Haynes v. Cain

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-31012

BRANDON HAYNES,
Petitioner-Appellee,

versus

BURL CAIN, Warden, Louisiana
State Penitentiary,
Respondent-Appellant.

Appeal from the United States District Court
for the Western District of Louisiana

November 27, 2001

Before POLITZ and EMILIO M. GARZA, Circuit Judges, and KAZEN,* Chief District
Judge.

POLITZ, Circuit Judge:

Burl Cain, as warden of the Louisiana State Penitentiary appeals the district

court’s grant of a writ of habeas corpus to Brandon Haynes. For the reasons assigned

*
Chief District Judge of the Southern District of Texas, sitting by designation.
we affirm.

BACKGROUND

Haynes was convicted of first degree murder for causing the death of a graduate

medical student in 1993. The evidence adduced at trial disclosed that the victim had

been last seen late at night working in a research laboratory. The next morning her

body was found at the foot of an adjacent 10 story biomedical research building, then

under construction. The medical examiner ruled that she died from injuries resulting

from the fall. The autopsy disclosed that in addition to the death-dealing injuries the

victim had several non-fatal cuts which the medical examiner believed were likely

intended to cause torture or compliance, some bruising around her arm, and semen

residue in her vagina and rectum.

The evidence pointing to Haynes’ involvement in the abduction and death of the

student was substantial. Haynes was part of the construction crew working on the

biomedical research building. Although he had gone home after completing his shift,

eyewitness testimony established that he had returned to the building later that evening.

Video surveillance cameras in the biomedical research building recorded him on the

upper floors of the building and taped him climbing up to unplug the cameras. DNA

analysis established that it was his semen found in the victim. The victim’s wallet was

found secreted in a wall in his home. A knife that could have caused the cuts on the

2
victim was found in his car, as were blood stains matching the victim. Similar blood

stains were found on his pants.

The State brought first degree murder charges against Haynes, contending that

he abducted, raped, robbed, and tortured the victim before he either threw her or forced

her off the roof. Haynes pleaded not guilty and consistently maintained his innocence.1

Haynes was assigned two experienced public defenders. In their judgment the

evidence against Haynes would result in his conviction. They decided that the best trial

strategy would be to acknowledge that Haynes did abduct, rob, rape and torture the

deceased student, but that the State could not prove that he caused or otherwise

intended for her to fall from the building. Absent that element Haynes could only be

found guilty of second degree felony murder and could not be given a death sentence.

In their opening statement counsel for Haynes stated:

The evidence will show that the victim, Fang Yang, died during the
commission of a felony. It will not show that Brandon Haynes
specifically intended to kill her. It will not show that he even caused her
death. In essence, the evidence will show that Brandon Haynes is guilty
of second degree murder. Nothing more. We are not going to say
anything less, just that, second degree murder.

We are not going to contest that Brandon Haynes raped the victim.
It was a terrible thing he did, but he did it. We are not going to contest

1
Haynes did not deny that he was with the victim that evening or that they had
sexual relations. Rather, he denies that the events transpired in the manner described
by the prosecution.
3
 that. Likewise we are not going to contest the fact that he abducted her
first and brought her up to the roof. We are not contesting that. We are
not going to contest the fact that at some point he possibly robbed her.

Counsel then told the jury that the only issue in the case was whether Haynes

intended to cause the woman’s death, and that absent such proof they could not

convict him of first degree murder. Counsel concluded by saying “[The evidence] is

enough for second degree murder and that’s what we are going to ask you to do at the

end of the trial, come back with a verdict of second degree murder, no more, no less.”

At the conclusion of defense counsel’s opening statement Haynes told the trial

judge that he wanted to address the court. The judge sent the jurors out, and Haynes’

counsel stated that anything Haynes said was against the advice of counsel. Haynes

then declared:

I don’t agree with what these lawyers are doing, talking about I’m guilty
of second degree murder. I’m not guilty of second degree or first degree.
If that is the way they are going to represent me, they need to just jump
over there with the D.A.’s. They ain’t representing me. Telling jurors
that I’m guilty of second degree murder ain’t trying to represent me in no
kind of way. I disagree with what they are doing.

