Colorado’s second-highest court concluded on Wednesday that defendants cannot challenge whether the evidence was sufficient to sustain their convictions if their lawyer argues to the jury that it should find the defendant guilty.

The U.S. Supreme Court has provided guidance in recent years about when criminal defense attorneys may intentionally concede their client’s guilt. In 2004, the court determined in Florida v. Nixon that an attorney was not barred from admitting his client murdered in hopes of avoiding the death penalty, as the defendant was aware of that strategy and neither objected nor consented.

However, in the 2018 case of McCoy v. Louisiana, the Supreme Court agreed a defense attorney in a similar death penalty case was wrong to tell jurors his client committed murder when the defendant “vociferously” protested he was innocent.

In the case of Anthony Garcia, he stood trial in Denver on charges of attempted murder, attempted assault, evidence tampering, and resisting arrest. Jurors acquitted Garcia of the more serious charges, but found him guilty of evidence tampering and resisting arrest.

During opening statements, Garcia’s lawyer told jurors he was “guilty of resisting arrest, absolutely.” Then, in closing arguments, the lawyer reiterated that jurors should “go back, first box you check: guilty” for resisting arrest.

Garcia appealed, arguing there was a lack of evidence of physical force at trial, which could not support a guilty verdict for resisting arrest.

The Colorado Attorney General’s Office disagreed, but also contended the trial lawyer’s “judicial admission” of Garcia’s guilt was sufficient to uphold the verdict.

A three-judge Court of Appeals panel, before issuing an opinion, asked the parties to address a related issue directly: When a trial attorney concedes their client’s guilt during closing arguments, is the defendant barred from claiming there was insufficient evidence on appeal?

No, responded Garcia, because his attorney’s opinion of his guilt did not undermine the fact that Garcia had pleaded not guilty and had exercised his constitutional right to a trial.

Yes, argued the government, because the trial lawyer made a “strategic” choice to admit guilt on a relatively minor offense in hopes of persuading the jury to acquit on the attempted murder and assault charges.

“And the gambit worked – the jury acquitted Defendant of the more serious offenses,” wrote Assistant Attorney General Austin R. Johnston.

In the appellate panel’s Dec. 31 opinion, Judge Ted C. Tow III acknowledged the constitutional right to due process requires the government to prove guilt beyond a reasonable doubt. But not every challenge can be heard on appeal.

“Perhaps most fundamentally, it is beyond dispute that by entering a guilty plea, a defendant waives his right to insist that the prosecution establish his guilt beyond a reasonable doubt,” Tow wrote.

He elaborated that nothing in Colorado case law suggests that a defendant cannot waive his right to challenge the sufficiency of the evidence on appeal. In Garcia’s case, his lawyer’s actions suggested he had knowingly done so.

“Defense counsel is permitted to concede a defendant’s guilt as part of their trial strategy, at least where the defendant does not expressly object,” Tow wrote. “That is what happened here.”

He added that the panel’s conclusion only applies to attorneys who concede guilt during closing arguments, after jurors have seen the evidence.

Criminal defense attorney Elizabeth McClintock said the opinion puts defense lawyers on notice that they should inform clients of any strategic concession of guilt to avoid shutting down a pathway to appeal.

“It cannot be just a strategic decision typically left to trial counsel to make during trial,” she said.

She added that Garcia may have a claim for ineffective assistance of counsel that he can now raise. However, it could be difficult to succeed because Garcia’s trial lawyer might not have known that the allegedly strategic decision would void Garcia’s appellate rights.

“It really puts the defendant in a catch-22 when challenging the conviction in a motion for postconviction relief,” said McClintock.

The case is People v. Garcia.