United States v. Michael K. Leggett

disputes that Goodwill transfer was

punitive. O’Flaherty merely states that she

brought personnel more efficient use of disputed

the Trexlertown store. The causal credibility prof connection and the are, course, explanation fered that a issues Casio, jury must resolve. Torre v. Cir.1994). pro 831-833 Dilenno has duced sufficient evidence for a reasonable jury to infer that what motivated Goodwill retaliatory intent. See Fuentes Per v.

skie, (3d Cir.1994). well, following disputed

As issues of material fact must also be resolved at trial: assigned whether Goodwill Dilenno to

process in retaliation for her harassment

complaint or management whether made a everyone neutral decision to tagger- make processor; whether Goodwill would have sorting enforced the requirement on Dilen- no; is, whether constructively she was

discharged jumped or gun whether she by leaving before was clear that she would required process.

The order of the district court will be reversed and the case remanded further

proceedings.

UNITED STATES of America LEGGETT, Appellant. Michael K. No. 96-7772. Appeals, United States Court of Third Circuit. Argued May 1998. Decided Dec. Barasch, M. Attorney,

David United States Middle Pennsylvania, District of Frederick E. Martin (argued), Assistant United States Attorney, PA, Williamsport, Appellee. for Jolla, Mark Lippman (argued), CA, R. La Appellant. for McKEE, Before: ROTH and Circuit O’NEILL,1 Judges, and Judge. District OPINION THE OF COURT ROTH, Judge: Circuit Michael K Leggett appeals judg- from a ment of conviction and sentence entered in the United States District Court for the Mid- Pennsylvania. dle District of He was con- prison victed of assaulting a official in viola- § tion of 18 U.S.C. 111. makes appeal: three claims on the district court erred in not ordering sponte competen- sua cy hearing before the commencement of the trial, (2) the district court failed to ensure Leggett validly waived his to testi- fy, improperly the district court con- cluded that forfeited his at sentencing physically counsel when he at- attorney. Leg- tacked his We find each of gett’s claims to be without merit will therefore affirm judgment of the district court.

I. February Leggett, who serv- prison robbery term for bank Indiana,

assault at a penitentiary federal was transferred to the Allenwood Federal Deer, Complex Correctional in White Penn- sylvania. Allenwood, Upon his arrival at Jr., Pennsylvania, silling by designation. Honorable Thomas N. O’Neill United trict of Judge States District Court for the Eastern Dis- throughout single represented April in a cell. On Gardner Leggett resided Karten, trial, Stephen Dr. Allen- on November year, began of that which psychologist, chief recommended wood’s 9. At and continued on November single in a cell due to his (on 8), remain point during one the trial November peacefully in- inability to live with another expressed concern to district Gardner However, an due to influx of new mate. against Leggett, advice inmates, single-cell to be some inmates had counsel, The district court wished 21, Leg- April cells. On relocated to double Leggett to expressly encouraged heed Gard- gett’s taken off the list of inmates name was following day, at the ner’s advice. On cells, and eligible single Leggett was evidence, Leggett yet had not close of testi- belongings move his to another required to court asked fied and the district Gardner being anticipation assigned of a cell- cell in the defense had further sidebar whether mate. present. evidence to Gardner indicated Leggett’s unit served Donn Troutman nothing further. the had On No- defense responsible and was manager at this time 13, jury vember returned verdict housing assignment. Leg- When guilty. gett losing single- that he was discovered his months, Leggett, In the ensuing both with status, to office to cell he went Troutman’s se, pro the assistance of Gardner and moved told he complain. Leggett Troutman that speak and, objections issued waiting day all to him to set aside the verdict and been had office, stepped presentence report. Troutman outside his The district court after punched Leggett motions, him in the Leggett face. objections, denied the overruled attempted additional blows which were de- 25, sentencing and set for March 1996. On Leggett grabbed Troutman. then flected 25, Leggett March entered the in courtroom him strangle necktie and tried to Troutman’s company of two United States Marshals. Eventually, Troutman, who was five it. courtroom, Upon seeing Leg- Gardner fifty pounds taller and heavier than inches lunged punched gett at his and him to subdue Leggett, was able him with the head, knocking ground. in the him to the prison guards. several Trout- assistance of lay, supine, Leggett While Gardner straddled multiple cuts to face as a man suffered choke, began spit him and scratch and attack. result of the probation him. The Marshals and officer defender, public D. An assistant federal removed him Leggett restrained and from Byrd, assigned represent Leg- Toni was taken the courtroom. was to a hos- Gardner gett at his trial for assault on Troutman. pital by emergency personnel medical However, disputes Leggett due to between cuts, treated for scratches and bruises. The jury Byrd concerning delay selection and allowed Gardner with- district court then trial, Leggett sought discharge of the that Leggett draw as counsel and concluded appointment Byrd requested the of new had counsel for the forfeited 26, 1995, July counsel. On the district court sentencing hearing. Byrd hearing Leggett held a at which April 1996, Leggett compe- In moved for a explained disagreements. the bases for their tency hearing. granted The district court hearing, the district court After the denied this motion so that it could wheth- determine counsel. Leggett’s motion dismiss his represent Leggett competent er him- Nevertheless, days later, Byrd several sentencing. ap- self at The district court to withdraw from due sought leave pointed attorney, yet another Thomas physical mainly to threats harm.2 The Thornton, and, represent solely at the Byrd to district court allowed withdraw In competency hearing. October place, assigned G. Scott her Gardner represent competency Leggett. district court conducted assigned represent Byrd, pregnant, 2. several had been him an unre- who was months' re- by Leggett up beating Supplemental Appendix to statements ferred lated matter in Ohio. pregnant woman would make "look bad” him ' public a federal who and that he hit defender testimony sys from which it heard Fundamental to an hearing, at adversarial justice precept tem of is the professionals person concern- that “a various mental-health per whose condition is mental such that [the ing Leggett’s behavior. At the conclusion capacity son] lacks the understand the district court reaffirmed its hearing, object proceedings^] nature and the decision that had forfeited his counsel, ... to consult with and to assist compe- to counsel and concluded he was preparing may subjected not be [a] sentencing. represent tent to himself at Missouri, Drope to a trial.” 1996, Leggett appeared for sen- November (1975). S.Ct. L.Ed.2d 103 tencing without counsel. The district of a legally incompetent The conviction de imposed imprison- a sentence of 36 months’ process. due fendant violates Pate v. Robin consecutively ment to served to the other be son, U.S. S.Ct. previously terms received. (1966). In keeping L.Ed.2d 815 with this appeal This followed. unwillingness try incompetents, we have a statutory providing directive that a criminal II. competency question defendant whose is in subjected competency hearing. to a appeal, following On makes the 4241(a).3 § If 18 U.S.C. neither the defen (1) three claims: the district erred in court government dant nor the moves for a such sponte competency declining sua to order a hearing, may court own the trial do so on its (2) trial, hearing the start of before the the so, however, To motion. Id. do trial improperly district court failed to make cer- court must have “reasonable cause” be Leggett validly tain that waived his “presently” lieve that the defendant suffer (3) trial, testify during the the district impairment from resulting an in mental erroneously court concluded that Id.; incompetency. Renfroe, see 825 also sentencing. forfeited his to counsel at (holding at F.2d 766-67 that court have must jurisdiction court pursuant district ability “reasonable as to doubt” § jurisdiction to 18 3231. We have U.S.C. grasp proceedings competency to order a pursuant § 28 to U.S.C. 1291. Davis, hearing); v. United States F.3d 93 (6th Cir.1996) 1286, (noting 1290 that district “ court must have ‘reasonable be cause to Hearing Competency A. The Pre-Trial incompetent”) (quot lieve’ [is] the defendant will claim first consider 4241(a)); § ing 18 United v. U.S.C. States declining that the district court erred in (9th Cir.1996) 1433, George, F.3d 1437 85 competency hearing conduct a before the finding of (stating that a “reasonable cause” began. trial Since we must decide whether compe a court dictates conducts a whether properly applied court the district the stan Lebron, tency hearing); United States v. 76 determining necessity Cir.) for a com (1st denied, dard 29, (same), 32 cert. 518 F.3d petency hearing, plenary. our review is 1011, 2537, U.S. 135 1060 L.Ed.2d 763, Renfroe, v. (1996); Nichols, United States 825 F.2d 766 v. United States 56 F.3d Cir.1987). (3d that, proper (2d Cir.1995) We note if 403, (same); 414 United States (7th Cir.1994) applied, 1358, 1375 has legal standard been factual find Morgano, v. F.3d 39 ings competency regarding are for (affirming reviewed court’s denial of for district motion Velasquez, hearing clear error. United States v. 885 competency based on absence of rea 1076, Cir.1989); Renfroe, compe 1089 825 F.2d sonable doubt defendant’s cause Williams, tency); at n. 4. States v. F.2d 766 United 998 motion, pertinent part: 3. Section 4241 states in on its own if there is reasonable cause may presently the defendant to believe that anyAt time after the of a commencement suffering a mental ren- from disease or defect prosecution prior an offense and for mentally incompetent defendant, dering extent him sentencing of the or the defendant to understand the he is unable nature a for the file Government proceedings against consequences of the him hearing a mental motion for determine the competency properly of the defendant. shall or to assist in his defense. The court 4241(a). hearing grant § motion or shall order such a 18 U.S.C. 242 (5th Cir.1993) incapable (affirming no indication he would be district 266 Although he was psychiatric assisting exam- in his defense. at

