"I didn't do it!": Capital counsel cannot "sell out" clients as a matter of strategy to avoid death

McCoy v. Louisiana, No. 16-8255 (U.S., May 14, 2018)

“I didn’t do it!”: Capital counsel cannot “sell out” clients as a matter of strategy to avoid death

In a 6-3 opinion authored by Justice Ginsburg, the U.S. Supreme Court held that “a defendant has the right to insist that his counsel refrain from admitting guilt, even when counsel’s experience-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.”  The background of this case, drawn from the opinion of the Court and Justice Alito’s dissent, was this:

Before the killings took place, petitioner had abused and threatened to kill his wife, and she was therefore under police protection. On the night of the killings, petitioner’s mother-in-law made a 911 call and was heard screaming petitioner’s first name. She yelled: “‘She ain’t here, Robert . . . I don’t know where she is. The detectives have her. Talk to the detectives. She ain’t in there, Robert.’” Moments later, a gunshot was heard, and the 911 call was disconnected.

Officers were dispatched to the scene, and on arrival, they found three dead or dying victims—petitioner’s mother-in-law, her husband, and the teenage son of petitioner’s wife. The officers saw a man who fit petitioner’s description fleeing in petitioner’s car. They chased the suspect, but he abandoned the car along with critical evidence linking him to the crime: the cordless phone petitioner’s mother-in-law had used to call 911 and a receipt for the type of ammunition used to kill the victims. Petitioner was eventually arrested while hitchhiking in Idaho, and a loaded gun found in his possession was identified as the one used to shoot the victims. In addition to all this, a witness testified that petitioner had asked to borrow money to purchase bullets shortly before the shootings, and surveillance footage showed petitioner purchasing the ammunition on the day of the killings. And two of petitioner’s friends testified that he confessed to killing at least one person.

Despite all this evidence, petitioner, who had been found competent to stand trial and had refused to plead guilty by reason of insanity, insisted that he did not kill the victims. He claimed that the victims were killed by the local police and that he had been framed by a farflung conspiracy of state and federal officials, reaching from Louisiana to Idaho. Petitioner believed that even his attorney and the trial judge had joined the plot.

Unwilling to go along with this incredible and uncorroborated defense, [Attorney] English told petitioner “some eight months” before trial that the only viable strategy was to admit the killings and to concentrate on attempting to avoid a sentence of death. At that point—aware of English’s strong views—petitioner could have discharged English and sought new counsel willing to pursue his conspiracy defense; under the Sixth Amendment, that was his right. But petitioner stated “several different times” that he was “confident with Mr. English.”

The weekend before trial, however, petitioner changed his mind. He asked the trial court to replace English, and English asked for permission to withdraw. Petitioner stated that he had secured substitute counsel, but he was unable to provide the name of this new counsel, and no new attorney ever appeared. The court refused these requests and also denied petitioner’s last-minute request to represent himself. (Petitioner does not challenge these decisions here.) So petitioner and English were stuck with each other, and petitioner availed himself of his right to take the stand to tell his wild story. Under those circumstances, what was English supposed to do?

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At the beginning of [Attorney English’s] 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.” McCoy protested; out of earshot of the jury, McCoy told the court that English was “selling [him] out” by maintaining that McCoy “murdered [his] family.” The trial court reiterated that English was “representing” McCoy and told McCoy that the court would not permit “any other outbursts.” Continuing his opening statement, English told the jury the evidence is “unambiguous,” “my client committed three murders.” McCoy testified in his own defense, maintaining his innocence and pressing an alibi difficult to fathom. 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].”The jury then returned a unanimous verdict of guilty of first-degree murder on all three counts. At the penalty phase, English again conceded “Robert McCoy committed these crimes,” but urged mercy in view of McCoy’s “serious mental and emo- tional issues.” The jury returned three death verdicts.

This case was an important one not just because it expounded upon the Sixth Amendment right to self-representation and all that that entails.  But the case was an important one for defense practitioners in outlining the ethical obligations that defense counsel owes to the client. 

Generally speaking, in the course of representing the criminally accused, it is understood that matters of strategy are largely left to the broad discretion of legal counsel, but four important decisions are left for the accused to make: (1) whether to plead guilty, (2) whether to waive the right to a jury trial, (3) whether to testify in one’s own behalf, and (4) whether forgo an appeal.  In sum, it is said, strategy is left to the attorney, but the objectives of representation are left to the client.

