The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

Joe Elton Nixon v. State of Florida


MARSHAL: PLEASE BE SEATED.

CHIEF JUSTICE: GOOD MORNING. THE CASE OF NIXON VERSUS STATE AND NIXON VERSUS MOORE. IF COUNSEL IS READY, YOU MAY PROCEED.

THANK YOU, YOUR HONORS. MY NAME IS JONATHAN LANG ARGUING FOR THE APPELLANT JOE NIXON. I HAVE RESERVED SIX POINTS MINTS FOR REBUTTAL. -- MINUTES FOR REBUTTAL.

CHIEF JUSTICE: FINE.

AS FAR AS WE ARE CONCERNED THIS APPEAL TURNS ON A FAIRLY UNREMARKABLE TURN OF THE PRO SAKE DOCTRINE OF THE -- A PROSAIC DOCTRINE OF THE LAW IN THE CASE, IN WHICH THE COURT BELOW GOT THE FACTS RIGHT BUT GOT THE THOUGHT WRONG.

ASSUMING THAT THE BURDEN WAS ON YOUR CLIENT IN THE PROCEEDINGS BELOW, CAN YOU DEMONSTRATE THAT THERE IS NO SUFFICIENT EVIDENCE TO SUPPORT THE RULING OF THE TRIAL COURT DENYING RELIEF?

ABSOLUTELY.

OKAY. AND WOULD YOU, THEN, PROCEED ON THAT, PLEASE.

SURE. --

DO YOU AGREE THAT THE BURDEN HE WAS ON YOUR CLIENT? THE TRIAL COURT BELOW, TO DEMONSTRATE --

OUR VIEW, I AM ASSUMING THAT, FOR THE SAKE OF THIS ARGUMENT. OUR VIEW IS THAT HISTORICALLY, THIS COURT SENT THIS CASE BACK, SO THAT THE STATE COULD HAVE THE OPPORTUNITY TO CROSS-EXAMINATION UNFETTERED BY THE ATTORNEY/CLIENT PRIVILEGE, TO DETERMINE WHAT HAD HAPPENED BETWEEN MR. NIXON AND MICHAEL CARN, HIS ATTORNEY. REGARDLESS, THOUGH, OF WHO HAD THE BURDEN, WE FEEL THAT WE AMPLY CARRIED IT. WE PUT -- GOING BACK --

THAT DID OCCUR IN THESE PROCEEDINGS BELOW. IS THAT CORRECT? THAT IS THAT THE LAWYER TESTIFIED, UNFETTERED BY ANY CLAIM ON BEHALF OF YOUR CLIENT.

THAT'S CORRECT. THAT'S CORRECT. COMPLETE DISCOVERY. DOCUMENTS FROM HIS FILE PRODUCED AFTER DEPOSITIONS, REVIEWED BY THE STATE, AND COMPLETE UNFETTERED CROSS-EXAMINATION BY THE STATE. THE ISSUE, OF COURSE, WAS FRAMED VERY SIMPLY BACK IN 2000. BECAUSE THE TRIAL ATTORNEY'S COMMENTS WERE THE FUNCTIONAL EQUIVALENT OF A GUILTY PLEA OF HIS CLIENT, THIS COURT CONCLUDED THAT NIXON'S CLAIM HAD TO PREVAIL, UNLESS, IF THERE WAS NOT AN AFFIRMATIVE EXPLICIT ACCEPTANCE BY MR. NIXON, OF THAT STRATEGY. THE COURT ADDED SILENT AC WE ESSENCE -- ACQUIESCEENS IS NOT IF YOU HAVE -- IS NOT ENOUGH.

WAS THE LAWYER ASKED WHETHER OR NOT HE WOULD PROCEED WITH THE STRATEGY HE CHOSE, WITHOUT THE CONCURRENCE OF HIS CLIENT OR WITHOUT INFORMING HIS CLIENT?

HE WAS ASKED WHETHER HE HAD SPOKEN WITH HIS CLIENT. HE WAS ASKED WHETHER HE ADVISED GENERALLY, WHAT HE WAS GOING TO DO. HE WAS ASKED IF HE WAS DISCUSSING WITH HIS CLIENT WHETHER AND HOW HE WAS GOING TO HANDLE THE CASE. DID HE ANSWER I WAS GOING TO PLEAD YOU GUILTY OR CONCEDE YOUR GUILT? THERE IS NO EVIDENCE IN THE RECORD TO THAT EFFECT. WHAT HE DID RESPOND TO, WHEN ASKED, WAS WHAT DID MR. NIXON SAY IN RESPONSE TO YOUR DISCUSSIONS WITH HIM? AND THIS IS IMPORTANT. IT IS ABSOLUTELY IMPORTANT AND IT IS ABSOLUTELY KEY. THE MOST INTERESTING THING, OFTEN, YOU CAN'T REALLY SEE IN A WRITTEN TRANSCRIPT. BUT IT AT SOME POINT ON CROSS-EXAMINATION, MR. EVANS FORBES THE STATE, SAID, WELL, YOU SAID HE DID NOTHING. WHAT DID HE DO? AND MR. CARN ACTUALLY SAT THERE FOR ABOUT, I DON'T WANT TO WASTE MY ARGUMENT TIME BUT FOR ABOUT 30 SECONDS OR A MINUTE AND HE DIDN'T SAY ANYTHING. HE JUST SAT THERE, AND HE SAID THAT IS THE ONLY WAY I CAN EXPLAIN IT TO YOU, MR. EVANS. THAT IS WHAT HE DID. HE DID NOTHING. HE DIDN'T SAY ANYTHING. HE DIDN'T NOD. HE DIDN'T, DID NOT GIVE ME A THUMBS UP. HE DIDN'T WRITE ME A NOTE. HE DID NOTHING.

BUT CAN A DEFENDANT FRUSTRATE AN ENTIRE TRIAL BY NOT SAYING NO, I DON'T WANT TO PROCEED IN THAT MANNER, INSTEAD OF SAYING THAT, JUST SIT MUTE? AND ALMOST REFUSE TO TALK TO DEFENSE COUNSEL? CAN HE FRUSTRATE THE ENTIRE TRIAL BY JUST DOING THAT? THE COUNSEL ASKED HIM, OKAY, IS IT ALL RIGHT TO PROCEED THIS WAY? AND HE JUST REFUSES TO COMMUNICATE. CAN HE FRUSTRATE THE ENTIRE APPELLATE, I MEAN TRIAL PROCEEDING BY THAT ACTION?

IT IS MUCH MORE CONTEXT THAN THAT, YOUR HONOR. FIRST OFF, AS WE KNOW, HE WAS MARGINALLY INTELLIGENT. HE WAS NOT PARTICIPATING IN THE TRIAL. HE WASN'T COMING TO THE TRIAL. AND MOST IMPORTANT, WE KNOW FROM THE RECORD, IT IS IN THE RECORD --

ANYONE PARTICIPATING IN THE TRIAL.

HE COULDN'T COME TO THE COURT. HE WAS NOT COMING, THE COURT HAD TO BASICALLY EXCUSE HIM FROM ATTENDING AT THE TRIAL.

MORE THAN THAT, HE REFUSED TO ATTEND, CORRECT?

