Emmanuel Charles Whiteside v. David Scurr, Warden

JOHN R. GIBSON, Circuit Judge, with whom ROSS, FAGG and BOWMAN, Circuit Judges,

join, dissenting from denial of rehearing en banc.

The court has granted habeas relief to a petitioner whose only claim of prejudice is that his counsel required him to testify truthfully. The starkness and incongruence of the court’s position are demonstrated by the following excerpts, which outline its holding:

[W]e presume that appellant would have testified falsely.

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* * * Counsel threatened appellant that he would withdraw from the case, advise the state court trial judge of appellant’s intention, and testify against him as a rebuttal witness for the prosecution. Counsel’s actions prevented appellant from testifying falsely. We hold that counsel’s action deprived appellant of due process and effective assistance of counsel.

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Counsel’s actions also impermissibly compromised appellant’s right to testify in his own defense by conditioning continued representation by counsel and confidentiality upon appellant’s restricted testimony.

Whiteside v. Scurr, 744 F.2d 1323, 1328, 1329 (8th Cir.1984).

The court then proceeds to presume prejudice and in my view this is its most critical error. In Strickland v. Washington, - U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court made clear that ineffective assistance claims must raise two components, deficient performance and prejudice. Failure to prove either element requires denial of relief. Id. at 2069-70. I join Judge Fagg in his views on the performance component but I write separately to underscore my concerns with the absence of prejudice, which is a sufficient ground to deny the writ.

It is true that Strickland describes a limited presumption where there is a conflict of interest. The court in its opinion recognizes the language of the Strickland test of prejudice but' fails to apply it to the facts in this case. The court, quoting Strickland, states that prejudice must be presumed only if counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer’s performance.” 744 F.2d at 1330. A strong argument can be made that there is no actual conflict of interest. To say that there is a conflict requires that we recognize the right of Whiteside to testify falsely, while the Supreme Court has made plain that a criminal defendant has no right to commit perjury.

Assuming that there was a conflict, however, the record simply does not show that it adversely affected counsel’s performance. The attorney’s threat produced a single effect: it persuaded Whiteside to tell the truth as a witness. The case was tried and Whiteside testified, although, as the court observes on numerous occasions, his testimony was restricted in the sense that he was prevented from testifying falsely. The record reveals that Whiteside testified that he thought Love had a gun, which was precisely what he told his lawyer he would testify to, before he told his lawyer that he intended to testify that he saw something metallic in Love’s hand just before the stabbing. I cannot justify the court’s presuming that Whiteside was prejudiced when he testified fully in his defense and was restricted only in the sense that he did not testify falsely. Whiteside has not suggested that any other prejudice resulted from the threats of his counsel. The record reveals no other action during or before the trial that in any way demonstrates that counsel’s performance was adversely affected by an actual conflict of interest. Strickland makes clear that it does not announce a per se presumption of prejudice in conflict of interest situations. In actuality, the court does apply such a per se rule to presume prejudice in this case.

Although it may not be applicable, Strickland lays down another test if there is no conflict: prejudice arises only if “but for counsel’s errors, the result of the proceeding would have been different.” 104 S.Ct. at 2068. The facts in this case make it unlikely that lying on the stand would have changed the outcome in Whiteside’s trial. As the Iowa Supreme Court observed:

There were three other persons in the room. No one testified to having seen a gun. A search of the apartment shortly after Love’s death did not disclose one. * * * [Djuring the argument Love told his girl friend to get his “piece” — meaning his gun. This refutes defendant’s claim Love already had one.

State v. Whiteside, 272 N.W.2d 468, 471 (Iowa 1978). This evidence both demonstrates the strength of the case against Whiteside and impeaches his proposed false testimony. Thus, we cannot conclude that the result of the trial would have been different. Whiteside- has failed to demonstrate actual prejudice under the nonconflict standard.

The court makes much of the constraints on communication between lawyer and client because of counsel’s threat. This concern is more theoretical than real, given that the threat occurred immediately before trial. Prior to this, there had been numerous conferences between lawyer and client, with the lawyer having full appreciation of the likely testimony from Whiteside. The fundamental trust between the lawyer and client was threatened more by White-side’s decision to give perjured testimony, after a full and confidential disclosure of facts surrounding the case.

Strickland makes clear that the ultimate focus “must be on the fundamental fairness of the proceeding.” 104 S.Ct. at 2069. Fundamental fairness cannot be stretched to encompass prejudice resulting from the absence of perjured testimony. Strickland also observes that a defendant is not entitled to the “luck of the lawless decision-maker,” id. at 2068, and its definition of prejudice cannot include an entitlement to receive the benefit of lawless or perjured testimony.

The court examines counsel’s position primarily in terms of legal ethics. The Supreme Court of Iowa was more realistic in discussing not only the ethical considerations, but that a lawyer who knowingly uses perjured testimony or who aids a client’s criminal act may be subject to prosecution for suborning perjury. Whiteside, 272 N.W.2d at 471. The majority does not discuss the proper course for the lawyer in the position faced by Whiteside’s counsel, which presents an extremely complex question. We should not attempt to resolve this issue in separate opinions. Consideration of counsel’s dilemma is further reason for rehearing en banc, particularly in view of the conflicting academic discussions of this question. See Whiteside, 744 F.2d at 1327. It is sufficient here, however, simply to conclude that Whiteside has not been prejudiced by being required to testify truthfully. The court should rehear this case en banc and on full reconsideration should deny the writ.