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May 14, 2018

Among lots of CJ work, SCOTUS finds capital defendant's Sixth Amendment rights violated by counsel's unauthorized concession of guilt

The US Supreme Court got back to business this morning with a lot of notable activity in the criminal justice arena.  As noted in this prior post, there were a bunch of significant Dimaya GVRs.  In addition, the Court handed down five opinions in argued cases.  Four of the cases decided today involve criminal defendants, though the biggest of the rulings should also be of great interest to criminal justice fans as it addresses the relationship between federal prohibitions and state laws.  The federalism case, Murphy v. NCAA, No. 16–476 (S. Ct. May 14, 2018). (available here), may be of particular interest to advocates for state-level marijuana reforms, and I have this initial post on that case over at Marijuana Law, Policy & Reform.

Criminal procedure is the focal point of the four other SCOTUS cases handed down this morning: Byrd v. United StatesDahda v. United StatesMcCoy v. LouisianaUnited States v. Sanchez-Gomez.  This alphabetic list of these four rulings may also roughly approximate their order of importance/significance, though I welcome reader input on whether there are some important elements to a set of decisions that all seem somewhat narrow and fact-specific.  The ruling that may be of greatest interest to sentencing fans in McCoy, which split the Court 6-3 and starts with these paragraphs from Justice Ginsburg writing for the Court:

In Florida v. Nixon, 543 U.S. 175 (2004), this Court considered whether the Constitution bars defense counsel from conceding a capital defendant’s guilt at trial “when [the] defendant, informed by counsel, neither consents nor objects,” id., at 178.  In that case, defense counsel had several times explained to the defendant a proposed guiltphase concession strategy, but the defendant was unresponsive. Id., at 186.  We held that when counsel confers with the defendant and the defendant remains silent, neither approving nor protesting counsel’s proposed concession strategy, id., at 181, “[no] blanket rule demand[s] the defendant’s explicit consent” to implementation of that strategy, id., at 192.

In the case now before us, in contrast to Nixon, the defendant vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt. App. 286–287, 505–506.  Yet 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.” Id., at 509, 510.  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.

May 14, 2018 at 10:42 AM | Permalink


Lots of questions for the next wave of cases.

NCAA would seem to say that a state could: 1) decriminalize; and 2) bar state police officers from assisting in federal marijuana cases.
Byrd -- A lot depends on what happens next. It seems to make a distinction between borrowing the car and fraudulently not listing the real driver. Whether that distinction holds up depends.
Dahda -- It seems to be based on statutory grounds. What that means in future cases involving "overbroad" search warrants is unclear.

The big questions will probably involve McCoy. Is "all or nothing" a defense strategy (to be decided by counsel) or an objective (to be decided by defendant). If McCoy bars the concession of any element or any lesser-included over defendant's objection, that could be a big thing. If on other hand, it is limited to conceding guilt of the charged offense, it is probably just limited to capital cases.

Posted by: tmm | May 14, 2018 12:32:48 PM

When I was a 2L in Law School, I thought about writing about the exact issue from McCoy. There was a case that had recently been decided in Delaware and I thought it was on point. But I ultimately decided "nah, no one cares about a case from Delaware" and I didn't write it. I have no idea if my topic was preempted or if I would have come up with a good answer, but I really think, in retrospect, that it was something worth publishing, so I'm kicking myself for not doing it.

To me, this case is an interesting one when it comes to formal rules vs. their practical effects. I had commented recently on a similar case where the defense attorney wanted to block an execution his client wasn't opposing. It's important to recognize you have a client, not a cause.

Prof. Berman, would you happen to know the statistics on whether conceding guilt actually makes a difference?

Posted by: Erik M | May 14, 2018 5:58:15 PM

Doug, I have been litigating issues of defense lawyers making unauthorized concessions of guilt of their client since 1987 and will make a couple observations.

In 1987 in State v David Brown, a federal habeas court vacated a death sentence, because during the sentencing phase argument, the defense lawyer told the jury "We don't know why he did it", when the def didn't acknowledge he "did it." Unfortunately, the Fourth Circuit reversed for lack of prejudice.

About the same time, the NC Supreme Court decided in State v Harbison that unauthorized concession of guilt is ineffective assistance , per se, requiring a new trial. Unlike Florida v Nixon, which requires prejudice for a new trial.

This issue of unauthorized concessions by counsel goes from the top to the bottom of the criminal specter. I will send you a very well written order in a post conviction case , where a judge gave my client a new sentencing hearing when the defense lawyer argued to the judge, without authorization, that the def shouldn't be considered for a mitigated range sentence. NC has a three tier form of sentencing, where a defendant is eligible for a lower, "mitigated range" sentence" if a mitigating factor exists. Judges must inform defendants that "Do you understand that you have the right to proving the existence of mitigating factors in your case." My argument was the lawyer waived the defendant's personal right without consent. The post conviction judge held that not only was the waiver by counsel, instead of def, improper, it was ineffective assistance per se, under Weaver v Massachussetts.

You have my permission to post the Order. Many, many defense lawyers take it on themselves to argue a defendant should receive a middle range, "presumptive" sentence, without asking their client if it is okay to give up the chance at a lower sentence.


Posted by: bruce cunningham | May 15, 2018 7:58:52 AM

Dissent seems to have the better of the argument.

Posted by: federalist | May 15, 2018 8:14:04 AM

Bruce. That was a nicely reasoned, lawyerly, easy to understand comment. Very good.

Posted by: David Behar | May 15, 2018 10:24:14 PM

@David - Good post to Bruce...

Posted by: MidWestGuy | May 15, 2018 11:45:06 PM

Reading this case in more detail, there are some concerns over practical consequences. If a defendant is accused of larceny of an automobile and wants to deny stealing it, can the defense attorney argued he did steal it but it was unauthorized use? The opinion seems to say that an attorney can concede elements of an offense as a matter of trial strategy, but if the defendant pleads not guilty and wants to assert he's not guilty of all charges, maybe they can't concede any element that would result in a conviction for some crime.

Now maybe that is the rule and maybe it should be the rule, but I wish the opinion was a little more clear on this issue.

Posted by: Erik M | May 16, 2018 10:03:51 AM

To put Erik's post into a practical context, think of the typical burglary case. The police got lucky and found the defendant's fingerprint inside the house, but the defendant wants to deny that he was even there. Can the defense attorney concede the unlawful entry but claim that he was there for a quasi-legitimate reason (e.g., homeless and wanted to get out of the rain) while denying an intent to steal anything? Could defense counsel -- over client's objection -- request an instruction for the lesser of trespass? If defense counsel can't or doesn't request a trespass instruction, can the State request a trespass instruction? Does the request for a trespass instruction change the analysis of whether trial counsel improperly conceded guilt?

I think that the dissent is right that the majority is rather vague about the limits of the rule being adopted. I just worry that the dissent noting the possible far reaches of this decision will -- as has occurred in other cases -- be used by lower courts to hold that the new rule does go that far.

Posted by: tmm | May 16, 2018 10:32:48 AM

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