Government of the Virgin Islands v. William Weatherwax

This is the second time that this habeas corpus proceeding has been before us. In the previous appeal, Government of the Virgin Islands v. Weatherwax, 20 F.3d 572 (3d Cir.1994), we reversed the district court's dismissal of Weatherwax's petition for a writ of habeas corpus and remanded for an evidentiary hearing on Weatherwax's claim of ineffective assistance of counsel. After holding the evidentiary hearing, the district court granted Weatherwax's petition for habeas relief. We will reverse.

William Weatherwax was indicted for the shooting death of St. Clair Hazel. A jury acquitted him of first degree murder but convicted him of second degree murder and unlawful possession of a weapon. We affirmed on direct appeal. Government of the Virgin Islands v. Weatherwax, 893 F.2d 1329 (3d Cir.1989).

Weatherwax thereafter filed a petition for a writ of habeas corpus, raising several arguments. Only one of those arguments is relevant to this appeal. Weatherwax alleged that during his trial a juror was observed with a newspaper containing an article about the trial. The article allegedly reported an inaccurate and unfavorable account of Weatherwax's testimony. Both Weatherwax and members of his family informed defense counsel of this fact but the lawyer failed to bring the matter to the trial court's attention. Weatherwax claimed that his attorney's failure to bring this matter to the court's attention constituted ineffective assistance of counsel.

The district court rejected that argument, reasoning that the newspaper article was "a verbatim and dispassionate account of the testimony adduced at trial" which accordingly could not be prejudicial. Weatherwax, 20 F.3d at 575. We came to a different conclusion, however, finding that the actual trial testimony varied from the newspaper account in several significant respects. We found that the difference between the article version and the official transcript, "[a]lthough subtle," could have been unfairly prejudicial because Weatherwax's testimony (but not the newspaper account) "argue[d] against second degree murder and support[ed] Weatherwax's self-defense testimony." Id. at 577.1

We further found that "[i]f the jurors ... read the damaging article with its distorted reporting of Weatherwax's testimony, the likelihood of resulting taint to the fairness of the trial [would be] apparent [and] Strickland 's second prong would also be met." 20 F.3d at 580. We, therefore, instructed that if the district court found on remand (1) that a juror in fact had brought the newspaper into the jury room and (2) that Weatherwax's lawyer had been informed of this, then Weatherwax would have "made out a prima facie case of ineffective assistance of counsel under the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] standard." Id. If such a "prima facie" case were established on remand, we instructed that, "[t]he government must then be afforded the opportunity to question Weatherwax's counsel relative to his failure to request the voir dire in order to show, if applicable, that counsel proceeded on the basis of 'sound trial strategy.' " Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065).

On remand, the government did not contest Weatherwax's claims (1) that a juror in fact had had possession of a newspaper in the jury room and (2) that Weatherwax's lawyer had been informed of this. Thus, Weatherwax made out a prima facie case of ineffective assistance of counsel under Strickland, and the burden shifted to the government to show that Weatherwax's counsel had proceeded on the basis of "sound trial strategy." Id.

To meet its burden, the government called Weatherwax's trial attorney, Michael Joseph. In response, Weatherwax called his sister and his brother-in-law, who were present during the trial, and gave his own account of the relevant events. With the sole exception noted below, the testimony of these witnesses was not in conflict.

Joseph, an experienced criminal defense lawyer and a lifelong resident of the Virgin Islands, was privately retained by Weatherwax. Weatherwax stayed with Joseph in his home during the last few days of pretrial preparation and throughout the trial. Joseph considered it "a very difficult case." (J.A. at 23.) Among other things, he explained to Weatherwax the strategy he intended to use in selecting a jury. That strategy was based in part on the fact that Weatherwax's case had created a racially charged atmosphere in the Virgin Islands because Weatherwax was white, a so-called "Continental," and the victim was black. It was also based on the facts surrounding the victim's death and Weatherwax's anticipated defense. Joseph testified:

