If a competent capital-murder defendant wants the death penalty and tells his lawyer not to present mitigating evidence at sentencing, must the lawyer follow that instruction?

Plain-English summary

The committee was asked about a capital-murder client who had pleaded guilty, been found competent by a psychiatrist, and told counsel he wanted a death sentence rather than life in prison. Although counsel had investigated and found mitigating evidence, the client instructed him not to present any at the sentencing hearing. The question was whether counsel would violate the Code of Professional Responsibility by presenting mitigating evidence against the client's instruction.

The committee framed the tension between two duties under the former Code: the duty to represent the client diligently and competently by making the best case for leniency (DR 6-101(A); EC 7-1) and the duty to seek the client's lawful objectives and follow the client's directions (DR 7-101(A)). Drawing on the Ethical Considerations on client autonomy (EC 7-5, 7-7, 7-8), the committee concluded that, as long as the defendant was, in the attorney's judgment, competent to make an informed, rational, and stable choice about whether to fight the death penalty with mitigating evidence, the attorney was ethically obligated to respect that decision.

The committee emphasized the lawyer's threshold duties. Because of the severe and irreversible consequences, the attorney had to advise the client of the adverse legal consequences of withholding mitigating evidence, including how much harder it would be to attack the death sentence on direct appeal or collaterally, and had to try to discern whether the client's preference for death was rational and stable. Where the attorney had a reasonable basis to believe the preference was rational and stable, the client's decision controlled even against the lawyer's advice. The committee acknowledged the moral difficulty and noted that most courts addressing the issue have likewise held the lawyer bound to follow such directions, and that a defendant who so instructs cannot later claim ineffective assistance for the absence of mitigating evidence.

Currency note

This opinion was issued in 1999, under Virginia's former Code of Professional Responsibility (the disciplinary rules and ethical considerations it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does a competent defendant control whether mitigating evidence is presented at his capital sentencing?

A: Under this 1999 opinion, yes. The committee concluded that where the lawyer reasonably believes the defendant is competent and his choice is rational and stable, the client's decision to withhold mitigating evidence controls, even against the lawyer's advice (DR 7-101(A)).

Q: What did the lawyer have to do before honoring such an instruction?

A: The committee said the lawyer had to counsel the client fully on the adverse consequences, including how much harder it would be to attack the death sentence on appeal or collaterally, and try to discern whether the preference for death was rational and stable.

Q: Could the defendant later claim ineffective assistance for the missing mitigation?

A: The committee noted that, per the weight of authority it cited, a defendant who instructs counsel not to present mitigating evidence cannot successfully claim ineffective assistance on that basis.

Background and rules framework

The opinion was decided under Virginia's former Code of Professional Responsibility: DR 7-101(A) (seeking the client's lawful objectives) and DR 7-101(B)(1), with Ethical Considerations EC 7-1, 7-5, 7-7, 7-8, 7-9, 7-11, 7-12, 7-16, and 7-17 on client autonomy, and DR 6-101(A) on competence. A footnote notes that Rule 1.2 of the new Rules of Professional Conduct, effective January 1, 2000, requires a lawyer to abide by a client's decisions concerning the objectives of representation.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 7-101(A), DR 7-101(B)(1), DR 6-101(A); EC 7-1, 7-5, 7-7, 7-8, 7-9, 7-11, 7-12, 7-16, 7-17 (Code of Professional Responsibility)
• Virginia Rule 1.2 (abiding by the client's decisions on objectives; noted as effective January 1, 2000)

Statutes:

• Va. Code § 17.1-313 (mandatory direct review of a death sentence)

Cases:

• Davidson v. Commonwealth, 244 Va. 129, 419 S.E.2d 656 (1992); People v. Deere, 41 Cal. 3d 353 (1985), and People v. Bloom, 774 P.2d 698 (Cal. 1989); Zagorski v. State, 983 S.W.2d 654 (Tenn. 1998), and other decisions holding a competent defendant may waive mitigating evidence.

See also

• VA LEO 1796: Defending Two Adverse Co-Defendants
• VA LEO 1771: Assisting a Fraudulent Conveyance

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1737.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

LEGAL ETHICS OPINION 1737

ATTORNEY'S OBLIGATION IN CAPITAL
MURDER CASE WHEN CLIENT DESIRES
DEATH SENTENCE AND REQUESTS
ATTORNEY TO NOT PRESENT MITIGATING
FACTS AT SENTENCING HEARING.

