When the Defendant Doesn't Testify: The Eighth Circuit Considers a Reasonable Broken Promise in Bahtuoh v. Smith

Boston College Law Review, May 2018

In 2017, in Bahtuoh v. Smith, the Eighth Circuit held that a criminal defendant’s counsel was not ineffective for promising the jury that the defendant would testify, but failing to deliver on that promise. This Comment argues that the Eighth Circuit’s decision is in line with the decisions of other circuits in ineffective assistance of counsel cases where counsel promised the defendant’s testimony but later reneged on that promise. Courts should consider in their analysis, however, the impact such a decision may have on the jury, and that a stricter standard for evaluating counsel’s trial performance could adversely affect indigent defendants.

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When the Defendant Doesn't Testify: The Eighth Circuit Considers a Reasonable Broken Promise in Bahtuoh v. Smith

W hen the Defendant Doesn't Testif y: The Eighth Circuit Considers a Reasonable Broken Promise in Bahtuoh v. Smith Alexandre Bou-Rhodes 0 1 2 3 0 Alexandre Bou-Rhodes, When the Defendant Doesn't Testify: The Eighth Circuit Considers a Reasonable Broken Promise in Bahtuoh v. Smith , 59 B.C.L. Rev. E. Supp. 520, 2018 1 Part of the Criminal Law Commons, Criminal Procedure Commons , Evidence Commons 2 Boston College Law School 3 Thi s Comments is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr the Legal Ethics and Professional Responsibility Commons Recommended Citation - Article 30 1 28 U.S.C. § 2254(b)(1) (2012); see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)) (noting thaat state must have the chance to review and correct infringements of a prisone’rs federal rights before federal review is appropriate)F.ederal prisoners, on the other hand, may obtain relief under 28 U.S.C§. 2255. 28 U.S.C. § 2255. Under that statute, federal prisoners may make a motion requesting the district court to vacate, set aside, or correct the sentence. Id. Following the final order of the district court, the prisoner may file a writ of habeas corpus to the appropriate appellate court. Id. 2 NANCY J. KING ET A L., EXECUTIVE SUMMARY: HABEAS LITIGATION IN U.S. DISTRICT COURTS 1 (2007). 3 Id. On average, non-capital habeas claims take more than nine months from start to finish. Id. at 7. Successful claims are rare: out of a sample of more than 2,000 non-capital habeas petitions, only seven were granted. Id. at 9. A court ordering an evidentiary hearing was found to be a significant factor that increased the likelihood relief would be granted in capital cases.Id. at 10. In Cullen v. Pinholster, however, the U.S. Supreme Court held that review of all habeas corpus petitions challenging state court proceedings are limited to the record developed by the state court. 563 U.S. 170, 181 (2011). 4 See Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55, 114 (2008) (referring to a study finding that nearly half of po-sctonviction relief appeals involve an ineffective ass-i tance of counsel claim). In Minnesota in 2013, Christopher Bahtuoh, a state prisoner, argued that his counsel was ineffective because hisattorney promised the jury that Bahtuoh would testify in his murder trial, but later decided against it.5 Bahtuoh exhausted his available avenues for state relief without triumph6. He then turned to the federal courts7. The United States District Court for the District of Minnesota denied relief.8 He appealed to the United States Court of Appeals for the Eighth Circuit and, in2017, in Bahtuoh v. Smith (Bahtuoh II), the Eighth Circuit denied relief, holding that the Meinsnota Supreme Court did not unreasonably determine that Bahtuoh’s counsel was not ineffective.9 Part I of this Comment details the factual background and procedural history of Bahtuoh II.10 Part II examines the law governing the Eighth Cricuit’s adjudication of this case and examines other Circuit decisions dealing with similar ineffective assistance of counsel habeas corpusclaims.11 Part III argues that the Eighth Circuit’s decision is harmonious with those of its sister Circuits.12 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On April 28, 2009, Christopher Bahtuoh was driving through Minneapolis, Minnesota, with Lamont McGee sitting in his passenger 1s3eat. McGee was a gang member; Bahtuoh was not, though he associated with members of McGee’s gang.14 Bahtuoh and McGee drove by Kyle Parker, a member of a rival gang, whom Bahtuoh knew from school.15 Upon spotting Parker, Bahtuoh turned the car around and stopped near Park1e6r.Several moments later, McGee shot and killed Parker, and Bahtuohaccelerated the car away.17 At the grand jury proceedings, Bahtuoh testified that Parker had flagged him down,and that he had not seen McGee’s gun until McGee pulled it on Parker.18 Bahtuoh was indicted in state court on an accomplice theory of four counts of fi-rdstegree murder and two counts of seco-nd degree murder.19 He pleaded not guilty and his case was subsequently tried to a jury.20 During opening statements at trial, Bahtuoh’s counsel told the jury that Bahtuoh would waive his right to remain silent and testify, and that they, the jury, should maintain open minds regarding the facts of the case until they had heard this testimony.21 At the close of the state’spresentation of their case, counsel decided to change strategies.22 Because the State had introduced into evidence Bahtuoh’s grand jury testimony, which Bahtuoh’s trial testimony would closely mirror, and because counsel believed that the State had not met its burden of proof, he advised Bahtuoh not to testi2f3yB.ahtuoh heeded his counsel’s advice, and the defense rested without presenting any evidence.24 In counsel’s closing argument, he explained his change of strategy to the jury, saying that he chose not to put Bahtuoh on the stand because Bahtuoh’s “truthful” story was portrayed tohurgh the grand jury 18 Appellant’s Brief, supra note 17, at 14. 19 Id. at 3. Someone convicted of first-degree murder in Minnesota is automatically sentenced to life imprisonment. MINN. STAT. § 609.185(a) (2017). They are eligible for parole after serving thirty years of that life sentence.Id. § 244.05 subdiv. 4(b). Someone convicted of secondd-egree murder may be sentenced to at most forty years in prison. Id. § 609.19 subdiv. 1. 20 Appellant’s Brief, supra note 17, at 3. 21 Bahtuoh II, 855 F.3d at 870.Counsel made this strategic decision after he and Bahtuoh, before trial, collectively decided that this would be an appropriate course of actionId.. Counsel stated to the jury: You also know that Mr. Bahtuoh has a right to remain sileHnte. will waive that right . . . . [H]e is going to tell you the truth . . . .I would ask you to keep an open mind . . . . Wait until he takes the stand and tells you what happened. Bahtuoh I, 840 N.W.2d at 816. Counsel promised the jury that they would hear certain evidence that could only come from Bahtuoh; for examplet,hat the victim was not his enemy and that he had reason to believe that McGee, the shooter, was not armed that dayA.ppellant’s Brief, supra note 17, at 9. 