19.10. Reading: State v. McDowell, 669 N.W.2d 204, aff’d 681 N.W.2d 500 (Wis. CoA 2003)

Reading Guide

Preparing for the Reading:
This case is included so you can think about the issue of client perjury in the criminal context. This case includes a discussion of the lawyer’s ethical obligations as well as the constitutional dimensions of the perjury issue. Just a warning – the facts in the underlying criminal case are disturbing.

Issues:
– When and how did the perjury issue arise?
– What options were open to the lawyer when faced with client perjury?
– What did the lawyer do here?
– What remedy is the criminal defendant seeking here?
– What is the standard to determine if the criminal defendant’s constitutional rights were violated? Were they violated here? Why or why not?

State v. McDowell

669 N.W.2d 204, aff’d 681 N.W.2d 500
Court of Appeals of Wisconsin, 2003

Before FINE, SCHUDSON, and CURLEY, JJ.

OPINION

SCHUDSON, J.

Derryle S. McDowell appeals from a judgment entered on jury verdicts convicting him of robbery, kidnapping, and five counts of first-degree sexual assault while using a dangerous weapon, all as party to a crime, and from the order denying his motion for postconviction relief. He argues that trial counsel rendered ineffective assistance, effectively abandoning the defense of his case, by abruptly shifting from question-answer questioning to narrative-response questioning during his testimony.

McDowell’s appeal presents the important issue of whether, and under what circumstances, a criminal defense attorney may require his or her client to testify in unaided narrative, rather than in the usual question-answer style, in order to avoid complicity in the client’s perjury. Resolving this issue, we determine and apply the standards that, we conclude, govern criminal defense counsel’s legal obligations in assessing and responding to a client’s possible perjurious testimony. …

FACTUAL BACKGROUND

I. The Crimes

On the night of April 21, 1997, an eighteen-year-old woman, on her way home, was followed by two men after she got off a bus. They rushed her and, each with a gun, forced her off the street and down a gangway near a building at 4720 West Burleigh Street in Milwaukee. With guns to her head, they robbed her, fondled her, and repeatedly assaulted her sexually, penetrating her orally and vaginally by both penis and gun barrel. Following the assaults, the victim spat ejaculate at the scene. The victim could not identify her attackers, but the State had a powerful case based on evidence recovered from her body, her clothing, and the scene, including the victim’s saliva mixed with semen containing McDowell’s DNA. Police also recovered evidence containing DNA of McDowell’s accomplice, who pled guilty prior to McDowell’s trial.

***

III. The Last Day of Trial

Two days [after trial started], as the trial resumed on the morning after the State rested, the trial court confronted new developments involving McDowell’s representation:

THE COURT: … Is there anything you want to bring to the Court’s attention prior to us bringing the jury in this case?

MR. LANGFORD: There is, your Honor.

As the Court is aware, we had an off-the-record conversation in chambers, at which time I advised the Court that I had some concerns about testimony that I anticipated being proffered to the Court before this jury this morning. I was not specific as to who the testimony would come from, but I had concerns that would affect my ability to effectively proceed as counsel in this case and asked the Court or suggested to the Court at that time that I would-I be permitted to withdraw.

And that sort of is where we are. I still maintain that position and we have had discussions, however, regarding how to proceed with this matter, and if that is where we go then I accept that as the directive from this Court, but I still have those concerns.

(Footnote added.) Although Mr. Langford “was not specific,” the ensuing discussion implied that his concerns related to the possibility that McDowell would testify untruthfully.

The trial court then addressed several concerns including Mr. Langford’s duty to his client and his duty as an officer of the court under Wisconsin’s Rules of Professional Conduct for Attorneys. The court then advised that, in its estimation, Mr. Langford could: (1) recommend to McDowell that he not testify if his intended account was untrue, “not supportable,” or “so completely outrageous that a trier of fact is not only not going to believe it, [but] is going to … hold it against” him; or (2) take the “middle ground” by calling McDowell to testify in narrative form, without the assistance of conventional questioning. The court also acknowledged the option of counsel’s withdrawal, but rejected that because of the mistrial that would result, affecting “not only the rights of [McDowell] but the rights of all the other people” involved in the almost-completed jury trial. The court further reasoned that allowing counsel to withdraw was a particularly unattractive option given that it would not necessarily accomplish anything; after all, McDowell’s next attorney would face the same dilemma and, therefore, might also ask to withdraw.

