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IN THE SUPREME COURT OF THE UNITED STATES
- - - - - - - - - - - - - - - -X
FLORIDA, Petitioner :
:
: :
No. 03-931

JOE ELTON NIXON.

- - - - - - - - - - - - - - - -X
Washington, D.C.
Tuesday, November 2, 2004
The above-entitled matter came on for oral
at

argument before the Supreme Court of the United States 10:02 a.m. APPEARANCES:
GEORGE S. LEMIEUX, ESQ., Deputy Attorney General,
Tallahassee, Florida; on behalf of the Petitioner.
IRVING L. GORNSTEIN, ESQ., Assistant to the Solicitor

General, Department of Justice, Washington, D.C.; on
behalf of the United States, as amicus curiae,
supporting the Petitioner.
EDWARD H. TILLINGHAST, III, ESQ., New York, New York; on
behalf of the Respondent.

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ORAL ARGUMENT OF

C O N T E N T S
PAGE

GEORGE S. LEMIEUX, ESQ.
On behalf of the Petitioner IRVING L. GORNSTEIN, ESQ.
On behalf of the United States,
as amicus curiae, supporting the Petitioner EDWARD H. TILLINGHAST, III, ESQ.
On behalf of the Respondent REBUTTAL ARGUMENT OF
GEORGE S. LEMIEUX, ESQ.
On behalf of the Petitioner 46
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Court: When JUSTICE

P R O C E E D I N G S (10:02 a.m.) STEVENS: We'll now hear argument in

Florida against Nixon. Mr. Lemieux. ORAL ARGUMENT OF GEORGE S. LEMIEUX ON BEHALF OF THE PETITIONER MR. LEMIEUX: Justice Stevens, and may it please

experienced

counsel

thoroughly his trial

investigates, prepares for trial, and discusses strategy with his client, a challenge for

effectiveness

may not presume prejudice.

Rather, this Court's two-part v. Washington, is the

inquiry, articulated in Strickland proper measure. The Florida Supreme Court below for three main reasons. First, they failed to

erred in its decision

apply Strickland's

two­

part circumstance-specific, performance to a question of trial strategy. Second, this Court's there was counsel

prejudice inquiry

it improperly presumed United States

prejudice under v. Cronic where

decision in

neither a complete fail

denial of counsel, the State's

nor did case to

entirely

to subject

meaningful adversarial testing.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 guilty attorney's

Third,

the

Florida

Supreme

Court

improperly

expanded this Court's governing pleas of

decision in Boykin v.

Alabama from decisions

guilt to governing tactical

made during full-fledged trials. For these three reasons and because the Florida

court's decision conflicts with Strickland and its progeny and will disrupt the effective administration of justice,

we request reversal. JUSTICE O'CONNOR: Counsel, was of -was of the the

essential

concession

guilt sort

functional equivalent of a guilty plea, do you think? MR. LEMIEUX: No, Justice O'Connor, it was not.

Mr. Corin, after speaking to his client on three occasions about this trial strategy, sought to concede the was

underlying -- the underlying crimes but to argue what

the most essential part of this case, and that was whether or not death should be the outcome of the jury. JUSTICE to preserve guilty O'CONNOR: Well, yes, he clearly tried often have to be the

a role in the and Was then --

sentencing, but we leave the

pleas

sentencing did

determined.

was

what he

concerning

guilt/innocence phase the equivalent of you think? MR. LEMIEUX: plea, as this

a guilty plea, do

It was not, Your Honor, because Court talked about in Boykin

a v.

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Alabama, gives up rights of the defendant. the defendant waive rights. They waive

The lawyer and the right to

trial.

They waive the right to have the State prove their They waive the right to

case beyond a reasonable doubt. have a jury, to confront

witnesses, to cross examine, all Mr. Nixon -­ Was there any cross

of the attendant trial rights. JUSTICE O'CONNOR:

examination of witnesses conducted? MR. LEMIEUX: not a lot. There was There was some cross examination, of one of Mr.

cross examination of the seven

Nixon's uncles, this case, and engaged

who was one we don't know

confessions in Corin

specifically why Mr. It

in that cross

examination.

could be because

that was probably the weakest of the seven confessions and perhaps he wanted was weak. JUSTICE SCALIA: introduction of -of There was photographs also an objection to that -that were the jury to hear that that confession

inflammatory, wasn't there? MR. LEMIEUX: Yes, there was, Justice Scalia.

In fact, you know, Mr. Nixon in the guilt phase of

was -- was very much engaged He objected to the

this trial.

introduction of evidence. JUSTICE SCALIA: infected the Those photographs would as well as have

-- the penalty phase,

the guilt

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phase.

So it was important for him to object to them. MR. LEMIEUX: Yes, Your Honor, that's correct. In the guilt phase. You said Mr. Nixon was -- was

JUSTICE SCALIA: JUSTICE the client.

KENNEDY:

Was he in the courtroom? Mr. Nixon was in the courtroom for He was in -­ Was -was he there -and jury

MR. LEMIEUX: portions of the trial.

JUSTICE KENNEDY: I'll check the record -that -that his

when the attorney told the -was guilty,

client was

that he

basically was conceding guilt? MR. LEMIEUX: Mr. Nixon was not in the courtroom

for the opening statement or the closing statement. JUSTICE statement. MR. LEMIEUX: dire. He was there He was there during some of voir two the KENNEDY: But not for the opening

after the opening statement when one who testified that he was

witnesses testified,

person who tried to sell identified him in the

the victim's car and courtroom,

positively when the person the

and another

sheriff's deputy positively identified who confessed and gave the After to

him as the

45-minute confession and

person he arrested. Mr. Nixon occasion.

those two witnesses testified, leave the courtroom on that

then decided

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JUSTICE SCALIA: is not as -- not

The other

side says that guilt as you make it out.

as clear as you --

Is -- is that -- is that issue even before us here? MR. LEMIEUX: Your -- Your Honor, none of that

evidence has been presented in proceedings, and before this evidence. while it's

any of the post-conviction think it's not into

creative, I

Court because

it's never

been entered

It's just speculation. JUSTICE SCALIA: Well, I -it isn't a matter of whether it

whether it's goes to

before it.

I just wonder

-- to the not.

issue here, whether you It -of

needed to get the quite inadequate us

his assent or separate

it probably goes to there was

question

whether No?

performance by counsel. also? MR. LEMIEUX: are before you.

Is that question before

It is, Your Honor.

Both questions

I -- I believe that -­ Was -was the latter question

JUSTICE SCALIA: ruled upon below? MR. LEMIEUX: found that

What the Florida Supreme Court did since this was the functional

equivalent of a guilty plea, if there was not explicit and affirmative consent, that Cronic would apply and a

presumption of prejudice would follow. JUSTICE SOUTER: Okay, but -- no. I'm sorry.

