Court-Martial Trial Practice Blog
The U.S. Supreme Court today took up Garza v. Idaho, No. 17-1026, involving the intersection of two recurring themes: lawyer decisions v. client decisions in the conduct of a case and how to apply rules developed for trials to the context of plea-bargained cases, which most cases are now.
In the course of a criminal trial, the lawyer makes most of the decisions, but a few are reserved for the client personally. This “rule” or assignment of duty applies in courts-martial. Whether to appeal is a client decision. In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Court dealt with the issue of ineffective assistance claims for a lawyer’s failure to appeal, with or without consulting the client. If the lawyer is found to have performed deficiently, the “prejudice” question is only whether there is a reasonable probability the client would have appealed, not that he would have prevailed on appeal.
The wrinkle in the Garza case is that the defendant pleaded guilty and waived his right to appeal as part of the bargain. From the Brief in Opposition:
Garza pleaded guilty to aggravated assault and possession of a controlled substance with intent to deliver pursuant to plea agreements with the State of Idaho. Pet. App. 2a. As part of those plea agreements the district court bound itself to follow certain “bargained for” sentencing recommendations. Pet. App. 28a-29a. Garza also waived his right to appeal and his right to seek a reduction of his sentences under Idaho Criminal Rule 35. Pet. App. 2a-3a. The district court imposed the agreed-upon sentences. Pet. App. 29a. Garza requested his trial counsel to file a notice of appeal but, in light of the waiver, his counsel declined. Pet. App. 29a.
It seems to me that the situation here is quite different from Flores-Ortega. In that case, the lawyer’s allegedly ineffective failure to file an appeal denied the client an entire judicial proceeding that he was entitled to. The Court relied heavily on the distinction between a claim that a proceeding was conducted unfairly and a claim that a proceeding did not happen at all. In this case, the proceeding was one that the client voluntarily gave up in return for a reduced sentence. The proceeding not happening at all was precisely what he agreed to, and a finding that he had no right to it is quite different from a finding that he would not have prevailed in it.
An attorney undoubtedly has a duty to consult with the client regarding “important decisions,” including questions of overarching defense strategy. That obligation, however, does not require counsel to obtain the defendant’s consent to “every tactical decision.” But certain decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate. A defendant, this Court affirmed, has “the ultimate authority” to determine “whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” Concerning those decisions, an attorney must both consult with the defendant and obtain consent to the recommended course of action.
Florida v. Nixon, 543 U.S. 175, 187 (2004)(citations omitted).
Defense counsel “undoubtedly has a duty to consult with the client regarding ‘important decisions,’ including questions of overarching defense strategy.” Whether the client must consent to the strategic decision made by counsel before counsel may proceed is a different question.
United States v. Larson, 66 M.J. 212, 218 (C.A.A.F. 2008) (citations omitted).