THAT'S RIGHT. THAT'S RIGHT. HE HAD TO HAVE THE JAILHOUSE, THEY HAD A JAILHOUSE CONFERENCE NOT IN CONFORMITY WITH PATE OR DROPE. NOT A FORMAL MENTAL ANALYSIS BUT THEY HAD A JAILHOUSE CONFERENCE AT WHICH JUDGE HALL INTERVIEWED HIM AND SAID, OKAY, HE IS DOESN'T HAVE TO COME. HE IS NOT GOING TO COME. BUT WHAT WE DO KNOW THAT I WANT TO ADD THAT IS VERY IMPORTANT FROM THE RECORD, IS THAT, IN THE TESTIMONY THAT MICHAEL CORING GAVE, HE SAID I DON'T KNOW, I KNOW THAT HE DIDN'T AGREE TO IT, BUT I SURE DO KNOW THAT, WHEN HE FOUND OUT ABOUT IT, HE WASN'T TOO PLEASED OR HE WASN'T PLEASED. AND THERE WAS, IN FACT, A REPORT IN THE TALLAHASSEE DEMTRAT, TO THE EFFECT -- TALLAHASSEE DEMOCRAT, TO THE EFFECT THAT, WHEN NIXON SAW THE NEWSPAPER ARTICLE THAT SAID HIS ATTORNEY HAD CONCEDED HIS GUILT, HE WAS EXTREMELY UPSET. HE GAVE UP ANY NOTION THAT HE WOULD ATTEND THE TRIAL, AND FROM THEN ON IN, HE DIDN'T ATTEND THE TRIAL.

THE FACT THAT HE WAS NOT PHYSICALLY PRESENT, DOES THAT MEAN, ARE YOU EQUATING THAT TO HIM NOT PARTICIPATING IN HIS TRIAL?

WELL, HE -- IF HE WASN'T, WAS HE PRECLUDED FROM PARTICIPATING IN HIS TRIAL?

NO. HE WASN'T SHACKLED AND HE WASN'T KEPT FROM BEING IN THE COURTROOM.

SO IT IS OF HIS OWN VIOLATION THAT HE WASN'T PHYSICALLY THERE, IS THAT CORRECT?

THAT'S CORRECT.

WHAT IS AN ATTORNEY TO DO IN THAT CIRCUMSTANCE, WHEN YOU HAVE A VERY UNCOOPERATIVE CLIENT AND THE ATTORNEY DECIDES ON A KORX WHICH THE ATTORNEY -- ON A COURSE OF ACTION WHICH THE ATTORNEY, I THINK IT IS UNDISPUTED IN HIS GOOD FAITH BELIEVED WAS IN HIS CLIENT APARTMENTS BEST INTEREST, AND HE -- CLIENT'S BEST INTEREST, AND HE CAN'T GET A CLIENT TO EITHER AGREE OR DISAGREE TO IT?

IT IS VERY SIMPLE. THE ATTORNEY DOES WHAT THIS COURT ADVISE THE ATTORNEY DO IN 2000. IT SAID IN ORDER TO AVOID THE PROBLEM OCCURRING AGAIN, IF AN ATTORNEY INTENDS TO FOLLOW THIS PROCEDURE, THERE SHALL BE A COLLOQUY, A BOIK I KNOW-LIKE -- A BOIKEN-LIKE COLLOQUY, OUT SIDE OF THE PRESENCE OF THE JURY, DURING WHICH THE DEFENDANT WILL BE APPRISED OF THE FACT THAT THE ATTORNEY IS GOING TO CONCEDE GUILT.

THAT IS ALL FINE AND DANDY FOR AFTER 2000, BUT THIS ATTORNEY WHO WAS PRESENTED WITH THE SITUATION BEFORE THAT OPINION AND YOU WERE ARGUING THAT HE WAS INEFFECTIVE COUNSEL FOR NOT BEING PRESCIENT.

WHAT I AM ARGUING IS THAT THE LAW ESTABLISHED IN 2000, BY THIS COURT, IS A RULE THAT THIS DEFENDANT IS ENTITLED TO, UNDER THE DOCTRINE OF LAW OF THE CASE.

BUT THE QUESTION IS WHETHER THIS COUNSEL, I GUESS, WAS, PROVIDED INEFFECTIVE ASSISTANCE.

CORRECT.

AND WE CAN'T HOLD HIM TOLL A STANDARD THAT WAS NOT IN EXISTENCE WHEN HE HAD -- TO A STANDARD THAT WAS NOT IN EXISTENCE WHEN HE HAD TO MAKE A DECISION, SO THE QUESTION, AGAIN, WE GO BACK TO WHAT IS COUNSEL TO DO BEFORE 2000, WHEN PRESENTED WITH AN UNCOOPERATIVE CLIENT AND THINKS THAT THIS PARTICULAR STRATEGY IS IN HIS CLIENT'S BEST INTEREST?

IF THAT CASE EXISTS, AND I DON'T KNOW THAT IT, DOES AND THE REASON I DON'T KNOW, I CAN SAY FORTHRIGHTLY THAT I DON'T KNOW THAT IT DOES, BECAUSE WE CHECKED NIXON, TO CHECK AND FIND OUT AFTER NIXON, TO FIND OUT WHETHER THIS LARGE PROBLEM HAS OCCURRED RECENTLY, AND WHAT WE FOUND IS THAT IT HASN'T AND IT DOESN'T. THAT THE HOLDING IN NIXON TWO, THAT WE FEEL THAT WE ARE ENTITLED TO RELY UPON, THE HOLDING THAT YOU NEEDED AN AFFIRMATIVE EXPLICIT ACCEPTANCE AND THAT YOU CAN'T HAVE IT BY SILENCE, IS A RULE THAT WE ARE ENTITLED TO.

WHAT WOULD HAVE HAPPENED, HAD HE BROUGHT HIS CLIENT OUT, ASKED HIM, SAID THIS IS GOING TO BE OUR STRATEGY. I AM GOING TO PLEAD YOU GUILTY IN EFFECT OR DO WHAT HE DID HERE, WHICH WAS IN EFFECT PLEAD HIM GUILTY, AND THIS IS GOING TO BE OUR STRATEGY, AND THEN I AM GOING TO PUT IN A FERVENT PLEA FOR MERCY. THE CLIENT SITS THERE, DOES NOTHING. IS THIS OKAY WITH YOU?

IF THE CLIENT --

HE WON'T ANSWER HIM. HE JUST SITS THERE AND REFUSES TO SAY ANYTHING, ONE WAY OR THE OTHER. WHAT HAPPENS WITH THAT?

IN THE FIRST INSTANCE, THE COURT BEARS, THE TRIAL COURT BEARS WHAT JUDICIAL POWER, IN THE SITUATION, SAYS THE COURT REPORTER CAN'T TAKE DOWN A NOD OR YOU CAN'T SAY NOTHING. YOU HAVE TO SAY YES OR NO.

HE STILL WON'T SAY IT.

HE STILL SAYS NOTHING. IT IS A HYPOTHETICAL.

THAT WAS MY INITIAL QUESTION. CAN HE US FROM AT ANY RATE THE -- CAN HE FRUSTRATE THE ENTIRE TRIAL BY THAT PROCEDURE?

IT CERTAINLY DIDN'T HAPPEN HERE, AND ALSO IT IS THE PROCEDURE, IF WE ARE TALKING ABOUT HAVING LOGICAL RATIONAL RULES ESTABLISHED --

OKAY. WHY DON'T WE GET BACK TO THIS COURT AND THE KNICKS ONE TWO CASE -- AND THE KNICKS ONE TWO CASE -- AND THE NIXON TWO CASE SAID THAT WE MUST AFFIRMATIVELY SHOW IN THE RECORD THAT MR. NIXON AGREED TO HIS ATTORNEY'S STRATEGY, CORRECT?

YES.

NOW WE HAVE THE ORDER OF THE TRIAL JUDGE, WHERE THE TRIAL JUDGE, INSTEAD, SAYS BASICALLY, THAT BASED ON MR. NIXON'S ACTIONS, AT OTHER TIMES, THAT WE CAN ASSUME THAT HE AGREED TO THIS PARTICULAR STRAEJT I. IS THAT BASICALLY -- STRATEGY. IS THAT BASICALLY WHERE WE ARE IN THIS CASE?

