Florida v. Nixon

Issues 

What is the appropriate standard to determine whether defense counsel was ineffective in a capital trial, where, as a matter of strategy in the face of overwhelming evidence, counsel chooses not to contest guilt in order to enhance defense credibility at the penalty phase of the trial?
Is trial counsel's strategic defense opening and closing comments the functional equivalent of a guilty plea, thereby requiring an affirmative showing that the client voluntarily and intelligently waived constitutional protections?
Oral argument: 
November 2, 2004
Court below: 

A Florida court sentenced Joe Elton Nixon to death following a trial in which his lawyer conceded that the prosecution had proven its case, telling the jurors, "I think you will find that the State has proved beyond a reasonable doubt each and every element of the crimes charged, first-degree premeditated murder, kidnapping, robbery, and arson." In the face of seemingly overwhelming evidence against Nixon, the defense lawyer hoped that his frank admission would curry favor with the jurors and compel them to spare Nixon's life. On appeal, Nixon argued that his lawyer's admission was tantamount to a guilty plea, and that the lawyer lacked the authority to enter such a plea without Nixon's consent. The State argued that it was a reasonable trial strategy, not a guilty plea. Nixon claimed his defense lawyer was ineffective; however, Nixon and the state dispute by which standard of ineffectiveness the court should measure the lawyer's performance. Nixon argues that admitting guilt without his consentwas such grave misconduct that it automatically negates any validity the strategy may hold. Florida argues for a more flexible standard that would measure the lawyer's performance against prevailing professional norms and consider whether Nixon was prejudiced by any possible ineffectiveness. A second question is whether the lawyer's statements constituted a guilty plea. Without an affirmative showing that a guilty plea was intelligent and voluntary, it is unconstitutional. Here, it is undisputed that Nixon did not affirmatively acquiesce to defense counsel's strategy. While such a strategy is very likely to have the effect of a guilty plea, namely a criminal conviction, strictly speaking it lacks a waiver of the constitutional rights that accompanies a guilty plea, including the right to be free from self incrimination and the right to a trial by jury.

Questions as Framed for the Court by the Parties 

Whether in a capital murder case, the Florida Supreme Court:
Applied an incorrect standard, contrary to Strickland v. Washington, 466 U.S. 668 (1984), Bell v. Cone, 535 U.S. 685 (2002) and Roe v. Flores-Ortega, 120 S.Ct. 1029 (2000), by finding defense counsel ineffective per se under United States v. Cronic, 466 U.S. 648 (1984) despite having found counsel's strategy not to contest overwhelming evidence of guilt but to vigorously contest the sentence in the defendant's best interest and reasonably calculated to avoid a death sentence.
Erred in concluding that Boykin v. Alabama, 395 U.S. 238 (1969) prohibited trial counsel from adopting a strategy, after fully informing his client, without objection, not to contest overwhelming evidence of guilt to protect the best interest of his client in contesting the appropriateness of imposing the death penalty.

