                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-13-1996

Virgin Islands v. Weatherwax
Precedential or Non-Precedential:

Docket 95-7126




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            UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                     No. 95-7126


           GOVERNMENT OF THE VIRGIN ISLANDS,
                       Appellant

                            v.

                  WILLIAM WEATHERWAX




          District Court of the Virgin Islands
                 Division of St. Croix
          (D.C. Crim. Action No. 88-cr-00139)


                Argued August 16, 1995

BEFORE:    STAPLETON, LEWIS and WEIS, Circuit Judges

           (Opinion Filed       March 13, l996)




                   W. Ronald Jennings
                   United States Attorney
                   Charles L. Jenkins (Argued)
                   Assistant U.S. Attorney
                   1108 King Street, Suite 201
                   Christiansted, St. Croix
                   U.S. Virgin Islands 00820

                            Attorneys for Appellant


                   Amelia Headley-LaMont (Argued)
                   Headley-LaMont & Marshack
                   4500 Sunny Isle Professional Building
                   Suite 4
                   P.O. Box 1690 Kingshill
                   Christiansted, St. Croix
                   U.S. Virgin Islands 00820-4423



                            1
Attorney for Appellee




2
                         OPINION OF THE COURT




STAPLETON, Circuit Judge:



           This is the second time that this habeas corpus

proceeding has been before us.    In the previous appeal,

Government of the Virgin Islands v. Weatherwax, 20 F.3d 572
(3d Cir. 1994), we reversed the district court's dismissal of

Weatherwax's petition for a writ of habeas corpus and remanded

for an evidentiary hearing on Weatherwax's claim of ineffective

assistance of counsel.    After holding the evidentiary hearing,

the district court granted Weatherwax's petition for habeas

relief.   We will reverse.



                                  I.

           William Weatherwax was indicted for the shooting death

of St. Clair Hazel.   A jury acquitted him of first degree murder

but convicted him of second degree murder and unlawful possession

of a weapon.   We affirmed on direct appeal.      Government of the

Virgin Islands v. Weatherwax, 893 F.2d 1329 (3d Cir. 1989).

           Weatherwax thereafter filed a petition for a writ of

habeas corpus, raising several arguments.       Only one of those

arguments is relevant to this appeal.    Weatherwax alleged that

during his trial a juror was observed with a newspaper containing

an article about the trial.    The article allegedly reported an



                                  3
inaccurate and unfavorable account of Weatherwax's testimony.

Both Weatherwax and members of his family informed defense

counsel of this fact but the lawyer failed to bring the matter to

the trial court's attention.    Weatherwax claimed that his

attorney's failure to bring this matter to the court's attention

constituted ineffective assistance of counsel.

          The district court rejected that argument, reasoning

that the newspaper article was "a verbatim and dispassionate

account of the testimony adduced at trial" which accordingly

could not be prejudicial.    Weatherwax, 20 F.3d at 575.   We came

to a different conclusion, however, finding that the actual trial

testimony varied from the newspaper account in several

significant respects.   We found that the difference between the

article version and the official transcript, "[a]lthough subtle,"

could have been unfairly prejudicial because Weatherwax's

testimony (but not the newspaper account) "argue[d] against

second degree murder and support[ed] Weatherwax's self-defense

testimony."   Id. at 577.0

          We further found that "[i]f the jurors . . . read the

damaging article with its distorted reporting of Weatherwax's

testimony, the likelihood of resulting taint to the fairness of

the trial [would be] apparent [and] Strickland's second prong

would also be met."   20 F.3d at 580.   We, therefore, instructed

that if the district court found on remand (1) that a juror in


0
   The article reported only on the testimony the jury had heard
the preceding day; it included no extra-record information about
Weatherwax or the crime.


                                 4
fact had brought the newspaper into the jury room and (2) that

Weatherwax's lawyer had been informed of this, then Weatherwax

would have "made out a prima facie case of ineffective assistance

of counsel under the Strickland [v. Washington, 466 U.S. 668

(1984),] standard."   Id.   If such a "prima facie" case were

established on remand, we instructed that, "[t]he government must

then be afforded the opportunity to question Weatherwax's counsel

relative to his failure to request the voir dire in order to

show, if applicable, that counsel proceeded on the basis of

'sound trial strategy.'"    Id. (quoting Strickland, 466 U.S. at

689).

          On remand, the government did not contest Weatherwax's

claims (1) that a juror in fact had had possession of a newspaper

in the jury room and (2) that Weatherwax's lawyer had been

informed of this.   Thus, Weatherwax made out a prima facie case

of ineffective assistance of counsel under Strickland, and the

burden shifted to the government to show that Weatherwax's

counsel had proceeded on the basis of "sound trial strategy."

Id.

          To meet its burden, the government called Weatherwax's

trial attorney, Michael Joseph.       In response, Weatherwax called

his sister and his brother-in-law, who were present during the

trial, and gave his own account of the relevant events.      With the

sole exception noted below, the testimony of these witnesses was

not in conflict.

          Joseph, an experienced criminal defense lawyer and a

lifelong resident of the Virgin Islands, was privately retained


                                  5
by Weatherwax.    Weatherwax stayed with Joseph in his home during

the last few days of pretrial preparation and throughout the

trial.   Joseph considered it "a very difficult case."   (J.A. at

23.)   Among other things, he explained to Weatherwax the strategy

he intended to use in selecting a jury.    That strategy was based

in part on the fact that Weatherwax's case had created a racially

charged atmosphere in the Virgin Islands because Weatherwax was

white, a so-called "Continental," and the victim was black.    It

was also based on the facts surrounding the victim's death and

Weatherwax's anticipated defense. Joseph testified:
                Q. [D]id you have a strategy, sir, with
          regard to selecting a jury?

       A.   Of course.

       Q.   And what was that strategy?

                  A.. . . I saw this case as a case in
            which the facts really were not too much in
            dispute as compared to the jury that would
            hear the facts and interpret the facts. For
            instance, it would be undenied that an
            unlicensed firearm was involved. It would be
            undenied that Mr. Weatherwax possessed an
            unlicensed firearm. It would be undenied
            that Mr. Weatherwax discharged an unlicensed
            firearm. It would be undenied that the person
            who was shot did not have a firearm. And it
            would be undenied that there would be
            witnesses who would have conflicting stories
            as to what danger he presented to Mr.
            Weatherwax. Therefore, I thought Mr.
            Weatherwax's perception as to what was
            happening to him, which is the gist of a self
            defense case, not what's really happening but
            whether the person reasonably perceived
            themselves to be in danger was the gist of
            this case and we needed jurors who would
            identify with that situation.

                               * * * *



                                 6
                   Q.What were you striving to achieve in
             the composition of the Weatherwax jury?

      A.     Sympathy.

                   Q.And were you doing that based upon
             the profile of certain venire persons?

      A.     Absolutely.

                   Q.What were you looking for
             specifically?

                   A.I was looking for as many
             Continentals on the jury as possible.

                   Q.And for what reason did you do that?

      A.     Sympathy.

                   Q.Is that another way of saying you
             would assume that they identified with the
             defendant?

      A.     Absolutely.

(J.A. at 23-24, 26-27.)

