Cooke v. State

¶1dissenting:

¶2While we commend our colleagues for their exhaustive effort in scrutinizing the record in this case, we fundamentally disagree with their core analysis — a holding that U.S. v. Cronic,132not Strickland v. Washington,133is the template for resolving the knotty problem of determining whether counsel’s defensive strategy so sharply contrasted with Cooke’s expressed objective that the strategy deprived Cooke of his right to reasonably effective assistance of counsel. In our view, the Majority fails to come to grips with the reality that “death is different” and that the guilt and penalty phases are so inextricably intertwined, that counsel’s effectiveness must be scrutinized with the specter of death as the omnipresent backdrop. *858While the Majority believes that defense counsel’s strategy undermined Cooke’s objective and deprived Cooke of the right to make fundamental decisions, we believe defense counsel pursued an appropriate strategy while upholding all of Cooke’s fundamental rights.

¶3We dissent because: (1) we conclude that a Strickland analysis applies; and (2) under a Strickland analysis, counsel satisfied Cooke’s Sixth Amendment right to reasonably effective assistance of counsel. We also conclude that the issue of effective assistance of counsel, albeit inconsistent with our usual practice, can be resolved in this appeal based on the established record.134 We, therefore, would affirm Cooke’s convictions.

¶4Strickland Controls When Counsel Chooses a Legal Strategy

¶5In Strickland v. Washington, the United States Supreme Court held that under the Sixth Amendment, the defendant has a right to reasonably effective assistance of counsel.135 The Court there emphasized that “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” 136 To establish that counsel violated his Sixth Amendment right, a defendant must demonstrate not only that counsel’s performance was deficient but also that the deficiency was “so serious as to deprive [him] of a fair trial.” 137 Judicial scrutiny of counsel’s performance is highly deferential, and any “ineffectiveness claim must consider the totality of the evidence before the judge or jury.” 138

¶6Generally, there is a presumption of defense counsel’s competence, with the burden to establish a Sixth Amendment violation resting on the defendant.139 In U.S. v. Cronic, however, the U.S. Supreme Court held that a Sixth Amendment violation is presumed where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing” or where there are “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” 140 The Nixon Court specifically recognized the presumption of a violation *859only where there is a “complete denial of counsel”141 to the defendant or where counsel is “either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.”142

¶7In Florida v. Nixon, the U.S. Supreme Court held that Strickland, rather than Cronic, was the appropriate standard for reviewing defense counsel’s failure “to obtain the defendant’s express consent to a strategy of conceding guilt in a capital trial.”143 The Court began its analysis by noting that, although counsel “has a duty to consult with the client regarding ‘important decisions,’ including questions of overarching defense strategy[,]”144 counsel need not “obtain the defendant’s consent to ‘every tactical decision.’ ”145 The Court distinguished the strategic choice of conceding guilt in the guilt phase, which may be “tactically advantageous for the defendant,” from actually pleading guilty. The latter choice, unlike the former, waives the defendant’s constitutional rights to “trial by jury, the protection against self-incrimination, and the right to confront one’s accusers.”146 The Court concluded that “counsel lacks authority to consent to a guilty plea on a client’s behalf’147 and that “a defendant’s tacit acquiescence in the decision to plead is insufficient to render the [guilty] plea valid.”148

¶8The Nixon Court distinguished a concession of guilt — where the defendant “retain^] the rights accorded a defendant in a criminal trial” including the rights to “cross-examine witnesses for the prosecution ... [to] endeavor ... to exclude prejudicial evidence” and the right to appeal “in the event of errors in the trial or jury instructions” — from a guilty plea, where the prosecution need not present evidence “establishing the essential elements of the crimes with which [the defendant] was charged.”149 The Court pointedly refused, however, to require a defendant’s “affirmative, explicit acceptance” of counsel’s tactical decision to concede guilt, because conceding guilt is not “the equivalent of a guilty plea.”150

¶9Although in Nixon, the U.S. Supreme Court concluded that Strickland applies where a defendant neither expressly consents nor expressly objects to his counsel’s tactical decision to concede guilt,151 the Court did not address whether the Strickland standard applies where — as here— *860the defendant clearly and consistently objects to counsel’s defense strategy. Unlike the defendant in Nixon, Cooke consistently and expressly objected to his counsel’s presenting a Guilty But Mentally Ill (GBMI) defense. Thus, Nixon, does not reach the facts of this case.