Mr. Langford then asked, “First of all, Judge, the Court is denying my motion to withdraw?” The trial court responded, “Absolutely.” The court then, however, granted counsel’s request for a short break to confer with McDowell. After that break, Mr. Langford advised the court:

Your Honor, I have spoken with Mr. McDowell. Mr. McDowell advised me he does wish to testify and that what he would be testifying to will be the absolute truth with respect to anything regarding his testimony. He wishes to get up there and testify as to the truth.

….

Judge, I have no reason to believe in light of what Mr. McDowell has told me that he will not get up there and testify as to the truth. Therefore when he takes the stand I will be asking him questions, specific questions with respect to his testimony before this jury.

(Emphases added.) The court and counsel then concluded their discussion:

THE COURT: All right. Well that is your right to do, and that is your election as your tactical decision under the circumstances. Just understand that you also then, should something change during the course of this situation, you shall immediately advise the Court and then only narrative responses will be given on the part of Mr. McDowell, and you shall no longer have any other questions available to you for purposes of specific requests for clarification under the circumstances from the time this Court is advised of that narrative situation.

Understand that, Mr. Langford?

MR. LANGFORD: Understood, Judge.

(Emphasis added.)

Mr. Langford then presented his opening statement. …

As McDowell started testifying, Mr. Langford questioned him in conventional question-answer style, asking three questions about his age and residence. Next, however, Mr. Langford asked, “Mr. McDowell, I want you to look at this jury and tell this jury about the events of April 20 and April 21 of 1997. Take your time and speak loudly and clearly, please.” But as McDowell began his answer, Mr. Langford asked, “Do you want a sidebar, Judge?”, and the court responded, “I certainly do.”

The record reflects that a sidebar conference among counsel and the court then was held off the record. The court then directed Mr. Langford to “restate the question,” and Mr. Langford asked: “Again, Mr. McDowell, take your time and tell this jury what you would like for them to know regarding the allegations against you beginning with where you were and what you were doing on April 20, 1997, through the early morning hours of April 21, 1997. Proceed, please.” McDowell answered:

On April 20, 1997, I was by my father’s house at 4720 West Burleigh. Later on in the afternoon I had company. My girlfriend came over sometime in the afternoon. We watched TV. We got movies and ate, joked around, played around. And as the evening went through we continued to watch movies, and I asked my father could I go to the gas station. He told me to take out the garbage before I went to the gas station because I wanted to go to the gas station so me and my girlfriend was cuddled up and I continued to ask did she want to go out in the back with me. And she first continued to tell me no, but afterward she told me yes. So I asked my father can I go to the gas station. He told me to take out the garbage.

Instead of me taking out the garbage, me and Sunshine, my girlfriend, had just went out the door to go to the gas station. That is where we were at. At the gas station we had two sodas and returned back to my father’s apartment, 4720, but then we didn’t go inside the apartment. We went outside around the back. While we was in the back we was fooling around and had oral sex in the back, and then by the time we had oral sex, after we were through and everything like that, my father ended up coming out in the back bringing out the garbage and caught me and my girlfriend fooling around back there and got yelling and screaming at me and my girlfriend telling us to go in the house. As we went to the house he told my girlfriend to call her mother, and he continued to yell and fuss and everything at us. Her mother wasn’t there, so he told her to get ready to take her home. Afterwards she got ready to go and continued fussing, continued to argue at us, and we took her home. And then we came back. First me and my father rode around because he continued to talk to me about what just happened back there, how dangerous it was and how we could have got in trouble and what we was doing was wrong. So we finally arrived back to my father’s house. When we arrived we went in the house and went to sleep.

That is what happened according to them days.

Mr. Langford then asked two more questions, eliciting McDowell’s acknowledgement that he had four juvenile adjudications. In response to the prosecutor’s very brief cross-examination, McDowell admitted that he had attempted to avoid arrest and run from police, and that he was a friend of the accomplice who had been convicted of these assaults. Mr. Langford asked no re-direct questions.

In his closing argument, Mr. Langford picked up the thread of McDowell’s implicit theory of defense. After commenting at length on the nature of DNA evidence, he stated:

[T]he thought of living somewhere and not having your DNA somewhere just boggles my mind …. Where would you expect to find DNA material of yours? In your house? …. Where else would you expect to find your DNA material but around where you in fact live or work or someplace that you frequent? ….

