Zimmerman: Representing Him and the Inevitable Question: My God, What Have I Become?

Brown posted this comment Sunday night at 8:31 pm:

“Correct, but what I was trying to convey was that DeeDee might not understand that he would of been justified. Let’s just say that yes TM told DeeDee that he might have to turn around and face this dude and fight him because he felt threaten. DeeDee as a young teen who doesn’t know anything about SYG, might not understand that TM would of been in the right. If you look through her eyes, she only sees TM a kid who doesn’t fight had to fight against a grown white man. Do you see how it might put her in a position of thinking that if she were to say something like that, her thought process might be, OH boy if I say that TM would be in the wrong. She doesn’t understand that the law was on his side as soon as GZ followed him.”

Although Brown’s comment is about Dee Dee, her comment also is applicable to what clients say to their attorneys. For example, I have previously stated that the Fifth Commandment mandates that lawyers should not assume that their clients tell them the truth.

Brown’s comment pinpoints one of the reasons why clients will lie to their lawyers. For example, because the client might not realize that he has a valid self-defense claim in a murder case where there were no eyewitnesses (or he fears that no one will believe him if he tells the truth), the client might tell the lawyer that he was at a family BBQ when the death occurred. This is a false alibi defense that he also might have provided to the police.

Now let us assume that you are the lawyer and your reliable investigator, Paul Drake, has interviewed everyone who was present at the family BBQ and no one recalls your client being there until a couple of hours after the victim was killed. In other words, your client had plenty of time to kill the victim and get to the BBQ before the witnesses saw him.

You decide to confront your client. Lawyers often refer to these confrontations as a “come-to-Jesus moment.”

After telling your client that his alibi defense is not going to work, he tells you what really happened. You realize that he is describing a situation that constitutes self-defense under the SYG law in your jurisdiction.

Let us say this happens mid-trial after the prosecution rests its case and now it’s time for the defense to go forward.

Now what do you do?

In Nix v. Whiteside, 475 U.S. 157 (1986), the SCOTUS considered a similar fact situation. The Court held that the Sixth Amendment right of a criminal defendant to assistance of counsel is not violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at his trial.

In a unanimous opinion written by Chief Justice Berger, the SCOTUS said:

Page 475 U. S. 160

I
A

Whiteside was convicted of second-degree murder by a jury verdict which was affirmed by the Iowa courts. The killing took place on February 8, 1977, in Cedar Rapids, Iowa. Whiteside and two others went to one Calvin Love’s apartment late that night, seeking marihuana. Love was in bed when Whiteside and his companions arrived; an argument between Whiteside and Love over the marihuana ensued. At one point, Love directed his girlfriend to get his “piece,” and at another point got up, then returned to his bed. According to Whiteside’s testimony, Love then started to reach under his pillow and moved toward Whiteside. Whiteside stabbed Love in the chest, inflicting a fatal wound.

Whiteside was charged with murder, and when counsel was appointed, he objected to the lawyer initially appointed, claiming that he felt uncomfortable with a lawyer who had formerly been a prosecutor. Gary L. Robinson was then appointed, and immediately began an investigation. Whiteside gave him a statement that he had stabbed Love as the latter “was pulling a pistol from underneath the pillow on the bed.” Upon questioning by Robinson, however, Whiteside indicated that he had not actually seen a gun, but that he was convinced that Love had a gun. No pistol was found on the premises; shortly after the police search following the stabbing, which had revealed no weapon, the victim’s family had removed all of the victim’s possessions from the apartment. Robinson interviewed Whiteside’s companions who were present during the stabbing, and none had seen a gun during the incident. Robinson advised Whiteside that the existence of a gun was not necessary to establish the claim of self-defense, and that only a reasonable belief that the victim had a gun nearby was necessary, even though no gun was actually present.
Until shortly before trial, Whiteside consistently stated to Robinson that he had not actually seen a gun, but that he was

Page 475 U. S. 161

convinced that Love had a gun in his hand. About a week before trial, during preparation for direct examination, Whiteside for the first time told Robinson and his associate Donna Paulsen that he had seen something “metallic” in Love’s hand. When asked about this, Whiteside responded:

“[I]n Howard Cook’s case, there was a gun. If I don’t say I saw a gun, I’m dead.”