Haynes’ counsel responded that in their judgment the evidence precluded hope

of a not-guilty verdict and that this approach was in his best interest. Haynes told the

judge that he had previously complained of their trial strategy and had requested that

they not represent him. He repeated that request. He also stated “I specifically asked

4
my lawyers not to do what they – they said they were going to do this second degree

junk. I don’t like that. I mean, I’m not guilty. I don’t feel I’m guilty of second degree

or first degree and I don’t agree with them.”

The trial judge stated that Haynes was being represented by excellent lawyers

and his request for different lawyers was denied. When Haynes protested that he was

“stuck” with the appointed counsel and with their trial strategy, the judge stated that

Haynes could testify at the appointed time if he desired to. He thereupon brought the

jury back in and resumed the trial.

Haynes did not testify, and in closing argument Haynes’ counsel returned to the

strategy established in the opening statement, saying:

In our opening, I said pay close attention not only to what all the evidence
is going to show. I said there would be only one issue and only one issue;
that is, intent to kill. Look at all the evidence. . . . It proves a lot of
things. It proves a lot of things we didn’t contest. It proves he
intentionally raped her. It proves he intentionally cut her. Did I say
otherwise? I conceded that. It proves that he abducted and possibly
robbed her. He did take the wallet; we don’t know when. We did not
contest that. We did not cross examine any witness regarding the source
of semen. The only issue we are contesting is whether or not Mr. Haynes
intentionally killed the victim, Fang Yang. That is it. It is the only issue.

The jury found Haynes guilty of first degree murder but could not agree on the

punishment, and under Louisiana law the trial judge sentenced Haynes to life without

possibility of parole. Haynes filed a pro se brief in his direct appeal contending that

5
his counsel had been ineffective by conceding his guilt on the underlying felonies. The

state court of appeals affirmed his conviction. Haynes’ counsel filed for writs of review

in the Louisiana Supreme Court, which were denied; however, Haynes did not file any

pro se brief in that effort and his ineffective assistance claim was not reviewed by that

court.

Haynes then filed applications for post-conviction collateral relief in state court,

again raising the ineffective assistance claim. Finding that the trial strategy employed

by Haynes’ counsel was a well-considered effort to avoid a death sentence, the state

court denied his application. After a premature federal application, Haynes sought a

writ from the Louisiana Supreme Court which considered his ineffective assistance

claim for the first time and denied same. Haynes then refiled in the court a quo.

The district court referred Haynes’ writ application to a magistrate judge who

filed a report recommending that it be denied. In his report the magistrate judge

reviewed the state court opinions, which had examined Haynes’ assertion using the

two-pronged test established in Strickland v. Washington2 for determining whether

counsel was ineffective, and found that those opinions were not an unreasonable

application of the Strickland standard.3

2
466 U.S. 668 (1984).
3
Citing Kitchen v. Johnson, 190 F.3d 698 (5th Cir. 1999).
6
 The district court rejected the recommendation of the magistrate judge, finding

that the state courts and the magistrate judge used the wrong standard in evaluating

Haynes’ claim. According to the district judge, the actions of Haynes’ counsel in

conceding partial guilt over Haynes’ express objection resulted in the constructive

denial of counsel, causing per se prejudice under the standard set forth in U.S. v.

Cronic.4 The district judge then granted Haynes a conditional writ of habeas corpus,

stating that he is to be freed unless the State, within 180 days, initiates a new

prosecution. That order was stayed pending the instant appeal.