22 See Bahtuoh II, 855 F.3d at 870(noting that counsel decided to alter courses in parte-b cause he believed the State’s evidence was insufficient to meet its burden). 23 Id. Through Bahtuoh’s grand jury testimony, the jury heard from Bahtuosh’perspective that Parker flagged him down, that he had not seen McGee’s gun until he pulled it on Parker, that he went into hiding following the shooting, and that he was not a gang member, but did assoactie with such individuals. Appellant’s Brief, supra note 17, at 14, 15. Counsel’s prediction about the strength of the State’s case proved to be, in part, true.Bahtuoh II, 855 F.3d at 870.The jury acquitted Bahtuoh of two counts of first-degree murder. Bahtuoh I, 840 N.W.2d at 808. 24 Bahtuoh II, 855 F.3d at 870. In the record of the colloquy in which Bahtuoh informed the court that he would not testify, counsel stated that he had spoken with Bahtuoh“on several occasions” about whether he should waive his Fifth Amendment privilege, and that they had discussed the “pros and cons” of each option. Appellant’s Brief, supra note 17, at 12. Bahtuoh answered in the affirmative that he had received time to consider his optio.nsId. at 13. He stated “I will not testify,” and indicated that he did not require more time to consider his decision. Id. testimony, and that the government had not proved its case2.5 Bahtuoh was subsequently convicted on two of the four counts of first-degree murder and two counts of second-degree murder, and was sentenced to life imprinsoment with the possibility of parole after serving thirty-one years.26 Bahtuoh first sought postconviction relief in the state court by arguing, inter alia, that he had received ineffective assistance of counsel.27 The court denied relief.28 He then appealed to the Minnesota uSpreme Court, where he argued several claims, including ineffective assistance of counsel2.9 The state supreme court also denied relief and affirmed his conviction30. Bahtuoh then turned to the federal courts, filing a habeas corpus petition under 28 U.S.C. § 2254 and positing several claims, among them ineffective assistance of counsel3.1 A United States magistrate judge issued a Report and Recommendation to deny the habeas claim, which the United States District Court for the District of Minnesota adopte3d2. The district court issued a certificate of appealability for the ineffective assistance of counsel claim33. 25 Bahtuoh II, 855 F.3d at 870. Counsel asked the jury to fault him for Bahtuoh’s decision not to take the stand: “Mr. Bahtuoh did not take the stand.I told you he would.That’s my fault.” Appellant’s Brief, supra note 17, at 15. He further explained, [W]hy should I put him on the stand?. . . When they didn’t prove their case and got his grand jury testimony read to you, which he gave under oath . .which exonerates him. Why would I put a 2y0e-ar-old young man up against an experienced prosecutor? Id. 26 See Bahtuoh I, 840 N.W.2d at 808. 27 Id. Bahtuoh also argued that the trial court incorrectly instructed the jury on accomplice liability, that he did not voluntarily waive his right to testify, that he should have been granted a mistrial due to prosecutorial misconduct, and that he was denied the right to a public trial.Id. 28 Id. at 809. Having promptly denied his other post-conviction relief claims, the court held an evidentiary hearing on Bahtuoh’s claim that he did not voluntarily waive his right to testify.Id. at 808−09. He was the only witness to testify at the hearing, and he stated that, contrary to the trial colloquy record, trial counsel had not advised him about the pros and cons of testifying, but had told him to simply state that he understood the questions he would be asked during the colloquy. Id. at 809. 29 Id. at 807−08. Bahtuoh also argued that the record was factually insufficient to support his conviction, that the accomplice liability instruction was legally incorrect, that he was coerced into not testifying at trial, that the district court abused its discretion in denying his motion for a new trial, that the jury’s verdicts were legally inconsistent, and that he should have been granted an evidentiary hearing on whether he was denied a public trial. Id. 30 Id. at 808. 31 Bahtuoh II, 855 F.3d at 871. 32 Id. The Federal Rules of Civil Procedure allow for a magstirate judge to hear a prisoner’s petition that challenges her “conditions of confinement.” FED. R. CIV. P. 72(b)(1). The magistrate judge then enters a recommended disposition of the issue.Id. If a party objects to the recommendation, then a district court judge will review the magistrate judge’s recommendation and can elect to accept, reject, or modify the recommendation. FED. R. CIV. P. 72(b)(3). 33 Bahtuoh II, 855 F.3d at 871.For a prisoner toappeal a district cour’ts denial of a habeas corpus petition, the district court must first issue a certificate of appealability. 28 U.S.C. § 2253(c) Bahtuoh embraced the opportunity to appeal this aspect of his habeas claim to the United States Court of Appeals for the Eighth Circuit; he argued taht the Minnesota Supreme Court unreasonably applied the law and unreasonably determined the facts in deciding his ineffective assistance of counsel claim.34 The Eighth Circuit was restricted in its review of the effectiveness of counsel’s assistance because 28 U.S.C. § 2254 requires deference to the state court’s adjudication of the claim, and because the ineffective assistance of counsel standard announced by the Supreme Court inStrickland v. Washington requires that federal appellate courts presume trial counsel’s representation was acceptable.35 The Eighth Circuit endorsed the Minnesota Supreme Court’s determination that counsel’s decision to advise Bahtuoh not to testify was sound strategy, and thus not ineffective assistance.36 The court noted that, through Bahtuoh’s grand jury testimony being read into evidence and counsel’s cross-examination of state witnesses, the jury heard the evidence counsel had promised during his opening statement.37 Specifically, the jury heard that Bahtuoh knew the victim and that he was unaware McGee had a gun3.8 The court also observed that counsel based his decision on his partially correct belief that the state had not met its burden in proving Bahtuoh guil3t9y.Because the state court considered these “unexpected developments” in determining whether counsel’s assistance was reasonable, the Eighth Circuite-d clined to find the state appellate court’s application of the Strickland standard (2012) (requiring the petitioner to make a “substantial showing” of a constitutional right violation for a certificate of appealability to issue, and requiring the issuing court to specify for which issues the showing has been made); see Miller-El v. Cockrell, 537 U.S. 322, 335−36 (2003) (noting that a state prisoner seeking appeal of a district cou’rst habeas ruling is not automatically entitled to appellate review of that decision, and that an appeals court lacks jurisdiction to review such a ruling unless a certificate of appealability has been issued). 