Lead Opinion
OPINION
After being convicted of numerous charges, including mail and wire fraud, see United States v. Chapman, No. 04-5010,
I.
Chapman was the chief executive officer and majority shareholder of various financial services companies, and a portion of the charges against Chapman involved his use of “business development funds” provided by these companies for personal rather than business purposes. The government’s theory of the case was that Chapman needed the business development funds to support a lifestyle that he could not otherwise afford. The trial court permitted the government to present, as proof of Chapman’s motive, see Fed. R.Evid. 404(b), evidence of substantial loans (eventually totaling more than $1 million) that Chapman took from his companies but never repaid.
After the government’s rebuttal closing argument, counsel for Chapman objected to a reference by the government to the loans, believing the reference went beyond the limitations the trial court had placed on the use of the loan evidence. The trial court stated that counsel “might be right,”
In his § 2255 motion, Chapman contended that when the trial court offered to grant a mistrial without prejudice, he instructed his attorney to accept the offer. Chapman argued that his attorney, by rejecting his instructions to accept the mistrial, was constitutionally ineffective and that Chapman was therefore entitled to a new trial. The district court rejected Chapman’s claim, concluding that the decision to go forward with the trial rather than accept a mistrial without prejudice was a tactical decision to be made by counsel, not Chapman.
II.
A criminal defendant’s right to counsel as guaranteed by the Sixth Amendment is, of course, a guarantee of the right to effective assistance of counsel. See Strickland v. Washington,
Chapman’s ineffective-assistance claim is a narrow one. Chapman does not argue that, given the manner in which the trial had unfolded, the only reasonable decision was to accept the mistrial offer. Nor does Chapman argue that counsel should have consulted with him before rejecting the mistrial offer. Instead, Chapman contends only that counsel’s performance was deficient because counsel ignored Chapman’s instructions to accept the mistrial offered by the trial court. The government, however, argues that decisions involving mistrials—whether to ask for a mistrial and whether to accept an offer of a mistrial—are tactical decisions that must be made by the attorney, not the defendant. Because the decision belongs to the attorney, the government argues that Chapman’s disagreement with the decision made by counsel is simply irrelevant.
It is by now well-established that in a criminal trial, defense counsel has the authority to manage most aspects of the defense without first obtaining the consent of the defendant. See Florida v. Nixon,
The only decisions that have been identified by the Supreme Court as belonging exclusively to the defendant are “whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” Jones v. Barnes,
the decision to move for a mistrial often must be made in a split-second and it involves numerous alternative strategies such as remaining silent, interposing an objection, requesting a curative instruction, or requesting an end to the proceeding. Moreover, counsel is generally in a better position than a lay person to judge the impact of a potentially prejudicial incident in the context of the entire trial.
Washington,
We likewise conclude that decisions regarding a mistrial are tactical decisions entrusted to the sound judgment of counsel, not the client. Preliminarily, we note that mistrial issues bear no similarity, in nature or significance, to the decisions that the Supreme Court has identified as belonging solely to the defendant. Moreover, deciding whether to seek a mistrial (or whether to accept or reject a mistrial offered by the trial court) involves an on-the-fly balancing of the probable damage caused by the trial error against the likelihood that a different jury might be more inclined to acquit—a question that itself requires considering how receptive the current jury is to the defendant, whether key witnesses have testified as anticipated, etc. Given the many issues that must be identified, evaluated, and weighed when determining whether to seek or accept a mistrial, we think it clear that the decision is a tactical one to be made by counsel, not the client.
As noted above, Chapman does not contend otherwise—that is, he does not argue that decisions regarding mistrials
A criminal defense attorney is obligated to follow his client’s wishes only with regard to the fundamental issues that must be personally decided by the client. As to those limited issues—pleading guilty, waiving a jury, taking the stand, and appealing a conviction or sentence— “an attorney must both consult with the defendant and obtain consent to the recommended course of action.” Nixon,
And if consultation and consent by the client are not required with regard to these tactical decisions, the client’s expressed disagreement with counsel’s decision cannot somehow convert the matter into one that must be decided by the client. For example, which witnesses to call is a classic tactical decision left to counsel, see Boyle v. McKune,
Chapman, however, views his position as a necessary consequence of the agency relationship between the defendant and his attorney:
[A]s defendant’s counsel and agent, defense counsel is permitted to make decisions that bind the defendant as agents generally do with regard to matters within the scope of their authority. However, that authority is binding only unless and until revoked. When the defendant specifically instructs his agent to accept a court’s offer of a mistrial on his behalf, to the extent that the defendant’s request is reasonable, defense counsel as his agent is obligated to do so—his agency to do otherwise is revoked.
Defense counsel in a criminal trial is more than an adviser to a client with the client’s having the final say at each point. He is an officer of the court and a professional advocate pursuing a result—almost always, acquittal—within the confines of the law; his chief reason for being present is to exercise his professional judgment to decide tactics.
----When the defendant is given the last word about how his case will be tried, the defendant becomes his own trial lawyer. If we add to the list of circumstances in which a defendant can trump his counsel’s decision, the adversarial system becomes less effective as the opinions of lay persons are substituted for the judgment of legally trained counsel. The sound functioning of the adversarial system is critical to the American system of criminal justice. We intend to defend it.
Burke,
III.
To summarize, we conclude that decisions involving mistrials—whether to seek a mistrial or accept a mistrial offered by the trial court—are tactical decisions left to the sound judgment of counsel. The decision remains counsel’s to make even if the client expresses disagreement with the decision, and counsel’s decision is not unreasonable simply because the client disagrees. The district court therefore properly rejected Chapman’s claim that his attorney provided constitutionally ineffective assistance of counsel by refusing, over Chapman’s instructions to the contrary, the trial court’s offer of a mistrial without prejudice. Accordingly, we hereby affirm the district court’s order denying Chapman’s § 2255 motion.
AFFIRMED
Notes
The government seems to challenge the factual underpinnings of Chapman’s claim, questioning whether the trial court was serious in its offer of a mistrial and noting that one of Chapman's trial attorneys stated in an affidavit that he consulted with Chapman about the mistrial and that Chapman agreed with his decision. Because the district court rejected Chapman’s claims without holding an evidentiary hearing, we must review the facts in the light most favorable to Chapman. See United States v. Poindexter,
Concurrence Opinion
concurring in the judgment:
I concur in the judgment but write separately to express my belief that we should
There are at least three types of decisions where counsel’s failure to seek or follow client input before acting could result in constitutionally ineffective assistance: (1) fundamental decisions requiring informed consent from the client; (2) important decisions requiring consultation with the client; and (3) decisions where the client has expressly instructed counsel on a particular course. See Florida v. Nixon,
In assessing counsel’s failure to consult with his client or follow an express instruction, I would follow the Third Circuit’s analysis in Weatherwax. There, the court held that “[t]he constitutional duty to consult regarding issues on which counsel has the last word requires only that counsel act reasonably in light of the circumstances and what is likely to be accomplished by a consultation.”
I conclude that while the decision whether to accept a mistrial offered by the court will sometimes require a lawyer to consult with his client, it was nevertheless reason
I would not foreclose the possibility that, in other situations, counsel’s failure to consult with his client or follow his express, informed wishes would constitute constitutionally ineffective assistance. Because I agree with the majority that counsel was effective in Chapman’s case, however, I concur in the result.