A. Counsel should inform the client of any tentative negotiated agreement reached with the prosecution, and explain to the client the full content of the agreement along with the advantages, disadvantages and potential consequences of the agreement.
B. The decision to enter or to not enter a plea of guilty should be based solely on the client’s best interest.
Commentary:
In non-capital cases, the decision to enter a plea of guilty rests solely with the client. 1 When the decision to plead guilty is likely to result in the client’s death, however, counsel’s position is unique. If no written guarantee can be obtained that death will not be imposed following a plea of guilty, counsel should be extremely reluctant to participate in a waiver of the client's trial rights. In California at least, a defendant cannot plead guilty over the objection of the attorney, 2 giving counsel a tremendous responsibility for the client’s life.
In other words, counsel must strive to convince a client to overcome natural emotional resistance to the idea of standing in open court and admitting guilt of what was charged as a capital offense if that will save the client’s life. 3 Conversely, counsel must strive to prevent a (perhaps
depressed or suicidal) client from pleading guilty where there is a likelihood that such a plea will result in a death sentence.
FOOTNOTES:
1. NLADA, Performance Guidelines For Criminal Defense Representation (Draft Guideline
6.3 (b)); ABA Standards, The Defense Function, Standard 4-5.2 (a) (i).
2. People v. Chadd, 28 Cal. 3d 739; 170 Cal. Rptr. 798; 621 P.2d 837 (1981); Cal. Penal Code
1018.
3. Butler, excerpt from an article in the OHIO DEATH PENALTY MANUAL, reprinted in
Indiana Public Defender Counsel, INDIANA DEATH PENALTY DEFENSE MANUAL, Vol. 1, p. 1.3-1, 1.3-3 (1985).
GUIDELINE 11.6.4 ENTRY OF THE PLEA BEFORE THE COURT A. Prior to the entry of the plea, counsel should:
1. make certain that the client understands the rights he or she will waive by entering the
plea and that the client's decision to waive those rights is knowing, voluntary and intelligent;
2. make certain that the client fully and completely understands the conditions and limits
of the plea agreement and the maximum punishment, sanctions and other consequences the accused will be exposed to by entering a plea;
3. explain to the client the nature of the plea hearing and prepare the client for the role
he or she will play in the hearing, including answering questions from the judge and providing a statement concerning the offense.
B. During entry of the plea, counsel should make sure that the full content and conditions of the plea agreement are placed on the record before the court.
Commentary:
This Guideline is taken verbatim from a draft of general defense attorney performance
guidelines. 1 However, a requirement that counsel be prepared to address the question of release pending sentencing has been omitted, as it would he a rare capital case in which this option would he available. When the plea being offered would allow a reasonable argument for pre- sentence release, of course, counsel should be prepared to make that argument. Similarly, no guideline regarding advocacy for pretrial release has been included. 2
The conditions of any negotiated settlement should be set forth as clearly as possible on the record, to avoid later interpretations disadvantageous to the client. 3
FOOTNOTES:
1. NLADA, Performance Guidelines For Criminal Defense Representation (Draft Guideline
6.4).
3. In Ricketts v. Adamson, 483 U.S.__: 107 S.Ct.__ ; 97 LEd. 2d 1 (1987) a defendant had pled guilty to second degree murder in exchange for testifying against his co-defendants. He later asserted that he had met the conditions of the bargain by testifying at the co- defendants' original trial, and refused to testify at retrial following reversal of the co- defendants' convictions. The defendant's own conviction and prison sentence were then vacated, he was tried for capital murder and sentenced to death.
GUIDELINE 11.7.1 GENERAL TRIAL PREPARATION
A. As the investigations mandated by Guideline 11.4.1 produce information, counsel should formulate a defense theory. In doing so, counsel should consider both the guilt/innocence phase and the penalty phase, and seek a theory that will he effective through both phases. B. If inconsistencies between guilt/innocence and penalty phase defenses arise, counsel should
seek to minimize them by procedural or substantive tactics. Commentary:
Formulation of and adherence to a defense theory are vital in any criminal case. 1 In the bifurcated proceedings of a capital trial, the defense theory is especially important. 2
Counsel should discuss the theory and strategy for both phases with the client throughout trial preparation to maintain an effective defense through both phases. While some steps can be attempted to alleviate the harm of inconsistent defenses, 3 it is important that counsel consider throughout the guilt/innocence phase how new developments and information may impact on the sentencing phase theory, and adjust accordingly. 4
FOOTNOTES:
1. See e.g. Bailey and Rothblatt, INVESTIGATION AND PREPARATION OF CRIMINAL
CASES, (2d ed.) sec. 1:3.
2. See Indiana Public Defender Council, INDIANA DEATH PENALTY DEFENSE
MANUAL, Vol. 11, p. 7.4-42 (1985); Dept. of Public Advocacy, KENTUCKY PUBLIC ADVOCATE DEATH PENALTY MANUAL, p. 286-289 (1983).
3. Counsel may, for instance, seek a different jury for sentencing in jurisdictions where
sentencing is done by the jury. See, Tabak, The Death of Fairness: The Arbitrary and Capricious Imposition of the Death Penalty in the 1980s, XIV N.Y.U. Rev. L. a Soc. Change, 797, 808 n. 72 (1986). There is no guarantee that a separate sentencing jury will be impaneled, see State v. Shields, 15 Ohio App. 112; 472 N.E. 2d 1110 (1984) (bifurcated trial using the same jury not improper even though defense counsel must choose between defenses).