UNITED STATES v. SCHAFFER (2024)

DECISION & ORDER

I. INTRODUCTION

The United States of America (the “Government”) obtained a superseding indictment that charged defendant Jerod Schaffer (“Schaffer” or “defendant”) with the production, receipt, and possession of child pornography.¹ Briefly stated, this eight-count indictment alleged that defendant, a registered sex offender, induced a fourteen-year-old girl he met online to engage in sex acts with him that he recorded, stored on his phone, and shared on social media.

The Sixth Amendment guaranteed Schaffer the services of an attorney to assist in a defense of these charges. But because defendant could not afford to retain his own lawyer, the Magistrate Judge appointed the Office of the Federal Public Defender to represent him. Defendant consulted with his appointed counsel, made some pre-trial motions, and ultimately decided to put the Government to its burden by taking the charges to trial.²

A jury heard the case in the first week of May 2023. The proof took less than two days. The defense did not put in any evidence. Former Assistant Federal Public Defender John Gilsenan handled closing argument. Near the end of his summation, Mr. Gilsenan—suddenly and without any indication that he had consulted with anyone—affirmatively conceded to the jury that his client was guilty of the receipt and possession charges in Counts Seven and Eight, but urged them to acquit defendant on the production charges alleged in Counts One through Five:

Now I want to talk about Counts Seven and Eight. Maybe this will make your decision easier, I don't know. But Count Seven and Eight, he knew she was underage and he should have got -- he should have deleted it, should have called the police. He's guilty of Count Seven and Eight. He had the child pornography in his Snapchat. He could have done something about it, but he was in love with her. That's not a defense. That's his mistake. That's what he did. He's not a child pornographer. He's somebody who got stupid in love and then couldn't back out when it got out of hand. So, please, by all means, find him guilty of Count Seven and Eight.

․

Relationships aren't black-and-white. They are not easy. Things happen. People do things. And sometimes they do stupid things. And that's why I want you to convict him of Counts Seven and Eight. The Counts One through Five, those are for the monsters, folks. Those are for the people who hurt kids, put them online and ruin their lives. The people who go on dark web chat rooms and talk about making child pornography, those are the monsters. [Defendant] is not a monster. I'm asking you to find him not guilty on Counts One through Five.

Dkt. No. 115 at 571:19–572:5, 573:6–15 (emphases added).

Mr. Gilsenan had a reason to make this spur-of-the-moment decision to violate his client's constitutional rights. As a lawyer, Mr. Gilsenan knew something that the jurors did not: a conviction on Counts Seven and Eight carried a significantly shorter mandatory minimum prison sentence than a conviction on one or more of the production charges alleged in Counts One through Five.

The gambit almost worked. The jury accepted Mr. Gilsenan's concession of Schaffer's guilt: they voted to convict on Counts Seven and Eight. But the jury rejected, at least in part, Mr. Gilsenan's invitation to acquit his client of the production counts. Although the jurors were unable to reach a verdict on Counts One, Two, and Five, and even acquitted defendant on Count Four, the jury still voted to convict him on the production charge in Count Three.³ By itself, this count of conviction was enough to expose defendant to the kind of serious prison time that Mr. Gilsenan's concession was calculated to avoid.

Soon after the verdict, the Federal Public Defender requested that her Office be relieved and substitute counsel be appointed to explore whether Schaffer might have a claim for ineffective assistance of counsel. In a series of filings, it came to light that Mr. Gilsenan had not obtained defendant's authorization (and in fact, had not even consulted with his client) about any plan to concede guilt on Counts Seven or Eight during the summation.

The FPD's Office was relieved and substitute counsel was appointed on Schaffer's behalf.⁴ Defendant has now moved for a new trial under Rule 33 of the Federal Rules of Criminal Procedure on the ground that Mr. Gilsenan's unauthorized concessions violated his constitutional right to make certain fundamental choices about his own defense.

The motion has been fully briefed and will be considered on the basis of the submissions without oral argument.

