Virgin Islands v. Weatherwax ( 1996 )

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
3-13-1996
Virgin Islands v. Weatherwax
Precedential or Non-Precedential:
Docket 95-7126
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996
Recommended Citation
"Virgin Islands v. Weatherwax" (1996). 1996 Decisions. Paper 216.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/216
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 95-7126
GOVERNMENT OF THE VIRGIN ISLANDS,
Appellant
v.
WILLIAM WEATHERWAX
District Court of the Virgin Islands
Division of St. Croix
(D.C. Crim. Action No. 88-cr-00139)
Argued August 16, 1995
BEFORE: STAPLETON, LEWIS and WEIS, Circuit Judges
(Opinion Filed March 13, l996)
W. Ronald Jennings
United States Attorney
Charles L. Jenkins (Argued)
Assistant U.S. Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
U.S. Virgin Islands 00820
Attorneys for Appellant
Amelia Headley-LaMont (Argued)
Headley-LaMont & Marshack
4500 Sunny Isle Professional Building
Suite 4
P.O. Box 1690 Kingshill
Christiansted, St. Croix
U.S. Virgin Islands 00820-4423
1
Attorney for Appellee
2
OPINION OF THE COURT
STAPLETON, Circuit Judge:
This is the second time that this habeas corpus
proceeding has been before us. In the previous appeal,
Government of the Virgin Islands v. Weatherwax, 20 F.3d 572
(3d Cir. 1994), we reversed the district court's dismissal of
Weatherwax's petition for a writ of habeas corpus and remanded
for an evidentiary hearing on Weatherwax's claim of ineffective
assistance of counsel. After holding the evidentiary hearing,
the district court granted Weatherwax's petition for habeas
relief. We will reverse.
I.
William Weatherwax was indicted for the shooting death
of St. Clair Hazel. A jury acquitted him of first degree murder
but convicted him of second degree murder and unlawful possession
of a weapon. We affirmed on direct appeal. Government of the
Virgin Islands v. Weatherwax, 893 F.2d 1329 (3d Cir. 1989).
Weatherwax thereafter filed a petition for a writ of
habeas corpus, raising several arguments. Only one of those
arguments is relevant to this appeal. Weatherwax alleged that
during his trial a juror was observed with a newspaper containing
an article about the trial. The article allegedly reported an
3
inaccurate and unfavorable account of Weatherwax's testimony.
Both Weatherwax and members of his family informed defense
counsel of this fact but the lawyer failed to bring the matter to
the trial court's attention. Weatherwax claimed that his
attorney's failure to bring this matter to the court's attention
constituted ineffective assistance of counsel.
The district court rejected that argument, reasoning
that the newspaper article was "a verbatim and dispassionate
account of the testimony adduced at trial" which accordingly
could not be prejudicial. Weatherwax, 20 F.3d at 575. We came
to a different conclusion, however, finding that the actual trial
testimony varied from the newspaper account in several
significant respects. We found that the difference between the
article version and the official transcript, "[a]lthough subtle,"
could have been unfairly prejudicial because Weatherwax's
testimony (but not the newspaper account) "argue[d] against
second degree murder and support[ed] Weatherwax's self-defense
testimony." Id. at 577.0
We further found that "[i]f the jurors . . . read the
damaging article with its distorted reporting of Weatherwax's
testimony, the likelihood of resulting taint to the fairness of
the trial [would be] apparent [and] Strickland's second prong
would also be met." 20 F.3d at 580. We, therefore, instructed
that if the district court found on remand (1) that a juror in
0
The article reported only on the testimony the jury had heard
the preceding day; it included no extra-record information about
Weatherwax or the crime.
4
fact had brought the newspaper into the jury room and (2) that
Weatherwax's lawyer had been informed of this, then Weatherwax
would have "made out a prima facie case of ineffective assistance
of counsel under the Strickland [v. Washington, 466 U.S. 668
(1984),] standard." Id. If such a "prima facie" case were
established on remand, we instructed that, "[t]he government must
then be afforded the opportunity to question Weatherwax's counsel
relative to his failure to request the voir dire in order to
show, if applicable, that counsel proceeded on the basis of
'sound trial strategy.'" Id. (quoting Strickland, 466 U.S. at
689).
On remand, the government did not contest Weatherwax's
claims (1) that a juror in fact had had possession of a newspaper
in the jury room and (2) that Weatherwax's lawyer had been
informed of this. Thus, Weatherwax made out a prima facie case
of ineffective assistance of counsel under Strickland, and the
burden shifted to the government to show that Weatherwax's
counsel had proceeded on the basis of "sound trial strategy."
Id.
To meet its burden, the government called Weatherwax's
trial attorney, Michael Joseph. In response, Weatherwax called
his sister and his brother-in-law, who were present during the
trial, and gave his own account of the relevant events. With the
sole exception noted below, the testimony of these witnesses was
not in conflict.
Joseph, an experienced criminal defense lawyer and a
lifelong resident of the Virgin Islands, was privately retained
5
by Weatherwax. Weatherwax stayed with Joseph in his home during
the last few days of pretrial preparation and throughout the
trial. Joseph considered it "a very difficult case." (J.A. at
23.) Among other things, he explained to Weatherwax the strategy
he intended to use in selecting a jury. That strategy was based
in part on the fact that Weatherwax's case had created a racially
charged atmosphere in the Virgin Islands because Weatherwax was
white, a so-called "Continental," and the victim was black. It
was also based on the facts surrounding the victim's death and
Weatherwax's anticipated defense. Joseph testified:
Q. [D]id you have a strategy, sir, with
regard to selecting a jury?
A. Of course.
Q. And what was that strategy?
A.. . . I saw this case as a case in
which the facts really were not too much in
dispute as compared to the jury that would
hear the facts and interpret the facts. For
instance, it would be undenied that an
unlicensed firearm was involved. It would be
undenied that Mr. Weatherwax possessed an
unlicensed firearm. It would be undenied
that Mr. Weatherwax discharged an unlicensed
firearm. It would be undenied that the person
who was shot did not have a firearm. And it
would be undenied that there would be
witnesses who would have conflicting stories
as to what danger he presented to Mr.
Weatherwax. Therefore, I thought Mr.
Weatherwax's perception as to what was
happening to him, which is the gist of a self
defense case, not what's really happening but
whether the person reasonably perceived
themselves to be in danger was the gist of
this case and we needed jurors who would
identify with that situation.
* * * *
6
Q.What were you striving to achieve in
the composition of the Weatherwax jury?
A. Sympathy.
Q.And were you doing that based upon
the profile of certain venire persons?
A. Absolutely.
Q.What were you looking for
specifically?
A.I was looking for as many
Continentals on the jury as possible.
Q.And for what reason did you do that?
A. Sympathy.
Q.Is that another way of saying you
would assume that they identified with the
defendant?
A. Absolutely.
(J.A. at 23-24, 26-27.)