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JUSTICE SCALIA:

And never

-- and never reached

the -- the inadequate performance of counsel question. MR. LEMIEUX: Honor, is The -- the only thing that they do that they say that the strategy

employed by

Mr. Corin may well

have been in

Mr. Nixon's

best interests. JUSTICE SOUTER: Okay, but they didn't -­ They may, but that wasn't a

JUSTICE GINSBURG: ruling.

So do you agree that if we accept the a remand would require to be considered on for the

position that you are taking, that -for that evidence

straightforward question did counsel perform adequately? MR. LEMIEUX: hearings in the defense, Your Honor, there were three --

the post-conviction who had the burden

proceedings, and the in those cases

to prove Corin some

ineffective assistance of and the

counsel only Mr. Corin

put on Mr. and called

State cross examined

other witnesses.

I don't know what further evidence could

be adduced that would go to a separate claim. JUSTICE SOUTER: Well, it -- it might be that

there would be no justification there would have to be

for further evidence, but merits

a Strickland ruling on the

of the Strickland issue, wouldn't there be? MR. LEMIEUX: I think I think that this Court could the

engage in that.

you could remand

and have

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Florida Supreme Court engage in that. JUSTICE SOUTER: that yet. But nobody has explicitly done

Is that correct? MR. LEMIEUX: They have not because the Florida

Supreme Court ruled under Cronic. JUSTICE SOUTER: MR. LEMIEUX: Because of the Cronic point.

Yes, Your Honor. What -- what about the courts

JUSTICE SCALIA:

below the Florida Supreme Court? MR. LEMIEUX: Yes,

Didn't they rule on it? Honor. Three trial

Your

court judges all found that there was effective assistance of counsel. Judge Hall, who presided over the trial, in

fact, described Mr. Corin's advocacy as being right on the mark. the He found in of his approach an excellent analysis the the case and the of preservation any of of

realities

credibility

and

credibility

mitigating

circumstances.

He also found that it was perhaps the only

steps that could have been taken to afford his client some relief. JUSTICE STEVENS: JUSTICE KENNEDY: equivalent of think goes equivalent a guilty May I ask -Getting back to the practical v. Janis do you

plea, Brookhart margin of

to the is?

outer Are

what the examples

functional of what a

there other

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functional equivalent would be that Cronic and Brookhart? MR. LEMIEUX:

would fall under both

We have a line-drawing problem -­ Sure, sure. -- as -- as to whether or not

JUSTICE KENNEDY:

this is the functional equivalent. MR. LEMIEUX: in fact probably Your Honor, I think that Brookhart our position because in

supports

Brookhart the situation

was factually different.

It was

more of a -- a guilty plea situation where there was going to be this prima facie trial, which was, in essence, a And in a

guilty plea that case, trial, guilty. those I

with a profferer through one witness. the defendant stood to up and said,

I want

want everyone And this Court to it, a

understand I'm

not pleading waive

said that trial the

counsel can't the

rights to

full if

when

defendant is consents or

objecting

but

defendant

acquiesces, this Court said the ruling would be different. Well, certainly Mr. Nixon at least acquiesced.

Mr. Corin spoke to him on three occasions

-- and that can

be found at 255 of the joint appendix -- and talked to him about this strategy. Mr. Nixon never responded either way

as to his assent or what he wanted to be done. Now, Judge Ferris, who was the third trial court judge who heard this matter, said that because of the

longstanding relationship between

this defendant and this

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lawyer, because he had represented over a 2-year period, that

him three times before was of a level of

there

relationship,

they

were both

veterans

the criminal And

justice system, they had a she was

rapport with each other. there was consent

able to determine that

to the object

trial strategy in the fact to it. The affirmative record.

that Mr. Nixon did not

Florida Supreme and

Court

wants explicit a colloquy

and

consent,

they want

on the

And we think that this will be very problematic,

and we're already seeing these problems in Florida. JUSTICE SCALIA: Do we have any cases involving

what -- what you describe as tacit consent? MR. LEMIEUX: Honor? JUSTICE pleading guilty. thing SCALIA: In -- in terms of -of In terms of a trial strategy, Your

Do we have any cases in which a

similar

happened, that the counsel

said I'm going to plead doesn't say anything,

you guilty and the -- the defendant

just passively sits there as though, you know? MR. LEMIEUX: think that colloquy Boykin Your Honor, that I think you do and there has to be I a

addresses of

with

a plea

guilty, and

that

the --

the

defendant can't tacitly consent to a plea of guilty. But our position is that this is not a plea of

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guilty.

This is

not a

complete surrender.

This is

a

tactical retreat made for reasons of trying to contest the one issue in this case was trying to save that could be contested, and This that

this defendant's life. He

lawyer He

took 52 depositions.

hired medical professionals.

investigated Mr. Nixon's background, going back to the age of 10. He did everything -­ JUSTICE photographs? were I GINSBURG: What happened to the There fact

wasn't clear from the submissions. photographs. Were they in

inflammatory

admitted? MR. LEMIEUX: They were admitted over his the

objection, and that was taken Florida Supreme Court, Nixon I, did not find

up on direct appeal to

and the Florida Supreme that they

Court, in and

were inflammatory

found that their introduction was proper. JUSTICE GINSBURG: But they were not

reintroduced at the sentencing phase. MR. LEMIEUX: the State incorporated into the only They were already in evidence and guilt phase The

its evidence from the It's

sentencing phase.

just a procedure. on in the

evidence that the

State put

guilt phase

were his prior two convictions and evidence that Mr. Nixon tortured the defendant by removing her underwear before he burned her alive. Besides that, the rest of the evidence

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was incorporated from the guilt phase. JUSTICE STEVENS: his representation would May I ask if -- do you think had

have been

inadequate if he

not discussed the strategy with else was exactly the same? MR. LEMIEUX: would be something

the client but everything

It may -- it may have been but that would be evaluated

it

under

Strickland, Justice Stevens. JUSTICE would it make talked to STEVENS: Well, why would it be -- why whether he the same

any difference under Strickland not if the

the client or

same -- if

considerations are

in play?