Q. [D]id you have a strategy, sir, with regard to selecting a jury?

A. Of course.

Q. And what was that strategy?

A. ... I saw this case as a case in which the facts really were not too much in dispute as compared to the jury that would hear the facts and interpret the facts. For instance, it would be undenied that an unlicensed firearm was involved. It would be undenied that Mr. Weatherwax possessed an unlicensed firearm. It would be undenied that Mr. Weatherwax discharged an unlicensed firearm. It would be undenied that the person who was shot did not have a firearm. And it would be undenied that there would be witnesses who would have conflicting stories as to what danger he presented to Mr. Weatherwax. Therefore, I thought Mr. Weatherwax's perception as to what was happening to him, which is the gist of a self defense case, not what's really happening but whether the person reasonably perceived themselves to be in danger was the gist of this case and we needed jurors who would identify with that situation.

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Q. What were you striving to achieve in the composition of the Weatherwax jury?

A. Sympathy.

Q. And were you doing that based upon the profile of certain venire persons?

A. Absolutely.

Q. What were you looking for specifically?

A. I was looking for as many Continentals on the jury as possible.

Q. And for what reason did you do that?

A. Sympathy.

Q. Is that another way of saying you would assume that they identified with the defendant?

A. Absolutely.

(J.A. at 23-24, 26-27.)

Joseph further testified that a second objective of his trial strategy was to persuade the jury to convict only on a lesser included offense in the event the evidence of self defense did not produce an acquittal on all counts.

The jury ultimately selected to hear Weatherwax's case consisted of three white and nine black jurors. It was the largest number of Continentals Joseph had ever seen on a Virgin Islands jury and he was "ecstatic." (J.A. at 28.)

On numerous occasions during the trial, the trial judge admonished the jury to avoid reading articles about the trial in the newspaper. He did not, however, instruct them not to read a newspaper.

On the morning of the last day of the trial, after Weatherwax had finished his testimony and just as the prosecution was about to call its rebuttal witnesses, Weatherwax's sister, Sally Lay, and his brother-in-law, William Lay, observed a juror walk from the jury room into the court room with a local newspaper under his arm. They did not observe him reading the newspaper and, accordingly, did not know what portion of the paper the juror had been exposed to. Mr. and Mrs. Lay advised Weatherwax and a bailiff of their observation. The bailiff took no action but advised them to speak to their lawyer.

The Lays, Weatherwax, and several other members of his family took the bailiff's advice and informed Joseph about the newspaper as he was entering the door of the courtroom. A conversation ensued. Weatherwax expressed the view that it was "not right" for the juror to have a newspaper and he as well as his relatives asked Joseph to do something about it. (J.A. at 64.) Mrs. Lay described the conversation and Joseph's response in the following terms:

Q. You didn't ask anything--all I'm asking you, ma'am, is you didn't ask him to do anything specific. You just asked him to do something about it?

A. We asked him to do something about it, file a motion or something and he said he would file a motion for a mistrial tomorrow.

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Q. And that's not all he said, did he? He said something else didn't he?

A. In this conversation?

Q. Yes.

A. Yes, he did.

Q. What did he say?

A. He said that he--well, he said a lot of things during the course of the conversation.

Q. As specifically as you can recall, Mrs. Lay, I would like for you to tell the Court everything that Mr. Joseph said.

A. He said that the jury [sic] with the newspaper is a white man. He would help Billy's case. He was on our side. Leave it alone. He would file a motion for a mistrial tomorrow.

Q. So he told you essentially not to worry about it, didn't he?

Ms. Lamont: Objection.

The Court: It's cross examination. Ask her that question before you go on to something else.

Q. You may answer the question. Attorney Joseph told you not to worry about the situation, didn't he?

A. No, he did not use those words.

Q. But he did tell you, as a matter of fact, that he believed that the juror that you had identified was "on your side," didn't he?

A. Yes.

Q. And he also told you not to bring any attention to it, didn't he?

A. Yes.

(J.A. at 67-68.) Neither Weatherwax nor his family thereafter brought the newspaper to the attention of the court.

Joseph testified that he had monitored the newspapers daily for inflammatory material and that he had read the article in that morning's paper before coming to court. He described in the following terms his reaction upon being advised of the Lays' observation:

A. ... So telling me a juror has a newspaper and walk [sic] into court tells me--my impression was that's a pretty honest man.