II. LEGAL STANDARD

Under Rule 33, “the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). Where, as here, a defendant seeks “to raise ineffective assistance claims after conviction but prior to sentencing,” the Second Circuit has held that Rule 33 is “the proper procedural avenue” through which to do so. United States v. Brown, 623 F.3d 104, 113 n.5 (2d Cir. 2010). To resolve an ineffective-assistance claim, the trial court should “offer the assertedly ineffective attorney an opportunity to be heard and to present evidence, in the form of live testimony, affidavits, or briefs.” Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir. 1998) (per curiam).⁵

III. DISCUSSION

Schaffer argues that Mr. Gilsenan's concession of guilt was unauthorized and therefore violated his constitutional right to make fundamental choices about his own defense. In support of this argument, defendant has offered an affidavit in which he avers that Mr. Gilsenan “never advised” him that he planned to concede guilt to the jury on Counts Seven or Eight. Schaffer Aff., Dkt. No. 119-2 ¶ 4. According to defendant, Mr. Gilsenan “made the decision to pursue this strategy without consulting [him] regarding the ramifications and the consequences of such a concession.” Id. ¶ 5. Defendant avers that he “did not consent to this decision,” and that he “would not have consented” to it if Mr. Gilsenan had “discussed it with [him].” Id. ¶¶ 4–5.

In opposition, the Government argues that Mr. Gilsenan's concession was a strategic choice consistent with Schaffer's agreed-upon trial objective; i.e., to avoid conviction on the five production counts, which carried the prospect of a much longer prison sentence. According to the Government, the defense left Counts Seven and Eight in for the trial for two strategic reasons, “neither of which was to contest guilt”: (1) to assert a mistake-of-age defense that was unavailable on the production charges; and (2) to invite the jury to consider a compromise on these lesser charges in light of the fact that the Government's evidence was too strong to hope for an across-the-board acquittal.

In support of these arguments, the Government has offered a responsive declaration from Mr. Gilsenan. Gilsenan Decl., Dkt. No. 122-1. According to Mr. Gilsenan, the “primary defense goal at trial” was to “try [to] defeat the [production] charges.” Id. ¶ 7. In Mr. Gilsenan's view, he “had the authority” to concede Schaffer's guilt on Counts Seven and Eight “based on extensive discussions ․ before and during trial resulting in an agreed-upon strategy to invite the jury to reach a compromise verdict.” Id. ¶ 3. As he explains:

Schaffer was fully apprised of the strategy of using the receipt/possession counts strategically to leverage the mistake-of-age defense and create the best circumstances for a potential compromise verdict, and he agreed with it. He further instructed me to use my professional judgment to try to accomplish the agreed-upon goal of maximizing the chances of an acquittal on the [production] charges. Schaffer never withdrew his consent to this approach or instructed me not to follow through with it during closing argument. I did not reconfirm the approach with Schaffer before closing argument because nothing prior to or during trial led me to believe that he had changed his mind or no longer wanted me to use my judgment to try to defeat the [production] counts by not contesting the receipt/possession charges.

Gilsenan Decl. ¶ 9.

This dispute is grounded in the Sixth Amendment, which provides a set of “procedural safeguards” to criminal defendants. United States v. Rosemond, 958 F.3d 111, 119 (2d Cir. 2020). These safeguards include “the Assistance of Counsel.” McCoy v. Louisiana, 584 U.S. 414, 421, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018). And this language guarantees more than just a warm body at counsel table: “the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (emphasis added).

But as the Supreme Court has cautioned, “[a]n assistant, however expert, is still an assistant.” Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Thus, because the defendant is the only one who will “suffer[ ] the consequences if the defense fails,” id. at 820, 95 S.Ct. 2525, the Sixth Amendment “contemplat[es] a norm in which the accused, and not a lawyer, is master of his own defense,” Gannett Co. Inc. v. DePasquale, 443 U.S. 368, 382 n.10, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).

This constitutional norm creates a division of responsibility between an attorney and his client. The attorney is tasked with handling trial strategy and management: counsel gets to decide “what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.” Gonzalez v. United States, 553 U.S. 242, 248, 128 S.Ct. 1765, 170 L.Ed.2d 616 (2008) (cleaned up). But the client retains decision-making authority over fundamental aspects of the defense: only the defendant can decide “whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal.” McCoy, 584 U.S. at 422, 138 S.Ct. 1500.

