Today in 1986: SCOTUS rules that defendant wasn’t prejudiced by attorney’s refusal to allow perjury

February 26, 2016

Today in Legal HistoryAs many practicing attorneys are aware, many clients make a plethora of demands of their attorneys, some of them unreasonable.

One variety of such demands is a nightmare for many attorneys: That the client be allowed to lie under oath.

Of course, one of the first rules of professional ethics is for the representing attorney to refuse to allow his or her client to proceed with the perjury, and to withdraw from representation if the client refuses to relent.

But do such actions amount to ineffective assistance of counsel, such that a criminal defendant’s Sixth Amendment rights would be violated?

The Supreme Court answered this very question 30 years ago today, in its Nix v. Whiteside ruling, decided on February 26, 1986.

The facts of the case begin on February 7, 1977, when Emmanual Charles Whiteside stabbed Calvin Love to death.  At trial, Whiteside claimed self-defense, arguing that he believed that Love was about to attack him with a firearm.

Although the room in which the events transpired was dark at the time, and Love has asked his girlfriend to get his “piece” shortly before Whiteside stabbed him, no gun was ever found in Love’s appartment.

Indeed, until shortly before trial, Whiteside had consistently told his attorney Gary Robinson that he never actually saw a gun, but that he was nonetheless convinced that Love had a gun in his hand.  It was at this point, roughly a week before trial, that Whiteside for the first time told Robinson and his associate Donna Paulsen “that he had seen something ‘metallic’ in Love’s hand.”

The attorneys inquired further about it, and Whiteside replied:

“[I]n Howard Cook’s case there was a gun.  If I don’t say I saw a gun, I’m dead.”

Robinson then told Whiteside that such testimony would be perjury, and further added that his self-defense claim didn’t require Whiteside to actually prove that a gun was present, but rather that he “reasonably believed that he was in danger.”

Robinson advised Whiteside that if he went through with his planned testimony, that he would inform the court that Robinson believed him to be committing perjury.  In addition, Robinson suggested that “he would seek to withdraw from the representation if Whiteside insisted on committing perjury.”

Whiteside didn’t give his proposed testimony about seeing something “metallic” in Love’s hand, and the jury returned a verdict of second-degree murder.  Whiteside moved for a new trial, claiming that “he had been deprived of a fair trial by Robinson’s admonitions not to state that he saw a gun or ‘something metallic.’”  After a hearing, the trial court denied the motion.

After stops at the Iowa Supreme Court, the U.S. District Court, and the U.S. Court of Appeals for the Eighth Circuit, the case landed before the U.S. Supreme Court.  The Court unanimously ruled against Whiteside, finding that he had not been deprived of his Sixth Amendment right to assistance of counsel because his attorney refused to cooperate in presenting perjured testimony at trial.  Specifically, the Court cited to its 1984 ruling Strickland v. Washington, holding that, to prove that he had been deprived of effective assistance of counsel, “a defendant must normally demonstrate both that his attorney’s behavior was professionally unreasonable and that he was prejudiced by his attorney’s unprofessional behavior.”

Here, the Court found that Robinson’s behavior in preventing Whiteside’s perjury was not only professionally reasonable, it was required of him under the circumstances.  After all, although attorneys have an “overarching duty to advocate the defendant’s cause,” such advocacy must remain within the bounds of the law.

The Court also noted that ”[e]ven if we were to assume that the jury might have believed his perjury, it does not follow that Whiteside was prejudiced” by Robinson’s refusal to allow perjury, since “Whiteside’s truthful testimony could not have prejudiced the result of his trial.”

Although most attorneys probably don’t harbor any reasonable concerns of facing professional sanctions for deterring a client from committing perjury, the Supreme Court made it abundantly clear in its 30 year old ruling that attorneys have a stronger loyalty to the law than to their own clients’ interests, should they ever conflict.