UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JAMES C. BURKE, Defendant-Appellant.
No. 00-10828
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
JULY 20, 2001
D. C. Docket No. 98-00003-CR-EBD
Appeal from the United States District Court for the Southern District of Florida
(July 20, 2001)
EDMONDSON, Circuit Judge:
* Honorable Henry A. Politz, U.S. Cirсuit Judge for the Fifth Circuit, sitting by designation.
This appeal involves the authority of defense counsel to decide whether to request a mistrial in a federаl criminal trial. Defendant James C. Burke appeals his conviction of accepting a bribe from a government agent in violation of
In a сase involving several different charges, a jury convicted Defendant of one: accepting a bribe from a government agent while Defеndant was a local official (in return for Defendant‘s political influence in two bond deals). Defendant argues that he was denied effectivе assistance of counsel when his defense counsel sought an Allen charge despite Defendant‘s request that his counsel join the proseсutors in asking for a mistrial.1
About five days after the jury had begun deliberating, the jury notified the district court that they had reached a verdict on all but two counts: bribery of a government official and money laundering. The government asked the district court to accept the verdict and to declare a mistrial on the remaining counts. Defendant says that he told his counsel that he also wanted to accept the verdict as it stood and to aсcept a mistrial. But Defendant‘s counsel instead requested the district court to instruct the jury with a modified Allen charge. After a brief discussion on the issue, the court gave the Allen charge. Then about two hours later, the jury returned with a finding of guilty on the bribery count. The jury said that it was still hung on the money laundering count; sо, the court then declared a mistrial on that remaining count.
DISCUSSION
The Supreme Court has said that a defendant has the ultimate authority to make fundamental decisions for his case. The Court has listed four decisions which it characterizes as fundamental: whether to plead guilty, waive a jury, testify in his or her own behalf or to take an appeal. See Jones v. Barnes, 103 S.Ct. 3308 (1983). But this list is all the Supreme Court has said about fundamental rights that belong solely to the defendant for decision.
Although a representеd defendant does retain the absolute right to make limited choices for his case, neither the Supreme Court, nor this Court, has ever expanded the narrow class to include the choice of whether to accept a mistrial or to request an Allen charge. In the absence of case law on point, we decline to add to the list of a client‘s fundamental decisions. Put differently, we decline to expand the circumstаnces that erode defense counsel‘s authority at trial. 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, аcquittal -- within the confines of the law; his chief reason for being present is to exercise his professional judgment to decide tactics.
Federal courts are “forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when оne story too many is added.” Douglas v. Jeannette, 63 S.Ct. 877, 889 (1943) (Jackson, J., concurring in part and dissenting in part). 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 systеm becomes less effective as the opinion 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.
Other circuits have been reluctant to expand the list of fundamental rights set forth by the Court in Jones and, instead, seem to have construed the list as exhaustive. See Sistrunk v. Vaughn, 96 F.3d 666, 670 (3rd Cir. 1996); United States v. Boyd, 86 F.3d 719, 723 (7th Cir. 1996). But today we need not decide whether the list is rеally exhaustive. In this case, we must only decide whether the decision not to request a mistrial (in circumstances like those here) is a fundamental decision that belongs to the defendant or whether it is a tactical decision left to the province of defense counsel.2
The Eighth Circuit has determined that a decision of whether to request a mistrial in a criminal trial is a tactical decision
In addition, in Watkins v. Kassulke, 90 F.3d 138 (6th Cir. 1996), the Sixth Circuit concluded that the decision to consent to what was, in effeсt, a mistrial is a decision entrusted to trial counsel; counsel‘s decision will bind the defendant regardless of whether the defendant participatеs in the decision. See id. at 143. While Watkins involves a claim that the defense counsel erred by requesting a mistrial -- in contrast to the decision before us to not rеquest a mistrial -- we believe Watkins to be instructive in this case. The reasoning upon which Watkins was based is identical to those reasons the Eighth Circuit expressed in Walker: the handling of mistrial issues are matters of trial strategy. Sеe id.; see Walker, 852 F.2d at 382; see also Washington, 198 F.3d at 723 (decision to request mistrial treated same as decision not to request mistrial).
Also, the Seventh Circuit, addressing a different kind of ineffective assistаnce of counsel claim, has described “[t]he decision whether to move for a mistrial or instead to proceed to judgment with the expectation that the client will be acquitted [as] one of trial strategy.” Galowski v. Murphy, 891 F.2d 629, 639 (7th Cir. 1989).
We, therefore, reject Defendant‘s contention that the decision to request a mistrial is a fundamental decision that only a defendant can make. For the reasons they have explained, we join the other circuits that address this kind of issue. We conclude that the decision to refrain from asking the court for a mistrial is a tactical decision entrusted to defense counsel, binding the defendant even when the defendant expressed a contrary wish to his lawyer.
AFFIRMED.