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October 9, 2017

Reviewing the backstory of the Supreme Court's recent capital cert grant

As noted in this post a couple of weeks ago, the Supreme Court recently added a capital case to its docket. Adam Liptak's latest New York Times "Sidebar" column is focused on that new case.  This piece, headlined "Facing the Death Penalty With a Disloyal Lawyer," includes these passages:

Two weeks before Robert McCoy was to be tried for a triple murder, his lawyer paid him a visit.  It was the summer of 2011, and the two men met in a holding cell in a Louisiana courthouse.  Mr. McCoy, who was facing the death penalty, told his lawyer he was innocent. Mr. McCoy was adamant. Others had committed the crimes, he said, and he wanted to clear his name.

The lawyer, Larry English, said he had a different strategy. “I met with Robert at the courthouse and explained to him that I intended to concede that he had killed the three victims,” Mr. English recalled in a sworn statement.  “Robert was furious and it was a very intense meeting. He told me not to make that concession, but I told him that I was going to do so.”...

Conceding guilt in a capital case is sometimes the right play.  Last month, the Supreme Court agreed to decide whether it is permissible even if the man whose life is at stake objects.

Mr. McCoy was accused of killing Christine Colston Young, Willie Young and Gregory Colston, who were the mother, stepfather and son of Mr. McCoy’s estranged wife. There was substantial evidence that he had done so. There was also reason to think that Mr. McCoy’s belief in his innocence was both earnest and delusional.

There was no ambiguity in Mr. McCoy’s position, Mr. English recalled. “I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims,” Mr. English said. “But I believed that this was the only way to save his life.”

After the meeting, Mr. McCoy tried to fire his lawyer, saying he would rather represent himself. Judge Jeff Cox, of the Bossier Parish District Court, turned him down. “Mr. English is your attorney, and he will be representing you,” the judge said....

During his opening statement at the trial, Mr. English did what he had promised to do. “I’m telling you,” he told the jury, “Mr. McCoy committed these crimes.” Mr. McCoy objected. “Judge Cox,” he said, “Mr. English is simply selling me out.”

“I did not murder my family, your honor,” Mr. McCoy said. “I had alibis of me being out of state. Your honor, this is unconstitutional for you to keep an attorney on my case when this attorney is completely selling me out.”

Whatever its wisdom, Mr. English’s trial strategy failed. Mr. McCoy was convicted and sentenced to death. He appealed to the Louisiana Supreme Court, saying his lawyer had betrayed him. The court ruled against him. “Given the circumstances of this crime and the overwhelming evidence incriminating the defendant,” the court said, “admitting guilt in an attempt to avoid the imposition of the death penalty appears to constitute reasonable trial strategy.”

The decision relied on a unanimous 2004 ruling from the United States Supreme Court in Florida v. Nixon, which said lawyers need not obtain their clients’ express consent before conceding guilt in a capital case. But the ruling did not address whether it was permissible for a lawyer to disregard a client’s explicit instruction to the contrary.

That is the question in the new case, McCoy v. Louisiana, No. 16-8255.  The right answer, Louisiana prosecutors told the justices, is that lawyers may ignore their clients’ wishes. “Counsel’s strategic choices should not be impeded by a rigid blanket rule demanding the defendant’s consent,” they wrote in a brief urging the court not to hear the case.

In a brief supporting Mr. McCoy, the Ethics Bureau at Yale, a law school clinic, said Mr. English had essentially switched sides. “Far from testing the prosecution’s case,” the brief said, “Mr. English seemed downright eager to advance it.”

Mr. McCoy’s situation is not particularly unusual, according to a second supporting brief, this one filed by the Louisiana Association of Criminal Defense Lawyers and the Promise of Justice Initiative, a nonprofit group. “In Louisiana,” the brief said, “a capital defendant has no right to a lawyer who will insist on his innocence.” Since 2000, the brief said, the Louisiana Supreme Court allowed defense lawyers to concede their clients’ guilt in four other capital cases over the clients’ express objections.

October 9, 2017 at 05:00 PM | Permalink


Defendants repeatedly don't agree with the strategy of admitting guilt even when it is probably the best approach. At times, however, this "safer" approach is not compelled by the evidence & in fact might be only the easy wait out, not the best way.

I'm quite willing to believe that the lawyer here made a reasonable decision that to avoid the death penalty that it was necessary to admit guilt. This is a roll of the dice. Might lose either way. But, admitting guilt might give him a fighting choice.

But, if the defendant firmly rejected guilt -- did not just stay mute and not give express consent -- it is problematic to let a lawyer over one's objection basically waive his presumption of innocence. There seems other issues -- among the defendant's dubious decisions here was resisting counsel skilled in capital cases.