court’s denial of motion for cause obstreperous, to absence of reasonable demonstrate an ination due times he did competency). ability doubt defendant’s to serve his interests before the own hearing, Leg- Over the course of the court. competent A defendant is stand of counsel— gett “ assistance —without ‘present if has the witnesses, one of whom cross-examined two ability consult counsel] with [defense Furthermore, Byrd. he made sure he degree a reasonable of rational understand “ ruling ” court he preserved on record a ‘rational ing’ and the defendant has example, perceived to be For when error. pro understanding of the well as factual ” appoint the district refused counsel Drope, ceedings.’ at S.Ct. U.S. responded, pre-trial hearing, Leggett States, (quoting Dusky v. United object I “I want to cite that as error. 4 L.Ed.2d 824 U.S. S.Ct. feigned ignorance of that.” even 766-67; (1960)); Renfroe, at Le 825 F.2d procedure thinly courtroom veiled basic bron, 31; Nichols, 410; at at 56 F.3d support that the effort to his contention dis- Soldevila-Lopez, States United appointing trict court erred in not counsel. (1st Cir.1994). In determining the district court asked When two-prong a defendant satisfies this whether he he could whether understood that test, court must a number consider interrupt trying a witness who was answer factors, including: of a defendant’s “evidence “No, declared, I don’t question, behavior, defendant’s] irrational de [the I’m not a understand because law- trial, opin any prior meanor medical you ... I couldn’t have yer. And told me no Drope, competence to stand trial.” ion lawyer I’m I can.” doing so the best Based However, S.Ct. 896. due Leggett’s handling hearing, of the the eases, vicissitudes of a court must to the all concluded, district court seems me “[I]t that ... nofixed or cognizant are “[t]here top today, from what he said he’s on of this signs invariably immutable which indicate extremely. know case And I don’t how a competency hearing].” for [a the need Id. assistive, client could be if there’s such more predetermined no for mak There is formula a word....” finding of A court ing a reasonable cause. simply unique must look the circumstances agree We the district court’s conclu- case and the defendant decide whether capable than sion that seemed more (1) capacity has the to assist in her or his assisting in His of his own defense. ex- (2) comprehends and own defense nature changes with the district court manifested a If possible consequences of a trial.. ei knowledge working only not of trial tactics met, not prong ther a court has reasonable importance underscoring also of the but hearing. a competency cause to order potential grounds errors on record as for now consider whether satisfied will cases, appeal. In similar other courts of these criteria. interpreted appeals ability have a defendant’s inability in as a

Leggett argues participate proceedings sign that his court Sovie, competency. in his own defense was evident from of In United States assist Cir.1997), July pre-trial hearing at a defendant which he a in sought Byrd, argued denying the dismissal his then-trial that district court erred Byrd expressed competency At that a motion for a examination hearing, counsel. be- Leggett’s allegedly concern that recalcitrance im cause the defendant suffered from her “ ” appeals ability ‘split personality.’ court of peded her to mount a defense when a The stated, question rejected argu- “I do whether he has an for Second Circuit she ment, notes, counsel, ability noting “took to assist his which the defendant [a] counsel, prong competency conversed with and reacted reason- evaluation.” None theless, Byrd emphasized ably she was of evidence.” Id. admission formally moving competency supported evaluation. These actions the Sovie court’s moreover, hearing, gave was “a During conclusion the defendant know- if ing participant in his defense.” F.3d at ronic the district court had ruled sua sponte that the defendant could not in 128. aid defense because he had too keen an interest Williams, appeals the court of for the in that defense. reasons for seek- Fifth Circuit confronted the same issue when ing Byrd’s discharge stemmed from his rela- appealed from a court’s a defendant district tionship particular lawyer with that and did denial of a motion for a mental examination general incapacity seem indicative of a competency. to determine 998 F.2d at 264- any lawyer. Accordingly, consult with Although record showed “ Byrd district court allowed to withdraw and ‘extremely the defendant tended become ” appointed place. Gardner in her The district incoherent, agitated’ the Williams advisedly reading refrained from court affirmed the district court’s decision. competency incompatibil- issue into the mere Despite Id. at 265-66. the defendant’s un- ity particular of a lawyer. defendant and one trial, ruly appeals behavior at the court of clarity Leggett pur- and zeal with which concluded that he was “rational and able to Byrd’s discharge gave sued the district court attorney,” assist his id. at based on the no reasonable cause to believe that he was (1) following: the defendant had “advised in unable to assist counsel his defense. See motions, including to file certain [counsel] George, (affirming 85 F.3d at 1438 district examination”; for a motion mental a short court’s psy- denial of defendant’s motion for period moving before for a mental examina- chological evaluation since defendant was tion, pro handling the defendant “had been se “ ” “ ” “ ‘lucid,’ ‘articulate’ ‘intelli- son”; custody involving case in (affirm ”); gent]’ Morgano, custody connection with the the defen- ing district court’s denial of defendant’s mo dant had “filed numerous coherent [in briefs where, competency hearing tion for in ease court, jurisdiction challenging a] state its judgment, defense counsel’s defendant “had him.” over Id. at 265. helpful cooperative been and more than the Leggett appeared just to be as able to average criminal assisting contribute to his the defendants trial”). preparation for Sovie and Williams. His untoward antics aside, hearing he made a clear effort at the willWe next consider whether present arguments cause, and evidence favorable district court had reasonable at the position. July pretrial to his There was no hearing, Leg reason to 26 to believe that gett believe that he would not act with the same did not have a rational and factual un purpose began derstanding hearing pend of mind once the trial itself of the and of the points he ing portions and had the services of counsel at his trial.5 of the fact, disposal. Leggett’s hearing’s transcript In desire have which he rants about Byrd discharged partially impairments was at least his mental as evidence that he grounded poor grasp consequences what he considered strate- could not the nature and gic part points, on her proceedings. Leg decisions and her failure to of the At several get copies evidentiary him gett damage” of various docu- that he has “brain mentioned oxymo- “schizophrenia.”6 ments.4 It would have indeed been and suffers from Without Leggett mainly disagreed Byrd Morgano, 4. with on matters ation. See United States v. 39 F.3d (7th Cir.1994) (defense relating jury adjustment selection and of counsel's ability trial’s start date. He also maintained that she averment that under defendant copies participate proceedings grave had not obtained of various memoranda stand "casts Karlen, reports prison’s incompetency”). such Dr. as from doubt on the defendant’s psychologist. chief government make 6. Both refer note, initially, Byrd testimony 5. We stated that she did ence to the of several mental-health question Leggett’s competency regard experts concerning Leggett's mental condition "understanding charges, prison. the nature of the what the time of his attack on Troutman at the evidence, however, goes tion, prosecu- [or] on in court the function of the is irrelevant for our Such purposes light Leggett’s the function of defense and the function of because it sheds little on pretrial the Court.” While her statements alone are not mental condition at the time of the hear issue, dispositive they strongly July year of the one after the bolster 1995—over Davis, fully conclusion that understood his situ- assault on Troutman. See United States v. self-proclamation of understanding. A of site discussing self-serving nature

