Court leans toward allowing trial judges to limit attorney-client discussions during overnight recesses

At least some of the justices at Monday morning’s oral argument in Villarreal v. Texas appear to be willing to permit trial courts to limit what defense lawyers may discuss with their clients overnight when the client is still on the stand. Specifically, several justices seem to think the court may prohibit lawyer and client from direct discussions of the client’s testimony, but not collateral matters of trial strategy and management that relate to the testimony. 

David Villarreal was on trial for stabbing to death his boyfriend, Aaron Estrada. After Villarreal had been testifying for about an hour, the trial court called a recess for the rest of the day. Before adjourning, the judge told Villarreal’s lawyer that he was not to discuss his client’s testimony overnight. They could talk about trial strategy and client options, but not about the testimony itself. Villarreal was eventually convicted of murder. On appeal he claimed that the order preventing his discussion of testimony with counsel denied him effective assistance of counsel. The Texas courts affirmed his conviction, saying that the trial court’s order had been appropriate.

Arguing for Villarreal before the Supreme Court, Stuart Banner urged the justices to reverse on the ground that this kind of restriction on lawyer-client discussions would lead defense lawyers to self-censor a much broader swath of advice than just specific instructions about what the client should say on the stand. The line between “trial strategy” on the one hand and “about testimony” on the other is “no line at all,” Banner told the justices. “Responsible defense lawyers, worried about being held in contempt for crossing this invisible line, will be chilled from offering the assistance that the defendant needs and that the Sixth Amendment guarantees,” he said.

But the justices did not seem deterred from trying to draw such a line. “[W]hat I understood the trial court here to be doing,” said Justice Ketanji Brown Jackson, “was just eliminating that very narrow category of conduct that a lawyer engages in to actually prepare his witness with respect to particular questions and answers on something. . . .  And why are [the lower courts] wrong about that?”

“[T]o even call it a line is wrong,” Banner responded. “It’s not a line.  It’s a Rorschach blot, right?”

Justice Elena Kagan disagreed. The court’s precedents draw “a pretty sharp line between matters going to trial strategy and matters going to trial testimony of the defendant itself,” she said. “[T]here can be all kinds of places where the testimony has to be talked about as incidental to what is protected, which is the discussion of trial strategy, but not in and of itself.”

As Banner was responding to Kagan by raising the example of a lawyer having to remind the client that he should not testify about evidence that has been excluded by the trial judge, Justice Neil Gorsuch broke in. “I would think that would be permissible because it doesn’t refer to the testimony itself,” he said. “I think what my colleagues are getting at” is “that there are some things that a district court can constitutionally prohibit counsel from doing … even if there’s a recess,” Gorsuch said.

“Absolutely,” Banner agreed. “Coaching, in the sense of suborning perjury, altering the substance of the witness’s –” 

“Well, I’m not talking about suborning perjury,” Gorsuch interrupted. “I’m talking about coaching.” When Banner seemed hesitant to accept that definition of terms, the justice tried to help.

“If you don’t like that word, let’s use management,” Gorsuch offered.

“I like that word even less,” Banner said.

Semantics aside, this colloquy and others during Monday’s argument suggested a lack of general agreement about exactly how a lawyer may advise a client about his or her testimony. In his argument, Banner asserted that a lawyer has to be able to prepare the client to testify, such as a dry run through expected questions on direct and cross. During this exercise, the lawyer has to be able to give advice about what the client is doing, such as what comes off well and what doesn’t. Once the client takes the stand, does that completely disappear?

At one point, Kagan asked Bexar County (Texas) Assistant Criminal District Attorney Andrew Warthen, “Do you think that counsel can say, listen, I’ve been noticing that you’ve been mumbling and you’re also not making eye contact with the questioner, and it would just be a good idea if you’d stop mumbling and make eye contact?  Can the lawyer do that in an overnight recess?”

“No,” replied Warthen. “I would consider that to be coaching their testimony.  As far as how you present yourself to the jury, I would say that’s also the same as the substance of what … you’re saying.”

Chief Justice John Roberts wasn’t sure he had heard Warthen correctly. “[T]he question was like, can you tell the witness to stop mumbling? … You said he can’t say that?” Roberts asked somewhat incredulously. Warthen stuck to his guns. “Look him in the eye, stop mumbling, don’t talk as quickly,” those things all constitute impermissible coaching, Warthen said.

Justice Amy Coney Barrett, apparently preferring Texas’ proposal, asked if Warthen would accept a rule that said, “[Y]ou can’t talk about the content of the testimony or the manner of its delivery, but you can discuss any strategic consequences of the defendant’s testimony, such as whether to take a plea, whether to call another witness, et cetera.” Warthen said he would accept that.

If the court decides that the trial court may limit the overnight discussion between lawyer and client, it will have to decide whether to accept Texas’ suggested line or the line offered by the United States in its friend-of-the-court brief and orally by Assistant to the Solicitor General Kevin Barber. Texas proposes that the line be drawn between “management” of testimony (disallowed) and other matters that only indirectly touch on the client’s testimony (allowed). The United States argues for a bright-line rule: no discussion of the client’s testimony whatsoever. 

Roberts asked Barber for clarification on that bright-line rule. Barber offered the example of whether counsel could advise their client to “pursue a plea bargain,” and explained that, under the government’s test, they could do so. According to Barber, “That doesn’t mean that you’re discussing the testimony itself, and that doesn’t mean that the kind of dangers to the truth-seeking function of trial are presented by that kind of discussion.”