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Conceding one charged robbery at trial while disputing the second was not ineffective assistance of counsel

The defendant in U.S. v. Darden was charged with obstructing commerce by robbery and brandishing a firearm in connection with two robberies. In the first underlying incident, an armed robbery of a Tampa, Florida convenience store, the gunman fled without apprehension. In the second incident Darden was shot by the pursuing store clerk. In the second incident Darden was apprehended and admitted to the robbery. Charged with both robberies, Darden went to trial placing the defense counsel in the position of having to vigorously defend against both robbery charges or concede guilt as the second robbery to save credibility in defending Darden against the first robbery. Apparently without consulting Darden, his counsel chose the latter. At trial, Darden’s attorney conceded the evidence was enough to convict of the second robbery, but not enough for a guilty verdict on the first robbery. The attorney argued that by charging Darden with both robberies, the government was trying to “buy a verdict and get one free.”

After his convictions were affirmed on appeal, Darden brought a 2255 collateral challenge claiming ineffective assistance of counsel arguing that under the Supreme Court’s decision in U.S. v. Cronic, the decision to concede guilt on one of the two charges without consulting his client was presumptively prejudicial. In Cronic the Supreme Court held that if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” prejudice is presumed, making unnecessary the 2-step analysis in Strickland v. Washington, which requires that the defendant show 1) deficient performance by counsel and 2) the deficiency caused substantial prejudice to the case.

The issue facing the 11th Circuit was to determine whether the defense counsel failed entirely to subject the government’s case to meaningful adversarial testing. In other words, whether to analyze Darden’s ineffective assistance claim under Strickland or under Cronic. The 11th Circuit held that Cronic did not apply and Darden would have to show he suffered substantial prejudice by his counsel’s failure to consult with him about the trial strategy.

The defense mounted a viable defense by strategically conceded guilt on one charge in order to order to more credibly advance the defendant’s case the other count. Though this issue had yet been addressed in the 11th Circuit, other circuits have found that conceding guilt is a viable tactic in order to lead the jury towards leniency on the charges and to argue later for a lighter sentence. The court found that Cronic applies only where defense counsel “entirely fails” to subject the case to “meaningful adversarial testing.” The district court had found no prejudice, even if there was deficient performance by not consulting with Darden, in view of the overwhelming evidence of Darden’s participation in the second robbery. The result for Darden would have been the same even without defense counsel’s concession of the second robbery.