There is an expectation that you could find evidence of Mr. McDowell being related and associated with 4720 West Burleigh.

… And lo and behold, where Derryle McDowell lives they find a sample, and that is where they say they found the sample and we can’t disprove that.

McDowell was convicted of all counts and, following several adjournments, sentenced. He moved for postconviction relief, asserting that Mr. Langford had rendered ineffective assistance.

IV. The Machner Hearing[1]

At the Machner hearing, Mr. Langford explained what had led to his original concerns about McDowell’s anticipated testimony, as well as his shifting approaches to McDowell’s trial questioning. Mr. Langford testified that, based on trial-preparation discussions he had had with McDowell and his girlfriend, “Sunshine,” he had come to have the “impression” that McDowell had not engaged in any sexual activity behind the building the night before the assaults. Mr. Langford explained that McDowell only introduced the oral-sex-the-night-before theory of defense after learning that any scientific challenge to the DNA evidence would be futile. And, discovering several inconsistencies between the accounts of McDowell and Sunshine, Mr. Langford remained skeptical about the integrity of that theory and ultimately decided that Sunshine should not testify.

Further, Mr. Langford testified that McDowell asked, “‘What if Sunshine and I get together and we say …’”, and told him: “[‘]I’ll say what I need [to] say to help myself out and if I have to say something untruthful I’ll say that. I need to help myself out.[‘]” Finally, Mr. Langford concluded, if McDowell persisted in his plan to offer that theory of defense, he would be presenting “perjured testimony.” Thus, Mr. Langford testified, he believed he was facing an ethical dilemma on which Wisconsin case law provided little if any guidance and, therefore, that the “cleanest” solution was to withdraw.

At the Machner hearing, Mr. Langford also elaborated on the events immediately preceding McDowell’s testimony. “There was a juncture in discussions that Mr. McDowell had with myself and [Assistant State Public Defender] Deja Vishny on [the day he was going to testify] where there were several statements by Mr. McDowell[, o]ne of which [was] that he would proffer untruthful testimony if it would help him,” and that McDowell had “stated the specifics” of what that untruthful testimony would be. He testified that he and Ms. Vishny had had “several discussions … with Mr. McDowell in the holding area in Judge Moroney’s court” about his options including “narrative testimony versus a question and answer testimony.” Indeed, responding to questions from the prosecutor, Mr. Langford testified that, in the course of those discussions, he, Ms. Vishny, and McDowell were quite clear:

A: So then we talked about, well, if you testify in light of what you’re saying. And what he was saying at the time were several things. One was, [“Y]ou know, I’ll say what I need to say to help myself out and if I have to say something untruthful I’ll say that. I need to help myself out.[“]

Q: Did he tell you that?

A: Yes.

Q: That even if he has to say something untruthful he will to help himself out?

A: Yes.

Q: And he told you right to your face?

A: Deja was actually asking-I should say having the colloquy with him. I was there. But she was trying to assist me in making sure that we covered this carefully and that he understood carefully what we were asking of him and fully understood what he was responding or was saying back to us.

So the question was put several ways by her. And one of the responses was, [“Y]es, if I have to testify untruthfully.[“]….

So that was … part of the discussion. But then the other part of the discussion talking to him about the ethical aspect of this and he may have to get up there and testify in a narrative style and he was going to be on his own.

And in response to re-direct questions from McDowell’s postconviction counsel, Mr. Langford further recounted what he had advised McDowell about narrative testimony: “I made it clear to him that once you start talking make sure you say everything you want to say. You are going to get one kick at the cat.” (Emphasis added.)

Mr. Langford also presented details of the events leading to his shift from question-answer to narrative. He testified that, during McDowell’s testimony, he was handed a note from “somebody with the public defender office” stating: “[Assistant State Public Defender William J.] Tyroler says go with a narrative. Tell that to the client. It must be by narrative.” As a result, Mr. Langford explained, he converted to narrative. He conceded, however, that he did so without interrupting the testimony or advising McDowell of the shift, and, perhaps most significantly, without having concluded that McDowell “was going to lie.”

…

At the Machner hearing, McDowell testified that he never told Mr. Langford or Ms. Vishny that he was going to testify untruthfully, and that Mr. Langford “never said that [he] may have to testify in a narrative.” He also said that this was the first time that he had ever testified before a jury, and that he was “extremely nervous” and “confused.” He described how he felt when Mr. Langford shifted from question-answer to narrative:

[Mr. Langford] got me thinking differently. From one moment he going to be asking me questions. At one moment he want me to just tell a story. Had me going back and forth.