Robinson told Whiteside that such testimony would be perjury, and repeated that it was not necessary to prove that a gun was available, but only that Whiteside reasonably believed that he was in danger. On Whiteside’s insisting that he would testify that he saw “something metallic,” Robinson told him, according to Robinson’s testimony:

“[W]e could not allow him to [testify falsely], because that would be perjury, and, as officers of the court, we would be suborning perjury if we allowed him to do it; . . . I advised him that, if he did do that, it would be my duty to advise the Court of what he was doing, and that I felt he was committing perjury; also, that I probably would be allowed to attempt to impeach that particular testimony.”
App. to Pet. for Cert. A-85. Robinson also indicated he would seek to withdraw from the representation if Whiteside insisted on committing perjury. [Footnote 2]

Whiteside testified in his own defense at trial, and stated that he “knew” that Love had a gun, and that he believed Love was reaching for a gun, and he had acted swiftly in self-defense. On cross-examination, he admitted that he had not

Page 475 U. S. 162

actually seen a gun in Love’s hand. Robinson presented evidence that Love had been seen with a sawed-off shotgun on other occasions, that the police search of the apartment may have been careless, and that the victim’s family had removed everything from the apartment shortly after the crime. Robinson presented this evidence to show a basis for Whiteside’s asserted fear that Love had a gun.

The jury returned a verdict of second-degree murder, and Whiteside moved for a new trial, claiming that he had been deprived of a fair trial by Robinson’s admonitions not to state that he saw a gun or “something metallic.” The trial court held a hearing, heard testimony by Whiteside and Robinson, and denied the motion. The trial court made specific findings that the facts were as related by Robinson.
The Supreme Court of Iowa affirmed respondent’s conviction. State v. Whiteside, 272 N.W.2d 468 (1978). That court held that the right to have counsel present all appropriate defenses does not extend to using perjury, and that an attorney’s duty to a client does not extend to assisting a client in committing perjury. Relying on DR 7-102(A)(4) of the Iowa Code of Professional Responsibility for Lawyers, which expressly prohibits an attorney from using perjured testimony, and Iowa Code § 721.2 (now Iowa Code § 720.3 (1985)), which criminalizes subornation of perjury, the Iowa court concluded that not only were Robinson’s actions permissible, but were required. The court commended “both Mr. Robinson and Ms. Paulsen for the high ethical manner in which this matter was handled.”

B

Whiteside then petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Iowa. In that petition, Whiteside alleged that he had been denied effective assistance of counsel and of his right to present a defense by Robinson’s refusal to allow him to testify as he had proposed. The District Court denied the writ. Accepting the state trial court’s factual finding that

Page 475 U. S. 163

Whiteside’s intended testimony would have been perjurious, it concluded that there could be no grounds for habeas relief, since there is no constitutional right to present a perjured defense.
The United States Court of Appeals for the Eighth Circuit reversed and directed that the writ of habeas corpus be granted. Whiteside v. Scurr, 744 F.2d 1323 (1984). The Court of Appeals accepted the findings of the trial judge, affirmed by the Iowa Supreme Court, that trial counsel believed with good cause that Whiteside would testify falsely, and acknowledged that, under Harris v. New York, 401 U. S. 222 (1971), a criminal defendant’s privilege to testify in his own behalf does not include a right to commit perjury. Nevertheless, the court reasoned that an intent to commit perjury, communicated to counsel, does not alter a defendant’s right to effective assistance of counsel, and that Robinson’s admonition to Whiteside that he would inform the court of Whiteside’s perjury constituted a threat to violate the attorney’s duty to preserve client confidences. [Footnote 3] According to the Court of Appeals, this threatened violation of client confidences breached the standards of effective representation set down in Strickland v. Washington, 466 U. S. 668 (1984). The court also concluded that Strickland’s prejudice requirement was satisfied by an implication of prejudice from the conflict between Robinson’s duty of loyalty to his client and his ethical duties. A petition for rehearing en banc was denied, with Judges Gibson, Ross, Fagg, and Bowman dissenting. Whiteside v. Scurr, 750 F.2d 713 (1984). We granted certiorari, 471 U.S. 1014 (1985), and we reverse.

I believe The SCOTUS decision in Nix v. Whiteside can be distinguished from the facts in my hypothetical because of the lack of certainty that the client intended to commit perjury.

This distinction is important as it helps to define the boundary between a lawyer’s duty to provide effective assistance of counsel to his client and his ethical and legal obligation not to assist the client to commit perjury to beat the charge.

Criminal defense attorneys routinely navigate close, but not too close, to the land of perjury.

Many times they do not want to know the truth and you should take that into account when you hear Mark O’Mara or any other criminal defense attorney speak about a case.

This is why I say that a criminal defense attorney should never judge his client. That responsibility is assigned to judges and juries.

But sometimes, you cannot help it and therein lies the rub as well as the doubt and the inevitable question:.

My God, what have I become?