State v. Hischke
639 N.W.2d 6, 2002 Iowa Sup. LEXIS 17, 2002 WL 87055 (2002)
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Rule of Law:
A defense attorney does not provide ineffective assistance of counsel by informing the court of a client's intent to commit perjury, provided the attorney is convinced with good cause to believe the client's proposed testimony will be deliberately untruthful; a standard of 'actual knowledge' is not required.
Facts:
- Police executed an arrest warrant for Eric Twesme at his apartment, where Mark Hischke was also present.
- In the apartment, which contained drug paraphernalia, an officer saw a leather jacket draped over the chair where Hischke had been sitting.
- Twesme denied ownership of the jacket, after which Hischke admitted the jacket was his but stated he was not responsible for anything in its pockets.
- A consent search of the jacket revealed a small bag of marijuana.
- During his initial consultation with his attorney, John Bishop, Hischke admitted the marijuana belonged to him.
- Shortly before trial, after learning he faced an enhanced sentence for a third offense, Hischke told Bishop the marijuana was not his and that he had only been 'taking the rap' for Twesme.
Procedural Posture:
- The State charged Mark Hischke with possession of marijuana in the district court.
- On the day trial was to begin, Hischke's defense counsel, John Bishop, filed a motion to withdraw.
- Bishop informed the trial court that he believed Hischke intended to commit perjury by denying ownership of the marijuana.
- The trial court denied the motion to withdraw but ruled that Hischke would not be permitted to testify regarding the ownership of the marijuana.
- Hischke declined to testify, and a jury found him guilty as charged.
- Hischke appealed his conviction to the Supreme Court of Iowa, arguing he received ineffective assistance of counsel.
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Issue:
Does a defense attorney provide ineffective assistance of counsel by informing the court of a client's intent to commit perjury when the attorney's belief is based on being 'convinced with good cause,' rather than having 'actual knowledge,' that the testimony would be false?
Opinions:
Majority - Streit, J.
No. A defense attorney's performance is not deficient when, convinced with good cause that a client intends to commit perjury, the attorney informs the court. The court reaffirmed the standard from State v. Whiteside, which requires that counsel be 'convinced with good cause to believe the defendant's proposed testimony would be deliberately untruthful.' The court rejected the 'actual knowledge' standard proposed by Hischke, reasoning it would be virtually impossible to satisfy and would 'eviscerate' professional responsibility rules against presenting false evidence. Applying the 'good cause' standard, the court found Bishop’s belief was reasonable based on Hischke's initial admissions to both police and counsel, the convenient timing of his changed story immediately after learning of a potential enhanced sentence, and other corroborating facts like the presence of a syringe in Hischke's pocket. Because counsel's performance was not deficient, the court did not need to address the prejudice prong of the ineffective assistance claim.
Concurring - Carter, J.
No. While the majority correctly applies the 'good cause' legal standard and affirms the conviction, the action taken by defense counsel was improper. An attorney who believes a client will commit perjury should never directly advise the court of this belief, as it irreparably damages the client's case. The proper course of action is to first attempt to dissuade the client, and failing that, to seek a 'quiet withdrawal' citing only an unspecified ethical conflict. If withdrawal is denied, counsel should proceed with the examination in a way that avoids eliciting the perjured testimony and make no reference to it in closing arguments. This approach satisfies the attorney's ethical obligations without needlessly prejudicing the client.
Analysis:
This decision solidifies Iowa's 'convinced with good cause' standard for when an attorney may act on a belief that a client will commit perjury, explicitly rejecting a higher 'actual knowledge' standard. It affirms that an attorney's duty as an officer of the court to prevent fraud can, under certain circumstances, override the duty of zealous advocacy. The special concurrence, however, highlights a critical, unresolved tension regarding the method of handling client perjury, arguing that direct disclosure is too prejudicial and that less harmful procedural alternatives exist. This leaves an open question for future cases regarding the appropriate steps an attorney should take after forming a good-cause belief of impending perjury.
