Nix v. Whiteside, 475 U.S. 157 (1986)

JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, concurring in the judgment.

How a defense attorney ought to act when faced with a client who intends to commit perjury at trial has long been a controversial issue.{1} But I do not believe that a federal habeas corpus case challenging a state criminal conviction is an appropriate vehicle for attempting to resolve this thorny problem. When a defendant argues that he was denied effective assistance of counsel because his lawyer dissuaded him from committing perjury, the only question properly presented to this Court is whether the lawyer’s actions deprived the defendant of the fair trial which the Sixth Amendment is meant to guarantee. Since I believe that the respondent in this case suffered no injury justifying federal habeas relief, I concur in the Court’s judgment.

I

On February 7, 1977, Emmanual Charles Whiteside stabbed Calvin Love to death. At trial, Whiteside claimed self-defense. On direct examination, he testified that Love’s bedroom, where the stabbing had occurred, was "[v]ery much dark," App. 48, and that he had stabbed Love during an argument because he believed that Love was about to attack him with a weapon:

Q. Did you think that Calvin had a gun?

A. Most definitely I thought that.

Q. Why did you think that?

A. Because of Calvin’s reputation, his brother’s reputation, because of the prior conversation that Calvin and I had, I didn’t have no other choice but to think he had a gun. And when he told his girl friend to give him his piece, I couldn’t retreat.

Id. at 50. Whiteside’s testimony was consistent with that of other witnesses who testified that the room was dark, and that Love had asked his girlfriend to get his "piece" (which they all believed referred to a weapon). See, e.g., id. at 17-18, 20, 36-37, and 42-45. No gun, however, was ever found.

Whiteside, who had been charged with first-degree murder, was convicted of second-degree murder, and sentenced to 40 years’ imprisonment. He moved for a new trial, contending that his court-appointed attorneys, Gary Robinson and Donna Paulsen, had improperly coerced his testimony. Whiteside now claimed that he had been a gun, but had been prevented from testifying to this fact.

At an evidentiary hearing on this motion, Whiteside testified that he had told Robinson at their first meeting that he had seen a weapon in Love’s hand. Some weeks later, Robinson informed Whiteside that the weapon could not be found and, according to Whiteside, told him to say only that he thought he had seen a gun, rather than that he in fact had seen one. Whiteside

got the impression at one time that maybe if I didn’t go along with -- with what was happening, that it was no gun being involved, maybe that he will pull out of my trial.

App. to Pet. for Cert. A70.

Robinson’s testimony contradicted Whiteside’s. According to Robinson, Whiteside did not initially claim to have seen a gun, but rather claimed only that he was convinced Love had had one. Roughly a week before the trial, however, in the course of reviewing Whiteside’s testimony, Whiteside "made reference to seeing something `metallic’. . . . I don’t think he ever did say a gun." Id. at A85:

And at the end, Donna asked him about that, because that was the first time it had ever been mentioned either to her or to myself. His response to that was, "in Howard Cook’s case, there was a gun. If I don’t say I saw a gun, I’m dead." I explained to him at that time that it was not necessary that the gun be physically present for self-defense, one; two, that to say that would be perjury on his part, because he had never at any time indicated that there was a gun . . . ; three, that we could not allow him to do that . . . ; four, I advised him that, if he did do that, it would be my duty to advise the Court of what he was doing . . . ; also, that I probably would be allowed to attempt to impeach that particular testimony. I told him that there was no need for him to lie about what had happened, that he had a good and valid defense on the facts as he had related them to us, and we felt we could present a good self-defense case on the facts he had stated to us.

Ibid.

Robinson acknowledged that Whiteside’s claim of self-defense would have been stronger had the gun been found, but explained that, at trial, "we tried to create a gun," through testimony from people who had seen Love carrying a gun on other occasions, through a stipulation that Love had been convicted of possession of a weapon, and through suggestions made during cross-examination of the State’s witnesses that the initial police search had been too cursory to discover the weapon, and that Love’s girlfriend had removed it from the apartment prior to a second, more thorough, search. Id. at A87-A88.

The trial court rejected Whiteside’s motion for a new trial, "find[ing] the facts to be as testified to by Ms. Paulsen and Mr. Robinson." App. 57. The Iowa Supreme Court affirmed. State v. Whiteside, 272 N.W.2d 468 (1978).

