Can a defendant’s lawyer concede the defendant’s guilt after the defendant explicitly instructs the lawyer to plead not guilty?
The Supreme Court will decide whether Larry English, trial counsel for Robert McCoy, violated McCoy’s Sixth Amendment right to effective assistance of counsel by conceding McCoy’s guilt against McCoy’s wishes. McCoy was arrested in Idaho and charged in Louisiana with a triple homicide. English believed that maintaining McCoy’s innocence in the face of overwhelming evidence would lead to the death penalty for his client, so English went against his client’s wishes and conceded guilt to the jury, hoping to receive leniency in sentencing. The jury returned a guilty verdict and recommended the death penalty. The Louisiana Supreme Court upheld the conviction and McCoy appealed the constitutional question to the Supreme Court. McCoy argues that the Sixth Amendment guarantees him autonomy to decide whether he, or his counsel, will admit guilt. Louisiana argues that once a defendant accepts the assistance of counsel he cedes control over all strategic decisions, including the decision to concede guilt. McCoy also claims that English acted unethically and failed to provide effective assistance of counsel, which Louisiana denies. The outcome of this case could reshape the client-counsel relationship in criminal cases.
Questions as Framed for the Court by the Parties
Whether it is unconstitutional for defense counsel to admit an accused’s guilt to the jury over the accused’s express objection.
On May 29, 2008, a grand jury indicted Robert Leroy McCoy for three counts of first degree murder. See State v. McCoy, 218 So. 3d 535, 544 (La. 2016). McCoy entered a plea of not guilty to all charges. See id. The State of Louisiana informed McCoy that it would seek the death penalty against him. See id. After initially being represented by the public defender’s office, McCoy represented himself for about one month, and subsequently retained Larry English as counsel. See id. at 545.
Throughout the pre-trial proceedings, McCoy and English disagreed on several trial strategy issues, including whether to present an alibi, whether to subpoena evidence, and whether to admit guilt. See id. at 548. Two days before the trial, McCoy requested to discharge and replace English with two new attorneys whom McCoy’s parents had retained. See id. The trial court rejected the request as untimely and ordered English to remain McCoy’s counsel. See id. at 548–49. McCoy then invoked his right to self-representation; however, the court also rejected this request as untimely. See id. at 549.
In his opening statement, English explicitly conceded McCoy’s guilt and argued that McCoy had emotional issues which impaired his ability to function. See id. Part way through the trial, English informed the court that the defendant would testify against his advice. See id. McCoy then testified, presenting an alibi defense. See id. The jury returned a verdict of guilty on all counts and recommended the death sentence. See id. at 550.
Under new counsel provided by the Louisiana Capital Assistance Center, McCoy appealed his convictions and death sentence to the Supreme Court of Louisiana. See id. McCoy argued that the lower court wrongly allowed English to decide whether to concede guilt at trial and denied McCoy his right to counsel of choice and right to self-representation. See id. at 550–51.
The Louisiana Supreme Court rejected McCoy’s counsel-of-choice and self-representation claims, relying on Louisiana state precedent and United States v. Cronic. See id. at 556, 565.The Supreme Court recognized in Cronic that the Sixth Amendment grants a defendant the right to effective assistance of counsel, which requires attorneys to adhere to a client’s lawful instructions. See id. at 565. However, a lawyer is not bound by a client’s unlawful requests, such as a request to commit perjury. See id. at 564. Furthermore, the Louisiana Supreme Court found that the trial court did not abuse its discretion in denying McCoy’s motions to remove English and represent himself. See id. at 556. Citing Louisiana state precedent, the court affirmed the trial court’s determination that allowing new counsel two days before the beginning of trial would have been an excessive impediment to the trial. See id.
The Louisiana Supreme Court found that the trial court did not err in allowing the defendant’s counsel to determine whether to concede guilt because conceding guilt at trial in hopes of preventing a death sentence at the penalty stage is a legitimate strategic choice. See id. at 567. Strategic and tactical decisions, the Louisiana Supreme Court explained, are properly made by trial counsel, and therefore English was not required to follow McCoy’s instructions. See id.
McCoy petitioned the Supreme Court, which granted certiorari to determine whether his trial lawyer’s concession of guilt violated the Sixth Amendment. See Brief for Petitioner, Robert McCoy at (i).