even hardly proof of comments, qualifies illness precious proba- little mental what these a especially coupled with by Leg- incompetency, when they undercut value had was tive necessary elements impairments textbook recitation of that his gett’s own admission legal a waiver. Courts have considered comprehension legal affect his did not Leggett’s far more extreme than behavior concepts, such as waiver to warrant a sua rants to be insufficient know, you what [A]nyway, exactly, I knew competency hearing section sponte under know, right. a You it—what it is to waive my in court. You first time this is know, may stupid. I’m not I’m suffer [sic] strongly mirror those The facts in Lebrón damage, a little schizo- a little brain from Lebrón, present In the defen- of the case. stupid. I I never been phrenia, but ain’t dant, lengthy history of Leggett, like had a waiving your rights is. what understand disorders, diagnosed as a psychiatric and was know, knowing I what a You understand at 30. At a possible schizophrenic. 76 F.3d voluntary intelligent knowing and change-of-plea hearing, the defendant threw is. waiver investiga- pitcher of water at several case a all Thus, betrayed by Id. at 31. Neither side moved for argument is tors. and, pursuant plea competency hearing generally of an axiom ob- own articulation “ i.e., agreement, the defendant was sentenced. not follow ‘[i]t courts: does served appeal, argued that the person mentally ill Id. On defendant [that that because a is compe- court should have ordered competent is not to stand trial.’” district person] Davis, tency hearing sponte to his “irration- (quoting sua due 93 F.3d at 1290 Newfield (2d States, outrageous behavior in the court- Cir. al and 565 F.2d United (“It Nichols, 1977)); affirming Id. at 32. the district 56 F.3d at room.” see also rejecting degree judgment of men- court’s of sentence and that some is well-established ap- argument, the court of equated with incom- the defendant’s tal illness cannot be trial.”) (internal expounded, peals for the First “Such quotation Circuit petence to stand Williams, uncontrolled, omitted); may manipulative, behavior and citation marks It not determinative of (observing that certain mental or even theatrical. F.2d at 266 disabilities, slight competency. Agitated or or violent courtroom such as “minor neurosis retardation,” finding by antics alone do not mandate a not render trial). (citing If the trial court of reasonable cause.” Id. incompetent to stand mental Marshall, 446, 450 “deprive States v. illness does not the defendant United Nichols, Cir.1972)); proceedings ... see also ability ... to understand the Nichols, (affirming finding court’s rationally factually,” district as well as (citation i.e., omitted), getting unusual at 412 then the illness behavior — putting purposes determining down “on all fours” and his head irrelevant for the “ ”). fakery’ the floor—was ‘all calculated competency. Clearly, mental Although consider a declarations of a trial court illness, history generative illness were no more of reason- of mental must inquiry the able cause than was the defendant’s sudden “properly [on its defen focus[ ] [proceedings].” paroxysm in as do not want state at the time of the Lebrón. Just we mental dant’s] (cita symp- encourage to fabricate Morg ano, 39 F.3d at 1374 to defendants omitted). is, in (e.g., of mental violent acts That the defendant must toms disorders tion court) impairment competen- to raise doubts about their only suffer from a mental but not “ cy, require to we also do not want to ‘district “presently” also be unable under must competency hearings sua consequences of the courts to order stand the nature and 4241(a). every has Nothing sponte § case where proceedings. 18 U.S.C. and, history psychiatric treatment during July 26 some of said or did ” vaguely, problem.’ Le- suggested requi- he lacked the even mentions hearing 1286, Cir.1996) (defendant's (6th "permit require” does not or examination of 93 F.3d 1290 trial). competency incapacity for assertion mental at time of offense of

245 bron, (quoting 1077, 140 76 F.3d at 33 (1998); Hernandez- 118 S.Ct. L.Ed.2d 135 Orte States, 758, (7th ga 258, Hernandez v. United 904 F.2d O’Leary, v. 843 F.2d 261 Cir. (1st Cir.1990)). 1988) (same). First, Leggett merely 760 men “Fourteenth diagnosed tioned that he been past guarantee Amendment’s that no one shall be having psychiatric problems. deprived liberty Such state of process without due ments, alone, standing give did not right the dis law inelude[s] be heard offer Rock, testimony.” 51, trict court reason to believe that Leggett did 483 U.S. at 107 S.Ct. 2704; grasp consequences the nature and of the see also United States ex rel. Wilcox v. Johnson, (3d Cir.1977) proceedings against 115, him. 555 F.2d 118 (right testify from “emanate[s] the due reasoning, Based on this we conclude process requirements of the Fourteenth that the district court did not Amendment”) (citation have reason omitted). Second, able cause to believe that was right testify also derives from the incapable consulting with an and Compulsory Process Clause of the Sixth assisting in his defense or did not under Amendment, grants “which a defendant the ” consequences stand the nature and of the Rock, right to call ‘witnesses his favor.’ proceedings against him.7 52, 107 483 (quoting U.S. S.Ct. 2704 Wash Texas, 14, 17-19,