34 Bahtuoh II, 855 F.3d at 871.Bahtuoh claimed that the Minnesota Supreme Court was nureasonable in determining that counse’ls decision to urge Bahtuoh not to testif,yafter promising the jury that Bahtuoh would testify, was not objectively unreasonable. Id. He claimed that the state supreme court unreasonably determined the facts in finding that counsel did not foresee the weaknesses in the State’s case, and in finding that counsel considered the risks of not calling Bahtuoh to testify when he cautioned him against testifying. Id. at 873. 35 Id. at 871, 872. The Court noted that its review of the Minnesota Supreme Cour’ts application of the Strickland v. Washington standard is “doubly deferential,” because the court must accord deference to counsel’s trial strategy as well as to the state court’s adjudication of the reasonableness of that strategy. Id. (citing Cullen, 563 U.S. at 190). 36 Id. at 873. 37 Id. 38 Id. 39 Id. When the verdicts were read, Bahtuoh was found not guilty on two of the six murder counts. Bahtuoh I, 840 N.W.2d at 808. unreasonable.40 The Eighth Circuit also concluded that the preme Court did not unreasonably determine the facts.41 Minnesota Su II. LEGAL BACKGROUND OF HABEAS CORPUS PETITIONS FOR INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS Section A of this Part will detail the history and Supreme Court inrtepretation of aspects of habeas corpus petitions.42 Section B will describe the standard for an ineffective assistance of counsel claim.43 Section C will analyze how federal courts have applied the ineffective assistance of counsel standard to broken promises made by defense counsel.44 A. Habeas Corpus Petitions for State Prisoners The habeas corpus petition is a venerated feature of the American jsutice system, providing defendants a “bulwark” from fundamentally unfair convictions.45 The writ of habeas corpus, in part, provides a citizen convicted in a state courtthe opportunity to have the constitutionality of her conviction reviewed by a federal court. 46 In 1996 , Congress passed the Antiterrorism and Effective Death Penalty Act“ A(EDPA”), which modified the role of the federal courts when considering state prisoners’ habeas claims.47 In particular, AEDPA mandates that federal courts provideincreased deference to the decisions of state courts that have already adjudicated claims raised in habeas petitions.48 AEDPA allows federal courts to grant a writ of habeas corpus under 28 U.S.C. § 2254 when the claim was previously adjudicated in state court.49 A federal court may grant a habeas claim if the state court’s decision unreasonably applied “clearly established Federal law.”50 In 2000, in Williams v. Taylor, the United States Supreme Court held that under this provision of AEDPA, federal courts may grant a habeas claim if the state court unreasonably applied a governing legal principle established by the Supreme Court to the facts of the defendant’s case5.1 This requires that the state court decision be objectively unreasonable, not merely incorrect or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. 48 See Note, Rewriting the Great Wri:t Standards of Review for Habeas Corpus Under the New 28 U.S.C. § 2254, 110 HARV. L. REV. 1868, 1869−70 (1997) (noting that before the passage of Antiterrorism and Effective Death Penalty Act “(AEDPA”), federal courts performed an independent review of mixed question cases, while after they presumed state court decisions to be correct). Prior to passage of the AEDPA, federal courts split habeas claims that had been adjudicated by state courts into three categories: those presenting questions of fact, those presenting mixed questions of fact and law, and those presenting questions of law.Id. at 1869. In question of fact claims, state court decisions were provided deference, and a federal court could independently review the decision only if it believed there was reason to do so, or one of eight statutory exceptions was met. 28 U.S.C. § 2254(d); see Townsend v. Sain, 372 U.S. 293, 318 (1963) (observing that a district court judge has the discretion to accept the findings of the state court with regard to a habeas claim,) rev’d on other ground,s Keeney v. TamayoR-eyes, 504 U.S. 1, 5 (1992)I.n mixed question of fact and law claims, federal courts undertook an independent reSveieew. Thompson v. Keohane, 516 U.S. 99, 112−13 (1995) (holding that whether a suspect was“in custody” for the purposes ofMiranda warnings was a mixed question of fact and law,justifying independent review). In question of law cases, federal courts undertook independent reviews of legal questions. Miller v. Fenton, 474 U.S. 104, 110 (1985) (holding that voluntariness of a confession is a legal question requiring independent federal consideration)A.EDPA was, in part, an effort to reduce the ability of federal courts to review habeas peit ions. See Bell v. Cone, 535 U.S. 685, 693 (2002) (noting that AEDPA was intended to prevent retrials in federal court and to op-r vide finality to state court decisions);see also Tommy Zippleman, The Ineffective Assistance of Counsel Era, 63 SUP. CT. L. REV. 425, 428 (2011) (noting that federal habeas doctrine has evolved to favor finality). In effect, however, habeas claims increased following the enactment of AEDPA. JOHN SCALIA, U.S. DEP’T OF JUSTICE, NJC 189430, PRISONER PETITIONS FILED IN U.S. DISTRICT COURTS, 2000, WITH TRENDS 1980–2000, at 7 (2002) (determining that 18,000 more habeas petitions were filed because of AEDPA between April 1996 and September 2000). 49 28 U.S.C. § 2254. 50 Id. § 2254(d)(1). The provision also allows federal courts to grant habeas claims if the state court decision was “contrary to . . . clearly established federal law”. Id. The Supreme Court has held that under this provision, a federal court may grant a habeas claim iaf state court reached a conclusion contrary to the Supreme Court on an issue of law, or if the state court decides the case differently than the Supreme Court on a set of materially indistinguishable facts.Williams v. Taylor, 529 U.S. 362, 412−13 (2000). 