WHAT LEVEL OF AUTONOMY IS GUARANTEED TO DEFENDANTS UNDER THE SIXTH AMENDMENT?
McCoy argues that allowing his trial attorney to admit McCoy’s guilt to the jury, when McCoy desired to maintain his innocence, is a violation of the Counsel Clause of the Sixth Amendment. See Brief for Petitioner, Robert McCoy at 21–22. McCoy asserts that the Sixth Amendment provides that only the accused may decide whether to admit guilt. See id. at 21–22. According to McCoy, the right “to have the Assistance of Counsel for his defence” means that the defendant has a right to “ultimate authority and control” of his own defense. See id. at 22. McCoy points to the established rights of defendants to conduct their own defense, to choose their own counsel, and to take the stand to present their version of events, as extensions of this right. See id. at 22–23. McCoy argues that the Sixth Amendment was motivated by the Framers’ experience with English courts, which would procure involuntary confessions through appointed counsel by requiring counsel to endorse the defendant’s denial of guilt. See id. at 28–29. The constitutional right against self-incrimination, argues McCoy, is obviated if counsel may admit guilt against the defendant’s wishes. See id. at 29. Because the defendant faces the consequences of pleading guilty, reasons McCoy, the defendant is the only party that may decide to plead guilty. See id. at 24. According to McCoy, the Sixth Amendment right cannot be abridged simply because the right to assistance of counsel is also exercised. See id. at 24–25. McCoy differentiates between decisions a defendant’s counsel may make unilaterally as a “practical necessity” requiring legal expertise, and decisions that turn not on a “strategic assessment” but on the defendant’s own willingness to risk trial—including the decision to admit guilt. See id. at 24–27. McCoy also distinguishes his case from past cases in which the Supreme Court said that the defendant did not have to explicitly consent to counsel’s admission of guilt, arguing that these cases apply to implicit acquiescence, but not to situations where the defendant explicitly maintains opposition to the admission of guilt. See id. at 30–32.
Louisiana disagrees, claiming that a defendant relinquishes all autonomy over strategic and tactical decisions to counsel. See Brief for Respondent, Louisiana at 28. Louisiana agrees that a defendant may exercise absolute control over his defense by electing to represent himself, but argues that a defendant “cedes significant control over his defense” when he accepts representation by counsel. See id. at 28. Louisiana asserts that past Supreme Court decisions have established that the attorney-client relationship is based on a principal-agent model. See id. at 29. According to Louisiana, this means that defendants must accept certain decisions of their counsel that do not constitute “fundamental decisions.” See id. at 29. If counsel makes the strategic decision to concede certain elements of the crime to focus its defense on other elements, Louisiana contends that the defendant must relinquish the right to make decisions that conflict with the counsel’s strategy. See id. at 30. Louisiana agrees that only the defendant may make the decision to plead guilty, but argues that “strategically conceding guilt in a capital case is not ‘the equivalent of a guilty plea.’” See id. at 30. Louisiana reinforces this distinction by noting that while a guilty plea requires no proof from the prosecution, merely conceding guilt allows the defendant to retain his traditional criminal rights, such as presenting a strong defense during the penalty phase of the trial. See id. at 30–31. Louisiana contends that McCoy seeks to create a category of decisions for which the defendant’s explicit consent is not required, but which may not be made if the defendant explicitly objects, where before there were only decisions which required explicit consent and those that did not. See id. at 32–33. This new categorization is unnecessary, according to Louisiana, because it is already the rule that counsel may not concede guilt over the defendant’s objection where it would amount to ineffective assistance of counsel or breach ethical rules, which is true for most cases. See id. at 33–34.
DID COUNSEL’S ACTIONS CONFORM TO RECOGNIZED ETHICAL OBLIGATIONS?
