THE AUTHORITY

THE AUTHORITY

1. CONSTITUTION

The Sixth Amendment to the United States Constitution provides only that "the accused shall enjoy the right . . . to have the assistance of counsel for his defense." Note that the Constitution (and most courts on review) doesn't provide for effective assistance of counsel, just counsel. See, e.g., Riles v. McCotter, 799 F.2d 947, 955 (5th Cir. 1986) (Rubin, J., concurring.)

2. CASES

Case law rarely directly addresses the issue of who makes decisions in capital or other cases. The issue generally arises indirectly when raised on appeal or habeas after a defendant gets the death penalty and appellate or habeas counsel discovers the problems at trial - often a complete failure to investigate or present evidence in mitigation at sentencing. In these cases, the Supremes developed a two-prong test in Strickland v. Washington, 466 U.S. 668 (1984), for use when a claim of ineffective assistance arises. When addressing the issue of whether an attorney has been ineffective, courts must consider 1) whether counsel's performance fell below an objective standard of reasonableness, and 2) whether the outcome might have been difference but for counsel's deficient performance. If a court does find deficient performance, the deficiency is rarely prejudicial. (Surprised?)

Without giving a sting of citations, trial counsel's shortcomings are generally considered effective whether they resulted when counsel complied with the client's wishes or whether counsel just didn't know what they were doing. In the case of Faretta v. Ca. , 422 U.S. 806 (1975) (defendant charged with grand theft), the Supremes did confront issues related to control of the case. The state court had required the defendant to be represented by counsel despite his request to represent himself and be in complete control of the case. In reversing the lower courts, the Court fell on a simple solution: the client can maintain complete control of all matters related to his defense by electing to proceed pro se. Faretta v. Ca., 422 U.S. 806 (1975).

3. ETHICAL STUFF

Disciplinary Rules state that with a client's express or implied authority a lawyer may "exercise his professional judgment to limit or vary his client's objectives and waive or fail to assert a right or position' of the client." ( DR 7-101.) In addition, the ethical considerations state that decision making authority remains exclusively with the client and decisions made by the client are binding on the lawyer if not in violation of the law. (EC 7-7) Although this is a broad statement, examples related by the EC relate only to whether to plea or appeal. "[T]he decision whether to forego legally available objectives or methods because of nonlegal factors is ultimately for the client" after being fully informed by the lawyer. (EC 7-8.) In exercising his professional judgment on the matters that are for the lawyer's determination, the lawyer should act in his client's best interests. (EC 7-9.) A lawyer has additional responsibilities when a client is impaired in some way. (EC 7-11 &12.)

While the above appears to indicate that a client is in complete control of the case, to the extent he is able, the cases previously cited do not hold the lawyer to these standards. Neither do the DR's or EC's appreciate the reality of the situation when disputes arise. At least insofar as courts are concerned on appeal or habeas the client loses no matter who makes the decisions.