ington v. 388 U.S. 87 S.Ct. 1920, (1967)). times, 18 L.Ed.2d 1019 At Right Testify B. To important “the most witness for the defense now turn to Leg- the issue of whether ... is the defendant himself.” Finally, Id. gett was right testify denied his at the right testify protected by is the Fifth trial. plenary We exercise review over guarantee against Amendment’s compelled violations, claims of constitutional such as the is, testimony. Id. That the privilege to re right denial of the United States testify part fuse to parcel is (3d Cir.1995). 9, Pennycooke, 65 F.3d 10 privilege testify if one wishes to do so. Id. 53, 107 S.Ct. 2704. Supreme The Court has held that right “testify on one’s own behalf at a personal is and can be grounded criminal trial” provi defendant, three only by waived not defense sions of the Constitution.8 10; Rock v. Arkan Pennycooke, counsel. 65 F.3d at John sas, 2704, son, (observing 555 F.2d at 118 (1987); L.Ed.2d see also testify United States v. “can be only by waived the defendant Walker, (internal Van De by 1452 n. 1 and not attorney”) quotation (11th Cir.1998) (acknowledging omitted); to marks and citation Emery v. John — constitutional), denied, son, (5th Cir.1997) (“This cert. -, U.S. testify] S.Ct. L.Ed.2d 211 right can only by [to be waived (1998); Artuz, defendant, Brown v. counsel.”), petition for Cir.1997) (same), (U.S. denied, - U.S. -, 1998) (No. cert. filed, 98-5802); cert. Jul. that, reason, although 7. We note the district posttrial court held a For this the district court’s com- competency hearing after the petency trial and deter- weight determination carries no competent appear mined that regard to our review of its decision not to order sentencing, way that determination is in no rele- competency hearing. an earlier analysis vant to our district court's deci- competency hearing prior sion not to order a protected by 8. The is also federal Supreme the trial. The Court has noted that a law, statute. Under federal competency point pro- defendant’s at one of a ceeding necessarily does persons not mean that de- charged [i]n the trial of all with the com- competent throughout pro- fendant has been ceeding. against the mission of offenses the United States Missouri, 162, Drope See v. proceedings and all in in courts and martial 181, 896, (1975) ("Even State, District, inquiry 43 any L.Ed.2d 103 courts of in Posses- competent shall, when a defendant Territory, person at the charged com- sion or the at trial, always request, mencement of his a trial court competent must his own be a witness. His suggesting change be alert to request circumstances a failure to make such shall not create that would render the presumption against accused unable to meet him. trial.”). competence the § standards of to stand 18 U.S.C. 3481. 246 Edwards, 445, 446-

Brown, (“[EJvery at circuit v. 897 F.2d F.3d 77 that United States 124 (9th Cir.1990); Vose, placed 47 Siciliano v. 834 F.2d question this has the considered has (1st Cir.1987); 29, v. Bern testify ‘personal 30 United States right the 749, (8th loehr, Cir.1987); 833 F.2d Unit only by 752 category i.e., waivable the rights’ — (10th Janoe, 1156, v. 1161 ed States 720 F.2d of tactical con regardless himself defendant Cir.1983).9 siderations.”) (citations omitted); Ortega, 843 (“If testify on a defendant insists at 261 F.2d in Pennycooke that a trial We decided decision, how such a ing, no matter unwise only inqui- has an duty court not no to make comply request.”) attorney must but, rule, ry general inquire aas should not omitted). (citation does If a defendant waive right as to defendant’s waiver knowing, vol must be right, the waiver explained testify. reasoning our as fol- intelligent. Pennycooke, 65 untary and F.3d lows: 198; 11; Emery, Ortega, 139 at F.3d 843 at determination of whether the defen- [TJhe 261. F.2d at testify part important will is an dant strategy trial to the defendant best left Leggett argues that the district intrusion of and counsel without the steps inquire no whether he court took court, may as trial that intrusion have the voluntarily intelligently knowingly, swaying unintended effect of the defendant right argument This waived way example, one or other. For as a negotiate a fundamental hur fails to rather sense, strategy matter of and common i.e., court the fact that the district dle: until defendant and counsel wait well Penny duty inquiry. make such an no deciding into the trial whether the before cooke, unambiguously “a stated that we Thus, will testify. defendant the trial duty explain to the defendant court has no may not will court know that the defendant right testify has or that he or she a A testify not until rests. collo- the defense verify testify that the defendant who is quy point on the at that voluntarily.” has waived the 65 awkward, only impor- more would but complete This ruling at 11. falls F.3d tantly[,J inadvertently might the de- cause majority agreement with those of the fendant to think court believes that the appeals courts of that have ruled on this has been This belief defense insufficient. See, Walker, e.g., 141 issue. Van De F.3d at might prompt in turn the defendant Brown, 79; 1452; Liegakos 124 v. F.3d appropriate strategy an abandon (7th Cooke, 1381, Cir.1997); 106 F.3d 1386 good without reason. Ortiz, v. United States 82 F.3d (citations (D.C.Cir.1996); McMeans, Pennycooke, United v. at 11 omit- States F.3d (4th Cir.1991) 162, 163 ted). Walker, curiam); (per also 141 F.3d 927 F.2d See Van De heavily Ortega O'Leary, place exception Leggett,relies v. within the be it same narrow (7th Cir.1988), which the attorney court makes cause claim that his no appeals for Seventh Circuit stated "a (we testifying actively barred him from discuss carefully through trial court should ascertain a Third, ). length this matter at the court of infra inquiry testify] right [to methodical whether th[e] Circuit, Ortega appeals for the in both Seventh voluntarily intelligently [waived].” has been opinions, subsequent has embraced the be misplaced reliance on this His case is three duty generally trial courts lief that have no First, supra, reasons. as noted the overwhelm inquire testify— about the defendant's decision to ing majority appeals of courts of have decided thereby Ortega pres acknowledged and has duty that a trial court no to make such has an See, exception, e.g., rule. ents narrow not the Second, inquiry. Ortega place the facts of Cooke, (7th Liegakos v. 106 F.3d Cir. general exception within a narrow rule 1997) (holding that trial court need not ascertain since, against requirement judicial-inquiry validly waived whether has defendant told the trial testify); Brimberry, United States v. contravening his desire to (7th Cir.1992) (same); Ortega, 1289-90 investigate and the trial court did not matter. (“It F.2d at 261 that courts have no is true Penny 843 F.2d at 260. See United States duty to a defen affirmative determine whether cooke, Cir.1995) (offering Orte knowing is the dant’s silence result of ga example “exceptional” of an case in which (citation voluntary testify.”) omit decision not to trial court should defendant's ensure that ted). testify protected). is of this case do not The facts