Joseph further testified that a second objective of his
trial strategy was to persuade the jury to convict only on a
lesser included offense in the event the evidence of self defense
did not produce an acquittal on all counts.
The jury ultimately selected to hear Weatherwax's case
consisted of three white and nine black jurors. It was the
largest number of Continentals Joseph had ever seen on a Virgin
Islands jury and he was "ecstatic." (J.A. at 28.)
On numerous occasions during the trial, the trial judge
admonished the jury to avoid reading articles about the trial in
the newspaper. He did not, however, instruct them not to read a
newspaper.
7
On the morning of the last day of the trial, after
Weatherwax had finished his testimony and just as the prosecution
was about to call its rebuttal witnesses, Weatherwax's sister,
Sally Lay, and his brother-in-law, William Lay, observed a juror
walk from the jury room into the court room with a local
newspaper under his arm. They did not observe him reading the
newspaper and, accordingly, did not know what portion of the
paper the juror had been exposed to. Mr. and Mrs. Lay advised
Weatherwax and a bailiff of their observation. The bailiff took
no action but advised them to speak to their lawyer.
The Lays, Weatherwax, and several other members of his
family took the bailiff's advice and informed Joseph about the
newspaper as he was entering the door of the courtroom. A
conversation ensued. Weatherwax expressed the view that it was
"not right" for the juror to have a newspaper and he as well as
his relatives asked Joseph to do something about it. (J.A. at
64.) Mrs. Lay described the conversation and Joseph's response
in the following terms:
Q.You didn't ask anything -- all I'm
asking you, ma'am, is you didn't ask him to
do anything specific. You just asked him to
do something about it?
A.We asked him to do something about
it, file a motion or something and he said he
would file a motion for a mistrial tomorrow.
* * * *
Q.And that's not all he said, did he?
He said something else didn't he?
A. In this conversation?
Q.Yes.
8
A.Yes, he did.
Q.What did he say?
A.He said that he -- well, he said a
lot of things during the course of the
conversation.
Q.As specifically as you can recall,
Mrs. Lay, I would like for you to tell the
Court everything that Mr. Joseph said.
A.He said that the jury [sic] with the
newspaper is a white man. He would help
Billy's case. He was on our side. Leave it
alone. He would file a motion for a mistrial
tomorrow.
Q.So he told you essentially not to
worry about it, didn't he?
Ms. Lamont: Objection.
The Court: It's cross examination. Ask her
that question before you go on to something
else.
By Mr. Humphreys:
Q.You may answer the question.
Attorney Joseph told you not to worry about
the situation, didn't he?
A.No, he did not use those words.
Q.But he did tell you, as a matter of
fact, that he believed that the juror that
you had identified was "on your side," didn't
he?
A.Yes.
Q.And he also told you not to bring any
attention to it, didn't he?
A.Yes.
(J.A. at 67-68.) Neither Weatherwax nor his family thereafter
brought the newspaper to the attention of the court.
9
Joseph testified that he had monitored the newspapers
daily for inflammatory material and that he had read the article
in that morning's paper before coming to court. He described in
the following terms his reaction upon being advised of the Lays'
observation:
A.. . . So telling me a juror has a
newspaper and walk [sic] into court tells me
-- my impression was that's a pretty honest
man.
Q.Why was he an honest man?
A.Because if he wanted assistance from
the newspaper as to what is happening in
court, he would have read it clandestinely.
He wouldn't have just walked to court like
that. Many people in this community love the
sports page. Many people love to do
crossword puzzles. If they don't do their
crossword puzzle, they don't have a good day.
Q.Do you believe that the possession of
a newspaper, the possession, in and of
itself, was a valid basis for a mistrial?
A.Absolutely not.
Q.Was it a valid basis for polling the
jury?
A.Not that jury.
Q.Because you wanted that jury?
A.Absolutely. On another jury I might
have used it as an excuse.
Q.So you did not request that the jury
be polled?
A.No.
Q.Was that a strategic decision on your
part, sir?
10
A.Of course it was. That's what I'm
trying to tell you, sir, that if anybody,
including Judge Almeric Christian, had come
and tell [sic] me, "Michael Joseph, it is my
opinion that you should poll the jury," I
would have said, "Your Honor, leave my jury
alone."
(J.A. at 37-38.)
The sole conflict in the testimony relates to whether
Joseph committed himself during this conversation to the filing
of a motion for a mistrial. Mrs. Lay insisted that he did:
Q. To your knowledge, what was done?
A.Mr. Joseph said that he would take
care of it and he would file a motion for a
mistrial tomorrow.
(J.A. at 48.)
Joseph testified that he said he would think about the
matter but insisted that he did not commit to seeking a mistrial.
Q.Do you recall ever telling anyone
that you might consider a motion for a
mistrial?
A.Not only do I not recall not telling
anyone that. I would call any lawyer that
would have moved for a mistrial on those
grounds a fool because of the composition of
the jury. It was a rare jury. Probably the
odds of such a jury being selected again was
nil. And if someone mentioned that to me, I
probably would have laughed at them.
I recall telling Billy that it was my
opinion that this is the best shot he's
getting right here, Mr. Weatherwax, that this
jury was about the best jury he would ever
get.
Q.Well, let's get inside your thought
process. You told the defendant that you
would think about it. Did you, in fact,
think about it?
A.Of course.
11
Q.Did you come to a conclusion about
whether or not it would be important for you
to either request a mistrial or request a
polling of the jury?
A.Again, it's important that you
understand that this had been a jury that
left me very happy, with a very happy
feeling.
(J.A. at 33-34.)
No motion for a mistrial was filed by Joseph and the
newspaper incident was not pursued prior to the filing of this
habeas proceeding.
The district court credited Joseph's testimony that he
made a deliberate and strategic decision not to pursue the
newspaper issue. It concluded, however, that during his
conversation with the Weatherwax family he had led them to
believe that the issue would be pursued in some way.
Specifically, the district court found that "[d]espite giving
some assurances that he would 'file a motion,' Attorney Joseph
determined that the incident did not warrant interfering with the
composition of the jury." (Dist. Ct. Op. at 7.)
Despite its conclusion that Joseph's decision had been
deliberate and strategic, the district court nevertheless ruled
that Joseph's failure to call the court's attention to the
incident of alleged juror misconduct was unreasonable under the
Strickland standard for measuring an attorney's performance. It
explained:
[C]ounsel's decision not to notify the court
of the juror's misconduct, was in the first
instance a breach of a fundamental duty to
his client, and in the second, a breach of
12
his duty as an officer of this court.
Accepting trial counsel's claim as to a
strategy, this court finds that the decision
denied the trial judge, and therefore counsel
and client, the opportunity to conduct the
searching inquiry that was required to
determine the extent of the jury's exposure
to the extra-judicial evidence. As such, the
decision cannot be said to have been
reasonable exercise of professional judgment.
(Dist. Ct. Op. at 16.)