McCoy argues that it was improper for the Louisiana Supreme Court to conclude that English’s admission of McCoy’s guilt was ethically obligated because ethical rules required English to follow McCoy’s direction. See Brief for Petitioner, at 32–33. According to McCoy, going to trial at the direction of the defendant in a “weak case” is not an ethically compromised position for counsel. See id. at 34. McCoy points out that ABA Model Rules of Professional Conduct Rule 1.2(a) provides that “a lawyer shall abide by a client’s decisions concerning the objectives of the representation.” See id. at 34. If counsel disagrees with his client, then the ABA rules allow counsel to ask the court to withdraw, notes McCoy. See id. at 35. But if the court denies withdrawal, then counsel must follow the client’s direction, according to McCoy. See id. at 35. Unlike a prior case where counsel permissibly threatened to withdraw if the defendant gave false testimony, McCoy argues that English’s disagreement with McCoy did not involve the commission of a new crime and that English went too far by effectively testifying against McCoy. See id. at 36–37.
Louisiana argues that although this case is a rare one, English’s actions did not breach a Sixth Amendment right because counsel’s “professional and ethical obligations inform the operation of the Sixth Amendment.” See Brief for Respondent, at 35. Louisiana asserts that conceding guilt was the only course of action consistent with English’s ethical obligations. See id. at 35. Once English concluded that McCoy’s defense theory was unpersuasive, Louisiana argues, the only ethical option was to refuse to allow McCoy to give false testimony. See id. at 36. Louisiana maintains that this follows from the rule that lawyers should not assist a client in criminal conduct. See id. at 36. It does not matter whether English was absolutely certain that McCoy’s defense theory was false, contends Louisiana, because English’s conclusion was based on sufficient evidence. See id. at 36–37. When English was unable to dissuade McCoy, or withdraw from the case, Louisiana asserts that the only remaining way for English to act ethically was to concede McCoy’s guilt. See id. at 37–39. Louisiana contends that where the defendant’s guilt was clear, adopting a strategy to avoid the death penalty was in the best interest of the defendant. See id. at 41. Louisiana further claims that English’s examination of McCoy may have even helped his client by demonstrating his delusions to the jury, regardless of whether a mental capacity defense was legally cognizable, because it raised the possibility of jury nullification. See id. at 42–44.
WHAT IS THE APPROPRIATE REMEDY FOR INEFFECTIVE ASSISTANCE?
McCoy argues that English failed to render effective assistance, as required by the Sixth Amendment. See id. at 44. McCoy claims that English’s actions “violated constitutional and professional norms governing the allocation of authority between lawyer and client” and resulted in English’s failure to meaningfully test the prosecution’s case in an adversarial manner. See id. at 44–48. McCoy contends that the proper remedy in this situation is an “automatic reversal” and a new trial. See Brief for Petitioner, at 38. According to McCoy, English’s admission of McCoy’s guilt created a “structural error” in the framework of the trial which deprived McCoy of constitutional rights and therefore requires an immediate retrial. See id. at 38–39. Relying on the three rationales the Supreme Court used to conclude that an error was structural in Weaver v. Massachusetts, McCoy argues first that the right to choose whether to admit guilt is designed to protect the defendant from erroneous conviction because it is a guarantee of fairness in affirming the “autonomy of the accused.” See id. at 39–40. McCoy then argues that the error was structural because English’s admission “changed the entire character of the proceeding” and its repercussions were thus so pervasive as to evade measurement. See id. at 40–41. Thirdly, McCoy asserts that the error was structural because a trial where the defendant’s counsel admits the defendant’s guilt results in “fundamental unfairness.” See id. at 41–42. McCoy concludes that English’s actions constitute a structural error and are therefore not subject to a review for harmless error. See id. at 41–42.
Louisiana contends that English rendered effective assistance of counsel. See Brief for Respondent, at 46. Louisiana argues that a strategy of conceding guilt is not an abdication of the responsibility of adversarial testing because it is a reasonable strategy in cases where counsel decides to focus on mitigating punishment in the penalty phase. See id. at 46–47. Louisiana further argues that the defendant’s own objection to a strategy has no bearing on whether counsel renders effective assistance in adopting an otherwise valid strategy. See id. at 47. Louisiana also contends that even if there was a partial failure to subject the prosecution’s case to adversarial testing, the failure was not complete, as is required for ineffective assistance of counsel claims, because only certain charges were conceded and English otherwise continued a full-throated defense of McCoy. See id. at 47–49. While conceding guilt is rarely the best course of action, where counsel reasonably determines that such is the case, as here, Louisiana claims that it is not improper to concede guilt over the objections of the defendant. See id. at 51–52. If the Supreme Court, however, does find that the Sixth Amendment was violated, Louisiana argues that the question of whether the violation constitutes a structural error or a harmless error is not properly before the Court. See id. at 45–46. Louisiana contends that the Court need not decide the proper remedy to resolve the issue on which it granted certiorari and should therefore remand the case to the Louisiana Supreme Court for further consideration. See id. at 45–46.