Whiteside then sought federal habeas relief in the United States District Court for the Southern District of Iowa. The parties agreed to rest on the record made in the state court proceedings. Chief Judge Stuart held that the trial judge’s factual finding that Whiteside would have committed perjury had he testified at trial actually to having seen a gun was fairly supported by the record, and thus entitled to a presumption of correctness. See 28 U.S.C. § 2254(d). Since Whiteside had no constitutional right to perjure himself, he had been denied neither a fair trial nor effective assistance of counsel. App. to Pet. for Cert. A41.

The Court of Appeals for the Eighth Circuit reversed. Whiteside v. Scurr, 744 F.2d 1323 (1984). The court recognized that the issue before it was not whether Robinson had behaved ethically,{2} but rather whether Whiteside had been deprived of effective assistance of counsel. Id. at 1330. In the Court of Appeals’ view, Robinson had breached the obligations of confidentiality and zealous advocacy imposed on defense counsel by the Sixth Amendment. In addition, the Court of Appeals concluded that Robinson’s actions impermissibly compromised Whiteside’s constitutional right to testify in his own behalf by conditioning continued representation and confidentiality on Whiteside’s limiting his testimony.

The court recognized that, under Strickland v. Washington, 466 U.S. 668 (1984), a defendant must normally demonstrate both that his attorney’s behavior was professionally unreasonable and that he was prejudiced by his attorney’s unprofessional behavior. But it noted that Strickland v. Washington had recognized a "limited" presumption of prejudice when counsel is burdened by an actual conflict of interest that adversely affects his performance, see id. at 692, quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980). Here, Whiteside had shown that Robinson’s obligations under the Iowa Code of Professional Responsibility conflicted with his client’s wishes, and his threat to testify against Whiteside had adversely affected Whiteside by "undermin[ing] the fundamental trust between lawyer and client" necessary for effective representation. 744 F.2d at 1330.

Petitioner’s motion for rehearing en banc was denied by a vote of 5 to 4. Whiteside v. Scurr, 750 F.2d 713 (CA8 1984). In dissent, Judge John R. Gibson, joined by Judges Ross, Fagg, and Bowman, argued that Whiteside had failed to show cognizable prejudice. Cuyler v. Sullivan was inapposite, both because finding a conflict of interest required making the untenable assumption that Whiteside possessed the right to testify falsely and because Robinson’s threat had had no adverse effect on the trial, since Whiteside testified fully in his defense. Moreover, the result of the proceeding should not have been different had Whiteside been permitted to testify as he wished.

A separate dissent by Judge Fagg, joined by Judges Ross, John R. Gibson, and Bowman, addressed the performance prong of Strickland. Robinson’s admonition to Whiteside to testify truthfully simply could not be viewed as creating a conflict of interest; Robinson presented a full and zealous defense at trial; and, although Robinson’s warning to Whiteside may have been "strident," 750 F.2d at 718, he had communicated with his client in a manner the client understood.

II

A

The District Court found that the trial judge’s statement that "I find the facts to be as testified to by Ms. Paulsen and Mr. Robinson" was a factual finding that Whiteside "would have perjured himself if he had testified at trial that he actually saw a gun in his victim’s hand." App. to Pet. for Cert. A42. This factual finding by the state court is entitled to a presumption of correctness under 28 U.S.C. § 2254(d), which Whiteside has not overcome.

Respondent has never attempted to rebut the presumption by claiming that the factfinding procedure employed by Iowa in considering new trial motions in any sense deprived him of a full and fair hearing or failed to provide a sufficient basis for denying his motion.{3} Although respondent’s argument to this Court in large part assumes that the precluded testimony would have been false, see Brief for Respondent 10-11, he contends, first, that the record does not fairly support the conclusion that he intended to perjure himself because he claimed in his first written statement that Love had been pulling a pistol from under a pillow at the time of the stabbing, see App. 55, and, second, that whether Robinson had sufficient knowledge to conclude he was going to commit perjury was a mixed question of law and fact to which the presumption of correctness does not apply.

