The US Supreme Court heard argument last month in McCoy v. Louisiana. McCoy raises the question whether a criminal defendant has a Sixth Amendment right to stop his attorney from announcing to a jury that his client killed the victims for whose murder he is standing trial. In this case, the trial attorney, Larry English, knew that the client, Robert McCoy, opposed the plan to tell the jury that McCoy was in fact the killer. This column will consider McCoy’s claim that regardless of whether his lawyer’s announcement represented deficient performance as counsel, and regardless of whether it affected the outcome of the trial, McCoy’s conviction should be reversed and remanded for a new trial.
In 2011, McCoy went on trial for the murder of three members of his estranged wife’s family, her mother, her stepfather, and her son. McCoy’s attorney believed that the prosecutor’s evidence was too strong to be refuted with the alibi defense that his client wanted. Such a defense would discredit English for the penalty phase of the capital trial. He therefore decided that the best course would be to acknowledge to the jury that the defendant had killed the victims but to suggest that McCoy could not have formed the specific intent required for first-degree murder, and to later, upon conviction, ask the jury to spare the defendant’s life.
The prosecution proceeded after McCoy unsuccessfully tried to fire his attorney. At trial, English told the jury that the “evidence is overwhelming that Mr. McCoy caused
the death of these people.” In case there was any doubt about what he was saying, English stated, “my client committed three murders” and “I’ve just told you he’s guilty.” The jury convicted the defendant of the three murders and subsequently sentenced him to death. McCoy then brought an appeal, arguing—among other things—that he should get a new trial because he suffered a Sixth Amendment violation when his lawyer contravened his wishes and told the jury that he was guilty of killing three people.
Ineffective Assistance of Counsel
One possible approach to challenging what happened at trial would have been to argue that English’s representation of McCoy was so deficient that it failed the rather lenient Strickland v. Washington standard for the Sixth Amendment guarantee of effective assistance of counsel. If that were the defendant’s claim, then he would have to show that had the attorney not told the jury that he was guilty, then there is a reasonable probability that the outcome would have been different.
The problem with making this particular argument for McCoy is that English might not only have been performing too well to qualify as ineffective under Strickland. He might have actually been making the right judgment call under the circumstances. Examining the evidence against his client, he could have reasonably concluded that there was little chance of an acquittal.
Thinking ahead to sentencing, phase two of the capital trial, he could have accordingly determined (as he appears to have done) that conceding guilt in the course of the trial would maximize his client’s chances of avoiding the death penalty. If an attorney tells a jury “My client didn’t do it; he is innocent” during phase one of a trial, then it might be harder for the jury to take seriously during phase two of the same trial his plea for mercy and forgiveness for the offenses that he earlier denied committing. Viewing the guilt phase as hopeless, one can understand why an attorney would want to gain credibility with the jury by acknowledging what everyone would ultimately believe anyway—that his client was guilty. That McCoy was sentenced to death was perhaps unavoidable and therefore not necessarily attributable to the attorney’s admission of his client’s guilt.
So what was the problem?
The problem in this case is essentially not about a lawyer doing a bad job of lawyering. It is instead about a defendant’s representative denying that defendant his right to maintain that he was innocent. Even if a trial at which the government had to prove McCoy’s guilt would have been an exercise in futility, McCoy still had the right to insist on that particular exercise in futility. Yet English told the jury that through his admission of his client’s guilt, he “took that burden [of proof beyond a reasonable doubt] off of” the prosecutor.
Likewise, McCoy had the right to plead not guilty, even if the evidence was overwhelming and even if he could have avoided the death penalty in exchange for a guilty plea. McCoy was able to exercise the latter right in the face of his lawyer’s advice to plead.
Sometimes people have the right to act in ways that do not further their own best interests. The right to have a trial is one such right. An attorney cannot simply represent to the trial court that his client wishes to plead guilty when the client has no such wish and has told the lawyer as much. In fact, prior to accepting a guilty plea, judges conduct a hearing at which they question the defendant to make sure that her plea is voluntary and that she understands what she is giving up. And this is true no matter how much better the plea deal is than the near-certain outcome of a trial.
Why, though, do I mention the right to have a trial rather than plead guilty? In this case, the defendant did have a trial, and the attorney did not pretend that the client had offered a guilty plea. This case is nonetheless surprisingly similar to a situation in which a lawyer offers a guilty plea for a client against the client’s wishes. At the trial, the attorney specifically told the members of the jury that he had relieved the prosecution of the burden of proof by admitting his client’s guilt. The attorney thereby essentially announced that his client was guilty, and he said it as a spokesperson for his client.
Justice Kennedy apparently found this analogy apt because he asked the government’s attorney at oral argument, “[C]an I take away from your argument that the state of Louisiana says that if a defendant wants to plead not guilty, the defense attorney can plead guilty if the defense attorney thinks that’s the best way to avoid the death penalty?” Of course, the government would not (and did not) take this position, but the question shows how similar the government’s actual position is to what Justice Kennedy described. By stating that his client killed three people, the lawyer effectively entered a plea of guilty on his client’s behalf.