IT IS --

LET ME ASK YOU THIS, THEN, AND I THINK IT GOES BACK TO JUSTICE ANSTEAD'S ORIGINAL QUESTION IS, IS THERE SUPPORT IN THE RECORD FOR THE TRIAL JUDGE'S FINDING, DENIAL OF RELIEF, BASED ON MR. NIXON'S PRIOR ACTIONS? DID MR. NIXON ALWAYS NOT TALK TO THE DEFENSE ATTORNEY? WHAT DO WE HAVE IN THIS RECORD THAT EITHER SUPPORTS OR DOES NOT SUPPORT HOW THE TRIAL JUDGE DEALT WITH THIS PARTICULAR ISSUE?

WELL, THE TRIAL JUDGE NOTED ONLY ONE THING IN PASSING, IN THAT RESPECT, SAYING THAT MR. CARN HAD PREVIOUSLY REPRESENTED MR. NIXON BUT DID NOT GO FURTHER TO SAY WHAT THE RELATIONSHIP WAS OR HOW IT COMMUNICATED. BUT WHAT WE DO HAVE IN THE RECORD IS THAT MR. NIXON DIDN'T AFFIRMATIVELY EXPLICITLY CONSENT TO THIS, AND THAT AFTERWARDS, IT IS WELL-KNOWN BY MR. CORN AND BY THE SHERIFF AND THE BAILIFF AND THE TALLAHASSEE DEMOCRAT THAT HE OBJECTED TO IT. THERE IS NO MORE EVIDENCE THAT I CAN THINK OF CONCLUSIVE TO THE FACT THAT MR. NIXON DID NOT AGREE TO THE STRATEGY.

WAS THE LAWYER QUESTIONED AS TO WHETHER OR NOT HE CONSIDERED WITHDRAWING THE PREVIOUS PLEA OFING IN AND HAVING A PLEA OF GUILTY ENTERED AND SUBMITTED TO THE COURT, UNDER THE RULES THAT WE HAVE?

I BELIEVE HE WAS -- PREVIOUS PLEA OF NOT GUILTY AND HAVING A PLEA OF GUILTY ENTERED AND SUBMITTED TO THE COURT UNDER THE RULES RULES THAT WE HAVE?

I BELIEVE HE WAS, AND I BELIEVE THAT, FOR WHATEVER REASON, HE DECIDED THAT THAT WOULD BE UNWEISS. I WOULD HAVE TO GO BACK AND HUNT IT DOWN FOR YOU -- UNWISE. I WOULD HAVE TO GO BACK AND HUNT IT DOWN FOR YOU.

HE DECIDED AGAINST THAT.

I THINK. THE IMPORTANT THING IS THAT THE COURT BELOW HELD, I MEAN, AS I SAID IN THE BEGINNING, THEY FOUND THE FACTS, AS FAR AS WE ARE CONCERNED, PRETTY WELL CORRECT. THEY FIND --

I AM SORRY. THEY DID WHAT NOW?

THEY FOUND THE FACTS, THE FACTS ABOUT MR. CORN'S RELATIONSHIP WITH MR. NIXON, CORRECT, TO THE EXTENT THAT SHE HELD, AT PAGE 13RX AT LEAST OF THE ORDER -- AT PAGE 13, AT LEAST OF THE ORDER, THAT HE DID NOT PROVIDE AN AFFIRMATIVE EXPLICIT CONSENT IN WORDS, AND IN THE MATTER WE WOULD NORMALLY EXPECT OR PRESUME IS ACCEPTABLE. NOW, I SUPPOSE THAT, IF THIS COURT, AFTER DECIDING NIXON TWO, WHICH TOOK A WHILE TO DECIDE, HAD --

SO THERE IS ERROR IN GOING -- I GUESS I AM TRYING TO GET FROM YOU WHERE THE ERROR IN THE TRIAL COURT'S ORDER IS. IS THE ERROR IN GOING BEYOND THAT STATEMENT?

THE ERROR IS IN ASSUMING THAT HE COULD SILENTLY ACQUIESCE, THAT HE COULD DO IT WITHOUT WORDS, WHEN YOUR OWN DECISION SAID SILENT ACQUIESCENCE IS NOT ENOUGH. WE FEEL THAT MR. NIXON WAS ENTITLED TO THE PRESUMPTION OF THE EVIDENTIARY STANDARD THAT THIS COURT SET.

CHIEF JUSTICE: THE MARSHAL HAS REMINDED YOU THAT YOU ARE INTO YOUR REBUTTAL TIME.

I WILL SIT DOWN AND RETURN LATER.

GOOD MORMING, CHIEF JUSTICE ANSTEAD. MAY IT PLEASE THE COURT. CURTIS ANSTEAD -- CURTIS FRENCH REPRESENTING THE STATE IN THIS CASE.

COUNSEL, IN ORDER TO AFFIRM IN THIS CASE ARE WE GOING TO HAVE TO RECEDE FROM NIXON TWO?

OF COURSE THE STATE HAS TAKEN THE POSITION THAT YOU SHOULD RECEDE FROM NIXON TWO. HOWEVER, IT IS ALSO THE STATE'S POSITION THAT YOU DO NOT HAVE TO.

HOW DOES THE TRIAL COURT'S ORDER AND THE EVIDENCE SQUARE WITH THIS COURT'S ADMONITION IN NIXON TWO?

THE ACTUAL HOLDING PREVIOUSLY WAS IN THE FINAL PARAGRAPH OF THE OPINION, WHICH WAS ACCORDINGLY WE REMAND THIS CASE TO THE CIRCUIT COURT AND HOLD A HEARING ON WHETHER THE DEFENDANT CONSENTED TO THE STRATEGY THAT DEFENSE COUNSEL CHOSE, AND THE COURT DECIDED THAT HE DID CONCEDE IN WORDS.

DIDN'T, BEFORE, THIS SCENARIO TREAT AS THOUGH IT WAS A MAJORITY PLEA KIND OF SITUATION? ISN'T THAT WHAT -- THERE IS NOT MUCH DIFFERENCE NOW IN THE EVIDENCE THAN WHEN IT WAS HERE THE FIRST TIME. IN THAT IT WAS HE SAT SILENTLY. WE KNEW THAT BEFORE. WHEN IT CAME, BUT THE MAJORITY SAID SAID AT THAT TIME, NEW YORK CITY YOU NEED AN AFFIRMATIVE. I DON'T SEE -- BUT THE MAJORITY SAID AT THAT TIME, NO, YOU NEED AN AFFIRMATIVE. I DON'T SEE HOW WE CAN GET AROUND THAT.

THE COURT SAID IT IN EXPLICIT WORDS. THE EVIDENCE IS LARGELY THE SAME.

I AM TRYING TO MAKE SURE. WHEN WE SAID, IN NIXON, CROSS COUNSEL COMMENTS WERE THE FUNCTIONAL EQUIVALENT OF A GUILTY PLEA, WE CONCLUDE THAT NIXON'S CLAIM MUST PREVAIL BELOW, IF THE TESTIMONY ESTABLISHED THAT THERE WAS NOT AN AFFIRMATIVE ACCEPTANCE. SILENT ACQUIESCENCE IS NOT ENOUGH, AND YOU ARE SAYING THAT IS NOT THE HOLDING OF THE CASE?

WELL, OUR, WE WOULD ARGUE THAT THERE WAS NOT SILENT ACQUIESCENCE IN THE SENSE THAT HE SAT THERE AND SAID NOTHING BECAUSE HIS WILL WAS OVER BORN BY COUNSEL SOMEHOW OR OTHER. IT IS CLEAR AND UNDISPUTED FROM ITS RECORD --

WHERE DO YOU GET THAT LANGUAGE, THAT, IN ORDER TO SILENTLY ACQUIESCE, HIS WILL HAS TO BE OVER BORN?