247 by point, provided trial court (inquiries example “would unneces elucidate the we attorney-client sarily intrude into the rela of a situation in which “defense counsel nulli- unintentionally tionship right and could influence fies a testify defendant’s to over the choice”) (internal protest.” the defendant in his or her defendant’s Id. at 13. Prior to omitted); quotation Pennycooke, citation Lie marks and we encountered such a case. In (“[W]hether Johnson, gakos, testify lawyer badgered strategy is a fundamental of a waiving element that the defendant into right testify his (indeed, may want by threatening ease, defendant to withdraw from the entitled) keep in confidence...-. Defen which would have left the defendant to fend lawyer explore dant and his should these for himself for the of remainder the trial. options carefully, issues and but as a rule the 555 F.2d at 117. We determined that not, judge inquire need not and should into “threatened loss of counsel” violated the de- strategy.”). choice This ratio rights fendant’s constitutional and “worked accepted is principle nale rooted that it pry as a lever to from [the his ... defendant] responsibility, is right testify.” defense counsel’s not the Id. at 120-21. court’s, to make sure that the defendant Leg There is no indication that testify is right informed of the and that gett’s remotely situation was even as dire as any'waiver right Pennycooke, is valid. that of the Leggett defendant Johnson. 65 F.3d at 13. See also United States v. that, merely during asserts the course of the (11th Cir.1992) Teague, 953 F.2d trial, he in disagreement with his attor (en banc) (“[I]t primarily responsibility ney as to testify. whether he should Unfor of defense counsel to advise the defendant of tunately Leggett, there is no constitution right testify thereby ensure that right represented al by lawyer to be who protected.”). right agrees strategy. with the defendant’s trial hypothetical presented situation we Taylor, United States v. Pennycooke mirrors the chain of events at (7th Cir.1997). disagreement Mere between Leggett attorney, trial. defendant counsel with regard to strate Gardner, apparently debating were whether gic decisions does not create a situation se However, testify. should the dis- enough compel vere a district court to way trict court knowing they had no what investigate rights whether the defendant’s had decided between themselves the time being impinged. long are As as it is clear the defense rested its case. The district that defense counsel has informed the defen wisely holding refrained from a collo- right testify dant of the and the defendant issue, quy on the and avoided right, understands district court has giving impression thought Leggett that it (no no reason to intervene.10 See id. violation Still, testify. should raises two lawyer disagrees where with defendant’s de

points maintaining that the district court impede cision to but does not defen having colloquy. erred in not such Neither testify); Emery, dant’s exercise of point has merit. (holding 139 F.3d at 199 that defendant’s

First, Leggett Penny observes that not violated where defendant that, recognizes cooke under certain circum understood did not coerce stances, French, inquire a trial court right); should as to the waiver of the Noland v. (4th Cir.1998) (trial defendant’s decision to While we did F.3d counsel did rule, exception general improperly put observe this in failing we not act great pains emphasize also took expressed on stand when defendant no de — denied, applies 97-9428, testify), on the rarest of occasions. We noted sire to cert. No. only -, exceptional, narrowly “in defined U.S. 142 L.Ed.2d 101 (1998); judicial States, Payne circumstances” is such intervention v. United (8th Cir.1996) (defendant appropriate. Pennycooke, 65 F.3d at 12. To 346 cannot claim testily. makes no claim he was either unaware of or did not understand his it inadvisa- Pennycooke, in As we stressed improperly in not ad- attorney acted “a defendant a trial court to address attorney ble testify when vising defendant to of the directly his or her waiver and, about in of to defendant advised Although we at 11. beforehand). testify.” 65 F.3d fact, knew defendant Pennycooke in that a trial explicitly stated Thus, judicial inquiry concern- that mindful encouraging a defendant should avoid court exception, not testify “is the right to court should also avoid testify, a trial rule,” Leggett has not we conclude that Any strategic testimony. discouraging such attorney act- any that his presented evidence Leggett and Gardner should dispute between testify.” ... desire “frustrat[e] ed to comment from resolved without have been such, Leg- at 13. As Pennycooke, 65 F.3d court. the district why reason we should has shown no gett exception district court’s re Pennycooke impropriety apply the narrow noted, conclude we nonetheless being marks this case. not commit revers that the district court did by Leg point The second raised Leo, States ible error. See United testify” “right to claim support in of his gett (3d Cir.1991) (ruling that dis F.2d expressed openly its that the district trict court’s restriction testify. The dis opinion that he should not harmless error testify could be considered in this re two statements trict court made if was beyond a reasonable doubt day before gard. On November putting complete forth a prevented from not presentations of concluded their both sides defense).11 facts of the matter are The bare that, evidence, expressed concern Gardner (1) day the defense rested before these: advice, Leggett wished contrary Gardner’s attorney disagreed Leggett and his its Leggett: testify. court told The district stand; day one Leggett’s taking the about lawyer’s your evidence, ought to listen to later, [Y]ou at at the close of got perspective a better on He’s further evi torney advi[c]e. that he had no indicated you I you And as told be implicitly this than do. meant present dence —which here, fore, I my testify; Leg- if were on trial would son that would lawyer’s If I maintain him to follow his advice. not now gett tell did not then and does trial, my lawyer’s against his wishes. I would follow acted were that his advice, facts, though thought I it was district court re even on these Based n wrong. And I do think that Leggett was you should ceived no indication attorney to remain silent. give greatest that the consideration. coerced only have assumed court could The district Then, 9, the district court en- on November that, leading to the period 24-hour exchange at sidebar with Gard- gaged this evidence, had convinced close of Gardner ner: testifying not in his best was I District Court: didn’t want do Singletary, 72 Lambrix v. interests. See Court, you not sure open but do have—I’m (“Without (11th Cir.1996) 1500, 1508 your being further evi- entitled subject was defendant] that [the evidence dence, you had but I wondered whether coercion, we cannot assume continued any. apparent acquiescence to a [the defendant’s] any. Mr. I haven’t Gardner: strategy which he did I right. All That’s fíne. voluntary.”), aff'd, District Court: anything but (1997). say thought 1517, 137 I didn’t want to because L.Ed.2d 771 S.Ct. jump up say he want- [Leggett] might that the much of the fact Leggett makes ed to at sidebar court asked Gardner district any further evi- on whether the defense Clearly, court’s comments the district Yet, that the present. the mere fact highly inappropriate. both dence occasions were Cir.1997), McLaughlin, argue Although government does not -, denied, harmless district court’s actions constituted - U.S. cert. error, apply we harmless-error (1998). have discretion L.Ed.2d 735 analysis States v. to those actions. United

249 reasons, reject Leg- any evidence evidence. For these we court asked for further district Leg- gett’s court him suggest not claim that the district denied at sidebar still would testify right testify. unless right denied the to to gett was (1) were true: either possibilities one of two right Leggett not informed of his was Right C. Forfeiture to Counsel (2) up point or defied