ANALYSIS

We are presented with the typical question faced in considering an ineffective

assistance claim, i.e., whether the applicant must establish both prongs of the test set

forth in Strickland, or whether the second “prejudice” prong is presumed under the

exception set forth in Cronic. This is a mixed question of fact and law that we review

de novo.5 Where, as here, the claim has been reviewed on the merits and denied by the

state courts, we will grant the application only where “the state court’s conclusions

involved an unreasonable application of clearly established federal law as determined

4
466 U.S. 648 (1984) (issued the same day as the Strickland opinion).
5
Childress v. Johnson, 103 F.3d 1221 (5th Cir. 1997).
7
by the Supreme Court.”6

In Strickland the Supreme Court established the test that is generally to be

applied in evaluating an ineffective assistance of counsel claim; namely, whether the

applicant has established that (1) the performance of counsel was deficient, and (2) the

deficient performance resulted in prejudice to the applicant.7 In Cronic, however, the

Court opined that there are some circumstances where the absence, actions, or

inactions of counsel compromise the very reliability of the trial process. In such

circumstances prejudice to the applicant is presumed because the defendant’s sixth

amendment right to counsel is actually or constructively denied.8 Since issuance of the

Strickland and Cronic opinions we have had numerous opportunities to address their

teachings and to seek to define their contours, and have reached the conclusion that

the Cronic constructive denial exception is very narrow and is rarely applicable.9

The sixth amendment right to effective assistance of counsel derives from the

6
Jones v. Jones, 163 F.3d 285, 299 (5th Cir. 1998) (quoting Nobles v. Johnson,
127 F.3d 409, 418 (5th Cir. 1997)).
7
Strickland, 466 U.S. at 687.
8
Cronic, 466 U.S. at 658-60.
9
See, e.g., Gochicoa v. Johnson, 238 F.3d 278 (5th Cir. 2000); Jackson v. Johnson,
150 F.3d 520 (5th Cir. 1998); and Childress, 103 F.3d at 1229 (“The federal courts of
appeal, including this one, have repeatedly emphasized that constructive denial of
counsel as described in Cronic affords only a narrow exception to the requirement that
prejudice be proved.”).
8
defendant’s fundamental right to a fair trial,10 a goal best achieved by ensuring that the

process involves vigorous partisan advocacy by both sides.11 As the Cronic court

pointed out, “[T]he adversarial process protected by the Sixth Amendment requires that

the accused have ‘counsel acting in the role of advocate.’ The right to the effective

assistance of counsel is thus the right of the accused to require the prosecution’s case

to survive the crucible of meaningful adversarial testing.”12 The question before us is

whether, by explicitly conceding his guilt on the underlying felonies from the beginning

of the case, by not contesting the prosecution’s evidence on those felonies, and by

urging the jury to find him guilty of nothing less than second degree murder, counsel

“fail[ed] to subject the prosecution’s case to meaningful adversarial testing.”13

10
Strickland, 466 U.S. at 684. See also Pratt v. Cain, 142 F.3d 226 (5th Cir. 1998).
11
Cronic, 466 U.S. at 655 (quoting Herring v. New York, 422 U.S. 853 (1975)).
12
Id. at 656 (quoting Anders v. California, 386 U.S. 738 (1967)).
13
Cronic, 466 U.S. at 659 (describing circumstances where the actions of defense
counsel result in making the adversary process itself unreliable; thus, prejudice against
the accused is presumed). In his briefs, many of which were filed pro se before
appellate counsel was appointed for him, Haynes defines his claim primarily in terms
of ineffective assistance of counsel. Our analysis, in turn, focuses on that issue and we
do not herein address the broader and equally serious sixth amendment concerns that
the facts of this case raise, e.g., whether, by conceding partial guilt over Haynes’ direct
objection, counsel usurped the fundamental right of how to plead that is reserved for
the accused; or whether the trial judge, by not informing Haynes of his right to self-
representation, violated his fundamental rights as enumerated in Faretta v. California,
422 U.S. 808 (1972).
9
 Where counsel acknowledges, in closing argument, the overwhelming weight of

evidence that has been admitted against his client, even conceding his client’s guilt, we

have found that such an acknowledgment of the obvious may be a trial tactic that does

not reach the level of ineffective assistance.14 We have also found that questions

implicating participation in illegal activities during defense counsel’s direct examination

of his own client did not result in ineffective assistance.15

Several of our sister circuits have addressed cases where counsel for the

defendant has conceded at least partial guilt in the opening statement or closing

argument, finding that such tactics do not result in per se prejudice.16 In those cases,

