84-F-73 - Murder defendant insists no argument against the death penalty

FORMAL ETHICS OPINION 84-F-73

Inquiry is made as to the ethical obligations of court appointed counsel in a first degree murder case when the defendant insists that counsel take no actions in his behalf to mitigate or argue against the imposition of the death penalty.

The defendant is charged with first degree murder. The evidence available to the prosecution constitutes a strong circumstantial case against the defendant. The defendant advises court appointed counsel that he believes in reincarnation and, consequently, that he objects to any efforts or actions in his behalf against the imposition of the death penalty in event of a guilty verdict. He objects to the imposition of a life sentence and insists on a death penalty verdict in event he is found guilty. The defendant has been adjudged competent to stand trial. The court appointed attorneys seek ethical guidance as to their responsibilities in the matter. It appears that the moral, ethical and constitutional law issues presented in this inquiry are interrelated and sometimes conflicting. The right to the effective assistance of counsel is embodied in the Sixth Amendment to the Constitution. The importance of this right is best stated in the words of Justice Sutherland in Powell v. Alabama, 287 U.S. 45 (1932): The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without aid of counsel, he may be put on trial without a proper charge and convicted upon incompetent evidence or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he may have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. The U. S. Supreme Court has also held in the case of Faretta v. California, 422 U.S. 806 (1975), at pages 820-821: The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant -- not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists. It is true that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas. Cf. Henry v. Mississippi, 379 U.S. 433, 451; Brookhart v. Janis, 384 U.S. 1,7-8; Fav v. Noia, 372 U.S. 391, 439. This allocation can only be justified, however, by the defendant's consent, at the outset, to accept counsel as his representative. An unwanted counsel 'represents' the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense. And at pages 834 and 835: The right to defend is personal. The defendant and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether, in this particular case, counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of 'that respect for the individual which is the lifeblood of the law.' Illinois v. Allen, 397 U.S. 337, 350-351 (Brennan, J., concurring). 84-F-73 Page 3 When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must 'knowingly and intelligently' forego those relinquished benefits. Johnson v. Zerbst, 304 U.S., at 464-465. Cf. Von Moltke v. Gilles, 332 U.S. 708, 723-724 (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of selfrepresentation so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' Adams v. United States ex rel. McCann, 317 U.S., at 279. In the very recent U.S. Supreme Court case of McKaskle v. Wiggins, No. 82-1135 (34 Criminal Law Reporter 3037) decided on January 23, 1984, Justice O'Connor states: In Faretta the Court considered the case of a criminal defendant who was required to present his defense exclusively through counsel. The Court held that an accused has a Sixth Amendment right to conduct his own defense, provided only that he knowingly and intelligently forgoes his right to counsel and that he is able and willing to abide by rules of procedure and courtroom protocol. Faretta concluded that '[u]nless the accused has acquiesced in [representation through counsel], the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.' 422 U.S., at 821. Faretta's holding was based on the long-standing recognition of a right of self-representation in federal and most state courts, and on the language, structure and spirit of the Sixth Amendment. Under that Amendment, it is the accused, not counsel, who must be 'informed of the nature and cause of the accusation,' who has the right to confront witnesses, and who must be accorded 'compulsory process for obtaining witnesses in his favor.' The Counsel Clause itself, which permits the accused 'to have the Assistance of Counsel for his defense,' implies a right in the defendant to conduct his own defense, with assistance at what, after all, is his, not counsel's trial. The traditional role of defense counsel in the adversarial system is to mitigate both the guilt and punishment of the accused. Defense counsel, in this instance, feels a moral and ethical duty to fight for the life of the accused in opposition to the death penalty. It is clear that the moral beliefs and ethical standards of defense counsel, in this instance, are in conflict with the defendant's moral beliefs and legal rights. Counsel's moral beliefs and usually acceptable ethical standards and duties must yield to the moral beliefs and legal rights of the defendant. Counsel is not ethically required to accept the moral and legal choices of the client and has no ethical obligation, in this instance, to advocate those choices on behalf of the client. Counsel is ethically obligated to follow the law and to do nothing in opposition to the client's moral and legal choices. Counsel should fully inform the accused of his legal right to conduct a defense of his choice as guaranteed by the Constitution. The accused should be fully advised by counsel that his rights and interests are in conflict with counsel's moral beliefs and ethical responsibilities. In event the accused maintains his insistence on no actions or arguments on his behalf against the death penalty being imposed, then counsel should advise the accused that a motion to withdraw from those portions of the trial will be filed with the court. The consequences of this action should be fully explained to the accused. The court should be fully informed of the conflicts between counsel and the accused. Counsel should seek an adjudication that the accused is competent to represent himself during the voir dire examination of prospective jurors and the penalty stages of the trial or any other portion of the trial where the conflict is imminent. Counsel should move the court to withdraw from representation during the portion of the trial where the conflict is manifested. In the event the court fails to grant such motions, the attorney should seek an immediate review by the appellate court. This opinion is only intended to address the ethical obligations of counsel. This 13th day of June , 1984. ETHICS COMMITTEE: Henry H. Hancock W. J. Flippin Edwin C. Townsend APPROVED AND ADOPTED BY THE BOARD