It's Okay (sort of) to tell your client to lie, but be sure to advise her correctly on when to move to withdraw the plea.

Anderson v. Minnesota, 746 N.W.2d 901, Minn.App., April 08, 2008.

Defendant was charged with a gazillion counts of CSC; she was having sex of all kinds with a minor for whom she (and her husband) were foster parents. Four days into jury selection, she plead guilty to one count of CSC III under what turned out to be a false impression that the judge would only give her four months in the workhouse; on the day of sentencing, she learned that the judge intended sending her to prison for forty-one months, rather than to four months in the workhouse. She asked her attorney about withdrawing the plea before sentencing; the lawyer said that this would only piss off the judge and put her at risk of an even higher sentence. She deferred moving to withdraw the plea until after sentencing, which the trial judge promptly denied.

Defendant claimed that her admission of guilt was a lie, urged upon her by her attorney. Between the plea and the sentencing she told everyone who would listen, including the PSI writer, that she was innocent and had only plead guilty to get what she thought, erroneously, would be a four month stretch at the workhouse. On appeal, she argued that she had received ineffective assistance of counsel because (1) her attorney told her to lie during the plea hearing but neglected to tell her to continue to lie between the plea hearing and the sentencing hearing; and (2) her attorney incorrectly advised her not to move to withdraw the plea until after sentencing so as not to annoy the judge. She loses on the first ground but gets a remand on the second..

It turns out that it’s impossible for defense counsel to commit a Strickland violation by advising your client to lie. First, there’s the oath to tell the truth that is administered to the defendant. This overcomes, apparently, any bad legal advice, like don’t tell the truth. Here’s how the court explained this:

Anderson’s sworn duty to tell the truth, as directed by the oath, is too fundamental and obvious an obligation to be dismissed by contrary advice to violate it, even if suggested or encouraged by her attorney.

Second, she suffered no prejudice from the alleged advice to lie. She got what she was seeking: the court’s acceptance of the guilty plea. (That she did not get the sentence she was expecting in return seems to have escaped the court’s notice.)

Third, the trial court made no finding that defense counsel instructed defendant to lie. How could it? The court says that all defense lawyers know that their clients are guilty so if they initially profess innocence during privileged conversations but admit guilt before the court, what’s the problem? Indeed, counsel should be relieved that the defendant has “seen the light,” a vision undoubtedly brought on by the aforementioned oath.

Whether the defendant privately admits guilt or unconvincingly asserts innocence, her counsel’s duty to assess the relative strengths and weakness of the prosecution’s case and the likelihood of success at trial remains the same when advising whether to enter a guilty plea.

Now to the really good part: neglecting to tell defendant to keep up the ruse. This, it turns out, has no constitutional implications whatsoever:

In our review of the case law, we conclude that it would be a significant departure from traditional Sixth Amendment jurisprudence to hold that Anderson’s trial counsel violated her constitutional rights by failing to exact from her a more thorough ruse.

As to ground two, because there is a different legal standard – fair and just versus manifest injustice – the advice to wait until after sentencing to move to withdraw the plea falls below Strickland, so defendant gets a remand for the trial court to reconsider her withdrawal motion under the pre-sentencing standard.

This is great reading. Enjoy.