Constitutional Law Criminal Law Litigation

Client: “I’m Not Guilty!” – Lawyer: “Yes, You Are!” SCOTUS to Rule on Who Decides in Louisiana Death Penalty Case

Louisiana man Robert McCoy was accused of killing Christine Colston Young, Willie Young and Gregory Colston, who were the mother, stepfather and son of Mr. McCoy’s estranged wife. There was substantial evidence that he had done so. The actual shooting was caught on tape as the victim had called 911 upon the shooter’s arrival and one of the victims can be heard pleading to the defendant by name to leave because the others were not in the house. The ensuing shots can be heard on the tape. After the shots, a neighbor called 911 to say they saw a black male jump into a white Kia and flee the scene immediately after the shooting. The defendant’s white Kia was found nearby. Inside the car was a Walmart bag with a receipt for the .380 caliber ammo (same used to kill the victims). Walmart surveillance showed what appeared to be the defendant entering the store and exiting with an identical bag at the same time registered on the receipt. Finally, in the car, was the landline handset for the phone from the house. The charging cradle of the phone was still in the house. There was additional evidence tying the defendant to the crime but these were the most damning.

Mr. McCoy fired his public defender and chose to represent himself until his family gathered up $5,000 to hire Larry English, a Louisiana lawyer who had previously handled death penalty cases. After reviewing the file and having Mr. McCoy undergo psychiatric testing, Mr. English met with Mr. McCoy just a few days before the start of the trial. English told McCoy for the first time that he would concede to the jury that McCoy committed the murders, hinging the defense on McCoy’s mental capacity. Mr. McCoy tried to fire his lawyer, saying he would rather represent himself. Judge Jeff Cox, of the Bossier Parish District Court, turned him down.

“Mr. English is your attorney, and he will be representing you,” the judge said.

In a letter to Judge Cox before the trial, Mr. McCoy’s parents said they regretted hocking their car to pay for Mr. English telling the judge, “Mr. English is neither prepared nor capable of adequately representing our son.” When they tried to discuss the case with Mr. English, they wrote, he responded with a tirade and “insulted us by talking to us as if we were children.”
The trial started with fireworks that I am sure left an indelible impression on the jury. During his opening statement at the trial, Mr. English did what he had promised to do. “I’m telling you,” he told the jury, “Mr. McCoy committed these crimes. . . . The evidence is overwhelming.”

Mr. McCoy loudly objected. “Judge Cox,” he said, “Mr. English is simply selling me out.I did not murder my family, your honor,” Mr. McCoy said. “I had alibis of me being out of state. Your honor, this is unconstitutional for you to keep an attorney on my case when this attorney is completely selling me out.”

English was hoping to get life without parole by showing that, while being found competent, Mr. McCoy was delusional and a narcissist and did not have full grasp of his senses. He relied on the psychologist who examined McCoy for the prosecution who issued a report and told the jury McCoy was a “narcissist with no real self inside.” The jury recommended McCoy receive the death penalty. McCoy’s State appeals have been denied and this week, the Supreme Court heard argument on his case.

Is it Robert McCoy’s right to raise an unwinnable defense that could ultimately lead to his execution?

Since 2000, the Louisiana Supreme Court has allowed defense lawyers to concede their clients’ guilt in four other capital cases over the clients’ express objections. So the issue is whether the Federal Constitution’s Sixth Amendment’s right to “effective assistance of counsel” prohibits a lawyer from directly ignoring a client’s wishes to plead not guilty. The State is arguing that this is just a “strategic choice” and that all courts have held that a lawyer can direct trial strategy even if a client wants a different strategy. But normally that means collateral issues like whether to call a particular witness or use a forensic expert. Whether to plead guilty, however, has traditionally been held to be the kind of fundamental decision that only a client can make by which a lawyer must abide. Whether to take the stand in his own defense or before a Grand Jury is another such decision ultimately reserved for the client.

The Sixth Amendment guarantees a right to “the assistance of counsel.” Those words, the Supreme Court said in 1975 in Faretta v. California, indicate that the client is the boss. “It speaks of the ‘assistance’ of counsel,” Justice Potter Stewart wrote, “and an assistant, however expert, is still an assistant.” Justice Stewart went on to say:

The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be “informed of the nature and cause of the accusation,” who must be “confronted with the witnesses against him,” and who must be accorded “compulsory process for obtaining witnesses in his favor.” Although not stated in the Amendment in so many words, the right to self-representation – to make one’s own defense personally – is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant – not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists. It is true that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas. This allocation can only be justified, however, by the defendant’s consent, at the outset, to accept counsel as his representative. An unwanted counsel “represents” the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense

I quoted Justice Stewart at length because I believe this language is central to the issue here. The Supreme Court in Florida v. Nixon, has also stated that lawyers need not obtain their clients’ express consent before conceding guilt in a capital case. But the ruling did not address whether it was permissible for a lawyer to disregard a client’s explicit instruction to the contrary. The question in Mr. McCoy’s case is not whether English was right to try for mitigation as opposed to full acquittal; it’s essentially “Whose Life Is It Anyway?” Once a defendant is declared competent, it must be left for the defendant to decide if he wants to admit guilt or protest his innocence. Taking that away from the individual would start the inevitable “slippery slope” of putting other fundamental decisions in the hands of the lawyer when it is the defendant’s life on the line. I can remember many times when I felt a client was making the wrong decision about whether to plead or go to trial. “I walk out of the courtroom either way,” I would tell them, reminding them that I am not the one facing the consequences of their decisions, they are. It appears several of the sitting Justices agree:

“People can walk themselves into jail,” Justice Sonia Sotomayor said. “They can walk themselves, regrettably, into the gas chamber. But they have a right to tell their story.”

“It’s the lawyer’s substitution of his goal of avoiding the death penalty for the client’s goal . . . .” Justice Elena Kagan said. “I don’t want to avoid the death penalty. That’s not my paramount goal. My paramount goal is to insist until my last breath that I didn’t kill my family members.”

The Court will have to find the line to draw between a client’s right to control his destiny and the lawyer’s role in protecting the client from himself.

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