Facts 

Joe Elton Nixon was convicted of first-degree murder, kidnapping, robbery and arson for his involvement in the 1984 murder of a Tallahassee, Florida woman. Nixon v. Florida, 857 So.2d 172 (Fla., 2003). Nixon's attorney offered the prosecutor a guilty plea in exchange for a life sentence. After the prosecutor refused, Nixon's attorney developed a second strategy to obtain a life sentence for Nixon–during the opening and closing arguments of the guilt phase, he stated that it was clear that Nixon committed the crimes, and that the only determination for the court was whether Nixon should receive a death sentence or life in prison. Id. at 173. The trial court sentenced Nixon to death for the murder conviction. Id. On appeal, the Florida Supreme Court affirmed the conviction and sentence. Id.
Nixon then filed for post-conviction relief under Florida Rule of Criminal Procedure 3.850, claiming that he did not consent to his counsel's strategy. Id. The trial court denied Nixon's motion without an evidentiary hearing. Id. Nixon appealed the trial court's summary denial and filed a petition for a writ of habeas corpus. Nixon v. Florida, 857 So.2d 173 (Fla., 2003). The Florida Supreme Court determined that, of the seven claims regarding Nixon's 3.850 motion and the three arguments regarding his habeas petition, the primary issue was Nixon's claim that he was denied effective assistance of counsel by his lawyer's concession of guilt without Nixon's consent. Id. at 173. Citing United States v. Cronic, 466 U.S. 648 (1984), the Florida Supreme Court found that counsel would be per se ineffective -- thereby denying Nixon his constitutional right to have his guilt or innocence decided by a jury -- when his attorney's statements are tantamount to an admission of guilt to which Nixon did not consent. Id. at 174. The Florida Supreme Court remanded the case for an evidentiary hearing on the issue of Nixon's consent to his defense counsel's strategy. Id. The trial court found that Nixon in fact consented. Id. Nixon again appealed in an effort to obtain a new trial under the Florida Supreme Court decision regarding the prior application of Cronic to his case. Id. The Florida Supreme Court reversed the trial court and granted Nixon a new trial, stating that Nixon did not affirmatively and explicitly agree to his defense counsel's strategy. Nixon v. Florida, 857 So.2d 173 (Fla., 2003). The state now appeals the Florida Supreme Court's decision, claiming that the court incorrectly relied on the Cronic and Boykin, when the correct application should be the test found in Strickland v. Washington, 466 U.S. 668 (1984). The Cronic test applies when counsel's conduct is so detrimental that it denies the defendant any meaningful assistance at all. The Strickland test, on the other hand, applies to cases where the attorney's performance is deficient and such deficient performance prejudices the defense.
top
Analysis
WHY THIS ISSUE IS IMPORTANT
This case will have a significant impact on how defense attorneys conduct their strategies, especially where the evidence overwhelmingly points toward guilt. In a death penalty case, a defense attorney may acknowledge the sufficiency of the state's proof at the guilt phase in an effort to gain the sympathy of and persuade the jury to spare the defendant's life during the sentencing phase. Such a strategy may be very sound; if the guilt phase is virtually indefensible, inappropriate guilt phase advocacy could prejudice the jury so much that no persuasive case for a life sentence could be made at the sentencing phase. The Florida Supreme Court's ruling in Nixon has now made it mandatory for a defense attorney to obtain explicit consent from the defendant when adopting this type of strategy. If the Supreme Court affirms this decision, defense counsel is ineffective per se anytime he adopts such a strategy without the client's explicit consent–no matter how uncooperative the client is, regardless of whether or not the client implies consent, and regardless of where the client's best interests lay.
Because such a rule would exclude evidence that a defendant would not cooperate or communicate with his counsel, this holding may be improperly utilized and could actually provide incentives for defendants to act inappropriately. Ultimately, in some cases, if a lawyer is not able to gain the express consent of the defendant, he may have to make the unfortunate choice of sacrificing the most persuasive case for a life sentence at the penalty phase by making arguments the jury may nonetheless reject. Lawyers and the judicial system will be placed in a precarious position, and citizens are legitimately caused to question the veracity of lawyers and judicial proceedings.
It is undisputed that a decision to plead guilty is a fundamental litigation decision which involves a waiver of several constitutional rights and thus must be made voluntarily by the client. If the Court's affirms the Florida decision, this protection may be extended to cover not only guilty pleas but also strategies utilized by defense attorneys at trial. By requiring explicit consent, the defendant will truly take full responsibility of "navigating his own ship," along with all the consequences of making wrong decisions in doing so.