You have presented a hypothetical situation in which Client has pled guilty to capital murder.
Client has been evaluated by a psychiatrist and found to be competent. Client has informed
counsel that he desires a death sentence rather than life in prison. Although counsel has
investigated and found mitigating evidence in Client's background, Client has instructed counsel
not to present any mitigating evidence at the sentencing hearing.
Under the facts you have presented, you have asked the committee to opine as to whether
counsel would violate the Code of Professional Responsibility by presenting mitigating evidence
when the client has instructed him not to do so.
The appropriate and controlling disciplinary rules relative to your inquiry are: DR:7-101(A)(1)
which states that a lawyer shall not intentionally fail to seek the lawful objectives of his client
through reasonably available means permitted by law and the Disciplinary Rules; and DR:7101(B)(1) which provides that a lawyer may, with the express or implied authority of his client,
exercise his professional judgment to limit or vary his client's objectives and waive or fail to
assert a right or position of his client. Also pertinent to your inquiry are Ethical Considerations
EC:7-1, EC:7-5, EC:7-7, EC:7-8, EC:7-9, EC:7-12, EC:7-16, and EC:7-17.
There are no prior ethics opinions which offer any guidance in resolving this difficult ethical
dilemma. The problem is a significant one requiring thoughtful analysis of the conflicting
1

See, Davidson v. Commonwealth, 244 Va. 129, 419 S.E.2d 656 (1992), where at the beginning
of the penalty phase, counsel for the defendant informed the trial court that the defendant had
directed him not to present any evidence on his behalf. The defendant affirmed this direction by
his own testimony and no evidence in mitigation was presented. The opinion, however, contains
no further discussion of this problem. The Court affirmed the imposition of the death sentence
and declined to commute the sentence to life imprisonment.
The Supreme Court of Virginia has yet to address the effect of a defendant's demand, in a
capital case, that no evidence be presented during the penalty phase. There is no statutory
requirement that counsel in capital murder cases present evidence at the penalty phase. Direct
review of a death sentence by the Court is mandatory. See Va. Code § 17.1-313(1998).
2

Virginia Rules of Professional Conduct, Rule 1.2, effective January 1, 2000 requires an
attorney to “abide by a client's decisions concerning the objectives of representation.”
3

The committee's research has found only one case holding the contrary view that capital
defense counsel should present evidence in mitigation over the objection of the client. In People
v. Deere, 41 Cal.3d 353, 222 Cal.Rptr. 13, 710 P.2d 925 (Cal. 1985), the defendant barred his
attorney from presenting evidence at the penalty phase in a capital case, and gave a simple
statement that he wished to die for his crimes. The court ruled that there was ineffective
assistance of counsel and that imposition of the death penalty was improper. However, four years
later in People v. Bloom, 774 P.2d 698 (Cal. 1989), the California Supreme Court disapproved,
but did not overrule Deere, supra, stating that the failure to introduce mitigating evidence at the
penalty phase did not automatically render the imposition of the death penalty unreliable and
criticizing any requirement that defense counsel present mitigating evidence over a client's
objections.

professional responsibilities of those attorneys who represent competent capital murder
defendants who by trial or plea have been found guilty and have instructed their attorneys to
forgo presentation of mitigating evidence during the sentencing phase, thereby inviting the death
penalty.1 The attorneys normally have an ethical obligation to diligently and competently
represent their client by making the best possible case for leniency. DR:6-101(A); EC:7-1.
However, the attorneys are also required to achieve the client's lawful objectives and follow the
client's directions. DR:7-101(A).2 Under these circumstances, the critical issue is whether the
lawyer should follow the lawful demands of the client when those demands may cause prejudice
or damage to the client's case.
In the facts you present, the committee believes as long as the defendant, in the attorney's
judgment, is competent to make an informed, rational and stable choice regarding whether to
fight the death penalty with mitigating evidence, the attorney is ethically obligated to respect the
client's decision. DR:7-101(A)(1) requires an attorney to seek his client's lawful objectives.
EC:7-5 states in pertinent part:
A lawyer as adviser furthers the interest of his client by giving his professional opinion as to
what he believes would likely be the ultimate decision of the courts on the matter at hand
and by informing the client of the practical effect of such decision. He may continue in the
representation of his client even though his client has elected to pursue a course of conduct
contrary to the advice of the lawyer so long as he does not thereby knowingly assist the
client to engage in illegal conduct or to take a frivolous position.
Client autonomy is further emphasized in EC:7-7, which states in pertinent part:
In certain areas of legal representation not affecting the merits of the cause or substantially
prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But
1