ACTUALLY I GOT THAT PARTICULAR LANGUAGE FROM A SECOND CIRCUIT CASE, WHICH I CITED IN MY BRIEF. DEAN VERSUS SUPERINTENDENT. THAT COURT REVIEWED INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM INVOLVING WHETHER OR NOT TO PURSUE AN INSANITY DEFENSE, AND THE COURT ASSUMED ARGUEN DPCHLT O THAT THAT WAS -- ARGUENDO THAT THAT WAS ONE OF THE RIGHTS THAT THE DEFENDANT HAD TO DECIDE, AND SAID THAT A PETITIONER WHO DOES NOT STATE AN OBJECTION ON THE RECORD MUST SHOW NOT ONLY THAT HE DISAGREED WITH COUNSEL BUT THAT HIS WILL WAS OVER BORN BY COUNSEL. IT SAYS THE DISAGREEMENT COLORED BY ACQUIESCENCE IS NOT SUFFICIENT, POINTED OUT THAT DEAN HAS NOT MET HIS BURDEN OF SHOWING THAT HE, IN FACT, OBJECTED TO A NN INN AND -- TO AN INSANITY DEFENSE AND PRESENTED NO EVIDENCE THAT HIS WILL WAS OVER BORN BY COUNSEL AND IN FACT, BY NOT OBJECTING --

YOU ARE SAYING IN NIXON TWO BEYOND THE LANGUAGE THAT THE COURT ACTUALLY SAID IN NIXON TWO.

I THINK THERE IS ROOM IN NIXON TWO FOR ADDING THAT LANGUAGE.

LET'S JUST SAY HYPOTHETICALLY THAT WHAT HAD HAPPENED HERE IS MR., THE DEFENSE ATTORNEY HAD TALKED TO HIS CLIENT AND SAID, LISTEN, THE BEST STRATEGY IS THAT WE PLEAD GUILTY TO THIS GUILT PHASE, SO WE CAN REALLY AVOID THIS TERRIBLE TESTIMONY FROM COMING IN, AND PLEA MERCIFULLY IN THE PENALTY PHASE, AND THE GUY LOOKS AT HIM LIKE THIS VERY DISRUPTIVE CLIENT WAS DOING, WHICH WE RECOGNIZE, AND MR. CORN, THEN, DECIDES THAT THAT IS THE BEST STRATEGY, WHICH IS TO PLEAD HIM GUILTY, SO HE BRINGS HIM BEFORE THE JUDGE, AND MR. NIXON REFUSES TO COOPERATE. WOULD WE, SINCE WE ARE, WOULD WE ALLOW THE, A GUILTY PLEA TO BE ENTERED, WHEN THE DEFENDANT, JUST BARELY BECAUSE THE DEFENDANT IS UNCOOPERATIVE AND NOT, JUST STANDING MUTE? IN OTHER WORDS AND THAT IS THE PROBLEM. WHETHER THE STATE AGREES OR DISAGREES WITH NIXON, IT DOESN'T, WE HAVE ALREADY RECOGNIZED THAT THIS DEFENDANT, AND IT IS, YOU KNOW, THE DEFENSE ATTORNEY WAS IN A TERRIBLE POSITION, NO QUESTION, BUT WE RECOGNIZE HE WAS DISRUPTIVE AND UNCOOPERATIVE, AND THAT THE EVIDENCE WAS OVERWHELMING, AND IT WAS, WE DIDN'T SAY THAT THE TRIAL COUNSEL DID ANYTHING BUT WAS LOOKING OUT FOR NIXON'S BEST INTERESTS, BUT WE, THEN, WENT ON AND SAID THAT, ALTHOUGH THE ATTORNEY CAN MAKE SOME TACTICAL DECISION, THE ULTIMATE CHOICE IS THE DEFENDANT'S, AND THE ISSUE AS TO WHETHER TO SAY BASICALLY, I AM PLEADING MY CLIENT GUILTY IS NOT ONE THAT A DEFENSE ATTORNEY CAN MAKE, EVEN THOUGH THE CLIENT IS THE MOST UNCOOPERATIVE CLIENT IN THE WORLD!

WELL, WE JUST SIMPLY CANNOT AGREE THAT WHAT HAPPENED HERE WAS A GUILTY PLEA, BECAUSE A GUILTY PLEA IS SOMETHING, ONCE YOU ENTER THE PLEA, JUDGMENT CAN BE ENTERED IMMEDIATELY. JUDGMENT CANNOT BE ENTERED ON A CONCESSION BY COUNSEL. HE HAD A TRIAL. THE STATE WAS REQUIRED TO PROVE HIS GUILT BEYOND A REASONABLE DOUBT. THIS ATTORNEY NEVER SAID ANYTHING TO THE CONTRARY. THE STATE NEVER SAID ANYTHING TO THE CONTRARY AND THE JUDGE ARE IN SAID ANYTHING TO -- THE JUDGE NEVER SAID ANYTHING TO THE CONTRARY. HE COULD HAVE BEEN CONVICTED WITHOUT SUFFICIENT --

THIS GOES BACK TO JUDGE LEWIS'S QUESTION, THAT THE PLEA WAS THE EQUIVALENT OF A GUILTY PLEA, AND THAT IS WHY WE ARE NOT TREATING IT LIKE ANY OTHER STRATEGY DECISION WHICH IS AVAILABLE TO A LAWYER AS TO WHETHER TO OBJECT OR NOT OBJECT AND PUT ON WITNESSES AND MAKE OBJECTIONS AND SAY THE DEFENDANT IS UNCOOPERATIVE. THE DEFENSE ATTORNEY'S ABILITY TO PUT ON MITIGATION IS GOING TO BE THWARTED AND WE ARE NOT GOING TO HOLD THE DEFENSE ATTORNEY INEFFECTIVE BECAUSE OF THAT?

THEN MY ALTERNATIVE ARGUMENT, IF THE COURT IS RESISTANT TO FINDING THAT JUDGE FERRIS WAS AUTHORIZED TO ARRIVE AT THE CONCLUSION SHE DID, BASED UPON NIXON TWO, IS THAT THERE HAVE BEEN CASES DECIDED SINCE NIXON TWO, INCLUDING CASES BY THE UNITED STATES SUPREME COURT IN ROWE V FLORES ORTEGA, WHICH WAS DECIDED AFTER THIS COURT WAS DECIDED IN NIXON TWO, AND I OUTLINED THAT IN MY BRIEF, BUT WHAT HAPPENED THERE, AND LET ME POINT OUT THAT THERE THERE ARE BASICALLY FOUR DECISIONS THAT ARE ULTIMATELY FOR THE DEFENDANT, ONE IS WHETHER OR NOT TO PLEAD GUILTY, WHETHER OR NOT TO TESTIFY, WHETHER OR NOT TO WAIVE A JURY AND WHETHER OR NOT TO APPEAL. ROWE V FLORES ORTEGA INVOLVED THE DEFENSE RIGHT TO APPEAL, AND THE UNITED STATES SUPREME COURT SAID THAT, WHEN THE DEFENDANT HAS EXPLICITLY TOLD HIS ATTORNEY TO FILE AN APPEAL AND THE ATTORNEY DOES NOT, THEN COUNSSELL INEFFECTIVE. IF, ON THE OTHER HAND THE DEFENDANT EXPLICITLY TELLS THE ATTORNEY NOT TO FILE AN APPEAL, THEN COUNSEL IS NOT INEFFECTIVE FOR FOLLOWING HIS CLIENT'S INSTRUCTIONS. IN BETWEEN IS A SITUATION WHERE THE DEFENDANT DID NOT SAY ONE WAY OR THE OTHER, AND IN THAT CASE, IN THAT KIND OF SITUATION, THE NINTH CIRCUIT HAD ADOPTED A PER SE RULE THAT COUNSEL WAS INEFFECTIVE, IF HE DIDN'T FILE THE APPEAL, THE UNITED STATES SUPREME COURT SAID NO, THAT THAT RUNS CONTRARY TO THE ADMONITION IN STRICKLAND THAT YOU DO NOT IMPOSE MECHANICAL RULES ON COUNSEL, IF THE DEFENDANT DOESN'T SAY, ONE WAY OR THE OTHER, YOU DO NOT ANALYZE IT UNDER --