I don’t know which one was what. I misunderstood. I thought I was going to be getting questioned and telling a story. I didn’t know what was what.

….

I felt confused. I didn’t know which direction where we was going. At one point in time, I was supposed to be answering questions, and another I was being on my own. So I felt confused. I didn’t know. Confused. I thought it was going to be both of them or what. I don’t know. Just lost.

….

[I felt abandoned b]ecause he told me one thing and did another.

McDowell then testified that, had he been asked questions, he would have testified that the night before the assaults Sunshine performed oral sex on him, that he was not wearing a condom, that he ejaculated at the scene, and that he never committed any of the crimes.

Denying McDowell’s postconviction motion, the court stated, in part:

Attorney Langford under these conditions was not ineffective. He was put in an untenable position by his client and reacted, under the circumstances, in a way that best preserved his client’s right without impugning his own ethical responsibilities to the Court and to the profession.

And I would add that even if another court were to disagree with this Court’s assessment, I’m satisfied that had the defendant testified fully and completely, as defense counsel now says he wanted to, the outcome of this trial would have been no different. No reasonable jury could find for the defendant in light of the indisputable scientific evidence which puts the victim’s saliva with the ejaculate of the defendant. And that evidence was so powerful, … that no matter what the defendant testified to, he would have been found guilty.

Additional factual background will be presented in the course of our discussion.

Discussion

***

II. Ineffective Assistance of Counsel

McDowell argues that trial counsel was ineffective, effectively abandoning his defense by converting from question-answer questioning to narrative-response questioning during his testimony. He asserts that “[t]he most important issue before this court is determining whether or not Langford was deficient” in doing so. We conclude that he was. We also conclude, however, that because McDowell’s defense was presented to the jury, because his defense was preposterous, and because the State’s evidence was overwhelming, Mr. Langford’s deficient performance was not prejudicial.

A defendant in a criminal case has a constitutional right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish ineffective assistance, a defendant must prove that counsel’s performance was both deficient and prejudicial. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Ludwig, 124 Wis.2d at 607, 369 N.W.2d 722. A defendant has a due process right to present a defense, and counsel’s failure to assist a defendant in doing so may constitute ineffective assistance. State v. Tabor, 191 Wis.2d 482, 496, 529 N.W.2d 915 (Ct. App. 1995). …

A.    Defense Counsel’s Dilemma

To evaluate Mr. Langford’s performance in this case, we must determine the standards governing the conduct of criminal defense counsel who concludes that the defendant intends to testify falsely. The parties implore us to set those standards, not only to resolve this case but to assist the bench and bar in countless others causing similar concerns. Further, to assist this court, the parties have taken the constructive step of encouraging nonparty participation in this appeal by the Wisconsin Association of Criminal Defense Lawyers and the Frank J. Remington Center of the University of Wisconsin Law School (collectively, the Remington Center). As a result, our analysis has been enhanced by the excellent briefing and valuable oral arguments of both the parties and the Remington Center.

What should criminal defense counsel do when he or she concludes that the defendant is going to testify falsely? As the Remington Center points out, this question necessarily begs another: “When does a lawyer know a client will lie, with sufficient certainty to warrant breaching client confidence and the duties of loyalty and zealous advocacy?” …

The accuracy, and indeed, the stark significance of the Remington Center’s question, must cause us pause. After all, the “duties of loyalty and zealous advocacy” are implicated as soon as an attorney: (1) divulges to the trial court the basis for the dilemma (i.e., the client’s disclosure and/or other information leading to the expectation that the client will testify falsely); and/or (2) contemplates a trial strategy or questioning technique that is anything less than the most effective one to present the client’s account.

While at first it may seem surprising that such significant questions, so often confronted by the defense bar, have not yet been answered in Wisconsin, we note the relatively recent origin of appellate attempts to address them. Not until 1986 did the United States Supreme Court resolve “whether the Sixth Amendment right of a criminal defendant to assistance of counsel is violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at his trial.” Nix v. Whiteside, 475 U.S. 157, 159 (1986). And there, the Supreme Court began its analysis by recalling the relatively late development of the underlying principles leading to the defense dilemma:

The right of an accused to testify in his defense is of relatively recent origin. Until the latter part of the [nineteenth] century, criminal defendants in this country, as at common law, were considered to be disqualified from giving sworn testimony at their own trial by reason of their interest as a party to the case….

