The U.S. Supreme Court is expected to render a decision soon in a Texas case that has implications for lawyers representing clients who testify on their own behalf at criminal trials.

David Asa Villarreal was charged with murder in Texas. During his trial, Villarreal took the stand in his own defense. In the middle of being questioned by his attorneys, the court adjourned for the evening. The trial judge instructed Villarreal's attorneys not to confer with him during the overnight break.

The judge told counsel, "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." Villarreal's lead counsel objected under the Sixth Amendment to this limitation.

The next day, Villarreal resumed his testimony, and no further objections about the limitation were raised. Villarreal was ultimately convicted and sentenced to sixty years in prison.

Villarreal appealed and his case wound its way to the U.S. Supreme Court. The high court got involved due to disagreement among state and federal courts on the issue of communication with a testifying client during a recess in testimony.

On one side of the conflict, according to Villarreal's attorneys, "several state supreme courts have held that while the trial court may not prohibit all communications between a testifying defendant and his attorney during an overnight recess, it may prohibit communications specifically about the defendant's ongoing testimony." On the other side, "several federal circuit courts of appeal have held any restriction on communication with counsel during an overnight recess is impermissible."

Villarreal argued to the Supreme Court that the judge's ban on his ability to discuss his testimony with counsel violated his Sixth Amendment right to effective assistance of counsel.

Attorney-client conversations about testimony are necessary. For instance, counsel may need to advise a client to avoid unwitting perjury; the necessity to recant testimony or corrections in the defendant's testimony that counsel knows is inaccurate.

Additionally, Villarreal asserted that lawyers could use overnight recesses for purposes not directly related to testimony. For example, Villarreal argues that attorneys might need to remind their clients to make a good impression on jurors, such as a change in wardrobe, make eye contact with jurors or sit up straight.

Villarreal argues that decisions in 1976 and 1989 support his position. The 1976 case found that overnight recesses are important times for the defense team to regroup, evaluate the day's events, and make decisions about future proceedings. The 1989 decision held that an order not to talk with a client during a fifteen-minute daytime recess did not violate the Sixth Amendment.

The length of the recess triggers the Sixth Amendment protections. Villarreal argues that a short recess would not infringe on a defendant's right to assistance of counsel, but an overnight bar on talking with a client would violate those constitutional protections.

A criminal trial can be thoroughly unsettling for an accused. The language and cadence of a criminal trial is foreign to even the most learned layperson. A trial recess, even in the midst of a defendant's testimony, is essential to providing emotional support, clarifying legal issues and helping to maintain the defendant's trust in a fair and impartial criminal justice system.

The inability to act in the interest of a client undermines zealous and effective representation focused on protecting the rights of an accused.

To that end, Villarreal argued, "The Sixth Amendment text does not limit counsel's assistance to particular topics or particular times of day." The state cannot argue that the founders in 1791 meant for the word "assistance" to mean "assistance except for discussions of testimony," or "assistance but not overnight."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, "The Executioner's Toll," 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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