State v. McDowell
681 NW 2d 500, 272 Wis. 2d 488, 2004 WI 70 (2004)
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Rule of Law:
A defense attorney may not require a client to testify in a narrative format due to suspected perjury unless the attorney knows the client intends to testify falsely. Absent extraordinary circumstances, this knowledge must be based on the client's express admission of intent to lie.
Facts:
- An 18-year-old woman was sexually assaulted by two men with guns near a building at 4720 West Burleigh Street.
- The victim could not identify her attackers, but police recovered a sample of her saliva mixed with semen containing Derryle S. McDowell's DNA.
- McDowell's father lived in the building at 4720 West Burleigh Street.
- McDowell claimed that on the night before the assault, he and his girlfriend, Sunshine, were behind his father's building where she performed oral sex on him and he ejaculated.
- McDowell told his attorney, "I'll say what I need to say to help myself out and if I have to say something untruthful I'll say that."
- Just before testifying, McDowell informed his counsel that he intended to testify truthfully.
- During McDowell's direct examination, after asking three preliminary questions, his attorney received a note from his office's legal counsel instructing him to use a narrative format.
- The attorney immediately switched to a narrative format without first advising McDowell of the change.
Procedural Posture:
- Derryle S. McDowell was charged with robbery, kidnapping, and sexual assault in a Wisconsin circuit court, the trial court of first instance.
- On the first day of trial, McDowell's counsel informed the court that McDowell had fired him, but the court denied what it interpreted as a request for new counsel.
- A jury found McDowell guilty on all counts.
- McDowell filed a postconviction motion in the circuit court, alleging ineffective assistance of counsel.
- Following a hearing, the circuit court denied McDowell's postconviction motion.
- McDowell appealed to the Wisconsin Court of Appeals, the intermediate appellate court.
- The Court of Appeals affirmed the circuit court's judgment and order.
- McDowell, as petitioner, sought review from the Wisconsin Supreme Court, the state's highest court.
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Issue:
Does a defense attorney's use of a narrative questioning format constitute deficient performance when the attorney does not have an express admission from the client of an intent to testify falsely?
Opinions:
Majority - Bradley, J.
Yes, the attorney's performance was deficient. A defense attorney's performance is deficient if the attorney requires a client to testify in a narrative format without knowing the client intends to commit perjury, a standard that requires the client's express admission of such intent. The court adopted this high, bright-line standard to protect the defendant's Sixth Amendment rights and the attorney-client relationship from being undermined by an attorney acting as a judge of the client's credibility based on mere suspicion. Here, counsel's performance was deficient in two ways: (1) he used the narrative format despite believing his client intended to testify truthfully, and (2) he shifted to the narrative format without advising his client beforehand. However, this deficiency was not prejudicial because McDowell's defense was 'preposterous'—requiring the jury to believe the extraordinary coincidence of the victim's saliva landing on the exact spot of his ejaculate from the previous night—and the State's scientific evidence was overwhelming, with a one in six billion probability of a random DNA match. Therefore, there is no reasonable probability that the outcome would have been different with traditional questioning.
Concurring - Roggensack, J.
While agreeing with the ultimate decision to affirm, this opinion argues that counsel's performance was not deficient. The standard for 'knowledge' of perjury should not require a client's express admission but can be satisfied by 'objective, uncontradicted facts.' In this case, such facts existed: the DNA sample contained DNA from only two people (the victim and McDowell). McDowell's story—that his ejaculate mixed with the victim's saliva which contained another attacker's semen—was scientifically impossible, as it would have resulted in DNA from three people. Therefore, counsel had sufficient knowledge that McDowell was about to commit perjury, and switching to the narrative format was not deficient performance.
Analysis:
This decision establishes a high, bright-line standard in Wisconsin for what constitutes attorney 'knowledge' of client perjury. By requiring a client's express admission, the court prioritizes the attorney's role as a zealous advocate over their duty as an officer of the court, except in the clearest of cases. This ruling significantly narrows the circumstances under which an attorney can ethically use the narrative format, potentially compelling attorneys to participate in testimony they strongly suspect is false. The decision creates a strong protection for the attorney-client relationship and a defendant's right to present a defense, even one that seems implausible.