In other words, he just knew him from

it was the -- the wiser strategy to try and save the death penalty? MR. make there is should LEMIEUX: I think the only point

I would

this Court said in

Strickland that counsel their client, with the on counsel. that would was If be

consult with their -- with that that's failure to that

accused, and there was argued a

an obligation

consult, perhaps to consult

that

failure

deficient

performance. JUSTICE SOUTER: Isn't that -isn't that

because we -- we take an indication

the consultation at -- at lawyer was -was

least as

that the

adequate in so that the

communicating back and

forth with the client

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client could defend him? MR. that's

tell him what the

lawyer needed to

know to

LEMIEUX: I

Yes,

Justice Souter,

I

think

correct.

think that there

could be meaningful

discussions between the defendant and the accused that can help the lawyer represent the defendant at trial. JUSTICE competence performance the Boykin of SCALIA: lawyer, But even it apart shows from the

the

whether

adequate

by the lawyer, can't rule, which at all, doesn't three

you -- can't you divide relate to different the lawyer's categories: which is --

competence

into

number one, where

there is

express consent

makes it okay; number two, when there's no consent at all, which is bad; and number three, where there is Aren't there what -­ really

what you call here implicit consent? three different situations? MR. LEMIEUX: That's what the

Yes, Your Honor, that's about in

correct.

Court speaks

Brookhart, and case

although we think that that's than a trial strategy case,

more of a guilty plea if this Court

were to go in

that direction, that standard certainly could apply. JUSTICE GINSBURG: JUSTICE difficult to -necessary, why STEVENS: In -­ It seems to me rather

to draw that line. shouldn't it be

If -- if I'm

consent is not saying

express?

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consent is necessary, but normally if you're going to have something seems to this important me it ought to and consent is necessary, record. it You

be clear

on the

certainly wouldn't accept this for a guilty plea, what you have here. MR. LEMIEUX: -- I think this That's correct, Your Honor, but in held in cases like Jones v.

Court has

Barnes and Taylor v. Illinois, are questions that all -­ JUSTICE STEVENS:

that questions of strategy the lawyer, and that

are reserved to

That's

right, and that's why

I'm suggesting if it really is a question of strategy, you don't even need implicit consent. JUSTICE SCALIA: JUSTICE STEVENS: MR. LEMIEUX: Right. And I'm not sure there's a -­

We -­ -- three-part rule, as Justice

JUSTICE STEVENS: Scalia says.

There's just a two-part rule. We -- we agree with that position,

MR. LEMIEUX: Justice Stevens.

JUSTICE SCALIA: your response is that

Well, I -- I assume -- I assume from the Boykin

if you eliminate

rule the possibility of implicit the lawyer who believes an intractable client

consent, you are forcing of a -­ who

he has the consent of -such as this fellow

who --

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didn't go they

into the courtroom, took all his clothes off so him into the courtroom. He was

couldn't take

obviously not you

-- didn't want to forced this

be responsive. to adopt

Your -­

would have

lawyer

a strategy damaging to that the

which the

lower court found

would have been

this defendant, even

though the lawyer believes

defendant really approved of the was undertaking. that? MR. LEMIEUX: Why would

strategy that the lawyer like

we want to adopt a rule

Your Honor, consent.

it's not our position I was saying if this

that you should a rule of Court were going in that

direction, that the acquiescence

level would be what we would suggest. JUSTICE BREYER: What -- what about a -­ If there were a plea -- if it this be an academic

JUSTICE GINSBURG: were a plea of

guilt, wouldn't

question because I assume Florida the rule 11 colloquy where the

has some counterpart to judge must confront the

defendant and consent? So

ask him a series of questions to elicit his this issue can come up, if you have a

counterpart to rule 11, only in the concession of guilt by the attorney but with a trial. MR. LEMIEUX: Your Honor, Florida does have a

rule for a guilty plea, but -- and now the Florida Supreme Court says there has to be a colloquy for a strategy

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decision

that

--

where

there's

a concession,

but

we

disagree with that. colloquy. required. We don't

We don't think that there should be a think that that -that should be

And we think that that's problematic and we're Florida that decision, whether or -- that judges, asking laboring to

already seeing in under the Nixon as to

are

questions

defendants

not all

sorts of

strategy

decisions are decisions they agreed to. JUSTICE GINSBURG: If Florida wanted to adopt

that procedure on its own, that wouldn't present a Federal question. prosecutor I mean, the prosecutor no right to would have no stop it if -- the

would have

the -- if go on

Florida said,

well, we want that

same colloquy to

whether it's a guilty plea or whether it's a concession of guilt. MR. LEMIEUX: they're doing the Well -- well, Justice Ginsburg, Court is

it under these

decisions of this

reason why that they've

articulated that this has to

be done.

They're saying it's a functional equivalent of a Therefore, Boykin be a colloquy. is required and therefore And we think that those

guilty plea. there has to

colloquies are tremendously the attorney-client

problematic, that they invade They may affect an

privilege.

accused's right to himself. There

-- you

know, not to

self-incriminate between the

may violate the relationship

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lawyer and his client. JUSTICE STEVENS: understand. These Yes, but these -- let me just not, in your view,

colloquies are

commanded by the Florida Supreme Court's holding. MR. LEMIEUX: They are. The Florida Supreme

Court specifically says you must determine consent. JUSTICE STEVENS: just

have these colloquies to

But only -- is it -- it's not of the guilty plea, but

when there's the equivalent

any major trial strategy -­ MR. LEMIEUX: The lower -- Justice, I'm sorry. Is this -- I want to know is limited to if

JUSTICE STEVENS: the Florida Supreme

Court's holding

cases

that are the functional equivalent of -- of a guilty plea, and -and it's only there that they're requiring the

colloquy. MR. required it, LEMIEUX: but lower It's courts only there that they've

now defense

counsel are

making these arguments that, boy, you know, is concerned this is a strategy decision. JUSTICE STEVENS:

and the judge

Well, but of course

what the

lower courts are doing may or may not be right as a matter of Florida law, but that's not before us really. MR. LEMIEUX: It's not before Your Honor. Of course, if it were a matter

JUSTICE SCALIA:

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of Florida law, the Florida legislature could change it. MR. LEMIEUX: Yes, Justice Scalia. If it's a matter of Federal

JUSTICE SCALIA: law, it can't. MR. LEMIEUX: If I time. JUSTICE STEVENS:

That's correct.

may, I'd like to reserve the balance of my

Mr. Gornstein.

ORAL ARGUMENT OF IRVING L. GORNSTEIN ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER MR. GORNSTEIN: Justice Stevens, and may it

please the Court: The most serious problem with the Florida that it most

Supreme Court's prevents effective

explicit consent from pursuing

requirement is what may be

counsel

the

strategy

for saving

a defendant's

life, even

when counsel consults with the

defendant on that strategy In that situation, the pursue an

and the defendant does not object. Florida Supreme Court alternative

would require counsel to doubt strategy even

reasonable

though that

might undermine the case for and even

sparing the defendant's life has not consented to that

though the defendant

strategy either. JUSTICE KENNEDY: Do we take it as a given that

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if he does not consent, in fact, directs his lawyer not to make this concession, that the lawyer is bound to follow? MR. GORNSTEIN: still look at that No, Justice Kennedy. the It You would prism of

question

through

Strickland's distinct

reasonableness A

inquiry.

would

raise make a

concerns. effort to

reasonable

counsel would

reasonable

iron out

differences.

