71 J. Kan. Bar Assn. 8, 21-32 (2002). WHO DECIDES: The Allocation of Powers Between the Lawyer and the Client in a Criminal Case?.

• Author: By Jean K. Gilles Phillips and Joshua Allen

Kansas Bar Journals

Volume 71.

71 J. Kan. Bar Assn. 8, 21-32 (2002).

WHO DECIDES: The Allocation of Powers Between the Lawyer and the Client in a Criminal Case?

Kansas Bar Journal71 J. Kan. Bar Ass'n, September 2002, 21-32 (2002)WHO DECIDES: The Allocation of Powers Between the Lawyer and the Client in a Criminal Case?Jean K. Gilles Phillips and Joshua Allen, Who Decides: The Allocation of Powers Between the Lawyer and the Client in a Criminal Cases?, J. Kan. Bar Ass'n, September 2002, 21-32By Jean K. Gilles Phillips and Joshua AllenThere may even be concern that should the client be convicted or a lengthy sentence be imposed, the client will blame the attorney and allege the attorney was ineffective. Consequently, it is always prudent for the attorney to document, preferably with the client's signature, the investigation, the discussions with the client, and the fact that the chosen defense is the one desired by the client.

1. When the Attorney and Client Collide

   Robert Smith is charged with one count of aggravated battery for his alleged participation in a fight outside a neighborhood bar. According to three eyewitnesses, Mr. Smith and David Swift hit and kicked Dan Edwards when an argument turned violent. While the witnesses did not see Mr. Smith hit or kick Mr. Edwards, they all stated he was part of the oral altercation and was present when the fight occurred.

   John Kane is appointed to represent Mr. Smith. Upon investigation, Mr. Kane believes a strong defense exists that Mr. Smith, while perhaps present, did not participate in the physical altercation. Upon speaking with Mr. Smith, however, Mr. Smith insists he was home with his ailing mother and not at the bar that evening. The ailing mother would testify that Mr. Smith was at her home during the time in question, but the testimony is not strong and Mr. Kane is concerned it will not sway the jury. Mr. Kane still believes the best chance of success is in establishing that Mr. Smith did not participate, or aid, in the physical altercation. For the purposes of this hypothetical, assume that Mr. Kane does not "know" that Mr. Smith or his ailing mother are lying, thus perjury is not an issue.[1]

   Must Mr. Kane present the substantially weaker alibi defense or can he present the potentially stronger defense that Mr. Smith, while present, was not criminally liable for the injuries Mr. Edwards sustained? A similar issue was raised in the highly publicized case of United States v. Theodore Kaczynski.[2]

   Theodore J. Kaczynski, a gifted mathematician, quit his professorship at the University of California at Berkley in the late 1960s and disappeared into the Montana wilderness.[3] There Kaczynski developed a fierce hatred of the "technocrats," whom he thought were destroying the world. Kaczynski's hatred materialized in a 17-year reign of terror through random mail bombings that haunted university campuses (hence, the "Unabomber") and corporations across the country. Ultimately, Kaczynski's bombing campaign claimed the lives of three people and seriously injured 23 more. Kaczynski was eventually identified, arrested, and indicted for capital offenses.

   Kaczynski was appointed two lawyers, Quin Denvir and Judy Clarke, both of exceptional ability and reputation. From the outset, the two built an insanity defense, not only to support a plea of not guilty, but as a factor in mitigation in the penalty phase. Kaczynski, however, would not agree with his legal team's advice that his best hope lay in the insanity defense. He had previously expressed fear that his political and social protest would be dismissed as the rantings of a lunatic. Denvir and Clarke believed that their client, even if competent, should not be allowed to doom himself while they stood idly by.

   During jury selection in November 1996, Kaczynski realized his attorneys were planning to introduce expert testimony that he was mentally ill, and he vehemently objected. On the day his trial was scheduled to start, Kaczynski rose to address the court. "Your Honor," he said calmly, "before these proceedings begin, I would like to revisit the issue of my relations with my attorneys. It's very important."[4] After explanation in chambers, Judge Burrell expressed the opinion that the decision whether to present a defense of mental impairment was the lawyer's and not the client's choice. Thereupon, Judy Clarke informed the court that Kaczynski had made the decision to represent himself.[5]

   Judge Burrell ordered a competency evaluation, and a week later Kaczynski was deemed competent. Despite being deemed competent, the court denied Kaczynski's request to represent himself, putting Kaczynski's ability to control his own defense in serious jeopardy. Meanwhile, the government team began to rethink the death penalty. When the government agreed to a non-capital disposition, the defendant quickly took the guilty plea offered, waiving all rights to appeal, and accepted three-life sentences.[6]

   "From the beginning," wrote Michael Mello, "the Unabomber case was about power."[7] In discussing the purpose behind his book, "The United States v. Theodore John Kaczynski: Ethics, Power and the Invention of the Unabomber," Michael Mello simply stated:

   Theodore Kaczynski was denied his day in court. This fact does not make his case particularly unique among capital cases in America. But Kaczynski was denied his day in court by his own defense lawyers, not because these attorneys were inexperienced or underfunded or overworked - far from it.

   Kaczynski's experienced and well-financed lawyers simply decided that they, the lawyers, and not Kaczynski, the client, were in control of the defense and that they had a mandate to save his life. His lawyers insisted that only a mental defect defense would sufficiently sway a jury and avert a death sentence. Kaczynski refused to cooperate with this defense. The struggles between Kaczynski and his paternalistic lawyers for control in his defense, raise the most fundamental moral issues with regard to lawyers, clients, ethics, and power"[8]

   Although the case of the United States v. Theodore Kaczynski failed to answer the question at hand, it effectively frames the debate: Should attorneys be allowed to force a defense on a client who specifically rejects it? Can a mentally competent defendant be denied the right to have his/her theory of defense presented?[9]

2. An Unresolved Supreme Court

   In Wainwright v. Sykes, the United States Supreme Court held that the attorney possesses the right to decide certain strategic and tactical decisions, including what witnesses to call, whether and how to conduct cross-examination, what trial motions should be made, and what evidence should be introduced.[10] Indeed, considering the numerous decisions a defense attorney must make in representing a client, the trial process would become overly cumbersome if the client were required to sign off on every decision an attorney made.[11] Consequently, the decisions left strictly to the client tend to affect the more fundamental rights of a defendant.[12] For example, it is solely the client's decision whether to plead or go to trial,[13] whether to have a jury trial or bench trial,[14] whether to pursue an appeal,[15] whether to testify,[16] or whether to represent one's self.[17]

   Thus, at first glance it appears the attorney in our hypothetical, Mr. Kane, has the right to present the defense he believes is most likely to succeed, as he has the right to determine which witnesses to call and what questions to ask. However, such a stance not only undermines Mr. Smith's desire to present an alibi defense, but appears to contradict other United States Supreme Court decisions that indicate the defendant may have a fundamental right to have his/her theory of defense presented to the jury.[18]

   In Chambers v. Mississippi, the Supreme Court, holding that the right of a defendant to present a theory of defense is one of the most fundamental and essential rights to a fair trial, intimated the right was not only fundamental, but a personal right as well.[19] If determining the theory of defense is a personal and fundamental right, then the decision of what defense to present must lie with the client.[20] This position was echoed in Justice Harlan's concurrence in Brookhart v. Janis, when he wrote that, while "a lawyer may properly make a tactical determination of how to run a trial even in the face of his client's incomprehension or even explicit disapproval," a significant surrender of the defendant's rights would offend the due process clause.[21]

   Additionally, cases that address the right to self-representation indicate that the theory of what defense is presented is a decision that...