51 Williams, 529 U.S. at 413. erroneous.52 A state court decision is not objectively unreasonable if “fra-i minded jurists” could reach differing conclusions as to its soundne5s3sA. federal court may also grant a habeas claim if the state court’s decision was based on an unreasonable determination of the facts before it.54 B. The Constitutional Requirements of Ineffective Assistance of Counsel Claims The Sixth Amendment to the United States Ctoitnustion guarantees criminal defendants the “Assistance of Counsel for his defen5c5e.T”his provision is not met, however,if “a person who happens to be a lawyer” stands next to the defendant during the trial5.6 The Supreme Court has concluded that because the implied purpose of the Sixth Amendment is to porduce a fair trial, the right to counsel means the right to the effective ass-i tance of counsel.57 In Strickland v. Washington, the Supreme Court elucidated a standard on which claims of “actual ineffectiveness” of counsel’s assistance should be 52 Lockyer v. Andrade, 538 U.S. 63, 75 (2003).It is not enough that the decision is incorrect in the court’s independent judgment. Williams, 529 U.S. at 411; see also U.S. ex rel. Hampton v. Leibach, 347 F.3d 219, 245 (7th Cir. 2003) f(inding that “[u]nreasonable means something more than mistaken”) (citing Woodford v. Visciotti, 537 U.S. 19, 24, 25 (200(2in)ternal quotations omitted)). 53 Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 54 28 U.S.C. § 2254(d)(2). A state court decision unreasonably determines the facts if the court’s factual findings, which are presumed to be correct, are not supported by the recordE. venstad v. Carlson, 470 F.3d 777, 782 (8th Cir. 2006). 55 U.S. CONST. amend. VI. Juveniles are also provided with counsel during delinquency porceedings, although this was not always the caseS.ee Tamar R. Birckhead, The Racialization of Juvenile Justice and the Role of the Defense Attorney, 58 B.C. L. REV. 379, 428−29 (2017) (discussing the historical evolution of the role of defense counsel in delinquency proceedings). 56 Strickland v. Washington, 466 U.S. 668, 685 (1984). 57 Id. at 685−86 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).In Cuyler v. Sullivan, the Court held that, because a criminal trial is state action,both privately retained and court appointed counsel are held to the effectiveness standards read into tShiexth Amendment. 446 U.S. 335, 344−45 (1980). Research indicates that, despite prevailing beliefs, court appointed counsel are about as effective as privately retained counsel at achieving favorable outcomes for clients. Richard D. Hartley et al., Do You Get What You Pay For? Type of Counsel and Its Effect on Criminal Court Outcomes, 38 J. CRIM. JUST. 1063, 1064 (2010). At trial in state court in the seventy-five largest counties in the United States, 4.4% and 4.3% of defendants were found guilty when represented by appointed and retained counsel, respectivelCy.AROLINE WOLF HARLOW, U.S. DEP’T OF JUSTICE, NJC 179023, DEFENSE COUNSEL IN CRIMINAL CASES 1 (2000). But see Derwyn Bunton, Opinion, No Lawyer to Spare for Poor in New Orlean,sN.Y. TIMES, Feb. 19, 2016, at A31 (noting that the New Orleans Public Defender’s office ceased accepting new cases to represent indigent clients as a result of a history of budget cuts, and that the officse’workload is twice that recommended by the American Bar Association). analyzed.58 The Strickland standard has two prongs that a defendant must prove.59 First, a defendant must demonstrate that her trial counsel’s representation was “deficient;” in other words, that it fell below an “objective standard of reasonableness.”60 The Supreme Court intentionally described a vague standard to ensure the preservation of defensecounsel’s wide latitude in deciding trial strategy.61 Further, because with hindsight any decision could be deemed unwise or unreasonable,a defendant must overcome a presumption that the challenged trial strategy was sound.62 Even if a court determines that counsel provided ineffective assistance, because ethpurpose of the Sixth Amendment is to provide a fair trial, tsheecond prong of theStrickland standard requires the defendant to prove that the ineffectiveness actually prejudiced the defense for the conviction to be overturned.63 The Court held that a defendant must show there was a “reasonable probability” that without counsel’s errors, the outcome at trial would have been different.64 C. Federal Courts Have Not Unanimously Found That Breaking a Promise Made in Opening Statements Is Ineffective Assistance of Counsel Courts other than the Eight Circuit have decided habeas claims of ineffective assistance of counsel where counsel promises the defendant will testify but does not call the defendant to testify6.5 In federal courts, the dis58 Strickland, 466 U.S. at 684. The Court had previously concluded that the government can violate the right to effective assistance of counsel in certain situations where it hinders the ability of counsel to make independent strategy judgmentsI.d. at 686. The Court in part developed the standard to provide guidance to the circuit courts, which had adopted varying, although subsnt-a tially similar, tests for ineffective assistance of counsel claims.Id. at 684. The claim in Strickland v. Washington concerned a defendant’s claim of ineffective assistance of counsel in a capital sentencing proceeding. Id. at 686. The Court concluded that a capital sentencing proceeding, but not a normal sentencing proceeding, which can be an informal proceeding, is similar enough to a trial that the ineffectiveness standards elucidated apply to both. Id. at 686−87. 59 Id. at 687. 60 Id. at 687−88. 61 Id. at 688−89 (citing United States v. Decoster, 624 F.2d 196, 208 (D.C. Cir. 1976))T.he purpose of the Sixth Amendment, the Court stated, is to providea fair trial for the defendant, not to raise the bar of representation standards. Id. at 689. 62 Id. at 689. The defendant must identify specific acts or omissions that constituted unreasonable strategy. Id. at 690. 63 Id. at 691−92. 64 Id. at 694. A “reasonable probability” means a probability that erodes a court’s certainty in the outcome of the proceedingI.d. The Court rejected thehigher preponderance of evidence standard, which is used in assessing claims that newly discovered evidence warrants a new trial, because a trial can be rendered prejudicial by ineffective assistance of counseleven if the ineffective assistance cannot be shown by a preponderance of evidence to have affected the outcomeI.d. at 693−94. 