Reasonable his

counsel takes client. But

into account if, at

the considered of

views of

the end that

that process, is the only

counsel

reasonably

concludes

this

effective

strategy for saving the defendant's life, then the pursuit of that strategy is not per se ineffective. JUSTICE and the KENNEDY: Does -- does that up the ante

defendant now is in the position to terminate the it's -- it's too late, I'm

lawyer, or will the judge say

not going to grant that motion? MR. GORNSTEIN: JUSTICE law. MR. GORNSTEIN: As -- the defendant could go to counsel could go to the judge a breakdown between us on what counsel should Justice Kennedy, the -­ As -as a matter of Federal

KENNEDY:

the -- to the judge and his and say, we have had such

should be done be appointed. the district

here, we think alternative

But that would be a discretionary call for court. So too, the defendant could say, I

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want to exercise my right to self-representation, which he has a right to do. So those are the two checks on that. But what -- what if there's a remarks in effect, up

JUSTICE SOUTER: third possibility and front of the

-- and the lawyer makes

jury, as -- as

this lawyer did, in

concession kind of

remarks, and

the defendant stands

and says, hey, I'm not making those concessions? guilty. lawyer at I'm not conceding a darned have thing. a --

I am not Does the to

that point

at least

an option

proceed on the concession theory, leaving it performance under Strickland afterwards? MR. GORNSTEIN: Justice Souter, objection this is If I

to judge his

understand your question, there was to adopt no a

a situation where lawyer proceeded

initially, the

strategy, and then there was a -­ JUSTICE didn't get into we've got a don't agree want a SOUTER: Well, I -- actually other. I -I

that one way or the which the

Let's assume I -I

case in

client says, no,

to these concessions. As I

I'm not guilty -- your

and I

defense.

understood your you know,

earlier

answer, you

said if --

if it is

the lawyer's

considered judgment life -- he's may have the facts

that this is the only way to save his

talked with him, et cetera -- he -- he still And I'm taking the -­

that option to concede.

one step further and saying let's assume the -­

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the client goes whole-hog in his objection.

And he stands --

up or -- or says in front of the judge and the jury, I I'm not conceding any of this. MR. GORNSTEIN:

That -- that sounds to me like a

case where there ought to be alternative counsel appointed if there has been such a -JUSTICE SOUTER: we get to that point. at I -- I would certainly agree if you

But let's the lawyer does, as

least left the door open for to represent the

him to do, and -- and he guy. The judge doesn't

does proceed

remove him and the lawyer continues to concede.

Do you -­

do you think that there is any possibility on a Strickland analysis of finding adequacy of counsel? MR. GORNSTEIN: Probably not, Justice Souter,

that you would analyze that under Strickland and you would find that that's not the reasonable performance of counsel in that circumstance. JUSTICE SOUTER: MR. GORNSTEIN: really is what I -- I -­ And so -- but the question here

do you do not in a case where there's been

an objection, because there was no objection here. JUSTICE KENNEDY: reasonableness So a substantial component of is whether or not you

under Strickland

follow the client's instructions? MR. GORNSTEIN: It is one factor that reasonable

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counsel factor.

will take into In some

account, but

it is not

the only the

situations, if you're not following

defendant's instructions, it can lead in the attorney-client

to such a breakdown you couldn't So it is

relationship that

possibly render effective assistance of counsel. going to be a factor in that respect.

But this case presents only the question of what happens when objection, it there's no makes no objection, and sense to when there's no

say that where

there's

been consultation, no objection, that

instead of allowing

the lawyer to exercise his reasonable judgment on what the best thing to do is, he instead has to that pursue is an

alternative effective. to require

reasonable And

doubt

strategy

less

the Sixth Amendment simply pursue a

can't be read strategy

counsel to

less effective

that the defendant hasn't asked for. Now, there's no perfect analogy here, but the

closest analogy is to the division of responsibilities for appeal where the defendant has the right to say whether he will appeal, but counsel the strategic judgments on appeal. right to So too has the right primarily to of what arguments will -- the make

be raised the

here, the

defendant has

decide to

stand trial,

but client

has primary what

responsibility for making

the strategic judgment of

defenses will be raised at that trial.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 defense doubt in you.

Now, there is -- this and therefore there is a duty

is an important question, on the part of counsel to

consult with the defendant, but once that consultation has occurred, and there is no objection, and the choice that

counsel made is a reasonable,

tactical judgment under all pursuit of that strategy There consent, is and no the

the facts and circumstances, his satisfies constitutional explicit,

standards. affirmative

requirement of Florida

Supreme

Court's judgment

should,

therefore, be

reversed. If the Court has no further questions, thank

JUSTICE STEVENS: Mr. Tillinghast.

Thank you, Mr. Gornstein.

ORAL ARGUMENT OF EDWARD H. TILLINGHAST, III ON BEHALF OF THE RESPONDENT MR. TILLINGHAST: it please the Court: The issue before counsel the Court guilt today is whether beyond a a Mr. Justice Stevens, and may

can concede

reasonable

his opening and in his closing statements in the We

trial, particularly when the defendant is not present.

submit that the answer is no, and there's two reasons that it's no. First, we believe that it's the functional

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equivalent

of

a

guilty

plea as

found

by

the Florida

Supreme Court. Second, because the clearly an acknowledgement case, that there was a -- what was stated was so

that the State had complete

proven its of the

breakdown

adversarial process and there was no meaningful testing of the State's case. JUSTICE back sight GINSBURG: Mr. Tillinghast, may I go

to something you said? of it. You seem

Because I don't want to lose the defendant's

to suggest that

absence from

the trial should work in his favor when this The judge met

was defendant's own choice not to be there.

with him and said I want to make sure you know what you're doing. Right? Why should we count at all in the from

defendant's favor that he was -- he absented himself trial any more than we would give a fugitive

credit for

not being there? MR. TILLINGHAST: issue here is not present Justice Ginsburg, part of consent. Mr. of the

-- is the lack

Nixon was the trial.

during the entire

guilt phase of

What we would submit is that the hearing It's judge in a holding

in this case where there was was on the record. where the to the

cell -- it

part of the inquired

record before about Mr.

