In a murder-for-hire trial, is it constitutional for a defense attorney to concede—over his client’s objection—that the client hired someone to shoot at the victim (an element of the offense), but argue that the client did not intend for the victim to die?
This may seem like a strange strategic choice, but it starts to make more sense in context. On May 1, 2020, in United States v. James Rosemond, No. 18-3561, the Second Circuit takes a foray into the world of hip hop while considering a defendant’s Sixth Amendment autonomy rights.
Rosemond, aka “Jimmy Henchman,” was a manager and music executive whose Czar Entertainment managed, among others, The Game, Brandy, Gucci Mane, and Salt-n-Pepa. Czar had a rivalry with Violator Records, whose offices were located across the street. Violence ensued. Per the Second Circuit,
The rivalry intensified in February 2005. At that time, Czar represented rapper Jayceon Taylor, also known as ‘The Game.’ Despite being individually represented by Czar, Taylor was a member of G-Unit, a rap group managed by Violator and run by one of G-Unit’s members, Curtis Jackson, also known as ‘50 Cent.’ While appearing as a guest on Hot 97, a New York-based radio station, Jackson insulted Taylor and ousted him from G-Unit. After hearing this transpire on the radio, Rosemond directed Mohammed Stewart, a Czar associate, to accompany Taylor to the Hot 97 studio to confront Jackson. When they arrived, Taylor, Stewart, and their entourage were shot at and retreated to Czar’s office, but not before one of Taylor’s friends was struck by a bullet. In retaliation, Stewart and one of his friends shot at the Violator building and were rewarded with a $2,000 payment, arranged by Rosemond. The violence continued to escalate.
While this feud was ongoing, Lowell Fletcher, aka “Lodi Mack,” and other G-Unit members, assaulted and threatened Rosemond’s 14-year old son. More retaliation, shootings, attempted arson, and Molotov cocktails followed.
Ultimately, according to the government, Rosemond paid and worked with several associates to murder Fletcher, who was shot and killed by Brian McCleod in September 2009.
At trial, Rosemond faced multiple counts related to this alleged murder for hire. His first trial ended in a mistrial; the second trial’s verdict was overturned on appeal. He was convicted at his third trial.
During the closing of the third trial, Rosemond’s attorney argued that he paid for Fletcher to be shot, but that Rosemond did not intend for Fletcher to be killed. In post-trial motions and on appeal, Rosemond contended that he disagreed with and did not endorse this decision. The question before the Circuit was whether Rosemond’s Sixth Amendment autonomy rights were violated.
In McCoy v. Louisiana, 138 S. Ct. 1500 (2018), the Supreme Court recognized that a criminal defendant has a “protected autonomy right” under the Sixth Amendment to make certain “fundamental choices about his own defense.” This right encompasses the right to decide the “objective of his defense” and to persist in maintaining his innocence even in the face of overwhelming evidence of his guilt. In McCoy, therefore, the Court held that it was unconstitutional (and structural error) for a capital defense attorney to concede guilt in the penalty phase of trial over his client’s objection.
But what about conceding an element of the offense over a defendant’s objection? In Rosemond, the Second Circuit rules that is a “strategic choice a lawyer may make,” so long as the lawyer maintains that his client is not guilty as charged. Thus, the Circuit holds that “McCoy is limited to a defendant’s right to maintain his innocence of the charged crimes.”
This decision seems … not quite right. Surely, not all elements of a criminal offense are the same. It’s one thing to concede the interstate commerce element in your 18 U.S.C. § 922(g)(1) trial. It seems like an entirely different thing to—over a defendant’s objection—concede that the defendant hired someone to shoot the victim in a murder-for-hire case. McCoy speaks of a defendant’s right to maintain his “factual innocence” and non-lawyers—like many defendants—seem likely to conceive of innocence in such practical terms. When a defendant tells his lawyer that he wants to maintain his innocence by saying that he did not do the thing he is charged with doing, it seems like a serious infringement on his autonomy to concede that he did that thing. Would a lawyer be sufficiently maintaining his client’s innocence if he argued that the client paid someone to do the shooting, with an intent to kill, but the client was not guilty because there was no venue in this particular jurisdiction? At the very least, Rosemond once again reveals the chasm between what courts hold the Sixth Amendment to require versus what many might think good defense lawyering entails.