Monday, May 11, 2020

No ineffective assistance where counsel told the jury his client paid to have someone shot in a contract killing

Picture this: you are on trial, charged with conspiracy for murder-for-hire, or contract killing. You are in federal court, and if you are found guilty, you will be sentenced for life. You eagerly await your attorney's summation, when he is expected to tear apart the government's case against you because the government is relying on liars and turncoats to prove your guilt. Your attorney looks the jury in the eye and says you hired individuals to shoot the victim, but you did not intend for the victim to be killed. Wait, what?!?

The case is United States v. Rosemond, issued on May 1. The jury found defendant guilty of conspiracy to commit murder-for-hire. Hence, this appeal, claiming the trial lawyer was ineffective in violation of the Sixth Amendment and that he violated the defendant's Sixth Amendment right to autonomy.

The lawyer allows for criminal lawyers some discretion in litigating their cases. It is therefore quite difficult to win ineffective assistance appeals. In addition to that, the Supreme Court in the last term clarified the "right to autonomy" in United States v. McCoy, holding that criminal defendants have the right "to make fundamental choices about [their] defense," including whether to persist in maintaining their innocence "even in the face of overwhelming guilt." So how does all of that play out when a lawyer tells the jury in a contract killing case that his hired people to shoot the victim but not to kill him?

Defendant, a prominent rap music mogul, loses the appeal. On the ineffective assistance of counsel argument, the Second Circuit (Sack, Chin and Bianco) reaffirms that trial lawyers can make strategic choices, including whether to concede an element of the crime. This is "sound trial strategy" when he attorney does not concede his client's guilt. or when there is overwhelming evidence against the client. The same holds true on the right to autonomy, though it is the defendant's prerogative to decide on the objective of his defense. The court holds that "conceding an element of the crime while contesting the other elements falls within the ambit of trial strategy." While defendant and his attorney shared the same objective, acquittal, counsel never conceded his client was guilty of the charged crime. This was a strategic concession. Of course, counsel conceded an important element of the crime, that defendant hired people to shoot the victim. But, the Court of Appeals says, that does not mean counsel conceded that defendant hired people to kill the victim.

The Second Circuit notes that defendant, in support of his motion for a new trial, sad he dd not want his lawyer to tell the jury that he paid to have the victim shot. But he also said in this motion that he would have preferred his counsel tell the jury that he paid for a kidnapping so he could confront the victim face to face. "Had Rosemond asserted his right to autonomy to prevent his attorney from conceding any crime because of the 'opprobrium' that accompanies such an admission, his argument might carry greater weight. It loses its thrust, however, when he picks and chooses which crime he is comfortable conceding."

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