Neither contention overcomes the presumption of correctness due the state court’s finding. First, the trial judge’s implicit decision not to credit the written statement is fairly supported by Robinson’s testimony that the written statement had not been prepared by Whiteside alone, and that, from the time of their initial meeting until the week before trial, Whiteside never again claimed to have seen a gun. See App. to Pet. for Cert. A78-A79. Second, the finding properly accorded a presumption of correctness by the courts below was that Whiteside’s "proposed testimony would [have been] deliberately untruthful." State v. Whiteside, 272 N.W.2d at 471. The lower courts did not purport to presume the correctness of the Iowa Supreme Court’s holding concerning the mixed question respondent identifies -- whether Robinson’s response to Whiteside’s proposed testimony deprived Whiteside of effective representation.

B

The Court approaches this case as if the performance-and-prejudice standard requires us in every case to determine "the perimeters of [the] range of reasonable professional assistance," ante at 165, but Strickland v. Washington explicitly contemplates a different course:

Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order, or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.

466 U.S. at 697. See also Hill v. Lockhart, 474 U.S. 52, 60 (1985). In this case, respondent has failed to show any legally cognizable prejudice. Nor, as is discussed below, is this a case in which prejudice should be presumed.

The touchstone of a claim of prejudice is an allegation that counsel’s behavior did something "to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. at 687. The only effect Robinson’s threat had on Whiteside’s trial is that Whiteside did not testify, falsely, that he saw a gun in Love’s hand.{4} Thus, this Court must ask whether its confidence in the outcome of Whiteside’s trial is in any way undermined by the knowledge that he refrained from presenting false testimony. See id. at 694.

This Court long ago noted:

All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth. Therefore it cannot be denied that it tends to defeat the sole ultimate objective of a trial.

In re Michael, 326 U.S. 224, 227 (1945). When the Court has been faced with a claim by a defendant concerning prosecutorial use of such evidence, it has

consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury

(footnote omitted). United States v. Agurs, 427 U.S. 97, 103 (1976). See also e.g., Napue v. Illinois, 360 U.S. 264, 269 (1959); Pyle v. Kansas, 317 U.S. 213, 216 (1942); Mooney v. Holohan, 294 U.S. 103, 112 (1935). Similarly, the Court has viewed a defendant’s use of such testimony as so antithetical to our system of justice that it has permitted the prosecution to introduce otherwise inadmissible evidence to combat it. See, e.g., United States v. Havens, 446 U.S. 620, 626-627 (1980); Oregon v. Hass, 420 U.S. 714, 720-723 (1975); Harris v. New York, 401 U.S. 222, 225-226 (1971); Walder v. United States, 347 U.S. 62, 65 (1954). The proposition that presenting false evidence could contribute to (or that withholding such evidence could detract from) the reliability of a criminal trial is simply untenable.

It is no doubt true that juries sometimes have acquitted defendants who should have been convicted, and sometimes have based their decisions to acquit on the testimony of defendants who lied on the witness stand. It is also true that the Double Jeopardy Clause bars the reprosecution of such acquitted defendants, although on occasion they can be prosecuted for perjury. See, e.g., United States v. Williams, 341 U.S. 58, 63-65 (1951). But the privilege every criminal defendant has to testify in his own defense "cannot be construed to include the right to commit perjury." Harris v. New York, 401 U.S. at 225.{5} To the extent that Whiteside’s claim rests on the assertion that he would have been acquitted had he been able to testify falsely, Whiteside claims a right the law simply does not recognize. "A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed." Strickland v. Washington, 466 U.S. at 695. Since Whiteside was deprived of neither a fair trial nor any of the specific constitutional rights designed to guarantee a fair trial, he has suffered no prejudice.

