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The Supreme Court considered on Tuesday whether a lawyer was wrong to concede a death row inmate’s guilt without his consent, and many justices seemed unwilling to second-guess a trial strategy aimed at saving the man’s life. On Election Day, the high court appeared ready to set aside a Florida Supreme Court decision to grant a new trial for Joe Elton Nixon. He was convicted in the 1984 murder of a woman he met at a Tallahassee mall. Chief Justice William H. Rehnquist, who revealed Monday that he is undergoing chemotherapy for thyroid cancer, did not participate in consideration of oral arguments for a second day. At issue is the court-appointed attorney’s decision to admit at trial that Nixon was responsible for the victim’s “horrible, horrible death” in hopes that his candor would persuade the jury not to impose the death penalty. Asserting a “complete breakdown in the adversarial process,” attorney Edward H. Tillinghast contended that Nixon was unfairly sentenced to death because his trial lawyer didn’t try to prove his innocence. Tillinghast was met with a barrage of skeptical questioning by justices wondering why they should second-guess Nixon’s attorney. Nixon had several opportunities to object when his lawyer told him of the strategy but didn’t, they said. “You said his lawyer acted without consent, … but he said nothing,” said Justice Ruth Bader Ginsburg, one of the court’s more liberal members. “Where a client doesn’t say yes and doesn’t say no, mustn’t a lawyer do what he thinks is best to do? Mustn’t a lawyer exercise his best judgment?” Conservative Justice Antonin Scalia agreed. “According to the lower courts, (conceding guilt) was a good strategy. I don’t know why you want counsel, when a client doesn’t answer, to take a course that gets him executed.” Florida prosecutors say Nixon tied Jeanne Bickner, a 38-year-old state worker, to trees with jumper cables and set her on fire. Facing substantial evidence against him, Nixon’s lawyer offered unsuccessfully to plea-bargain for life imprisonment before deciding to concede the man’s guilt at the beginning of trial. After he was sentenced to death, Nixon charged he was denied a Sixth Amendment right to counsel because his attorney had not argued his defense vigorously. Prosecutors countered that Nixon did not object to the strategy — ultimately unsuccessful — to build jury sympathy. The case hinges on a pair of Supreme Court decisions handed down in 1984 amid misgivings among some justices that punishments were sometimes imposed arbitrarily due to poor attorney representation. Thirty-seven states currently allow the death penalty, and about 3,500 murderers are on death row. The 1984 rulings limit inmates’ ability to claim a Sixth Amendment violation if their attorneys made a strategic choice not to pursue certain defenses at trial. The rulings provide exceptions, however, when counsel utterly fails to challenge the prosecution with “meaningful adversarial testing.” In a 5-2 decision last year, the Florida Supreme Court ordered a new trial after finding the lawyer did not effectively represent Nixon nor did the defendant agree to the lawyer’s strategy. George S. Lemieux, Florida’s deputy attorney general, told justices Tuesday that lawyers should be able to decide the best trial defense when a defendant isn’t communicative. “Our position is this is not a plea of guilty. This is a tactical retreat to save the man’s life,” said Lemieux, noting that Nixon’s attorney conducted 52 depositions and investigated Nixon’s life history as a part of a vigorous defense. “He did everything he could,” Lemieux said. The case is Florida v. Nixon, 03-931. Copyright 2004 Associated Press. All Rights Reserved. This material may not be published, rewritten, or redistributed.

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