Here is how Justice Ginsburg concluded her majority opinion in McCoy v. Louisiana, decided yesterday by SCOTUS:
Larry English was placed in a difficult position; he had an unruly client and faced a strong government case. He reasonably thought the objective of his representation should be avoidance of the death penalty. But McCoy insistently maintained: “I did not murder my family.” Once he communicated that to court and counsel, strenuously objecting to English’s proposed strategy, a concession of guilt should have been off the table. The trial court’s allowance of English’s admission of McCoy’s guilt despite McCoy’s insistent objections was incompatible with the Sixth Amendment. Because the error was structural, a new trial is the required corrective.
For most Legal Ethics, Trial Advocacy, and Criminal Procedure professors, this result no doubt seems unexceptional. Clients may make foolish or even inexplicable choices, but the ultimate decision – whether to assert innocence or admit guilt – is up to them, so long as they are determined competent to stand trial. The job of a lawyer is to advise and assist, not to overwhelm or dictate the client’s own decisions. (Disclosure: I signed an amicus brief in McCoy, represented by Lawrence Fox of the Yale Ethics Bureau.)
The circumstantial evidence against McCoy was overwhelming, but there were no eyewitnesses to the triple murders with which he was charged. Defense counsel urged him to admit guilt as the only way to avoid the death penalty, but McCoy was adamant that he was not guilty, claiming a highly improbable alibi. McCoy ordered English to assert his innocence, but English did not comply.
It was thus reversible error, Justice Ginsburg explained – joined by Justices Kagan, Sotomayor, Breyer, Kennedy, and Chief Justice Roberts -- when “the trial court permitted counsel, at the guilt phase of a capital trial, to tell the jury the defendant “committed three murders. . . . [H]e’s guilty.” Moreover,
At the beginning of his opening statement at the guilt phase of the trial, English told the jury there was “no way reasonably possible” that they could hear the prosecution’s evidence and reach “any other conclusion than Robert McCoy was the cause of these individuals’ death.”
And,
English told the jury the evidence is “unambiguous,” “my client committed three murders.”
And,
In his closing argument, English reiterated that McCoy was the killer. On that issue, English told the jury that he “took [the] burden off of [the prosecutor].”
English’s strategy was to establish his credibility by not denying the obvious, and to use that to argue for leniency at the sentencing, based on McCoy’s mental state. It did not work. McCoy was sentenced to death for all three murders.
Justice Alito dissented, joined by Justices Thomas and Gorsuch, describing a world that is all but unrecognizable to criminal defense lawyers. First, Alito claimed that English had not really admitted McCoy’s guilt at all, but had only conceded “one element of the offense.” Thus, according to Alito, English’s tactic – in which he told the jury “my client committed three murders” – was no different than conceding “a prior felony conviction [that] the prosecution can easily prove beyond any shadow of a doubt.”
In any case, said Alito, McCoy should simply have fired his lawyer months before the trial, when he’d gotten the first glimmer of English’s strategy. (McCoy did try to dismiss English a few days before trial, when he learned of English’s actual plan.) Alito evidently thinks that a capital defendant in Louisiana should have no trouble changing lawyers:
[I]f counsel is appointed, and unreasonably insists on admitting guilt over the defendant’s objection, a capable trial judge will almost certainly grant a timely request to appoint substitute counsel. And if such a request is denied, the ruling may be vulnerable on appeal.
Yeah, right.
Fortunately, both Kennedy and Roberts saw the flaws in Alito’s thinking. Still, if Alito, Thomas, and Gorsuch are unwilling to join the majoirty in McCoy, you have to wonder if they would ever be willing to reverse any death penalty in the future.
I have nothing but sympathy for Larry English, who believed he was doing the best for his client under extremely difficult circumstances. But Justice Ginsburg got it quite right:
We hold 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. 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.
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