The Court of Appeals erred in concluding that prejudice should have been presumed. Strickland v. Washington found such a presumption appropriate in a case where an attorney labored under "`an actual conflict of interest [that] adversely affected his . . . performance,’" id. at 692, quoting Cuyler v. Sullivan, 446 U.S. at 348. In this case, however, no actual conflict existed. I have already discussed why Whiteside had no right to Robinson’s help in presenting perjured testimony. Moreover, Whiteside has identified no right to insist that Robinson keep confidential a plan to commit perjury. See Committee on Professional Ethics and Conduct of Iowa State Bar Assn. v. Crary, 245 N.W.2d 298, 306 (Iowa 1976). The prior cases where this Court has reversed convictions involved conflicts that infringed a defendant’s legitimate interest in vigorous protection of his constitutional rights. See, e.g., Wood v. Georgia, 450 U.S. 261, 268-271 (1981) (defense attorney paid by defendants’ employer might have pursued employer’s interest in litigating a test case rather than obtaining leniency for his clients by cooperating with prosecution); Glasser v. United States, 315 U.S. 60, 72-75 (1942) (defense attorney who simultaneously represented two defendants failed to object to certain potentially inadmissible evidence or to cross-examine a prosecution witness in an apparent attempt to minimize one codefendant’s guilt). Here, Whiteside had no legitimate interest that conflicted with Robinson’s obligations not to suborn perjury and to adhere to the Iowa Code of Professional Responsibility.

In addition, the lawyer’s interest in not presenting perjured testimony was entirely consistent with Whiteside’s best interest. If Whiteside had lied on the stand, he would have risked a future perjury prosecution. Moreover, his testimony would have been contradicted by the testimony of other eyewitnesses and by the fact that no gun was ever found. In light of that impeachment, the jury might have concluded that Whiteside lied as well about his lack of premeditation, and thus might have convicted him of first-degree murder. And if the judge believed that Whiteside had lied, he could have taken Whiteside’s perjury into account in setting the sentence. United States v. Grayson, 438 U.S. 41, 52-54 (1978).{6} In the face of these dangers, an attorney could reasonably conclude that dissuading his client from committing perjury was in the client’s best interest, and comported with standards of professional responsibility.{7} In short, Whiteside failed to show the kind of conflict that poses a danger to the values of zealous and loyal representation embodied in the Sixth Amendment. A presumption of prejudice is therefore unwarranted.

C

In light of respondent’s failure to show any cognizable prejudice, I see no need to "grade counsel’s performance." Strickland v. Washington, 466 U.S. at 697. The only federal issue in this case is whether Robinson’s behavior deprived Whiteside of the effective assistance of counsel; it is not whether Robinson’s behavior conformed to any particular code of legal ethics.

Whether an attorney’s response to what he sees as a client’s plan to commit perjury violates a defendant’s Sixth Amendment rights may depend on many factors: how certain the attorney is that the proposed testimony is false, the stage of the proceedings at which the attorney discovers the plan, or the ways in which the attorney may be able to dissuade his client, to name just three. The complex interaction of factors, which is likely to vary from case to case, makes inappropriate a blanket rule that defense attorneys must reveal, or threaten to reveal, a client’s anticipated perjury to the court. Except in the rarest of cases, attorneys who adopt "the role of the judge or jury to determine the facts," United States ex rel. Wilcox v. Johnson, 565 F.2d 115, 122 (CA3 1977), pose a danger of depriving their clients of the zealous and loyal advocacy required by the Sixth Amendment.{8}

I therefore am troubled by the Court’s implicit adoption of a set of standards of professional responsibility for attorneys in state criminal proceedings. See ante at 168-171. The States, of course, do have a compelling interest in the integrity of their criminal trials that can justify regulating the length to which an attorney may go in seeking his client’s acquittal. But the American Bar Association’s implicit suggestion in its brief amicus curiae that the Court find that the Association’s Model Rules of Professional Conduct should govern an attorney’s responsibilities is addressed to the wrong audience. It is for the States to decide how attorneys should conduct themselves in state criminal proceedings, and this Court’s responsibility extends only to ensuring that the restrictions a State enacts do not infringe a defendant’s federal constitutional rights. Thus, I would follow the suggestion made in the joint brief amici curiae filed by 37 States at the certiorari stage that we allow the States to maintain their "differing approaches" to a complex ethical question. Brief for State of Indiana et al. as Amici Curiae 5. The signal merit of asking first whether a defendant has shown any adverse prejudicial effect before inquiring into his attorney’s performance is that it avoids unnecessary federal interference in a State’s regulation of its bar. Because I conclude that the respondent in this case failed to show such an effect, I join the Court’s judgment that he is not entitled to federal habeas relief.