Your Honor -Nixon's

willingness

participate in his trial, and

he declined to go into

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courtroom,

that

refusal

to go

into

the

courtroom, we

submit, was a refusal to attend presumption that he was

the -- the hearing on the trial consistent

going to have a

with his guilty plea -- or not guilty plea -- excuse me -­ the not guilty plea that was entered. was a trial What he anticipated -- was tested and

where the State's case was

it was consistent with his not guilty plea. JUSTICE SCALIA: JUSTICE KENNEDY: to a case where That's But he -­ Well, you -- you is just I got. equate this

the defendant -- that's what your opening

accidentally not I -- I had the

present.

same problem with Ginsburg did. the courtroom. he chose to be to one in

two sentences as

Justice

You said if

the defendant is

absent from

Well, in this case, he was absent because absent. You're -- you're as if for equating this

case

which it was

some reason they

forgot to have him in the courtroom. MR. TILLINGHAST: issue here is there was not Well, the consent. -- the important of his

The lack

presence in the courtroom compounded that problem, but the important issue here and the issue before the Court is

that defense counsel conceded guilt State had proven its case client. JUSTICE SCALIA:

and conceded that the own

without the consent of his

I don't agree with your earlier

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statement that what -- what this defendant contested trial in which, you know, the

expected was a

State's evidence

is challenged, blah, blah, blah.

That's to the contrary. railroad job Go ahead wasn't

He said this whole thing is -- is just a big and that's one and do

reason I don't want to be there. want. He wasn't --

whatever you

he

expecting -- in fact, if you're -- if you're talking about is subjective expectations, that he had they would reinforce the

lawyer's

belief

no objection

to conceding one big

guilt because railroad job. MR. Honor, I

he was referring to

this as -- as

TILLINGHAST:

Well,

respectfully,

Your

would -- I would

disagree because that

what -­ that He

what we do have from Mr. he had fired his lawyer.

Nixon is he stated that -He wanted a black lawyer.

wanted a black judge, the courtroom after that

and that he didn't want to be railroaded.

go into That was had -­

because he would it had

in the newspaper his counsel had

indicated that he guilty in

pled him

his opening

statement, and he was clearly objecting to that conduct. JUSTICE SCALIA: statements about being I thought he had made those out

railroaded

before

he found

about the lawyer's concession. MR. TILLINGHAST: Actually the -you're

correct, Your Honor.

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JUSTICE SCALIA: MR.

I think that's correct. The -the railroading The

TILLINGHAST: before the

were

opening

statements. after the

objection to statement.

the newspaper

story was

opening

JUSTICE SOUTER: about what you -- what -- the

Let me ask you a question

just the

you're assuming when you make the argument to

statement -- prefaced

the effect

that there was a complete breakdown of -- of the adversary process. You're assuming, I take it, when you say that,

that the guilt phase and the penalty phase have regarded as distinct and separate phases. MR. TILLINGHAST: JUSTICE SOUTER: MR. TILLINGHAST: JUSTICE legitimate? defense Why SOUTER: Yes, Your Honor.

got to be

You're dividing it in half. Yes. Why is that -why is that

should a lawyer -- I tailors a his --

mean, I presume no his what guilt is phase

lawyer

representation happen phase. should between

without

thought to

going to

at the penalty

phase if

they get to

the penalty

And so I -- I have difficulty in saying that there be some kind of a firewall for analytical purposes guilt and penalty when -when we're in a -- a

question of Cronic or Strickland. MR. TILLINGHAST: If the Court -if the Court

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was to look at the at the guilt

totality and -- as opposed would happen

to looking be that a lower

phase, what

would

capital cases

would have -- would

end up having

standard than a non-capital case because -­ JUSTICE having lower a -SOUTER: Well, they wouldn't end up

standards. at

They -- they would end up having phase which takes into to be And

a standard

the guilt

consideration

what the lawyer

is or

is not going

able to do plausibly you know, questions, those

at -- at the sentencing may be very, very

phase.

-- those

difficult either the that

but it's hard

for me

to say that

standard is different or that we, in setting

a lawyer should -- or should pretend

down standards,

that a

lawyer somehow has to go into a state of oblivion about -­ about what's there. MR. TILLINGHAST: this was the functional The difficulty here is equivalent of a guilty -- is plea going to happen at sentencing if he gets

without consent, and -­ JUSTICE O'CONNOR: Do you Well, let me ask you this.

think that it's possible that in some instances it focus on the punishment/sentencing guilt phase if the lawyer has

is a valid strategy to phase rather than the

reviewed all

the evidence and it appears to the lawyer to Is it possible that there's a case where

be overwhelming?

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a strategy such as this might make sense? MR. TILLINGHAST: JUSTICE O'CONNOR: MR. TILLINGHAST: opening -­ JUSTICE O'CONNOR: MR. TILLINGHAST: Is that possible? Not without the consent of a Your Honor -­ Is that possible? With -- with statements in the

client with statements like this. JUSTICE O'CONNOR: something that possible I didn't Well, now you're building in you if it is in a

ask.

I'm asking

that the

better strategy

for a defendant

given case would be to focus on the sentencing rather than the guilt phase based on an evaluation by the attorney of

the evidence. MR. TILLINGHAST: JUSTICE KENNEDY: There could be circumstances. I don't know why you're so -­ Law Review Trial I -- I to

I thought that the literature was replete with articles saying judges don't that this is the

best strategy. best strategy.

have told us quite

this is the

understand your

hesitation

unless it's

build in this -- this factor of consent. MR. TILLINGHAST: JUSTICE KENNEDY: Well, it is the -­ I -I thought this -- this

was something you'd say, well, of course. MR. TILLINGHAST: It -- it is the factor of the

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consent. the -­

In -- in this

case, in the

opening statement,

JUSTICE KENNEDY:

Well, but what --

what about

the basic question, that as a matter of trial strategy, it is a recognized, acceptable, sometimes prudent, sometimes

wise strategy to concentrate on a sentencing phase? MR. TILLINGHAST: JUSTICE SCALIA: In the general sense, yes. And there's no difference the even is

between a capital case and intelligence of that when there is not

a regular case insofar as concerned because penalty phase,

strategy is a separate

it

sometimes in the interest of the throw

defendant to, in effect,

himself on the mercy of the sentencer, whether that by -- by not contesting the the acts charged. --

is the jury or the judge, the fact that

-- that he did

That -­

that occurs not just in capital case cases. MR. TILLINGHAST: distinction here is --

but in -- in regular

Well, Justice,

the

--

the

is it -- it

wasn't a strategy to

not contest the

State's case.