14
United States v. Short, 181 F.3d 620 (5th Cir. 1999) (concurring with the trial
court’s assessment that counsel’s statements in closing argument were reasonable in
light of the overwhelming evidence of guilt adduced at trial). See also Underwood v.
Clark, 939 F.2d 473, 474 (7th Cir. 1991) (“Such acknowledgment can be a sound tactic
when the evidence is indeed overwhelming (and there is no reason to suppose that any
juror doubts this) and when the count in question is a lesser count, so that there is
advantage to be gained by winning the confidence of the jury.”).
15
Pratt, 142 F.3d at 231-32.
16
See, e.g., Trice v. Ward, 196 F.3d 1151 (10th Cir. 1999) (no prejudice where
counsel conceded guilt as to a rape charge accused had confessed to); United States v.
Wilks, 46 F.3d 640 (7th Cir. 1995) (concession of guilt in opening statement was not
prejudicial where accused did not object and told court he was satisfied with the
performance of his counsel); McNeal v. Wainwright, 722 F.2d 674 (11th Cir. 1984) (no
prejudice where the accused had confessed on tape and counsel conceded guilt).
Several state cases reach the same result. See, e.g., State v. McNeill, 485 S.E.2d 284
(N.C. 1997) (no prejudice when defense stipulated to stabbing and accused agreed to
concession strategy) and People v. Johnson, 538 N.E.2d 1118 (Ill. 1989) (no prejudice
10
however, the accused had expressed prior agreement with the trial tactic of conceding

guilt, especially to a lesser charge, or had already confessed guilt. The instant case

presents no such agreement or confession. Indeed, despite the array of contrary

evidence, Haynes maintains he is innocent, not only of the murder but of the underlying

felonies as well, and he immediately and vigorously objected to the concessionary

strategy employed by his counsel in the opening statement. The Kansas Supreme Court

when faced with a case where the defendant vigorously objected to the court that he

disagreed with his defense counsel’s strategy of admitting guilt stated:

Viewing [defense counsel’s] conduct as part of a trial strategy or tactic
is to ignore the obvious. By such conduct defense counsel was betraying
the defendant by deliberately overriding his plea of not guilty. He not only
denied [the defendant] the right to conduct his defense, but, as in
Brookhart, it was the equivalent to entering a plea of guilty. . . . [Defense
counsel] had no right to conduct a defense premised on guilt over his
client’s objection. If [defense counsel] could not accept Carter’s rejection
of such a defense, then he should have either proceeded with a defense
acceptable to Carter or sought permission to withdraw as defense
counsel.17

The impact upon the adversarial process of conceding guilt over the client’s express

objection was described by the Supreme Court of North Carolina in these terms:

This Court is cognizant of situations where the evidence is so
overwhelming that a plea of guilty is the best trial strategy. However, the

when counsel conceded guilt to a crime to which the accused had confessed).
17
Kansas v. Carter, 14 P.3d 1138, 1148 (Kan. 2000).
11
 gravity of the consequences demands that the decision to plead guilty
remain in the defendant’s hands. When counsel admits his client’s guilt
without first obtaining the client’s consent, the client’s rights to a fair trial
and to put the State to the burden of proof are completely swept away.
The practical effect is the same as if counsel had entered a plea of guilty
without the client’s consent. Counsel in such situations denies the client’s
right to have the issue of guilt or innocence decided by a jury.18

Here, the facts reflect defense counsels’ considered decision to disregard

Haynes’ claim of innocence and to make no contest to any of the prosecution’s case,

other than the element of intent in the charge of first degree murder. In the opening

statement co-counsel for Haynes expressly stated “the evidence will show that Brandon

Haynes is guilty of second degree murder.” He concluded by saying, as previously

noted, that “[The evidence] is enough for second degree murder and that’s what we are

going to ask you to do at the end of the trial, come back with a verdict of second degree

murder, no more, no less.”

