VIRGINIA LEGAL ETHICS OPINION 1737
ATTORNEY'S OBLIGATION IN CAPITAL MURDER CASE
WHEN CLIENT DESIRES DEATH SENTENCE AND REQUESTS ATTORNEY
TO NOT PRESENT MITIGATING FACTS AT SENTENCING HEARING
You have presented a hypothetical situation in which Client has
pled guilty to capital murder. Client has been evaluated by a
psychiatrist and found to be competent. Client has informed
counsel that he desires a death sentence rather than life in
prison. Although counsel has investigated and found mitigating
evidence in Client's background, Client has instructed counsel not
to present any mitigating evidence at the sentencing hearing.
Under the facts you have presented, you have asked the committee
to opine as to whether counsel would violate the Code of
Professional Responsibility by presenting mitigating evidence when
the client has instructed him not to do so.
The appropriate and controlling disciplinary rules relative to
your inquiry are: DR 7-101 (A)(1) which states that a lawyer shall
not intentionally fail to seek the lawful objectives of his client
through reasonably available means permitted by law and the
Disciplinary Rules; and DR 7-101 (B)(1) which provides that a
lawyer may, with the express or implied authority of his client,
exercise his professional judgment to limit or vary his client's
objectives and waive or fail to assert a right or position of his
client. Also pertinent to your inquiry are Ethical Considerations
7-1, 7-5, 7-7, 7-8, 7-9, 7-12, 7-16, and 7-17.
There are no prior ethics opinions which offer any guidance in
resolving this difficult ethical dilemma. The problem is a
significant one requiring thoughtful analysis of the conflicting
professional responsibilities of those attorneys who represent
competent capital murder defendants who by trial or plea have been
found guilty and have instructed their attorneys to forgo
presentation of mitigating evidence during the sentencing phase,
thereby inviting the death penalty.[1] The attorneys normally
have an ethical obligation to diligently and competently represent
their client by making the best possible case for leniency. DR 6-
101 (A); EC 7-1. However, the attorneys are also required to
achieve the client's lawful objectives and follow the client's
directions. DR 7-101(A).[2] Under these circumstances, the
critical issue is whether the lawyer should follow the lawful
demands of the client when those demands may cause prejudice or
damage to the client's case.
In the facts you present, the committee believes as long as the
defendant, in the attorney's judgment, is competent to make an
informed, rational and stable choice regarding whether to fight
the death penalty with mitigating evidence, the attorney is
ethically obligated to respect the client's decision. DR 7-
101(A)(1) requires an attorney to seek his client's lawful
objectives. EC 7-5 states in pertinent part:
A lawyer as adviser furthers the interest of his client
by giving his professional opinion as to what he
believes would likely be the ultimate decision of the
courts on the matter at hand and by informing the
client of the practical effect of such decision. He
may continue in the representation of his client even
though his client has elected to pursue a course of
conduct contrary to the advice of the lawyer so long as
he does not thereby knowingly assist the client to
engage in illegal conduct or to take a frivolous
position.
Client autonomy is further emphasized in EC 7-7, which states in
pertinent part:
In certain areas of legal representation not affecting
the merits of the cause or substantially prejudicing
the rights of a client, a lawyer is entitled to make
decisions on his own. But otherwise the authority to
make decisions is exclusively that of the client and,
if made within the framework of the law, such decisions
are binding on his lawyer. . . . A defense lawyer in
a criminal case has the duty to advise his client fully
on whether a particular plea to a charge appears to be
desirable and as to the prospects of success on appeal,
but it is for the client to decide what plea should be
entered and whether an appeal should be taken.
EC 7-8, in pertinent part, further advises:
He may emphasize the possibility of harsh consequences
that might result from assertion of legally permissible
positions. . . . the lawyer should always remember
that the decision whether to forego legally available
objectives or methods because of nonlegal factors is
ultimately for the client and not for himself.