By the end of the 19th century, however, the disqualification was finally abolished by statute in most states and in the federal courts. Although this Court has never explicitly held that a criminal defendant has a due process right to testify in his own behalf, cases in several Circuits have so held, and the right has long been assumed. We have also suggested that such a right exists as a corollary to the Fifth Amendment privilege against compelled testimony[.]

Id. at 164, 106 S.Ct. 988 (citations omitted).

From Nix, we derive five principles that lay the foundation for our analysis:

• Whether simply “assumed,” or as a corollary to the Fifth Amendment privilege against compelled testimony, or as a corollary to the Sixth Amendment right to assistance of counsel, a defendant in a criminal trial has a right to testify. See id. at 164, 106 S.Ct. 988. See also Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (defendant’s right to testify “is one of the rights that ‘are essential to due process of law in a fair adversary process’” under the Fifth, Sixth, and Fourteenth Amendments).
• “Whatever the scope of a constitutional right to testify, it is elementary that such a right does not extend to testifying falsely.” Nix, 475 U.S. at 173, 106 S.Ct. 988.
• “It is universally agreed that at a minimum the attorney’s first duty when confronted with a proposal for perjurious testimony is to attempt to dissuade the client from the unlawful course of conduct.” Id. at 169, 106 S.Ct. 988.
• “Although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law.” Id. at 166, 106 S.Ct. 988.
• “For defense counsel to take steps to persuade a criminal defendant to testify truthfully, or to withdraw, deprives the defendant of neither his right to counsel nor the right to testify truthfully.” Id. at 173-74, 106 S.Ct. 988.

As critical as these principles are, they do not answer two questions. First, on what basis can defense counsel conclude that a defendant is going to testify falsely? Second, upon determining that a defendant is going to testify falsely, what must counsel do?

1. The Determination of Intended False Testimony

Although the Supreme Court declared the constitutional foundation for our analysis, it also clarified what may be a state’s non-constitutional structure rising from that foundation:

When examining attorney conduct, a court must be careful not to narrow the wide range of conduct acceptable under the Sixth Amendment so restrictively as to constitutionalize particular standards of professional conduct and thereby intrude into the state’s proper authority to define and apply the standards of professional conduct applicable to those it admits to practice in its courts.

Id. at 165, 106 S.Ct. 988.

Thus, to answer the difficult questions presented here, we also turn to Wisconsin’s standards governing counsel’s conduct.

40 SUPREME COURT RULE 20:3.3 (1999-2000), in relevant part, provides:

Candor toward the tribunal. (a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal;

(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

….

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(b) The duties stated in paragraph (a) apply even if compliance requires disclosure of information otherwise protected by Rule 1.6 [regarding confidentiality of information received from a client].

(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(Emphases added.) And SCR 20:3.4, in relevant part, provides: “A lawyer shall not … falsify evidence, counsel or assist a witness to testify falsely.” (Emphasis added.)

What, then, is the standard under Wisconsin’s rules of professional conduct? On what basis can counsel determine whether a defendant intends to testify falsely? Must counsel “know” the intended testimony is false, see SCR 20:3.3(a) (4), or just “reasonably believe” it to be so? See SCR 20.3.3(c). Must counsel then refrain from presenting the testimony, under the former, or may counsel present it, under the latter? And finally, how do these rules comport with the defendant’s constitutional right to effective assistance of counsel?

While Wisconsin courts have not answered these questions under our rules, some commentators and courts have addressed them in comparable contexts. Most recently, for example, the Supreme Judicial Court of Massachusetts, in the course of determining the standard by which counsel would “know” of a client’s intended perjury, acknowledged the myriad approaches in the case law, including: “good cause to believe” a client intends to testify falsely; “compelling support” for such a conclusion; “knowledge beyond a reasonable doubt”; “firm factual basis”; “good-faith determination”; and “actual knowledge.” Commonwealth v. Mitchell, 438 Mass. 535, 781 N.E.2d 1237, 1246-47 (citations omitted), cert. denied, 539 U.S. 907, 123 S.Ct. 2253, 156 L.Ed.2d 118 (2003).