See, Davidson v. Commonwealth, 244 Va. 129, 419 S.E.2d 656 (1992), where at the beginning
of the penalty phase, counsel for the defendant informed the trial court that the defendant had
directed him not to present any evidence on his behalf. The defendant affirmed this direction by
his own testimony and no evidence in mitigation was presented. The opinion, however, contains
no further discussion of this problem. The Court affirmed the imposition of the death sentence
and declined to commute the sentence to life imprisonment.
The Supreme Court of Virginia has yet to address the effect of a defendant's demand, in a
capital case, that no evidence be presented during the penalty phase. There is no statutory
requirement that counsel in capital murder cases present evidence at the penalty phase. Direct
review of a death sentence by the Court is mandatory. See Va. Code § 17.1-313(1998).
2

Virginia Rules of Professional Conduct, Rule 1.2, effective January 1, 2000 requires an
attorney to “abide by a client's decisions concerning the objectives of representation.”
3

The committee's research has found only one case holding the contrary view that capital
defense counsel should present evidence in mitigation over the objection of the client. In People
v. Deere, 41 Cal.3d 353, 222 Cal.Rptr. 13, 710 P.2d 925 (Cal. 1985), the defendant barred his
attorney from presenting evidence at the penalty phase in a capital case, and gave a simple
statement that he wished to die for his crimes. The court ruled that there was ineffective
assistance of counsel and that imposition of the death penalty was improper. However, four years
later in People v. Bloom, 774 P.2d 698 (Cal. 1989), the California Supreme Court disapproved,
but did not overrule Deere, supra, stating that the failure to introduce mitigating evidence at the
penalty phase did not automatically render the imposition of the death penalty unreliable and
criticizing any requirement that defense counsel present mitigating evidence over a client's
objections.

otherwise the authority to make decisions is exclusively that of the client and, if made within
the framework of the law, such decisions are binding on his lawyer. . . . A defense lawyer in
a criminal case has the duty to advise his client fully on whether a particular plea to a charge
appears to be desirable and as to the prospects of success on appeal, but it is for the client to
decide what plea should be entered and whether an appeal should be taken.
EC:7-8, in pertinent part, further advises:
He may emphasize the possibility of harsh consequences that might result from assertion of
legally permissible positions. . . . the lawyer should always remember that the decision
whether to forego legally available objectives or methods because of nonlegal factors is
ultimately for the client and not for himself.
The committee believes that attorneys in capital cases are ethically required to advise such
clients of the adverse legal consequences of failing to produce mitigating evidence during the
penalty phase and how much more difficult it will be to attack the death sentence on direct
appeal, or collaterally, if the client insists on that direction. For that reason, the ethical
requirements of zealous and competent representation dictate that the attorney must counsel the
client regarding the risks and benefits of presenting mitigating evidence.
Because of the severe and irreversible consequences of failing to make a case of mitigation in
the penalty phase, the attorney must try to discern whether the defendant has expressed a rational
and stable preference for a death sentence. The responsibilities of a lawyer may vary according
to the intelligence, experience, mental condition or age of the client. EC:7-11.
Where the attorney has a reasonable basis to believe that the client's preference for the death
penalty is rational and stable, the client's decision controls, even if it is contrary to the lawyers'
1

See, Davidson v. Commonwealth, 244 Va. 129, 419 S.E.2d 656 (1992), where at the beginning
of the penalty phase, counsel for the defendant informed the trial court that the defendant had
directed him not to present any evidence on his behalf. The defendant affirmed this direction by
his own testimony and no evidence in mitigation was presented. The opinion, however, contains
no further discussion of this problem. The Court affirmed the imposition of the death sentence
and declined to commute the sentence to life imprisonment.
The Supreme Court of Virginia has yet to address the effect of a defendant's demand, in a
capital case, that no evidence be presented during the penalty phase. There is no statutory
requirement that counsel in capital murder cases present evidence at the penalty phase. Direct
review of a death sentence by the Court is mandatory. See Va. Code § 17.1-313(1998).
2

