Supreme Court Report

Supreme Court rules lawyers cannot defy their clients’ wishes to argue for their innocence

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Two weeks before trial, English told McCoy that he planned to concede to the jury that his client committed the murders in hopes of getting mitigation at the penalty phase. McCoy was furious, English later testified, and was “completely opposed” to admitting guilt.

The trial judge held that it was too late for McCoy to fire English, and the trial proceeded in 2011. In English’s opening statement, he said, “There is no way reasonably possible that you can listen to the evidence in this case” and not conclude that McCoy was “the cause of these individuals’ deaths.” McCoy objected and then, with the jury removed, complained to the judge that English was “simply selling [him] out.”

English said McCoy lacked the mental capacity to form specific intent, as was required for first-degree murder. He told the jury that even though McCoy had been judged competent, his client was “crazy” and the charge should be second-degree instead.

McCoy took the stand in his own defense, repeating his conspiracy theory and Houston alibi, which Ginsburg in her opinion called “difficult to fathom.”

In his closing argument, English reiterated that McCoy was the killer. The jury found him guilty of first-degree murder on all three counts. At the penalty phase, English urged mercy in view of McCoy’s “serious mental and emotional issues.” The jury voted for death.

having hope, however small

The Louisiana Supreme Court affirmed the trial court’s decision that defense counsel could concede guilt despite the defendant’s opposition. It held that such a concession was permissible because the lawyer believed that admitting guilt gave McCoy the best chance to avoid a death sentence.

Several other state courts of last resort had reached different conclusions on the Sixth Amendment question, however, and the U.S. Supreme Court took up an appeal from McCoy, by then represented by other lawyers, to resolve the question.

Ginsburg, in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, stressed that trial management on matters such as what arguments to pursue and what objections to raise “is the lawyer’s province.” But some 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.”

“Counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty, as English did in this case,” Ginsburg said. “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.”

The court held that the error in McCoy’s case was structural, and thus he must be granted a new trial. Ginsburg cited, among other things, ABA Model Rule 1.2(a) that says a “lawyer shall abide by a client’s decisions concerning the objectives of representation.”

The ABA had filed an amicus brief on McCoy’s side, as had Fox at Yale Law School, on behalf of the school’s Ethics Bureau and 10 law professors from various institutions. “There is a tendency among lawyers, including yours truly, to convince the client we know what’s best,” Fox says. “But at the end of the day, we’re the agents and the client is the principal.”

Andrea D. Lyon, former dean of Valparaiso University Law School and a former public defender, says in capital cases such as McCoy’s, the defendant’s life is at stake. “That doesn’t mean I’ve never pushed a client” toward a particular strategy, she says. “But there is a difference between pushing and overriding.”

Alito’s dissent, which was joined by Justices Clarence Thomas and Neil M. Gorsuch, said the majority’s holding will be limited to “cases involving irrational capital defendants who disagree with their attorneys’ proposed strategy yet continue to retain them.”

But in cases in which guilt is the sole issue for the jury, Alito said the decision could present difficult questions for defense lawyers, such as whether they can concede elements of a crime as part of broader defense strategy or whether admitting guilt of a lesser included offense over the defendant’s objection would always be unconstitutional. “These are not easy questions,” but at least they’ll arise infrequently, said Alito, a former federal prosecutor.

Erica J. Hashimoto, a law professor at Georgetown University whose writing on the autonomy of criminal defendants to control their cases was cited by Ginsburg in her majority opinion, says similar questions may arise more frequently than Alito believes. “The lawyer can exercise his or her judgment, but there are some decisions that are just so fundamental that they just have to be up to the client ,” she says.


This article was published in the July 2018 ABA Journal magazine with the title "Guilty Conscience: Court rules lawyers cannot defy their clients’ wishes to argue for their innocence, even if admitting guilt could save their lives."

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