Ordinarily, the constitutional effectiveness of an attorney's assistance is evaluated under the standard from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which is highly deferential to counsel's strategic choices. But Schaffer argues that Mr. Gilsenan violated his constitutional right to make decisions about a fundamental aspect of his defense. When a client's autonomy, rather than counsel's competence, is in issue, Strickland does not apply. McCoy, 584 U.S. at 426, 138 S.Ct. 1500. Instead, the legal guideposts for assessing that kind of conduct must be borrowed from two of the Supreme Court's death penalty cases.

The first case is Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). In Nixon, the defendant was charged with capital murder. Id. at 178, 125 S.Ct. 551. His trial attorney believed the state's evidence was overwhelming. Id. at 180–81, 125 S.Ct. 551. Therefore, he planned to strategically concede his client's guilt, “preserving his credibility in urging leniency during the penalty phase.” Id. at 181, 125 S.Ct. 551.

The attorney tried several times to explain this guilt-phase concession strategy to his client. Nixon, 543 U.S. at 181, 125 S.Ct. 551. But the defendant, who was almost certainly suffering from some form of a mental illness, “was generally unresponsive during their discussions,” “never verbally approved or protested [this] proposed strategy,” and gave his attorney “very little, if any, assistance or direction in preparing the case.” Id.

The attorney eventually pursued the proposed concession strategy without his client's explicit authorization. Nixon, 543 U.S. at 182, 125 S.Ct. 551. The jury found the defendant guilty and recommended a sentence of death, which the trial judge imposed. Id. at 184, 125 S.Ct. 551. On direct appeal, the defendant's new counsel argued that the attorney had violated the defendant's rights by conceding his guilt without his “express consent.” Id. at 185, 125 S.Ct. 551. The case worked its way up to the state supreme court, which reversed and remanded for a re-trial. Id. at 186, 125 S.Ct. 551.

The Supreme Court granted certiorari to determine whether the former attorney's “failure to obtain the defendant's express consent to a strategy of conceding guilt in a capital trial automatically render[ed] [his] performance deficient.” Nixon, 543 U.S. at 186, 125 S.Ct. 551. As relevant here, the Court concluded that an attorney is permitted to reasonably implement that strategy as long as “counsel informs the defendant” and “the defendant is unresponsive.” Id. at 192, 125 S.Ct. 551 (emphasis added).

The second Supreme Court case is McCoy v. Louisiana, 584 U.S. 414, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018). In McCoy, the defendant was charged with three counts of first-degree murder, a capital offense. Id. at 418, 138 S.Ct. 1500. As in Nixon, the defendant's attorney believed the state's evidence was “overwhelming.” Id. Therefore, the attorney tried to convince his client to concede that he had committed the murders. Id. The attorney hoped this strategy would help him more credibly argue against a death sentence in the penalty phase of the case. Id.

However, unlike in Nixon, the defendant in McCoy strenuously objected, instructed his attorney not to make this concession of guilt, and directed him to maintain his innocence. McCoy, 584 U.S. at 419, 138 S.Ct. 1500. But the attorney ignored these instructions: he told the jury there was “no way reasonably possible” they could hear the evidence and reach “any other conclusion than [that the defendant] was the cause of [the victims’] death.” Id.

The jury found the defendant guilty on all three counts and sentenced him to death. McCoy, 584 U.S. at 420, 138 S.Ct. 1500. Thereafter, the defendant secured new counsel and moved for a new trial on the ground that the state trial court had violated his constitutional rights by permitting his former attorney to concede guilt over his objection. Id. That motion was denied. Id. The state supreme court later affirmed. Id.

The Supreme Court granted certiorari to determine whether trial counsel had violated his former client's constitutional rights by conceding guilt over “the defendant's intransigent and unambiguous objection.” McCoy, 584 U.S. at 420, 138 S.Ct. 1500. As relevant here, the Court emphasized that a defendant enjoys a Sixth Amendment-protected “autonomy” right to decide “on the objective of his defense,” which may be to maintain his innocence, even when faced with overwhelming evidence of guilt. Id. at 417–18, 138 S.Ct. 1500. Thus, because “a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel's experience-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty,” id. at 417, 138 S.Ct. 1500, the Supreme Court reversed and remanded for a new trial. Id. at 428, 138 S.Ct. 1500.

