572 F.2d 1071 (5th Cir. 1978), 76-2146, Wright v. Estelle

Docket Nº:76-2146.
Citation:572 F.2d 1071
Party Name:Archie D. WRIGHT, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
Case Date:May 10, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1071

572 F.2d 1071 (5th Cir. 1978)

Archie D. WRIGHT, Petitioner-Appellant,

v.

W. J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent-Appellee.

No. 76-2146.

United States Court of Appeals, Fifth Circuit

May 10, 1978

Page 1072

Ken Anderson, Staff Counsel for Inmates, Huntsville, Tex., for petitioner-appellant.

John L. Hill, Atty. Gen., Joe B. Dibrell, Asst. Atty. Gen., Chief Enforcement Div., David M. Kendall, Jr., First Asst. Atty. Gen., Richel Rivers, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before BROWN, Chief Judge and GEWIN, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL and FAY, Circuit Judges. [*]

BY THE COURT:

The panel opinion in this case is reported, Archie D. Wright v. W. J. Estelle, Jr., Director, Texas Department of Corrections, 5 Cir., 1977, 549 F.2d 971.

Upon rehearing at New Orleans on September 27, 1977, the Court en banc adheres to the panel opinion as published.

The judgment of the District Court is

AFFIRMED.

THORNBERRY, CLARK, RONEY, GEE and HILL, Circuit Judges, specially concurring.

While we agree with the result reached by the majority in this case, we must respectfully disagree with the majority's reasoning. We believe that the court is here faced foursquare with a constitutional question and, with all deference, we think the court does a disservice in merely assuming for sake of argument the existence of a personal constitutional right to testify and then declaring that in this case any denial of that right is harmless error. Wright v. Estelle, 549 F.2d 971, 974 (5 Cir. 1977).

This court's reasoning offers little or no guidance to the bench and bar. One of our most important duties is to define the law so that litigants, lawyers, and trial judges can proceed with some degree of certainty. 1 A trial judge must know whether a defendant has personal control over his right to testify; it is little solace for the judge to know that even though he may have violated the defendant's personal right to testify, the error may be harmless. 2 Moreover, the many conscientious court-appointed attorneys of this circuit deserve to have this question settled so that they might go about their business without the fear of violating a defendant's constitutional right.

The real question in this case is not whether the right to testify is a personal or a fundamental right; rather, it involves the proper allocation of authority between the

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attorney and his client. The defendant, of course, has the authority in the first instance to accept or reject court-appointed representation. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). If he decides to accept an attorney, the defendant has necessarily delegated important decisionmaking authority to his attorney. The scope of the delegation does not turn on the importance of the decision the attorney frequently makes judgments affecting the very life of the defendant. The question here is twofold: who is in a better position to judge trial strategy and who is in a better position to ensure the best interests of the defendant. 3 This court's history is filled with the recognition of the value of an attorney. No one could seriously contend that a defendant is in a better position to dictate trial strategy than his attorney. Moreover, a court-appointed attorney owes a duty to society to see that his client is given the best possible defense within the law. No attorney could discharge this duty if he must yield to the personal demands of his client.

In the case at bar, when Wright advised his attorney that he would testify, his attorney owed him a duty to evaluate that choice and assist his client with proper advice. Trial attorneys are professional artisans working in a highly competitive arena that requires all the skills which education, training, and experience have given them. Criminal defendants are entitled to no less. A defendant has a right to necessary surgery, but he does not have the right to require the surgeon to perform an operation contrary to accepted medical practice. If, despite his counsel's advice, a defendant continues to believe that his testimony is more important than the continued services of an attorney who insists he should not take the stand, the conflict must be resolved by the court. Only in this way may the right to testify be reconciled with the right to effective assistance of counsel.

