Florida v. Nixon - Oral Argument - November 02, 2004 Page 2

Florida v. Nixon

Media for Florida v. Nixon

Audio Transcription for Opinion Announcement - December 13, 2004 in Florida v. Nixon

Audio Transcription for Oral Argument - November 02, 2004 in Florida v. Nixon

Antonin Scalia:

So it was important for him to object to them.

George S. Lemieux:

Yes, Your Honor, that's correct.

Antonin Scalia:

In the guilt phase.

Anthony M. Kennedy:

You said Mr. Nixon was... was the client.

Was he in the courtroom?

George S. Lemieux:

Mr. Nixon was in the courtroom for portions of the trial.

He was in--

Anthony M. Kennedy:

Was... was he there... and I'll check the record... when the attorney told the jury that... that his client was... was guilty, that he basically was conceding guilt?

George S. Lemieux:

--Mr. Nixon was not in the courtroom for the opening statement or the closing statement.

Anthony M. Kennedy:

But not for the opening statement.

George S. Lemieux:

He was there during some of voir dire.

He was there after the opening statement when two witnesses testified, one who testified that he was the person who tried to sell the victim's car and positively identified him in the courtroom, and another when the sheriff's deputy positively identified him as the person who confessed and gave the 45-minute confession and the person he arrested.

After those two witnesses testified, Mr. Nixon then decided to leave the courtroom on that occasion.

Antonin Scalia:

The other side says that guilt is not as... not as clear as you... as you make it out.

Is... is that... is that issue even before us here?

George S. Lemieux:

Your... Your Honor, none of that evidence has been presented in any of the post-conviction proceedings, and while it's creative, I think it's not before this Court because it's never been entered into evidence.

It's just speculation.

Antonin Scalia:

Well, it isn't a matter of whether it's before it.

I... I just wonder whether it goes to... to the issue here, whether you needed to get his assent or not.

It... it probably goes to the quite separate question of whether there was inadequate performance by counsel.

No?

Is that question before us also?

George S. Lemieux:

It is, Your Honor.

Both questions are before you.

I... I believe that--

Antonin Scalia:

Was... was the latter question ruled upon below?

George S. Lemieux:

--What the Florida Supreme Court did is they found that since this was the functional equivalent of a guilty plea, if there was not explicit and affirmative consent, that Cronic would apply and a presumption of prejudice would follow.

David H. Souter:

Okay, but... no.

I'm sorry.

Antonin Scalia:

And never... and never reached the... the inadequate performance of counsel question.