Q. Why was he an honest man?

A. Because if he wanted assistance from the newspaper as to what is happening in court, he would have read it clandestinely. He wouldn't have just walked to court like that. Many people in this community love the sports page. Many people love to do crossword puzzles. If they don't do their crossword puzzle, they don't have a good day.

Q. Do you believe that the possession of a newspaper, the possession, in and of itself, was a valid basis for a mistrial?

A. Absolutely not.

Q. Was it a valid basis for polling the jury?

A. Not that jury.

Q. Because you wanted that jury?

A. Absolutely. On another jury I might have used it as an excuse.

Q. So you did not request that the jury be polled?

A. No.

Q. Was that a strategic decision on your part, sir?

A. Of course it was. That's what I'm trying to tell you, sir, that if anybody, including Judge Almeric Christian, had come and tell [sic] me, "Michael Joseph, it is my opinion that you should poll the jury," I would have said, "Your Honor, leave my jury alone."

(J.A. at 37-38.)

The sole conflict in the testimony relates to whether Joseph committed himself during this conversation to the filing of a motion for a mistrial. Mrs. Lay insisted that he did:

Q. To your knowledge, what was done?

A. Mr. Joseph said that he would take care of it and he would file a motion for a mistrial tomorrow.

(J.A. at 48.)

Joseph testified that he said he would think about the matter but insisted that he did not commit to seeking a mistrial.

Q. Do you recall ever telling anyone that you might consider a motion for a mistrial?

A. Not only do I not recall not telling anyone that. I would call any lawyer that would have moved for a mistrial on those grounds a fool because of the composition of the jury. It was a rare jury. Probably the odds of such a jury being selected again was nil. And if someone mentioned that to me, I probably would have laughed at them.

I recall telling Billy that it was my opinion that this is the best shot he's getting right here, Mr. Weatherwax, that this jury was about the best jury he would ever get.

Q. Well, let's get inside your thought process. You told the defendant that you would think about it. Did you, in fact, think about it?

A. Of course.

Q. Did you come to a conclusion about whether or not it would be important for you to either request a mistrial or request a polling of the jury?

A. Again, it's important that you understand that this had been a jury that left me very happy, with a very happy feeling.

(J.A. at 33-34.)

No motion for a mistrial was filed by Joseph and the newspaper incident was not pursued prior to the filing of this habeas proceeding.

The district court credited Joseph's testimony that he made a deliberate and strategic decision not to pursue the newspaper issue. It concluded, however, that during his conversation with the Weatherwax family he had led them to believe that the issue would be pursued in some way. Specifically, the district court found that "[d]espite giving some assurances that he would 'file a motion,' Attorney Joseph determined that the incident did not warrant interfering with the composition of the jury." (Dist. Ct. Op. at 7.)

Despite its conclusion that Joseph's decision had been deliberate and strategic, the district court nevertheless ruled that Joseph's failure to call the court's attention to the incident of alleged juror misconduct was unreasonable under the Strickland standard for measuring an attorney's performance. It explained:

[C]ounsel's decision not to notify the court of the juror's misconduct, was in the first instance a breach of a fundamental duty to his client, and in the second, a breach of his duty as an officer of this court.

Accepting trial counsel's claim as to a strategy, this court finds that the decision denied the trial judge, and therefore counsel and client, the opportunity to conduct the searching inquiry that was required to determine the extent of the jury's exposure to the extra-judicial evidence. As such, the decision cannot be said to have been reasonable exercise of professional judgment.

(Dist. Ct. Op. at 16.)

The court then addressed the second prong of the Strickland test and determined that the facts warranted relief under the doctrine of that case. It found that "because of trial counsel's disregard of his client's wishes and his duty to this court, there are no objective criteria upon which this court can determine prejudice, if any, as a result of the juror's misconduct. To the extent that a voir dire was not conducted, proof of prejudice is excused. Since finality concerns are weaker when one of the assurances that the result of the proceeding is reliable is absent, a new trial is warranted." (Dist. Ct. Op. at 17-18.)