The parties agree that Nixon and McCoy provide the basic framework for resolving this dispute. Schaffer, for his part, argues that Mr. Gilsenan's concession was unplanned and unauthorized and therefore violated his so-called “autonomy” right recognized in McCoy. The Government, for its part, argues that this case is closer to the passive or unresponsive defendant in Nixon, who was advised of the proposed concession and failed to object.

The Government's argument must be rejected. Mr. Gilsenan affirmed in his declaration that he engaged in “extensive discussions” with Schaffer about formulating a strategy to “defeat the exploitation charges,” and further affirmed that these “extensive discussions” took place with his client “before and during trial.” However, Mr. Gilsenan never once advised defendant that the “agreed-upon trial objective” might include the affirmative concession of his guilt as to two federal felonies.

Schaffer's affidavit is unequivocal: he avers that Mr. Gilsenan “never advised” him “that he was prepared to [tell] the jury that [he] was guilty of Counts 7 and 8” and that he “pursued this strategy without consulting [him] regarding the ramifications and the consequences[.]”

Contrast these clear, unequivocal assertions with the equivocations in Mr. Gilsenan's responsive declaration. Mr. Gilsenan, an experienced federal criminal practitioner, knows how to place a fact in dispute. In drafting his response, Mr. Gilsenan was also on notice of the specific nature of his former client's accusation against him; i.e., that he never advised Schaffer that he might concede his guilt to the jury.

Despite this knowledge and his experience, and despite spilling a lot of ink establishing that he sought and obtained Schaffer's general “consent” to use Counts Seven and Eight “strategically to leverage the mistake-of-age defense” and to “maximiz[e] the chances of an acquittal” on the production counts, what is conspicuously absent from Mr. Gilsenan's sworn declaration is an unequivocal statement that he ever sought, or ever attempted to obtain, authorization from defendant, either orally or in writing, to concede guilt to the jury on Counts Seven or Eight.

This distinction is absolutely decisive. It is permissible strategy to advise one's client to decline to plead guilty to certain charges, or to decide to “not contest[ ]” those charges during the trial, in an effort to “create the best circumstances for a potential compromise verdict,” even though doing so is likely to, or almost certain to, lead to a conviction on those charges.

It is something else entirely to affirmatively tell the jury that your client should be found guilty of two charged felonies. To be permissible, that would require more than just the client's generalized consent to a trial strategy that “maximize[s] the chances of an acquittal” on some other charged count. It is not enough to say that the client had “expressed a willingness to plead guilty” to those charges before trial, either. Even under Nixon’s logic, the attorney remains obligated to clearly advise his client when the “trial strategy” could include the concession of guilt on two charged federal crimes, and he must give his client an opportunity to agree or to object.

Schaffer was never given that opportunity. Defendant avers that Mr. Gilsenan did not advise him of a plan to affirmatively concede guilt and did not consult with him about “the ramifications and the consequences of such a concession.” Mr. Gilsenan's responsive declaration fails to even suggest that a conversation about this critical aspect of his alleged “trial strategy”; i.e., affirmatively conceding guilt as to two charged federal crimes, was ever broached with defendant in advance of the closing argument.

Thus, Mr. Gilsenan's sworn declaration has failed to place in dispute the essential material fact: he did not discuss with Schaffer a plan that included an affirmative concession of guilt as two charged crimes and, as a result, he was not authorized to concede defendant's guilt on either of those charges.

This conclusion is supported by various filings offered by the Office of the Federal Public Defender soon after trial occurred. In seeking to be relieved as counsel, the FPD filed affidavits tending to establish that Mr. Gilsenan's conduct was unauthorized. Dkt. Nos. 94-1, 98-1. At a later hearing on this request to withdraw as counsel for defendant, the FPD represented to the Court: “I just think that during the heat of the summation, Mr. Gilsenan made an executive decision to pursue that strategy without consulting with [him].” Dkt. No. 103 at 3:25–4:2. Notably, these representations were made after the FPD had consulted with Mr. Gilsenan about what occurred at trial.