             Joseph further testified that a second objective of his

trial strategy was to persuade the jury to convict only on a

lesser included offense in the event the evidence of self defense

did not produce an acquittal on all counts.

             The jury ultimately selected to hear Weatherwax's case

consisted of three white and nine black jurors.      It was the

largest number of Continentals Joseph had ever seen on a Virgin

Islands jury and he was "ecstatic."     (J.A. at 28.)

             On numerous occasions during the trial, the trial judge

admonished the jury to avoid reading articles about the trial in

the newspaper.     He did not, however, instruct them not to read a

newspaper.



                                  7
            On the morning of the last day of the trial, after

Weatherwax had finished his testimony and just as the prosecution

was about to call its rebuttal witnesses, Weatherwax's sister,

Sally Lay, and his brother-in-law, William Lay, observed a juror

walk from the jury room into the court room with a local

newspaper under his arm.    They did not observe him reading the

newspaper and, accordingly, did not know what portion of the

paper the juror had been exposed to.     Mr. and Mrs. Lay advised

Weatherwax and a bailiff of their observation.    The bailiff took

no action but advised them to speak to their lawyer.

            The Lays, Weatherwax, and several other members of his

family took the bailiff's advice and informed Joseph about the

newspaper as he was entering the door of the courtroom.     A

conversation ensued.    Weatherwax expressed the view that it was

"not right" for the juror to have a newspaper and he as well as

his relatives asked Joseph to do something about it.      (J.A. at

64.)   Mrs. Lay described the conversation and Joseph's response

in the following terms:
                Q.You didn't ask anything -- all I'm
          asking you, ma'am, is you didn't ask him to
          do anything specific. You just asked him to
          do something about it?

                  A.We asked him to do something about
            it, file a motion or something and he said he
            would file a motion for a mistrial tomorrow.

                               * * * *

                  Q.And that's not all he said, did he?
            He said something else didn't he?

       A.   In this conversation?

                  Q.Yes.


                                    8
                   A.Yes, he did.

                   Q.What did he say?

                A.He said that he -- well, he said a
          lot of things during the course of the
          conversation.

                Q.As specifically as you can recall,
          Mrs. Lay, I would like for you to tell the
          Court everything that Mr. Joseph said.

                A.He said that the jury [sic] with the
          newspaper is a white man. He would help
          Billy's case. He was on our side. Leave it
          alone. He would file a motion for a mistrial
          tomorrow.

                Q.So he told you essentially not to
          worry about it, didn't he?

          Ms. Lamont:       Objection.

          The Court: It's cross examination. Ask her
          that question before you go on to something
          else.

          By Mr. Humphreys:

                Q.You may answer the question.
          Attorney Joseph told you not to worry about
          the situation, didn't he?

                   A.No, he did not use those words.

                Q.But he did tell you, as a matter of
          fact, that he believed that the juror that
          you had identified was "on your side," didn't
          he?

                   A.Yes.

                Q.And he also told you not to bring any
          attention to it, didn't he?

                   A.Yes.

(J.A. at 67-68.)    Neither Weatherwax nor his family thereafter

brought the newspaper to the attention of the court.


                                    9
          Joseph testified that he had monitored the newspapers

daily for inflammatory material and that he had read the article

in that morning's paper before coming to court.     He described in

the following terms his reaction upon being advised of the Lays'

observation:
                A.. . . So telling me a juror has a
          newspaper and walk [sic] into court tells me
          -- my impression was that's a pretty honest
          man.

                  Q.Why was he an honest man?

                A.Because if he wanted assistance from
          the newspaper as to what is happening in
          court, he would have read it clandestinely.
          He wouldn't have just walked to court like
          that. Many people in this community love the
          sports page. Many people love to do
          crossword puzzles. If they don't do their
          crossword puzzle, they don't have a good day.

                Q.Do you believe that the possession of
          a newspaper, the possession, in and of
          itself, was a valid basis for a mistrial?

                  A.Absolutely not.

                  Q.Was it a valid basis for polling the
          jury?

                  A.Not that jury.

                  Q.Because you wanted that jury?

                A.Absolutely. On another jury I might
          have used it as an excuse.

                Q.So you did not request that the jury
          be polled?

                  A.No.

                Q.Was that a strategic decision on your
          part, sir?




                                 10
                A.Of course it was. That's what I'm
          trying to tell you, sir, that if anybody,
          including Judge Almeric Christian, had come
          and tell [sic] me, "Michael Joseph, it is my
          opinion that you should poll the jury," I
          would have said, "Your Honor, leave my jury
          alone."

(J.A. at 37-38.)

          The sole conflict in the testimony relates to whether

Joseph committed himself during this conversation to the filing

of a motion for a mistrial. Mrs. Lay insisted that he did:
      Q. To your knowledge, what was done?

                A.Mr. Joseph said that he would take
          care of it and he would file a motion for a
          mistrial tomorrow.

(J.A. at 48.)

          Joseph testified that he said he would think about the

matter but insisted that he did not commit to seeking a mistrial.
                Q.Do you recall ever telling anyone
          that you might consider a motion for a
          mistrial?

                A.Not only do I not recall not telling
          anyone that. I would call any lawyer that
          would have moved for a mistrial on those
          grounds a fool because of the composition of
          the jury. It was a rare jury. Probably the
          odds of such a jury being selected again was
          nil. And if someone mentioned that to me, I
          probably would have laughed at them.

               I recall telling Billy that it was my
          opinion that this is the best shot he's
          getting right here, Mr. Weatherwax, that this
          jury was about the best jury he would ever
          get.

               Q.Well, let's get inside your thought
          process. You told the defendant that you
          would think about it. Did you, in fact,
          think about it?

                A.Of course.


                               11
               Q.Did you come to a conclusion about
          whether or not it would be important for you
          to either request a mistrial or request a
          polling of the jury?

               A.Again, it's important that you
          understand that this had been a jury that
          left me very happy, with a very happy
          feeling.


(J.A. at 33-34.)

          No motion for a mistrial was filed by Joseph and the

newspaper incident was not pursued prior to the filing of this

habeas proceeding.

          The district court credited Joseph's testimony that he

made a deliberate and strategic decision not to pursue the

newspaper issue.     It concluded, however, that during his

conversation with the Weatherwax family he had led them to

believe that the issue would be pursued in some way.

Specifically, the district court found that "[d]espite giving

some assurances that he would 'file a motion,' Attorney Joseph

determined that the incident did not warrant interfering with the

composition of the jury."     (Dist. Ct. Op. at 7.)

          Despite its conclusion that Joseph's decision had been

deliberate and strategic, the district court nevertheless ruled

that Joseph's failure to call the court's attention to the

incident of alleged juror misconduct was unreasonable under the

Strickland standard for measuring an attorney's performance.    It

explained:
          [C]ounsel's decision not to notify the court
          of the juror's misconduct, was in the first
          instance a breach of a fundamental duty to
          his client, and in the second, a breach of


                                  12
          his duty as an officer of this court.
          Accepting trial counsel's claim as to a
          strategy, this court finds that the decision
          denied the trial judge, and therefore counsel
          and client, the opportunity to conduct the
          searching inquiry that was required to
          determine the extent of the jury's exposure
          to the extra-judicial evidence. As such, the
          decision cannot be said to have been
          reasonable exercise of professional judgment.