Analysis 

ANALYSIS
THE CORRECT STANDARD OF INEFFECTIVENESS
In question one, the Florida Supreme Court applied the standard of United States v. Cronic, 466 U.S. 648 (1984), which holds that the right to effective assistance of counsel includes
the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted — even if the defense counsel may have made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.
Cronic, 466 U.S. at 656-57 (footnote omitted).
Under this standard, Nixon can argue that, even if his trial attorney's strategy was reasonably calculated to save Nixon's life, it still failed to test the merits of the State's case, and that whatever its logic, it was ineffective. Nixon's trial lawyer admitted to the jury that the State had proven its case beyond a reasonable doubt as he urged the jurors to show compassion to his client and spare his life. Nixon now asserts that by conceding that the State proved its case, the trial lawyer effectively entered a guilty plea and failed to subject the question of guilt or innocence to a meaningful test. Thus, Nixon argues, the trial attorney was ineffective.
Although this strategy may be sound, the Florida Supreme Court previously ruled that defense lawyers may only employ such strategies with the express approval of their clients. Nixon v. Singletary, 758 So.2d 618, 624 (Fla. 2000). "Silent acquiescence is not enough." Id. In the present case, Nixon's lawyer stated that his client "did nothing" when he explained his intended strategy.
The State of Florida, on the other hand, advocates for the use of the Strickland standard, which would allow the court greater flexibility to rule that the defense attorney was not ineffective. Claims of ineffective assistance of counsel under Strickland require a showing that 1) the attorney's performance was deficient, falling below professional standards, and 2) that the attorney's performance prejudiced the defendant. Florida argues extensively that Nixon's attorney acted reasonably by utilizing a trial strategy of conceding guilt in an effort to save his client's life at the penalty phase of the trial.
Florida urges the court to consider Bell v. Cone and Roe v. Flores-Ortega to define the lens through which the court will consider Strickland. Under the Bell decision, Florida argues, the Strickland standard applies when a defense lawyer fails to test the state's case only at "specific points." Nixon's trial lawyer, having conceded his client's guilt, did mount an apparently strong push to save his client's life at the penalty phase of the trial. Florida argues that in so doing, the trial lawyer rendered effective assistance at least at the penalty phase of the proceedings.
Roe deals with the prejudice prong of the Strickland test. Depending on the egregiousness of the deprivation of effective assistance of counsel, the court will either presume prejudice or require the defendant to show actual prejudice. Prejudice will be presumed in serious situations in which counsel was so ineffective that the defendant was "actually or constructively" denied assistance of counsel altogether. Roe, 523 U.S. 470, 483 (2000).
Florida refers to works by academics and practicing attorneys that suggest capital defendants might curry favor with the jury by conceding guilt and pleading for the jurors' mercy in situations in which they face overwhelming evidence. Essentially, Florida argues that Nixon's trial lawyer mounted a reasoned trial strategy that happened to fail. Nixon counters that his trial lawyer's was so ineffective that one may presume he suffered for it. Nixon attempts to buttress his arguments by urging that the trial lawyer need not have conceded defeat, and he points to apparently unexplored lines of reasoning that suggest that he may not have committed the murder for which he was convicted.
ARE COUNSEL'S STATEMENTS A GUILTY PLEA?
The Supreme Court, in Boykin v. Alabama, held that a trial court judge cannot accept a guilty plea without an affirmative showing that it is intelligent and voluntary. 395 U.S. 238 (1969). A guilty plea is a waiver of several constitutional rights, including the privilege against compulsory self-incrimination and the right to trial by jury. Id. at 242. This is because a guilty plea is more than an admission of conduct; a guilty plea is a conviction, with nothing left for a court to do other than give judgment and determine punishment. Id. Only "an intentional relinquishment or abandonment of a known right or privilege"can be a valid waiver under the Due Process Clause Id. (quoting Johnson v. Zerbst, 304 U.S. 458 (1938)). Therefore, a defendant's guilty plea that is not voluntary and knowing is a violation of due process and void. Id. Moreover, a guilty plea cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts. Id. (quoting Johnson v. Zerbst, 304 U.S. at 466).
For Boykin to apply to Nixon's case, the Florida Supreme Court would have to determine both that the defense strategy of Nixon's counsel amounted to a guilty plea and that Nixon did not affirmatively, intelligently and voluntarily accept that guilty plea. Nixon's acceptance of his counsel's strategy was clearly voluntary and arguably intelligent. However, there was no substantial evidence to establish that Nixon affirmatively accepted this strategysince Nixon consistently failed to respond when his counsel asked about his preference for trial strategy.
Thus, the crux of the applicability of Boykin to Nixon's case is whether counsel's statements during opening and closing arguments constituted a guilty plea. The Court may find these statements to have the same effect as a guilty plea because the trier of fact would almost certainly find the defendant to be guilty when defendant's counsel admits defendant's guilt. Reasoning thus, such a strategy is effectively a guilty plea. However, there are two compelling arguments that counsel's strategy was not a guilty plea. First, unlike the Boykin analysis, counsel's strategy was not in fact a waiver of constitutional rights. Nixon did not incriminate himself as he did not testify. Nixon also did not give up his right to a trial by jury because the jury still had to decide whether the prosecution met its burden of proof; in addition, the jury had the opportunity to evaluate Nixon's counsel and appraise his credibility. Second, also contrary to the Boykin analysis, counsel's strategy was not a conviction. The trial on the issue of defendant's guilt did not cease when counsel conceded Nixon's guilt, either in opening statements or in closing statements. The prosecution was still required to make a case against Nixon and the trier of fact still had to determine, beyond a reasonable doubt, that Nixon was in fact guilty.

Acknowledgments