Concession Analysis

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The decision, insofar as it concerns an attorney’s concession of guilt, brings Wisconsin in line with most jurisdictions and the Seventh Circuit, which has long recognized that an attorney may concede guilt to one charge in a multi-count trial as a strategic move. Underwood v. Clark, 939 F.2d 473 (7th Cir. 1991).

In fact, the court quoted extensively from Underwood in its analysis, more extensively than any other decision. As such, attorneys have a well-developed body of case law to use as persuasive authority in future cases dealing with concessions made without the client’s dissent.

However, that case law goes far beyond what the court held permissible in this case. The majority opinion devotes a great deal of its analysis to two factors: Gordon testified and essentially admitted his guilt; and the attorney’s concession occurred during closing argument, after the admission of overwhelming evidence.

The Seventh Circuit, however, has frequently found no prejudice, even though the defendant did not testify: U.S. v. Holman, 314 F.3d 837 (7th Cir. 2002); Rodriguez v. U.S., 286 F.3d 972 (7th Cir. 2002). In Underwood itself, the defendant did not testify.

As a result, when such cases arise, lower courts will have a difficult time deciding whether the tactic was proper. On the one hand, the majority approved of the reasoning in Underwood; on the other hand, it greatly emphasized Gordon’s testimony in holding the attorney’s concession was not prejudicial.

Should an attorney concede guilt on one count in the opening statement, before any evidence is presented, lower courts will also have a dilemma.

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The Seventh Circuit has held this improper, in Holman. Nevertheless, the court in Holman affirmed the defendant’s conviction, finding that, given the overwhelming evidence, the concession was not prejudicial. In the case at bar, however, the court relied heavily on the fact that the concession did not come until closing argument in support of its decision.

Logically, if the evidence of guilt is sufficiently overwhelming, there is no prejudice and thus, no reason to reverse a conviction, even though the defendant did not consent to the concession, did not testify, and the concession came during opening argument.

Nevertheless, the emphasis the court placed on these two factors suggests that the court might not go as far as the Seventh Circuit if presented with such a case.

– David Ziemer

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David Ziemer can be reached by email.