United States v. Brent Paul Swanson

Brent Paul Swanson appeals from his conviction and sentence for bank robbery. We must decide whether a court appointed defense counsel’s concession, during closing argument, that no reasonable doubt exists regarding the only factual issues in dispute, constitutes a deprivation of the right to due process and the effective assistance of counsel that is prejudicial per se. We conclude that we must reverse because counsel’s abandonment of his client’s defense caused a breakdown in our adversarial system of justice.

PERTINENT FACTS

On February 22, 1989, Swanson was indicted on one count of bank robbery, pursuant to 18 U.S.C. § 2113 (a). Swanson initially pleaded guilty on April 17, 1989. Swanson made a motion to withdraw his plea of guilty after reading the recommendation in the presentence report that he should be sentenced as a career offender. The motion was granted and the court selected a date for a trial by jury.

The jury trial commenced on July 25, 1989. Swanson was represented at trial by David Ochoa, who was appointed by the trial court under the Criminal Justice Act. 18 U.S.C. § 3006A(b). Mr. Ochoa rested after the close of the Government’s case in chief, without calling…

concurring opinion:

I add this concurring opinion to emphasize my strong feeling that the representation afforded by the defense counsel in this case undermines the basis of the adversary system. To the extent that the dissent characterizes the defense counsel’s representation as adequate or fulfilling the responsibilities of defense counsel, I most strongly disagree.

Defense counsel apparently believed that he fulfilled his obligation to the defendant by giving a little lecture on the operation of the criminal justice system. He failed to note that his obligation is not to be an independent observer and factfinder but, instead, an advocate for his client.

The American system of law is based on the adversary system — the prosecution presents the case in the light most persuasive to the Government’s point of view; the defense counsel is to defend the case in the way that can best represent the defendant. The judge instructs on the law, and the jury renders the verdict. It is not the function of the defense counsel to insert his personal opinion as to whether a reasonable doubt has been established. That is for the jury.

I don’t see how defense counsel’s argument can be read…

Dissenting:

I respectfully dissent from the views of my colleagues. They conclude that the few random expressions of defense counsel during closing argument constituted a “betrayal of his client,” Maj. Op. p. 1076, sufficient to require a reversal without a showing of prejudice as permitted by United States v. Cronic, 466 U.S. 648 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984). I disagree.

In my view, the majority is excessive in its condemnation of defense counsel. It accuses him of 1) causing a “breakdown in our adversarial system of justice,” Maj. Op. p. 1075; 2) “taintpng] the integrity of the trial”, id.; 3) “lessening the Government’s burden of persuading the jury that Swanson was the perpetrator of the bank robbery,” id.; and 4) engaging in an “abandonment of the defense of his client at a critical stage of the criminal proceeding.” Id. One would expect such powerful criticism to be justified by the grossest form of misbehavior by counsel. I fail to find it here.

Defense counsel found himself in a position that is perhaps all too familiar to the defense bar. His client had in fact engaged in the act for which he was indicted. The government had, and offered, the evidence…

943 F.2d 1070 UNITED STATES of America, Plaintiff-Appellee, v. Brent Paul SWANSON, Defendant-Appellant. No. 90-10085. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 8, 1991. Decided Aug. 27, 1991. Dennis Jones, Phoenix, Ariz., for appellant. Janet L. Patterson and Darcy A. Cerow, Asst. U.S. Attys., Washington, D.C., for appellee. Appeal from the United States District Court for the District of Arizona. Before HUG, ALARCON and WIGGINS, Circuit Judges. ALARCON, Circuit Judge: Brent Paul Swanson appeals from his conviction and sentence for bank robbery. We must decide whether a court appointed defense counsel's concession, during closing argument, that no reasonable doubt exists regarding the only factual issues in dispute, constitutes a deprivation of the right to due process and the effective assistance of counsel that is prejudicial per se. We conclude that we must reverse because counsel's abandonment of his client's defense caused a breakdown in our adversarial system of justice. PERTINENT FACTS On February 22, 1989, Swanson was indicted on one count of bank robbery, pursuant to 18 U.S.C. § 2113 (a). Swanson initially pleaded guilty on April 17,…