In this case, Robert McCoy’s attorney, English, took the position that, in the face of overwhelming evidence against his client, it was the better strategy to concede guilt to the jury in the guilt-phase of McCoy’s trial in the hopes of gaining credibility with the jury and garnering sympathy for McCoy so that his life might be spared in the penalty phase.  Here, however, the Supreme Court said that “[a]utonomy to decide that the objective of the defense is to assert innocence belongs in this latter category” of the decisions reserved to the client.  The Court reasoned:

Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial.  These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are.

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Counsel may reasonable assess a concession of guilt as best suited to avoiding the death penalty, as English did in this case.  But the client may not share that objective.  He 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.

From this, the Court said, “When a client expressly asserts that the objective of “his defense” is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.”  An ethical issue reared its head in this case, though.  The Louisiana Supreme Court was of the opinion that Attorney English’s refusal to maintain his client’s innocence was necessitated by the Rules of Professional Conduct, namely Rule 1.2(d), which provides that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.”  The Louisiana Supreme Court said that Attorney English’s presentation of his client’s outrageous alibi defense would have put English in an “ethical conundrum,” implicating Attorney English in perjury.  But the U.S. Supreme Court had this to say on that issue.

There was no such avowed perjury here.  English harbored no doubt that McCoy believed what he was saying; English simply disbelieved McCoy’s account in view of the prosecution’s evidence.  English’s expressed motivation for conceding guilt was not to avoid suborning perjury, but to try to build credibility with the jury, and thus obtain a sentence lesser than death.  Louisiana’s ethical rules might have stopped English from presenting McCoy’s alibi evidence if English knew perjury was involved.  But Louisiana has identified no ethical rule requiring English to to admit McCoy’s guilt over McCoy’s objection.

Accordingly, agreeing with a majority of state courts of last resort, the U.S. Supreme Court held that defense counsel may not admit a client’s guilt over the client’s intransigent objection to that admission.  Because English did so here, the U.S. Supreme Court deemed the error to be “structural”—in that it violated McCoy’s Sixth Amendment-secured autonomy—and it ordered a new trial.  (The Court did not apply its ineffective-assistance-of-counsel jurisprudence because counsel’s competence wasn’t in issue rather the client’s autonomy was in issue.)

***Personal note: Now, I’m not one to agree with Justice Alito frequently, but Justice Alito raises important points in his dissent.  First, Justice Alito notes in the conclusion of his dissenting opinion that “[t]he Court ignores the question actually presented by the case before us.”  Notably, the question for review by the Court was “whether it is unconstitutional to allow defense counsel to concede guilt over the defendant’s intransigent and unambiguous objection.”  Here, Justice Alito points out that Attorney English did not concede guilt to the offense charged (i.e. first-degree murder), but he conceded a critical element of the offense—the act of killing itself, or the actus reus.  Justice Alito wrote: “English strenuously argued that [McCoy] was not guilty of first-degree murder because he lacked the intent (the mens rea) required for the offense.”

Considering this, Justice Alito raised “a related” and “difficult” question: When guilt is the sole issue for the jury, is it ever permissible for counsel to make the unilateral decision to concede an element of the offense charged?  Justice Alito raises these thought-provoking questions/hypotheticals in his dissent:

  • Some criminal offenses contain elements that the prosecution can easily prove beyond any shadow of a doubt.  A prior felony conviction is a good example. See 18 U.S.C. § 922(g) (possession of a firearm by a convicted felon). Suppose that the prosecution is willing to stipulate that the defendant has a prior felony conviction but is prepared, if necessary, to offer certified judgments of conviction for multiple prior violent felonies. If the defendant insists on contesting the convictions on frivolous grounds, must counsel go along?
  • What about conceding that a defendant is guilty, not the offense charged, but of a lesser included offense?
  • Is admitting guilt of a lesser included offense over the defendant’s objection always unconstitutional?
  • Where the evidence strongly supports conviction for first-degree murder, is it unconstitutional for defense counsel to make the decision to admit guilt of any lesser included form of homicide—even manslaughter?  What about simple assault?

I can say that the Court’s opinion and the statements contained in it (albeit dicta) raised more questions than it provided answers to me as a defense attorney.  However, I suppose the surest way to resolve a lot of these concerns is to have open communication with the client and to achieve buy-in to the overall defense strategy. Where that is not possible—and that seems more probable in the context of court-appointed representation—erring on the side of the client’s ill-advised wishes may be the surest path to staying on the right side of the ethical dividing line.  The Court’s opinion noted: “A lawyer is not placed in a professionally embarrassing position when he is reluctantly required  . . . to go to trial in a weak case, since that decision is clearly attributed to his client.”