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
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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
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
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
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
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.
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
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
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.
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.
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
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
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
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.
99 See Bahtuoh I, 840 N.W.2d 804, 817 (Minn. 2013) (quoting Bahtuosh’counsel’s closing
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
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
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
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.
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