65 See Hampton, 347 F.3d at 257, 25;8 Ouber v. Gaurino, 293 F.3d 19, 27 (1st Cir. 2002); Madrigal v. Yates, 662 F. Supp. 2d. 1162, 1180 (C.D. Cal. 2009). positive issue for deciding such claims is whether the abo-ufatce is predicated on unforeseen circumstances.66 In 2002, in Ouber v. Gaurino, the United States Court of Appeals for the First Circuit applied the Strickland standard to a scenario where counsel reneged on a promise to call the defendant to testif6y7. In two consecutive state court criminal trials, the juries could not agree on the defendant’s guilt, and the judge declared mistrials.68 During both trials, the defendant elected to testify to explain her side of the story6.9 The government, keen on seeing justice done, presented the case to a jury a third time, but despite counsel’s promise to the jury that the defendant would testify, she did not, and the jury convicted.70 A habeas claim of ineffective assistance of counsfeolllowed, and the First Circuit agreed with the defendant that counsel’s die-c sion not to call the defendant to testify constituted ineffective assistance.71 66 See Hampton, 347 F.3d at 257, 258; Ouber, 293 F.3d at 27; Madrigal, 662 F. Supp. 2d. at 1184; see also Robinson v. United States, 744 F.Supp. 2d. 684, 693 (E.D. Mich. 2010) (finding counsel’s decision not to call the defendant after promisingdefendant’s testimony in his opening statement was unreasonable absent an unforeseen event warranting a change in strategy). 67 See Ouber, 293 F.3d at 27.The defendant in Ouber was indicted under state law for trfaficking in cocaine. Id. at 21. The defendant was alleged to have sold two ounces of cocaine to an undercover police officer. Id. The officer testified that he entered the defendan’ts car, the defendant handed him two envelopes, he confirmed with the defendant the quantity of cocaine therein, he gave her the money, and he opened the envelopes to check their contents.Id. The defendant maintained that she, the defendant, assented to help her brother carry out an errand that she did not believe was related to drug dealing.Id. She testified that she did not hand the officer the envelopes, they were sitting on the passenger seat, that they never conversed about the cocaine, and that the officer never checked the contents of the envelopes. Id. 68 Id. at 22. At the second trial, the presentation ofevidence proceeded much like the firsttrial. Id. 69 Id. at 23. 70 Id. at 22, 23. During counsel’s opening statements, he promised four times that the defendant would testify and that her testimony would be crucial to the jury’s decision. Id. at 22. Counsel stated, “The case is going to come down to what happened in that car and what your findings are as you listen to the credibility and the testimony of [the police officer] versus what you[r] findings are as you listen to the testimony of [the defendant”].Id. He went on to say,“you’re going to have to decide the truth and veracity of those two witnesses; and that will be your ultimate decision in this case.” Id. The defense presented the same witnesses it had during the preceding two trials, until counsel elected not to call the defendant as awitness. Id. at 23. Counsel apologized in his closings for not providing “more of a case.” Id. He claimed that the police officer’s testimony, considered in tandem with the testimony of a defense witness, allowed the jury to conclude that the defendant was ignorant as to the contents of the envelopeI.d. The jury was deadlocked.Id. The trial judge instructed the jury to deliberate further, and eventually they returned a guilty verdicItd.. In Massachusetts, where the case was tried, case law allows judgetso provide an instruction encouraging deadlocked juries to reach a consensus.See Commonwealth v. Rodriguez, 300 N.E.2d 192, 200 (Mass. 1973). 71 Ouber, 293 F.3d at 20, 27, 30. The trial judge denied the defendant’s motion for a new trial, a decision the Massachusetts Appeals Court affirmed.Id. at 24. The state supreme court declined to hear the case.Id. The appellate court described counsel’s opening remarks regarding the edfendant’s proffered testimony as“neither dramatic nor memorable”. Id. The defendant desired to testify. Id. She was, however, dissuaded by counsel.Id. In an on the recordconversation about her The First Circuit concluded that counsel broke his promise to provide critical testimony.72 Because there were no unforeseeable events “forcing” counsel to change strategies, counsel’s decision was “an error in professional judgment.”73 In so holding, the First Circuit did allow that, in certain circumstances, unforeseen developments may justify changes in trial straetgy.74 The First Circuit also concluded that the state court’s reading of the trial record was unreasonable, disagreeing with the state court’s characteirzation of counsel’s decision as cautious.75 Similarly, in 2003, in U.S. ex rel. Hampton v. Leibach, the United States Court of Appeals for the Seventh Circuit concluded that defencsoeunsel’s promise in his opening statements that the defendant would testify that he was not involved in the alleged criminal acts, and counsel’s later breaking of that promise, was unreasonable7.6 Important to the court’s decision was the lack of any unforeseeable events occurring at trial that would have justidecision, however, counsel never notified her of the negative impact that his earlier promises might have if she did not testify.Id. The Federal District Court for the District of Massachusetts granted the defendant’s habeas claim, overturning the state appellate court’s decision. Id. at 20. 72 Id. at 27. 73 Id. The court noted that counsel placed the defendan’ts testimony at the center of his defense, but decided not to have her testify“with no discernible justification.” Id. at 27, 35. The court found no remarkable change in the defens’es case from the time counsel made his promise to the time he elected not to call the defendant. Id. at 35−36. His decision thus constituted a “serious error in professional judgment . . . .” Id. at 36. 74 Id. at 29. “[U]nexpected developments sometimes may warrant changes in previously unnanounced trial strategies.” Id. But here, counsel had the remarkable benefit of his experience during the first two trials, where the defendant testified, and the outcome was favorable to hIde.r.At the third trial, when counsel decided not to have the defendant testify, he was presented with essentially the same situation as he had encountered in the previous two trials.Id. The previous trials thus served as a “meaningful benchmark” in helping the court determine that coun’ssel decision affected the outcome of the trial. Id. at 36. Later, in Yeboah-Sefah v. Ficco, the First Circuit concluded that promising testimony from psychologists and psychiatrists, but not calling any to testify, was not dramatic enough of a broken promise to justify habeas relief.See 556 F.3d 53, 76, 78 (1st Cir. 2009).In that case, defense counsel at best made an implied promise to present expert medical testimony to support a lack of criminal responsibility defenseI.d. at 76. Counsel stated in his opening that “psychologists and psychiatrists will talk about the medical affects [sic] of [thedefendant’s] medication” and that there would be“testimony by experts.” Id. at 77 n.17. The jurors did hear tesitmony from a psychologist and a psychiatrist over the course of the trial, but not the expert contemplated by the defense.Id. at 77, 78. The court concluded that even if there was an implied promise, it was not the dramatic type of promise, the breach of which would allow a court to overturn a conviction. Id. at 78. 