(Dist. Ct. Op. at 16.)

          The court then addressed the second prong of the

Strickland test and determined that the facts warranted relief
under the doctrine of that case.       It found that "because of trial

counsel's disregard of his client's wishes and his duty to this

court, there are no objective criteria upon which this court can

determine prejudice, if any, as a result of the juror's

misconduct.    To the extent that a voir dire was not conducted,

proof of prejudice is excused.    Since finality concerns are

weaker when one of the assurances that the result of the

proceeding is reliable is absent, a new trial is warranted."

(Dist. Ct. Op. at 17-18.)



                                 II.

          We review the district court's findings of fact for

clear error.   We must make an independent judgment, however, on

whether the facts thus found constitute constitutionally

ineffective assistance of counsel.      McAleese v. Mazurkiewicz, 1

F.3d 159, 166 (3d Cir.), cert. denied, 114 S. Ct. 645 (1993).




                                 13
                               III.

           The district court reasoned that Joseph breached a duty

to his client because he (a) failed to take steps necessary to

secure a voir dire inquiry directed to the issue of whether the

newspaper in fact had prejudiced the jury and (b) failed to

consult with or follow directions from his client about strategic

matters.   Our de novo review leads us to a contrary conclusion.



                                A.

           We start with the teachings of Strickland v.

Washington:
          In any case presenting an ineffectiveness
          claim, the performance inquiry must be
          whether counsel's assistance was reasonable
          considering all the circumstances. Prevailing
          norms of practice as reflected in American
          Bar Association standards and the like, e.g.,
          ABA Standards for Criminal Justice 4-1.1 to
          4-8.6 (2d ed. 1980) ("The Defense Function"),
          are guides to determining what is reasonable,
          but they are only guides. No particular set
          of detailed rules for counsel's conduct can
          satisfactorily take account of the variety of
          circumstances faced by defense counsel or the
          range of legitimate decisions regarding how
          best to represent a criminal defendant. Any
          such set of rules would interfere with the
          constitutionally protected independence of
          counsel and restrict the wide latitude
          counsel must have in making tactical
          decisions. See United States v. Decoster,
          199 U.S. App. D.C., at 371, 624 F.2d, at 208.
          Indeed, the existence of detailed guidelines
          for representation could distract counsel
          from the overriding mission of vigorous
          advocacy of the defendant's cause.

                              * * * *

                Judicial scrutiny of counsel's
           performance must be highly deferential.


                                14
           . . . A fair assessment of attorney
           performance requires that every effort be
           made to eliminate the distorting effects of
           hindsight, to reconstruct the circumstances
           of counsel's challenged conduct, and to
           evaluate the conduct from counsel's
           perspective at the time. Because of the
           difficulties inherent in making the
           evaluation, a court must indulge a strong
           presumption that counsel's conduct falls
           within the wide range of reasonable
           professional assistance; that is, the
           defendant must overcome the presumption that,
           under the circumstances, the challenged
           action "might be considered sound trial
           strategy."


466 U.S. at 688-89 (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955)).

           Thus, while professional standards provide guidance in

evaluating the performance of counsel, they do not define the

boundary between constitutionally acceptable and constitutionally

unacceptable performance.0   The Constitution requires only that

counsel's assistance be "reasonable" considering all of the

circumstances and the ultimate objective of assuring "vigorous
0
   The Supreme Court elaborated on this point in Nix v.
Whiteside, stating that:

           [B]reach of an ethical standard does not
           necessarily make out a denial of the Sixth
           Amendment guarantee of assistance of counsel.
           When examining attorney conduct, a court must
           be careful not to narrow the wide range of
           conduct acceptable under the Sixth Amendment
           so restrictively as to constitutionalize
           particular standards of professional conduct
           and thereby intrude into the state's proper
           authority to define and apply the standards
           of professional conduct applicable to those
           it admits to practice in its courts.

475 U.S. 157, 165 (1986).



                                15
advocacy of the defendant's cause."    Id. at 689.   Moreover, the

evaluation of reasonableness must begin with a "strong

presumption that counsel's conduct falls within the wide range of

reasonable professional assistance."    Id.

          Applying these principles in Strickland, the Supreme

Court discussed the interplay between an attorney's duty to

investigate a matter and her strategic choices regarding that

matter:
          [S]trategic choices made after thorough
          investigation of law and facts relevant to
          plausible options are virtually
          unchallengeable; and strategic choices made
          after less than complete investigation are
          reasonable precisely to the extent that
          reasonable professional judgments support the
          limitations on investigation. In other
          words, counsel has a duty to make reasonable
          investigations or to make a reasonable
          decision that makes particular investigations
          unnecessary. In any ineffectiveness case, a
          particular decision not to investigate must
          be directly assessed for reasonableness in
          all the circumstances, applying a heavy
          measure of deference to counsel's judgments.


Id. at 690-91.
          In a sense, Joseph made his strategic choice not to

move for a mistrial "after less than complete investigation";        he

decided that it would be better to keep the jury intact without

first inquiring into whether the jurors read or were influenced

by the newspaper article.   Still, Joseph's decision not to

investigate the possibility of juror prejudice was itself a

strategic decision.   Unlike the usual case where a lawyer fails

to fully investigate a matter, Joseph could not conduct an

investigation without first bringing the newspaper incident to


                                16
the court's attention.   Once he brought the matter to the court's

attention, however, he would relinquish to the court at least

some control over whether this particular jury would decide his

client's fate.

          Given the limited information that Joseph had in front

of him -- that a juror had been seen with a newspaper, and that

the newspaper contained a potentially damaging article -- and

given Joseph's view that this jury was the best that could be

expected from Weatherwax's point of view, we think that the

decision not to inform the court was reasonable "under prevailing

professional norms."   Strickland, 466 U.S. at 688.   Joseph acted

in what he believed to be his client's best interests.    He

believed that he had the best jury possible under the

circumstances, and he made a judgment that many competent

litigators would make under the same circumstances.    Bringing the

newspaper incident to the court's attention would have created a

possibility that the court would either declare a mistrial or

otherwise alter a jury which Joseph felt favored the defense.0

Given the Supreme Court's statement that "[t]here are countless
0
   We do not agree with the dissent that Joseph could have
satisfied his client's request without substantial risk of losing
what he believed to be a favorable jury. "In every case where
the trial court learns that a member or members of the jury may
have received extra-record information with a potential for
substantial prejudice, the trial court must determine whether the
members of the jury have been prejudiced." Government of the
Virgin Islands v. Dowling, 814 F.2d 134, 139 (3d Cir. 1987).
Thus, had Joseph brought the newspaper incident to the trial
court's attention, the court would have had an affirmative
obligation to conduct voir dire and would have had discretion, if
it found exposure to the article, to excuse one or more jurors or
to declare a mistrial.



