It’s always fun to watch an appellate court wriggle out of its dilemma when two rote rules clash, and the Second Circuit’s decision in United State v. Pitcher is a case in point. 

Douglas Pitcher was indicted for his participation in a narcotics conspiracy in the Eastern District of New York.  As is typically the case, the government left the door ajar for Pitcher’s cooperation.  Pitcher chose not to walk through it, telling his lawyer that he was innocent (note, INNOCENT) of the charges and rejected the offer of cooperation.

According to defense counsel’s recollection of events, Pitcher “was not interested in cooperation and was adamant about his innocence. He steadfastly maintained that he did not commit the crimes for which he was indicted and absolutely refused to plead guilty.”

As regular readers know, the duty of defense counsel is to honor the defendant’s refusal to plead guilty, particularly when he adamantly asserts his innocence.  And the Circuit is well aware of this duty:

[W]e are wary of endorsing any precedent that could enable a defendant to benefit from lying to his defense counsel or that might suggest a duty on the part of defense counsel to arm-twist a client who maintains his innocence into pleading guilty. See Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000) (“[T]he ultimate decision whether to plead guilty must be made by the defendant. And a lawyer must take care not to coerce a client into either accepting or rejecting a plea offer.”).

By now, I bet that most of you can see the set-up coming.  After Pitcher loses at trial, he argues (natch) that he received ineffective assistance of counsel.

On direct appeal, Pitcher admitted his participation in the charged offenses, but he argued that he would have pursued a cooperation agreement with the government but for the ineffectiveness of his counsel, who convinced him to spurn the government’s efforts to sign him up as a cooperator.

Pitcher further argued that his lawyer gave “an unreasonably optimistic assessment of Pitcher’s prospects at trial.”  Of course, on direct appeal, the 2d Circuit affirmed Pitcher’s conviction and rejected his IAC argument. But Judge Trager granted Pitcher’s 2255 motion on the basis of ineffective assistance.  Oh, what’s an appellate court to do.

Pitcher then filed his § 2255 petition in the district court, seeking to vacate his sentence on the ground that he would have received a significantly shorter sentence had trial counsel not misinformed him about the benefits of cooperation and the risks he faced by proceeding to trial. The district court held an evidentiary hearing in July 2004. At the hearing Jacobs testified he explored with Pitcher the possibility of cooperation but Pitcher had vigorously asserted his innocence.

The problem stems from the 2d Circuit’s firm belief that it is ineffective for any defense lawyer to fail to make clear to his client that cooperation is always the best route out of an indictment.  And as always, the duty falls on counsel’s shoulders, the defendant’s protestations of innocence notwithstanding:

The district court acknowledged that Pitcher lied to Jacobs about his involvement in the charged offenses, but the court found that this did not absolve Jacobs of his responsibility to persuade Pitcher to accept the government’s offer:

Although [Pitcher] did lie to his attorney, there is no basis for assuming he would have stuck to this story if Jacobs had provided reasonable advice concerning the serious danger of conviction and the comparative advantages of cooperation. Jacobs, by unreasonably telling [Pitcher] that his story was a good one, . . . and that the government’s case was weak, gave [Pitcher] precious little incentive to say anything else.

Id. at 263.

The Circuit’s solution is to reverse the grant of habeas on procedural grounds, holding that the legal and factual basis for the 2255 motion is the same as that already determined by direct appeal, and try to punt on the problem of defense attorney ineffectiveness in the face of a defendant who “adamantly” insists he is innocent and rejects cooperation.  But even the Circuit realized how hollow this sounds, and how contradictory their message.  And so they add:

Although we reverse on the grounds stated, we add that we are wary of endorsing any precedent that could enable a defendant to benefit from lying to his defense counsel or that might suggest a duty on the part of defense counsel to arm-twist a client who maintains his innocence into pleading guilty. See Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000) (“[T]he ultimate decision whether to plead guilty must be made by the defendant. And a lawyer must take care not to coerce a client into either accepting or rejecting a plea offer.”).

So which is it?  If the defendant insists he is innocent, and tells his lawyer “facts” that he later admits to be lies, and the lawyer respects the defendant’s choice and relies on the defendant’s representations, then the lawyer remains obligated to convince the client to either plead guilty or cooperate, there being no reasonably competent advice to the contrary.  And don’t forget, but the lawyer can’t “arm-twist” the client to do so, wherever that line may be.

I trust that everyone is now muttering his or her appreciation to the Second Circuit for its clarification of the defense lawyers obligations.  And I can’t help but wonder whether Judge Trager granted the 2255 motion just to watch the Circuit squirm its way out of this one.