The schizophrenic Sixth

The Bible may say, "No one can serve two masters." But do these words of wisdom apply to the Sixth Amendment's right to counsel? Two recent cases -- McCoy v. Louisiana, 138 S. Ct. 1500 (2018), and People v. Farwell, 5 Cal. 5th 295 (2018) -- suggest that they may.

By its terms, the Sixth Amendment grants "the accused," "[i]n all criminal prosecutions," "the right to ... have the assistance of counsel for his defense." U.S. Const., amend. VI.

As construed, however, this guarantee serves two masters.

First, the right to counsel is a critical means by which a defendant is assured a fair trial. Mickens v. Taylor, 535 U.S. 162, 166 (2002). In this respect, the right to counsel is a "gateway" right because a competent defense lawyer has the skills to ensure that all of a criminal defendant's other constitutional rights are honored. This interest in ensuring fairness is why counsel must be reasonably competent and, at the same time, why only deficiencies in representation that deny a fair trial are deemed prejudicial enough to warrant a retrial. Ibid.; Strickland v. Washington, 466 U.S. 688, 684-86, 694 (1984).

Second, the right to counsel is a tool a defendant can choose to use in her defense, but it is not a mandate. In this respect, the right to counsel is a means of respecting a criminal defendant's right of self-determination. "[T]o force a lawyer on a defendant," the United States Supreme Court has ruled, "can only lead him to believe that the law contrives against him." Faretta v. California, 422 U.S. 806, 834 (1975). This is in large part why criminal defendants have the right to represent themselves, id., as well as the right to retain counsel of their own choosing, United States v. Gonzalez-Lopez, 548 U.S. 140, 147-48 (2006).

The goals of ensuring a fair trial and honoring autonomy can run at cross purposes, and they can accordingly be distinct masters. The right to represent one's self empowers criminal defendants with no legal training to square off against prosecutors with law degrees and years of courtroom experience; honoring this right is all but guaranteed to make the resulting trial less fair. And the right to retain counsel of choice applies "regardless of the quality of the representation [a defendant] receive[s]" from that counsel. Gonzalez-Lopez, 548 U.S. at 148. Indeed, it is precisely because the exercise of these rights is likely to be harmful to defendants that courts are excused from assessing whether the denial of these rights is harmless; their denial is deemed to be structural error that automatically requires a new trial. McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (Faretta); Gonzalez-Lopez, 548 U.S. at 150.

Is it possible to serve both of these masters at the same time?

This question arises when a criminal defendant is duly represented by counsel, but disagrees with counsel over the best way to mount a defense.

In this situation, the two masters tug in different directions. The interest in fairness would say that the counsel should be the "captain of the ship" for the simple reason that counsel knows better how to navigate the substantive law and trial practice. People v. Welch, 20 Cal. 4th 701, 728-29 (1999). The interest in autonomy would say that the client should be able to dictate what happens; after all, the Sixth Amendment secures the "assistance of counsel," which seems to suggest the lawyer is playing second fiddle to the defendant-client.

Certain fundamental decisions about how to mount a defense are solely the defendant's to make, even if her counsel disagrees: Do I plead guilty? Do I take the stand to testify in a non-perjurious way? Do I waive a jury? Harris v. New York, 401 U.S. 222, 225 (1971) (right to testify); Jones v. Barnes, 463 U.S. 745, 751 (1983) (right to plead guilty, to waive a jury). Decisions sounding more in trial tactics are solely counsel's to make, even if the defendant disagrees: Which evidentiary objections do I make? Do I give an opening or closing statement? Do I move to suppress evidence? New York v. Hill, 528 U.S. 110, 114-15 (2000).

But what about decisions regarding the best strategy for defending a case? Who gets to make those calls?

McCoy and Farwell dealt with such situations.

In McCoy, the evidence that the defendant gunned down his ex-wife's family was nigh overwhelming. The family called 911 to report defendant at their doorstep and the call recorded the sound of gunfire; witnesses saw someone matching defendant's description fleeing in defendant's car; the abandoned car contained the cordless phone held by one of the victims as well as a receipt for the ammunition used to kill the victims; defendant told two friends he shot his ex-wife's family; and defendant was arrested a few days later in a different state while carrying the murder weapon. McCoy, 138 S. Ct. at 1513 (Alito, J., dissenting). Because defendant was charged with first-degree murder and because the prosecutor was seeking the death penalty, the defense attorney, as a means of gaining credibility with the jury, conceded that defendant was the shooter (the actus reus) but argued that he acted impulsively and without premeditation (the means rea). Id. at 1505-06, 1516-17. Defendant "vociferously" objected to this strategy, preferring to argue that he was the victim of an elaborate, multi-state conspiracy of law enforcement officers to frame him. Id. at 1506. McCoy held that this particular strategy call -- which involved a concession to the lesser-included offense of second-degree murder -- was defendant's to make because "it is the defendant's prerogative, not counsel's, to decide on the objective of his defense." Id. at 1505, 1516-17. What is more, "[b]ecause [the] client's autonomy, not counsel's competence, [was] in issue," the court deemed the error structural. Id. at 1510-11.

In Farwell, the People charged the defendant with gross vehicular manslaughter and driving on a suspended license. At trial, defense counsel stipulated that defendant had been driving on a suspended license. Farwell noted that the decision to stipulate to facts "will most often repose in the sound discretion of [defense] counsel," but ruled that the stipulation in this case--because it effectively constituted a guilty plea to the suspended license offense -- was defendant's decision to make only after advisement of the constitutional rights he was giving up in entering that plea. Farwell, 5 Cal.5th at 300, 308. The court remanded the matter for the trial court to assess whether the record "affirmatively" "demonstrate[d] that the defendant voluntarily and intelligently waived his constitutional trial rights." Id. at 298, 300.

Together, Farwell and McCoy reaffirm and help define the following rules regarding who gets to make which strategy calls. Defense counsel may make some strategy calls, including conceding lesser-included crimes or sentencing enhancements during argument, People v. Cain, 10 Cal. 4th 1, 34-35 (1995); People v. Lopez, 31 Cal. App. 5th 55, 63-67 (2019), or stipulating to some (but not all) of their elements, People v. Rodriguez, 73 Cal. App. 4th 1324, 1330-1331 (1999). But if the defendant objects to such a confession or stipulation, or if counsel stipulates to all elements of a lesser-included offense or a sentencing enhancement, that decision is defendant's to make. People v. Adams, 6 Cal. 4th 570, 577, 580 n.7 (1993) (sentencing enhancement); McCoy (lesser-included offense); Farwell (charged offense, with objection),

Put differently, when a defendant and his counsel are at the wheel of the S.S. Defense, who gets to steer depends chiefly upon the size of the iceberg they are trying to avoid and whether the defendant speaks up. The smaller the iceberg, the more likely it is that counsel -- the person better able to navigate around it -- will be at the helm. The bigger the iceberg and the more vocal the defendant, the more likely it is that the defendant -- the person less able to avoid it -- will be in command. The net effect is likely to be more collisions.

This result makes little sense if the goal of the right to counsel is to assure the fairness of trials. But it makes more sense if, as McCoy and Farwell affirm, the goal of the right to counsel is to honor a criminal defendant's self-determination: It is the defendant's ship to steer because it is the defendant's liberty at stake.

In this context at least, who commands the ship is more important than the course it charts. The clear horizon belongs to autonomy, not fairness.