Admission of guilt by counsel leads to new rule of constitutional law

OCTOBER 2017 TERM

Ignoring the advice of one's lawyer is not often a winning strategy, particularly if the client is on trial for his life. In an unusual twist, a lawyer acted in a manner contrary to his client's directions, and saved his client's life. At least temporarily.

Principles of legal practice have long provided that certain decisions are for the client to make, and in criminal cases, the principle has constitutional support.

In criminal representation, the rules specify that three specific situations require that the lawyer abide by the client's wishes: "a plea to be entered, whether to waive jury trial and whether the client will testify." (Quoting ABA Model Rules of Professional Responsibility, Rule 1.2(a)).

A 2004 Supreme Court decision (Florida v. Nixon) acknowledged that these rules to have constitutional dimension.

The recent case of McCoy v. Louisiana asked the Supreme Court whether an admission of guilt by counsel, made as for tactical reasons, requires the client's agreement or authorization. 2018 DJDAR 4443 (May 14, 2018).

Robert McCoy, on trial in Louisiana state court for three murders, consistently maintained his innocence in the face of overwhelming evidence of guilt. His attorney believed, as a matter of professional judgment, that McCoy's only hope of avoiding the death penalty was to admit the acts, and argue diminished capacity. That would have made the killings second degree murder, at most. The lack of mental capacity to form the intent necessary for a conviction of first degree murder could lead the jury to convict on the lesser charge of second degree murder. That was the lawyer's hope.

The attorney, Larry English, a veteran Louisiana criminal practitioner, repeatedly urged his client to admit the killings, and abandon his very weak alibi defense. McCoy attempted to fire English, but the court required him to stay with the case.

Over his client's repeated objections, the attorney informed the jury that his client was in fact the killer.

English later told the New York Times, "When you're in a courtroom fighting for someone's life, you bring every skill and trick of the trade to save that person's life. A death penalty case is not normal."

The jury was not influenced by the tactic. It

convicted McCoy of first degree murder, and found that he should receive the death penalty.

McCoy based his appeal on what he contended was counsel's misconduct. The contention was that when the attorney did not follow his wishes on the fundamental question of admission of guilt, he was denied the fundamental right to control his own defense.

The Louisiana Supreme Court, on appeal, affirmed the conviction and death sentence.

The U.S. Supreme Court, having granted certiorari, was faced with deciding whether counsel's action, over client's objections, violated the duty every lawyer undertakes, to act in accordance with the client's direction on critical issues.

The court, in an opinion by Justice Ruth Ginsberg, held that "the decision whether to assert innocence" must be added to the three rights detailed above as reserved to the client. "These are not strategic choices about how best to achieve a client's objectives; they are choices about what the client's objectives are." Strategic choices are within the province of counsel.

Justice Ginsburg hypothesized that the client refusing to admit to a crime might want to "avoid the opprobrium that comes with admitting he killed family members." Or prefer death to life in prison. In any case, the decision is his to make.

The opinion further points out that the Sixth Amendment, guaranteeing right to counsel, speaks of "the Assistance of Counsel for his defence." As the accused has the right to represent himself, the right to ignore the advice of counsel follows.

The Supreme Court characterized counsel's action as a violation of "a defendant's Sixth Amendment secured autonomy" but not a dereliction of duty by counsel. That distinction removed from defendant the burden he would have in a malpractice claim, to show that he had been prejudiced by the violation.

The evidence was found by the appellate courts to fully support the jury's determination of guilt; the admission made no difference.

The opinion further characterized the error as "structural," that is, one going to the heart of the process, and not requiring prejudice to justify reversal of the judgment. There was no requirement of "harmless error review."

A structural error was defined by the Supreme Court in another opinion as one "not designed to protect the defendant but instead to protect some other interest," such as "the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty." Moreover, an error may be called structural if it is not possible to measure how much is affects the result, such a selection of counsel.

Robert McCoy will get a new trial, not because he was prejudiced by counsel's error, but because the error went to the heart of the system that tried him.

Three justices (Samuel Alito, Clarence Thomas and Neil Gorsuch) dissented, arguing that counsel did not admit that defendant was guilty of first degree murder, he admitted only that the defendant had committed the killings. First degree murder, the dissent maintained, requires mens rea (guilty intent). That element was not necessarily admitted when the killings themselves were conceded.

The dissent characterized counsel's action as admitting only a lesser included offense, second degree murder, and placed this in the category of strategic decisions which counsel is entitled to make.

That's hard to buy. Admitting three intentional killings will surely influence the jury in the direction of maximum punishment. The jury will hardly listen to the distinction the dissent is positing.

There was no reason for the state of Louisiana to expect a different result from the Supreme Court. (The state court had ruled on the basis of anticipated perjured testimony, an argument the Supreme Court dismissed.) Though the Louisiana opinion said that there was a split in the circuit courts on the issue, it cited only two cases, both of which reached the same result denying counsel the right to ignore the client's wishes. And, according to Newsmax, Louisiana was the only state to allow an attorney to concede guilt if the client did not concur.

The Supreme Court remanded the case for a new trial in accordance with its decision. There is no reason for McCoy to anticipate a different result.

This was the last case Larry English ever tried. As quoted in the New York Times: "I walked out of that courtroom saying I could never put myself through that again emotionally. I went into a deep depression...That had never happened before in my legal career."

Such are the perils of death penalty legal practice. But Larry English's unauthorized action resulted in a new rule of constitutional law.