We review the district court's findings of fact for clear error. We must make an independent judgment, however, on whether the facts thus found constitute constitutionally ineffective assistance of counsel. McAleese v. Mazurkiewicz, 1 F.3d 159, 166 (3d Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 645, 126 L.Ed.2d 603 (1993).

The district court reasoned that Joseph breached a duty to his client because he (a) failed to take steps necessary to secure a voir dire inquiry directed to the issue of whether the newspaper in fact had prejudiced the jury and (b) failed to consult with or follow directions from his client about strategic matters. Our de novo review leads us to a contrary conclusion.

We start with the teachings of Strickland v. Washington:

In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d ed. 1980) ("The Defense Function"), are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. See United States v. Decoster, 199 U.S.App.D.C. , 371, 624 F.2d , 208. Indeed, the existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant's cause.

* * *

Judicial scrutiny of counsel's performance must be highly deferential.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

466 U.S. at 688-89, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).

Thus, while professional standards provide guidance in evaluating the performance of counsel, they do not define the boundary between constitutionally acceptable and constitutionally unacceptable performance.2 The Constitution requires only that counsel's assistance be "reasonable" considering all of the circumstances and the ultimate objective of assuring "vigorous advocacy of the defendant's cause." Id. at 689, 104 S.Ct. at 2065. Moreover, the evaluation of reasonableness must begin with a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.

Applying these principles in Strickland, the Supreme Court discussed the interplay between an attorney's duty to investigate a matter and her strategic choices regarding that matter:[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

Id. at 690-91, 104 S.Ct. at 2066.

In a sense, Joseph made his strategic choice not to move for a mistrial "after less than complete investigation"; he decided that it would be better to keep the jury intact without first inquiring into whether the jurors read or were influenced by the newspaper article. Still, Joseph's decision not to investigate the possibility of juror prejudice was itself a strategic decision. Unlike the usual case where a lawyer fails to fully investigate a matter, Joseph could not conduct an investigation without first bringing the newspaper incident to the court's attention. Once he brought the matter to the court's attention, however, he would relinquish to the court at least some control over whether this particular jury would decide his client's fate.

Given the limited information that Joseph had in front of him--that a juror had been seen with a newspaper, and that the newspaper contained a potentially damaging article--and given Joseph's view that this jury was the best that could be expected from Weatherwax's point of view, we think that the decision not to inform the court was reasonable "under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. Joseph acted in what he believed to be his client's best interests. He believed that he had the best jury possible under the circumstances, and he made a judgment that many competent litigators would make under the same circumstances. Bringing the newspaper incident to the court's attention would have created a possibility that the court would either declare a mistrial or otherwise alter a jury which Joseph felt favored the defense.3 Given the Supreme Court's statement that "[t]here are countless ways to provide effective assistance in any given case," and the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," id. at 689, 104 S.Ct. at 2065, we cannot, without more, rule that Joseph's decision not to investigate further was unreasonable as a matter of strategy.4B.

The district court also found that Joseph's representation was ineffective because he failed to follow direction from or fully consult with his client when he decided not to bring the newspaper incident to the court's attention.

There is general agreement in the case law and the rules of professional responsibility that the authority to make decisions regarding the conduct of the defense in a criminal case is split between criminal defendants and their attorneys. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987 (1983); United States v. Teague, 953 F.2d 1525, 1531 (11th Cir.), cert. denied, 506 U.S. 842, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992); 1 American Bar Association Standards for Criminal Justice § 4-5.2 (2d ed. 1980 & Supp.1986) [hereinafter ABA Standards ]. While this general proposition is more clear than precisely where to draw the dividing line, the Supreme Court has provided some guidance that helps to narrow the issue.

In Jones, the Supreme Court held that although a criminal defendant has an equal access right to an appeal under the Due Process and Equal Protection Clauses, he has no constitutional right to insist that appellate counsel advance every non-frivolous argument the defendant wants raised. 463 U.S. at 754, 103 S.Ct. at 3314. The Court's review of its prior jurisprudence in Jones reflected a recognition that "the accused has the ultimate authority to make certain fundamental decisions regarding the case." Id. at 751, 103 S.Ct. at 3312. As examples of those "fundamental decisions," the Court pointed to the decisions concerning whether to plead guilty, to waive the right to trial by jury, to testify in one's own behalf, to take an appeal, or to waive the right to counsel. See also Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2540-41, 45 L.Ed.2d 562 (1975).