The court then addressed the second prong of the
Strickland test and determined that the facts warranted relief
under the doctrine of that case. It found that "because of trial
counsel's disregard of his client's wishes and his duty to this
court, there are no objective criteria upon which this court can
determine prejudice, if any, as a result of the juror's
misconduct. To the extent that a voir dire was not conducted,
proof of prejudice is excused. Since finality concerns are
weaker when one of the assurances that the result of the
proceeding is reliable is absent, a new trial is warranted."
(Dist. Ct. Op. at 17-18.)
II.
We review the district court's findings of fact for
clear error. We must make an independent judgment, however, on
whether the facts thus found constitute constitutionally
ineffective assistance of counsel. McAleese v. Mazurkiewicz, 1
F.3d 159, 166 (3d Cir.), cert. denied, 114 S. Ct. 645 (1993).
13
III.
The district court reasoned that Joseph breached a duty
to his client because he (a) failed to take steps necessary to
secure a voir dire inquiry directed to the issue of whether the
newspaper in fact had prejudiced the jury and (b) failed to
consult with or follow directions from his client about strategic
matters. Our de novo review leads us to a contrary conclusion.
A.
We start with the teachings of Strickland v.
Washington:
In any case presenting an ineffectiveness
claim, the performance inquiry must be
whether counsel's assistance was reasonable
considering all the circumstances. Prevailing
norms of practice as reflected in American
Bar Association standards and the like, e.g.,
ABA Standards for Criminal Justice 4-1.1 to
4-8.6 (2d ed. 1980) ("The Defense Function"),
are guides to determining what is reasonable,
but they are only guides. No particular set
of detailed rules for counsel's conduct can
satisfactorily take account of the variety of
circumstances faced by defense counsel or the
range of legitimate decisions regarding how
best to represent a criminal defendant. Any
such set of rules would interfere with the
constitutionally protected independence of
counsel and restrict the wide latitude
counsel must have in making tactical
decisions. See United States v. Decoster,
199 U.S. App. D.C., at 371, 624 F.2d, at 208.
Indeed, the existence of detailed guidelines
for representation could distract counsel
from the overriding mission of vigorous
advocacy of the defendant's cause.
* * * *
Judicial scrutiny of counsel's
performance must be highly deferential.
14
. . . A fair assessment of attorney
performance requires that every effort be
made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances
of counsel's challenged conduct, and to
evaluate the conduct from counsel's
perspective at the time. Because of the
difficulties inherent in making the
evaluation, a court must indulge a strong
presumption that counsel's conduct falls
within the wide range of reasonable
professional assistance; that is, the
defendant must overcome the presumption that,
under the circumstances, the challenged
action "might be considered sound trial
strategy."
466 U.S. at 688-89 (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955)).
Thus, while professional standards provide guidance in
evaluating the performance of counsel, they do not define the
boundary between constitutionally acceptable and constitutionally
unacceptable performance.0 The Constitution requires only that
counsel's assistance be "reasonable" considering all of the
circumstances and the ultimate objective of assuring "vigorous
0
The Supreme Court elaborated on this point in Nix v.
Whiteside, stating that:
[B]reach of an ethical standard does not
necessarily make out a denial of the Sixth
Amendment guarantee of assistance of counsel.
When examining attorney conduct, a court must
be careful not to narrow the wide range of
conduct acceptable under the Sixth Amendment
so restrictively as to constitutionalize
particular standards of professional conduct
and thereby intrude into the state's proper
authority to define and apply the standards
of professional conduct applicable to those
it admits to practice in its courts.
475 U.S. 157, 165 (1986).
15
advocacy of the defendant's cause." Id. at 689. Moreover, the
evaluation of reasonableness must begin with a "strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Id.
Applying these principles in Strickland, the Supreme
Court discussed the interplay between an attorney's duty to
investigate a matter and her strategic choices regarding that
matter:
[S]trategic choices made after thorough
investigation of law and facts relevant to
plausible options are virtually
unchallengeable; and strategic choices made
after less than complete investigation are
reasonable precisely to the extent that
reasonable professional judgments support the
limitations on investigation. In other
words, counsel has a duty to make reasonable
investigations or to make a reasonable
decision that makes particular investigations
unnecessary. In any ineffectiveness case, a
particular decision not to investigate must
be directly assessed for reasonableness in
all the circumstances, applying a heavy
measure of deference to counsel's judgments.
Id. at 690-91.
In a sense, Joseph made his strategic choice not to
move for a mistrial "after less than complete investigation"; he
decided that it would be better to keep the jury intact without
first inquiring into whether the jurors read or were influenced
by the newspaper article. Still, Joseph's decision not to
investigate the possibility of juror prejudice was itself a
strategic decision. Unlike the usual case where a lawyer fails
to fully investigate a matter, Joseph could not conduct an
investigation without first bringing the newspaper incident to
16
the court's attention. Once he brought the matter to the court's
attention, however, he would relinquish to the court at least
some control over whether this particular jury would decide his
client's fate.
Given the limited information that Joseph had in front
of him -- that a juror had been seen with a newspaper, and that
the newspaper contained a potentially damaging article -- and
given Joseph's view that this jury was the best that could be
expected from Weatherwax's point of view, we think that the
decision not to inform the court was reasonable "under prevailing
professional norms." Strickland, 466 U.S. at 688. Joseph acted
in what he believed to be his client's best interests. He
believed that he had the best jury possible under the
circumstances, and he made a judgment that many competent
litigators would make under the same circumstances. Bringing the
newspaper incident to the court's attention would have created a
possibility that the court would either declare a mistrial or
otherwise alter a jury which Joseph felt favored the defense.0
Given the Supreme Court's statement that "[t]here are countless
0
We do not agree with the dissent that Joseph could have
satisfied his client's request without substantial risk of losing
what he believed to be a favorable jury. "In every case where
the trial court learns that a member or members of the jury may
have received extra-record information with a potential for
substantial prejudice, the trial court must determine whether the
members of the jury have been prejudiced." Government of the
Virgin Islands v. Dowling, 814 F.2d 134, 139 (3d Cir. 1987).
Thus, had Joseph brought the newspaper incident to the trial
court's attention, the court would have had an affirmative
obligation to conduct voir dire and would have had discretion, if
it found exposure to the article, to excuse one or more jurors or
to declare a mistrial.
17
ways to provide effective assistance in any given case," and the
"strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance," id. at 689, we
cannot, without more, rule that Joseph's decision not to
investigate further was unreasonable as a matter of strategy.0
0
Unlike our dissenting colleague, we do not view as inherently
unreasonable Joseph's judgment that it was in Weatherwax's
interest to have a jury including three white jurors rather than
one having fewer or no white jurors. Lawyers necessarily make
trial strategy judgments based on probabilities. While they
occasionally have hard empirical data to rely upon, the
probabilities they utilize are more frequently based on an
assessment of human nature rooted in the lawyer's own personal
experience. Weatherwax had testified that the victim started
coming at him with a rock and that he feared for his life. Joseph
believed that, as a matter of probability, jurors of Weatherwax's
own racial background would be more likely to identify with
Weatherwax and believe his fear to be genuine than would jurors
of the victim/assailant's racial background. There is no way to
determine whether Joseph's belief is empirically accurate. It
has not been shown to be empirically inaccurate, however, and we
are unwilling to say that it is a view that a reasonable attorney
could not hold.