What it -- what it was was

it was a complete concession in opening statement that the State would prove its case beyond a reasonable doubt. JUSTICE GINSBURG: the opening and in closing, he did it, but I want you Not entirely because both in jury,

the lawyer said to the to know from

my very opening

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that this

case is

about life

or death, make.

and that's

the

ultimate decision you will have to his opening and a case he said it of

He said that in It wasn't now the He told decision

in his

closing. did

simply

saying, my

client

and

prosecutor is the jury,

going to go through want you to to make

the motions. is the

what I

focus on

you're going

to have

whether, in

the counsel's

words, to spare his life. MR. TILLINGHAST: issue here is that he did it. Well, Justice Ginsburg, the

did that

and he went

beyond just

saying that he

He said that the State has proven and arson,

its case beyond a

reasonable doubt for murder That's -­ Well, you

and he did it without consent. JUSTICE consent. At GINSBURG:

say

without

least as -- the record that we have suggests this is what the lawyer planned

that the client was told to do and said nothing. Justice

Scalia asked a When

question when the prior and

argument was ongoing. he doesn't say no, mustn't the lawyer Because if require a

a client doesn't say yes

to take the words of

a familiar song, best to do? going to

then do what he thinks is I'm going to I'm

he says, okay,

-- I'm

full-stop trial,

going to

cross examine The client

every witness, didn't tell

he may be damaging his client.

him not to do that any

more than he told him

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to

do

it.

So mustn't

the

lawyer

in

that situation

exercise his best judgment? MR. TILLINGHAST: case, because that it I would submit that in this

is the functional

equivalent of a and

guilty plea, and as this under Brookhart that

Court has held under Boykin

you must have voluntary

and willing

and knowing consent -­ JUSTICE O'CONNOR: not correct, that it There was some Well, what if we think that's the equivalent of a guilty some

is not

plea?

cross examination.

There was

participation.

So if we don't accept your statement that what standard do we the failure to

it is the functional equivalent, then employ for the tacit consent or

affirmatively respond? MR. TILLINGHAST: if you're -if the Well, Justice O'Connor, if -­ view it as not the could

Court as

was to

functional equivalent,

you've

suggested,

you

affirm based upon the nature of the statements and finding that there was a complete failure under Cronic. And -- and with respect to the trial, there were -there were 35 witnesses called by the State. There

were five what asked on cross.

I would submit were

perfunctory questions

JUSTICE

O'CONNOR:

Well,

you said

we

could was

affirm if we applied Cronic,

but I thought the issue

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whether

perhaps

Strickland

applied, and

if

Strickland

applies, I wouldn't think we'd be affirming necessarily.
MR. TILLINGHAST: Well, Strickland is -- is record

respectfully not before the Court. below was strictly on -­ JUSTICE O'CONNOR: which standard applies I

It was -- the

Well, the

-- the question of before the Court.

thought was

Was it correct for the Florida Supreme Court to employ the Cronic standard or should it have reviewed it under

Strickland?

Is that not before us? Yes.

Is that not -­

MR. TILLINGHAST: JUSTICE O'CONNOR: MR. TILLINGHAST: JUSTICE O'CONNOR: JUSTICE BREYER: Boykin and --

-- one of the questions? Yes. Okay. Thank you. that Boykin and --

I thought

and Brookhart were about The language, lifted

really a somewhat

different matter. a guilty

functional equivalent of Boykin and what a

plea, is

from Brookhart.

Brookhart are lawyer does. the

about what a judge In Boykin, Court said

does, not about

the judge accepted you can't do

the guilty the

plea, and

it without

express consent

of the defendant.

In Brookhart, it was a procedure, called the

judge who accepted -- now, and it was that

here it was an odd that the Court plea. And

procedure

functional equivalent of

a guilty

therefore,

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we're talking We're talking arises to the

about what a judge can do. about what a lawyer can

Here we're not. do and when So it I

level of improper

lack of counsel.

don't think they govern it. Rather, I this -that the thought -and I want your view on v.

most relevant

case was

really Roe

Flores, you thing.

know, where -- where appeal.

the lawyer did

a weird a

He didn't file an

And here he's doing

little odd thing.

So what we

said there is you

have to

consult, which is just what the Government is saying here. I'm exposing that thought process to you to get your

reaction. MR. TILLINGHAST: I -- I think, first, under -­ been held by this Court that only the that

under Jones v. Barnes, it's there are three

fundamental things

client

can do, one of which is to plead guilty.

And in -- in the

Roe case, the -- the record below was -- was unclear as to what happened as to whether there was a duty for the

attorney to file an appeal and what the conversations were or were not with -- with the defendant. But we would submit is something very that -- that a that guilty plea to the

special because

it goes

heart of the case. JUSTICE BREYER: the words -- a This is not a is something guilty plea and accepted by a

guilty plea

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judge and

the judge didn't.

But I

grant you it's a very I wonder

odd situation

and very special, way to --

and that's why what kind of

what the appropriate there ought to not sure why be. it

requirement I'm of

Maybe there should be something. should rise above the level

consultation since

you know, better than I,

you can have

some awfully difficult clients who are virtually incapable of understanding that's have to what's in their interests. And -- and

why I'm awfully reluctant consult with your client.

to go beyond saying you You start insisting on

an answer, and you don't know what they're going to say. MR. TILLINGHAST: did have alternatives. Well, the -- the lawyer here

He --

he could have put the State

to its burden and consistent with the not guilty plea that was entered in the case. Or as on the an alternative, record of there the

could have been judge

an inquiry

-- by

with the lawyers of Mr.

Nixon to determine whether -- this sort of -- the --

or not he

was consenting to this

opening statements which were

and the closing

statements, which the

extraordinary, -- and that in

particularly the closing State

closing

statement

because said

statement, he beyond a

specifically

the

did prove

reasonable doubt that each and every element of the crimes charged, first robbery, and degree, arson, premeditated murder, been kidnapping, is truly

had

proven, which

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extraordinary.