¶10It is at this juncture that we and the Majority part company. Nixon holds that “... a lawyer must both consult with the defendant and obtain consent to the recommended course of action” concerning “whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.”152 That is all that Nixon holds. The Majority, however, extends Nixon to support their claim that, even though Cooke’s counsel consulted and obtained Cooke’s consent concerning his fundamental rights, counsel “undermine[d]” and “deprived Cooke of his constitutional right to make fundamental decisions regarding his case.” The Majority must rely on their expanded Nixon holding to construct support for their foundational proposition— counsel is per se ineffective if counsel fails to pursue the innocence “objective” that they believe follows from pleading not guilty — even where asserting innocence at trial despite overwhelming evidence to the contrary would enhance the risk of receiving the death penalty. The Majority’s proposition (and expansive interpretation of Nixon) is flawed because a defendant’s choice to plead not guilty may result in either asserting innocence or challenging the State to prove guilt beyond a reasonable doubt. In this case, Cooke’s counsel pursued this latter corollary objective of pleading not guilty, while at the same time they presented a strategy of using GBMI in order to save their client’s life. We must decide, therefore, with little guidance from federal case law, whether Strickland or Cronic applies where the defendant explicitly disagrees with counsel over defensive strategy.

¶11In our view, Strickland, not Cronic, should apply to this situation, because Cronic applies only where counsel does nothing or next to nothing to discharge his duty to present a vigorous defense.153Cronic is an exception to Strickland, and permits a presumption of a Sixth Amendment violation only where there is a “complete denial of counsel,” where counsel is absent or is prevented from assisting the defendant during a critical stage of the proceeding, or where counsel fails to subject the prosecution’s case to “meaningful adversarial testing.”154 None of these circumstances is presented here.

¶12In Capital Cases Involving Overwhelming Evidence of Guilt, Counsel Satisfies the Sixth Amendment bg Subjecting the State’s Case to an Adversarial Process

¶13To establish a Sixth Amendment violation under Cronic’s standard, the accused bears the burden of proving that counsel entirely failed to subject the State’s case to a meaningful adversarial process.155 In Cronic, the U.S. Supreme Court held that the following factors are relevant to analyzing counsel’s effectiveness: the time afforded for investigation and preparation; experience of counsel; the gravity of the charge; the complexity of possible defenses; and the accessibility of witnesses.156*861“The five factors ... are relevant to an evaluation of a lawyer’s effectiveness in a particular case, but neither separately nor in combination do they provide a basis for concluding that competent counsel was not able to provide [the defendant] with the guiding hand that the Constitution guarantees.” 157

¶14To satisfy the Sixth Amendment requirement of effective assistance, “counsel must function as an advocate for the defendant, as opposed to a friend of the court.”158Cronic, however, limited counsel’s duty as an advocate in cases where there is “no bona fide defense to the charge.”159 The Court specifically recognized that “counsel cannot create [a defense] and may disserve the interest of his client by attempting a useless charade.”160

¶15In Nixon, a heinous capital murder case involving overwhelming evidence against the defendant, the U.S. Supreme Court recognized that defense counsel must consider both the guilt and penalty phases in determining how best to proceed.161 The Court reasoned that, where the evidence is overwhelming and the crime atrocious, “avoiding execution may be the best and only realistic result possible.”162 Given overwhelming evidence of guilt, the best defense may be to present a case that is the functional equivalent of a plea for a life sentence, while at the same time testing the prosecution’s case yet not running the risk by professing innocence of increasing the chances of the death penalty.163 Supportive of that reality are the ABA’s Guidelines for Appointment and Performance of Defense Counsel in Death Penalty Cases, which suggest that “[i]deally, the theory of the trial must complement, support, and lay a groundwork for the theory of mitigation.”164 In certain cases, to preserve credibility in the penalty phase, defense counsel must avoid making fruitless and potentially harmful arguments during the guilt phase.165

