counsel. He summed up the deficiencies of a contrary rule leaving the decision to the client with the stark observation that there is no constitutional requirement that an attorney "must walk his client to the electric chair." Wright v. Estelle, 572 F.2d at 1074 (Thornberry, Clark, Roney, Gee, & Hill, JJ., specially concurring).
Although leaving the decision to counsel may seem logically sound, it does not withstand scrutiny in light of the constitutional analysis expressed in Rock. It is precisely because the defendant's freedom is at stake, that some decisions are left for the accused to make, informed by the advice of counsel. The exercise of the constitutional right to assistance of counsel does not extinguish the defendant's right to make certain fundamental decisions as to the case. Although the Supreme Court did not directly hold in Rock that the right to testify is fundamental and personal to the defendant, this conclusion inevitably flows from its reasoning and holding, as well as from the Court's prior precedent. The Supreme Court in Rock held that the right to testify is a "necessary corollary to the Fifth Amendment's guarantee against compelled testimony." 483 U.S. at 52, 107 S. Ct. at 2709. Thus, the same logic which dictates that a criminal defendant may not be compelled to testify by defense counsel, also supports the conclusion that a defendant may not be compelled to remain silent by his or her attorney. See Teague, 953 F.2d at 1525.
This conclusion is also consistent with the standards of the American Bar Association, which emphasize that the testimonial decision is one for the client to make with the advice of counsel. See 1 Standards for Criminal Justice, Standard 4-5.2(a) (2d ed. 1980); Model Rules of Professional Conduct, Rule 1.2(a) (1983).
Although after Rock there is general agreement among courts that the right to testify is fundamental and personal to the defendant, courts differ on the appropriate constitutional framework to employ in analyzing a claim that counsel interfered with the right. Some courts analyze the claim as a Sixth Amendment deprivation of the right to effective assistance of counsel. This approach rests upon the assumption that it is the responsibility of defense counsel to advise the defendant of his right to testify and thus to ensure that the right is protected. Foster v. Delo, 11 F.3d at 1455; Teague, 953 F.2d at 1534; see also Deluca, 858 F. Supp. at 1355. Other judges have analyzed the claim more broadly as a denial by counsel of a fundamental constitutional right. See Jordan v. Hargett, 34 F.3d 310, 312 (5th Cir. 1994) (opinion vacated)
; Wright v. Estelle, 572 F.2d at 1077-84 (Godbold, J. dissenting); United States v. Butts, 630 F. Supp. 1145, 1148-49 (D. Me. 1986); Underwood v. Clark, 939 F.2d 473, 474-75 (7th Cir. 1991) (dicta); Rogers-Bey v. Lane, 896 F.2d at 283 (dicta). These opinions emphasize that the right to testify is personal to the defendant, cannot be waived by counsel, and has as its source, rights in addition to the Sixth Amendment right to counsel.
Jordan v. Hargett, 34 F.3d at 316 n.5; Wright v. Estelle, 572 F.2d at 1077-84; Butts, 630 F. Supp. at 1148-49. The Second Circuit has not yet had occasion to address this issue.
The government argues that petitioner's claim should be analyzed as an ineffective assistance of counsel claim, while petitioner urges that his claim should be characterized as a fundamental rights violation.
Although the issue is not free from doubt, this Court concludes that the analysis employed by the Court in Teague, of approaching the claim as one of ineffective assistance is the most sound. This approach gives proper deference to the unique role played by counsel in the defendant's decision to testify. As the court observed in Teague: "because it is primarily the responsibility of defense counsel to advise the defendant of his right to testify and thereby to ensure that the right is protected, . . . the appropriate vehicle for claims that the defendant's right to testify was violated by defense counsel is a claim of ineffective assistance of counsel." 953 F.2d at 1534.
B. Petitioner Received Ineffective Assistance of Counsel
To make a showing of ineffective assistance of counsel, petitioner must demonstrate that (1) counsel's "representation fell below an objective standard of reasonableness," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674 (1984). The Supreme Court has defined reasonable probability as "a probability sufficient to undermine confidence in the outcome" of the proceeding. Id. at 694. A court reviewing such a claim should indulge a strong presumption that counsel rendered reasonable professional assistance. Id. at 689. Applying the Strickland standard, courts have required a petitioner to "demonstrate that his counsel committed errors so serious that he was not functioning as counsel within the meaning of the Sixth Amendment and that counsel's performance was so deficient that he was deprived of a fair trial." Foy v. United States, 838 F. Supp. 38, 43 (E.D.N.Y. 1993); see also Cuevas v. Henderson, 801 F.2d 586, 589 (2d Cir. 1986), cert. denied, 480 U.S. 908, 107 S. Ct. 1354, 94 L. Ed. 2d 524 (1987).
The Court finds that the performance of petitioner's trial counsel fell "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. Petitioner had the right to decide whether to testify, and counsel decided that it was he, and not petitioner, that would make this decision.
In this respect alone, counsel's conduct "fell below an objective standard of reasonableness." Id. at 688; Teague, 953 F.2d at 1534 (if defense counsel refused to accept defendant's decision to testify or never informed defendant of his ultimate right to decide to testify, "defendant clearly has not received reasonably effective assistance of counsel"); Deluca v. Lord, 858 F. Supp. at 1360-61 (counsel found ineffective for failure to inform defendant of her ultimate right to decide whether to testify).