Here is a

situation where the lawyer

who

is the only person in the courtroom, because Mr. Nixon was tried in absentia, who -- the only person in the courtroom who was there as the trusted advisor and counselor for Mr. Nixon, stands up in front of the jury in the opening and

the closing and concedes guilt I would submit that

beyond a reasonable doubt. that, the -- the whole

upon doing

adversarial process breaks down because it -­ JUSTICE GINSBURG: Why? When -- when his object He knows the evidence is the extent that he can,

is to spare this person's life. very strong. He wants, to

insulate the penalty phase from that's coming out at the trial. to come out at the situation where the the determination

all that damning evidence So he wants the evidence in a

trial, but he doesn't want to be jury has heard the defendant and then have

resist

that he did it

to plead

for his life after. MR. TILLINGHAST: The difficulty, again -- it

comes back to the lack of consent. would be different. JUSTICE GINSBURG: I'm not case, in no. sure I understand

Had he had consent, it

Well, my problem your answer

-- and I -­ In this

to it.

fact the client didn't say yes and he didn't say lawyer is to assume, well, then

So if the -- if the

since I don't have a positive, explicit yes, I will assume

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the answer is no, even though that is against the lawyer's best interest -- the -- the lawyer's best judgment, why is he an effective counsel if he assumes the answer is no? MR. capital would TILLINGHAST: In -- in -- particularly in a and all courts would there --

case, what is a

this Court

want

reliable

record where

had been Nixon, as

testing. here,

When you have a

situation where Mr. so Mr. Corin

said nothing, so

the --

didn't know would

whether there submit

was consent

or lack

of consent, we is, as I

that what should

have happened

said -­ not

suggested before, he shouldn't

have -- he could have

contested certain things, but the admission on the -- what I submit consent on -­ JUSTICE SCALIA: problem. strategy. According to the Well, that -- but that's not a good is an admission and a plea of guilty He could without

was where the

problem was.

have gone

lower courts, that was a

I don't know why you want counsel, when -- when say, gee, I -- you know, or disapproved, I

the client doesn't answer, to don't know going to him whether he

has approved

I'm

have to take the

course that will

probably get

executed because I

-- I haven't

received an answer. the lawyer?

Why would you force that If the lawyer as --

course on the -- on

believes that the silence

implies consent,

as silence usually does, why

not let the lawyer do

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what's in the client's best interest? MR. TILLINGHAST: of having an inquiry with He had the alternative Mr. Nixon, with the of -­ court

determine whether or not -­ JUSTICE SCALIA: And Nixon -- okay. You have

the inquiry and Nixon just stands there, the same, doesn't say a thing, assuming you could get him into the

courtroom, you know, assuming he had put his clothes on so you could bring him into the courtroom. He just -he

just sits there. MR. TILLINGHAST: JUSTICE SCALIA: Well -­ And -- and you say, well, since

we don't have an answer, we have to take the course that's going to get this guy executed. That doesn't seem to me

to make much sense. MR. that TILLINGHAST: nature I would respectfully submit closing, the extreme

given the

of the in --

opening and

words that

were used,

in that

kind of a

situation, that is a decision that the client should make. This is not a decision that is a normal strategy decision

that a lawyer would normally make, such as which witnesses to -- to call, aside from the defendant himself, the order of the witnesses, This is a very -­ JUSTICE SOUTER: No. No, but I don't think and -- and types of cross examination.

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you're getting to -- at -- at what bothers us. saying that problem is the client should not

Nobody is The

make a decision.

that the client won't make a decision, and the if he had made what the the decision to allow the a

client acts as lawyer to do

lawyer proposes.

This isn't

question of whether he should be heard or not, but what -­ what to make of the behavior. And you're saying when -­

when the behavior appears to be acquiescence from silence, you nonetheless -- the lawyer is, nonetheless, obligated

to take the course which is coming closest to guaranteeing that he will receive the death penalty. bothering us. MR. TILLINGHAST: The -in -in this And that's what's

situation, it's

-- it's the nature

of what was

said and no

his lack of presence in affirmative defense. the Florida or Supreme not

the courtroom where there was

And in -- in the record below where Court sent it down to determine was no

whether

there

was

consent,

there

acquiescence. asked --

Mr. Nixon simply did nothing. Corin testified the trial and

When -- when about Mr.

when Mr.

was asked

whether he discussed Nixon agreed or

strategy and whether

disagreed, Mr. Nixon simply

did nothing.

He -- he didn't acquiesce to the strategy. JUSTICE STEVENS: Mr. Tillinghast, can I ask you

if you are familiar with the Loeb/Leopold trial many, many

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years ago

that

was conducted

by

Clarence Darrow?

If

you're not, I won't push you on it. MR. TILLINGHAST: Honor. JUSTICE exactly this In STEVENS: and Because it was he one -of he applied his great ago. Unfortunately, I'm not, Your

strategy -- in

victories. But that

fact, it's a

long, long time

was the way Clarence the -- and

Darrow sized up

this very were

problem, and

I think in

that case they

very young clients that he had.

They didn't -- they were But

not -- they did not expressly consent to what he did. he saved their lives. MR. TILLINGHAST: what we believe was a failure -- excuse me. submit is Well, if -besides the

--

fundamental -- what was a

complete

Aside from the guilty plea, what we

a guilty plea, we believe that when these kinds Honor, without the consent, envisioned in Cronic

of statements were made, Your that the advocacy system

that was

completely failed. JUSTICE GINSBURG: I asked the other your argument, side? May I ask you a question that we don't accept

And that is, if

if we think when the client is silent, the

lawyer must exercise his best judgment and not assume that the client would give an answer that would jeopardize client's position, if that's the the

position that this Court

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adopts, what would you say is left over for remand? simply that the Florida Supreme Court then

Is it

takes the whether

record as it

is and

determines under Strickland

there was effective -- ineffective performance? MR. TILLINGHAST: JUSTICE GINSBURG: be all. So what do we do with, in the brief, all this The -- yes, Your Honor. That would be -that would

information about things that the by way of cross examination?

lawyer should have done wasn't put in the

That

record earlier -­ MR. TILLINGHAST: When I say yes, the -what

would -- what would be left is an entire hearing on the -­ on the Strickland claims and the motion to vacate. That

-- that would be the remaining part of the case -­ JUSTICE SOUTER: Why -- why do we need a hearing Tell me why. the hearings Supreme

rather than an examination of the record? MR. TILLINGHAST: Because

the --

below, when it was sent Court, consent

back down by the Florida

were only on the issue of whether or not there was to -- to the -what the Florida Supreme Court guilty plea.

deemed to be There was

the functional equivalent of a

not a hearing on the balance of the issues, and

it was strictly limited to that. JUSTICE SCALIA: Hadn't there been a hearing on

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those issues on the way up? MR. TILLINGHAST: JUSTICE SCALIA: MR. TILLINGHAST: JUSTICE SCALIA: MR. Judge Hall. No. No? No. Wasn't -­ It was actually denied by

TILLINGHAST:

So the

only thing that's -- that's

occurred

is the hearing strictly on whether or not there was -- was consent. JUSTICE trial court? GINSBURG: Why was it denied in the