The committee believes that attorneys in capital cases are
ethically required to advise such clients of the adverse legal
consequences of failing to produce mitigating evidence during the
penalty phase and how much more difficult it will be to attack the
death sentence on direct appeal, or collaterally, if the client
insists on that direction. For that reason, the ethical
requirements of zealous and competent representation dictate that
the attorney must counsel the client regarding the risks and
benefits of presenting mitigating evidence.
Because of the severe and irreversible consequences of failing to
make a case of mitigation in the penalty phase, the attorney must
try to discern whether the defendant has expressed a rational and
stable preference for a death sentence. The responsibilities of a
lawyer may vary according to the intelligence, experience, mental
condition or age of the client. EC 7-11.
Where the attorney has a reasonable basis to believe that the
client's preference for the death penalty is rational and stable,
the client's decision controls, even if it is contrary to the
lawyers' professional judgment and advice. In reaching this
conclusion, the committee acknowledges the moral and ethical
difficulty that some may experience in following the client's
directives. However, most of the courts which have struggled with
this issue have similarly concluded that the attorney is ethically
bound to carry out the client's directive, even though such
instruction is tantamount to a death wish. Further, the death row
defendant cannot thereafter claim successfully that their trial
counsel was ineffective in not having introduced evidence in
mitigation. Zagorski v. State, 983 S.W.2d 654 (Tenn. 1998)
(performance of defense counsel in not investigating or presenting
mitigating evidence at sentencing stage per defendant's
instructions did not fall below objective standard of competence);
Petit v. State, 591 So.2d 618 (Fla. 1992)(a competent defendant
may waive his right to present mitigating evidence at sentencing);
Singleton v. Lockhart, 962 F.2d 1315 (8th Cir. 1992)(defendant may
make a knowing, intelligent waiver of his right to present
mitigating evidence) Koedatich v. State, 112 N.J. 225, 548 A.2d
939 (1987) (defense counsel's failure to present mitigating
evidence, during penalty phase of capital prosecution, in
accordance with defendant's instructions, did not constitute
ineffective assistance of counsel); Trimble v. State, 693 S.W.2d
267 (Mo. Ct. App. 1985) (defense counsel did not render
ineffective assistance in acquiescing in defendant's instruction
that no evidence be offered and no argument be made in penalty
phase of trial, which resulted in imposition of death penalty).[3]
Committee Opinion
October 20, 1999
1 See, Davidson v. Commonwealth, 244 Va. 129, 419 S.E.2d 656
(1992), where at the beginning of the penalty phase, counsel
for the defendant informed the trial court that the
defendant had directed him not to present any evidence on
his behalf. The defendant affirmed this direction by his
own testimony and no evidence in mitigation was presented.
The opinion, however, contains no further discussion of this
problem. The Court affirmed the imposition of the death
sentence and declined to commute the sentence to life
imprisonment.
The Supreme Court of Virginia has yet to address the
effect of a defendant's demand, in a capital case, that
no evidence be presented during the penalty phase.
There is no statutory requirement that counsel in
capital murder cases present evidence at the penalty
phase. Direct review of a death sentence by the Court
is mandatory. See Va. Code 17.1-313 (1998).
2 Virginia Rules of Professional Conduct, Rule 1.2, effective
January 1, 2000 requires an attorney to "abide by a client's
decisions concerning the objectives of representation."
3 The committee's research has found only one case holding the
contrary view that capital defense counsel should present
evidence in mitigation over the objection of the client. In
People v. Deere, 41 Cal.3d 353, 222 Cal.Rptr.13, 710 P.2d
925 (Cal. 1985), the defendant barred his attorney from
presenting evidence at the penalty phase in a capital case,
and gave a simple statement that he wished to die for his
crimes. The court ruled that there was ineffective
assistance of counsel and that imposition of the death
penalty was improper. However, four years later in People
v. Bloom, 774 P.2d 698 (Cal. 1989), the California Supreme
Court disapproved, but did not overrule Deere, supra,
stating that the failure to introduce mitigating evidence at
the penalty phase did not automatically render the
imposition of the death penalty unreliable and criticizing
any requirement that defense counsel present mitigating
evidence over a client's objections.
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