The Supreme Court has held that neither the prosecution nor
the defense may, consistent with the Equal Protection Clause,
utilize state-created peremptory challenges to exclude jurors
from service on a jury because of their race. Batson v.
Kentucky, 476 U.S. 79, 96-98 (1986); Georgia v. McCollum, 505
U.S. 42, 59 (1992). The Supreme Court has never concluded,
however, that aversions and affinities arising from the attitudes
and experiences of different racial groups do not exist or that
they do not affect jury verdicts. There is some empirical
evidence to the contrary. E.g., McCleskey v. Kemp, 481 U.S. 279,
287 (1987) (discussing a study indicating that black defendants
who kill white victims have the greatest likelihood of receiving
the death penalty); Jeffrey S. Brand, The Supreme Court, Equal
Protection, and Jury Selection: Denying That Race Still Matters,
1994 Wis. L. Rev. 511, 628 n.584 (noting that studies have found
that the likelihood of a decision to acquit is correlated to the
race of the juror and of the defendant); id. at 619, 630 (arguing
that, because of the way racism operates in the courtroom, a
minority defendant ought to be able to use race-based peremptory
challenges to increase minority participation on the jury); Nancy
J. King, Postconviction Review of Jury Discrimination: Measuring
18
B.
The district court also found that Joseph's
representation was ineffective because he failed to follow
direction from or fully consult with his client when he decided
not to bring the newspaper incident to the court's attention.
There is general agreement in the case law and the
rules of professional responsibility that the authority to make
decisions regarding the conduct of the defense in a criminal case
is split between criminal defendants and their attorneys. See
Jones v. Barnes, 463 U.S. 745, 751 (1983); United States v.
Teague, 953 F.2d 1525, 1531 (11th Cir.), cert. denied, 113 S. Ct.
127 (1992); 1 American Bar Association Standards for Criminal
Justice § 4-5.2 (2d ed. 1980 & Supp. 1986) [hereinafter ABA
Standards]. While this general proposition is more clear than
precisely where to draw the dividing line, the Supreme Court has
provided some guidance that helps to narrow the issue.
the Effects of Juror Race on Jury Decisions, 92 Mich. L. Rev. 63,
80-99 (1993) (reviewing studies reporting that juror race
influences jury decisions); Sheri Lynn Johnson, Black Innocence
and the White Jury, 83 Mich. L. Rev. 1611, 1616-43 (1985)
(discussing research reporting influence of juror racial bias on
the determination of guilt); see also McCollum, 505 U.S. at 61
(Thomas, J., concurring) (recognizing the broad perception,
confirmed by "[c]ommon experience and common sense," that
"conscious and unconscious prejudice persists in our society and
that it may influence some juries"); id. at 68 (O'Connor, J.,
dissenting) ("It is by now clear that conscious and unconscious
racism can affect the way white jurors perceive minority
defendants and the facts presented at their trials, perhaps
determining the verdict of guilt or innocence."). Nor has the
Supreme Court ever held that ineffective assistance of counsel
occurs whenever an attorney exercises his or her professional
judgment based on the belief that such aversions and affinities
may influence a jury's verdict. We do not believe it would so
hold if presented with this case.
19
In Jones, the Supreme Court held that although a
criminal defendant has an equal access right to an appeal under
the Due Process and Equal Protection Clauses, he has no
constitutional right to insist that appellate counsel advance
every non-frivolous argument the defendant wants raised. 463
U.S. at 754. The Court's review of its prior jurisprudence in
Jones reflected a recognition that "the accused has the ultimate
authority to make certain fundamental decisions regarding the
case." Id. at 751. As examples of those "fundamental
decisions," the Court pointed to the decisions concerning whether
to plead guilty, to waive the right to trial by jury, to testify
in one's own behalf, to take an appeal, or to waive the right to
counsel. See also Faretta v. California, 422 U.S. 806, 834
(1975).
In support of its analysis, the Jones Court referred to
ABA Model Rule of Professional Conduct 1.2(a), which reserves
decisions on fundamental matters to the client, and then
expressly recognized the complementary proposition that non-
fundamental decisions are to be made by counsel on the basis of
his or her professional judgment exercised after consultation
with the client:
"A lawyer shall abide by a client's decisions
concerning the objectives of representation
. . . and shall consult with the client as to
the means by which they are to be pursued.
. . . In a criminal case, the lawyer shall
abide by the client's decision, . . . as to a
plea to be entered, whether to waive jury
trial and whether the client will testify."
Model Rules of Professional Conduct, Proposed
Rule 1.2(a) (Final Draft 1982) (emphasis
added).
20
With the exception of these specified
fundamental decisions, an attorney's duty is
to take professional responsibility for the
conduct of the case, after consulting with
his client.
463 U.S. at 753 n.6.
The ABA Standards for Criminal Justice recognize as
being among the non-fundamental issues reserved for counsel's
judgment "whether and how to conduct cross-examinations, what
jurors to accept or strike, [and] what trial motions should be
made . . . ." ABA Standards § 4-5.2(b). Several courts have
also recognized witness selection as being among the non-
fundamental decisions that counsel is entitled to make at trial.
E.g., United States v. Long, 674 F.2d 848, 855 (11th Cir. 1982)
(holding that counsel's failure to call alibi witnesses was not
ineffective assistance and stating: "This Court will not second-
guess tactical decisions of counsel in deciding whether to call
certain witnesses."); State v. Davis, 506 A.2d 86, 92 (Conn.
1986) (holding that counsel's refusal to call a witness that his
client had instructed him to call did not violate defendant's
right to compulsory process); People v. Deere, 710 P.2d 925, 931
(Cal. 1985) (in bank); Wainwright v. Sykes, 433 U.S. 72, 93
(1977) (Burger, C.J., concurring) ("[The attorney], not the
client, has the immediate -- and ultimate -- responsibility of
deciding if and when to object, which witnesses, if any, to call,
and what defenses to develop."). The Sixth Circuit Court of
Appeals has concluded that issue selection similarly falls in
this category. Meeks v. Bergen, 749 F.2d 322, 328 (6th Cir.
21
1984) (criminal defense counsel may make strategic decision to
assert self-defense rather than battered wife syndrome as defense
at client's murder trial). The Eleventh Circuit Court of Appeals
has concluded that counsel has the ultimate authority to decide
issues concerning "what evidence should be introduced, what
stipulations should be made, what objections should be raised,
and what pre-trial motions should be filed." Teague, 953 F.2d at
1531.
Recent decisions of the First and Eleventh Circuit
Courts of Appeals recognize the prerogatives of defense counsel
with respect to non-fundamental matters in the course of
rejecting ineffective assistance of counsel claims. In Routly v.
