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Supreme Court Hears Arguments on Whether the Sixth Amendment Limits a Lawyer’s Strategic Decision to Concede Guilt in Death Penalty Case


Robert McCoy was convicted of murdering his estranged wife’s mother, stepfather and son by a Louisiana jury, and condemned to die.  He is currently before the United States Supreme Court (McCoy v. Louisiana, No. 16-8255), which will shortly hear argument on whether his rights under the Sixth Amendment were violated when his attorney, in his opening at the trial, conceded that McCoy had committed the murders.  The attorney did so over McCoy’s strenuous and repeated objections, made to the lawyer and to the judge before trial.

While there is a subsidiary issue of effective assistance of counsel, there is no question that the attorney made a considered strategic decision that making the concession was the best chance to spare McCoy the death penalty.  The primary issue is whether this decision was the lawyer’s to make, or whether it was exclusively the client’s to make.

The facts that led the lawyer to this position are as follows:  In April of 2008, McCoy’s wife reported that he hid in her home and attacked her with a knife, threatening to kill her and himself, then fled.  He was not apprehended and she took her daughter and went into protective custody out of state.  Her eldest son, who was in his last year of high school, stayed with her mother and stepfather.

On May 5, the mother made a 911 call from her house, in which she is heard screaming “Robert, she ain’t here Robert.  I don’t know where she is.  The detectives have her.  Talk to the detectives.  She ain’t in there Robert.”  A gunshot followed and the line went dead.  The mother, stepfather and son were all found shot in the head when police arrived.

Police chased a white Kia leaving the house.  The car stopped and the driver, who resembled McCoy, ran away.  In the car was a receipt for .380 bullets.  Security video from the store showed McCoy as the purchaser.

McCoy was arrested several days later in Idaho, in a truck bound for California in which he was a hitchhiker.  A .380 gun was hidden behind the seat he was in.  Ballistics evidence showed that this gun had fired the cartridges found at the murder scene.  Two of McCoy’s friends testified at trial that he had been in Louisiana the night before and day of the murders.  One testified he asked her for money to buy bullets and phoned on May 5 to tell her he had shot someone in the head.

McCoy, despite this evidence, insisted that he had been in Texas on the day of the murders and had alibi witnesses he wanted his attorney to subpoena for trial.  He claimed that the police, in Louisiana and in Idaho, had conspired to plant the gun in the truck and implicate him in the murders.  He contended that the three were shot by police who were involved with them in illegal drug transactions.

McCoy’s attorney, in a pretrial hearing, stated his belief that, despite having been found competent to stand trial and at one point to represent himself, McCoy was crazy and did not know his own best interests.  The attorney considered that his ethical obligation was to override the client’s stated objective to contest guilt at trial in order to increase his chances of not being condemned to death.  However, he did not request that the Court reexamine McCoy for competency.

McCoy, at that pretrial hearing, asked the judge to allow him to represent himself rather than allow the attorney to concede his guilt.  The judge denied that request as untimely.  The attorney conceded his client’s guilt in his opening, and went further to tell the jury that he was relieving the prosecutor of his burden to prove guilt and their obligation to find McCoy guilty only if convinced by the evidence beyond a reasonable doubt.

McCoy testified to his alibi and theory of police collusion and involvement in the murders of the victims and was convicted.

There is no question that the evidence of guilt was overwhelming, and the chances of success in avoiding conviction were miniscule – most likely nonexistent.  McCoy – and his supporting Amici – assert that regardless of the strength of the evidence, regardless of how apparently benighted the defendant’s position is, the choice to concede guilt is his alone under the constitution, and the lawyer cannot do so over his objection, however reasonable it is as a strategic decision.

There are certain very clear, personal rights embodied in the Sixth Amendment that belong only to the accused.  Whatever the views of the lawyer, only the defendant can decide whether to plead guilty or go to trial; only the defendant can decide whether to testify or remain silent at trial.  These are decisions the lawyer cannot interfere with.  On the other hand, decisions about trial strategy – who to call as witnesses, whether and how to cross-examine prosecution witnesses, whether to object to certain evidence, what aspects of the prosecution’s case to focus on attacking – are generally made by the lawyer.  The defendant also has the right to forego a lawyer and represent him or herself, thus controlling all trial decisions, but if there is a lawyer the defendant’s absolute rights are limited to very specific decisions.

In this case, the defendant elected to go to trial.  Implicit in that decision is the decision not to plead guilty.  So, if the defendant does not want to plead guilty and wants to go to trial, and both of those choices are constitutionally his alone, what of a decision by the lawyer to concede guilt?  Is it the functional equivalent of pleading guilty?  What of a decision to concede some part of the elements of the offense, such as conceding in a rape case that the defendant had sex with the complainant but maintaining that it was consensual?  That would not give rise to a claim on a par with the right to a trial, as something that the defendant, personally, is guaranteed by the constitution.

And, of course, in a death penalty case, there is a further trial after guilt, and the lawyer did not concede – indeed disputed – that the defendant deserved to die. The State argues that this is a reasonable strategic decision, something the defendant cannot control.

McCoy argues that the decision to concede, or not concede, guilt was his alone, and that regardless of the wisdom of doing so, he had the right, guaranteed by the constitution, to make that fundamental decision as a matter of respect for the individual’s autonomy – that as the person who will suffer the consequences of the verdict, it is his prerogative whether to contest the charges or not, and that includes the decision whether to concede guilt or not.

This case is at the intersection of three complicating factors.  The first is that the Supreme Court has held that the defendant is NOT required to affirmatively endorse counsel’s decision to concede guilt in hopes of avoiding death.  In Florida v. Nixon, 543 U.S. 175 (2004), the attorney proposed to concede guilt and the client neither assented nor objected.  The Supreme Court concluded that the strategy was appropriate and that the client did not need to affirmatively agree to it.  So the strategy is not per se violative of the constitution.  But McCoy, unlike Nixon, strenuously objected to the concession and consistently maintained his innocence and desire to contest the prosecution case.

Second, although the Court has held that a defendant has the constitutional right to represent himself in Faretta v. California, 422 U.S. 806 (1975), that right is limited by the defendant’s mental competency.  And in this case, while McCoy was found competent, there was a clear indication, at least to counsel, that he was not fully mentally capable.

And third, as noted above, the concession here is similar to lesser concessions – to elements rather than the entire prosecution case – that are acceptable decisions for counsel to make.

So where does this case go?  Because there were express findings of competency made, and the lawyer who decided to concede guilt, and thought his client was crazy, never sought to revisit those findings by requesting a further competency evaluation, he was properly stuck with the fact that his client was competent to assist in his defense, and a fortiori to make those decisions that inalienably belonged to him under the constitution.

And while conceding something – presence, contact, knowledge – that helps to establish the prosecution’s case is constitutionally acceptable, the limit should be well before conceding all elements, as McCoy’s lawyer did.  He could not force the defendant to plead guilty and he should not, under the constitution, have the right to do so on his behalf.  The lawyer speaks for the defendant.  If what he says is, my client is guilty, it is no different, and perhaps more powerful than, if the client says so himself.

Finally, while the strategy – as everyone in the case concedes – is a reasonable one, maybe the best one, if the defendant objects, it is not like other strategic decisions, because it is a decision not to contest what the trial is all about.

McCoy’s proposed defense was not sympathetic or sensible.  This is a case where the attorney’s strategy was almost certainly the better one.  But a guilty plea might have been an even better decision, and that decision had to be made by McCoy.  So should the decision whether to tell the jury he was guilty and that they had nothing to decide.

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