testify to that Gardner Finally, Leggett’s claim we turn to Leggett’s and offered no further instructions improperly that the district court determined planned testify Leggett evidence when had right that he forfeited his to counsel at sen The first sce- before the close of evidence. tencing by physically attacking lawyer. his clearly apply not since nario does plenary review over claims al We exercise testify right asserted his earlier had leging right Amendment denial Sixth right testify trial. One who asserts the Goldberg, 67 counsel. United States v. ignorance right. later claim of that cannot (3d Cir.1995). 1092, 1097 F.3d (finding claim that See id. at 1508 right dubious he was uninformed This case raises the issue of for trial right since defendant asserted at earlier Forfeiture, right feiture of the to counsel. charges). second scenar- based on same however, closely is often confused with the equally io seems baseless. To reiterate an concept related —but of waiver. distinct — point, Leggett argued in this earlier has not See, Mitchell, 777 e.g., United States v. F.2d posi- appeal misrepresented that Gardner his (5th Cir.1985) (concluding that 258 de Furthermore, Leggett several tion. made right fendant to counsel while “waive[d]” postconviction pro se motions but one forfeiture); resting on notion of Yale decision right was based on the denial of the Procedure, al., Kamisar et Modern Criminal planning testify, If he had been (8th ed.1994) (noting 1598 n.b that some expect right one would that the denial of that “forfeiture”). courts refer to “waiver” as have of the first bases he would been one clarity, initially note the interest of we shall trying would have claimed to overturn his concepts. the distinction between the two A Therefore, although find that conviction.12 we voluntary waiver “an intentional relin and rashly injected the district court itself into a quishment right.” Goldberg, of a 67 known discourse better left to the alia, (citing, Wayne at 1099 R. inter client, imprudence not result in a did Israel, H. Proce LaFave & Jerold Criminal Leggett’s right testify. Leg- violation of (2d dure, 11.3(c), ed.1992)); § n. 4 at 546 his gett aware of his was McLeod, 322, 325 n. States v. 53 F.3d United lawyer nothing prevent him from testi- did Cir.1995) (“We (11th ‘forfeiture’ 6 discuss fying. contrary. There no evidence implies waiver rather than “waiver’ because (1) recapitulate, relinquishment that: ‘an of a known To we hold under intentional ”) (citation omitted). commonly, right.’ the district Most the circumstances of this right by an “affir duty Leg- no to ascertain whether one waives a constitutional had mative, pro validly testify; request” (e.g., requests to gett had waived his verbal Goldberg, disagreement pro plead guilty). se or to 67 with trial counsel ceed testifying exceptional F.3d at 1099. It is well established that over did not create judicial right to counsel must be know necessary circumstances to warrant waiver of the ing, voluntary intelligent. court’s involve- United States inquiry; and the district (3d Salemo, Cir.1995); v. dispute ment in the between James, Virgin Islands v. attorney, inappropriate, while did not amount Government Cir.1991); McMahon v. is no evi- 934 F.2d to reversible error because there (3d Cir.1987). Fulcomer, any intention of testi- dence that had regard ensuring that a waiver is fying on November 9 before the close of With (1984) (convicted 12. has made no claim S.Ct. 80 L.Ed.2d note also lawyer claim of ineffective assistance of counsel—a ineffective if claim which would at least be colorable if Gardner during lawyer did function as “counsel” kept against testifying will. See him from defense). lawyer's prejudiced the and if actions Washington, Strickland valid, Goldberg, feiture of the to counsel. responsibility the trial court’s varies— F.3d at 1102. being depending on the waived. As we earlier, depth has discussed in a trial court requirements of Leggett argues that duty no to ascertain that a waiver of the Goldberg were not the district satisfied contrast, By if a right is valid. court when it concluded that forfeit- right defendant elects to waive the to coun right lawyer. disagree. his a In ed sel, a trial court must make sure that the Goldberg, attorney alleged defendant’s dangers “an defendant has awareness of the his 67 the defendant had threatened life. disadvantages defending inherent in one at 1095. The district court concluded F.3d Welty, self.” States v. 674 F.2d United right that the forfeited his to coun- (3d Cir.1982); 188 see also Faretta v. attorney. by threatening sel the life of his Califor nia, (noting Id. at 1096-97 court used district (1975) (trial L.Ed.2d 562 record must show though actually it was term “waiver” even right that “ waives to counsel applying principle). defendant who forfeiture We reversed doing ruling ‘knows what he is his [that] the district court’s but did not base ”) (citation eyes open’ severity choice is made with our decision on the of the defen- omitted). (Certainly, dant’s misconduct. it would be quantify difficult to a death threat as Forfeiture, hand, on the other more or less offensive to the sensibilities of knowing require does not and intentional than, society say, physical civilized an actual Rather, relinquishment right. aof known reprehensible.) assault. Both acts are In- forfeiture “results in the loss of a re stead, ruling we reversed the district court’s gardless knowledge of the defendant’s there findings concerning because its factual irrespective of and of whether the defendant hearing death threat were made at a relinquish Goldberg, right.” intended party. which the defendant was not a Id. at legal 67 F.3d at 1100. To forfeit the ruling 1102. We that a concluded forfeiture representation, engage in defendant must entirely pre- not be could based on evidence “extremely serious misconduct.” Id. at 1102. parte hearing. sented at an ex Id. McLeod, example, in For defendant’s attor evidentiary problem No such exists in this ney testified that the defendant was “verbal evidentiary An hearing case. was not neces- abusive”; ly had “threatened to harm[the sary in because assaulted Gardner attorney]”; had the attor threatened sue Furthermore, full view of the district court. ney; persuade attorney and had tried to (at subsequent competency hearing at the in engage unethical conduct. 53 F.3d at counsel), represented by which 325. The district court concluded that the possibility the district court did consider the egregious behavior was so was not control of his facul- constitute a forfeiture of the to coun though ties when he assailed Gardner — appeals the court of sel—and the Elev ultimately respon- did conclude that he was agreed by affirming enth Circuit deci Thus, Leggett sible for his actions.13 benefit- sion. Id. pres- ed from two elements which were not Leggett’s conduct was even more ex in Goldberg: presentation ent a direct treme than that of the defendant McLeod. (i.e., evidence before the court district itself) the McLeod Whereas defendant’s abuse par- occurrence of the attack nature, his was verbal ticipation in proceeding an adversarial unprovoked physical battery. was an abuse contest the forfeiture. we our Since based Goldberg We do not hesitate to conclude that such an decision on the absence of these qualifies “extremely attack as the sort of present factors and since those factors are reject Leggett’s argument serious misconduct” that amounts to the for- in this we denying Leggett’s appoint- engaging argument 13. In motion for the that after counsel, in an with his ment of counsel after the attack and at the con- allowing pass, 20 seconds to and then competency hearing, counsel, clusion of the the district assaulting his such actions were not remarked, presented court evidence ”[N]o th[e voluntary.” competency] hearing supports Leggett's assertion (1987). belongs The decision to the defen- Goldberg were not requirements of that the counsel, dant and not made court. by the district satisfied See, Artuz, e.g., Brown v. or the court. sum, that the district we conclude Cir.1997); Pennycooke, that, by physically determining not err in did Moreover, or un- “[t]he F.3d at 10. wisdom attorney, Leggett attacking forfeited wisdom of the defendant’s choice does sentencing hearing.14 at the right to counsel right to it.” diminish his make United States (11th Cir. Teague, III. 1992) Estelle, (quoting Wright v. reasons, we will affirm foregoing For the (5th Cir.1978) (Godbold, J., dis- judgment of conviction the district court’s Further, senting)). “the and sentence. ... own behalf at a criminal trial is one one’s pro- rights that ‘are essential to due McKEE, dissenting part, Judge, Circuit adversary process.’” of law in a fair cess concurring part. Rock, 51, (citing at 107 S.Ct. 2704 U.S. California, v. 422 U.S. n. Faretta waived his agree I that the defendant (1975)). 2525, 45 L.Ed.2d 562 95 S.Ct. sentencing, and I concur dubi- to counsel at majority’s holding that the dis tante in the right. wanted to exercise that He ordering not err trict court did attorney judge the trial so. His told the told However, I competency examination.1 re so, judge though he also informed the court my colleagues’ conclu spectfully from dissent majority against that he advised it. The “validly his the defendant waived sion opposition is agrees that defense counsel’s Indeed, Maj. Op. at 239. testify.” analysis. Maj. Op. at irrelevant to our See majority misstates the issue. The issue (“The personal and can be 245-46 “validly the defendant waived” whether defendant, by only not defense waived it at his He did not waive 10). counsel”) Pennycooke, at (citing 65 F.3d Instead, deprived opportu all. he was obviously thought Leggett The trial court his in nity to after he and competent participate in his own de- that he wanted to do so. formed the court he told the court he wanted fense when majority’s Accordingly, discussion of today uphold that testify, and we conclusion. Rather, here misplaced. waiver is the issue Yet, put mildly, judge the trial was not duty court violated a is whether the district impressed Leggett’s asser- particularly with Penny v. inquiry under United States responded right. The court first tion of his (3d Cir.1995). cooke, I Because 65 F.3d lawyer’s ad- by urging Leggett to follow the district court’s failure believe majority already commented vice. The has holding in inquire was a clear violation of the colloquy in which the trial court upon the respectfully Pennycooke, I must dissent. advice, lawyer’s urged Leggett take judge to which the and mentioned extent

