Liptak: Lawyer's strategy challenged, SCOTUS to review

Adam Liptak outlines challenge to defense attorney's trial strategy pending before the U.S. Supreme Court for the New York Times:

Two weeks before Robert McCoy was to be tried for a triple murder, his lawyer, Larry English, 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, , said he had a different strategy.

“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.

Mr. McCoy’s parents had paid Mr. English $5,000 to defend their son. They had borrowed the money, using their car as collateral.

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.”

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.

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.

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.

The Sixth Amendment guarantees a right to “the assistance of counsel.” Those words, the Supreme Court said in 1975 in Faretta v. California, indicate that the client is the boss.

“It speaks of the ‘assistance’ of counsel,” Justice Potter Stewart wrote, “and an assistant, however expert, is still an assistant.”
That case is McCoy v. Louisiana, No. 16-8255.

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