¶16It is well settled that in capital cases defense counsel can concede guilt as a trial tactic in the guilt phase, to preserve credibility in the penalty phase, where the defendant knows of the tactic and does not expressly object to it.166 Counsel, however, must consult with the defendant concerning the overall defense strategy.167 That said, the defendant’s consent to every tactical decision is not required.168 Conceding guilt alone does not violate a fundamental right. Indeed, as the U.S. Supreme Court has recognized, defendants’ only fundamental rights are the right to plead guilty, waive a jury, testify or not, or to take an appeal.169

¶17Red Dog v. State,170for instance, focused *862on a defendant’s fundamental right to appeal. In Red Dog, counsel attempted to act in the best interest of the defendant by filing an appeal on his behalf — contrary to the defendant’s objective.171 In Red Dog’s Motion for Stay of Execution, we held that his counsel acted “in derogation of [the defendant’s] express directions to the contrary”172 because “the decision to pursue or dismiss any application for post-conviction relief ... is [the defendant’s] to make.”173Red Dog differs from this case even though in both cases defense counsel diverged from the defendant’s “objective.” Red Dog’s defense counsel, however, violated Red Dog’s fundamental right to take or refuse to take an appeal. Not so with Cooke, who asserted all of his fundamental rights: he pleaded not guilty, had a trial by jury, testified, and took a direct appeal.174 Nothing in Red Dog supports the Majority’s citation to that case for the proposition that beyond entering a not guilty plea, “[t]he decision to pursue a verdict of not guilty and assert his factual innocence belongs to the defendant.”

¶18There is at least one capital case where the defendant openly objected to defense counsel conceding his guilt. In Haynes v. Cain, Louisiana indicted a defendant for first degree murder and sought the death penalty.175 Defense counsel concluded that the best trial strategy would be to concede the allegations except for the element of intent to cause death, in order to preserve the defendant’s life.176 That strategy was intended to result in a conviction of second degree murder, thereby avoiding the death penalty.177 Following the opening statement, the defendant informed the trial judge that he did not agree with defense counsel’s strategy.178 Concluding that excellent attorneys represented the defendant, the judge denied his request for a change of counsel.179

¶19Cooke and his counsel’s differing views on strategy cannot and do not lead inexorably to the conclusion that he received a “complete denial of counsel,” as the majority suggests. Cooke’s counsel actively engaged in the pretrial and trial proceedings. They were never absent at any stage of the trial. Cooke not only had access to counsel but also had the discretion to make key decisions at critical stages of the trial. To reiterate: Cooke pleaded not guilty, testified, his counsel cross examined witnesses against him where advantageous, and Cooke filed an appeal.180 Given what any reasonable person would conclude to be “overwhelming evidence of guilt,” Cooke’s defense counsel recognized that, “given the strength of the evidence, that ... [Cooke’s] guilt was not subject to any reasonable dispute.”181 Given the overwhelming evidence against their client, Cooke’s counsel similarly concluded that *863“the only way to save [Cooke’s] life would be to present extensive mitigation evidence centering on ... mental instability.”182 Although their strategy entailed implicitly conceding guilt, counsel did not prevent Cooke from pleading not guilty, did not waive Cooke’s trial rights and did not hinder his right to appeal. Counsel’s strategy focused on preserving Cooke’s life — the best and only realistic possible result— similar to the strategy counsel employed in Nixon.

¶20Although defense counsel’s decision to present a GBMI defense constrained them from arguing his innocence, counsel still zealously advocated for Cooke and contested the State’s case. Defense counsel filed several pretrial motions to suppress evidence and motions to exclude certain unfairly prejudicial evidence. Defense counsel also filed motions to change venue and to declare the Delaware death penalty statute unconstitutional. During trial, counsel also cross examined witnesses where there may have been merit in doing so, and moved to suppress evidence of an alleged crime that occurred after the murder.