Singletary, 33 F.2d 1279 (11th Cir. 1994), cert. denied, 115 S.
Ct. 2627 (1995), the petitioner in a habeas proceeding maintained
that his counsel had provided ineffective assistance of counsel
during his homicide trial. The jury had returned to the
courtroom during its deliberations and informed the court that it
had been unable to hear the testimony of the state's primary
witness. Petitioner faulted counsel for not moving for a
mistrial on the ground that the jury was thus deliberating
without the benefit of an important segment of the trial
evidence. The district court rejected the ineffective assistance
claim based on the fact that counsel's decision not to move for a
mistrial was a "deliberate tactical choice." 33 F.3d at 1289.
Counsel decided "not to move for a mistrial precisely because the
jury might have difficulty in coming to unanimous agreement
22
concerning the content of the state's most important witness."
Id. The court of appeals affirmed. Id. at 1282.
In United States v. McGill, 11 F.3d 223 (1st Cir.
1993), the defendant corrections officer was alleged to have shot
and killed an inmate while acting out a "Russian roulette" scene
from the motion picture The Deerhunter (Universal Studios 1978).
The prosection wished to introduce a fifteen minute excerpt from
the film containing the scene allegedly mimicked. Defense
counsel, over the strenuous objection of his client, stipulated
that the film could be exhibited to the jury in its entirety. The
court held that this was not ineffective assistance of his
client, observing:
Based on his judgments concerning relevance,
probative value, unfairly prejudicial impact,
and how the judge would likely rule, counsel
calculated that he would not prevail on a
motion to exclude the film clip. In an
effort to cut anticipated losses, he obtained
a stipulation from the prosecution that the
entire three-hour movie would be shown, in
the expectation that the impact of the
critical scene would be dissipated.
* * * *
To avoid the shoals of ineffective
assistance, an attorney's judgment need not
necessarily be right, so long as it is
reasonable. See Strickland, 466 U.S. at 687-
91, 104 S. Ct. at 2064. Here, counsel made an
unarguably reasonable choice. In acting on
it, he extracted a fair concession for the
ensuing stipulation, compelling the
prosecution to show the entire film rather
than zeroing in on the shorter, more powerful
excerpt. And, finally, counsel's decision
not to abide by the wishes of his client has
no necessary bearing on the question of
professional competence; indeed, in some
instances, listening to the client rather
23
than to the dictates of professional judgment
may itself constitute incompetence.
11 F.3d at 227 (footnote omitted).
The district court in this proceeding concluded that
Joseph was required to follow Weatherwax's direct instruction to
"do something," such as "file a motion." We disagree. Whether
to file a motion in this context was not a "fundamental
decision[] regarding the case." Jones, 463 U.S. at 751. Wherever
the precise line between client and counsel decision-making
should be drawn, this decision fell squarely within the realm of
strategy and tactics and thus was a decision for Joseph to make.
Some of the decisions deemed "fundamental" -- such as a
decision whether to plead guilty or to take an appeal -- relate
directly to the objectives of the representation. Cf. Model
Rules of Professional Conduct Rule 1.2(a) (1994) (stating that a
lawyer must abide by a client's decisions concerning the
objectives of representation). While the accused should receive
the full and careful advice of her lawyer before entering a
guilty plea or taking an appeal, these decisions ultimately must
be made by the defendant herself. The lawyer can inform the
client of the likely consequences of those decisions, but only
the defendant knows whether she prefers to bear those
consequences or prefers to accept the costs and consequences of
going to trial or filing an appeal.
Other fundamental decisions, such as whether to forego
assistance of counsel, to waive a jury trial, or to testify in
one's own behalf, in a sense may be viewed as strategic decisions
24
because they relate to the means employed by the defense to
obtain the primary object of the representation -- ordinarily, a
favorable end result. Nevertheless, these decisions are so
personal and crucial to the accused's fate that they take on an
importance equivalent to that of deciding the objectives of the
representation. As the Court explained in Faretta, for example,
"although he may conduct his own defense ultimately to his own
detriment, his choice must be honored out of 'that respect for
the individual which is the lifeblood of the law.'" 422 U.S. at
834 (quoting Illinois v. Allen, 397 U.S. 337, 350-51 (1970)
(Brennan, J., concurring)).
Joseph's decision not to bring the newspaper incident
to the court's attention cannot be regarded as fundamental.
First, Joseph's decision did not relate directly to the
objectives of his representation at that point -- acquittal of
first degree murder and the lesser charges. Instead, Joseph's
decision concerned only the means employed by the defense to
reach that agreed-upon goal. As the commentary to Model Rule of
Professional Conduct 1.2(a) states, while a lawyer must abide by
a client's decisions concerning the objectives of her
representation, a lawyer "is not required to . . . employ means
simply because a client may wish that the lawyer do so."
Nor did Joseph usurp Weatherwax's authority to make a
fundamental personal decision comparable to decisions on whether
to forego assistance of counsel, to waive a jury trial, or to
testify in one's own behalf. Instead, Joseph's decision
concerned whether he should object once he learned that a
25
distorted newspaper account of the trial testimony may have made
its way to the jury. It was clearly an important decision, but
it was not one where respect for the individual's autonomy
requires us to disregard the desirability of having professional
judgment exercised in the client's best interest.
We believe Joseph's decision not to object was
analogous to a strategic choice not to object to the admission of
inadmissible hearsay evidence tendered by the prosecution. In
both situations, the consequence of a failure to object is that
the jury will (or in Weatherwax's case might) learn information
untested by the adversarial process that it would not otherwise
have learned. In both instances, defense counsel has the power
to prevent that from happening, but decides that it is
strategically advantageous not to make the objection. Contrary
to the district court's suggestion, in neither instance is the
defendant's right to a jury trial implicated. In both instances
the decision is "the exclusive province of the lawyer," ABA
Standards § 4-5.2(b), and if, as here, that decision has a
rational basis, a court is without authority to second-guess
counsel's judgment call.
C.
That Joseph's decision was not a fundamental one and
thus fell into "the exclusive province of the lawyer" does not
end our inquiry, however. Important strategic and tactical
decisions should be made only after a lawyer consults with his
client. ABA Standards § 4-5.2(b); Strickland, 466 U.S. at 688
26
(noting counsel's "duties to consult with the defendant on
important decisions and to keep the defendant informed of
important developments in the course of the prosecution").
The interchange between Joseph and his client in the
courthouse on the last morning of the trial cannot fairly, in our
judgment, be described as a failure to consult. Considering the
fact that the newspaper incident arose suddenly when counsel was
entering the courtroom on the last morning of the trial, this
interchange, while brief, was far from perfunctory. Mrs. Lay
indicated that it lasted long enough for each of the family
members to speak and for Joseph to say "a lot of things during
the course of the conversation." (J.A. 67.) Joseph listened to
what the client's family had to report and to their views about
what should be done. He evaluated that information and expressed
his own view of what was in Weatherwax's best interests.
