Conceding Guilt

An attorney's concession of guilt at trial on two or four criminal charges requires a hearing into the client's position, according to a decision of the United States Court of Appeals for the Fourth Circuit.

At trial

In his closing argument to the jury, [defense counsel] Johnson made a critical concession that had not yet featured in the trial: that Hashimi had, in fact, assaulted and kidnapped his ex-girlfriend.

The last few days I’ve done very little, if no questioning relating to the kidnap and domestic violence. Shame on Mr. Hashimi, shame on him. I am sure he was humiliated that [his ex-girlfriend] was cheating on him behind his back, I am sure, but that doesn’t excuse what he did. And if he were allowed to, he would accept responsibility for that right in front of you. J.A. 649.

Those two counts conceded, Johnson devoted his efforts to contesting the drug counts. It did not work. The jury was persuaded by Johnson’s concession but not his defense, and it found Hashimi guilty on all counts.

Governing law

To protect a client’s right to decide for himself whether to concede guilt to a jury, McCoy explained, defense counsel is obliged to do two things. First, McCoy contemplates a consultation between defense counsel and client, in which defense counsel may try to persuade a client that conceding guilt is or has become the best course. Id. at 423-24. And second, if the client expresses a preference in response to that consultation, counsel may not “override” it and must instead abide by it. Id. at 424. We emphasize, again, that the parties here agree on these twin obligations; at oral argument, the government clarified that it reads McCoy as requiring defense counsel both to consult with a defendant before conceding guilt and to honor any objection raised by the defendant.

But what happens if defense counsel, convinced that he has before him the rare case in which conceding guilt at trial is the best path forward, consults with his client and receives no response – neither approval nor objection? McCoy answers that question by reference to its earlier-decided Nixon case: If “a client declines to participate in his defense,” then the choice defaults to the attorney, who “may permissibly guide the defense pursuant to the strategy she believes to be in the defendant’s best interest.” McCoy, 584 U.S. at 424 (discussing Nixon, 543 U.S. at 181).

Here

we conclude that the district court erred in denying § 2255 relief on Hashimi’s McCoy claim without first holding an evidentiary hearing. The record in this case, taken in the light most favorable to Hashimi, gives rise to a reasonable inference that Hashimi’s court-appointed lawyer, Johnson, failed to meet the obligations imposed by McCoy before conceding Hashimi’s guilt on two charges in his closing argument to the jury. And nothing in the record conclusively rebuts this possibility. See Mayhew, 995 F.3d at 176. That is enough to entitle Hashimi to an evidentiary hearing into a potential violation of the Sixth Amendment autonomy right recognized in McCoy.

(Mike Frisch)