Concession Case Analysis

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The decision highlights the difference in the treatment of attorney concessions of guilt in the federal and state courts. Had Holman been charged in Wisconsin state courts, his attorney’s concession in the absence of consent would have required reversal per se.

State of Wisconsin v. Gordon, 2002 WI App 53, 250 Wis.2d 702, 641 N.W.2d 183.

It should be noted, however, that the Wisconsin Supreme Court has granted review in Gordon, however, and the continued viability of that holding is therefore uncertain at the moment.

Even so, the decision provides guidance as to the proper way to make such a concession in federal court, where such concessions are treated more favorably.

Such concessions should only be made with the consent of the client. Furthermore, concessions should definitely not be made during opening arguments, although they may be proper in closing.

By the time of closing arguments, it is not uncommon for attorneys to come to the conclusion that vigorously defending a client’s innocence on a particular count can be counterproductive.

Before any evidence has come in, however, there is always the possibility that the State’s case will develop a crack.

In addition, concessions should never be as explicit as they were in this case. Much of the case law considering similar cases focus on whether the attorney’s statements were the functional equivalent of a guilty plea, or merely an acknowledgement of the weight of certain evidence.

Here, however, the attorney went so far as to tell the jury that, when they retire to deliberations, they should mark an “X” on the verdict form to signify guilt on count one. Clearly, an attorney can preserve his credibility with the jury without going that far.

An interesting question is whether defendants should even be allowed to concede guilt to a particular count during opening arguments, and still go to trial.

Obviously, it is a waste of judicial resources to permit such a strategy. If the defendant has no intent of contesting a particular charge, to the point that he concedes guilt in opening argument, then the defendant should arguably be required to plead guilty in the normal fashion, rather than compelling the government to formally present evidence.

However, a court cannot compel a defendant to plead guilty in spite of his right to a trial, even if the trial on a particular count is a sham. As a result, it would seem courts must allow the trial to go on if the defendant refuses to plead guilty, even where he consents to his attorney telling the jury during opening arguments that it should find him guilty at the end.

There are strategic reasons for having a trial on all counts, even if the defendant has no interest in contesting one of them — where the weight of evidence is especially strong on one count, that count can be used as a vehicle to argue that proof beyond a reasonable doubt on the other counts is lacking.

Again, it is a waste of judicial resources to conduct a trial on a particular count, just so the defense can use it to attack the sufficiency of the proof on other counts, but courts are probably powerless to prevent it.

Another interesting question is raised by the court’s woefully inadequate discussion of the conflict of interest issue. The court stated that it cannot permit defendants to manipulate and delay the court system by filing frivolous complaints against their attorneys with state disciplinary boards.

	Links Seventh Circuit Court of Appeals Related Article Attorney can’t concede guilt in opening

That is a very sound policy, but hardly relevant to the case at bar. Here, the court explicitly found that the attorney’s conduct at trial did violate the standards of profes
sional conduct.

The court’s decision thus creates a difficult situation for attorneys by suggesting that there was no conflict of interest here, even though Holman had a valid complaint against his attorney.

Nevertheless, defense attorneys are subject to Wisconsin’s rules of professional responsibility, whether in federal or state court. Faced with a complaint from a client to the OLR, attorneys should protect themselves by moving to withdraw from the case, whether it be in state or federal court.

If the court cites this case as precedent for denying such a motion, so be it, but attorneys must protect themselves, too, and failure to move to withdraw risks compounding the difficulties with the OLR.

– David Ziemer

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David Ziemer can be reached by email.