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Attorney can concede guilt as strategy


“While conceding that the facts out of Gordon’s own mouth amounted to disorderly conduct while armed, Gordon’s attorney argued vigorously for acquittal on the more serious felony and misdemeanor counts. This was a reasonable tactical approach under the circumstances, plainly calculated to maintain credibility with the jury and enhance the prospects of acquittal on the two more serious charges.”

Hon. Diane S. Sykes Wisconsin Supreme Court

In a multiple-count prosecution, an attorney can admit his client’s guilt on one count as a strategy to win acquittal on the others, the Wisconsin Supreme Court held on June 17.

In doing so, the court overruled a published opinion of the court of appeals, State v. Gordon, 2002 WI App 53, 250 Wis.2d 702, 641 N.W.2d 183.

The court also held that a trial court’s failure to submit one of the elements of a crime to the jury is subject to harmless error analysis, overruling State v. Howard, 211 Wis.2d 269, 564 N.W.2d 753 (1997), State v. Aliva, 92 Wis.2d 870, 532 N.W.2d 423 (1995), and State v. Krueger, 240 Wis.2d 644, 632 N.W.2d 211 (CT.App.2000), to the extent those cases established a rule of automatic reversal when a jury instruction omits an element of the offense.

In October 1998, Margaret Wilder obtained a domestic abuse injunction against Gary L. Gordon, her boyfriend of 12 years. Nevertheless, the two were living together in October 1999, when Wilder called the police to enforce the injunction, claiming that Gordon was verbally abusive, agitated, and possibly on drugs.

The police arrived and saw Gordon carrying a butcher knife and a steak knife. After Gordon fled outside, where officers searched for him, Gordon and the police eventually had an encounter, during which Gordon refused to drop the knives, and came towards an officer, who then shot Gordon twice.

Gordon was charged with violating the injunction, disorderly conduct while armed, and second degree recklessly endangering safety.

During the trial, Gordon testified and admitted that he had armed himself with the knives for the purpose of avoiding arrest.

During closing argument, Gordon’s attorney stated, “Obviously running around the neighborhood with two knives is disorderly conduct and it is disorderly conduct while armed.” Later, counsel asked the jury to acquit only on the other two charges.

The jury instruction on the disorderly conduct while armed count failed to inform the jury that, in order to acquit, it must find that Gordon possessed the weapon to facilitate the crime.

Gordon did not object, however, and the jury found him guilty of all three counts. He appealed, and the court of appeals affirmed the conviction for recklessly endangering safety, but reversed the convictions for violating a domestic abuse injunction and disorderly conduct while armed.

The State petitioned for review of the reversal of the disorderly conduct while armed count, but not the violation of the domestic abuse injunction. The Supreme Court granted review and reversed, in a decision by Justice Diane S. Sykes. Chief Justice Shirley S. Abrahamson dissented, in an opinion joined by Justice Ann Walsh Bradley.


The court rejected the court of appeals’ conclusion that the defense attorney’s concession was the functional equivalent of a guilty plea without Gordon’s consent. The court reasoned, “A guilty plea waives trial, cross-examination of witnesses, the right to testify and call witnesses in one’s own defense, and the right to a unanimous jury verdict of guilty beyond a reasonable doubt. The concession in this case had none of these effects. Gordon had a jury trial, cross-examined the State’s witnesses, testified in his own defense, and was adjudged guilty beyond a reasonable doubt by a unanimous jury.”

The court also found that Gordon’s own testimony admitted the facts of disorderly conduct while armed, and that the attorney’s concession was reasonable given the overwhelming evidence at trial.

The court reasoned, “Under these circumstances it was not deficient performance for Gordon’s attorney to concede the overwhelming weight of the evidence on the misdemeanor disorderly conduct count and focus his closing argument on the more serious charges in the case, which, unlike the disorderly conduct count, remained contestable after Gordon’s testimony. While conceding t
hat the facts out of Gordon’s own mouth amounted to disorderly conduct while armed, Gordon’s attorney argued vigorously for acquittal on the more serious felony and misdemeanor counts. This was a reasonable tactical approach under the circumstances, plainly calculated to maintain credibility with the jury and enhance the prospects of acquittal on the two more serious charges. Gordon’s attorney did not concede anything that Gordon had not admitted as a factual matter on the witness stand; the concession, therefore, did not conflict with Gordon’s own testimonial admissions. Accordingly, the defense attorney’s conduct in this regard did not fall below an objective standard of reasonableness, nor was it prejudicial.”