In support of its analysis, the Jones Court referred to ABA Model Rule of Professional Conduct 1.2(a), which reserves decisions on fundamental matters to the client, and then expressly recognized the complementary proposition that non-fundamental decisions are to be made by counsel on the basis of his or her professional judgment exercised after consultation with the client:

"A lawyer shall abide by a client's decisions concerning the objectives of representation ... and shall consult with the client as to the means by which they are to be pursued.... In a criminal case, the lawyer shall abide by the client's decision, ... as to a plea to be entered, whether to waive jury trial and whether the client will testify." Model Rules of Professional Conduct, Proposed Rule 1.2(a) (Final Draft 1982) (emphasis added).

With the exception of these specified fundamental decisions, an attorney's duty is to take professional responsibility for the conduct of the case, after consulting with his client.

463 U.S. at 753 n. 6, 103 S.Ct. at 3313 n. 6.

The ABA Standards for Criminal Justice recognize as being among the non-fundamental issues reserved for counsel's judgment "whether and how to conduct cross-examinations, what jurors to accept or strike, [and] what trial motions should be made...." ABA Standards § 4-5.2(b). Several courts have also recognized witness selection as being among the non-fundamental decisions that counsel is entitled to make at trial. E.g., United States v. Long, 674 F.2d 848, 855 (11th Cir.1982) (holding that counsel's failure to call alibi witnesses was not ineffective assistance and stating: "This Court will not second-guess tactical decisions of counsel in deciding whether to call certain witnesses."); State v. Davis, 199 Conn. 88, 506 A.2d 86, 92 (1986) (holding that counsel's refusal to call a witness that his client had instructed him to call did not violate defendant's right to compulsory process); People v. Deere, 41 Cal.3d 353, 222 Cal.Rptr. 13, 710 P.2d 925, 931 (1985) (in bank); Wainwright v. Sykes, 433 U.S. 72, 93, 97 S.Ct. 2497, 2509-10, 53 L.Ed.2d 594 (1977) (Burger, C.J., concurring) ("[The attorney], not the client, has the immediate--and ultimate--responsibility of deciding if and when to object, which witnesses, if any, to call, and what defenses to develop."). The Sixth Circuit Court of Appeals has concluded that issue selection similarly falls in this category. Meeks v. Bergen, 749 F.2d 322, 328 (6th Cir.1984) (criminal defense counsel may make strategic decision to assert self-defense rather than battered wife syndrome as defense at client's murder trial). The Eleventh Circuit Court of Appeals has concluded that counsel has the ultimate authority to decide issues concerning "what evidence should be introduced, what stipulations should be made, what objections should be raised, and what pre-trial motions should be filed." Teague, 953 F.2d at 1531.

Recent decisions of the First and Eleventh Circuit Courts of Appeals recognize the prerogatives of defense counsel with respect to non-fundamental matters in the course of rejecting ineffective assistance of counsel claims. In Routly v. Singletary, 33 F.3d 1279 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2627, 132 L.Ed.2d 867 (1995), the petitioner in a habeas proceeding maintained that his counsel had provided ineffective assistance of counsel during his homicide trial. The jury had returned to the courtroom during its deliberations and informed the court that it had been unable to hear the testimony of the state's primary witness. Petitioner faulted counsel for not moving for a mistrial on the ground that the jury was thus deliberating without the benefit of an important segment of the trial evidence. The district court rejected the ineffective assistance claim based on the fact that counsel's decision not to move for a mistrial was a "deliberate tactical choice." 33 F.3d at 1289. Counsel decided "not to move for a mistrial precisely because the jury might have difficulty in coming to unanimous agreement concerning the content of the state's most important witness." Id. The court of appeals affirmed. Id. at 1282.

In United States v. McGill, 11 F.3d 223