## Facts

- J.W. Shaw, Jr. was assaulted while eating lunch in his van at a worksite in North Carolina when an assailant threw gasoline in his face, demanded money, and then ignited the gasoline, causing serious burns.
- Later that day, a bank in North Carolina was robbed using a similar gasoline-based threat.
- Paul Dameron Midgett and Theresa Russell were charged in connection with both events; Russell cooperated with the government, and Midgett proceeded to trial.
- Midgett maintained that a third person (a friend of Russell) committed the assault on Shaw while Midgett was asleep in the vehicle due to drug use; Midgett wanted to testify to this account.
- Appointed counsel believed Midgett’s proposed testimony would be false and sought to withdraw due to conflicts over trial strategy and counsel’s refusal to present the “third person” theory through Midgett’s testimony.
- The district court, accepting the possibility of false testimony, required Midgett to choose between (1) proceeding with counsel but not testifying, or (2) proceeding pro se and testifying.
- Midgett stated he could not proceed without counsel and did not testify.
- A jury convicted Midgett of arson-related damage and injury (18 U.S.C. § 844(i)), bank robbery (18 U.S.C. § 2113(a)), and aggravated bank robbery by threatening with gasoline (18 U.S.C. § 2113(d)); he received life sentences under the federal “three strikes” law (18 U.S.C. § 3559(c)).

## Issues

1. Whether the district court violated the Constitution by conditioning Midgett’s right to counsel on his forgoing his right to testify, forcing him to choose between the two.
2. Whether the court improperly relied on defense counsel’s belief of likely perjury, without sufficient evidentiary basis, to restrict Midgett’s ability to testify while represented.

## Decision

- The Fourth Circuit vacated the convictions and remanded for a new trial.
- The court held that the district court erred by forcing Midgett to choose between the right to counsel and the right to testify.
- The court concluded counsel’s belief that Midgett would lie did not, on this record, justify conditioning the exercise of one fundamental right on surrender of another.

## Legal Principles

- A criminal defendant has a fundamental, personal constitutional right to testify; the decision belongs to the defendant and cannot be waived by counsel.
- The right to counsel is fundamental; a court generally may not require a defendant to surrender one constitutional right as the price of exercising another absent a constitutionally valid basis and waiver.
- Ethical limits on presenting perjured testimony do not permit a court to preemptively deny (or effectively block) a defendant’s right to testify based solely on counsel’s unconfirmed belief that the testimony will be false, without concrete support such as the defendant’s admission or other conclusive evidence.
- When a trial court’s procedure forces a defendant into an impermissible election between counsel and testifying, the resulting trial is constitutionally defective and warrants vacatur and a new trial.

## Conclusion

The Fourth Circuit ruled that the district court’s forced choice between representation and testifying violated fundamental trial rights, and it vacated Midgett’s convictions and remanded for a new trial.


United States v. Midgett, 342 F.3d 321 (4th Cir. 2003)