Archie D. Wright v. W. J. Estelle, Jr., Director, Texas Department of Corrections

THORNBERRY, CLARK, RONEY, GEE and HILL, Circuit Judges,

specially concurring.

While we agree with the result reached by the majority in this case, we must respectfully disagree with the majority’s reasoning. We believe that the court is here faced foursquare with a constitutional question and, with all deference, we think the court does a disservice in merely assuming for sake of argument the existence of a personal constitutional right to testify and then declaring that in this case any denial of that right is harmless error. Wright v. Estelle, 549 F.2d 971, 974 (5 Cir. 1977).

This court’s reasoning offers little or no guidance to the bench and bar. One of our most important duties is to define the law so that litigants, lawyers, and trial judges can proceed with some degree of certainty.1 A trial judge must know whether a defendant has personal control over his right to testify; it is little solace for the judge to know that even though he may have violated the defendant’s personal right to testify, the error may be harmless.2 Moreover, the many conscientious court-appointed attorneys of this circuit deserve to have this question settled so that they might go about their business without the fear of violating a defendant’s constitutional right.

The real question in this case is not whether the right to testify is a personal or a fundamental right; rather, it involves the proper allocation of authority between the *1073attorney and his client. The defendant, of course, has the authority in the first instance to accept or reject court-appointed representation. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d .562 (1975). If he decides to accept an attorney, the defendant has necessarily delegated important decisionmaking authority to his attorney. The scope of the delegation does not turn on the importance of the decision — the attorney frequently makes judgments affecting the very life of the defendant. The question here is twofold: who is in a better position to judge trial strategy and who is in a better position to ensure the best interests of the defendant.3 This court’s history is filled with the recognition of the value of an attorney. No one could seriously contend that a defendant is in a better position to dictate trial strategy than his attorney. Moreover, a court-appointed attorney owes a duty to society to see that his client is given the best possible defense within the law. No attorney could discharge this duty if he must yield to the personal demands of his client.

In the case at bar, when Wright advised his attorney that he would testify, his attorney owed him a duty to evaluate that choice and assist his client with proper advice. Trial attorneys are professional artisans working in a highly competitive arena that requires all the skills which education, training, and experience have given them. Criminal defendants are entitled to no less. A defendant has a right to necessary surgery, but he does not have the right to require the surgeon to perform an operation contrary to accepted medical practice. If, despite his counsel’s advice, a defendant continues to believe that his testimony is more important than the continued services of an attorney who insists he should not take the stand, the conflict must be resolved by the court. Only in this way may the right to testify be reconciled with the right to effective assistance of counsel.

Judge Godbold’s dissent would brand counsel here as ineffective for failure to inform Wright that he had a right to testify and for failure to tell him that the court would have to resolve any impasse. . This position assumes that Wright considered his attorney’s response to his request to take the stand as a threat by the attorney to leave Wright defenseless. Such an assumption is unwarranted. In the first place, the dialogue between Wright and his attorney implicitly assumed that Wright could make the final choice to testify. It also clearly told Wright that his lawyer was the sort who put professional duty ahead of expediency. Most significantly, however, there is nothing in the exchange between lawyer and client which would support a finding that counsel was threatening to leave Wright defenseless or that Wright assumed insistence on testifying would forfeit his right to any counsel. Rather than assuming these possibilities and condemning the lawyer, we should commend counsel’s candor. If any assumption is made, it should be that the attorney’s advice was in the proper discharge of his duty to provide effective counsel and was so accepted by Wright.

While Faretta allows a defendant to have a fool for a client, 422 U.S. at 852, 95 S.Ct. 2525 (Blackmun, J., dissenting), there is nothing in its logic that commands that the defendant may also have a fool for an attorney. We would affirm the panel on the ground that the decision whether to testify is properly allocated to the defendant’s attorney and not to the defendant.4 An at*1074torney is not necessarily ineffective if he determines not to allow his client to testify, even though he should give great deference to a defendant’s desire to testify, however, we are here concerned with constitutional requirements and there is no constitutional requirement that a court-appointed attorney must walk his client to the electric chair.

. The harmless error rule obviously applies, for example, in cases in which evidence was erroneously admitted. In that context the Federal Rules of Evidence operate as a broad policy framework and as a guide for trial judges. In the case at bar, however, the court is being asked to fashion a constitutional standard, and in our view application of the harmless error rule is nothing more than abdication of our responsibility.

Moreover, the court gives Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) little more than judicial lipservice by applying the “clearly guilty” rule without articulating the reasons therefor. To say that the defendant’s testimony “would not have altered the verdict” is to say nothing more than the defendant was clearly guilty. Surely Chapman requires more analysis than this. As we understand Chapman, the court should not determine whether the defendant is guilty beyond a reasonable doubt but whether the defendant would have been convicted had the error not been made.

. The same cannot be said for the decision to plead guilty or not guilty — a decision that goes to the very existence of a trial. To deny the defendant control over this decision could be tantamount to denying the defendant a trial. Here, of course, there is a trial and the decision made by the attorney goes merely to strategy. The decision to waive a defendant’s right to testify is viewed as a part of trial tactics in more than a dozen decisions. Comment, Due Process v. Defense Counsel’s Unilateral Waiver of the Defendant’s Right to Testify, 3 Hastings Const.L.Q. 517, 529 (1976).

. In United States v. Wayman, 510 F.2d 1020, 1026 (5 Cir. 1975), an attorney representing co-defendants refused to allow one of the defendants to testify. In reviewing this decision, we said:

We are unwilling to conclude that Mr. Auld’s [the attorney] alleged refusal to let Moore *1074[the defendant] testify on his own behalf was the result of a conflict of interest and was prejudicial to him.