The Remington Center “urge[s] that this court … adopt the most stringent standard, because anything less jeopardizes the defendant’s right to have a jury decide the facts, undermines the relationship and role of defense counsel as zealous and loyal advocate, and is practically unworkable.” Thus, the Remington Center recommends that we hold that “before defense attorneys can refuse to assist a client in testifying, they must know that the client will testify falsely based upon the client’s affirmative statement of intent to lie.” Subject to certain qualification and elaboration, we agree.

We begin by explaining why we deem any lesser standard unsatisfactory. We base our analysis not only on the authorities and the standards they recommend, but also on our years of trial court experience presiding over hundreds of jury trials in criminal cases. In the trial courts, we gained understanding of the dynamics of defense representation and, in particular, of the forces that frequently motivate defense counsel to offer far less than zealous advocacy. To retreat from question-answer in presenting a defendant’s testimony, when the defendant has not admitted any intent to testify falsely, would be a defining step in a sad parade-the pathetic parade that so often features the travesty of defense counsel marching defendants to negotiated guilty pleas … when defendants maintain their innocence.

Any lesser standard-not requiring a client’s admission to counsel of the intent to testify falsely-would eclipse the bright-line guidance that, the parties and the Remington Center agree, is needed. With a lesser standard, on what would counsel base a “reasonable belief”? How, really, would counsel “know,” absent an admission from the defendant? And then, what would be counsel’s corresponding duty? In trial preparation, would counsel investigate the facts in order to advocate zealously, or to determine the veracity of a client’s account? Should counsel refrain from looking too carefully at the facts for fear of concluding that a client’s account is false? Without a client’s admission of intent to testify falsely, counsel sails swirling seas, changeable from one moment to the next, without a single star by which to chart a course.

Far better for counsel to remember that “[e]xcept in the rarest of cases, attorneys who adopt ‘the role of the judge or jury to determine the facts,’ pose a danger of depriving their clients of the zealous and loyal advocacy required by the Sixth Amendment.” Nix, 475 U.S. at 189, 106 S.Ct. 988 (citation and footnote omitted). And far more realistic for counsel to maintain the unique humility of “not knowing,” absent an admission by the client.

Thus, we accept that counsel cannot be omniscient and, accordingly, we embrace the mandate, under SCR 20:3.3(a) (4), that counsel “shall not … offer evidence that the lawyer knows to be false.” (Emphasis added.) Therefore, we conclude, absent the most extraordinary circumstances, criminal defense counsel, as a matter of law, cannot know that a client is going to testify falsely absent the client’s admission of the intent to do so. Accordingly, we interpret SCR 20:3.3(c)’s suggestion that counsel “ may refuse to offer evidence that the lawyer reasonably believes is false” to apply to circumstances beyond the borders surrounding the questions involving a criminal defendant’s stated intention to testify falsely. Any other interpretation would, in our estimation, produce an irreconcilable conflict between the two rules. …

And with our “absent extraordinary circumstances” qualification, we do not mean to obscure the bright line or invite endless litigation over what such circumstances might be. We simply recognize that, in the never-ending succession of factual scenarios confronting counsel and the courts, to never allow for the possibility that, absent the client’s admission, counsel could “know” would be to ignore the truly exceptional case-one that, even absent a client’s direct admission to counsel, might present virtually the same dilemma.[2]…

More pointedly, we emphasize the singular significance of the client’s admission to counsel. Despite confessions to others, and despite what may seem to be overwhelming corroborative evidence, counsel must not presume to know whether a client’s account is true. As the Remington Center reminds us, its Wisconsin Innocence Project has had direct experience with a case in which the evidence, including a confession, led defense counsel to be certain of his client’s guilt of rape and murder. The defendant, after claiming innocence for several months, finally admitted his guilt to both counsel and the court. Years later, however, DNA evidence established his innocence. See Keith Findley & John Pray, Lessons from the Innocent, WIS. ACAD. REV. 33 (Fall 2001).

The standard we set is consistent with the underlying principles in Nix. Although the Supreme Court did not address the precise questions we now answer, it is noteworthy that the Court announced what we deem to be its five unassailable standards not in the context of a case where counsel had mere misgivings about a client’s account, but rather, in the course of defining “the range of ‘reasonable professional’ responses to a criminal defendant client who informs counsel that he will perjure himself on the stand.” Nix, 475 U.S. at 166, 106 S.Ct. 988 (emphasis added); see also id. at 167, 106 S.Ct. 988 (referring to traditional canons of professional ethics and their “exception to the attorney’s duty of confidentiality” in the event of “a client’s announced intention to commit a crime” including perjury).