RESHAPING THE CLIENT-COUNSEL RELATIONSHIP
The Cato Institute, in support of McCoy, argues that allowing an attorney to supersede a client’s choice of whether to maintain innocence will upset the necessary confidentiality and zeal of the attorney-client relationship. See Brief of Amicus Curiae Cato Institute, in Support of Petitioner, at 22. The Cato Institute states that permitting counsel to admit a defendant’s guilt over the defendant’s objection will create tension between the two parties and cut against the effectiveness of both parties’ strategies. See id. at 23. A defendant who recognizes that counsel will not adhere to his wishes, the Cato Institute explains, will be reluctant to fully disclose information to his lawyer, which prevents potentially useful information from being utilized to build the defendant’s case. See id. at 24. The Cato Institute contends that if a defendant chooses to maintain his innocence while counsel refuses to pursue an innocence strategy, the defendant will effectively be forced to argue pro se. See id. at 23. In such situations, as here, the Cato Institute emphasizes that defendants will likely be forced to testify in order to put forth a version of the facts which support their arguments. See id. at 24. Conversely, the Cato Institute argues, an attorney would have to impeach his own client in order to pursue a guilt-admittance strategy. See id. at 23–24. The Cato Institute warns that the apparent disunity between the defendant and his counsel will likely prejudice the jury against the defendant. See id. The Cato Institute suggests that the effects of allowing counsel to pursue a strategy in opposition to the defendant’s wishes would be to pit the defendant and attorney against one another. See id. Ultimately, the Cato Institute cites the failure of both English and McCoy’s strategies in McCoy’s case to demonstrate how allowing counsel to admit guilt over a defendant’s wishes cuts against the effectiveness of both strategies. See id.
On the other hand, Alabama and ten other states (“Alabama”), in support of Louisiana, recognize the necessity of providing defendants with effective legal counsel; however, they argue that counsel must have the leeway to pursue realistic, strategic decisions to avoid the death penalty. See Brief of Amici Curiae Alabama, et al., in Support of Respondents, at 4–5. Alabama emphasizes that striving to prove a client’s innocence during the trial phase may be counterproductive if the trial advances to the penalty stage; failure to concede guilt during the guilt phase may prejudice the jury against the defendant during the penalty phase. See id. at 6. Alabama points out that this kind of mismatched guilt and penalty phase presentation can lead to ineffective assistance of counsel claims. See id. at 7. Thus, Alabama contends, permitting a defendant to raise a claim for ineffective assistance of counsel based on concession of guilt places an attorney in a double-bind; a defendant may claim that counsel was ineffective in not conceding guilt because not conceding increased the likelihood of a death penalty and dually ineffective in conceding guilt against the client’s wishes. See id. at 7–8. Alabama cites McCoy’s case to exemplify the ethical dilemma that may face attorneys if McCoy’s ineffective-assistance-of-counsel claim is accepted. See id. at 8–10. If attorneys are not permitted to pursue strategic concessions, contends Alabama, then even those attorneys in English’s position, faced with “damning” evidence against the client, will be compelled to fight for innocence at the trial stage and will have lost credibility when trying to avoid the death penalty during the penalty phase. See id. at 9. Rather, Alabama argues, attorneys must have leeway to build credibility with the jury by conceding guilt during the trial stage, in order to more effectively protect the defendant’s life during the penalty phase. See id. at 9–11.
- Adam Liptak, Facing the Death Penalty With a Disloyal Lawyer, New York Times (Oct. 9, 2017).
- Debra Cassens Weiss, Can a Lawyer Concede Guilt Over a Client’s Objection? Supreme Court to Consider Constitutional Issue, ABA Journal (Sept. 28, 2017).
- Robert Barnes, Supreme Court Ponders if Lawyer Can Concede Client’s Guilt When Accused Claims Innocence, Washington Post (Oct. 8, 2017).