HERE AREN'T YOU TALKING ABOUT A NOT GUILTY PLEA HAD BEEN ENTERED, AND SO YOU ARE TALKING ABOUT THE DECISION, REALLY, IF INDEED THIS WAS THE FUNCTIONAL EQUIVALENT OF ENTERING THE GUILTY PLEA, OF A CHANGE OF PLEA AS OPPOSED TO THE INITIATION, FOR INSTANCE, OF AN APPEAL OR THE DECISION AT THE OUTSET AS TO HOW TO PLEA, IS THAT CORRECT? IT WAS A NOT GUILTY PLEA ENTERED IN THIS CASE AND THAT WAS STANDING AT THE TIME OF THIS TRIAL.

THAT'S CORRECT.

OKAY. AND SO HERE, IF WE ARE TALKING ABOUT THE FUNCTIONAL EQUIVALENT, IT WOULD BE THE FUNCTIONAL EQUIVALENT OF A CHANGE OF PLEA, WOULD IT NOT? FROM NOT GUILTY TO GUILTY.

NOT IN THIS SENSE, BECAUSE THIS DEFENDANT WAS ADVISED OVER A PERIOD OF MONTHS BY TRIAL COUNSEL THAT HE THOUGHT THE BEST STRATEGY IN THIS CASE WAS TO IN ESSENCE NOT CONTEST GUILT AND SAVE EVERYTHING FOR THE PENALTY PHASE, TO TRY TO SAVE HIS LIFE.

YOU ARE TALKING ABOUT THIS, NOW, IN TERMS OF YOUR ANALOGIZEING IT, YOU KNOW, TO THE INITIATION OF AN APPEAL, AND THE DECISION AT THE OUTSET. HERE, THE APPLICABLE DECISION WAS TO ENTER A NOT GUILTY PLEA AS OPPOSE TODD, AND IF YOU ARE GOING TO CHANGE THAT PLEA, THEN THERE IS A ELABORATE PROCEDURE TO WHICH YOU OBVIOUSLY AGREE, TO UNDER THE RULES.

HE DID NOT PLEAD GUILTY, AND CORN WAS ASKED --

IS THERE ANOTHER ONE OF THOSE CASES THAT IS CLOSER ANALOGY TO WHAT WE HAVE HERE?

PARKER VTURPIN, OUT OF THE ELEVENTH CIRCUIT, WHICH WAS ALSO DECIDED AFTER THIS COURT DECIDED NIXON TWO, AND IN THAT CASE IT CAME OUT OF GEORGIA, EXACTLY THE SAME SITUATION AS HERE. DEFENSE COUNSEL, IN A DEATH-PENALTY CASE, AND I THINK IT IS VERY IMPORTANT TO REALIZE WE ARE TALKING ABOUT A DEATH-PENALTY CASE WITH THE GUILT PHASE AND PENALTY PHASE, POSSIBLY THE PENALTY PHASE BEING MORE IMPORTANT THAN THE GUILT PHASE IN A LOT OF CASES. THE DEFENSE COUNSEL HAD CONCEDED THAT, DURING THE GUILT PHASE, THAT HIS CLIENT WAS GUILTY OF MURDER, AND HE DID SO FOR THE STRATEGIC AND TACTICAL REASON THAT HE WANTED TO SAVE HIS CREDIBILITY FOR THE PENALTY PHASE. THAT WAS ANALYZED OPPOSE THE CONVICTION AND THE STATE PROCEEDINGS UNDER STRICKLAND NOT CHRONIC, CHRONIC WAS REJECTED. AND AN ANALOGY OF WHAT HE DID TO BOIK I KNOW AND A -- TO BOIKEN AND A GUILTY PLEA WAS ALSO REJECTED. THE CASE WENT INTO FEDERAL COURT. THE DISTRICT COURT AGREED. I SET THAT OUT IN MY BRIEF. THE ELEVENTH CIRCUIT AFFIRMED, AND MR. CHIEF JUSTICE

YOU ARE SAYING THAT CASE IS ON ALL FOURS WITH THIS?

I BELIEVE SO. I THINK IT IS EXACTLY SAME SITUATION, AND, OF COURSE, PREVIOUSLY, IN NIXON TWO --.

WHAT DID HE PLEAD HIS CLIENT TO?

EXCUSE ME?

WHAT DID HE PLEAD HIS CLIENT TO IN THE PARKER CASE?

HE CONCEDED THAT HE WAS GUILTY OF MURDER. IN GEORGIA THERE ARE NO DEGREES OF MURDER H THERE IS MURDER, VOLUNTARY MANSLAUGHTER AND TWO DEGREES OF INVOLUNTARY MANSLAUGHTER. HE CONCEDED TO THE JURY THAT HIS CLIENT WAS GUILTY OF MURDER. NOW, OF COURSE, IF THAT CONCESSION HAD BEEN STRATEGICALLY UNWEISS OR DEFICIENT ATTORNEY PERFORMANCE -- UNWISE OR A DEFICIENT ATTORNEY PERFORMANCE, IT IS STILL DETERMINED BY THE ATTORNEY'S CONDUCT, HE HAS NO BASIS TO ATTACK IT, IT IS UNREASONABLE. IN THIS CASE A MAJORITY OF THE COURT HAS SAID IN THIS CASE, THAT THE CLIENT ATTORNEY CORN'S STRATEGY WAS, BOTH, REASONABLE AND AN EFFECTIVE MEANS OF TRYING TO SAVE HIS CLIENT'S LIFE, AND THAT BEING THE CASE, LET ME POINT OUT TO YOU THAT, IN CHRONIC, THERE IS A PRESUMPTION OF PREJUDICE AFTER YOU FIND THAT THE ATTORNEY IS DEFICIENT, THAT HE HAS PERFORMED DEFICIENTLY, AND IN THIS PARTICULAR CASE, IN THE STATE'S VIEW, THAT THIS COURT HAS NOT ONLY PRESUMED PREJUDICE BUT, ALSO, PRESUMED DEFICIENT ATTORNEY PERFORMANCE WITHOUT ACTUALLY FINDING DEFICIENT ATTORNEY PERFORMANCE AND, IN FACT, THE COURT HAS FOUND IN THE CONTRARY. IF IT CAN BE REASONABLE STRATEGY IN A DEATH-PENALTY CASE TO, IN EFFECT CONCEDE GUILT, AND FOCUS ON THE PENALTY PHASE, AND THIS COURT HAS SAID THAT IT IS, THEN THAT STRATEGY AND THE ADOPTION AFTER STRATEGY IN A PARTICULAR CASE OUGHT TO BE EVALUATED UNDER STRICKLAND AND NOT UNDER CHRONIC.

WHAT DID MR., THE DEFENSE ATTORNEY SAY THAT, INSTEAD OF, IF HE DIDN'T WANT TO FOCUS ON THE GUILT AND HE WANTED TO TRY TO FOCUS ON MERCY, THEN WHY WOULDN'T THE REASONABLE STRATEGY BE TO PLEAD THE CLIENT GUILTY?