2.  Counsel’s Duty

Thus, we conclude that, with the rarest of exceptions, absent a criminal defendant’s admission of an intent to testify falsely, defense counsel must protect the defendant’s right to testify and, when the defendant decides to testify, assist the defendant with effective questioning to facilitate the presentation of the defendant’s account. Short of “knowing” that one’s client intends to testify falsely, counsel must proceed as a zealous advocate. Regardless of suspicions about a defendant’s account, counsel must assist the defendant in presenting it if the defendant desires to do so and maintains that the account is true.

If, however, a defendant informs counsel of the intention to testify falsely, counsel’s “first duty … is to attempt to dissuade the client from the unlawful course of conduct.” Id. at 169, 106 S.Ct. 988. Cynics aside, we do not dismiss the persuasive power of counsel to do so on ethical, legal, and moral grounds. Additionally, counsel may be persuasive on pragmatic grounds. By explaining what may be the evidentiary weakness of the false account, counsel can describe the likely consequences that, obviously, the defendant does not desire. Such consequences may include a greater likelihood of conviction brought about by a defendant’s incredible account, a longer sentence, …, and the potential for a perjury prosecution. Thus, as the Supreme Court has emphasized, defense counsel’s effort to dissuade a defendant from testifying falsely is wholly consistent with counsel’s representation of a defendant’s interests. See Nix, 475 U.S. at 168-71, 106 S.Ct. 988.

But some defendants will not be dissuaded. How, then, must defense counsel question the defendant who intends to testify falsely? “A lawyer with a perjurious client must contend with competing considerations-duties of zealous advocacy, confidentiality and loyalty to the client on the one hand, and a responsibility to the courts and our truth-seeking system of justice on the other.” People v. DePallo, 96 N.Y.2d 437, 729 N.Y.S.2d 649, 754 N.E.2d 751, 753 (2001). To contend with these considerations, courts have considered many approaches arguably available to defense counsel-from fully facilitating the presentation of perjurious testimony with customary question-answer questioning, to refusing to allow a defendant to testify or withdrawing from representation. See People v. Johnson, 62 Cal.App.4th 608, 72 Cal.Rptr.2d 805, 811-18 (1998) (presenting a comprehensive review of counsel’s options). Under such circumstances, we conclude, only narrative questioning fairly accounts for both counsel’s allegiance to the client and duty to the court. Only full disclosure to the court, followed by narrative questioning, provides the appropriate “method of effectuating both the right of the accused to testify and the duty of a defense lawyer not to assist in presenting known perjured testimony.” RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 120 cmt. i (2000). .…

Therefore, if the attempt to turn the defendant away from perjury is unsuccessful, counsel must inform the defendant that: (1) he or she may move to withdraw; (2) future counsel will have to operate under the same legal standards, thus bringing about the likely repetition of the current circumstance; and (3) if continuing as counsel, he or she will not be allowed to suborn perjury and, therefore, will only be able to question the defendant by asking the usual formal, introductory questions, followed by a question or two eliciting a narrative response. Counsel must explain what that would entail and advise the defendant of the need to provide the full, intended account without added assistance of question-answer or re-direct questioning to further the perjurious account.

If unable to dissuade a defendant from testifying falsely, counsel, outside the presence of the jury of course, must advise opposing counsel and the trial court before the defendant testifies. The court, in turn, must examine counsel and the defendant to ensure a clear and full record of: (1) the basis for counsel’s conclusion that the defendant intends to testify falsely; (2) the defendant’s understanding of the right to testify, notwithstanding the intent to testify falsely; and (3) the defendant’s, and counsel’s, understanding of the nature and limitations of the narrative questioning that will result.

Under these standards, we now evaluate Mr. Langford’s representation of McDowell.

B.    Application to this Appeal

1. Deficient Performance

[In applying the first standard of Strickland v. Washington, the court determines that defense counsel’s performance was deficient because he failed to adequately advise McDowell of the use and consequences of the narrative form.]

2. Prejudice

To prove prejudice, a defendant must show that counsel’s deficient performance was so serious that he or she was denied a fair trial and a reliable outcome. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To do so, the defendant must establish “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Here, McDowell has shown nothing more than the most remote possibility.

