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
opposition.”

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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Can a lawyer concede a client’s guilt over the client’s objection?

Updated on January 26, 2018

Question: in a criminal case, can a lawyer concede a client’s guilt over the client’s objection?

As reported by the ABA Journal, the question lies at the heart of an argument that the United States Supreme Court heard last week.  Outlets to report on the argument include The New York Times, Reuters, and USA Today.

The case is State of Louisiana v. Robert Lee McCoy.  In 2008, Mr. McCoy was charged with 3 counts of first degree murder.  In 2010, he hired a lawyer to replace the public defenders initially assigned.  Upon entering an appearance, the lawyer admitted that he was not certified to try death penalty cases, but that he expected to assemble a team of lawyers who were.  No such team was ever assembled.

In July 2011, two days before jury selection, the lawyer informed the court that Mr. McCoy wanted to fire him.  At a hearing, Mr. McCoy stated that he and his lawyer disagreed on trial strategy, with his lawyer insisting that he take a plea and not go to trial.  The court denied the motion as untimely.

Trial opened a month later.  During his opening statement, Mr. McCoy’s lawyer informed the jury “I’m telling you Mr. McCoy committed these crimes.”  He argued, however, that the evidence would show that his client suffered from such severe emotional issues that the jury ought to consider second degree murder.

Against the advice of counsel, Mr. McCoy testified.  Essentially, he testified that he had been framed.

The jury convicted Mr. McCoy of 3 counts of first degree murder.  Mr. McCoy was sentenced to death on each count.

Mr. McCoy appealed.  Among other things, he argued that he had been denied effective assistance of counsel and that his lawyer improperly conceded guilt over his objection. The Louisiana Supreme Court affirmed the convictions and death sentences.

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.

To me, Mr. McCoy’s objective was to be found not guilty. His lawyer did not pursue that objective.  Indeed, the lawyer doesn’t dispute that. 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.”

I tend to agree.

Per the ABA Journal, before the Supreme Court, the State of Louisiana “argued that lawyers should be able to ignore their client’s wishes in ‘a narrow class of death penalty cases’—when the client wants to pursue a strategy that is ‘a futile charade’ that defeats the objective of avoiding the death penalty.

Perhaps echoing Mr. McCoy’s argument, and as reported by The New York Times, Justice Kagan remarked “[t]here’s nothing wrong with what this lawyer did, if the goal is avoiding the death penalty.  The problem that this case presents is something different. It’s the lawyer’s substitution of his goal of avoiding the death penalty for the client’s goal.”

On the one hand, as a lawyer, it’s a dilemma I’d never want to face.  Indeed, “dilemma” is far too weak to describe the position in which the lawyer found himself.

On the other hand, should I ever be charged with a crime, I can’t imagine exercising my right to hold the government to its proof, only to have my own lawyer, against my express instruction, concede my guilt his opening statement.  It strikes me as the functional equivalent of my lawyer waiving my right to trial, waiving my right to testify, and pleading me out without my consent.  That’d be Kafka-esque.

Most media outlets that covered the argument reported that the Supreme Court appeared inclined to grant Mr. McCoy a new trial. However, as reported by Reuters,           “[t]he ruling could be a narrow one, with justices concerned about a broad decision that would limit the ability of lawyers to make strategic decisions during trials.”

I’m intrigued by one potential outcome: what if the Court holds that the lawyer reasonably, albeit erroneously, believed that the Constitution required him to concede his client’s guilt over the client’s objection? Is that an absolute defense to a 1.2(a) violation? Stated differently, wouldn’t we find it absurd for a lawyer to say something like “yeah, I know the Constitution required it, but it violates the ethics rules, so I didn’t do it.”

Or how about this – what if the lawyer’s gambit had worked?  Obviously doesn’t change the Rule 1.2(a) issue, but likely mitigates the sanction.  And, would the Court still be inclined to find ineffective assistance if Mr. McCoy had been convicted of 2nd degree murder and spared the death penalty?

I’ll revisit this matter when the Supreme Court issues an opinion.

 

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