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High court considers Florida death row case

The issue: Did a lawyer's ploy of conceding guilt in hopes of mercy doom a client who refused to help in his defense?

Associated Press
Published November 3, 2004

WASHINGTON - The Supreme Court considered on Tuesday whether a lawyer was wrong to concede a death row inmate's guilt without his consent, and many justices seemed unwilling to second-guess a trial strategy aimed at saving the man's life.

The high court appeared ready to set aside a Florida Supreme Court decision to grant a new trial to Joe Elton Nixon, convicted in the 1984 murder of a woman he met at a Tallahassee mall.

At issue is the court-appointed attorney's decision to admit at trial that Nixon was responsible for the victim's "horrible, horrible death" in hopes that his candor would persuade the jury not to impose the death penalty.

Asserting a "complete breakdown in the adversarial process," attorney Edward H. Tillinghast contended that Nixon was unfairly sentenced to death because his lawyer didn't try to prove his innocence.

Tillinghast was met with a barrage of skeptical questioning by justices wondering why they should second-guess the trial attorney, Michael Corin. Nixon had opportunities to object when his lawyer told him of the strategy but didn't, they said.

"You said his lawyer acted without consent ... but he said nothing," said Justice Ruth Bader Ginsburg. "Where a client doesn't say yes and doesn't say no, mustn't a lawyer do what he thinks is best to do? Mustn't a lawyer exercise his best judgment?"

Justice Antonin Scalia agreed. "According to the lower courts, (conceding guilt) was a good strategy. I don't know why you want counsel, when a client doesn't answer, to take a course that gets him executed."

Nixon did not attend his trial; he refused to enter the courtroom. The judge held a hearing in a cell to make sure he was waiving his right to attend the trial. Nixon said he wanted another attorney and that he would disrupt the trial.

Florida prosecutors say Nixon kidnapped Jeanne Bickner, a 38-year-old state employee who was helping him start his stalled car, tied her to a tree with her jumper cables and set her on fire. Facing substantial evidence against his client, Corin tried unsuccessfully to plea-bargain for life in prison before deciding to concede the man's guilt at the trial's start.

After he was sentenced to death, Nixon said he was denied a Sixth Amendment right to counsel because his attorney had not argued his defense vigorously. Prosecutors countered that Nixon did not object to the strategy - ultimately unsuccessful - to build jury sympathy.

The case hinges on a pair of Supreme Court decisions handed down in 1984 amid justices' concerns that punishments were sometimes imposed arbitrarily due to poor attorney representation.

The rulings limit inmates' ability to claim a Sixth Amendment violation if their attorneys made a strategic choice not to pursue certain defenses. The rulings provide exceptions, however, when counsel utterly fails to challenge the prosecution with "meaningful adversarial testing."

In a 5-2 decision last year, the Florida Supreme Court ordered a new trial after finding Corin did not effectively represent Nixon, nor did the defendant agree to the lawyer's strategy.

George S. Lemieux, Florida's deputy attorney general, told justices that lawyers should be able to decide the best defense when a defendant isn't communicative.

Lemieux noted that Nixon's attorney conducted 52 depositions and investigated Nixon's life history as a part of a vigorous defense.

"He did everything he could," Lemieux said.

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