Lawyer's Confession & Avoidance Not Ineffective

US v. Fredman, No. 03-35808 (12-10-04). The 9th affirms a denial of an IAC claim arising because counsel, at trial, admitted some of the petition's wrongdoing. This is known as the "confession and avoidance" tactic. In this case, there was extensive evidence that the defendant was a conspirator in a meth manufacturing case. He had already plead guilty to a California state meth drug charge. The evidence appeared overwhelming and defense counsel tried to draw the distinction in opening that the petitioner was a California meth cooker, but not involved in this conspiracy. The jury convicted. The 9th held that this tactic was permissible, and was the best that counsel could do. Ferguson, in a concurrence, cautioned that this "confession and avoidance" tactic was something that courts ordinarily don't approve of, but was reasonable here given the evidence. Summary by Jon Sands