US v. Thomas
No. 03-56750 (8-3-05). This is an IAC petition. The petitioner was involved in two robberies. In the second one, an off-duty FBI agent saw the defendant and others running from a UPS store and looking suspicious. The agent followed them, a gun fight ensued, evidence found, and defendant eventually apprehended. He faced a multitude of charges, including Hobbs, robberies and firearms. Defense counsel conceded guilt on the UPS robbery but vigorously defended on the other charges, including who shot at the agent, use of guns and so forth. If the 9th went with a Strickland approach, it would have to decide whether the strategy fell below the standard expected, and whether there was prejudice. If the 9th adopted an elements approach, and considered the client abandoned by counsel (Cronic), then relief is required. The 9th opted for Strickland, in finding that there were sound reasons for conceding guilt on one charge to fight others and establish credibility (which is done in guilt phases of capital cases). Rymer wrote the opinion. B. Fletcher and Fisher concurred, clearly making the point that it is ineffective, and unethical, for a lawyer to decide to concede guilt without consulting the client. In this case, the lawyer doesn't remember if he told the defendant this was the strategy, and the defendant alleges he never knew. The guilt here though was so overwhelming that the prejudice standard was not met. The concurrence warns that: "It is deficient performance for an attorney to concede his client's guilt without prior consultation with the client, even when the concession relates to one charge out of several, and even where evidence of guilt is strong."