A. J. v. Norma I. WI n.15,