Counsel began by telling the jury, against Haynes’ express objection and

persistent assertion of innocence, that Haynes was guilty of all of the underlying

18
State v. Harbison, 337 S.E.2d 504, 507 (N.C. 1985) (citing Wiley v. Sowders,
647 F.2d 642 (6th Cir. 1981)). Two other jurisdictions have reached the same
conclusion based on similar facts. See Jones v. Nevada, 877 P.2d 1052, 1057 (Nev.
1994) (prejudice presumed where defense counsel improperly concedes his client’s
guilt) and New Hampshire v. Anthony Anaya, 592 A.2d 1142, 1147 (N.H. 1991)
(requirement of prejudice not necessary where counsel over defendant’s objection
admitted to a lesser-included offense and “prevented any meaningful adversarial testing
of the prosecution’s case.”).
12
felonies, each one particularly egregious, and was guilty of second degree murder.

Counsel then advised the jury that the defense would not contest the prosecution’s case

on those felonies and, at the end of the trial, would ask that they convict Haynes of

nothing less than second degree murder. We are not here presented with a case where

counsel merely acknowledges what the evidence introduced already has established,

or acknowledges up front some criminal activity that is not a fundamental part of the

prosecution’s primary charge. Rather, we have before us a case involving a conscious

decision to acknowledge underlying felonies, felonies upon which the prosecution

critically relied in asking the jury to make the inferences necessary to find Haynes

guilty of first degree murder.

Further, counsel focused their questioning of the witnesses on the single issue

they determined to challenge. As a result, although the prosecution did not rely on the

concession to second degree murder, the evidence on Haynes’ guilt as to those felonies

went completely unchallenged.19 Counsel for Haynes stated as much in closing, saying

19
The prosecution appropriately, and to its credit, noted repeatedly in its rebuttal
argument that just because Haynes’ counsel conceded his guilt to second degree murder
did not make him guilty, it was the evidence they adduced at trial that proved his guilt.
Such assertions do not and cannot alter the fact that the evidence went unchallenged
when introduced. It is impossible to determine how the defense counsels’ failure to
aggressively contest the prosecution’s evidence on those charges impacted the weight
the jury accorded that evidence, or whether counsels’ concession of guilt on those
felonies facilitated the jury’s decision to infer he also intended to kill the young lady.
13
“Look at all the evidence. . . . It proves a lot of things. It proves a lot of things we

didn’t contest. . . . We did not cross examine any witness regarding the source of

semen. The only issue we are contesting is whether or not Mr. Haynes intentionally

killed the victim, Fang Yang. That is it. It is the only issue.”

As the record makes clear, counsel appointed to represent Haynes were

experienced public defenders and trial lawyers.20 Similarly, the record reflects that

their decision to focus on avoiding a first degree murder conviction, with the

concomitant possibility of a death sentence, was a considered one borne out of their

experience. We are cognizant that defense counsel may choose this course of action

because they perceive a need to maintain credibility with the jury in their effort to avoid

a sentence of death, and out of a belief that the admissible evidence would lead to

conviction on those charges in any event. The sixth am endment does not require

counsel to invent a defense or act in an unethical manner. It does, however, require

counsel to put the prosecution’s case to the test through vigorous partisan advocacy.

“[E]ven when no theory of defense is available, if the decision to stand trial has been

made, counsel must hold the prosecution to its heavy burden of proof beyond a

20
In their colloquy with the court, counsel represented that one had been practicing
law for twelve years and the other for ten years, with each having participated in
numerous trials.
14
reasonable doubt.”21

This is not a case of a defendant simply wanting to direct his defense; it is a case

of a defendant staunchly maintaining his innocence to felonies that are the primary

foundation of the prosecution’s case, and from which spring the inferences necessary

for the jury to find guilt of the greater charge. By asking the jury to find their client

guilty of those felonies in their opening statement, counsel inappropriately lessened the

prosecution’s burden in leading the jury to make the inference he intentionally caused

the victim’s death. Absent the requisite partisan advocacy on such an integral aspect

of the prosecution’s case we cannot say that Haynes received the constitutionally

mandated fair trial.

CONCLUSION

In summary, we find that the specific facts of this case resulted in a constructive

denial of counsel, and the standard set forth in Cronic is the appropriate standard by

which Haynes’ application for a writ of habeas corpus must be analyzed. We therefore

conclude that the district court was correct in its analysis.

