Attorney can’t concede guilt in opening

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Although an attorney may concede guilt on one count in a multi-count trial as a valid trial strategy to obtain acquittal on the remaining counts, the attorney may not do so without his client’s consent in opening arguments, the Seventh Circuit held on Dec. 16.

Concession

On July 31, 1999, Freeman Holman was arrested on his way to meet Joyce Lawson, a police informant who arranged to meet Holman and purchase a small quantity of crack cocaine from him. As a result, he was indicted in Indiana federal court on one count of possession of cocaine base with intent to distribute.

A few months later, Holman was arrested again when officers found a revolver and crack cocaine in his car. A superseding indictment added three charges based on his second arrest — possession of cocaine base with intent to distribute; possession of a firearm and ammunition by a felon; and carrying a firearm during and in relation to a drug trafficking crime.

Holman’s attorney began his opening statement by acknowledging, “on July 31st, 1999, Freeman Holman readily admits that he had cocaine in his pocket.” He added, “We are not going to attempt to deny that in any way, because that is the truth.”

During the presentation of evidence, Holman’s attorney limited his cross-examination of the prosecution’s witnesses to issues raised in Counts II-IV and did not ask any questions regarding Count I. Similarly, when presenting a defense, he avoided any discussion of the events surrounding Count I and only asked questions relating to Counts II-IV.

During closing argument, Holman’s attorney again conceded that his client possessed drugs as alleged in Count I.

Holman was found guilty on all counts and was sentenced to 248 months’ imprisonment. He appealed, and although the court found his counsel was ineffective, it concluded Holman was not prejudiced, and affirmed in a decision by Judge Ann Claire Williams.

Valid Trial Strategy

The court began by stating the general rule that conceding guilt to one count of a multi-count indictment to bolster the case for innocence on the remaining counts is a valid trial strategy which, by itself, does not rise to the level of deficient performance.

The court has long held that an attorney can concede guilt on an indefensible charge to build credibility with the jury by acknowledging the overwhelming evidence of guilt for that particular charge, creating goodwill and trust that can be applied towards arguments attacking the remaining charges.

The court found that it was a valid trial strategy, noting that, after conceding guilt in the opening statement, the attorney emphasized the weakness in the prosecution’s case on the other three counts, raising the possibility that the evidence was planted in Holman’s car or fabricated.

Consent

Nevertheless, the court stated that, although a valid defense strategy, “the manner of its execution in this case greatly concerns us.”

The court noted that when such concessions are made, there is usually evidence that the client has consented to the strategy.

Here, however, there was no indication of consent.

The court held that, as a matter of law, ineffective assistance of counsel is present where there is no evidence of consent, drawing guidance from two Sixth Circuit
cases, Earl Wiley v. Sowders, 647 F.2d 642, 645 (6th Cir.1981), and Elmer Wiley v. Sowders, 669 F.2d 386, 389 (6th Cir.1982).

The court held, “We agree with the Sixth Circuit that obtaining a defendant’s consent on the record in open court is the preferred method of forestalling any issues of consent that could come up later on appeal. … Given the importance of the constitutional rights implicated when guilt is conceded and the ethical obligations of attorneys to consult with their clients, we also agree with the Sixth Circuit’s conclusion in Earl Wiley that an attorney’s concession of a client’s guilt without any indication of the client’s consent to the strategy is deficient conduct.”

Rule 11

The court then went further, finding not only that such a concession constitutes ineffective assistance of counsel, but that it also violates Rule 11. The court reasoned, “Though the concession of guilt was made during trial and not before, Holman’s counsel essentially gave up the same constitutional rights that Holman would have relinquished had he pleaded guilty to Count I before trial.”

The court added, “By conceding guilt to Count I at the beginning of trial, Holman’s attorney bypassed all these rights on behalf of his client: he admitted to those facts that were the elements of Count I; the jury was never given a chance to render a verdict on Count I based on an adversarial proceeding; and during cross-examination of the prosecution’s witnesses, Holman’s attorney did not ask any questions regarding Count I.”

The court distinguished the case from those in which the concession is made during closing arguments, where the attorney realizes that there is no hope of a favorable verdict, and that conceding guilt on one count can preserve credibility for the arguments on the other counts.

The court said, “Holman’s attorney decided from the very beginning that Count I was not worth fighting over and relinquished those constitutional rights of his client which Rule 11 was designed to protect.”

Rule 11(d) requires that courts not accept pleas of guilty or no contest without first addressing the defendant personally, and determining that the plea is voluntary. The court emphasized, “Our concern is not over a ritualistic incantation in open court, but rather that the decision to concede guilt is made voluntarily by the defendant and that the defendant ultimately decides which strategy to pursue.”

Accordingly, the court concluded that the attorney’s concession violated Rule 11, as well.

Prejudice

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Nevertheless, the court affirmed Holman’s conviction, because it found no reasonable probability that, but for the errors, the outcome would have been different. Thus, there was no prejudice.

Discussing the difference in the two arrests, the court stated, “While his attorney relentlessly pursued the idea that the police planted cocaine on Holman and in his car when they arrested him the second time, there is no indication that this strategy was feasible for Count I. In addition, Holman’s intent to sell the cocaine to Lawson would be very difficult to refute, since he did not leave the hotel until Lawson called and asked that the cocaine be delivered.”

Sentencing

The court also addressed Holman’s sentence, rejecting Holman’s argument that, because he had filed a complaint with Indiana’s equivalent of the OLR, a conflict of interest was present at sentencing.

Citing a Fourth Circuit case with approval, the court stated, “we agree with the Fourth Circuit that allowing conflicts of interest to be established solely by appealing to disciplinary authorities, without knowing the substance of the complaint, would encourage filing of frivolous claims by defendants for purposes of delay (citing United States v. Burns, 990 F.2d 1426,
1438 (4th Cir.1993).”

The court also upheld the imposition of an upward sentence adjustment for obstruction of justice, based on Holman’s lying in saying that the police had planted the evidence on him. Accordingly, the court affirmed the convictions and sentence.

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David Ziemer can be reached by email.