Judge Godbold's dissent would brand counsel here as ineffective for failure to inform Wright that he had a right to testify and for failure to tell him that the court would have to resolve any impasse. This position assumes that Wright considered his attorney's response to his request to take the stand as a threat by the attorney to leave Wright defenseless. Such an assumption is unwarranted. In the first place, the dialogue between Wright and his attorney implicitly assumed that Wright could make the final choice to testify. It also clearly told Wright that his lawyer was the sort who put professional duty ahead of expediency. Most significantly, however, there is nothing in the exchange between lawyer and client which would support a finding that counsel was threatening to leave Wright defenseless or that Wright assumed insistence on testifying would forfeit his right to any counsel. Rather than assuming these possibilities and condemning the lawyer, we should commend counsel's candor. If any assumption is made, it should be that the attorney's advice was in the proper discharge of his duty to provide effective counsel and was so accepted by Wright.

While Faretta allows a defendant to have a fool for a client, 422 U.S. at 852, 95 S.Ct. 2525 (Blackmun, J., dissenting), there is nothing in its logic that commands that the defendant may also have a fool for an attorney. We would affirm the panel on the ground that the decision whether to testify is properly allocated to the defendant's attorney and not to the defendant. 4 An attorney

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is not necessarily ineffective if he determines not to allow his client to testify, even though he should give great deference to a defendant's desire to testify, however, we are here concerned with constitutional requirements and there is no constitutional requirement that a court-appointed attorney must walk his client to the electric chair.

GODBOLD, Circuit Judge, dissenting: with whom GOLDBERG and TJOFLAT, Circuit Judges, join, dissenting.

Petitioner Wright is a Texas state prisoner under life sentence following a conviction for murder. He has appealed from the federal district court's denial of habeas corpus. In the state court trial on the merits the prosecution sought the death penalty. Petitioner was represented by two court-appointed attorneys. During trial a conflict arose between Wright and his counsel concerning whether Wright should take the stand to testify in his own defense. For tactical reasons and over Wright's opposition, counsel made the decision that Wright should not testify and would not allow him to take the stand. During these trial discussions, lead counsel told Wright that if Wright elected to testify the attorney would no longer represent him. Neither counsel moved for leave to withdraw nor did either call the attention of the court to the controversy in any other manner.

The panel of this court considered the appeal to raise two issues: (1) whether the right of the defendant to testify in his own behalf is a "fundamental right" that could be waived only by him; (2) if it was a "fundamental right," was the violation harmless error beyond reasonable doubt under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The panel opinion disposed of these issues by a few cryptic sentences:

On the basis of these facts we need not consider the question of whether a defendant has a fundamental right to testify in his own behalf that can only be waived by him. Even if petitioner was deprived of such a personal constitutional right (assuming arguendo to testify in one's own behalf is a fundamental right) we are convinced, as the court below was, it was harmless error beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710 (1967). It was harmless error beyond a reasonable doubt because we have no doubt that petitioner's testimony would not have altered the verdict. The evidence connecting Wright to this crime was overwhelming. 1

Wright v. Estelle, 549 F.2d 971 (CA5, 1977). The order of the court en banc is no more enlightening than the panel opinion. As Judge Thornberry cogently points out in his special concurring opinion, the court has failed to discharge its responsibilities in this case.

As I see it, the case requires several inquiries:

(1) Was petitioner denied a constitutional right to testify on his own behalf?

(2) If petitioner had a constitutional right to testify can its denial be treated as harmless error beyond a reasonable doubt under Chapman v. California ?

(3) Regardless of the constitutional status of a right to testify, was petitioner denied effective assistance of counsel?

(4) Did petitioner waive his right to testify?

(1) The constitutional right to testify

I believe that the right to testify personally has achieved constitutional stature.

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Because the right to testify is fundamental and personal to the defendant, counsel may not waive the right for the defendant. When counsel overrides the client, as here, constitutional error is committed.

(a) The right to testify is constitutional in dimension.

The right 2 of a criminal defendant to testify in his own defense was unknown to...

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