Accordingly, the judgment appealed is AFFIRMED.

21
Cronic, 466 U.S. at 656-57 n.19.
15
EMILIO M. GARZA, Circuit Judge, dissenting:

This case requires us to continue the process of delineating the appropriate

boundaries between the Supreme Court’s decisions in Strickland v. Washington, 466

U.S. 668 (1984) and United States v. Cronic, 466 U.S. 648 (1984). The majority

concludes that we should analyze Haynes’ ineffective assistance of counsel claim under

the standard set forth in Cronic. Under this standard, the defendant need not establish

that his attorneys’ conduct resulted in a prejudicial outcome. In reaching its conclusion,

the majority argues that the concession of certain elements of a crime is not a trial

strategy, but rather the constructive denial of counsel.

The majority opinion confuses the denial of counsel, which falls within the

province of the Cronic exception, with ineffective assistance of counsel, which we

evaluate under Strickland. Here, the defense attorneys’ concessions were an integral

part of their strategy and never resulted in either the actual or constructive denial of

representation as the majority contends. As such, the majority errs by applying the

standard set forth in Cronic to the facts of this case.

In contrast to the majority, I find based on substantial authority that defense

counsels’ concession of a lesser included offense did not result in a failure to submit

the prosecution’s case to meaningful adversarial testing. Instead, it was a tactical
decision, designed to provide Haynes with the best possible representation given the

overwhelming evidence against him. Because defense counsel did not abandon their

client by completely conceding his guilt, I would require Haynes to establish both

defective assistance of counsel and prejudice under the two-part analysis of Strickland.

The test for determining ineffective assistance of counsel under Strickland

requires, first, that the defendant establish that the counsel’s performance was deficient.

See Andrews v. Collins, 21 F.3d 612, 621 (5th Cir. 1994). When assessing whether an

attorney’s performance was deficient, the court “must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689.

If the defendant can overcome this burden, Strickland requires him or her to also

establish that the deficient performance resulted in prejudice. Id. at 687. The Supreme

Court’s decision in Cronic created a very limited exception to the application of

Strickland’s two-part test for cases in which the defendant is denied completely the

assistance of counsel. The Court held that prejudice will be presumed if the defendant

can show either that he or she (1) was actively “denied counsel at a critical stage of the

trail” or (2) was constructively denied counsel because his attorney “entirely [failed]

to subject the prosecution’s case to meaningful adversarial testing.” Cronic, 466 U.S.

at 659. While easily stated, the Cronic exception often has proven difficult to apply

-17-
(or not to apply) given the myriad of factual circumstances surrounding ineffective

assistance of counsel claims.

Previous circuit court decisions have addressed the issue of when an admission

of guilt by the defense constitutes constructive denial of counsel. Collectively, these

decisions have erected a clear framework for distinguishing between the constructive

denial of counsel and tactical concessions made by defense counsel at trial.

Constructive denial of counsel occurs in cases in which the attorney concedes the only

factual issues in dispute. In such cases, courts have applied the Cronic exception,

reasoning that the government has not been held to its burden of persuading the jury

that the defendant was guilty of the charged crime.22 When defense attorneys concede

the only factual issues in dispute, they have ceased to represent their client. This

constructive abandonment of their client produces the same types of structural defects,

as well as the extreme risk of injustice, as the actual denial of counsel.

The second group of decisions addresses those situations in which defense

counsel only admits the defendant’s guilt for lesser included offenses in order to win

22
United States v. Swanson, 943 F.2d 1070 (9th Cir. 1991) ( “A lawyer who informs
the jury that it is his view of the evidence that there is no reasonable doubt regarding
the only factual issues that are in dispute has utterly failed to subject the prosecution’s
case to meaningful adversarial testing.”); Wiley v. Sowders, 647 F.2d 642, 650-51 (6th
Cir. 1981) (decided prior to Cronic and Strickland, but reaching a similar conclusion).

