In Warner v. Ford, 752 F.2d 622 (11th Cir. 1985), the Eleventh Circuit considered a claim of ineffective assistance of counsel in a case involving defense counsel's silence during the defendant's trial.
The defendant in Warner was convicted of four counts relating to an armed robbery. Two co-defendants were tried in the same proceeding with the defendant in that case.
Defendant's attorney did not actively participate in the trial, except to move for a directed verdict on one count, request a mistrial three times, and to recommended that his client not take the witness stand when he was called by his co-defendants to testify in their defenses. Id. at 624.
In finding that Warner was not entitled to a presumption of prejudice, the Eleventh Circuit acknowledged the Sixth Circuit decision in Martin, but distinguished Warner's case on five grounds:
(1) Martin denied the charges against him in subsequent proceedings;
(2) the testimony of complaining witnesses against Martin was subject to question;
(3) Martin was a single defendant, while Warner was one of three co-defendants;
(4) the evidence against Martin was not as great as that against Warner;
(5) Martin's defense counsel was not prepared at the time of the trial, while Warner's attorney professed to be ready to proceed. Id. at 624-25.
After making these distinctions, the Eleventh Circuit further elaborated upon the relevant inquiry as to whether counsel's decision to stand mute during the trial would warrant a presumption of prejudice:
Silence can constitute trial strategy. Whether that strategy is so defective as to negate the need for a showing of prejudice to establish ineffective assistance of counsel must be judged on a case-by-case basis. Washington has established that courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. at 688- 91, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95. Thus, in order for a petitioner with an ineffective assistance of counsel claim to prevail over his former counsel's assertion of strategy, he must "overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. (Warner, 752 F.2d at 625.)