1996 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Virgin Islands v. Weatherwax" (1996). 1996 Decisions. Paper 216.

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1 

 

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 
2 

 Attorney for Appellee 
3 

 

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 
4 

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. 
5 

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 
6 

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. 

* * * * 
7 

 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. 
8 

 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. 
9 

 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. 
10 

 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? 
11 

 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. 
12 

 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 
13 

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). 
14 

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. 
15 

. . . 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). 
16 

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 
17 

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. 
18 

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 
19 

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. 
20 

 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 nonfundamental 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). 
21 

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 nonfundamental 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 secondguess 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. 
22 

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 
23 

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 
24 

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 
25 

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 
26 

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 
27 

(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 
28 

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 
29 

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. 
30 

 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. 
31 

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 
32 

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. 
33 

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. 

 
1 
2 

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. 
3 

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
4 

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. 
5 

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. 
6 

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 
7 

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 t

"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). 
8 

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

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 
9 

 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.