I. get Leggett to follow that ad- attempted to Maj. My colleagues Op. at 248. a criminal vice. See It is well settled that then, comments testify in that the court’s right to his or conclude has a constitutional inap- Arkansas, highly subsequent side bar “were v. at her own Rock behalf. they Maj. Op. 44, 49-53, propriate.” at 248. Indeed 97 L.Ed.2d 37 during sentencing stage, not the trial itself. at sen that the forfeiture of counsel 14. We note tencing a blow to a express opinion does not deal as serious mis- as to whether no counsel at as would the forfeiture of defendant the trial itself. For justify would have been sufficient conduct (e.g., of reasons number during the trial. forfeiture of counsel inapplicability Evi of the Federal Rules of " dence), sentencing hearings 'demand much less ” "dubi- my in that issue as 1. I define concurrence specialized knowledge United than trials.’ signify about that I have reservations lanle” to (3d Cir.1995) Salemo, States Dept. Army v. decision. See Salvation Day, (quoting States v. United Community Affairs, 202 n. 1. (8th 1993)). We underscore that the district Cir. 1990). ruling Cir. at the in this case made its forfeiture They were. also constituted a breach of the throw this out for consideration. Mr. him, well, obligation might properly to allow court’s Gardner ask happened respect to ... whatev- in his own behalf as is evidenced what following exchange gentleman’s hap- between er the name was. What counsel, court, pened you Do think and the defendant: incident. something wrong there’s with that?

[DEFENSE resting COUNSEL]: I’m not Now, point, I to rest. but intend [PROSECUTOR]: At a minimum I think Mr. has indicated to me that he asked, Judge. that should be testify.... wants to I have him advised right. you anything [COURT]: All Do see against testifying.... I don’t think it’s wrong with that? his best interest.... He does not want to [DEFENSE COUNSEL]: ... I don’t advice, apparently, take that and he’s —at Leggett’s going say. know what Mr. up least until I now. don’t know whether I’m put at a loss. I never a witness on the changed testify- he’s his mind to insist on stand like Mr. before. And noth- ing. ing that I’ve said or with him discussed Why you [COURT]: talk to him don’t over past given over the has me months the lunch hour. And if he wants to take say going indication of what he’s when stand, your what is view as to wheth- stand, gets he on the witness other than mean, it, er —I aside from the do ideation and these hallucinations and delu- you think he has the to take the sion. stand? course, may very [COURT]: Of that be does, [DEFENSE COUNSEL]: I think he helpful you. to Your Honor. [DEFENSE Again, COUNSEL]: like I Well, right. you [COURT]: All what are say, going I don’t know what the man’s do, asking if anything? us to say. Well, [DEFENSE your COUNSEL]: perfectly willing [COURT]: I’m to tell Mr. Honor, if taking he takes —if he insists on before, you what I him told that stand, I’m my not sure what role is at ought your'lawyer’s to listen to advise.[sic] name, point that him asking other than his trial, ... If I my were on I would follow because I think self-defeating don’t—I it’s advice, lawyer’s though thought even I it testify. for this man to wrong. I you And do think that is—I interests to Mr. has Now, told think that the Court as far you testify. as what —what that, ^[*] you it’s not However, ^{[*] [*]} know, ought my your lawyer you your obligation to advise do have best him, stand. nal record should [DEFENSE COUNSEL]: That his crimi- What more if anything? give may do come out you greatest think I if consideration. he takes the ought to tell right.... says, yes, he I [I]f wish to stand, any take the witness I don’t have him, questions prepared to ask other than Well, [COURT]: he knows that.... your you

what’s name and what do have to What else? say jury your on behalf. may- [DEFENSE COUNSEL]: That he

well, my opinion, going go- he’s to—it’s self-defeating going and he’s destroy any possibility acquittal an [COURT] [addressing prosecutor]: this case. Well, wrong what is Mr. Gardner Well, asking client, asking [COURT]: if I question think there’s witness — client on taking insists don’t know about that. He be so far off base that —I Judge waiting whether win him. I might is out it this case for So don’t McClure there or you say. not.... We are late.... I know what more want me to Court, open I this in COUNSEL]: That’s suf- didn’t want to do but [DEFENSE [sic] your fices, you being have—I’m not sure of do Honor. Your evidence, I but entitled further won- you any. dered whether any. COUNSEL]: I haven’t [DEFENSE [DEFENDANT]: I can’t talk? right. [COURT]: All That’s fine. I you say? [COURT]: did want What thought I say want it because he didn’t say I wanted to [DEFENDANT]: jump might up say he wanted to lawyer talking ain’t been here. This me, talking me. If would have been he added). App. (emphasis at 163 going say what I was he would know majority The that this scenario does holds That shows that this the witness stand. narrowly “exceptional, not fall within the de- man me ineffective assistance. giving “a require fined direct circumstances” He he don’t know what I’m taking about ... colloquy with a to ensure that going stand. say on the protected.” ^{[*] [*] [*]} Pennycooke, then I am hard pressed at 12. imagine If scenario doesn’t, that would. a minute.... law [COURT]: Just Mr.

clerks I have discussed Gardner’s performance in this and we think it is II. remarkably good, and' —so don’t tell me Pennycooke a trial judge established that giving you ineffective assistance. he’s usually duty inquiry. has no such Our job. going He’s an excellent [sic] reasoning upon personal was based there in one’s

nature own behalf, the trial court dangers of the intrud- ing strategy, danger into and the matters of Well, [DEFENDANT]: what I’m— consequences that could unintended result I got [COURT]: a second. have Just a thus with the exercise of interfering funda- appointment judge. with another You [sic] pro- than right rather mental constitutional know I am seven minutes I am it. late. Nevertheless, tecting it. 11-12. Id. at it, going keep this and Court’s recess. above, “exceptional, recognized that noted we App. responded The defendant 148-151. narrowly could circumstances” re- defined you tell “How did I know? You didn’t me “judicial through a quire interjection direct appointment.” Supp.App. no at 125. A colloquy the to ensure that luncheon was then called. When recess testify is Id. at protected.” was court resumed a witness called out of this, majority recognizes hastens to but add: order, proceeded government the with and emphasize pains also took that it great “we inquired rebuttal. The court never further Maj. Op. applies on the of occasions.” rarest Leggett. day, immediately prior The next However, quali- that at 247. we did. Indeed case, judge, prosecutor to the of the the close this is not such fier does not that an establish following counsel had the discus- occasion. sion: My colleagues this is conclude that prosecution [PROSECUTOR]: The has by characterizing an the events such occasion witness, no other rebuttal Your Honor. transpired a during “[m]ere that the trial as into evidence would move certain disagreement between defendant counsel previously the the Court has documents regard strategic They decisions.” that today, seen but we can do out of the “disagreement” “does not conclude the presence jury. the compel enough create situation severe Okay. right. May All I [COURT]: see investigate whether the district court to de- counsel, please. impinged.” Maj. rights being fendant’s are (at sidebar) However, “every circuit that has Op. at 247. question placed has

