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Strategic Retreat on Certain Charges is Not Ineffective Assistance

By William Peacock, Esq. on February 13, 2013 | Last updated on March 21, 2019

Clifford Darden's European Basketball career apparently didn't go so well. In 2007, he committed two robberies. In the June robbery, he held up a convenience store and walked out with $300. In the July robbery, he walked out with $2,000 and a few bullets in his body, courtesy of an armed store clerk.

When the police arrived, Darden admitted to committing the robbery. He reiterated his confession at the hospital.

What's a defense counselor to do in such a situation? There are two robberies. In one, there is nearly no evidence, other than a witness describing a large black man as the culprit. In the other, there is a trail of blood leading to the defendant, who confessed everything.

Strategic retreat. Concede defeat on one charge to build credibility on the other.

In a move possibly inspired by the great Clarence Darrow himself, the defense attorney tried to convince the jury that the prosecution was trying to buy a “2 for 1” deal on convictions. While his client was concededly guilty of the second robbery, there was no proof that he was responsible for the first.

Had the strategy worked, it could have saved his client 25 years in prison. Unfortunately for Darden and faux-Darrow, it didn’t. Darden is now claiming ineffective assistance of counsel and that his attorney never consulted him before conceding half of the case.

Strickland Test

The default test for ineffective assistance of counsel requires the defendant to show that the lawyer’s performance was objectively unreasonable to the extent that it overcomes the presumption that the attorney’s conduct falls within the wide range of reasonable professional assistance. He must also show that absent the error, the outcome would have been different.

Cronic Exception

In certain cases, however, that hefty burden need not be met. When counsel is denied to the defendant or the counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, prejudice is presumed and the conviction is vacated.

Which Applies?

Cronic is an extremely narrow exception that only applies when counsel completely abandons the entire case. Two cases illustrate how hard it is to fit in the Cronic exception. In one, an attorney conceded guilt in a capital case to concentrate on sentencing. In the other, also a capital case, the defense attorney failed to present mitigating evidence and waived final remarks. Neither fit Cronic.

Talk it Out?

For purposes of this certified question, the court presumed that the attorney did indeed fail to discuss the defense strategy with Darden. If so, that would certainly be improper. However, the later cases interpreting Cronic all say the same thing: failure to oppose prosecution at certain strategic points in the case is not sufficient.

The Ninth Circuit, when facing an eerily similar case, found that expanding Cronic to cases of poor communication when counsel had good reason for not contesting a charge or element for which there was overwhelming evidence was unwarranted. The Eleventh Circuit agreed with their logic.

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