                                17
ways to provide effective assistance in any given case," and the

"strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance," id. at 689, we

cannot, without more, rule that Joseph's decision not to

investigate further was unreasonable as a matter of strategy.0

0
   Unlike our dissenting colleague, we do not view as inherently
unreasonable Joseph's judgment that it was in Weatherwax's
interest to have a jury including three white jurors rather than
one having fewer or no white jurors. Lawyers necessarily make
trial strategy judgments based on probabilities. While they
occasionally have hard empirical data to rely upon, the
probabilities they utilize are more frequently based on an
assessment of human nature rooted in the lawyer's own personal
experience. Weatherwax had testified that the victim started
coming at him with a rock and that he feared for his life. Joseph
believed that, as a matter of probability, jurors of Weatherwax's
own racial background would be more likely to identify with
Weatherwax and believe his fear to be genuine than would jurors
of the victim/assailant's racial background. There is no way to
determine whether Joseph's belief is empirically accurate. It
has not been shown to be empirically inaccurate, however, and we
are unwilling to say that it is a view that a reasonable attorney
could not hold.

     The Supreme Court has held that neither the prosecution nor
the defense may, consistent with the Equal Protection Clause,
utilize state-created peremptory challenges to exclude jurors
from service on a jury because of their race. Batson v.
Kentucky, 476 U.S. 79, 96-98 (1986); Georgia v. McCollum, 505
U.S. 42, 59 (1992). The Supreme Court has never concluded,
however, that aversions and affinities arising from the attitudes
and experiences of different racial groups do not exist or that
they do not affect jury verdicts. There is some empirical
evidence to the contrary. E.g., McCleskey v. Kemp, 481 U.S. 279,
287 (1987) (discussing a study indicating that black defendants
who kill white victims have the greatest likelihood of receiving
the death penalty); Jeffrey S. Brand, The Supreme Court, Equal
Protection, and Jury Selection: Denying That Race Still Matters,
1994 Wis. L. Rev. 511, 628 n.584 (noting that studies have found
that the likelihood of a decision to acquit is correlated to the
race of the juror and of the defendant); id. at 619, 630 (arguing
that, because of the way racism operates in the courtroom, a
minority defendant ought to be able to use race-based peremptory
challenges to increase minority participation on the jury); Nancy
J. King, Postconviction Review of Jury Discrimination: Measuring

                               18
                                B.

          The district court also found that Joseph's

representation was ineffective because he failed to follow

direction from or fully consult with his client when he decided

not to bring the newspaper incident to the court's attention.

          There is general agreement in the case law and the

rules of professional responsibility that the authority to make

decisions regarding the conduct of the defense in a criminal case

is split between criminal defendants and their attorneys.     See

Jones v. Barnes, 463 U.S. 745, 751 (1983); United States v.

Teague, 953 F.2d 1525, 1531 (11th Cir.), cert. denied, 113 S. Ct.

127 (1992); 1 American Bar Association Standards for Criminal

Justice § 4-5.2 (2d ed. 1980 & Supp. 1986) [hereinafter ABA

Standards].   While this general proposition is more clear than

precisely where to draw the dividing line, the Supreme Court has

provided some guidance that helps to narrow the issue.


the Effects of Juror Race on Jury Decisions, 92 Mich. L. Rev. 63,
80-99 (1993) (reviewing studies reporting that juror race
influences jury decisions); Sheri Lynn Johnson, Black Innocence
and the White Jury, 83 Mich. L. Rev. 1611, 1616-43 (1985)
(discussing research reporting influence of juror racial bias on
the determination of guilt); see also McCollum, 505 U.S. at 61
(Thomas, J., concurring) (recognizing the broad perception,
confirmed by "[c]ommon experience and common sense," that
"conscious and unconscious prejudice persists in our society and
that it may influence some juries"); id. at 68 (O'Connor, J.,
dissenting) ("It is by now clear that conscious and unconscious
racism can affect the way white jurors perceive minority
defendants and the facts presented at their trials, perhaps
determining the verdict of guilt or innocence."). Nor has the
Supreme Court ever held that ineffective assistance of counsel
occurs whenever an attorney exercises his or her professional
judgment based on the belief that such aversions and affinities
may influence a jury's verdict. We do not believe it would so
hold if presented with this case.

                                19
            In Jones, the Supreme Court held that although a

criminal defendant has an equal access right to an appeal under

the Due Process and Equal Protection Clauses, he has no

constitutional right to insist that appellate counsel advance

every non-frivolous argument the defendant wants raised.     463

U.S. at 754.    The Court's review of its prior jurisprudence in

Jones reflected a recognition that "the accused has the ultimate

authority to make certain fundamental decisions regarding the

case."     Id. at 751.   As examples of those "fundamental

decisions," the Court pointed to the decisions concerning whether

to plead guilty, to waive the right to trial by jury, to testify

in one's own behalf, to take an appeal, or to waive the right to

counsel.    See also Faretta v. California, 422 U.S. 806, 834

(1975).

            In support of its analysis, the Jones Court referred to

ABA Model Rule of Professional Conduct 1.2(a), which reserves

decisions on fundamental matters to the client, and then

expressly recognized the complementary proposition that non-

fundamental decisions are to be made by counsel on the basis of

his or her professional judgment exercised after consultation

with the client:
          "A lawyer shall abide by a client's decisions
          concerning the objectives of representation
          . . . and shall consult with the client as to
          the means by which they are to be pursued.
          . . . In a criminal case, the lawyer shall
          abide by the client's decision, . . . as to a
          plea to be entered, whether to waive jury
          trial and whether the client will testify."
          Model Rules of Professional Conduct, Proposed
          Rule 1.2(a) (Final Draft 1982) (emphasis
          added).


                                   20
          With the exception of these specified
          fundamental decisions, an attorney's duty is
          to take professional responsibility for the
          conduct of the case, after consulting with
          his client.

463 U.S. at 753 n.6.


          The ABA Standards for Criminal Justice recognize as

being among the non-fundamental issues reserved for counsel's

judgment "whether and how to conduct cross-examinations, what

jurors to accept or strike, [and] what trial motions should be

made . . . ."    ABA Standards § 4-5.2(b).    Several courts have

also recognized witness selection as being among the non-

fundamental decisions that counsel is entitled to make at trial.

E.g., United States v. Long, 674 F.2d 848, 855 (11th Cir. 1982)

(holding that counsel's failure to call alibi witnesses was not

ineffective assistance and stating:      "This Court will not second-

guess tactical decisions of counsel in deciding whether to call

certain witnesses."); State v. Davis, 506 A.2d 86, 92 (Conn.

1986) (holding that counsel's refusal to call a witness that his
client had instructed him to call did not violate defendant's

right to compulsory process); People v. Deere, 710 P.2d 925, 931

(Cal. 1985) (in bank); Wainwright v. Sykes, 433 U.S. 72, 93

(1977) (Burger, C.J., concurring) ("[The attorney], not the

client, has the immediate -- and ultimate -- responsibility of

deciding if and when to object, which witnesses, if any, to call,

and what defenses to develop.").      The Sixth Circuit Court of

Appeals has concluded that issue selection similarly falls in

this category.   Meeks v. Bergen, 749 F.2d 322, 328 (6th Cir.


