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Nix v. Whiteside

    Brief Fact Summary. The defendant and two others went to the victim’s apartment looking for drugs. An argument broke out and the defendant ended up inflicting a fatal stab wound to the victim. Defendant expressed to his attorney that he had to concoct a story the victim having a weapon in order to win on a theory of self-defense. Defendant’s attorney informed him that if he perjured himself on the stand, the attorney would have to inform the court of the deception. Defendant was found guilty of second degree murder. He petitioned for a writ of habeas corpus and the United States Court of Appeals for the Eighth Circuit granted the writ.

    Synopsis of Rule of Law. An attorney is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law and should admonish the client about his duty to inform the court if the defendant perjures himself on the stand.

    Facts. Defendant, Whiteside and two others went to Calvin Love’s apartment looking for drugs. An argument broke out and Love allegedly told his girlfriend to get “his piece” and then he returned to bed. According to Whiteside, Love then started to reach under his pillow and moved toward him. In fear of his life, Whiteside inflicted a fatal wound by stabbing Love in the chest. Whiteside was charged with murder and he initially told his court-appointed attorney that he stabbed Love as the latter was pulling a gun from underneath his pillow. After further questioning by his attorney, Whiteside told him he had not actually seen a weapon. No guns were found on the premises and none of the individuals there at the time of the incident saw a gun. Defendant’s counsel informed him that the existence of a gun was not necessary to establish the claim of self-defense. Defendant, however, expressed to his attorney that he had to concoct a story about seeing the victim with a weapon in order to wi
    n on a theory of self-defense. Defendant’s attorney told him this would amount to perjury and if he perjured himself on the stand, he would inform the court of the deception. In addition, the attorney indicated he would seek to withdraw from the representation. At trial, Whiteside testified he knew Love had a gun and believed Love was reaching for a gun when he acted in self-defense. On cross, Whiteside admitted he had not actually seen a gun. Defendant was found guilty of second degree murder and he moved for a new trial claiming he was deprived of a fair trial by his lawyer’s admonitions not to state he saw a gun. The Supreme Court of Iowa affirmed the conviction and held that the right to have counsel present all appropriate defenses does not extend to perjury, an attorney’s duty to a client does not extend to assisting a client in committing perjury, and the attorney’s actions in the instance were required. Whiteside then petitioned for a writ of habeas corpus and the Court of App
    eals granted the writ. Even though the Court of Appeals accepted the findings of the trial judge and the Iowa Supreme Court that trial counsel believed with good cause Whiteside would perjure himself, the court reasoned that an intent to commit perjury when communicated to counsel does not alter a defendant’s right to effective assistance of counsel. Thus, the attorney’s admonition to Whiteside constituted a threat to violate the attorney’s duty to preserve client privilege. Therefore, the Court of Appeals found that the threatened violation of client confidences breaches the standards of effective representation laid out in Strickland v. Washington.

    Issue. Does an attorney’s admonition to his client that he will inform the court about what he sees as a client’s plan to commit perjury violate a defendant’s right to effective assistance of counsel under the Sixth Amendment?

    Held. No. The judgment of the Eighth Circuit Court of Appeals is reversed and habeas corpus denied.
    In Strickland, we held that to obtain relief under the Sixth Amendment, the moving party must establish both serious attorney error and prejudice.

    Also recognized in Strickland were a counsel’s duty of loyalty and the duty to advocate on behalf of the client. These duties, however, are limited to legitimate, lawful conduct compatible with a desire to search for the truth.

    Counsel is precluded from taking steps or in any way assisting the client in presenting false evidence.

    These principles are codified in the Model Code of Professional Responsibility and the Model Rules of Professional conduct. An attorney’s first duty when faced with prospective perjury is to dissuade the client from the unlawful course of conduct.

    In light of the accepted norms of professional conduct, Whiteside’s attorney did not fail to adhere to reasonable professional standards that would make out a deprivation of the Sixth Amendment. Whiteside did testify and he was only “restricted” or “restrained” from doing so falsely.

    Concurrence. Justice William J. Brennan concurring in the judgment. This Court has no constitutional authority to establish rules of ethical conduct for lawyers practicing in the state courts. The Court’s essay is pure discourse without the force of law.
    Justice Harry A. Blackmun, Justice William J. Brennan, Justice Thurgood Marshall and Justice John Paul Stevens concur in the judgment: The only federal issue in this case is whether Robinson’s behavior deprived Whiteside of the effective assistance of counsel.

    Whether an attorney’s response to what he sees as a client’s plan to commit perjury violates the Sixth Amendment may depend on the following factors: (1) how certain the attorney is that the proposed testimony is false; (2) the state of the proceedings at which the attorney discovers the plan; and (3) the ways in which the attorney may be able to dissuade the client. The Court’s adoption of a set of standards of professional responsibility for attorneys in state criminal proceedings is troubling. The Court’s responsibility only extends to ensuring that a state’s restrictions don’t infringe on a defendant’s federal constitutional rights.

    Justice John Paul Stevens concurring: In this case, it is clear that Whiteside intended to perjure himself. His lawyer knew of his intentions and had a duty to both the court and his client to take extreme measures to prevent the perjury from taking place.


    Discussion. 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 under the Sixth Amendment. This lawyer’s actions were a proper way to provide his client with effective representation without having to confront the more difficult questions of what a lawyer should do after his client has given testimony the lawyer does not beli


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