The SCOW docket: Defense counsel did not misstep; guilty verdicts upheld

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them.  

The case:  State v. Decarlos K. Chambers

Majority: Justice Annette Ziegler (17 pages) for a unanimous court.

The upshot:

Because we conclude that (Decarlos) Chambers' counsel never conceded his guilt during closing arguments, Chambers'...claim fails. Accordingly, we affirm. 

Ziegler

Background

On January 17, 2017, the State filed a criminal complaint against Chambers. The complaint alleged two counts. The first count alleged that Chambers committed first-degree reckless homicide with a dangerous weapon, as a party to a crime....The second count, possession of a firearm by an adjudicated delinquent, alleged that Chambers possessed a firearm despite being adjudicated delinquent of an act that would constitute a felony....

On August 14, 2017, Chambers' jury trial commenced....The State requested that the court instruct the jury as to the lesser-included offense of second-degree reckless homicide. Chambers did not object. Chambers' trial counsel requested time to discuss the proposed jury instructions with Chambers prior to the court finalizing those instructions. After a discussion off the record, Chambers' trial counsel confirmed that Chambers agreed with the proposed jury instructions, including the instruction for second-degree reckless homicide....

As part of her closing argument, Chambers' trial counsel (attorney Ann Bowe) stated that because "whoever shot [Kyle Weary]" did so "at night, in the dark, in the rain, a distance away," the jury "should consider" second-degree reckless homicide. She concluded the closing argument by insisting that because there was reasonable doubt based on the evidence, the jury "should find [Chambers] not guilty...."

​(The jury convicted Chambers on both counts. – WJI)

On December 12, 2018, Chambers filed his motion seeking postconviction relief. In this motion, he claimed that his trial counsel conceded his guilt against his expressed intent to maintain absolute innocence, contrary to the new rule the United States Supreme Court announced in McCoy (v. Louisiana). Specifically, Chambers argued that when his trial counsel stated that the jury "should consider" second-degree reckless homicide, it was a concession of his guilt on the lesser-included offense. Because this error is structural, Chambers asserted that he must receive a new trial to remedy the error. The circuit court denied Chambers' postconviction motion, holding that Chambers' trial counsel never conceded his guilt at trial....

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The Guts

(In McCoy), the United States Supreme Court addressed the question of "whether it is unconstitutional to allow defense counsel to concede guilt over the defendant's intransigent and unambiguous objection." The Court held that "[a]utonomy to decide that the objective of the defense is to assert innocence" belongs in the category of decisions reserved for the defendant alone. A lawyer violates that autonomy "[w]hen a client expressly asserts that the objective of 'his defence' is to maintain innocence of the charged criminal acts" and the lawyer acts contrary to that objective....

We have all of Chamber's trial counsel's closing argument, which when read in its entirety (as the jury would have heard it), unquestionably shows that Chambers' trial counsel never conceded his guilt. Immediately preceding the statements that Chambers believes show the concession, his trial counsel made the following statement:...

She...concluded the argument asserting Chambers' absolute innocence, stating the following: That's what he said at the beginning. Not guilty. Denied each and every element of the crime.

In this case, there is information that if believed, if it is found to be credible, reliable evidence might support the fact that Decarlos Chambers was the shooter. But that's the problem. It might support it.

And this is not a civil case where you think about who's got a little better story than the other side and balance it out. And I'm balancing my hands like the scales of justice. That's where that comes from. 

In this case, you know, this is a homicide case. There are serious consequences to Mr. Chambers. This is a case where there has to be confidence beyond a reasonable doubt before there should be a conviction.

And because of the problems that I've pointed out that you all know, you all sat there and listened, had notebooks. I’m sure you'll go back there and think of some things that I [didn't] think about that are inconsistent, that don't add up, that are contradictions, that lead you to what I think is a reasonable conclusion that there's not sufficient evidence beyond a reasonable doubt to convict Decarlos Chambers.

I think that you should find him not guilty.

These statements demonstrate that Chambers' trial counsel never abandoned his position of absolute innocence. She continued to ​advocate Chambers' absolute innocence both before and after she told the jury to "consider" second-degree reckless homicide. ​