                                 21
1984) (criminal defense counsel may make strategic decision to

assert self-defense rather than battered wife syndrome as defense

at client's murder trial).    The Eleventh Circuit Court of Appeals

has concluded that counsel has the ultimate authority to decide

issues concerning "what evidence should be introduced, what

stipulations should be made, what objections should be raised,

and what pre-trial motions should be filed."    Teague, 953 F.2d at

1531.

            Recent decisions of the First and Eleventh Circuit

Courts of Appeals recognize the prerogatives of defense counsel

with respect to non-fundamental matters in the course of

rejecting ineffective assistance of counsel claims.    In Routly v.

Singletary, 33 F.2d 1279 (11th Cir. 1994), cert. denied, 115 S.

Ct. 2627 (1995), the petitioner in a habeas proceeding maintained

that his counsel had provided ineffective assistance of counsel

during his homicide trial.    The jury had returned to the

courtroom during its deliberations and informed the court that it

had been unable to hear the testimony of the state's primary

witness.    Petitioner faulted counsel for not moving for a

mistrial on the ground that the jury was thus deliberating

without the benefit of an important segment of the trial

evidence.    The district court rejected the ineffective assistance

claim based on the fact that counsel's decision not to move for a

mistrial was a "deliberate tactical choice."    33 F.3d at 1289.

Counsel decided "not to move for a mistrial precisely because the

jury might have difficulty in coming to unanimous agreement




                                 22
concerning the content of the state's most important witness."

Id.   The court of appeals affirmed. Id. at 1282.

          In United States v. McGill, 11 F.3d 223 (1st Cir.

1993), the defendant corrections officer was alleged to have shot

and killed an inmate while acting out a "Russian roulette" scene

from the motion picture The Deerhunter (Universal Studios 1978).

The prosection wished to introduce a fifteen minute excerpt from

the film containing the scene allegedly mimicked.   Defense

counsel, over the strenuous objection of his client, stipulated

that the film could be exhibited to the jury in its entirety. The

court held that this was not ineffective assistance of his

client, observing:
          Based on his judgments concerning relevance,
          probative value, unfairly prejudicial impact,
          and how the judge would likely rule, counsel
          calculated that he would not prevail on a
          motion to exclude the film clip. In an
          effort to cut anticipated losses, he obtained
          a stipulation from the prosecution that the
          entire three-hour movie would be shown, in
          the expectation that the impact of the
          critical scene would be dissipated.

                             * * * *

          To avoid the shoals of ineffective
          assistance, an attorney's judgment need not
          necessarily be right, so long as it is
          reasonable. See Strickland, 466 U.S. at 687-
          91, 104 S.Ct. at 2064. Here, counsel made an
          unarguably reasonable choice. In acting on
          it, he extracted a fair concession for the
          ensuing stipulation, compelling the
          prosecution to show the entire film rather
          than zeroing in on the shorter, more powerful
          excerpt. And, finally, counsel's decision
          not to abide by the wishes of his client has
          no necessary bearing on the question of
          professional competence; indeed, in some
          instances, listening to the client rather


                                23
          than to the dictates of professional judgment
          may itself constitute incompetence.

11 F.3d at 227 (footnote omitted).


          The district court in this proceeding concluded that

Joseph was required to follow Weatherwax's direct instruction to

"do something," such as "file a motion."      We disagree.   Whether

to file a motion in this context was not a "fundamental

decision[] regarding the case."     Jones, 463 U.S. at 751. Wherever
the precise line between client and counsel decision-making

should be drawn, this decision fell squarely within the realm of

strategy and tactics and thus was a decision for Joseph to make.

          Some of the decisions deemed "fundamental" -- such as a

decision whether to plead guilty or to take an appeal -- relate

directly to the objectives of the representation.     Cf. Model

Rules of Professional Conduct Rule 1.2(a) (1994) (stating that a

lawyer must abide by a client's decisions concerning the

objectives of representation).    While the accused should receive

the full and careful advice of her lawyer before entering a

guilty plea or taking an appeal, these decisions ultimately must

be made by the defendant herself.      The lawyer can inform the

client of the likely consequences of those decisions, but only

the defendant knows whether she prefers to bear those

consequences or prefers to accept the costs and consequences of

going to trial or filing an appeal.

          Other fundamental decisions, such as whether to forego

assistance of counsel, to waive a jury trial, or to testify in

one's own behalf, in a sense may be viewed as strategic decisions


                                  24
because they relate to the means employed by the defense to

obtain the primary object of the representation -- ordinarily, a

favorable end result.   Nevertheless, these decisions are so

personal and crucial to the accused's fate that they take on an

importance equivalent to that of deciding the objectives of the

representation.   As the Court explained in Faretta, for example,

"although he may conduct his own defense ultimately to his own

detriment, his choice must be honored out of 'that respect for

the individual which is the lifeblood of the law.'"   422 U.S. at

834 (quoting Illinois v. Allen, 397 U.S. 337, 350-51 (1970)

(Brennan, J., concurring)).

          Joseph's decision not to bring the newspaper incident

to the court's attention cannot be regarded as fundamental.

First, Joseph's decision did not relate directly to the

objectives of his representation at that point -- acquittal of

first degree murder and the lesser charges.   Instead, Joseph's

decision concerned only the means employed by the defense to

reach that agreed-upon goal.   As the commentary to Model Rule of

Professional Conduct 1.2(a) states, while a lawyer must abide by

a client's decisions concerning the objectives of her

representation, a lawyer "is not required to . . . employ means

simply because a client may wish that the lawyer do so."

          Nor did Joseph usurp Weatherwax's authority to make a

fundamental personal decision comparable to decisions on whether

to forego assistance of counsel, to waive a jury trial, or to

testify in one's own behalf.   Instead, Joseph's decision

concerned whether he should object once he learned that a


                                25
distorted newspaper account of the trial testimony may have made

its way to the jury.   It was clearly an important decision, but

it was not one where respect for the individual's autonomy

requires us to disregard the desirability of having professional

judgment exercised in the client's best interest.

          We believe Joseph's decision not to object was

analogous to a strategic choice not to object to the admission of

inadmissible hearsay evidence tendered by the prosecution.     In

both situations, the consequence of a failure to object is that

the jury will (or in Weatherwax's case might) learn information

untested by the adversarial process that it would not otherwise

have learned.   In both instances, defense counsel has the power

to prevent that from happening, but decides that it is

strategically advantageous not to make the objection.    Contrary

to the district court's suggestion, in neither instance is the

defendant's right to a jury trial implicated.   In both instances

the decision is "the exclusive province of the lawyer," ABA

Standards § 4-5.2(b), and if, as here, that decision has a

rational basis, a court is without authority to second-guess

counsel's judgment call.



                                C.

          That Joseph's decision was not a fundamental one and

thus fell into "the exclusive province of the lawyer" does not

end our inquiry, however.   Important strategic and tactical

decisions should be made only after a lawyer consults with his

client.   ABA Standards § 4-5.2(b); Strickland, 466 U.S. at 688


                                26
(noting counsel's "duties to consult with the defendant on

important decisions and to keep the defendant informed of

important developments in the course of the prosecution").

