Client or Defense Lawyer: Controlling Trial Strategy After Bergerud
| Jurisdiction | Colorado,United States |
| Citation | Vol. 43 No. 1 Pg. 51 |
| Pages | 51 |
| Publication year | 2014 |
Articles
Criminal Law
Client or Defense Lawyer: ontrolling Trial Strategy After Bergerud
By Mark C. Johnson
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, Judge for the Second Judicial District Court, Denver
About the Author
Mark C. Johnson practices criminal law in state and federal court, with offices located in Boulder. Before going into private practice, he spent fourteen years in the Colorado State Public Defender's Office —(303) 448-8836, www. markcj ohnsonlaw. com.
This article reviews Colorado case law regarding how to proceed when a major conflict arises between lawyer and client in a criminal case over the presentation of the defense.
Consider the following questions: What does a criminal lawyer do when a serious conflict arises between the lawyer and the client over what defense to present at trial? Does the lawyer need to inform the trial court as to the specifics of a serious strategic conflict? How much can the lawyer reveal about that conflict and the reasons the lawyer has chosen a defense to which the client objects? Can the lawyer continue to function as trial counsel if his or her chosen defense is in direct conflict with the anticipated testimony of the client?
These compelling legal and ethical questions were the subject of the Colorado Supreme Court case of People v. Bergerud.[1] Bergerud clarified that a criminal defendant has significant authority in choosing the defense that will be presented at trial. The Court held that a defense lawyer could not advance a theory of defense that effectively rendered the client's anticipated testimony a "nullity."[2] Additionally, the Court determined that defense counsel had a duty to respond candidly to questions by the trial court in a situation where a defendant demanded new counsel and claimed that present counsel was violating his rights in the presentation of the defense.[3]
This article explores the strategic issues raised by the Bergerud opinion. It also offers suggestions for criminal defense lawyers about how to proceed when the client and the lawyer have entirely different perspectives on how to advance the defense at trial.
Summary of Pre-Bergerud Cases: The Captain of the Ship
Colorado case law has long dealt with the question of the control and direction o f a criminal case. The traditional delineation of decision making between lawyer and client was perhaps best articulated by Justice Erickson in the seminal case of Steward v. People [4] In Steward, the defendant filed a motion for a new trial claiming that his lawyer was incompetent for failing to present certain evidence during the trial. The Steward Court held that it was the defense lawyer who made the decisions, in his role as "captain of the ship, " as to what evidence to offer and what strategy to employ in the presentation of the defense. The Steward opinion cited the American Bar Association Standards for Prosecution and Defense Function (ABA Standards)[5] regarding the "[c]ontrol and direction of the case." Those standards clarified that, although the client maintained personal control over the decisions of what plea to enter, whether to waive jury trial, and whether to testify, the remainder of "strategy and tactical decisions" ultimately were exercised by the defense lawyer.[6]
Steward went on to observe that where a major conflict arose between the client and the defense lawyer over strategy and tactics, the lawyer was required to inform the trial court of the impasse as soon as practicable. However, the Court did not address the question of whether a client's anticipated testimony could limit the strategic and tactical decisions that the lawyer would be required to make in the presentation of the case to the jury.
The case of People v. Curtis, [7]decided in 1984, held that the decision to testify was a right so fundamental to the defendant that a special hearing with the trial judge was required to establish on the record that the defendant had personally made the decision whether to waive that right. The Court in Curtis held that the right to testify was a fundamental constitutional right that could not be waived by counsel. The Court found the right to testify analogous to the right to be present at each step of the felony process, another right that could not be waived by the defense lawyer.[8]
However, the Court observed that as to the other rights associated with a criminal proceeding, the defense lawyer stood as the captain of the ship, with authority to bind the client by the decisions made during the presentation of the defense.[9] The Court drew a line of demarcation between the defendant's right to testify and the classic trial-related decisions that were in the hands of the lawyer: the determination of which witnesses to call, which defenses to present, how to conduct cross-examination, jury selection, and what pretrial motions to submit.
The tension over control and direction of the case was also the subject of the 2007 Colorado Supreme Court case of Hinojos-Mendoza v. People.[10] Hinojos-Mendoza held that waiver of the right of confrontation and the decision to stipulate to evidence at trial were decisions solely exercised by defense counsel. Hinojos-Mendoza involved a drug dispensing prosecution. The defense lawyer was unaware of the dictates of CRS § 16-3-309(5) that required that the defense object before trial to the admission into evidence of laboratory tests without the testimony of the technician who prepared the report. Failure to object pretrial resulted in a waiver of the defendant's right to confront the technician.
The defendant argued on appeal that he had not personally waived his right of confrontation and, therefore, the lab reports should not have been admitted, even though his counsel waived confrontation by failing to timely object. The Court found that the right to confrontation fell into "the class of rights" that the defense lawyer could waive as part of the strategic decisions in the trial. The Court drew a distinction between waiver of a right to confrontation and the waiver of more "fundamental and personal rights, " such as the right to testify at trial.
The Court in Hinojos-Mendoza specifically cited People v. Curtis when noting that the right to testify was of such central importance to a criminal defendant that it could only be waived personally by the defendant and not by defense counsel. By comparison, the Hinojos-Mendoza Court categorized the waiver of confrontation as one of the rights intertwined with the function of defense counsel as the captain of the ship. The Court viewed the right of confrontation as the equivalent of choosing how to cross-examine, or stipulating to the admission of evidence. The Court determined that the defendant was bound by the action and inaction of the defense lawyer as to the right of witness confrontation. The Court stated:
Therefore, where a defendant such as Hinojos-Mendoza is represented by counsel, the failure to comply with the statutory prerequisites of section 16-3-309(5) waives the defendant's right to confront the witness just as the decision to forgo cross-examination at trial would waive that right.[11]
Hinojos-Mendoza held that when a criminal defendant chose to be represented by counsel, the defendant gave up significant control over many crucial decisions in the case that were deemed to be in the purview of the lawyer. Hinojos-Mendoza did not deal with the question of whether the client's anticipated testimony could dictate the defense lawyer's strategy.
People v. Arko, the Precursor to Bergerud
The Colorado Supreme Court's decision in Bergerud was presaged by its opinion in the case of People v. Arko.[12]Arko held that the decision as to what lesser-included offenses to submit to the jury was a matter of strategy to be made by defense counsel as opposed to a fundamental trial right...
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