Petitioner's trial counsel, Barry Asness, testified at the habeas hearing that on more than one occasion petitioner told his counsel that he would like to testify. Specifically, petitioner brought up the subject of his testifying immediately after Agent Matos had testified because petitioner disagreed with Agent Matos' version of events. Asness testified that when petitioner raised the issue, he told petitioner he would think about it and let petitioner know whether it was necessary. At some point later in the trial, petitioner told his counsel that he now wanted to testify. Asness told him that it would be a mistake.
Asness specifically testified, that at no time did he ever inform petitioner that it was petitioner's choice to testify. In fact, despite the case law cited herein and the clear directives of the American Bar Association's Standards of Criminal Justice and Model Rules of Professional Conduct
, defense counsel thought it was his, and not petitioner's decision to make. According to Asness:
I felt I was boss of this case . . .. He [petitioner] is not a very sophisticated man, certainly not sophisticated in the law . . .. I could not take his judgment as to what he wanted to do and have that be the ruling issue. . .. So I perhaps was overbearing in my zeal to protect him and to help him, and I did not value his judgment over my own. I didn't value his judgment very much at all, quite frankly. So in a desire to help him, I did not allow him to make that decision. I did not tell him he could overrule me.
Tr. at 19-20.
Asness unequivocally stated that he believed it was his prerogative to make the decision as to whether petitioner would testify. When asked if the decision was made together with petitioner, Asness responded, "it was really my opinion, my decision. He said he wanted to testify, and I'm basically saying to him, it's a big mistake . . . you shouldn't testify. Go away and don't bother me." (Tr. at 49).
The government argues that counsel was not ineffective because petitioner was aware of his ultimate right to testify. The government points to the fact that petitioner initially raised the issue with his trial counsel, and that after asking once, petitioner was aware that he might still testify. However, the issue here is not whether petitioner knew he had the right to testify, but whether he knew that ultimately it was his choice to make, not that of his attorney. The government concedes that Asness never advised petitioner that it was petitioner's choice to testify. As the testimony quoted above makes clear, even Asness, a highly experienced criminal defense attorney, did not think that in this case it was petitioner's prerogative to decide to testify.
Moreover, petitioner testified at the habeas hearing, that had Asness told him that it was ultimately his decision to decide whether to testify, that he would have taken the stand, ignoring the advice of his attorney. The Court finds the petitioner's testimony at the hearing on this point credible, i.e. that even in the face of his attorney's admonitions, petitioner, had he known it was his choice, "would have come to testify because I was anxious to speak . . . because the accusations were very great." Under these factual circumstances, it is clear that petitioner received ineffective assistance of counsel.
Petitioner also suffered prejudice as a result of his counsel's failure to inform him that he had the ultimate right to testify. Petitioner testified at the habeas hearing that he would have taken the stand and told his version of his meeting with Matos. The government argues that petitioner was not prejudiced because his testimony would have been incredible and the outcome of the trial would have been unchanged. The government doubts that a jury would have believed petitioner because in order to do so the jury would have had to determine that Matos, an agent of the DEA, was lying. Moreover, the government argues that petitioner would not have been found credible by the jury because he would have testified that he did not know that his wife or his friend Vargas were involved in criminal activity.
The Court finds that there is at least a reasonable probability that but for counsel's unprofessional error, the result of the trial would have been different. The testimony against petitioner at his trial was not so strong as to render harmless petitioner's failure to testify. Agent Matos was the only witness to testify against petitioner, and his account was not directly corroborated by a tape recording or other evidence. Moreover, although petitioner's actions and statements as recounted by Agent Matos were sufficient evidence to convict, they evidenced at best a limited role in the charged offenses. Finally, petitioner's testimony would have directly contradicted that of Matos.
It is certainly true, as the government argues, that the jury would have had to believe petitioner, and not Matos, but the Court cannot assume that a jury would have rejected petitioner's testimony. At trial, Matos' testimony was obviously believed, but it stood uncontradicted. The jury may have viewed the case differently if Campos had testified. The government argues that Matos, as a DEA agent, would have been more credible, but the Court's instruction advised the jury that his status as an agent did not make him more or less credible than any other witness. Petitioner's purported testimony was not so fanciful or belied by other evidence that a reasonable juror could not have believed it.
Petitioner had a right to tell his side of the story, but his attorney did not allow him to do so. Had the jury heard petitioner's version of the meeting with Matos, its verdict may very well have been different. Often in criminal cases, "the most important witness for the defense . . . is the defendant himself." Rock v. Arkansas, 483 U.S. at 52, 107 S. Ct. at 2709. The Court finds that it is at least reasonably probable that had petitioner testified, "the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. "The testimony of a criminal defendant at his own trial is unique and inherently significant. The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." Nichols v. Butler, 953 F.2d 1550, 1553 (11th Cir. 1992) (quoting Green v. United States, 365 U.S. 301, 304, 5 L. Ed. 2d 670, 81 S. Ct. 653 (1961)). Under the facts of this case, the Court holds that petitioner received ineffective assistance of counsel.
For the reasons set forth above, Mario Campos' petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 is granted and his conviction is set aside. Campos is entitled to a new trial. The government is directed to submit a writ to the Court to secure Campos' presence at a status conference on this matter on June 25, 1996 at 4:30 p.m.
Dated: Brooklyn, New York
June 7, 1996
Carol Bagley Amon
United States District Judge