Posted by: Joe | Oct 9, 2017 5:59:03 PM

I don't normally agree with David's comments about the "lawyer dumbass" but this case is Exhibit A for David. First, the lawyer represents the client and no one else. As Lincoln said, "a house divided cannot stand" and a lawyer who has loyalty to something or someone else other than the client cannot stand. The idea that this disloyalty is a "trial strategy" is a "lawyer dumbass" comment. The common man on the street has a phrase for this "trial strategy"--they call it a "kangaroo court". I mean if the lawyer can do something against the express wishes of the client then why bother to have a trial at all...let the prosecutor, the judge, and the defense attorney settle the case over drinks at the bar. The entire thing is so ridiculous...the lawyer was selling him out and it is going to take SCOTUS to correct that problem,,,,ridiculous. I bet 10-1 its going to be 9-0 to overturn. The state won't even get Alito's vote...it is that preposterous.

Posted by: Daniel | Oct 9, 2017 8:31:34 PM

If I had told you, this story took place in Turkey or in Mexico, what would people say about those justice systems? This is an unbelievable story, yet appears to not be rare.

Here is what you would say, as happened in real life. We will punish those entire nations by slashing tourism, and posting a State Department warning to avoid travel there. You would punish those nations with $billions in lost revenues, and destroy the lives of innocent people in the tourism industry, because they offended a drug dealer. The movie, Midnight Express, did just that. The same was done to Mexico when that vet got lost, and was found with a gun on a road on the Mexican side of the border. We said, punish Mexico and its people.

Forget Turkey and Mexico.

A surgeon is refused consent for an operation by a patient. The patient signs, a form, stating, his refusal is against all medical advice. The advice is confirmed by a second surgical opinion. Operate or die, the surgeons are saying. The surgeon does the operation anyway, because the experts believe it would help the patient. The surgeon in merely opening the body, and fixing something wrong. What if the operation hurts the patient. What would you say? This lawyer is taking the entire life of the client without consent, and not just some diseased organ.

The Supreme Court ruled patients may refuse, even life saving treatment, since 1891, and have affirmed this view in a a dozen decisions, since that time. Someone has to explain how refusing treatment differs from declining the tactics of a lawyer facing death, the death penalty being a medical procedure, it seems. If the surgery without consent is deemed a battery, this tactic without consent should be deemed a murder.

In Louisiana, Rule 1.16 (a)(3) states the lawyer will withdraw if discharged by the client. Rule 1.14 (b) requires the appointment of a guardian for clients one believes cannot judge in their own best interest. To get a guardian appointed, the lawyer would have had to show the client to be incompetent to stand trial. Rule 1.8 (a) (2) requires, in writing, the opportunity to get a second opinion from independent counsel? Was any of that done, in this case?

The ethics violation meter is spinning at supersonic speed, in this case, with death at stake.

Daniel, this case is a test. Will the Supreme Court decide the way students in Life Skills Class would decide every time? Is the Supreme Court as smart as a Life Skills Class student, learning to eat food with a spoon?

Posted by: David Behar | Oct 9, 2017 9:18:34 PM

I would appreciate Bruce's opinion.

Be an ethical lawyer. Obey 1.14 (b).

Have the client declared incompetent to stand trial. Have a guardian appointed. Leave him in this legal state, incompetent to stand trial, in perpetuity. He could go live in a group home, with staff supervision. Not a bad outcome for the tricky lawyer.

Bruce. I know I am biased for victims. However, I demand fairness credit for this defense point. Have you ever seen any defense lawyer this tricky in real life? And, I am a total civilian. With the mental defects to be found in just about all defendants, this path may lead them all out the death penalty.

I would then support the Italian Death Penalty for the clients, at no additional tax payer expense.

Posted by: David Behar | Oct 9, 2017 10:05:14 PM

“Our prolonged examination of the situation in foreign countries has increasingly confirmed us in the assurance that capital punishment may be abolished in this country without endangering life or property or impairing the security of society. Further, we have the repeated assurances of the Home Office itself that abolition of the death penalty will not bring with it any serious or insoluble problem of administration.”
Parliamentary Committee of the British House of Commons 1930
Quoted in Calvert 1930 p 48

"It has not, in effect, been found that the repeal of Capital Punishment with regard to any particular class of offenses has been attended with an increase of the offenders. On the contrary, the evidence and statements ... go far to demonstrate that, as the proportion of those actually executed for to those actually convicted of any particular class of crime has become less, the absolute number of the offenders has diminished".
Noted in the second report of His Majesty's Commissioners on Criminal Law (1836)

Posted by: Claudio Giusti | Oct 10, 2017 12:01:19 PM

I had once considered writing a student comment on this issue but, at the time, decided it was too narrow an issue for a broad interest (I think the state this was most litigated was Delaware). In retrospect, I wish I had.

Posted by: Erik M | Oct 10, 2017 4:11:38 PM

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