Supreme Court to consider when lawyers can be barred from speaking to their client

On Oct. 6 in Villarreal v. Texas, the court will consider whether a trial court may prevent a criminal defense lawyer from talking to his client about the client’s ongoing testimony during an overnight recess.

David Villarreal, apparently high on meth and gripped by paranoia, stabbed his boyfriend, Aaron Estrada, to death. He claimed it was self-defense because Estrada was trying to fatally choke him. Villarreal was the only defense witness during the guilt phase of the trial. 

At around 1 p.m., after Villarreal had testified on direct examination – that is, under questioning from his own lawyers – for about an hour, the court called a recess until the next morning and dismissed the jury. Before adjourning, the trial judge instructed Villarreal and his attorneys as follows: “Mr. Villarreal, we’re in an unusual situation. You are right in the middle of testimony.  Normally your lawyer couldn’t come up and confer with you about your testimony in the middle of . . . the jury hear[ing] your testimony.  And so I’d like to tell you that you can’t confer with your attorney but [at] the same time you have a [Sixth] Amendment right to talk to your attorney.  . . . I’m going to ask that both of you pretend that Mr. Villarreal is on the stand. You couldn’t confer with him during that time.”

Turning to Villarreal’s lawyers, the judge then said, “And you’re going to have to decide, if he asks you any questions and such, is this something that is going to be considered to be conferring with him on the witness stand while the jury is there or not.” Villarreal’s attorneys said they understood but that they would also preserve their objection to the order. Villarreal resumed his testimony the next day; he was subsequently convicted of murder and sentenced to 60 years in prison.

On appeal, Villarreal argued that the judge’s ban on his ability to discuss his testimony with his counsel overnight violated his Sixth Amendment right to effective assistance of counsel.  The Texas Court of Criminal Appeals (the court of last resort in Texas for criminal cases) affirmed, explaining that the trial court’s order had struck just the right balance between preserving the ability to discuss the case while preventing improper lawyerly management of the client’s testimony. Before the U.S. Supreme Court, Villarreal argues that this order violated his categorical right to confer with his lawyer overnight.

Two Supreme Court precedents set the outer edges of when a trial judge may restrict a defense lawyer’s conferences with the client during a recess. In the 1976 case of Geders v. United States, the court held that an order not to confer with one’s client during an overnight recess “about anything” – with the client still on the stand – violated the right to effective assistance of counsel. On the other hand, in the 1989 case of Perry v. Leeke, the court held that an order prohibiting any contact between defense counsel and his currently testifying client during a 15-minute midday recess did not violate the Sixth Amendment because it could be presumed that “nothing but the testimony [would] be discussed” during that time.

Several state supreme courts have interpreted these bookend precedents as permitting a trial court to prohibit overnight discussions between lawyer and client about the testimony so long as they are free to discuss other trial matters. On the other hand, several federal courts of appeals have held that the client has a right to consult with his lawyers overnight, even about his ongoing testimony. The Texas Court of Criminal Appeals sided with the state supreme courts’ views.

Villarreal argues that, in the real world, the “no direct discussion of testimony” rule is unworkable. Some discussion of the client’s testimony is inextricable from many discussions that lie at the heart of the representation. “If counsel is forbidden from discussing the defendant’s testimony, counsel will be hamstrung in discussing key events that took place earlier that day and crucial decisions for the rest of the trial,” Villarreal argues. At a minimum, lawyers must be able to advise the client not to mention excluded evidence and not to commit perjury.

Much lawyerly advice pivots on how the defendant’s testimony is going, Villarreal points out. For example, everyone agrees that during an overnight recess the lawyer may advise the client to take the last plea offer, if it is still on the table. But when the client naturally asks why, how does the lawyer answer that question without explaining exactly where the client went wrong in his testimony earlier that day? Everyone agrees that during an overnight recess the lawyer can tell the client that they are going to need to call a witness they previously weren’t going to call. But when the client asks why, how does the lawyer explain without specifying what it was about the client’s testimony that now raises the jury’s need to hear from that witness?

Moreover, Villarreal argues that lawyers will be chilled in giving full advice because of concerns about being disciplined for “coaching” or “managing” testimony. Indeed, Villarreal argues, the rule threatens the integrity of the attorney-client privilege because the only way to enforce the rule is for the court to ask lawyers something like, “What did you [and your client] talk about last night?” 

The state of Texas dismisses Villarreal’s workability argument. It points out that, at Villarreal’s trial, the defense lawyers immediately acknowledged that they understood what the court meant by prohibiting direct discussion of the client’s testimony but nothing else. And even when they got to court the next day, they gave no indication that the order had given them any problems communicating with their client overnight. That, Texas argues, shows there is no general problem with the workability of such conferral orders.

According to Texas, the real distinction between Geders and Perry is not the length of the recess, but the type of discussions that can be expected to occur during the recess. According to Texas, during a brief midday recess that takes place while the defendant is on the stand, any conversation between the lawyer and client will invariably be about the testimony. That is why an absolute prohibition on contact during a brief recess is permissible, Texas argues. By contrast, in an overnight recess, one could expect lawyer and client to discuss all sorts of issues. That is why a conferral order covering conversations during an overnight recess must distinguish between testimony and all other issues. 

The parties also disagree in terms of historical practices. Both parties acknowledge that criminal defendants weren’t allowed to testify on their own behalf until after Reconstruction, when the 14th Amendment incorporated the Sixth Amendment and applied it against the states. Villarreal notes that the Geders court did not engage in as much historical analysis as it would today, but he insists that any such analysis would have favored his view of an unqualified Sixth Amendment right to confer during an overnight recess. “Early American courts . . . allowed the defendant to consult his counsel when consultation would be helpful,” states Villarreal. “There is no indication that they restricted the topics the defendant could consult with counsel or the times of day at which these discussions could take place.” 

Texas counters that the right to confer with one’s lawyer has always been subject to significant restrictions. For example, the federal Crimes Act of 1790 only permitted capital defendants to have access to counsel at “seasonable hours.” Moreover, at the time of the founding, criminal defendants were physically located behind a “dock” or “prisoner’s bar,” which effectively made direct courtroom consultation impossible. 

The United States filed a “friend of the court” brief supporting Texas’ position that the kind of limited conferral order issued by the trial court in this case does not violate the Sixth Amendment, and that such orders are sometimes necessary to protect the truth-finding function of trial.  One of the principal arguments by the United States is that appropriate conferral orders are consistent with the history of the Sixth Amendment. 

During oral argument, it will be worth watching whether any of the justices hint at overruling Geders, which held it unconstitutional for district courts to prevent clients from conferring with their lawyers overnight. Villarreal urges that, whatever the Supreme Court decides, Geders ought not be overruled. He argues that Geders is the opposite of an “unworkable” rule because it draws such a bright line. He further argues that overruling it would upset reliance interests because criminal defense lawyers have long assumed that they would have the ability to conduct overnight conversations with their clients without self-censoring because of concerns that the discussion was getting too close to the subject of the client’s testimony. Whatever the justices decide is likely to shed some further light on the ways in which lawyers may confer with their clients.