The U.S. Supreme Court kicked off its new term Monday with oral arguments in a case from Texas that involves how counsel can manage a defendant’s testimony.
The case came to the high court from the Court of Criminal Appeals of Texas, which concluded that David Villarreal’s Sixth Amendment rights were not violated when the trial court recessed for the day during his testimony, meaning he could not talk with his counsel. Villarreal was convicted and sentenced to 60 years for stabbing his boyfriend, Aaron Estrada, to death in Bexar County.
Former Fifth Circuit Court of Appeals Judge Gregg Costa, who is now a partner at Gibson Dunn & Crutcher, submitted an amicus brief on behalf of retired judges in June supporting the reversal of the appellate court’s decision.
The brief argued that there is no straightforward way to distinguish between discussions about a defendant’s testimony and discussions about trial strategy, and it warned of violations of the attorney-client privilege.
“The rule adopted by the Court of Criminal Appeals would compromise the attorney-client privilege when a court has a suspicion that a defendant and counsel have discussed the defendant’s testimony during an overnight recess. That possibility will create unacceptable uncertainty for defendants and counsel and deter open dialogue between them,” the brief stated. “This Court should reject the rule advanced by Texas; it cannot be administered without overriding the attorney-client privilege.”
The justices first heard from Stuart Banner of the UCLA School of Law Supreme Court Clinic, who is representing Villarreal.
Banner argued that the Sixth Amendment protects discussions about testimony between a defendant and their lawyer during an overnight recess.
“The point is that the defendant and counsel often must discuss the defendant’s testimony during an overnight recess,” Banner said. “Now the court below tried to distinguish between discussions of trial strategy, which it allowed, and discussions of testimony, which is prohibited. That’s no line at all.”
He added that it is “impossible to discuss trial strategy without discussing testimony.” Banner said lawyers are worried about being held in contempt for crossing an “invisible line” by offering assistance to the defendant.
The justices questioned what is considered permissible coaching under Perry v. Leeke, in which the high court held that an order prohibiting any contact between defense counsel and a currently testifying client during a 15-minute midday recess did not violate the Sixth Amendment.
Banner argued that under Perry overnight discussions about testimony are allowed but that such discussions are not allowed during short recesses during the day.
He said if a defendant’s testimony has gone poorly, then counsel may need to advise the defendant to accept a plea agreement or may need to advise on how to testify without violating the court’s evidentiary rulings.
Banner clarified that impermissible coaching would be if the lawyer attempted to change the substance of the witness’s testimony.
Andrew Warthen of the Bexar County Criminal District Attorney’s Office argued that as long as protected matters can be discussed during breaks, then the right to counsel is preserved.
When Judge Jefferson Moore dismissed the jury for the day, he instructed Villarreal and his attorneys that they should pretend that Villarreal was still on the witness stand and should not discuss any topics that would be off-limits in that context, including his testimony.
“Moreover, by allowing qualified orders, Perry necessarily recognized the counsel can indeed navigate such orders during short breaks, and there is no logical reason why they cannot do so during long breaks as well,” Warthen said. “Accordingly, qualified orders allow trial courts to balance what the Constitution actually protects with the integrity of trial. And that’s exactly what happened here.”
The case is David Asa Villarreal v. Texas, 24-557.