-18-
credibility with the jury or highlight the lack of evidence in other areas. In these

examples, the circuit courts have found these partial concessions to be a tactical

strategy and not a denial of the right to counsel. Therefore, they have analyzed them

under the two-part Strickland test.23 These decisions reason that while attorneys may

not completely surrender their client’s case, they may make tactical concessions in

order to best represent their client. In other words, admitting certain issues at trial,

even without the client’s consent, may result in ineffective assistance of counsel, but

it is assistance nonetheless. While acknowledging the potential dangers posed by these

admissions of guilt, the existing cases have, however, required the defendant to

establish prejudice in cases where the defense attorney makes a decision to concede

guilt for lesser offenses in order to obtain the favorable outcome on the principal

charge. In doing so, they have recognized the fact that, in many instances, the evidence

23
United States v. Short, 181 F.3d 620, 624-5 (5th Cir. 1999)(counsels statements,
which did not admit guilt, but which implicated the defendant, were reasonable in light
of the overwhelming evidence presented at trial); Lingar v. Bowersox, 176 F.3d 453,
458 (8th Cir. 1999)(“we conclude the decision to concede guilt of the lesser charge of
second-degree murder was a reasonable tactical retreat rather than a complete
surrender”); Underwood v. Clark, 939 F.2d 473, 474 (7th Cir. 1991)(Posner,
J.)(defense counsel’s concession during closing arguments of a lesser included offense
was “a sound tactic when the evidence is indeed overwhelming . . . and when the count
in question is a lesser count, so that there is an advantage to be gained by winning the
confidence of the jury.”); McNeal v. Wainwright, 722 F.2d 674, 676 (11th Cir.
1984)(McNeal’s attorney’s statements conceding manslaughter were tactical and did
not constitute a forced plea);

-19-
is so overwhelming that the most favorable result is not an acquittal, but a reduced

sentence. If such concessions ultimately prove to be incorrect and prejudicial to their

client, there is a remedy under the usual Strickland analysis for ineffective assistance.

The majority, in essence, maintains that this case is analogous to those decisions

finding a constructive denial of counsel. Specifically, they find that defense counsel

failed to challenge any element of the prosecution’s case with the notable exception of

the intent element of the first degree murder charge. Pursuant to their reasoning, the

decision to concede second degree murder and to focus solely on the intent element

resulted in Haynes essentially receiving no assistance from his counsel at trial.

This reasoning unnecessarily blurs the distinction between the constructive denial

of counsel and ineffective assistance of counsel. If Haynes’ attorneys had stated,

against their client’s wishes, that he had decided to plead guilty, that action would have

amounted to a forced guilty plea. The prosecution’s case would never be tested and

Haynes would have been deprived of his presumption of innocence. This, however, is

not what happened here. Haynes’ attorneys never conceded that he was guilty of first

degree murder. Rather, they acknowledged that the evidence on particular elements

of the offense was overwhelming. Haynes’ attorneys remained active at trial, probing

weaknesses in the prosecution’s case on the issue of intent. Ultimately, their strategy

-20-
proved effective in avoiding the death penalty for their client.

In our decision in Short, we recognized the potential benefits of a concession

strategy. We stated: “counsel took the reasonable strategic approach of trying to

establish his credibility with the jury and enhance his chances that the jury would

accept his arguments on the more serious counts.” Short, 181 F.3d at 625. We should

not turn an inquiry about the constructive denial of counsel into an evaluation of the

defendant’s trial strategy. Here, the defense adopted a strategy to admit a lesser

included offense, but it was a defense nonetheless. The proper inquiry is the

effectiveness of such a tactic, and not its existence.

The majority attempts to distinguish those cases concluding that partial

concessions of guilt are not denials of assistance of counsel by arguing first that the

concessions in this case were made at a different stage of the proceedings. They also

emphasize the fact that Haynes maintained his innocence throughout the trial whereas,

in other cases, the defendant previously had confessed. Lastly, they focus on the fact

that the defense adopted this strategy over the express objection of the defendant.

These arguments basically amount to a claim that the decision to pursue a concession

strategy in the instant case was more aggressive than in other cases. The distinctions

relied upon by the majority, however, ignore the fundamental issue in this case. We

must ultimately decide whether, by adopting such a strategy, Haynes’ attorneys ceased

-21-
to represent him at trial.

