Attorney can't concede guilt in opening arguments.

• Author: Ziemer, David

Byline: David Ziemer

Although an attorney may concede guilt on one count in a multi-count trial as a valid trial strategy to obtain acquittal on the remaining counts, the attorney may not do so without his client's consent in opening arguments, the Seventh Circuit held on Dec. 16.

Concession

On July 31, 1999, Freeman Holman was arrested on his way to meet Joyce Lawson, a police informant who arranged to meet Holman and purchase a small quantity of crack cocaine from him. As a result, he was indicted in Indiana federal court on one count of possession of cocaine base with intent to distribute.

A few months later, Holman was arrested again when officers found a revolver and crack cocaine in his car. A superseding indictment added three charges based on his second arrest for possession of cocaine base with intent to distribute; possession of a firearm and ammunition by a felon; and carrying a firearm during and in relation to a drug trafficking crime.

Holman's attorney began his opening statement by acknowledging, "on July 31st, 1999, Freeman Holman readily admits that he had cocaine in his pocket." He added, "We are not going to attempt to deny that in any way, because that is the truth."

During the presentation of evidence, Holman's attorney limited his cross-examination of the prosecution's witnesses to issues raised in Counts II-IV and did not ask any questions regarding Count I. Similarly, when presenting a defense, he avoided any discussion of the events surrounding Count I and only asked questions relating to Counts II-IV.

During closing argument, Holman's attorney again conceded that his client possessed drugs as alleged in Count I.

Holman was found guilty on all counts and was sentenced to 248 months' imprisonment. He appealed, and although the court found his counsel was ineffective, it concluded Holman was not prejudiced, and affirmed in a decision by Judge Ann Claire Williams.

Valid Trial Strategy

The court began by stating the general rule that conceding guilt to one count of a multi-count indictment to bolster the case for innocence on the remaining counts is a valid trial strategy which, by itself, does not rise to the level of deficient performance.

The court has long held that an attorney can concede guilt on an indefensible charge to build credibility with the jury by acknowledging the overwhelming evidence of guilt for that particular charge, creating goodwill and trust that can be applied towards arguments attacking the remaining charges.

The court found that it was a valid trial strategy, noting that, after conceding guilt in the opening statement, the attorney emphasized the weakness in the prosecution's case on the other three counts, raising the possibility that the evidence was planted in Holman's car or fabricated.

Consent

Nevertheless, the court stated that, although a valid defense...