McDowell maintains that “defense counsel did not present the defense that [they] had selected, specifically, that [his] DNA was found at the scene because he had been sexually intimate there with a consenting partner on the day beforehand and had ejaculated on the ground.” We disagree.

We readily acknowledge that McDowell’s testimony could have been enhanced and clarified through counsel’s questioning. Here, however, the jury was able to consider McDowell’s essential defense. Simply stated, despite the limitations of narrative testimony, McDowell presented his oral-sex-the-night-before defense to the jury.

Evaluating the whole trial, one soon recognizes that what McDowell considers so significant is hardly significant at all. He protests, for example, that, due to lack of question-answer testimony, he never denied committing the crimes. In context, however, his denial is clear. And he protests that he never testified that Sunshine “performed oral sex on him” and that he “ejaculated on the ground.” But obviously, when McDowell testified that he and Sunshine were “fooling around and had oral sex in the back,” the jury, using common sense and remembering that Mr. Langford, in opening statement, said that McDowell had ejaculated, would have inferred that McDowell was explaining why his semen was found at the scene. Then, when Mr. Langford, in closing argument, observed that “[t]here is an expectation that you could find [DNA] evidence of Mr. McDowell being related and associated with 4720 West Burleigh,” the jury got the message again.

Thus, because the jury was presented with McDowell’s defense, he suffered little loss arising from Mr. Langford’s deficient performance. Further, even if one were to view the reduced effectiveness of McDowell’s narrative testimony as more consequential than we deem it, he suffered no prejudice for two even more powerful reasons: his defense was preposterous, and the State’s evidence was overwhelming.

McDowell’s defense depended on his account of oral sex the night before with Sunshine at the very location where the assaults occurred. Not only was that theory far-fetched, but it was not going to be supported by any testimony from Sunshine who, Mr. Langford concluded, should not testify given the inconsistencies between her and McDowell’s accounts of their claimed encounter. But, of course, that’s not all. McDowell’s defense depended not only on the jury’s acceptance of his oral-sex-the-night-before account, but also on the extraordinary coincidence of the victim’s semen-filled saliva landing on the exact location of his ejaculate. It was not just that McDowell’s DNA was discovered at the scene, but that his semen was mixed with the victim’s saliva. As Mr. Langford testified at the Machner hearing, not only was McDowell’s oral-sex-the-night-before defense a stretch, it was not, standing alone, exculpatory….

…

[R]egardless of whether McDowell, with question-answer testimony, would have provided additional details, and regardless of whether his theory of defense was remotely or theoretically possible, he has not established the reasonable probability that a more effective question-answer presentation of that defense would have resulted in his acquittal. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (to prove prejudice, defendant must show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”).

Finally, the State’s evidence was overwhelming. The brutal assault of the victim was undisputed; only the identity of the attackers was at issue. The DNA evidence, establishing that McDowell’s semen was recovered in the same sample with the victim’s saliva, proved that the probability of selecting a person at random with the same DNA profile would be one in six billion. Only two explanations accounted for the mix of the victim’s saliva and McDowell’s semen. One was logical, the other preposterous. Thus, we conclude, Mr. Langford’s deficient performance was not prejudicial.

Judgment and order affirmed.

---

[1] See State v. Machner, 92 Wis.2d 797, 285 N.W.2d 905 (Ct.App.1979). In Machner, we held that “it is a prerequisite to a claim of ineffective representation … to preserve the testimony of trial counsel.” Id. at 804, 285 N.W.2d 905. The Machner hearing is the evidentiary hearing held on a defendant’s ineffective assistance claim during which trial counsel, among others, is questioned regarding the alleged deficient performance. “The hearing is important not only to give trial counsel a chance to explain his or her actions, but also to allow the trial court, which is in the best position to judge counsel’s performance, to rule on the motion.” State v. Curtis, 218 Wis.2d 550, 554, 582 N.W.2d 409 (Ct.App.1998).

[2] Consider, for example, the modern-day Bonnie and Clyde, caught full-faced on video and apprehended at the scene of the crime, who inform counsel of their intent to testify (truthfully, they say) that they were never even in the bank. The absolutely conclusive evidence of their presence, beyond all doubt, would present counsel’s dilemma no less than if they had stated their intent to testify falsely.