75 Ouber, 293 F.3d at 31. 76 Hampton, 347 F.3d at 257, 258H.ere the defendant, eighteen years old at the time of his arrest and having never been arrested previously, was convicted of deviate sexual assault, attempted rape, robbery, and aggravated battery for events that took place at a concerIt.d. at 221, 222. He was sentenced to sixty years in prison.Id. at 221. Counsel told the jury in his openingstatement that “Mr. Hampton will testify and tell you that he was at the concertM.r. Hampton will tell you that he saw what happened but was not involved with it.” Id. at 257. fied counsel’s change in strategy7.7 The court also noted that the jury was promised an alternate version of events from those presented by theState.78 In not calling the defendant to testify, the jury was leftbereft of that different story, and counsel essentially conveyed to the jury that the condemning testimony of the state’s witnesses was correc7t9. Although the court found counsel’s decision unreasonable, it also found that such a decision, standing alone, did not sufficiently prejudice the defendant to warrant habeas relief.80 Likewise, in 2009, in Madrigal v. Yate,s the United States District Court for the Western District of California, relying in part uponOuber and Hampton, concluded that counsel’s assistance was ineffective where, in his opening remarks, he promised that the defendant would testify but later decided not to call him.81 The defendant’s counsel in Madrigal did not explain to the jury during his closing arguments why he did not call the defendant, and the court found no unforeseeable events that would have warranted such a change in strategy.82 In 2002, in Yancey v. Hall, on the other hand, the United States District Court for the District of Massachusetts concluded that counsel’s unfulfilled promise in his opening statemen,t that the defendant would testify, did not constitute ineffective assistance.83 The court ruled that, although counsel’s 77 Id. at 257, 258. Counsel justified his decision not to call the defendant on his fear that the defendant’s testimony would render him guilty by association. Id. at 258. But this disadvantage of the defendant’s testimony was as apparent at the beginning of thecase as it was at the time counsel could call the defendant to testify. Id. It is not a “legitimate” trial strategy to make promises but break them “for reasons that were apparent at the time the promises were made . . . .” Id. at 259. 78 Id. at 258. 79 Id. The court commented that counsel essentially told the jury two versions of the eventsx-e isted, but in the end the jury was left only with the State’s version of events. Id. 80 Id. at 260. The court affirmed the defendant’s habeas petition claim of ineffective assistance of counsel because counsel also failed to investigate potentially exculpatory witnesses, whose names the defendant provided to counsel. Id. at 247, 260. 81 Madrigal, 662 F.Supp. 2d. at 1180, 1183−84. In this case, the defendant was convicted of attempted murder and the use of a handgun in association with a street gangI.d. at 1166−67. In his opening remarks, counsel stated that “you’re going to hear from my client.He’ll explain to you who he believes did that crime he is charged wit.h. . he’s basically signing his own death warrant by testifying in open court that a fellow gang member committed this crime.” Id. at 1180. 82 Id. at 1184 (quoting Ouber, 293 F.3d at 29). The defendant claimed that, at trial, he was ready to testify about his alibi, and the reasons he believed another individual was the shooter, but that counsel, without forewarning the defendant, elected not to call the defendant as a witness. Id. at 1180. At an evidentiary hearing on the ineffective assistance of counsel claim, however, counsel argued that the co-defendant threatened his client during the trial, and for that reason did not put him on the stand. Id. at 1180−81. The defendant countered that, despite the unabated threats on his life, from the beginning of his incarceration through to trial, he was willing to testify to secure his innocenceI.d. at 1181. Defense counsel had written in a letter that he did not call the defendant because the defendant had not wanted to testify.Id. at 1182. The court credited the defendan’st version of events.Id. at 1181. 83 Yancy v. Hall, 237 F. Supp. 2d. 128, 132, 134, 136 (D. Mass. 2002)H.ere, the defendant was convicted of distribution of cocaine in a school zoneId.. at 129. The prosecution presented decision involved a “significant misstep,” when considered within the cnotext of the entire trial, that misstep did not amount to ineffective assistance of counsel.84 Counsel did not make the defendant’s testimony the focal point of the defense, or tell the jury multiple times that the defendant would testify, and counsel presented a defense that did not rely on the promised testimony from the defendant.85 III. THE EIGHTH CIRCUIT CORRECTLY APPLIED THE INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD In Bahtuoh v. Smith, the Eighth Circuit correctly applied the emerging federal analysis for ineffective assistance of counsel claims when the- d fendant’s counsel promises the defendant’s testimony but does not deliver it.86 At the start of the trial,Bahtuoh’s counsel could not have anticipated that the State would have Bahtuoh’s grand jury testimony read intoi- ev dence.87 Counsel was also able to cross-examine the prosecution’s witnesses.88 Together, these two opportunities allowed counsel to enter inteovidence, albeit indirectly, the information that he anticipated providing to the jury through the direct testimony of Bahtuoh, which was promised.89 Counsel’s decision to break his promise inBahtouh is different from those cases in which other courtshave deemed counsels’ broken promises unreasonable.90 Bahtuoh’s case is distinguishable from the remarkable circumstances in Ouber v. Guarino.91 Bahtuoh’s counsel did not have the benefit of two previous and nearly identical trials on which to base his strategy.92 Although the defense in both Ouber and Bahtuoh was centered around the defendant’s testimony, inOuber counsel did not fulfill his promises to the jury about what the defendant’s testimony would hold using other ie-v dence.93 On the other hand, in Bahtuoh, counsel did not require the defendant’s testimony in order to provide thewith jury the evidence he promised in his opening.94 The circumstances in Bahtouh are also distinguishable from those in U.S. ex rel. Hampton v. Leibach.95 In Hampton, counsel justified his change in strategy on reasons that were apparent at the beginning of the trial, and never delivered the promised alternate version of events to contrast