Moreover, he explained the reasons behind his view -- that this
was the best jury Weatherwax could hope for. Neither Weatherwax
nor his family complained at the hearing about Joseph not
listening or cutting them off short. Their complaint was that
they wanted him to "file a motion" and he did not file one. While
this is true, it does not mean that Joseph failed to consult with
his client about the decision to be made.
The requirement that counsel consult with his or her
client concerning issues on which counsel has the final word
serves a number of important purposes. First, it assures that
the client will have the opportunity to assist with his own
defense. As one court has noted, "[w]hile an attorney's
27
education and experience give him superior knowledge of
generalized technical information, '[t]he client possesses
superior knowledge of another sort -- knowledge of the facts and
circumstances of his case.'" Stano v. Dugger, 921 F.2d 1125,
1146 n.33 (11th Cir.) (second alteration in original) (quoting
Mark Spiegel, Lawyering and Client Decisionmaking: Informed
Consent and the Legal Profession, 128 U. Pa. L. Rev. 41, 100
(1979)), cert. denied, 502 U.S. 835 (1991); cf. Strickland, 466
U.S. at 691 (noting that counsel's decision not to investigate a
matter must be evaluated in light of information that the
defendant might have supplied the lawyer). Second, the client's
views and desires concerning the best course to be followed are
relevant considerations that must be evaluated and taken into
account by counsel. Without consultation, the views and desires
of the client may not be known to counsel. Third, consultation
serves to promote and maintain a cooperative client-counsel
relationship. We have carefully reviewed the record in this case
and we perceive no threat to the accomplishment of any of these
objectives. Weatherwax had an ample opportunity to convey the
information available to him and to share his own appraisal of
the situation, and nothing about the length or character of the
conference would appear to have strained the attorney-client
relationship between Joseph and Weatherwax.
Consultation between counsel and client may in some
circumstances serve a fourth purpose. If the client learns from
a consultation that counsel is going to pursue a strategy
contrary to the client's wish and the matter is important enough
28
to the client to forego the benefits of his current
representation, the consultation may afford the client an
opportunity to seek different representation. Given that Joseph
was found to have given some assurance that he would "file a
motion" and not to have communicated his final decision to
Weatherwax, this fourth purpose requires further discussion.
The constitutional duty to consult regarding issues on
which counsel has the last word requires only that counsel act
reasonably in light of the circumstances and what is likely to be
accomplished by a consultation. When decisions must be made in
the heat of battle at trial, for example, it will often be
unreasonable to expect any consultation before the decision is
made and implemented, either because the opportunity for
meaningful consultation does not exist or because there is little
if anything to be gained by consultation.
Even where there is an opportunity for consultation,
counsel may reasonably elect not to communicate his final
decision when counsel and client have previously exchanged their
views on the issue and the alternative of changing representation
is not a realistic one. In many trial situations, the nature or
importance of the issue over which a client-counsel disagreement
occurs cannot be expected to cause the client seriously to
consider foregoing the advantages of the current representation.
In other situations, consideration of a change in representation
would be pointless because the court would not permit it at that
stage in the proceedings.
29
Here, Weatherwax did not contend, and the district
court did not find, that Weatherwax would have sought to change
representation had he been advised of Joseph's final decision on
the newspaper issue. Nor did Weatherwax contend, or the district
court find, that Joseph should have anticipated that the district
court might permit a continuance and change of representation on
the last day of Weatherwax's jury trial. Indeed, Weatherwax did
not argue, and the district court did not find, that there was an
opportunity for meaningful consultation with Weatherwax after
Joseph made his decision not to pursue the newspaper issue.
We cannot say on the basis of this record that Joseph
acted unreasonably under all the circumstances in failing to tell
Weatherwax, prior to the jury's verdict,0 of his ultimate
decision on the newspaper issue.0 Joseph had rebuttal witnesses
0
Nothing, of course, foreclosed Weatherwax from pursuing the
newspaper issue after the verdict, by himself or through other
counsel, as he ultimately did in this proceeding.
0
The district court did not find that Joseph made his final
decision on the newspaper issue during the courtroom conference
and thus that Joseph was deliberately misleading his client when
he said he would "do something." Accordingly, we decline to
assume that this was the case. If such deception had occurred,
however, there would appear to be no causal nexus between that
deception and the alleged problem here -- the resolution of
Weatherwax's case by a jury that may have been exposed to a
distorted newspaper account of the trial testimony. Whether
Joseph made his final decision before or after the conclusion of
the conference, the district court was not at liberty to overturn
Weatherwax's conviction without making a finding, based on record
evidence, that without Joseph's assurances about filing a motion,
an objection would have been raised and the course of events
altered. This is not to say that Weatherwax had the burden of
showing that the newspaper article adversely affected the jury.
We do say, however, that habeas corpus relief on the basis of
Joseph's assurances would have been inappropriate where there was
no reason to believe a different jury would have decided
Weatherwax's case in the absence of those assurances.
30
to cross-examine, a jury instruction conference to attend, and a
summation to deliver. Even assuming there was a fair opportunity
to consult further with Weatherwax, however, we do not believe
Joseph could reasonably be expected to have anticipated that
anything would be accomplished by taking that course. On the
contrary, given the circumstances disclosed in the record, we
believe that reasonable counsel in Joseph's position would not
have believed either that Weatherwax would seriously consider a
change in representation or that, if he did, the court would have
permitted a change in representation at that stage of the
proceedings. Not only would an extended continuance have been a
burden on the jury, the trial court would have no assurance that
new counsel would not insist on the same strategy upon which
Joseph was insisting.
In short, after discussing the pros and cons of a
tactical decision with his client, Joseph made a reasonable
choice that was his to make. His failure to advise his client of
that decision cannot be said to be unreasonable, and Weatherwax
has thus failed to carry his burden of overcoming the presumption
of constitutionally acceptable performance.
IV.
The district court also reasoned that Joseph's decision
not to bring the newspaper incident to the court's attention was
a "breach of his duty as an officer of the court." (Dist. Ct.
Op. at 16.) Joseph's duty to the trial court, in the district
court's view, followed both from counsel's "duty to bring to bear
31
such skill and knowledge as will render the trial a reliable
adversarial testing process," Strickland, 466 U.S. at 688, and
from the trial judge's repeated admonitions that the jury should
avoid reading articles about the trial.