¶21The only instance where defense counsel arguably affirmatively conceded guilt beyond asserting GBMI was through the testimony of Dr. Turner, a psychologist who had evaluated Cooke before trial. Dr. Turner testified that during an interview Cooke had admitted culpability, at least in part. Despite that equivocal testimony, the Majority writes as if the “confession” stood uncontradicted even by Cooke himself during sessions with Dr. Turner. That portrayal is incomplete. Dr. Turner also testified that Cooke told him (Turner) that: he could not believe what he was doing, that he did not remember anything, that he could not believe the victim was dead, and on occasion, Cooke even denied having committed the crimes. Dr. Turner’s testimony supported a finding that Cooke was mentally ill, consistent with counsel’s GBMI mitigation defense.183

¶22We cannot conclude that defense counsel “entirely failed” under any of the factors suggested in Cronic’s five prongs, because counsel: (1) investigated and prepared the case; (2) were highly experienced capital defense lawyers; (3) lacked any other plausible defenses; (4) and were accessible to Cooke.184 We, therefore, believe that Strickland, not Cronic, provides the template for evaluating counsel’s performance in order to determine whether Cooke received a fair trial. For those reasons, we cannot agree that defense counsel’s strategic actions violated Cooke’s Sixth Amend*864ment rights. In capital cases that involve overwhelming evidence of guilt and where defense counsel utilizes a strategy that may not frontally support the original not guilty plea, counsel’s most effective course might be to force the State to prove guilt beyond a reasonable doubt while at the same time tactically striving to avoid the death penalty.185 No U.S. Supreme Court opinion holds that that strategy is constitutionally prescribed.

¶23Death is Different

¶24Capital cases are inherently different from ordinary criminal cases for the obvious reason that death may be the penalty after conviction in the guilt phrase. Death differs from incarceration in two important ways. First, taking the defendant’s life is the severest form of punishment. Second, death is irrevocable. These patently clear differences make it essential that the criminal justice system contain adequate safeguards to make certain that the death penalty is carried out only where it is the only appropriate punishment.

¶25One important safeguard is that, unlike ordinary criminal trials, capital cases are tried in two separate proceedings — a guilt phase and a penalty phase.186 During the guilt phase a jury decides whether the defendant is guilty of the crimes he is charged with having committed.187 If the jury finds the defendant guilty of a capital crime, the case proceeds to the penalty phase, during which the defendant is on trial for his life.188 In this phase of the trial, the central issue is “the meaning and value of the defendant’s life.”189 That is why the defendant’s lawyers are permitted to provide the jury with mitigating evidence of why the jury should spare the defendant’s life.190

¶26The unique nature of capital cases requires that defense attorneys be given wide discretion to defend their clients in both the inextricably linked guilt and penalty phases as the individual case demands. First, the dual nature of a capital trial forces defense counsel to make strategic choices that are not required in a noncapi-tal criminal case. Second, in a capital case it is far more difficult to discern the client’s sincere objectives than in an “ordinary” criminal trial.

¶27The severity and irrevocability of death hangs like a pall over the dual phased capital case proceedings. “The penalty phase of a capital trial differs so greatly from an ordinary criminal trial that the usual standards for assessing competency of counsel in criminal cases are inadequate in death penalty cases.”191 In general, attorneys are ethically bound to try to secure the most favorable possible outcome for their client.192 In many situations, the guilt of the defendant is so clear beyond a reasonable doubt that an attorney’s only option for his client to escape the death penalty is to fix in the jury’s minds during the penalty phase a compelling basis for a sentence of life in prison.193

¶28*865In capital cases with overwhelming factual evidence of guilt, attorneys should not be second-guessed for focusing on preserving the defendant’s life rather than proving his innocence — irrespective of the defendant’s inconsistent demands. Several studies have shown that jurors approach the sentencing phase cynically where counsel’s sentencing-phase presentation is logically inconsistent with their earlier guilt-phase defense.194 Courts that make it extremely difficult for defense counsel to obtain the best realistic outcome for their client, and that bar defense counsel from focusing on sparing a defendant’s life, increase the likelihood that the defendant will be sentenced to death.