           The interchange between Joseph and his client in the

courthouse on the last morning of the trial cannot fairly, in our

judgment, be described as a failure to consult.      Considering the

fact that the newspaper incident arose suddenly when counsel was

entering the courtroom on the last morning of the trial, this

interchange, while brief, was far from perfunctory.      Mrs. Lay

indicated that it lasted long enough for each of the family

members to speak and for Joseph to say "a lot of things during

the course of the conversation."     (J.A. 67.)   Joseph listened to

what the client's family had to report and to their views about

what should be done.   He evaluated that information and expressed

his own view of what was in Weatherwax's best interests.

Moreover, he explained the reasons behind his view -- that this

was the best jury Weatherwax could hope for.      Neither Weatherwax

nor his family complained at the hearing about Joseph not

listening or cutting them off short.     Their complaint was that

they wanted him to "file a motion" and he did not file one. While

this is true, it does not mean that Joseph failed to consult with

his client about the decision to be made.

           The requirement that counsel consult with his or her

client concerning issues on which counsel has the final word

serves a number of important purposes.     First, it assures that

the client will have the opportunity to assist with his own

defense.   As one court has noted, "[w]hile an attorney's


                                27
education and experience give him superior knowledge of

generalized technical information, '[t]he client possesses

superior knowledge of another sort -- knowledge of the facts and

circumstances of his case.'"   Stano v. Dugger, 921 F.2d 1125,

1146 n.33 (11th Cir.) (second alteration in original) (quoting

Mark Spiegel, Lawyering and Client Decisionmaking: Informed

Consent and the Legal Profession, 128 U. Pa. L. Rev. 41, 100

(1979)), cert. denied, 502 U.S. 835 (1991); cf. Strickland, 466

U.S. at 691 (noting that counsel's decision not to investigate a

matter must be evaluated in light of information that the

defendant might have supplied the lawyer).    Second, the client's

views and desires concerning the best course to be followed are

relevant considerations that must be evaluated and taken into

account by counsel.   Without consultation, the views and desires

of the client may not be known to counsel.    Third, consultation

serves to promote and maintain a cooperative client-counsel

relationship.   We have carefully reviewed the record in this case

and we perceive no threat to the accomplishment of any of these

objectives.   Weatherwax had an ample opportunity to convey the

information available to him and to share his own appraisal of

the situation, and nothing about the length or character of the

conference would appear to have strained the attorney-client

relationship between Joseph and Weatherwax.

          Consultation between counsel and client may in some

circumstances serve a fourth purpose.   If the client learns from

a consultation that counsel is going to pursue a strategy

contrary to the client's wish and the matter is important enough


                                28
to the client to forego the benefits of his current

representation, the consultation may afford the client an

opportunity to seek different representation.   Given that Joseph

was found to have given some assurance that he would "file a

motion" and not to have communicated his final decision to

Weatherwax, this fourth purpose requires further discussion.

          The constitutional duty to consult regarding issues on

which counsel has the last word requires only that counsel act

reasonably in light of the circumstances and what is likely to be

accomplished by a consultation.    When decisions must be made in

the heat of battle at trial, for example, it will often be

unreasonable to expect any consultation before the decision is

made and implemented, either because the opportunity for

meaningful consultation does not exist or because there is little

if anything to be gained by consultation.

          Even where there is an opportunity for consultation,

counsel may reasonably elect not to communicate his final

decision when counsel and client have previously exchanged their

views on the issue and the alternative of changing representation

is not a realistic one.   In many trial situations, the nature or

importance of the issue over which a client-counsel disagreement

occurs cannot be expected to cause the client seriously to

consider foregoing the advantages of the current representation.

In other situations, consideration of a change in representation

would be pointless because the court would not permit it at that

stage in the proceedings.




                                  29
          Here, Weatherwax did not contend, and the district

court did not find, that Weatherwax would have sought to change

representation had he been advised of Joseph's final decision on

the newspaper issue.   Nor did Weatherwax contend, or the district

court find, that Joseph should have anticipated that the district

court might permit a continuance and change of representation on

the last day of Weatherwax's jury trial.    Indeed, Weatherwax did

not argue, and the district court did not find, that there was an

opportunity for meaningful consultation with Weatherwax after

Joseph made his decision not to pursue the newspaper issue.

          We cannot say on the basis of this record that Joseph

acted unreasonably under all the circumstances in failing to tell

Weatherwax, prior to the jury's verdict,0 of his ultimate

decision on the newspaper issue.0    Joseph had rebuttal witnesses

0
   Nothing, of course, foreclosed Weatherwax from pursuing the
newspaper issue after the verdict, by himself or through other
counsel, as he ultimately did in this proceeding.
0
   The district court did not find that Joseph made his final
decision on the newspaper issue during the courtroom conference
and thus that Joseph was deliberately misleading his client when
he said he would "do something." Accordingly, we decline to
assume that this was the case. If such deception had occurred,
however, there would appear to be no causal nexus between that
deception and the alleged problem here -- the resolution of
Weatherwax's case by a jury that may have been exposed to a
distorted newspaper account of the trial testimony. Whether
Joseph made his final decision before or after the conclusion of
the conference, the district court was not at liberty to overturn
Weatherwax's conviction without making a finding, based on record
evidence, that without Joseph's assurances about filing a motion,
an objection would have been raised and the course of events
altered. This is not to say that Weatherwax had the burden of
showing that the newspaper article adversely affected the jury.
We do say, however, that habeas corpus relief on the basis of
Joseph's assurances would have been inappropriate where there was
no reason to believe a different jury would have decided
Weatherwax's case in the absence of those assurances.

                                30
to cross-examine, a jury instruction conference to attend, and a

summation to deliver.   Even assuming there was a fair opportunity

to consult further with Weatherwax, however, we do not believe

Joseph could reasonably be expected to have anticipated that

anything would be accomplished by taking that course.   On the

contrary, given the circumstances disclosed in the record, we

believe that reasonable counsel in Joseph's position would not

have believed either that Weatherwax would seriously consider a

change in representation or that, if he did, the court would have

permitted a change in representation at that stage of the

proceedings.   Not only would an extended continuance have been a

burden on the jury, the trial court would have no assurance that

new counsel would not insist on the same strategy upon which

Joseph was insisting.

          In short, after discussing the pros and cons of a

tactical decision with his client, Joseph made a reasonable

choice that was his to make.    His failure to advise his client of

that decision cannot be said to be unreasonable, and Weatherwax

has thus failed to carry his burden of overcoming the presumption

of constitutionally acceptable performance.



                                IV.

          The district court also reasoned that Joseph's decision

not to bring the newspaper incident to the court's attention was

a "breach of his duty as an officer of the court."    (Dist. Ct.

Op. at 16.)    Joseph's duty to the trial court, in the district

court's view, followed both from counsel's "duty to bring to bear


                                 31
such skill and knowledge as will render the trial a reliable

adversarial testing process," Strickland, 466 U.S. at 688, and

from the trial judge's repeated admonitions that the jury should

avoid reading articles about the trial.