CORN WAS ASKED THAT QUESTION. HE TESTIFIED THAT HE SAW NO BENEFIT TO THAT, AND I WOULD JUST SUGGEST THAT THERE IS ONE POSSIBLE BENEFIT IN DOING THAT, AND THAT IS THIS. IF YOU PLEAD THE CLIENT GUILTY, THEN WHAT HAPPENS IS YOU GO TO THE PENALTY PHASE, AND AT THE PENALTY PHASE, THE STATE GETS GOETZ TO PRESENT ALL OF THE -- THE STATE GETS TO PRESENT ALL OF THE EVIDENCE OF THE CIRCUMSTANCES OF THE OFFENSE AND, OF COURSE, ALL OF THE EVIDENCE SUPPORTING THE AGGRAVATION, WHICH OFTEN TO A LARGE EXTENT COMES OUT OF THE CRIME, ITSELF, BY DOING WHAT MR. CORN DID IN THIS CASE, ALL THAT CAME OUT IN THE GUILT PHASE, WHICH ALLOWED HIM, AT THE PENALTY PHASE, AND, OF COURSE, WE UNDERSTAND THAT, OF COURSE, THE JURY IS GOING TO BE REMINDED THE EVIDENCE AT THE GUILT PHASE. NEVERTHELESS IT ALLOWS HIM TO HAVE A PENALTY PHASE AT WHICH HE CAN FOCUS ATTENTION STRICTLY ON HIS CLIENT AND ON THE MITIGATING CIRCUMSTANCES.

THERE IS TESTIMONY IN THIS RECORD THAT HE STRATEGICALLY SAID IT WASN'T JUST THAT THE DEFENDANT WAS UNCOOPERATIVE. HE KNEW HE COULDN'T GET HIM TO PLEAD GUILTY, BUT HE ACTUALLY THOUGHT IT WAS BETTER TO LET THE STATE DO THIS AND CONCEDE GUILT AND LET THEM GO THROUGH THE WHOLE GUILT PHASE.

HE DIDN'T ELABORATE TO THE EXTENT THAT I JUST DID. HE DID SAY THAT HE DIDN'T SEE ANY BENEFIT TO ENTERING A STRAIGHT UP PLEA OF GUILTY. HE ALSO TESTIFIED THAT HE DIDN'T THINK THAT WHAT HE DID WAS IN FACT, A PLEA OF GUILTY, AND AGAIN, AS WE POINT OUT --

IF THAT WAS HIS STRATEGY TO CONCENTRATE ON THE PENALTY PHASE OF THIS, IT SORT BRINGS YOU TO THE 3.850 ISSUE HERE OF WHETHER COUNSEL WAS INEFFECTIVE IN THAT VERY PRESENTATION. I MEAN, WE, OF COURSE WE DON'T, WE DIDN'T HAVE AN EVIDENTIARY HEARING ON THIS PARTICULAR ISSUE, BUT WHEN YOU GO BACK AND LOOK AT THE PENALTY PHASE THAT WAS PRESENTED HERE, WHAT DID COUNSEL REALLY CONCENTRATE ON IN THAT PENALTY PHASE?

OF COURSE IF WE ANALYZE THIS UNDER STRICKLAND, AND WHAT COUNSEL --

WE REACH THIS IF WE ANALYZE THE FIRST ISSUE UNDER STRICKLAND AS OPPOSED TO --

CORRECT. CORRECT. AND COUNSEL, FIRST OF ALL, DEPOSED 52 WITNESSES. HE ALSO SUBMITTED TO THE STATE, A LIST OF 670 POTENTIAL DEFENSE WITNESSES -- OF 60 POTENTIAL DEFENSE WITNESSES. WE KNOW --

LET'S CONCENTRATE ON THE NINE OR SO WITNESSES THAT WERE ACTUALLY PRESENTED AT TRIAL. WE HAD THE TWO MENTAL HEALTH EXPERTS, RIGHT?

THAT'S CORRECT.

AND THEN WE HAD THE THREE OFFICERS WHO TESTIFIED, A AND WHAT KIND OF TESTIMONY DID THEY GIVE THAT WAS HELPFUL TO MR. NIXON?

HE PRESENTED THE TESTIMONY OF HIS MOTHER, AND I THINK ANOTHER FAMILY MEMBER, I DON'T RECALL EXACTLY. HE PRESENTED THE TWO MENTAL HEALTH EXPERT WITNESSES, AND HE PRESENTED BACKGROUND EVIDENCE INCLUDING ALL THE SCHOOL RECORDS, AND RECORDS THAT, SHOWING THAT HE HAD HAD SIGNIFICANT PROBLEMS FOR SOME TIME.

BUT YOU SAY HE PRESENTED THESE BACKGROUND RECORDS. WAS THERE SOME WITNESS WHO ACTUALLY DISCUSSED, OTHER THAN THE TWO MENTAL HEALTH WITNESSES, DID HE PRESENT WITNESSES TO DISCUSS THIS BACKGROUND INFORMATION, OR WAS IT JUST SORT OF GIVEN AND YOU DO WITH IT WHAT YOU WANT TO?

THE BACKGROUND INFORMATION HAD BEEN GIVEN TO HIS TWO MENTAL HEALTH EXPERTS, ONE OF WHOM WAS A PSYCHIATRIST AND THE OTHER OF WHOM WAS A Ph.D. PSYCHOLOGIST, AND THEY WERE AWARE THAT BACKGROUND, AND THAT BACKGROUND WAS SOMETHING THEY CONSIDERED IN FORMULATING THEIR OPINION, AND ASIDE FROM THAT COUNSEL, OF COURSE, DISCUSSED THE BACKGROUND EVIDENCE IN HIS ARGUMENT AT THE PENALTY PHASE. AND IT BEARS NOTING THAT THE TWO EXPERTS, BOTH OF THE TWO MENTAL HEALTH EXPERTS TESTIFIED THAT TWO STATUTORY MENTAL HEALTH MITIGATORS APPLIED IN THIS CASE. ONE OF THEM, THE PSYCHIATRIST, DR. ECKWELL TESTIFIED THAT MR. NIXON WAS NOT PSYCHOTIC BUT HAS BRIEF PSYCHOTIC EPISODES, BASICALLY WHEN HE IS INTOXICATED, HIS INTELLIGENCE IS ON THE LOW SIDE OF NORMAN AND, OF COURSE, THE STATUTORY MENTAL MITIGATORS APPLIED. THE PSYCHOLOGIST ADMINISTERED A HALLS STEAD-RETAND NEUROPSYCHOLOGICAL BATTERY AND PERSONALITY TEST, INDICATING THAT NIXON HAD AN IQ OF 74. THE NEUROLOGICAL BATTERY SHOWED HIS SCORES ON THAT WERE IN THE BRAIN DAMAGE RANGE?

WITH ALL THIS TESTIMONY, THERE WAS NO INSTRUCTION AT THE PENALTY PHASE ON THESE TWO MENTAL MITIGATORS THAT THE EXPERTS TESTIFIED ABOUT, CORRECT?

WELL, IF THEY TESTIFIED --

THAT WAS EXPLORED, REALLY, ON DIRECT APPEAL, THAT THOSE WERE NOT GIVEN, CORRECT?

THEY WERE NOT FOUND. I DON'T RECALL IF THEY WERE NOT GIVEN.

BUT THE INSTRUCTIONS, THEMSELVES, WERE NOT GIVEN, WERE THEY?