Virginia Rules of Professional Conduct, Rule 1.2, effective January 1, 2000 requires an
attorney to “abide by a client's decisions concerning the objectives of representation.”
3

The committee's research has found only one case holding the contrary view that capital
defense counsel should present evidence in mitigation over the objection of the client. In People
v. Deere, 41 Cal.3d 353, 222 Cal.Rptr. 13, 710 P.2d 925 (Cal. 1985), the defendant barred his
attorney from presenting evidence at the penalty phase in a capital case, and gave a simple
statement that he wished to die for his crimes. The court ruled that there was ineffective
assistance of counsel and that imposition of the death penalty was improper. However, four years
later in People v. Bloom, 774 P.2d 698 (Cal. 1989), the California Supreme Court disapproved,
but did not overrule Deere, supra, stating that the failure to introduce mitigating evidence at the
penalty phase did not automatically render the imposition of the death penalty unreliable and
criticizing any requirement that defense counsel present mitigating evidence over a client's
objections.

professional judgment and advice. In reaching this conclusion, the committee acknowledges the
moral and ethical difficulty that some may experience in following the client's directives.
However, most of the courts which have struggled with this issue have similarly concluded that
the attorney is ethically bound to carry out the client's directive, even though such instruction is
tantamount to a death wish. Further, the death row defendant cannot thereafter claim
successfully that their trial counsel was ineffective in not having introduced evidence in
mitigation. Zagorski v. State, 983 S.W.2d 654 (Tenn. 1998) (performance of defense counsel in
not investigating or presenting mitigating evidence at sentencing stage per defendant's
instructions did not fall below objective standard of competence); Petit v. State, 591 So.2d 618
(Fla. 1992) (a competent defendant may waive his right to present mitigating evidence at
sentencing); Singleton v. Lockhart, 962 F.2d 1315 (8th Cir. 1992) (defendant may make a
knowing, intelligent waiver of his right to present mitigating evidence) Koedatich v. State, 112
N.J. 225, 548 A.2d 939 (1987) (defense counsel's failure to present mitigating evidence, during
penalty phase of capital prosecution, in accordance with defendant's instructions, did not
constitute ineffective assistance of counsel); Trimble v. State, 693 S.W.2d 267 (Mo. Ct. App.
1985) (defense counsel did not render ineffective assistance in acquiescing in defendant's
instruction that no evidence be offered and no argument be made in penalty phase of trial, which
resulted in imposition of death penalty).3
Committee Opinion
October 20, 1999

1

See, Davidson v. Commonwealth, 244 Va. 129, 419 S.E.2d 656 (1992), where at the beginning
of the penalty phase, counsel for the defendant informed the trial court that the defendant had
directed him not to present any evidence on his behalf. The defendant affirmed this direction by
his own testimony and no evidence in mitigation was presented. The opinion, however, contains
no further discussion of this problem. The Court affirmed the imposition of the death sentence
and declined to commute the sentence to life imprisonment.
The Supreme Court of Virginia has yet to address the effect of a defendant's demand, in a
capital case, that no evidence be presented during the penalty phase. There is no statutory
requirement that counsel in capital murder cases present evidence at the penalty phase. Direct
review of a death sentence by the Court is mandatory. See Va. Code § 17.1-313(1998).
2

Virginia Rules of Professional Conduct, Rule 1.2, effective January 1, 2000 requires an
attorney to “abide by a client's decisions concerning the objectives of representation.”
3

The committee's research has found only one case holding the contrary view that capital
defense counsel should present evidence in mitigation over the objection of the client. In People
v. Deere, 41 Cal.3d 353, 222 Cal.Rptr. 13, 710 P.2d 925 (Cal. 1985), the defendant barred his
attorney from presenting evidence at the penalty phase in a capital case, and gave a simple
statement that he wished to die for his crimes. The court ruled that there was ineffective
assistance of counsel and that imposition of the death penalty was improper. However, four years
later in People v. Bloom, 774 P.2d 698 (Cal. 1989), the California Supreme Court disapproved,
but did not overrule Deere, supra, stating that the failure to introduce mitigating evidence at the
penalty phase did not automatically render the imposition of the death penalty unreliable and
criticizing any requirement that defense counsel present mitigating evidence over a client's
objections.