           We express no opinion on whether Strickland or the

trial court's repeated admonitions support the district court's

theory that Joseph's duty as an officer of the court required him

to bring the matter to the court's attention.0    As we have

explained, Joseph acted as he did solely for the purpose of

serving what he believed to be the best interests of his client

and in a manner consistent with his other obligations to his

client.   Given this fact, even if Joseph had some duty to the

court to inform it of the possibility of jury misconduct, we

perceive no reason why the breach of that duty should require the

reversal of Weatherwax's conviction.     If counsel breaches a duty

to the court, this does not necessarily mean that the

representation of his client was ineffective.     Assuming that

Joseph did violate some ethical duty to the court that would

warrant disciplinary sanctions against him, that breach would

provide no justification for a remedy that would, in effect,

impose a sanction upon the government.    Indeed, we believe that

0
   The Weatherwax family did not report to Joseph a violation of
the court's order that jurors refrain from reading articles about
the case. Joseph's view that there likely had been no violation
of that order was not unreasonable. Moreover, the investigation
necessary to determine whether there had been a violation could
not be conducted without court approval and seeking such approval
was, in Joseph's professional judgment, inconsistent with his
duty of loyalty to his client. The issue of whether Joseph had
an ethical duty to the court to report the newspaper incident is,
accordingly, a debatable one.

                                32
overturning a conviction in a situation of this kind on the basis

of counsel's breach of an ethical duty to the court would create

a perverse incentive for defense counsel to "build in" reversible

error for their clients by violating their duties as officers of

the court.

             We accordingly hold that any breach of Joseph's duty to

the court would not support the judgment of the district court.



                                  V.

             For the foregoing reasons, the district court's

judgment directing Weatherwax's retrial or release will be

reversed and this case will be remanded with instructions that

his petition for habeas relief be denied.




                                  33
1
Government of the Virgin Islands v. William Weatherwax
No. 95-7126



LEWIS, Circuit Judge, dissenting.

          A naive assumption about race served as the sole basis for Joseph's "stra

decision" to ignore the wishes of his client regarding the newspaper incident.   I n

believe that the decision was unreasonable under prevailing professional norms; I a

believe that it was based upon an underlying assumption that was explicitly rejecte

unreasonable by the Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986) (reject

notion that it is reasonable to assume that black jurors will be partial to black

defendants solely on account of their shared race).   See Batson, 476 U.S. at 97.

Accordingly, I dissent.0

          Although the majority acknowledges the "racially charged" nature of this

do not believe it adequately pursues the extent to which race influenced Joseph's d

not to inform the court about the juror seen carrying a newspaper into the jury roo

which included an inaccurate and unfavorable article about his client's testimony.

view, in order to assess fairly whether Joseph's strategic choice was reasonable, w

candidly address the assumptions that influenced his decision.

                                            I.
0
      This case does not require us to decide the broader and admittedly more diffi
question of the reasonableness or legitimacy of trial strategies that are designed
appeal to the particular racial make-up of a jury. Rather, the views I express rel
specifically to the issue of whether a strategic decision, grounded exclusively upo
lawyer's assumptions about the proclivities of jurors based solely upon their race,
considered professionally reasonable when that decision runs counter to the express
of his or her client and increases the likelihood that that client's constitutional
to an impartial jury will be violated.


                                            2
          In determining whether Joseph's actions constituted a sound trial strateg

majority places great emphasis upon the fact that his decision stemmed from a belie

the "jury was the best that could be expected from Weatherwax's point of view." (Ma

at 16).   In light of this, the majority concludes, "the [strategic] decision not to

the court was reasonable `under prevailing professional norms.'"0   (Maj. Op. at 16).

other words, Joseph thought that "he had the best jury possible under the circumsta

and he made a judgment that many competent litigators would make under the same

circumstances." (Maj. Op. at 16).    Respectfully, I believe my colleagues' focus is

legally and logically misplaced.

          Arguably, most if not all decisions by counsel before, during and after a

can be considered strategic.    As a result, a finding that a particular decision was

strategic, in and of itself, cannot answer the question whether that decision falls

the "wide range of . . . competent assistance."    See Strickland v. Washington, 466

668, 694 (1984).   Put differently, not all strategic decisions are by definition

professionally reasonable.0    In order to determine whether a particular strategic d
0
      According to the majority, "[b]ringing the newspaper incident to the court's
attention would have created a likelihood that the court would either declare a mis
or excuse a juror whom Joseph felt favored the defense." (Maj. Op. at 16). A mist
the dismissal of a juror, however, would necessarily have required a finding that:
the newspaper article was read by one or more jurors; (2) that its contents were
prejudicial to Weatherwax; and (3) that a juror who read the article was actually
influenced by its prejudicial nature. See Government of the Virgin Islands v. Weath
20 F.3d 572 (3d Cir. 1994) (discussing Government of the Virgin Islands v. Dowling,
F.2d 134 (3d Cir. 1987)). If the court were to have found that a particular juror
presumably the white member of the jury seen carrying the newspaper -- should be di
(i.e., that he was actually prejudiced by reading the article), then it is totally
illogical to argue that Weatherwax would still have benefitted from the presence of
juror simply because the juror was white.
0
      In Government of Virgin Islands v. Weatherwax, 20 F.3d 572, 579 (3d Cir. 1994
first review of this case, we observed that "trial counsel's actions here would ind


                                              3
constituted "competent assistance," we must assess the underlying basis for that de

-- an inquiry that, in my view, is not sufficiently pursued by the majority.   Moreo

because the majority does not fully confront why Joseph felt that this was the best

possible jury from Weatherwax's perspective, its conclusion that Joseph's inaction

"reasonable `under prevailing professional norms'" strikes me as quite a leap, to s

least.

           The following hypothetical, I think, will help to illustrate my point.

           Suppose that John Doe, a black man, is charged with first degree murder f

shooting a white man, but claims that the killing was in self-defense.   Furthermore

suppose that Doe's jury is all white.   During the course of the trial Doe's attorne

decides not to call to the stand a black man, who was a witness to the crime, despi

Doe's request that the testimony be heard.

           On appeal, Doe brings an ineffective assistance of counsel claim in which

alleges that his lawyer was incompetent based upon his decision not to introduce th

eyewitness testimony of the black man, whom Doe felt potentially could have aided i

defense.   In response to this charge, Doe's lawyer claims that he chose not to call

individual as a witness because he made a professional judgment and concluded that

witness's testimony would have had no impact upon the jury.

that representation was deficient unless the district court determines he [Joseph]
to forego voir dire because he thought the jury was favorable to his client." I wa
member of the panel which decided that case, and I adhere to this statement insofar
is premised upon the notion that strategic decisions by counsel, including those ba
upon a lawyer's belief that a jury is favorable to his client, are presumptively
reasonable. In this case, however, the record developed on remand clearly demonstr
that Joseph's reliance upon the favorable make-up of the jury as an explanation for
inaction was unreasonable because it was motivated solely by an illegitimate race-b
stereotype.


                                             4
          Under the majority's logic, the lawyer's explanation that the witness was

called because the testimony would have been ineffectual would, standing alone, con

a sufficient basis upon which to conclude that Doe's counsel acted "reasonably `und

prevailing professional norms.'"   (See Maj. Op. at 18 (favorably citing United Stat

Long, 674 F.2d 848, 855 (11th Cir. 1982) (holding that counsel's failure to call al

witness was not ineffective assistance and stating:      "This Court will not-second gu

tactical decisions of counsel in deciding whether to call certain witnesses."))).

other words, the majority would not find it necessary to question why Doe's counsel

that the eyewitness's testimony was not worth introducing.

