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Who Decides Guilt Concessions as a Part of Trial Strategy?

Noel Peel

Written by

Noel Peel


September 20, 2018


U.S. Supreme Court Reviewing Lawyer/Client Relationship in the Context of the Sixth Amendment: Who Decides Guilt Concessions as a Part of Trial Strategy?

By Josh Taylor

SEE UPDATE AT END OF POST: Supreme Court Decides McCoy v. Louisiana in Favor of Death Row Inmate

Early this year, the U.S. Supreme Court heard arguments surrounding perhaps the most core constitutional embodiment of lawyer ethics.  In fact, during oral arguments, Justice Sotomayor observed that the case “sounds like my ethics class in law school.” McCoy v. Louisiana presents the Court with a main ethical question: “Is it unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection?” (Writ to Supreme Court, March 6, 2017)

The criminal defendant and petitioner, Robert McCoy, was charged with killing three members of his family, with overwhelming evidence presented against him.  Despite piles of contrary evidence, McCoy maintained his innocence, claiming that police framed him for the killings in retaliation for exposing them in a drug trafficking ring.  State psychiatric experts determined that McCoy was competent to stand trial.

After firing his initial public defense attorneys, McCoy’s family hired Larry English to take up his defense.  English adamantly advised a guilty plea so that McCoy might avoid the death penalty in Louisiana. McCoy refused, again insisting he was innocent and was not insane.  From there, the case took a hard turn to end up at the U.S. Supreme Court. Despite McCoy’s refusal to plead guilty or admit insanity, English conceded his client’s guilt to the jury in both opening and closing statements.  He even went as far as to say that he had, over the course of the trial, taken the burden of proving McCoy’s guilt off the prosecutor. It was English’s last-ditch effort to save his client from a death verdict.

The jury still sentenced McCoy to death, and the Louisiana Supreme Court affirmed the sentence.  With a new lawyer for appeal, McCoy petitioned the U.S. Supreme Court claiming that, because of English’s unilateral actions, the state had deprived him of his right to counsel, a right guaranteed to every criminal defendant under the Sixth Amendment.

McCoy offers a rare exercise in Sixth Amendment and professional conduct rules analysis.  The Sixth Amendment guarantees assistance of counsel for criminal proceedings and professional rules require that a lawyer “abide by a client’s decisions concerning the objectives of representation” and “abide by a client’s decision . . . as to a plea to be entered.” (Model Rule 1.2(a))  Moreover, the comments to Rule 1.2 explicitly state that the client has “ultimate authority to determine the purposes to be served by legal representation.” (Comment 1, Model Rule 1.2) In the same breath, the comments note that when client and lawyer may disagree, “[c]lients normally defer to the special knowledge and skill of their lawyer . . . with respect to technical, legal, and tactical matters.” (Comment 2, Model Rule 1.2 (emphasis added))

McCoy presents the Court with a harrowing extrication, however, of client rights and interpretation of a zealous push to “save” a life through lawyering tactics.  The tangled web lies in whether the client can determine that the overriding objective is not to stay alive. Chief Justice Roberts posed just that question during the argument: what if life in prison is worse than death to the defendant?  And, likewise, what if maintenance of innocence until the point of death is more important than living?

As the Court internally untangles this philosophical, psychological, and legal issue, it is important to keep our eyes on a few important questions and how the Court handles them: 1) Is there a slippery slope argument should the court find the lawyer to be in the right by tactically trying to avoid death for his client? 2) Was McCoy truly competent to stand trial, and how does the law offer redress if a mentally ill criminal defendant is somehow allowed to make legal directives after falling through the psychiatric cracks? 3) Is the avoidance of death the ultimate goal to be zealously fought for by lawyers in satisfaction of Sixth Amendment and under the Model Rules of Professional Conduct?

The Court’s decision is expected in late-June.  Oral arguments showed a leaning on both political wings towards the extreme protections of the Sixth Amendment and McCoy’s right to maintain innocence, even if it would ultimately lead to a death sentence.  As criminal lawyers around the country await the decision, the discussion should continue on this truly unique situation where rights directly impact life or death.

You can listen to oral arguments in McCoy here.

You can read the Writ of Cert to the Supreme Court here.

UPDATE: Supreme Court Decides McCoy v. Louisiana in Favor of Death Row Inmate

On Monday, May 14, 2018, the Supreme Court, with Justice Ginsburg penning the majority opinion, held that “a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.”  McCoy v. Louisiana, 584 U. S. __ (2018).  The Court went on to summarize the reasons for so holding:

Guaranteeing a defendant the right “to have the Assistance of Counsel for his defence,” the Sixth Amendment so demands.  With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.

Id. (quoting the Sixth Amendment with emphasis provided by Supreme Court).  The Court pointed out that avoiding the death penalty may not be the ultimate goal of the defendant.  Instead, “[h]e may wish to avoid, above all else, the opprobrium that comes with admitting he killed family members” or “he may hold life in prison not worth living and prefer to risk death for any hope, however small, of exoneration.”  Id.  Chief Justice Roberts raised just those questions during oral arguments in the case.  The Court drew the bright line that while “[t]rial management is the lawyer’s province,” certain other decisions “are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.”  Id.  Undoubtedly to the Court, “[a]utonomy to decide that the objective of the defense is to assert innocence belongs in this latter category.”  Id.  

The Court deemed this error “structural” in nature, meaning it “affects the framework within which the trial proceeds,” as distinguished from a “lapse or flaw that is simply an error in the trial process itself.”  Id. (internal quotations omitted).  As such, it was not subject to “harmless-error” review.  The Court determined that the remedy for such an error was a new trial for McCoy.

You can read the full opinion and the dissent by Justice Alito here.

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