The majority makes much of the fact that defense counsel opted to concede

Haynes’ guilt in their opening statements and tailored their questioning of witnesses

throughout trial to the lack of evidence on the intent issue. Again, I believe that the

timing of admissions is a question of strategy properly evaluated under Strickland.

Generally, the defense will wait until closing arguments to make any admissions. If,

however, the defense counsel senses that there is an advantage to be gained, such as

preempting the prosecution’s case, by conceding certain factual elements at the outset

of the trial, this does not suddenly transform a trial strategy into the constructive denial

of counsel. The timing of the concessions, like the decision to make the admissions,

itself, is a tactical choice. Choosing to employ a radical tactic in the opening arguments

may be risky, but Haynes’ attorneys could have reasonably concluded that this course

would give their client the best opportunity to escape the death penalty. If, after

reviewing the evidence, we found this decision to be overly aggressive and if we also

concluded that, but for this decision, the outcome of the trial probably would have been

different, only then should we grant Haynes a new trial.

The majority also focuses on the fact that Haynes continues to maintain his

innocence. Again, this conflates the constructive denial of counsel with ineffective

assistance. A concession strategy is appropriate in cases where the overwhelming

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weight of evidence is against the defendant. This is the case whether the defendant has

previously confessed to the crime or has steadfastly maintained his or her innocence.

Haynes’ attorneys had to consider the totality of the evidence, including their client’s

continuing declaration of innocence, in order to reach the decision to concede the lesser

included offense of second-decree murder. What is crucial is that in making this

strategic choice, they never ceased to represent Haynes. Rather, they pursued a

strategy that was the most advantageous for their client given the circumstances. If the

evidence presented at trial did not warrant the approach taken, the two-part Strickland

analysis provides Haynes with a remedy for such ineffective assistance.

Moreover, by not requiring Haynes to show prejudice, the majority creates the

potential for grossly inconsistent outcomes. In most instances, if the evidence

establishing a lesser included offense was not overwhelming enough to warrant a

concession, the defendant can easily establish that his counsel’s performance was

prejudicial. In cases such as this one, where the trial strategy probably benefitted the

defendant by mitigating the substantial evidence arrayed against him, the defendant

would have difficulty making the requisite showing under Strickland. If the majority’s

reasoning is employed, courts will likely find a defendant was denied counsel in cases

where the defendant actually benefitted from a concession strategy.

The majority also focuses on the fact that Haynes withheld his consent to the

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defense strategy. Again, this begs the question of whether Haynes was denied counsel

at trial. The lack of Haynes’ consent to a particular strategy is simply not relevant to

the issue of whether his attorneys abandoned him at trial. It is, however, important in

ascertaining whether in representing him, Haynes’ attorneys did so effectively. The

majority again errs by equating issues that concern the effectiveness of counsel with the

constructive denial of counsel. The decision to pursue a trial strategy without Haynes’

consent, like the decision to pursue the concession strategy, is appropriately evaluated

under Strickland.

Applying the two-part Strickland test to the facts of this case, I find that Haynes’

attorneys did not render ineffective assistance. The prosecution had both videotape of

the defendant and eyewitness testimony placing Haynes at the crime scene. DNA

analysis established that his semen was found in the victim. The police found a knife

with the victim’s blood on it. The police also located the victim’s wallet in Haynes’

home. Given the evidence, the strategy defense counsel adopted likely succeeded in

obtaining the most favorable outcome for their client.

It is a plausible, however, that their failure to obtain Haynes’ consent to the

strategy could constitute deficient performance under Strickland. Even assuming,

however, that proceeding with this line of defense without Haynes’ consent constituted

deficient performance, the result of the concession strategy was not prejudicial to the

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defendant per se. For Haynes to establish prejudice, he must “show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. Haynes has

failed to establish that without the concession strategy, he would have been acquitted

of first degree murder. Pervertedly, Haynes has succeeded in obtaining a new trial. In

doing so, however, he has rejected the one strategy that saved his life. Today, he is one

step closer to his executioner.

For the foregoing reasons, I would REVERSE the judgment of the district court.

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