Florida v. Nixon, Joe Elton (12/13/2004)

Questions presented: (1) Does defense counsel’s use of a trial strategy that concedes defendant’s guilt constitute ineffective assistance of counsel if the strategy was pursued without the explicit approval of client? (2) Should counsel be held to a standard that considers whether counsel’s statements were deficient and prejudicial to the defendant, or should counsel be considered ineffective per se?

BY ERIN STEWART, MEDILL NEWS SERVICE

The day after Florida resident Joe Elton Nixon killed Jeanne Bickner in 1984, he told his brother how he had approached the thirty-eight-year-old Tallahassee woman in a mall parking lot to ask for a ride. Nixon told his brother how he then stuffed Bickner in the trunk of her convertible and later tied her to a tree with her own jumper cables. Nixon continued to describe how he set her on fire, leaving Bickner to die in a secluded wooded area while he pawned her rings and burned her convertible.

After admitting the murder to his brother and to his girlfriend, Nixon was arrested and charged with first-degree premeditated murder, kidnapping, robbery, and arson. Nixon confessed to the murder on tape, adding one more bit of evidence to what appeared to be an ironclad case complete with Nixon’s fingerprints inside the trunk of Bickner’s car and a pawn shop receipt signed by Nixon for two of Bickner’s rings.

Nixon offered to plead guilty in exchange for receiving life in prison instead of facing the possibility of the death penalty. The prosecution rejected the offer, forcing Nixon and his attorney, Michael Corin, to rethink their strategy.

The new approach, which Corin ultimately used in the July 1985 trial, involved conceding Nixon’s guilt during the trial phase to garner leniency from the jury during sentencing in hopes that Nixon would avoid the death penalty.

In his opening remarks to the jury, Corin stated, "In this case, there won’t be any question, none whatsoever, that my client, Joe Elton Nixon, caused Jeannie Bickner’s death. Likewise, that fact will be proved to your satisfaction beyond any reasonable doubt. This case is about the death of Joe Elton Nixon and whether it should occur within the next few years by electrocution or maybe its natural expiration after a lifetime of confinement."

Corin then used his trial time to present mitigating evidence that Nixon had brain damage, low intelligence and emotional disturbances. Corin did not contest Nixon’s guilt. In his closing remarks to the jury, Corin said, "I wish I could stand before you and argue that what happened wasn’t caused by Mr. Nixon, but we all know better. . . . I think you will find that the state has proved beyond a reasonable doubt each and every element of the crimes charged, first-degree premeditated murder, kidnapping, robbery, and arson."

But the strategy for leniency failed. The jury found Nixon guilty of murder and eligible for the death penalty, which the trial court imposed.

After several unsuccessful appeals in 1990 and 2000, Nixon appealed in 2003 to Florida’s Supreme Court, claiming he was denied effective assistance of counsel when Corin conceded Nixon’s guilt. Nixon said he never agreed to the trial strategy, which was the equivalent of a guilty plea. Such a strategy rendered a complete breakdown in the adversarial process that resulted in a denial of his 6th amendment right to counsel, Nixon argued.

The state, however, contended that to establish ineffective assistance of counsel, Nixon must show deficient performance by counsel that also had a prejudicial effect on the defendant. Using that criterion, the state argued counsel was not ineffective because Corin had opted for the strategy that would most likely save Nixon’s life in light of the evidence against him.

The state’s high court also considered an evidentiary hearing from an earlier trial court remand that found that Nixon’s failure to neither agree nor disagree verbally with his counsel was essentially an approval of strategy.

Florida’s Supreme Court, however, rejected the trial court’s finding and instead applied a guideline from a previous high court opinion that "silent acquiescence is not enough" and that anything short of explicit acceptance by Nixon was cause for a new trial. Applying this standard, the Supreme Court held 4-2 that defense counsel’s use of a strategy without verbal approval from Nixon was ineffective assistance. Having been essentially denied counsel, Nixon was entitled to a new trial.

In his concurring opinion, Justice Harry Anstead wrote, "A plea of guilty cannot be entered to a judge or a jury without the defendant’s consent. It is not a theoretical gloss or a hypothetical exercise to require that a defendant, no matter how gruesome or horrible his crime, how guilty he is, or how good the trial strategy, be accorded those [constitutional] rights."

Anstead further noted that he did not question that the defense strategy was an effective one considering Nixon’s uncooperative nature and the substantial evidence of his guilt. However, without giving consent, Nixon was not given a fair trial, was not seen as innocent until proven guilty, and the state was not held to its burden of proof in establishing Nixon’s guilt beyond a reasonable doubt.

"Any other conclusion would rend the very fabric from which our justice system is woven," Anstead wrote.

In dissent, Justice Charles Wells stated that the defense counsel had done the best it could do with a difficult case and a difficult client. Moreover, Wells argued that mandating verbal agreement to trial strategy only leaves a loophole to appeal for uncooperative clients.

"Trial courts must be given the opportunity to resolve such matters based upon the facts, rather than the existence or non-existence of certain words," Wells wrote. "In the case at bar, Mr. Nixon’s actions speak clearly. We cannot now search for words that he was disinclined to provide."

On March 1, 2003, the U.S. Supreme Court accepted the case for review.

The crux of the issue before the high court was whether the Court should consider the conduct of counsel so detrimental as to be ineffective per se, or whether the Court should apply the state’s suggested standard that would require the counsel’s conduct to be both deficient and prejudicial to be found ineffective.

If the defense counsel’s actions were found to violate the defendant’s right to counsel, defense lawyers would face a strict standard of getting explicit consent to trial strategy. The state argued that such a mechanical rule may result in counsel being forced to adopt a strategy harmful to the defendant simply because a client refuses to cooperate.

"The Florida Supreme Court basically indicated that they don’t care what the strategy is. Nixon will have to suffer the slings and arrows that come his way if he chooses to go against counsel and antagonize the jury," said Carolyn Snurkowski, Florida’s assistant deputy attorney general.

Nixon’s counsel, Eric M. Freedman, argued that the "lawyer has to be working for the client and not the other side." Absent explicit consent, a defense lawyer has no right to interject his own wisdom for the wishes of the client, Freedman said.

On Dec. 13, 2004, the Court reversed, holding 8-0 that the attorney's strategy to have Nixon plead guilty, without his express consent, didn't render his legal advice deficient. In so concluding, Justice Ruth Bader Ginsburg noted that even Clarence Darrow "famously employed a similar strategy" as counsel for Leopold and Loeb. Though neither expressly consented to what Darrow did, Ginsburg wrote, the strategy may have saved their lives.

Chief Justice William Rehnquist, who did not attend the oral arguments for health reasons, took no part in the decision of the case.