We express no opinion on whether Strickland or the
trial court's repeated admonitions support the district court's
theory that Joseph's duty as an officer of the court required him
to bring the matter to the court's attention.0 As we have
explained, Joseph acted as he did solely for the purpose of
serving what he believed to be the best interests of his client
and in a manner consistent with his other obligations to his
client. Given this fact, even if Joseph had some duty to the
court to inform it of the possibility of jury misconduct, we
perceive no reason why the breach of that duty should require the
reversal of Weatherwax's conviction. If counsel breaches a duty
to the court, this does not necessarily mean that the
representation of his client was ineffective. Assuming that
Joseph did violate some ethical duty to the court that would
warrant disciplinary sanctions against him, that breach would
provide no justification for a remedy that would, in effect,
impose a sanction upon the government. Indeed, we believe that
0
The Weatherwax family did not report to Joseph a violation of
the court's order that jurors refrain from reading articles about
the case. Joseph's view that there likely had been no violation
of that order was not unreasonable. Moreover, the investigation
necessary to determine whether there had been a violation could
not be conducted without court approval and seeking such approval
was, in Joseph's professional judgment, inconsistent with his
duty of loyalty to his client. The issue of whether Joseph had
an ethical duty to the court to report the newspaper incident is,
accordingly, a debatable one.
32
overturning a conviction in a situation of this kind on the basis
of counsel's breach of an ethical duty to the court would create
a perverse incentive for defense counsel to "build in" reversible
error for their clients by violating their duties as officers of
the court.
We accordingly hold that any breach of Joseph's duty to
the court would not support the judgment of the district court.
V.
For the foregoing reasons, the district court's
judgment directing Weatherwax's retrial or release will be
reversed and this case will be remanded with instructions that
his petition for habeas relief be denied.
33
1
Government of the Virgin Islands v. William Weatherwax
No. 95-7126
LEWIS, Circuit Judge, dissenting.
A naive assumption about race served as the sole basis for Joseph's "stra
decision" to ignore the wishes of his client regarding the newspaper incident. I n
believe that the decision was unreasonable under prevailing professional norms; I a
believe that it was based upon an underlying assumption that was explicitly rejecte
unreasonable by the Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986) (reject
notion that it is reasonable to assume that black jurors will be partial to black
defendants solely on account of their shared race). See Batson, 476 U.S. at 97.
Accordingly, I dissent.0
Although the majority acknowledges the "racially charged" nature of this
do not believe it adequately pursues the extent to which race influenced Joseph's d
not to inform the court about the juror seen carrying a newspaper into the jury roo
which included an inaccurate and unfavorable article about his client's testimony.
view, in order to assess fairly whether Joseph's strategic choice was reasonable, w
candidly address the assumptions that influenced his decision.
I.
0
This case does not require us to decide the broader and admittedly more diffi
question of the reasonableness or legitimacy of trial strategies that are designed
appeal to the particular racial make-up of a jury. Rather, the views I express rel
specifically to the issue of whether a strategic decision, grounded exclusively upo
lawyer's assumptions about the proclivities of jurors based solely upon their race,
considered professionally reasonable when that decision runs counter to the express
of his or her client and increases the likelihood that that client's constitutional
to an impartial jury will be violated.
2
In determining whether Joseph's actions constituted a sound trial strateg
majority places great emphasis upon the fact that his decision stemmed from a belie
the "jury was the best that could be expected from Weatherwax's point of view." (Ma
at 16). In light of this, the majority concludes, "the [strategic] decision not to
the court was reasonable `under prevailing professional norms.'"0 (Maj. Op. at 16).
other words, Joseph thought that "he had the best jury possible under the circumsta
and he made a judgment that many competent litigators would make under the same
circumstances." (Maj. Op. at 16). Respectfully, I believe my colleagues' focus is
legally and logically misplaced.
Arguably, most if not all decisions by counsel before, during and after a
can be considered strategic. As a result, a finding that a particular decision was
strategic, in and of itself, cannot answer the question whether that decision falls
the "wide range of . . . competent assistance." See Strickland v. Washington, 466
668, 694 (1984). Put differently, not all strategic decisions are by definition
professionally reasonable.0 In order to determine whether a particular strategic d
0
According to the majority, "[b]ringing the newspaper incident to the court's
attention would have created a likelihood that the court would either declare a mis
or excuse a juror whom Joseph felt favored the defense." (Maj. Op. at 16). A mist
the dismissal of a juror, however, would necessarily have required a finding that:
the newspaper article was read by one or more jurors; (2) that its contents were
prejudicial to Weatherwax; and (3) that a juror who read the article was actually
influenced by its prejudicial nature. See Government of the Virgin Islands v. Weath
20 F.3d 572 (3d Cir. 1994) (discussing Government of the Virgin Islands v. Dowling,
F.2d 134 (3d Cir. 1987)). If the court were to have found that a particular juror
presumably the white member of the jury seen carrying the newspaper -- should be di
(i.e., that he was actually prejudiced by reading the article), then it is totally
illogical to argue that Weatherwax would still have benefitted from the presence of
juror simply because the juror was white.
0
In Government of Virgin Islands v. Weatherwax, 20 F.3d 572, 579 (3d Cir. 1994
first review of this case, we observed that "trial counsel's actions here would ind
3
constituted "competent assistance," we must assess the underlying basis for that de
-- an inquiry that, in my view, is not sufficiently pursued by the majority. Moreo
because the majority does not fully confront why Joseph felt that this was the best
possible jury from Weatherwax's perspective, its conclusion that Joseph's inaction
"reasonable `under prevailing professional norms'" strikes me as quite a leap, to s
least.
The following hypothetical, I think, will help to illustrate my point.
Suppose that John Doe, a black man, is charged with first degree murder f
shooting a white man, but claims that the killing was in self-defense. Furthermore
suppose that Doe's jury is all white. During the course of the trial Doe's attorne
decides not to call to the stand a black man, who was a witness to the crime, despi
Doe's request that the testimony be heard.
On appeal, Doe brings an ineffective assistance of counsel claim in which
alleges that his lawyer was incompetent based upon his decision not to introduce th
eyewitness testimony of the black man, whom Doe felt potentially could have aided i
defense. In response to this charge, Doe's lawyer claims that he chose not to call
individual as a witness because he made a professional judgment and concluded that
witness's testimony would have had no impact upon the jury.
that representation was deficient unless the district court determines he [Joseph]
to forego voir dire because he thought the jury was favorable to his client." I wa
member of the panel which decided that case, and I adhere to this statement insofar
is premised upon the notion that strategic decisions by counsel, including those ba
upon a lawyer's belief that a jury is favorable to his client, are presumptively
reasonable. In this case, however, the record developed on remand clearly demonstr
that Joseph's reliance upon the favorable make-up of the jury as an explanation for
inaction was unreasonable because it was motivated solely by an illegitimate race-b
stereotype.
4
Under the majority's logic, the lawyer's explanation that the witness was
called because the testimony would have been ineffectual would, standing alone, con
a sufficient basis upon which to conclude that Doe's counsel acted "reasonably `und
prevailing professional norms.'" (See Maj. Op. at 18 (favorably citing United Stat
Long, 674 F.2d 848, 855 (11th Cir. 1982) (holding that counsel's failure to call al
witness was not ineffective assistance and stating: "This Court will not-second gu
tactical decisions of counsel in deciding whether to call certain witnesses."))).
other words, the majority would not find it necessary to question why Doe's counsel
that the eyewitness's testimony was not worth introducing.