What the court held

Case: State of Wisconsin v. Gary L. Gordon, No. 01-1679-CR

Issue: Can an attorney concede a defendant’s guilt on one count in a multi-count trial, without the defendant’s consent, as a trial tactic to increase the likelihood of acquittal on the other counts?

Holding: Yes. Where the defendant’s own testimony effectively admits guilt, the evidence of guilt was overwhelming, and the concession came during closing argument, the concession is a valid trial strategy.

Counsel: Steven P. Weiss, for appellant; James M. Friemuth, James E. Doyle, for respondent.

Jury Instructions

The court then held that the deficient jury instructions did not require reversal, because harmless error analysis applied.

Pursuant to State v. Peete, 185 Wis.2d 4, 517 N.W.2d 149 (1994), a sentence cannot be enhanced pursuant to sec. 939.63 for committing the underlying crime, “while possessing a dangerous weapon,” unless the jury finds that the weapon was used to facilitate the crime.

In State v. Howard, 211 Wis.2d 269, 564 N.W.2d 753 (1997), the Supreme Court held that the failure to instruct the jury as such was per se prejudicial.

Nevertheless, the court concluded that Howard was not consistent with its recent decision in State v. Harvey, 2002 WI 93, 254 Wis.2d 442, 647 N.W.2d 189, or the United States Supreme Court’s decision in Neder v. United States, 527 U.S. 1 (1999).

In Harvey, the trial court instructed the jury that a particular element of the crime at issue had been satisfied as a matter of law. The Supreme Court held that this was error, but concluded the error was subject to harmless error analysis.

The court concluded that Harvey and Howard were irreconcilable, and accordingly, overruled Harvey, stating, “There is no meaningful way to distinguish the instructional error in Harvey — an instruction that contained a mandatory conclusive presumption — from an instruction that omits an element of the offense.”

The court then concluded that the error was harmless in the case at bar: “Gordon testified that he armed himself with two knives during a heated confrontation with the police that spilled out from Wilder’s apartment into the surrounding neighborhood, all in order to escape arrest. Under these circumstances, Gordon’s possession of the knives not only ‘facilitated’ the disorderly conduct, it was what made his conduct disorderly in the first place. It is patently obvious, based on Gordon’s own testimony, that the knives were not merely possessed in the commission of the underlying crime but were actually used to commit the underlying crime (emphasis in original).”

Accordingly, the court reversed the court of appeals, and reinstated the conviction for disorderly conduct while armed.

The Dissent

Chief Justice Shirley S. Abrahamson dissented on both issues, in an opinion joined by Justice Ann Walsh Bradley.

The dissent wrote, “I would conclude … that a clear rule should be established that defense counsel may never concede guilt to any charged offense without the defendant’s consent.”


Supreme Court

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Case Analysis

The dissent acknowledged that the concession was a sound tactical move, but nevertheless concluded, “That a concession would be strategically wise … does not make it a ‘tactical’ decision that may be made without the defendant’s consent.”

The dissent added, “A defense attorney’s concession of guilt to one of many charges may be the smartest, best, and most effective trial strategy possible, and the defense attorney’s performance, in that sense, may not be deficient. Yet the question presented in this case is one of due process and fair trial: Who has the right to decide whether to concede guilt and effectively remove the State’s burden to convince a jury to unanimously find guilt beyond a reasonable doubt, the accused or the accused’s lawyer?”

The court also found that harmless error analysis is inapplicable, stating, “I would further hold … that defense counsel’s failure to object to the circuit court’s omission in instructing the jury on the nexus element was prejudicial error. No trial can be considered constitutionally fair when a defendant who pleads not guilty is convicted without a finding of guilt beyond a reasonable doubt on each element of the crime charged.”

The dissent concluded that Harvey and Howard were not logically irreconcilable, because, in Harvey, at least the trial court had found the element at issue was met, while in the case at bar, neither the jury nor the trial court had done so.

The dissent also relied on the doctrine of stare decisis, and concluded that there was no strong justification for overruling Howard.

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David Ziemer can be reached by email.

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