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DECISIONS CRIMINAL PRACTICE in his opening statement, a Florida criminal defense lawyer, allegedly without his client’s consent, conceded that his client had committed murder and made references to his client’s planning of the killings. The Florida Supreme Court on July 17 said that the lawyer’s statements constituted ineffective assistance of counsel per se and reversed the client’s first-degree murder conviction. Harvey v. Florida, No. SC95075. Harold Harvey confessed to murdering two people while robbing their home. At trial, in the wake of his attorney’s opening statements, the jury convicted Harvey of first-degree murder and sentenced him to death. Moving for post-conviction relief, Harvey argued that his lawyer’s opening constituted ineffective assistance of counsel. The state argued that the lawyer’s comments were merely a trial strategy necessitated by Harvey’s confession. The trial court denied Harvey’s motion, and he appealed. Reversing, the state’s high court applied the test articulated in the U.S. Supreme Court’s 1984 decision, United States v. Cronic, instead of the 1984 test the high court set forth in Strickland v. Washington, which required a showing of prejudice. “Trial counsel’s comments were the functional equivalent of a guilty plea,” it said, “and for this reason, we find that trial counsel’s performance failed to subject the prosecution’s case to meaningful adversarial testing under Cronic and therefore must be presumed ineffective.”

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