Suppose, however, that the answer to the question the majority does not a
that Doe's attorney made his decision not because he believed that the witness or h
story would be incredible, but because he felt strongly that the testimony of a bla
person would simply carry no weight in the minds of an all-white jury because the v
was white. Surely, the majority would not conclude that Doe's counsel employed a
reasonable strategy by allowing this type of outmoded racial stereotyping to influe
decision whether or not to call the witness. To countenance such an approach, unde
guise of "strategic decisionmaking," would be to place a judicial imprimatur upon t
of evil that Batson and its progeny sought to bury. I have no doubt that under suc
circumstances, we would not permit either a criminal defendant or our system of jus
risk being sacrificed to an odious form of racial reasoning disguised as a legitima
strategic judgment.
5
And yet, a close examination of the record in this case reveals that the
underlying why Joseph decided not to bring the newspaper incident to the court's at
is very similar to that of Doe's attorney.
For example, in arguing to the district court that Joseph's decision was
reasonable and did not require a new trial, the attorney for the government stated
As unlikable as it may be, we all have prejudices and prejudices
may play at trials and Attorney Joseph, based upon his education and
training but more his experience, told you that, typically speaking, I
don't like Continentals on my juries . . .
In this case I can say I guess fairly that Michael Joseph cut
against the grain. He didn't do the same old thing this time. He was
insightful. He said I have a different defendant with a different
profile. . . . Three Continentals on this jury? I don't want to
disturb this jury. I want to leave it the way it is. It was a
tactical decision. He tried to get that jury. He accomplished the
fact of getting that jury and once it was empaneled, he didn't want to
disturb it.
. . .
He said . . . I wanted to keep this jury because I knew with
three Continentals on there that he had a better chance.
(JA 84). Moreover, the "Proposed Findings of Fact and Conclusions of Law," submitt
the government to the trial court, stated:
Because the petitioner is Caucasian, and because he had been charged
with killing a black man, Joseph decided that it was important to
empanel as many Caucasians people on the jury as possible because he
believed that Caucasians would identify with the petitioner. Given
the nature of the charge, first degree murder, the Court finds that
Joseph's strategy, in that regard, was eminently reasonable.
(JA 98) (emphasis added).
Simply put, Joseph disregarded his client's request that he "do something
the newspaper incident because he felt that the three white jurors, solely because
6
were white, would sympathize with Weatherwax. In fact, Joseph's judgment was entir
motivated by race. For example, he stated that "Continentals [i.e. white people] a
often retirees who are viewed as conservative and anti-crime." (See Appellant's Br
n.4.) This admission reveals that there was no reason whatsoever for Joseph to con
that the three white jurors would identify with Weatherwax other than their shared
Why else would persons who are "conservative and anti-crime" identify with an indiv
charged with first degree murder and illegal possession of a firearm?
Joseph's troubling assumptions about the racial partisanship of the white
were so deep-seated that he was willing to risk allowing a white juror, who could h
been prejudiced by an unfavorable article written about his client's testimony, to
on the jury.0 In Joseph's testimony before the district court, he went so far as to
"even if I was [sic] told that the jury was reading the paper, it would not have ma
difference to me." See Judge Brotman's Memorandum Opinion at 4. In my opinion, to
extent such unfortunate assumptions might ever be considered reasonable, they simpl
cannot form the basis of a professionally reasonable strategic decision in light of
interests that weighed in favor of bringing the matter to the court's attention.
On one side of the scale was Joseph's assumption that the white jurors wo
sympathize with Weatherwax based only on their shared race, an approach which,
predictably, backfired and which the Supreme Court explicitly rejected as unreasona
Batson. On the merits, this assumption is undeserving of any weight, but if one we
pretend that it should carry any, one might conclude that it weighed in favor of no
0
During the hearing before the district court, Mrs. Lay testified that Joseph
that the jury [sic] with the newspaper is a white man." (J.A. at 68).
7
informing the court about the newspaper incident.0 But on the other side of the sca
were two legitimate and important considerations: (1) Weatherwax's explicit request
Joseph "do something" about the newspaper incident; and (2) the potential that a fa
to do so could jeopardize Weatherwax's constitutional right to an impartial jury.
balanced against one another the only professionally responsible and reasonable cho
Joseph was to inform the trial court of what had occurred.0
0
As stated earlier, the unreasonableness of Joseph's assumption is demonstrated
fact that he was willing to risk allowing white jurors, who may have been prejudice
against his client by reading an unfavorable article about his client's testimony,
remain on the jury simply based upon their race. In my opinion, such a judgment is
professionally indefensible.
In the majority's view, however, the underlying basis for Joseph's decision fi
support in a variety of social science research, which tends to show that jurors ar
fact partial to defendants of the same race. I do not dispute the legitimacy or ac
of these studies or theories. Rather, I simply believe that it is unreasonable to
that these "affinities" are so deep-seated that they would justify the risk of allo
potentially biased or prejudiced juror to remain on the jury solely due to his or h
race. For example, if Joseph had discovered that one of the white jurors was marri
relative of the crime victim, I am confident that the majority would not consider i
reasonable for Joseph to want to keep that white juror on the case simply because o
or her race. Thus, it seems clear to me that concerns over juror prejudice --parti
when raised by a client -- must trump assumptions about the racial partisanship of
0
Even if I could conceive of a convincing argument that Joseph's decision cons
a reasonable strategy, which I cannot, I would still conclude that his actions fell
professional norms. Rather than completely ignore his client's wishes, the more
appropriate action for Joseph would have been to bring the matter to the attention
court, and then to ask the court not to poll the jury because of its "favorable" ma
The majority contends that "had Joseph brought the newspaper incident to the
court's attention, the court would have had an affirmative obligation to conduct vo
. . . ." See Government of the Virgin Islands v. Dowling, 814 F.2d 134, 139 (3d Ci
1987) ("In every case where the trial court learns that a member or members of the
may have received extra-record information with a potential for substantial prejudi
trial court must determine whether the members of the jury have been prejudiced.")
(emphasis added) (Maj. Op. at 16-17 n.3). I disagree. As the majority itself note
"[t]he [newspaper] article . . . included no extra-record information about Weather
the crime." (Maj. Op. at 3 n.1) (emphasis added). Accordingly, I believe that by
8
Because Joseph's decision was motivated by improper, illegitimate, indefe
outmoded stereotypical assumptions about the proclivities of whites and blacks when
are called upon to sit in judgment of their fellow citizens, and because his decisi
far outside "the wide range of professionally competent assistance," to which Weath
was entitled, I would affirm the district court's order. Accordingly, I dissent.
bringing the matter to the court's attention, Joseph would have accommodated the re
of his client, while simultaneously protecting his trial strategy. Moreover, altho
less desirable, once Weatherwax was found guilty of second-degree murder, this cour
action would have enabled Joseph to file a motion for a new trial based on the news
incident. See Fed. R. Crim. Proc. 33.
9