OKAY. I JUST DON'T RECALL THAT. HE DID ARGUE THAT. HE DID, DEFENSE COUNSEL ARGUED THAT THE NUMBER OF MITIGATING FACTORS HAD BEEN ESTABLISHED, INCLUDING --

I GUESS I AM INTERESTED IN KNOWING, YOU KNOW, WE, AS I SAID, THERE WAS NO EVIDENTIARY HEARING ON THIS WHOLE INEFFECTIVE ASSISTANCE AT THE PENALTY PHASE OF THE CASE, AND YET IF DEFENSE COUNSEL DIDN'T EVEN ASK, HE WAS CONCENTRATING ON THIS MAN'S MENTAL AND BACKGROUND FOR A RECOMMENDATION OF LIFE, AND YET HE NEVER EVEN ASKED THE TRIAL JUDGE TO GIVE THE INSTRUCTIONS ON THE MENTAL MITIGATORS, AND I JUST FIND THAT CURIOUS, YET WE ARE SAYING HE CAN GO ON AND PLEAD THIS, IN ESSENCE PLEAD THIS MAN GUILTY AND CONCENTRATE ON THE PENALTY PHASE, YET EVEN IN THE PENALTY PHASE, HE DOESN'T CONCENTRATE ON WHAT HE SAYS HE IS GOING TO DO!

WELL, I THINK HE DOES CONCENTRATE ON IT, BECAUSE HE ARGUED MITIGATION TO THE JURY, INCLUDING LOW INTELLIGENCE, BRAIN DAMAGE, SCHOOL TROUBLES, AGE, EMOTIONAL DISTURBANCE AND IMPAIRED CAPACITY.

AND NO MITIGATORS WERE FOUND IN THIS CASE, CORRECT?

I DON'T THINK THE TRIAL JUDGE, HIMSELF, FOUND THEM AS I RECALL.

BUT THE DEFENSE LAWYER DIDN'T ASK FOR THE INSTRUCTIONS ON THE STATUTORY MENTAL MITIGATORS?

I JUST HAVE TO CONFESS. I DON'T RECALL THAT HE DIDN'T ASK FOR THAT OR NOT. I WOULD BE SURPRISED IF HE DIDN'T, BUT RIGHT NOW I CAN'T SAY. HOWEVER, OUR POSITION ON THE STRICKLAND ISSUE IN THE SUMMARY DENIAL IS THAT, AND WE ARE AWARE THAT THE RULE, NOW, IS BASICALLY HAVE A HEARING ON THESE KINDS OF THINGS. AT THE TIME THEY CAN BE SUMMARILY DENIED, IF THE RECORD CONCLUSIVELY WE FUTURED IT. IN THIS CASE I THINK IT IS ABSOLUTELY CLEAR THAT DEFENSE COUNSEL INVESTIGATED EXTENSIVELY, GOT ALL OF THE BACKGROUND RECORDS, GOT TWO MENTAL HEALTH EXPERTS, AND THE CASES SAY THAT, WHEN AN ATTORNEY HAS A VEST -- HASN'T INVESTIGATED A CASE THOROUGHLY AND ADEQUATELY, THAT THE STRATEGIC DECISIONS HE MAKES AFTER THAT THOROUGH AND ADEQUATE -- HAS INVESTIGATED A CASE THOROUGHLY AND ADEQUATELY, THAT THE STRATEGIC DECISIONS HE MAKES AFTER THAT WILL THOROUGH AND ADEQUATE INVESTIGATION, ARE UNCHALLENGEABLE. I DON'T KNOW WHAT ELSE WE CAN DO HERE. HE GOT EXPERT TESTIMONY, TALKED TO THE FAMILY MEMBERS, PRESENTED THE EXPERT TESTIMONY, MILD BRAIN DAMAGE, ELICITED TESTIMONY THAT NIXON WAS NOT AN INTACT HUMAN BEING, AND HE ARGUED THAT, IN MITIGATION TO THE JURX HE ARGUED THAT NIXON WAS SHOWN -- TO THE JURY, HE ARGUED THAT NIXON WAS SHOWN, THE EVIDENCE SHOWED THAT NIXON WAS SOMEBODY WHO FUNCTIONED WELL ENOUGH IN A STRUCTURED ENVIRONMENT. THEREFORE IN A PRISON, HE WOULD NOT PRESENT A THREAT TO SOCIETY, AND THAT THE JURY SHOULD TAKE INTO CONSIDERATION THAT HE WAS NOT AN INTACT HUMAN BEING AND NEVER HAD BEEN AND NEVER WOULD BE AND CONSIDER THAT IN MITIGATION AND SO ASK THAT CONSIDERATION.

IN THE SINGLETARY CASE TALKED ABOUT A SERIOUS QUESTION AS TO, WE HAVE BEEN TALKING ABOUT NIXON BEING UNCOOPERATIVE, BUT JUSTICE ANSTEAD'S CONCURRENCE TALKS ABOUT A SERIOUS QUESTION OF NIXON'S COMPETENCY TO STAND TRIAL, AND THAT IT WAS, THAT CLAIM WAS SUMMARILY DENIED. WAS AN EVIDENTIARY HEARING, HAS IT BEEN HELD ON THE COMPETENCY TO STAND TRIAL?

MY TIME IS OUT --.

YOUR TOO TIME IS UP BUT YOU CAN ANSWER THAT QUESTION.

TO ANSWER THAT QUESTION, THIS ATTORNEY, CORN, WAS REPRESENTING NIXON IN ANOTHER CASE.

THERE HASN'T BEEN, SINCE 2000, A EVIDENTIARY HEARING ON THAT ISSUE?

NO. ANYWAY, HE WAS EVALUATED IN THE OTHER CASE, AND FOR THAT REASON DPINLT ANY CLAIM OF IN COMPETENT -- FOR THAT REASON DIDN'T FILE ANY CLAIM OF INCOMPETENT IN THAT CASE.

CHIEF JUSTICE: THANK YOU. MR. MARSHAL, HOW MUCH TIME IS LEFT FOR REBUTTAL?

CHIEF JUSTICE: FIVE AND-A-HALF MINUTES, COUNSEL.

THANK YOU. I WANT TO ANSWER A COUPLE OF QUESTIONS THAT CAME FROM THE COURT. THE FIRST ONE WAS FROM, I BELIEVE, A COUPLE OF MEMBERS WHICH IS, IF YOU DO HAVE THIS COLLOQUY AND THE DEFENDANT IS SILENT IN THE COLLOQUY, THE ANSWER, I THINK, IS VERY SIMPLE. THE JUDGE ENTERS A PLEA OFING IN, AND THE REASON IS SIMPLE -- OF NOT GUILTY, AND THE REASON IS SIMPLE. THE REASON IS, IN THE COURT'S DECISION, YOU WERE VERY CLEAR OF A DISTINCTION BETWEEN THE METAPHOR, BETWEEN THE DECISIONS THAT THE LAWYER CAN MAKE FUNCTIONALLY AS OPPOSED AS THE HELMS MAN OF THE SHIP, AND THE DECISION THAT IS THE DEFENDANT CAN MAKE AS THE CAPTAIN OF THE SHIP.

COUNSEL, WHAT WOULD YOU DESCRIBE AS THE LEGAL DIFFERENCES, NOT MERELY DISTINCTIONS BUT LEGAL DIFFERENCES WITH COUNSEL ADMITTING, IN THIS CASE WE HAD A CONFESSION, DID WE NOT?

YES, SIR. AND HAD SEVERAL VERY STRONG WITNESSES IN THIS CASE?

WE HAVE SET OUT WHY THOSE WITNESSES ARE NOT AS STRORNTION BUT, YES, THERE IS A CONFESSION. I AM NOT -- AS STRONG BUT, YES, THERE IS A CONFESSION. I AM NOT GOING TO DENY THERE IS A CONFESSION.