Why was the introduction of what the lawyer

might have done -­ MR. TILLINGHAST: It was -- it was because of

the focus of the Florida Supreme Court on -- on whether or not there was a consent. JUSTICE SCALIA: JUSTICE SOUTER: trial court. JUSTICE SCALIA: We're talking below on the way No. No. We're talking below. We're talking about the

up to the Florida Supreme Court. raised below the issue of

I assume that -- that he performance of

inadequate

counsel and he evidence

had his opportunity to on that subject on

introduce whatever the way up to the

he had

Florida Supreme Court. MR. TILLINGHAST: He -­

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JUSTICE SCALIA:

I don't

know why the

Florida to

Supreme Court should be obliged

to remand it in order

give him a second bite at the apple. MR. TILLINGHAST: It was raised but -- but he

was not given an opportunity for a hearing on that. JUSTICE opportunity? MR. TILLINGHAST: JUSTICE look, we're one issue? MR. TILLINGHAST: JUSTICE SOUTER: MR. Yes. Okay. So, in conclusion, Your SOUTER: Yes. Did the -- did the judge say, SOUTER: Well, was he denied the

-- we're going to confine it strictly to this

TILLINGHAST:

submit that there are two -- two approaches to Florida Supreme Court. First is -- is that plea without

affirming the

it was the functional equivalent of a guilty consent. The second it

is that because of the nature of the complete failure of the advocacy

statements,

was a

process where

the State's case was not tested in any way. there were 35 witnesses. asked such as There what

In fact, as I mentioned, were five very date was

perfunctory questions

it and when did certain things occur. testing of the is -- is

There was the

not the material truth, which

record to determine involved in the

is what

Sixth

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Amendment. And none of -- none of the challenges, that are in our brief ever came out Simply we have an

pointed out in -- to the facts because that there was

no testing.

opening statement where counsel says beyond a reasonable doubt that

the State will prove occurred. no

these events

Then we have virtually no

cross examination.

We have

witnesses called by the State -- excuse me -- by -- by the defendant throughout the entire guilt And in fact, at one point, phase of the trial.

the -- the trial judge stopped

asking -- asking Mr. Corin if he wished to cross examine. And then we have the closing statement where Mr. Corin stated that the State has proven beyond a reasonable doubt that -crimes. And all the Nixon was not present while during that guilt in the courtroom. So phase, Mr. he had no that he is -Mr. Nixon was guilty of the

ability to object to the opening or the closing statements because he wasn't here -- there to hear them. And further, of -as -of Mr. as the record indicates, that

there are issues

Nixon's competency,

he's mentally retarded. nuts.

His own lawyer referred to him as referred to him as an ogre in

His own lawyer also

his closing argument. we would submit,

These are the types of -even if they

statements, not the

are

are

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functional equivalent they -- they

of a

guilty plea and

without consent, the

substantially So

completely destroy testing,

advocacy

process.

there

is no

and under

Cronic, the Court should affirm also. Thank you. JUSTICE STEVENS: Thank you, Mr. Tillinghast.

Mr. Lemieux, you have about 4 minutes left. REBUTTAL ARGUMENT OF GEORGE S. LEMIEUX ON BEHALF OF THE PETITIONER MR. LEMIEUX: I'd like joint appendix Thank you, Justice Stevens.

to point this Court to page 486 of the asked, do you feel in had to And he post­ of his

where Mr. Corin is

this case that you were put in a position that you make decisions said, yes, because your client There is did nothing? in the

sir.

ample evidence

trial proceedings client. He did

that Mr. Corin

wanted the help

not want to be on the

bridge of the ship And although he on this

alone, but consulted

Mr. Nixon abandoned the ship. with his client at least

three times

trial strategy, given

there was no

input back that

would have did not Mr.

him any reason to

to believe

that Mr. Nixon a

want him Corin, in

go forward

to pursue

strategy that

his experience of 14

years as a

lawyer, after in

having taken 52 depositions in this case, believed was the best interest of his client.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 point of this

I just have a couple of points I'd like to make. There was a question that the -was asked about whether or not

the guilt phase and the penalty phase are distinct trial. This Court has addressed that in the

parts of a Monj v.

California case when it said that it's really one

trial and that issues of guilt and innocence are often, in a capital trial, still being determined in the penalty

phase of that matter. I'd counsel made Florida also about like to Cronic. did, a mention the point that the the this this

Counsel would to apply

ask, as to in

Supreme

Court is

Cronic exists

situation. jurisprudence

There

harmony that

between Strickland

and Cronic.

Issues of and

trial performance and trial

strategy are articulated

evaluated under Strickland's two-part standard. of structural defects that infect the process

Questions with error

are evaluated under Cronic. system. counsel It to allows for the pursue

And that harmony works in the independence and vitality in their clients' of

strategies

best

interests and defects, for

it also them

allows when be taken

there are care of

structural with the

to

presumption. JUSTICE SCALIA: whether there to Are you going to get to the for

was, indeed,

an opportunity about

defendant

introduce evidence

inadequate

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performance of counsel? MR. LEMIEUX: get to that right three Yes, I am, Your Honor, was in and I'll

now.

There

ample opportunity. fact, there was

There were

hearings.

And

disagreement between the sides as was this

to whether or not there We don't

opportunity for a Strickland hearing.

have Strickland hearings -­ JUSTICE SOUTER: What -- what did the judge -­

what did judge say? I won't hear this. MR. Court to

Your brother said the judge said, no,

LEMIEUX:

Your

Honor,

I would

point the Judge

pages 385

to 390

of the

appendix where

Smith denies the Strickland claim. The ineffective defense has of the burden of proving first

assistance

counsel.

During

the

hearing, there was an issue as to whether or not it was an ineffective counsel hearing because it was still on direct appeal. But certainly in hearings two and three, there

was ample opportunity to put that evidence and they didn't take that opportunity.

on the record,

Now, they quibbled

and said they didn't have notice and they didn't know that they We were supposed to that be here for because a Strickland hearing. Strickland

disagree with

there aren't

hearings, there are not Cronic hearings. JUSTICE STEVENS: Why should -- why should they

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put in Strickland evidence if they've won under Cronic? MR. LEMIEUX: Cronic, Your Honor. Well, They they had not yet won were still making under those

arguments. JUSTICE STEVENS: I thought it was remanded for

an issue -- for a hearing on the consent issue after -­ MR. LEMIEUX: This is -there was a hearing

before that and a hearing after that. JUSTICE STEVENS: MR. believe that LEMIEUX: In I see. conclusion, Your Honor, we

the harmony between these two lines of cases Florida Supreme Court got it wrong, and

works, that the

for that reason, we would request reversal. Thank you. JUSTICE STEVENS: Thank you.

The case is submitted. (Whereupon, at 10:58 a.m., the case in the

above-entitled matter was submitted.)

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