The next question is how to square this unauthorized concession with the Supreme Court's holdings in Nixon and McCoy. The best way to synthesize these cases is to view them in light of the constitutional norm that divides responsibility between the client, who is in charge of his own defense, and the attorney, who ranks as the client's professional assistant.

On the one hand, the attorney is the legal expert. He is charged with making strategic choices about the defense. He must explain the strategy to his client and seek authorization if the plan of attack involves a concession of guilt on charged crimes. On the other hand, the client is the one with skin in the game. He is charged with deciding the objective of his defense and must object if the planned concession of guilt conflicts with his own goals.

This dual-burden, division-of-responsibility way of thinking about Nixon and McCoy fits comfortably within the Second Circuit's view of a defendant's Sixth Amendment-secured right to autonomy. In United States v. Rosemond, 958 F.3d 111 (2d Cir. 2020), the attorney for the defendant in a non-capital case conceded an element of one of the charged crimes during summation. Id. at 122. After the defendant was convicted, he moved for a new trial on the ground that he had objected to his trial counsel's strategy “both before and during trial.” Id. at 119. According to the defendant, this concession was unauthorized and violated his Sixth Amendment autonomy right. Id. at 115.

The Second Circuit rejected that argument and affirmed. In doing so, the panel emphasized that the scope of the Sixth Amendment right to autonomy is narrow: it “is limited to a defendant's right to maintain his innocence of the charged crimes.” Rosemond, 958 F.3d at 123. Thus, as the panel explained, a range of “strategic choice[s],” though closely related to a concession of guilt, remain the lawyer's province: counsel may reasonably “concede an element of the charged crime” or even “admit their client committed certain acts while challenging whether those acts fit within the charged crime.” Id. at 121–23.

Critically, though, Second Circuit's opinion in Rosemond still draws a bright-line rule; i.e., counsel cannot affirmatively concede guilt on a charged crime without putting the client on notice of the plan and giving them some kind of opportunity to raise an objection. This notice does not necessarily have to be shown on the record. What matters is that the attorney is willing to affirm under oath that it actually happened. Mr. Gilsenan never did.

For example, in United States v. Abboud, the defendant was charged with embezzlement and bank fraud. 2022 WL 3595055, at *4 (E.D.N.Y. Aug. 23, 2022). During the trial, the defendant's attorneys conceded her guilt as to the bank fraud counts. Id. at *1. After the defendant was convicted, she moved for a new trial on the ground that she had not authorized her counsel to make this concession of guilt. Id. at *2–*3.

The court took some evidence and then rejected that argument because the record showed that the attorneys had repeatedly advised the defendant that they planned to concede her guilt on those counts and she had failed to object.⁶ Abboud, 2022 WL 3595055, at *4. In reaching that conclusion, the court recognized that, consistent with Nixon, the defendant's “lawyers did not need to obtain [her] express consent before conceding guilt” as long as they had “discuss[ed] that decision with her.” Id. (emphasis added).

Schaffer was never given a chance to object. An attorney simply cannot do what Mr. Gilsenan did: concede his client's guilt—on the spur of the moment during summation—as to two charged federal felonies without even advising his client of that part of the plan and either getting his consent or marking his failure to object. This conduct was professionally unreasonable.⁷ This conduct was objectively unreasonable. This conduct violated defendant's Sixth Amendment-secured right to autonomy.

In an effort to avoid this bottom-line conclusion, the Government cites to decisions in which lower courts have rejected Sixth Amendment “autonomy” claims based on McCoy. These cases are clearly distinguishable.⁸ To the extent that the Government's opposition might be understood to argue that Mr. Gilsenan's conduct should be analyzed under the deferential rubric of Strickland precisely because he did not give his client the chance to object, that argument cannot be squared with the constitutional rule that emerges from Nixon, McCoy, and Rosemond. But even if it could be, the Court would refuse to endorse it for the ethical and moral hazard that it would create.