considered this the de- The bare facts of the matter are these: testify ‘personal day fendant’s before the defense rested its only by rights’ category i.e., waivable attorney disagreed about — regardless stand; himself of tactical con- Leggett’s taking day one Artuz, later, evidence, at 77. siderations.” F.3d at the close of attorney indicated that he had no further Furthermore, assuming even this was a present implicitly evidence to —which disagreement” strategy, “mere over it was meant that testify; would not holding Pennycooke still a violation (3) Leggett did not then and does not now only ask if defense counsel his client want- attorney maintain that his against acted testify, absolutely inquiry ed to and make no facts, his wishes. Based on these the dis- Ortega O’Leary, of the defendant. See trict court Leg- received no indication that (7th Cir.1988) (stating 261 n. gett by attorney was coerced to remain only question attorney is error to about silent. only The district court could have testify a defendant’s desire to where defen- that, period assumed in the 24-hour lead- interrupts express dant a trial to desire evidence, to the close of Gardner had so). only do Not did the trial court address testifying convinced was not counsel, inquiry only its it did so in a in his best interests. prevented manner that the defendant from responding, objecting attorney’s Maj. Op. or to his at 248-49 (citing Single Lambrix v. fact, response. (11th Cir.1996) tary, defendant did not (“Without even know that the trial court had asked the evidence that [the was defendant] question attorney. of his It subject coercion, is true that to continued we cannot as request did not following apparent sume that acqui [the defendant’s] the sidebar when his informed the strategy escence to a trial in which he did not court that he had no additional evidence to anything voluntary.”), aff'd, but present. 518, 117 It is also irrelevant. How could he S.Ct. 137 L.Ed.2d 771 (1997)). request? Leggett make such a could not Although explanation is based very disrupted proceedings by record, well have majority’s conclusion as to standing open speaking directly court and what the district spec court assumed is rank judge being ulation, anything. without asked Moreover, not “bare facts.” judge’s That was the choice that the conjecture side bar judge’s contradicted the trial jury left him. This was about to determine own statements at If judge side bar. Surely, Leggett’s jump his fate. failure to only “could have assumed that' ... Gardner jury his feet in front of the and insist that he had Leggett convinced that testifying was speak be allowed to can equate with a not in his best interest” I am at a loss to waiver of the just he had asserted the judge’s explanation understand the own that preceding day. Ironically, Leggett may speaking have he was to Gardner at sidebar so exactly (jump done that his feet and assert Leggett that “jump up say would not and he feared) testify judge his as the had testify.” wanted to he known what going was on. judge The Nothing that transpired had during the realized that. He called defense counsel to trial judge would have caused the trial Thus, prevent sidebar to it. majority the Leggett conclude that and his had places importance far too much on Leggett’s finally way a found to communicate on the speak failure to jury. out front of the Rather, eve of the close of the trial. all that That nothing silence establishes more than before, gone had including the statements of the success of the court’s efforts to silence Leggett, attorney, suggested and his Leggett Leggett prevent and him “jump[ing] from up continued to taking insist on the stand say[ing] testify”. and he wanted to against advice of though counsel even majority attempts

The judge attempted minimize the tri- cajole had him into fol- al judge’s attempt keep Leggett lowing attorney’s Moreover, from his advice. even jumping up asserting his if judge had somehow reached the con- as follows: hours, during preceding clusion that trial, an the court reasoned that the defendant Leggett experienced counsel prevail already a renais- as he received brought that about could not had epiphany had them, upon jury a based between new trial the first of communication sance The also held that duty inquiry reaching had a under a verdict. trial court still “simply was no in the record Pennycooke to ascertain whether there evidence counsel) decision, (and testify in was coerced not to not his had made that that Lambrix trial,” failing Leg- despite was call his claim that the coer- whether counsel second or Lambrix, upon lingered. See 72 F.3d at 1508. against Leggett’s wishes based cion gett affirmed, strategy.2 Supreme only can- but dis- dispute over Defense counsel The Court arising Teague. The didly that he “at a loss” cussed the issues under conceded was put a not address assertion “had never witness on the stand Court did Lambrix’s that he Moreover, Mr. before.” that his his own behalf like from majority’s willingness abridged. to find a waiver been following the respond failure to if waiver troubling even sidebar would III. reviewing court issue here. “A were the every ‘indulge presumption against must am, course, I that the trial mindful ” rights.’ of fundamental waiver constitutional trying to order dur- judge here was maintain (7th O’Leary, Ortega v. trial, and that Mr. was no Cir.1988) Zerbst, (quoting Johnson v. I a rather difficult am also doubt defendant. 458, 464, 58 S.Ct. 82 L.Ed. U.S. proclivi- that contumacious mindful (1938)). “[A] irrelevant. contentious defen- ties are rights sympathetic dant has no fewer than a majority Singletary cites v. The Lambrix Thus, I can Ortega, 843 at 261. judge one.” support supposition that its my only colleagues’ decision conclude only” have “could assumed yet example today will be another of the old attorney had their differences resolved cases law.” The There, adage that “hard make bad night before. the defendant majority long way ago decision will also jury charges of murder. tried before Pennycooke, eroding holding toward jury Lambrix was retried deadlocked. example it will as an of a situation serve penalty following con- and received the death despite duty inquiry not create does appeal he several issues viction. On raised “exceptional, narrowly defined circum- he including whether was entitled Florida, That cannot be stances” here. conclusion holding Espinosa benefit I Accordingly, supported on this record. 112 S.Ct. 120 L.Ed.2d 505 U.S. IIB of (1992), respectfully dissent from Part must following that had been decided Lane, majority opinion. Teague v. his conviction. See 103 L.Ed.2d (1989). argued his trial attor- He also by coerc-

ney rendered ineffective assistance stand. taking him into not the witness Appeals Cir- for the Eleventh The Court the conviction. The court held cuit affirmed im- the defendant’s claim that he had testifying coerced was properly been into only supporting merit because the without solely first trial. evidence related to his remedy have been a new Since the would Honor, "Well, said, familiarity personal as I I’ve talked to Your 2. Defense counsel's lawyers respect criminal that I and do a lot of was such that nature issue, yester- last week and also have even more con- law about trial court should been they they day. both said believe making decision. And cerned about who initially thought has the asked if he his client Mr. to—constitutional When App. testify, responded: testify." at 148A. defense counsel

Case Details

Case Name: United States v. Michael K. Leggett

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 3, 1998

Citation: 162 F.3d 237

Docket Number: 96-7772

Court Abbreviation: 3rd Cir.