          Suppose, however, that the answer to the question the majority does not a

that Doe's attorney made his decision not because he believed that the witness or h

story would be incredible, but because he felt strongly that the testimony of a bla

person would simply carry no weight in the minds of an all-white jury because the v

was white.   Surely, the majority would not conclude that Doe's counsel employed a

reasonable strategy by allowing this type of outmoded racial stereotyping to influe

decision whether or not to call the witness.       To countenance such an approach, unde

guise of "strategic decisionmaking," would be to place a judicial imprimatur upon t

of evil that Batson and its progeny sought to bury.       I have no doubt that under suc

circumstances, we would not permit either a criminal defendant or our system of jus

risk being sacrificed to an odious form of racial reasoning disguised as a legitima

strategic judgment.




                                               5
           And yet, a close examination of the record in this case reveals that the

underlying why Joseph decided not to bring the newspaper incident to the court's at

is very similar to that of Doe's attorney.

           For example, in arguing to the district court that Joseph's decision was

reasonable and did not require a new trial, the attorney for the government stated
               As unlikable as it may be, we all have prejudices and prejudices
          may play at trials and Attorney Joseph, based upon his education and
          training but more his experience, told you that, typically speaking, I
          don't like Continentals on my juries . . .

                In this case I can say I guess fairly that Michael Joseph cut
           against the grain. He didn't do the same old thing this time. He was
           insightful. He said I have a different defendant with a different
           profile. . . . Three Continentals on this jury? I don't want to
           disturb this jury. I want to leave it the way it is. It was a
           tactical decision. He tried to get that jury. He accomplished the
           fact of getting that jury and once it was empaneled, he didn't want to
           disturb it.

           . . .

                He said . . . I wanted to keep this jury because I knew with
           three Continentals on there that he had a better chance.
(JA 84).   Moreover, the "Proposed Findings of Fact and Conclusions of Law," submitt

the government to the trial court, stated:
          Because the petitioner is Caucasian, and because he had been charged
          with killing a black man, Joseph decided that it was important to
          empanel as many Caucasians people on the jury as possible because he
          believed that Caucasians would identify with the petitioner. Given
          the nature of the charge, first degree murder, the Court finds that
          Joseph's strategy, in that regard, was eminently reasonable.

(JA 98) (emphasis added).
           Simply put, Joseph disregarded his client's request that he "do something

the newspaper incident because he felt that the three white jurors, solely because



                                             6
were white, would sympathize with Weatherwax.      In fact, Joseph's judgment was entir

motivated by race.     For example, he stated that "Continentals [i.e. white people] a

often retirees who are viewed as conservative and anti-crime."     (See Appellant's Br

n.4.)     This admission reveals that there was no reason whatsoever for Joseph to con

that the three white jurors would identify with Weatherwax other than their shared

Why else would persons who are "conservative and anti-crime" identify with an indiv

charged with first degree murder and illegal possession of a firearm?

             Joseph's troubling assumptions about the racial partisanship of the white

were so deep-seated that he was willing to risk allowing a white juror, who could h

been prejudiced by an unfavorable article written about his client's testimony, to

on the jury.0    In Joseph's testimony before the district court, he went so far as to

"even if I was [sic] told that the jury was reading the paper, it would not have ma

difference to me."     See Judge Brotman's Memorandum Opinion at 4.   In my opinion, to

extent such unfortunate assumptions might ever be considered reasonable, they simpl

cannot form the basis of a professionally reasonable strategic decision in light of

interests that weighed in favor of bringing the matter to the court's attention.

             On one side of the scale was Joseph's assumption that the white jurors wo

sympathize with Weatherwax based only on their shared race, an approach which,

predictably, backfired and which the Supreme Court explicitly rejected as unreasona

Batson.    On the merits, this assumption is undeserving of any weight, but if one we

pretend that it should carry any, one might conclude that it weighed in favor of no


0
      During the hearing before the district court, Mrs. Lay testified that Joseph
that the jury [sic] with the newspaper is a white man." (J.A. at 68).


                                               7
informing the court about the newspaper incident.0   But on the other side of the sca

were two legitimate and important considerations: (1) Weatherwax's explicit request

Joseph "do something" about the newspaper incident; and (2) the potential that a fa

to do so could jeopardize Weatherwax's constitutional right to an impartial jury.

balanced against one another the only professionally responsible and reasonable cho

Joseph was to inform the trial court of what had occurred.0
0
     As stated earlier, the unreasonableness of Joseph's assumption is demonstrated
fact that he was willing to risk allowing white jurors, who may have been prejudice
against his client by reading an unfavorable article about his client's testimony,
remain on the jury simply based upon their race. In my opinion, such a judgment is
professionally indefensible.

     In the majority's view, however, the underlying basis for Joseph's decision fi
support in a variety of social science research, which tends to show that jurors ar
fact partial to defendants of the same race. I do not dispute the legitimacy or ac
of these studies or theories. Rather, I simply believe that it is unreasonable to
that these "affinities" are so deep-seated that they would justify the risk of allo
potentially biased or prejudiced juror to remain on the jury solely due to his or h
race. For example, if Joseph had discovered that one of the white jurors was marri
relative of the crime victim, I am confident that the majority would not consider i
reasonable for Joseph to want to keep that white juror on the case simply because o
or her race. Thus, it seems clear to me that concerns over juror prejudice --parti
when raised by a client -- must trump assumptions about the racial partisanship of
0
      Even if I could conceive of a convincing argument that Joseph's decision cons
a reasonable strategy, which I cannot, I would still conclude that his actions fell
professional norms. Rather than completely ignore his client's wishes, the more
appropriate action for Joseph would have been to bring the matter to the attention
court, and then to ask the court not to poll the jury because of its "favorable" ma

      The majority contends that "had Joseph brought the newspaper incident to the
court's attention, the court would have had an affirmative obligation to conduct vo
. . . ." See Government of the Virgin Islands v. Dowling, 814 F.2d 134, 139 (3d Ci
1987) ("In every case where the trial court learns that a member or members of the
may have received extra-record information with a potential for substantial prejudi
trial court must determine whether the members of the jury have been prejudiced.")
(emphasis added) (Maj. Op. at 16-17 n.3). I disagree. As the majority itself note
"[t]he [newspaper] article . . . included no extra-record information about Weather
the crime." (Maj. Op. at 3 n.1) (emphasis added). Accordingly, I believe that by


                                            8
          Because Joseph's decision was motivated by improper, illegitimate, indefe

outmoded stereotypical assumptions about the proclivities of whites and blacks when

are called upon to sit in judgment of their fellow citizens, and because his decisi

far outside "the wide range of professionally competent assistance," to which Weath

was entitled, I would affirm the district court's order.   Accordingly, I dissent.




bringing the matter to the court's attention, Joseph would have accommodated the re
of his client, while simultaneously protecting his trial strategy. Moreover, altho
less desirable, once Weatherwax was found guilty of second-degree murder, this cour
action would have enabled Joseph to file a motion for a new trial based on the news
incident. See Fed. R. Crim. Proc. 33.


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