¶29Courts should also give wide discretion to defense counsel because it is much harder for counsel to discern the true wishes of a client in a death penalty case than in an ordinary criminal case. Given the severity and irrevocability of the death penalty, coupled with the protracted nature of a two phase trial, death penalty cases exact a severe emotional and psychological toll on defendants.195 This stress, in many cases, “distorts reactions and effects decisions.”196 Capital defense attorneys thus face both the practical and moral difficulty of trying to discern what their clients’ actual objectives may be and whether those objectives are rational. Given that difficulty, defense counsel should be accorded wide latitude in determining the best approach to save their clients’ lives.

¶30Applying Cronic’s Presumption Would Be Bad Public Policy

¶31If the Cronic standard were to be applied to Cooke, as the majority has de-dared, then a defendant’s death penalty conviction could be overturned on Sixth Amendment grounds without any inquiry being made into counsel’s actual performance at trial or into whether counsel’s strategic decisions had any effect on the trial’s outcome.197 That result would have several detrimental public policy implications.

¶32First, the Cronic standard’s economic costs are higher. Where a conviction is overturned, the State must decide whether to drop charges, negotiate a plea, or retry the case. In most death penalty cases where the evidence against the defendant is overwhelming and the nature of the crime is heinous, prosecutors are likely to seek a retrial.198 Because under Cronic no analysis is undertaken to determine if any alleged error on the part of counsel could have or actually did play a substantial role in the defendant’s conviction, the State would be forced to retry the cases. Thus, tax payers would effectively pay twice for retrial of cases where the evidence of guilt is so overwhelming that the second trial will almost unquestionably result in the same outcome as the first.

¶33Second, using Cronic as a metric for counsel’s performance in a case such as this would negatively affect a defendant’s ability to obtain the very counsel the Sixth Amendment requires. Not only is the right to counsel constitutionally protected, but also there are important practical reasons why it is required. Our judicial system is designed to “promote the ultimate objective that the guilty be convicted and the innocent go free.”199 The right to *866counsel is important because it helps ensure that innocent individuals are not found guilty simply because they are ignorant of their constitutional rights.200 The right to counsel mitigates that concern, because “access to counsel’s skill and knowledge is necessary to accord defendants the ‘ample opportunity to meet the case of the prosecution’ to which they are entitled.”201

¶34The majority’s restriction of counsel’s strategic options in capital cases would undermine defendants’ right to counsel in two important ways. First, attorneys may be unwilling to serve in capital cases because of the intense scrutiny to which they would be subjected. “Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.” 202 Finding counsel who are, both willing and able to take on capital cases constitutes a more severe problem than in ordinary criminal cases, because death penalty cases are so fundamentally different. “Capital cases require perceptions, attitudes, preparation, training, and skills that ordinary criminal defense attorneys may lack.” 203 Because most attorneys are neither capable of nor willing to handle a capital case, it is essential that the small percentage of attorneys trained in capital cases be willing to accept assignment. If attorneys with the skills to try capital cases are unwilling to do so, it will be difficult for Delaware to ensure that defendants receive adequate counsel.

¶35Even where attorneys are willing to defend capital defendants, there is a danger that the quality of their work could suffer. Defending capital defendants is a difficult job involving long hours, little pay, and extremely difficult decisions. There is a strong possibility that second guessing and criticizing every move that defense attorneys make could lead to systemic demoralization that would adversely effect the effort counsel invest in defending their clients.

¶36We conclude that the Majority applies the wrong standard for scrutinizing counsel’s efforts, even though the Majority concedes that the litmus test is: “[wjhether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” The majority errs by focusing on counsel’s obligation to acquiesce in Cooke’s objective, rather than on whether Cooke received a fair trial with reasonably effective assistance of counsel that produced a “just result.” Nowhere does the Majority even suggest that a new trial where counsel blindly follows Cooke’s irrational position would produce a more “just” outcome. Therefore, we respectfully dissent.