the government’s story.96 In Bahtouh, however, counsel could not have known at the outset that the government would read Bahtuoh’s grand jury testimony into evidence.97 That testimony presented the jury with the alternate version of events counsel promised in his opening statemen9t8. Additionally, it allowed Bahtuoh’s version of events to enter into eviednce without exposing Bahtuoh to cross-examination by an experienced prosecutor.99 When assessing the reasonableness ofdefense counsel’s decision to break her promise, courts should examine, in addition to whether unef-or seen circumstances support the deciosn, whether counsel considered the ant to testify after promising as much, but alone that decision was not enough to warrant habeas erlief. See id. In Ouber, counsel promised that the defendant would testify and decidedlater not to call her to the stand. See 293 F.3d at 22, 23, 27. Counsel had the experience of two previous trials,however, in which the defendant did testify and the outcome was favorable to her, to draw from when preparing for the third trial. See id. Events in the third trial proceeded in a similar fashion to the first two, so there were no unforeseeable events to justifycounsel breaking his promise in opening statements. See id. 91 Compare Bahtuoh II, 855 F.3d at 870 (describing only one trial where counsel represented petitioner), with Ouber, 293 F.3d at 29 (noting that counsel represented petitioner at two previous trials for the same offense before representing her for a third time at the trial at issue). 92 See Bahtuoh II, 855 F.3d at 870. 93 Compare id. (noting that counsel believed the State had already introduced most of the evidence that he planned to introduce through the defendant’s testimony), with Ouber, 293 F.3d at 29−30 (finding that another witness who testified could not adequately testify as the defendant may have). 94 See Bahtuoh II, 855 F.3d at 873. 95 Compare id. (noting that Bahtuoh’s counsel neither could have predicted thatahBtuoh’s relationship with the victim, nor that Bahtuoh didn’t know the shooter was armed, would come into evidence without his having to call Bahtuoh to testify as promised)w,ith Hampton, 347 F.3d at 257, 258 (finding that the defendant’s version of events did not come into evidence when thee-d fendant did not testify as counsel promised). 96 Hampton, 347 F.3d at 257, 258. 97 See Bahtuoh II, 855 F.3d at 873. 98 Id. 99 See Bahtuoh I, 840 N.W.2d 804, 817 (Minn. 2013) (quoting Bahtuosh’counsel’s closing argument). impact that such a reversal may have on the jur1y00. Making a promise in opening statements and not delivering on that promise is anear universally disdained trial technique.101 In any given trial, however, there is a litany of potential tactics that counsel can legitimately wield1.02 There are few rigid requirements for counsel to meet in order to be considered constitutionally effective.103 Depending on the circumstances, even siigfnicant decisions, such as waiving an opening statement entirely, can be considered sound strategy.104 But when counsel promises to present the defendant and reneges 100 See Green v. United States, 365 U.S. 301, 304 (1961) (noting that not even the best counsel may be able to speak for the defendant wi“thalting eloquence,” as the defendant himself might); Saesee v. McDonald, 725 F.3d 1045, 1049 (9th Cir. 2013) (noting that when counsel breaks a promise with the jury, he ruptures the jury’s trust in his client, impacting the juror’s ability to maintain an open mind); McAleese v. Mazurkiewicz, 1 F.3d 159, 1−667 (3d Cir. 1993) (commenting that the rationale for finding ineffective assistance of counsel when counsel fails to deliver promised testimony is that the jury may infer that the witness was“unwilling or unable” to provide the testimony). 101 See Saesee, 725 F.3d at 1049 (noting that when counsel breaks apromise with the jury, he ruptures the jury’s trust in his client, impactingthe jurors’ collective ability to maintain an open mind); Anderson v. Butler, 858 F.2d 16, 17 (1st Cir. 1988) (remarking that failing to produce promised evidence can be quite dmaaging); see also DOMINIC J. GIANNA & LISA A. MARCY, OPENING STATEMENTS: WINNING IN THE BEGINNING BY WINNING THE BEGINNING § 16:2 (2015– 2016 ed. 2015) (instructing practitioners to“never, ever” make promises in openings that cannot be kept, because doing so is a se-lifnflicted fatal blow to the case); Michael J. AhlenO, pening Statements in Jury Trials: What Are the Legal Limits?, 71N.D. L. REV. 701, 706 (1995) (noting that failing to keep a promise made during opening statements negatively demerits the defense’s case). Indeed, one criminal trial practice manual recommends maintaining a checklist of promises the opposition made during their opening statements so as to highlight for the jury any unfulfilled prmoises. LAURIE L. LEVENSON, WEST’S CALIFORNIA CRIMINAL PROCEDURE § 23:40 (2016). 102 See Strickland v. Washington, 466 U.S. 668, 688−89 (1984) (instructing courts to embrace a presumption that “counsel’s conduct falls within the wide range of reasonable professional assistance . . . .”); see also Williams v. Woodford, 859 F.Supp. 2d. 1154, 1170 (E.D. Cal. 2012) (noting that a strategy of promising and delivering exculpatory evidence or of poking holes in the prosecution’s case is a reasonable trail strategy, but telling the jury one will occur but instead following through on the other is“a recipe for failure”). But see, e.g., Turner v. Maryland, 318 F.2d 852, 853−54 (4th Cir. 1963) (condemning counsel for not communicating with the defendant for the two weeks before trial commenced in order to ascertain whether any information relevant to his defense existed, but denying relief because the defendant in fact possessed no such information). 103 See Padilla v. Kentucky, 559 U.S. 356, 374 (2010) e(rquiring counsel to inform her edfendant about the deportation risks associated with the defendan’st plea); Strickland, 466 U.S. at 688 (noting the duties of counsel to confer with the defendant regarding important decisions, keep the defendant abreast of important developments throughout the prosecutiosn’case, and employ enough skill and knowledge to produce a fair trial, but allowing that this list of duties is not exhaustive); see also Williams, 340 F.3d at 671−72 (stating that not delivering testimony promised in an opening is not always constitutionally deficient assistance of counse;l)Ouber, 293 F.3d at 27 (noting that the intricacies of trials inevitably involve multiple mistakes, and only the most serious mistakes violate the Sixth Amendment guarantee of effective assistance of counsel). 