Another, perhaps less intuitive way to conceptualize what happened to the defendant in McCoy is as a compelled confession. Under the Fifth Amendment, a defendant enjoys the right not to provide incriminating evidence against himself. This is why she is able to avoid testifying at her criminal trial. What McCoy’s lawyer announced to the jury, however, essentially amounted to a confession of guilt relayed by the defendant’s spokesperson. A defendant’s protestations of innocence have little impact if the defense attorney who speaks for the defendant tells the jury that it need not worry about the burden of proof because the defendant did in fact kill the victims.
Where Does It Stop?
At oral argument, one of the questions that came up was how to cabin the right at issue, if the defendant prevails on his Sixth Amendment claim. Is it the case that every strategic decision by a defense attorney that conflicts with her client’s instructions entitles the defendant to a new trial? Because the right pressed by the defense does not turn on there being any harmful impact from an attorney’s disregard for her client’s instructions, a broad new right could prove disastrous to the finality of criminal convictions.
The attorney arguing for McCoy urged the Court to put off consideration of the question of how far the principle goes. It was outrageous for the defendant’s attorney in this case to confess his client’s guilt to the jury against his client’s wishes. A client has the right to stop his lawyer from declaring the client’s guilt. The Court could decide in later cases whether other departures from a defendant’s instructions would amount to a similar constitutional violation.
My view is that finding for the defendant in this case would not risk a slide down a slippery slope. Most of a defense attorney’s strategic decisions do not fall within the range of choices that a defendant has the right to direct. For example, if a client really wants his lawyer to call John Doe as a character witness, but the lawyer considers Doe to be an obvious liar who is vulnerable to utterly discrediting cross-examination, the client should not have the right to force the lawyer to call Doe to the stand. If the failure to call Doe is a terrible decision with likely consequences for the outcome, the client can argue ineffective assistance of counsel under Strickland and demonstrate the detrimental effect on the verdict. But there is no autonomy right at stake.
On the other hand, if a client says he does not want his attorney to present an insanity defense, the attorney probably should not be able to do so, even if such a defense is the best option. An insanity defense would involve telling the jury that the defendant did carry out the crime or crimes in question but adding that there is an excuse for the misconduct. A defendant should be able to maintain, like McCoy wanted to maintain, that he did not commit the act or acts charged, without the attorney telling the jury that he did.
Self-defense might present a harder case. Assume that a lawyer wants to argue that the defendant is not guilty because he acted in self-defense, but the defendant wants to maintain that he did not perpetrate the acts in question at all. Here, unlike in the insanity case, the lawyer’s plan is to present a case of actual innocence in which the defendant did the right thing, a case that is thus arguably consistent with the defendant’s assertion of innocence.
On the other hand, the factual scenario offered by the attorney is significantly different from the factual scenario maintained by the client, given that the latter says he did not do the act at all rather than that he did the act but had a good reason for it. Perhaps there should be a right, as in McCoy, to say “I did not do it” without being contradicted by one’s lawyer, even if both lawyer and client are characterizing the client as innocent.
It may seem perverse to protect the defendant’s right to make self-destructive choices at trial, but it is hardly unprecedented. The Supreme Court held in Faretta v. California that a criminal defendant has the right to represent herself rather than utilize the services of an attorney. The exercise of this right is surely a bad idea in virtually every case, but people charged with crimes have some basic autonomy rights with respect to what happens to them. These include a decision to represent oneself. They include the decision to plead not guilty in spite of a favorable plea deal on offer. And, as I have argued, they also include the decision to maintain one’s innocence during the trial.
The Court will doubtless have to draw some potentially difficult lines in the future, if convicts learn that they might be entitled to a new trial if their attorneys disregarded their wishes in some way. The Court can be as stingy or generous as it sees fit when these cases arrive at its doorstep. In McCoy, however, the Court does not have a hard case. A criminal trial is a proceeding at which the government bears the burden of proving a defendant’s guilt beyond a reasonable doubt. Such a trial never happened for Robert McCoy because his lawyer decided to announce that the defendant killed the three victims and that his own announcement took the burden of proof away from the prosecutor. However well-intentioned the attorney’s conduct was, the defendant should have had the final say on whether to relieve the government of its burden of proof. He is accordingly entitled to a new trial, one at which he—and he alone—gets to decide whether to admit his crimes.
B”H Scary story.
I have never before heard about a defence lawyer who does not fight for the right of his client to be innocent. This is contrary – in my inexperienced opinion – to the very foundation of the right to defence.
But I have met a lawyer who insisted that evidence gathered by the prosecution are pointing out the accused is guilty. In the result defending lawyer insisted on the defence based on evidence garnered by the prosecution. And this is wrong, too.