The remaining question is the scope of the remedy. The Government argues Schaffer is only entitled to a new trial on Counts Seven and Eight because there is no indication that Mr. Gilsenan's conduct prejudiced him with respect to the other counts of conviction; i.e., Counts Three and Six.

That might be true in an ordinary case, since “most constitutional errors can be harmless.” Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). But that analysis is inapplicable where, as here, the error was structural. McCoy, 584 U.S. at 428, 138 S.Ct. 1500 (describing “effects of the admission” as “immeasurable”); see also United States v. Bruno, 383 F.3d 65, 79 (2d Cir. 2004). Because this kind of error is a defect in the framework of the proceeding, it is usually “subject to automatic reversal,” at least when raised on direct review. Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Accordingly, the motion for a new trial must be granted in toto.

IV. CONCLUSION

The rule is quite simple. If an attorney wishes to plead his or her client guilty before a court or jury to a specific charge in an indictment, the client must be given an opportunity to either agree or object. Mr. Gilsenan strongly and unequivocally conceded Schaffer's guilt to the jury on not one, but two, federal felonies that were set forth in Counts Seven and Eight of the superseding indictment. Mr. Gilsenan did not even consult with the defendant about that decision. It is not enough that it might have been a part of his last-minute “trial strategy.” It was as much a surprise (shock?) to the defendant as it was to the Court and to others in the courtroom. Because this concession violated defendant's Sixth Amendment right to autonomy, he is entitled to a new trial.

Therefore, it is

ORDERED that

1. Defendant's motion for a new trial is GRANTED;

2. The guilty verdicts on Counts Three, Six, Seven, and Eight are VACATED; and

3. A new trial date will be set in due course.

IT IS SO ORDERED.

FOOTNOTES

1.   The production counts are denominated in the indictment as “sexual exploitation of a child.”

2.   According to Mr. Gilsenan's declaration, the only discussion about pleading guilty occurred in connection with a possible plea bargain. There was no discussion of a partial plea during trial.

3.   The jury also voted to convict defendant of the offense alleged in Count Six. Dkt. No. 84. The hung counts were dismissed without prejudice. Dkt. No. 99.

4.   Mr. Gilsenan's conduct has come under scrutiny in at least two other criminal cases in this district. United States v. Wager, 3:21-CR-396-DNH at Dkt. No. 152 (appointing new counsel prior to sentencing based on ineffective-assistance claim); United States v. Snyder, 5:22-CR-419-BKS at Dkt. No. 98 (summarizing dispute over propriety of contact with a represented party). He is no longer employed by the FPD's Office.

5.   Schaffer has submitted an affidavit and the Government has offered a responsive declaration from Mr. Gilsenan. For the reasons discussed infra, there is no need to take more evidence because these submissions are sufficient to resolve defendant's motion. See Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009).

6.   In Abboud, the court held an evidentiary hearing. But as explained supra, Mr. Gilsenan's declaration fails to establish a genuine dispute over this fact.

7.   This conduct might very well have violated Mr. Gilsenan's ethical obligations to his client. N.D.N.Y. L.R. 83.3(d); N.Y. Rule of Professional Conduct 1.2(a) (“[A] lawyer shall abide by a client's decisions concerning the objectives of the representation, and ․ shall consult with the client as to the means by which they are to be pursued.”).

8.   Three of these cases are like Nixon, where the attorney explained the planned concession to a passive or unresponsive client. Coleman v. Warden, 2023 WL 8431761, at *8 (Conn. Super. Ct. Nov. 27, 2023) (crediting counsel's testimony); Grant v. Commissioner, 345 Conn. 683, 287 A.3d 124, 129 (2022) (finding plan was “necessarily discussed”); People v. Harris, 2022 WL 2900599 (Cal. Ct. App. July 22, 2022) (finding concession was discussed before relationship broke down). Two others are closer to Rosemond, where the attorney conceded elements of a charged crime or admitted bad acts. State v. Bentley, 317 Kan. 222, 526 P.3d 1060, 1075–76 (2023) (arguing client was a drug user rather than a seller); Boykin v. Pugh, 2023 WL 7389988, at *10 (D. Minn. Aug. 23, 2023) (conceding elements).

DAVID N. HURD, United States District Judge