104 See People v. Paneglina, 199 Cal. Rptr. 916, 918 (Cal. Ct. App. 1984) (noting that counsel is not obliged to make an opening statement, and that it can be reasonable trial strategy to wait until the State has closed its case before making an openingstatement in order to preserve the element of surprise). on that promise, courts must proceed with caution because of the negative impact an unfulfilled promise may have on a jury.105 Critics of the two-prong Strickland v. Washington analysis argue that the standard upon which counsel’s performance is judged is not demanding enough.106 As the Supreme Court noted iSntrickland, however, holding counsel to a higher standard could paradoxically harm defendant1s07. Instead of raising the bar of criminal defense representation, a stricter stda-n ard could make court appointed attorneys, knowing that their strategies may be open to scrutiny and criticism by appellate courts, hesitant to take indigent cases.108 The current standard thus allows for counsel taking indigent cases to be reasonably sure that their trial decisions will not be overly i-cr tiqued, and indigent clients can rely on willing counsel for their defense.109 CONCLUSION In Bahtouh v. Smith, the Eighth Circuit concluded thatthe breaking of a promise to the jury that the defendant would testify bdyefense counsel did not constitute ineffective assistance of counsel. The Court applied the Strickland v. Washington ineffective assistance of counsel standard, which allows for a broad range of potential trial tactics, only the most unreasoanble of which are deemed constitutionally deficient. The Eighth Circuit’s decision in Bahtouh is in accord with other circuit’s decisions regardinga defense counsel’s broken promise that the defendant would testify. Federal courts will not disturb the outcome of a trial where counsel promised the 105 See Hampton, 347 F.3d at 259 (noting that breaking a promise to the jury undercuts the jury’s trust in the defendant and her attorney)M;cAleese, 1 F.3d at166−67 (explaining that the reason for concluding that breaking a promise made in openings constitutes ineffective assistance of counsel is because the jury may draw negative inferences from the lack of the promised tie-st mony). This impact may be mitigated when, as in Bahtuoh’s case, the defense can explain the broken promise in closing arguments.See Bahtuoh II, 855 F.3d at 870 (counsel explained during closing arguments that he opted not to have Bahtuoh testify because the government ditdnp’rove their case and his truthful story came across in his grand jury testimony). 106 See, e.g., Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 YALE L.J. 1835, 1857−58 (1994) (lamenting that the standard for judging counsel is whether the representation was ineffective instead of requiring the representation to be effective); Richard KleinT,he Emperor Gideon Has No Clothes: The Empty Promise of the Constitutional Right to Effective Counsel, 13 HASTINGS CONST. L.Q. 625, 639, 640 (1986) (considering Strickland v. Washington among the decisions that“seriously undermined” the defendant’s ability to bring an ineffective assistance of counsel claim). 107 Strickland, 466 U.S. at 690 (noting that use of a mo“reintrusive” standard to evaluate counsel’s performance could “dampen the ardor” of counsel and dissuade counsel from accepting indigent cases). 108 Id. The Court also noted the possibility that after the first trial, a csoend would ensue to examine counsel’s tactical decisions. Id. 109 See id. (stating that more intense judicial scrutiny of couns’esl decisions could“undermine” trust between counsel and her client). jury the defendant’s testimony but then broke the promise as long as the change in tactic is predicated on unforeseen circumstances that arose during the trial. When considering whether such a decision is unreasonable, however, courts should consider whether counsel weighed the possible effects that a broken promise could have on the juryB. ecause a lawyer’s broken promise can negatively reflect on her client, and possibly influence theu-j ry’s evaluation of the case, courts ought to hold defense counsel accouan-t ble for considering the impact such a decision might have on the jury. This would add depth to the court’s analysis of such decisions, without creating a high standard for counsel, which critics worry could lead tofewer lawyers being willing to take on indigent defense assignments. ALEXANDRE BOU-RHODES Preferred Cite: Alexandre Bou-Rhodes, Comment, When the Defendant Doesn’t TestifyT: he Eighth Circuit Considers a Reasonable Broken Promise inBahtouh v. Smith, 57 B.C. L. REV. E. SUPP. 520 (2018), http://lawdigitalcommons.bc.edu/bclr/vol59/iss9/520/. 40 Bahtuoh II , 855 F.3d at 873. Having found no ineffective assistance ofcounsel, the Eighth Circuit was not compelled to consider, as required under the second prong of thSetrickland test, whether counsel's assistance prejudiced the trial . Id. at 871 , 873 . 41 Id. at 874. Bahtuoh argued that the Minnesota Supreme Court unreasonably determined that the extent of the weaknesses of thSetate's case were unforeseen to counsel and that counsel weighed the risks of not having Bahtuoh testify . Id. at 873 . If the state court's factual conclusions are supported by the record, then it did not unreasonably determine the facts . Evenstad v. Carlson , 470 F.3d 777 , 782 ( 8th Cir . 2006 ). Based on the trial record, the Eighth Circuit foundthat counsel was only partially correct about the extent of the weaknesses in theState's case . Bahtuoh II, 855 F.3d at 873 . For example, counsel established through cross-examination that the victim had motioned towards Bahtuoh, which supported Bahtuoh's grand jury testimony . Id . The Eighth Circuit also found that the trial record demonstrated that counsel weighed the risks of Bahtuoh testifying . Id. at 874 . Counsel stated during the colloquy when Bahtuoh informed the court that he would not testify that he had spoken to Bahtuoh about the issue and that they had weighed“tphreos and cons” of not testifying . Id. 42 See infra notes 45-54 and accompanying text. 43 See infra notes 55-64 and accompanying text. 44 See infra notes 65-85 and accompanying text. 45 Engle v. Isaac , 456 U.S. 107 , 126 ( 1982 ) (quoting Wainwright v . Sykes , 433 U.S. 72 , 97 ( 1977 ) (Stevens , J., concurring)). 46 28 U.S.C. § 2254 ( 2012 ) ; John H. Blume &David P. Voisin , An Introduction to Federal Habeas Corpus Practice and Procedure , 47 SUP. CT. L. REV. 271 , 273 ( 1996 ). 47 28 U.S.C. § 2254 (d). The statute mandates that a petition for a writ of habeas corpus originating from a defendant in state custod,ywhose claim has already been decided on the merits in the state court, will not be issued unless the state court adjudication:“1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law . . . or

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Alexandre Bou-Rhodes. When the Defendant Doesn't Testify: The Eighth Circuit Considers a Reasonable Broken Promise in Bahtuoh v. Smith, Boston College Law Review, 2018,