SCOTUS: defense counsel cannot concede guilt over a client’s objection.

In January, I blogged on a case that was pending before the United States Supreme Court. The issue: in a criminal case, can a lawyer concede a client’s guilt over the client’s objection?

As reported by the ABA Journal, the Supreme Court issued its opinion yesterday.  The answer: no.

The case is State of Louisiana v. Robert Lee McCoy.  From the SCOTUS opinion, a quick recap:

“Petitioner Robert McCoy was charged with murdering his estranged
wife’s mother, stepfather, and son. McCoy pleaded not guilty to first degree
murder, insisting that he was out of State at the time of the
killings and that corrupt police killed the victims when a drug deal
went wrong. Although he vociferously insisted on his innocence and
adamantly objected to any admission of guilt, the trial court permitted
his counsel, Larry English, to tell the jury, during the trial’s guilt
phase, McCoy “committed [the] three murders.” English’s strategy
was to concede that McCoy committed the murders, but argue that
McCoy’s mental state prevented him from forming the specific intent
necessary for a first-degree murder conviction. Over McCoy’s repeated
objection, English told the jury McCoy was the killer and that
English “took [the] burden off of [the prosecutor]” on that issue.
McCoy testified in his own defense, maintaining his innocence and
pressing an alibi difficult to fathom. The jury found him guilty of all
three first-degree murder counts. At the penalty phase, English
again conceded McCoy’s guilt, but urged mercy in view of McCoy’s
mental and emotional issues. The jury returned three death verdicts.
Represented by new counsel, McCoy unsuccessfully sought a new
trial. The Louisiana Supreme Court affirmed the trial court’s
ruling that English had authority to concede guilt, despite McCoy’s

A 6-3 majority held that a criminal defendant has a constitutional “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.”

The Court’s opinion is rooted in the Sixth Amendment’s guarantee of effective assistance of counsel.  The Court held that the guarantee includes the right “to decide that the objective of the defense is to assert innocence.”  Indeed, “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.”

Nevertheless, defense counsel does not remain at the whim of the client.  As the Court noted, “[t]rial management is the lawyer’s province: Counsel provides his or her assistance by making decisions such as ‘what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.’ ”

In the end, the Court concluded that the decision to maintain innocence during the guilt phase of a trial is not a choice about tactics, but a choice that goes to the very objective of the representation.  As such, the Sixth Amendment reserves it for the client.

So do the Rules of Professional Conduct.  In fact, the opinion interests me because it’s related to legal ethics.

In Vermont, Rule 1.2(a) of the Rules of Professional Conduct requires lawyers to “abide by a client’s decisions concerning the objectives of [the] representation.”  The rule goes on to state that “[i]n a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.” Louisiana’s rule tracks Vermont’s; each tracks the Sixth Amendment.

Mr. McCoy’s objective was to be found not guilty. His lawyer conceded that he did not abide by his client’s objective. Here’s an excerpt from an affidavit that lawyer filed in one of the post-trial proceedings:

  • “I became convinced that the evidence against Robert McCoy was overwhelming ․ I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims and telling the jury that he was crazy but I believed that this was the only way to save his life. I needed to maintain my credibility with the jury in the penalty phase and could not do that if I argued in the guilt phase that he was not in Louisiana at the time of the killings, as he insisted. I consulted with other counsel and was aware of the Haynes case and so I believed that I was entitled to concede Robert’s guilt of second degree murder even though he had expressly told me not to do so. I felt that as long as I was his attorney of record it was my ethical duty to do what I thought was best to save his life even though what he wanted me to do was to get him acquitted in the guilt phase. I believed the evidence to be overwhelming and that it was my job to act in what I believed to be my client’s best interests .”

Alberto Bernabe is a professor at John Marshall Law School.  Professor Bernabe teaches torts & professional responsibility. He’s also a regular on this blog’s #fiveforfriday Honor Roll.  Here’s a portion of a blog that Professor Bernabe posted last fall after SCOTUS granted cert in the McCoy case:

  • “In this case, the defendant, Robert Leroy McCoy, refused his lawyer’s suggestion to accept a plea deal, and objected when the lawyer informed him he planned to concede guilt.  He also protested at trial, after the lawyer conceded guilt during the opening statement.  According to an article in the ABA Journal, ‘the lawyer maintained the concession was necessary because he had an ethical duty to save McCoy’s life.’  There is only one problem.  There is no such ethical duty.The duty of the lawyer is to represent the client and this includes following the client’s instructions as to the goals of the representation.”

At least insofar as it relates to the Sixth Amendment, the Supreme Court agrees.

(Professor Bernabe posted several links to the case’s history: they’re here.)

The decision to maintain innocence is the defendant’s.  It is a decision that is fundamentally different from the decisions about which witnesses to depose, which motions to file, and which arguments to make.

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One thought on “SCOTUS: defense counsel cannot concede guilt over a client’s objection.

  1. Less about duty of effective counsel than the right of an individual to control and decide risk management for himself. Recognizes the right of a party to maintain a posture independent of an institutional or collective consensus.


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