- The Washington Times - Tuesday, November 2, 2004

ASSOCIATED PRESS

Lawyers should be able to decide the best trial defense for prospective death-row inmates, even if it means conceding the defendant’s guilt without his explicit consent, a government lawyer told the Supreme Court yesterday.

“Counsel has a right to make strategic judgments when there is no objection by the client,” said Irving L. Gornstein, assistant to the U.S. solicitor general.

A ruling otherwise “prevents counsel from pursuing an effective strategy for saving a defendant’s life,” he said.

On Election Day, justices heard arguments in a case challenging a Florida Supreme Court decision to grant a new trial for Joe Elton Nixon. He was convicted in the 1984 murder of a woman he met at a Tallahassee mall.

At issue is the court-appointed attorney’s decision to admit at trial that Nixon was responsible for the victim’s “horrible, horrible death” in the hope that his candor would persuade the jury to spare the man’s life.

Edward H. Tillinghast, an attorney representing Nixon, argued that his client was unfairly given the death penalty because his trial lawyer didn’t try to prove his innocence.

“There was a complete breakdown in the adversarial process,” he said.

Florida prosecutors said Nixon tied Jeanne Bickner, a 38-year-old state worker, to trees with jumper cables and set her on fire. Facing substantial evidence against him, Nixon’s lawyer offered unsuccessfully to plea-bargain for life imprisonment before deciding to concede the man’s guilt at the beginning of trial.

After he was sentenced to death, Nixon charged he was denied a Sixth Amendment right to counsel because his attorney had not vigorously argued in his defense. Prosecutors countered that Nixon did not object when his attorney told him of the trial strategy to build jury sympathy.

The case hinges on a pair of Supreme Court decisions handed down in 1984 amid misgivings among some justices that punishments were sometimes imposed arbitrarily as a result of poor attorney representation.

Thirty-seven states allow the death penalty, and about 3,500 convicted murderers are on death row.

The 1984 rulings limit inmates’ ability to claim a Sixth Amendment violation if their attorneys made the strategic choice not to pursue certain defenses at trial. The rulings also provide exceptions when counsel utterly fails to challenge the prosecution with “meaningful adversarial testing.”

In a 5-2 decision last year, the Florida Supreme Court ordered a new trial after determining that the lawyer did not effectively represent Nixon nor did the defendant agree to his attorney’s strategy.

“Counsel’s duty is to hold the state to its burden of proof by clearly articulating to the jury or fact finder that the state must establish each element of the crime charged,” the Florida court said.

Nixon did not attend his trial; instead, he stripped off his clothes and refused to enter the courtroom. The judge held a hearing in Nixon’s cell to make sure the defendant waived his right to attend the trial. Wearing only underwear, Nixon told the judge he wanted another attorney, and he would disrupt the trial if forced to attend.

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