WHAT WOULD MAKE THE LEGAL DIFFERENCE, IF WE WERE TO PERMIT AN ATTORNEY ARGUE THAT THE EVIDENCE DOES ESTABLISH A CRIME, ALBEIT MAYBE A LESSER-INCLUDED CRIME, BUT WE WILL NOT PERMIT THE ATTORNEY TO MAKE THE ARGUMENT, EVEN THOUGH HE DEEMS IT BEST FOR HIS CLIENT, THAT IT IS A, THE CRIME THAT IS CHARGED? FOR EXAMPLE, SECOND-DEGREE MURDER CERTAINLY WE HAVE HELD SINCE NIXON, THAT THE LAWYER CAN ADMIT THE FACTS THAT ESTABLISH THAT, BUT YOU CAN NOT, TO THE HIGHER. NOW, CAN YOU HELP ME UNDERSTAND THE LEGAL DIFFERENCE?

THE LEGAL DIFFERENCE, IT SEEMS TO ME, IS THAT, IN A DEATH PENALTY STATE, YOU WOULD FUNCTIONALLY SHORT CIRCUIT OR TAKE THE, BY MAKING THAT CONCESSION OF GUILT TO FIRST-DEGREE MURDER, PREMEDITATED MURDER, YOU WOULD SHORT CIRCUIT THE PROCEDURE TOWARD THE PENALTY PHASE, AND REGARDLESS OF WHETHER OR NOT THAT WAS CONSIDERED TO BE STRATEGIC, IT IS NOT PERMITTED UNDER THIS COURT'S RULE. IT IS AS SIMPLE AS THAT, AND I HOPE THAT ANSWERS YOUR QUESTION, BUT THAT --

YOU WOULD DO IT JUST ON THE BASIS BECAUSE IT IS A DEATH-PENALTY CASE, NOT THE LEGAL REASONING OF THE TWO, BECAUSE IT SEEMS TO ME THAT THE SAME LEGAL REASONING WOULD APPLY TO BOTH.

IT MIGHT ACTUALLY BE INSTRUCTIVE TO CONSIDER, IF YOU WILL, SOMETHING THAT I AM SURE YOU ARE AWARE OF THAT HAS HAPPENED IN NEW YORK CITY RECENTLY. WE HAD A TERRIBLE RAPE IN NEW YORK, THE FAMOUS CENTRAL PARK JOGGER RAPE, WHERE THERE WERE CONFESSIONS, ACTUAL CONFESSIONS, WHERE THERE WAS OVERWHELMING EVIDENCE OF CRIME THAT HAD BEEN COMMITTED. IT NOW TURNS OUT NOT ONLY THAT THESE DEFENDANTS DID NOT COMMIT CRIME,NESSES NOT COMMIT CRIME. IT, ALSO, TURNS OUT THAT OUR ATTORNEY GENERAL, DISTRICT ATTORNEY BOB MORGAN THAT WILL, BASICALLY GOING TO -- BOB MORGANTHAL IS BASICALLY GOING TO DISMISS ALL OF THE CHARGES. BYE. GONE. NOW CONSIDER WHAT WOULD HAVE HAPPENED IN NIXON'S DEATH CASE, WHERE IF THESE DEFENDANTS HAD BEEN IN A DEATH JURISDICTION, IF NEW YORK HAD BEEN A DEATH JURISDICTION. THEY HAVE BEEN IN JAIL FOR 15, 18 YEARS, I FORGOT HOW LONG. THEY COULD LITERALLY BE DEAD.

THAT GOES TO THE FLAW OF A PROCESS OR A DNA TESTING AND THOSE THINGS. I AM TALKING ABOUT THE LEGAL THEORY BEYOND ADMITTING FACTS IS WHAT I AM TRYING TO GET AT.

MY RESPONSE TO THE QUESTION IS THAT, IF THE DEFENDANT INDEED, AS HE SHOULD, WALKS INTO THE COURTROOM AND THE TRIAL COURTROOM, CLOAKED WITH THE PRESUMPTION OF INNOCENCE, IT CANNOT BE TAKEN OFF AND THROWN AWAY BY THE ATTORNEY, UNDER THE GUISE OF SOME SORT OF TACTICAL DECISION BY A CONCESSION THAT THE DEFENDANT DID IT.

WOULD YOU ADDRESS THE ELEVENTH CIRCUIT DECISION THAT YOUR OPPONENT CITES THAT WAS DECIDED AFTER THIS CASE, OUT OF GEORGIA. IS THAT CASE, IN DEED, ON ALL FOURS?

WE DON'T BELIEVE IT IS. IF YOU LOOK AT FOOTNOTE 29 TO OUR BRIEF, WE DISCUSS THE DECISION, AND WHAT I THINK THE ELEVENTH CIRCUIT CAME TO, WAS THAT THE GEORGIA COURT, THE CONCLUSION THEY CAME TO, WAS THAT, IN THE CIRCUMSTANCES OF THAT CASE, THE DECISION WAS REASONABLE, BUT THE LAW OF THE ELEVENTH CIRCUIT INTERPRETING THE LAW OF THE STATE OF GEORGIA, IS NOT THE LAW OF THE STATE OF FLORIDA, AND UNDER YOUR CONSTITUTION, WHICH HAS PRIMACY WITHIN THIS JURISDICTION, I THINK THIS DECISION IS SOUND, IT HAS BEEN APPLIED.

BUT THE DECISION OF THE ELEVENTH CIRCUIT WAS ON THE BASIS OF CHRONIC?

IT WAS ON THE BASIS OF A FEDERAL DECISION, YES.

AND THIS COURT WAS ON THE BASIS OF CHRONIC?

BUT ALSO ON KOENIG AND OTHER FLORIDA STATE RULES. IT DEFINITELY, WE CITE THAT, I BELIEVE, AT PAGE 26 OF OUR BRIEF AND FOLLOWS. THERE IS A SOUND BASIS FOR THIS COURT TO HOLD, UNDER THE FLORIDA CONSTITUTION, THAT NIXON IS ENTITLED TO RELIEF.

BUT THAT IS NOT, JUST FOLLOWING WHAT JUSTICE WELLS, AND IN FAIRNESS, WE HAVE HAD PRINCIPLES OF THE LAW OF THE CASE, IF THE U.S. SUPREME COURT HAD, WHILE THIS DECISION IS STILL ON APPEAL IN THE SECOND CASE, REACTION PLANED CHRONIC -- REACTION PLANED CHRONIC AND MODIFIED, IT WE RELY -- RE-- REEXPLAINED CHRONIC AND MODIFIED, THEN WE ARE NOT BOUND BY CHRONIC IN THAT DECISION, ARE WE?

IF THEY EXPLAINED IT, THEY REVISITED IN A DECISION WHETHER OR NOT TO APPEAL. I THINK THAT THERE IS A SUBSTANTIVE DIFFERENCE BETWEEN THE PRESUMPTION OF INNOCENCE TO WHICH EVERYBODY IS ENTITLED, WHICH IS REFERRED TO ELOQUENTLY BY JUSTICE HARDING IN HIS CONCURRENCE IN NIXON TWO, WHICH WAS OBVIOUSLY CONCURRED WITH BY THE FLEURALITY. I THINK THERE IS A FUNDAMENTAL DISTINCTION -- BY THE PLUROLITY. I THINK THERE IS A FUNDAMENTAL DISTINCTION BETWEEN THAT AND WHETHER OR NOT TO APPEAL AFTER A CONVICTION HAS OCCURRED.

CHIEF JUSTICE: WE HAVE TO END ON THAT NOTE. WE THANK YOU ALL VERY MUCH. JUSTICE QUINCE IS RECUSED ON THE NEXT TWO CASES. THE COURT IS GOING TO TAKE A FIVE-MINUTE RECESS BEFORE HEARING THOSE LAST TWO CASES.