McCoy v. Louisiana is a capital case in which the defendant’s lawyer, Larry English, conceded that the defendant had killed his alleged victims in the hopes of avoiding a death sentence. The defendant, Robert McCoy, expressly and repeatedly objected to this strategy; he was very clear that he wanted to maintain his innocence. Shortlybefore trial, McCoy asked for leave to discharge his counsel and to represent himself because of this disagreement. The trial court denied the request, concluding that the decision of what defense to present was a strategy decision for the attorney to make. In his opening statements, English repeatedly stated that McCoy was guilty, both in his opening and closing arguments, arguing for second degree murder. McCoy, on the other hand, exercised his right to testify, claiming that he was innocent and presenting his alibi.
Despite English’s efforts to get his client found guilty of second degree murder to avoid the death penalty, a jury found McCoy guilty of first degree murder and sentenced him to death. (English has spoken publicly about his role in this case, admitting that he fell into a deep depression after the case.) McCoy’s appeal was denied by the Louisiana Supreme Court, which affirmed the murder convictions.
McCoy has now asked the Supreme Court when and whether it is unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection. The case was argued on January 17, 2018 (ISCOTUS reported on it here and here). The issues in the case arise from the Sixth Amendment right to counsel. In cases interpreting this right, the Court has held that individual defendants have the right to represent themselves under certain circumstances, the right to make certain other decisions, such as whether to plead guilty and whether to testify on their own behalf, and the right to “effective assistance of counsel.” Some of the key cases in these lines are:
On June 30, 1975, the Court announced its opinion in Faretta, answering the question of whether a defendant can be forced to accept representation by counsel, denying him the right to present his own defense. The defendant in this case was charged with grand theft, and his request to represent himself was initially accepted by the judge presiding over his case. However, after questioning Faretta about court procedures, such as the hearsay rule, he changed his mind because he did not find that Faretta intelligently and knowingly waive his right to counsel. The Court found that forcing Faretta to accept representation by a public defender violated his right to self-representation afforded to him under the Sixth Amendment
Decided on May 14, 1984, Strickland is the seminal case establishing a right to effective assistance of counsel. The Court held that the standard for determining whether a conviction should be reversed or death sentence set aside because a defendant received ineffective assistance of counsel has two prongs: (1) the counsel’s performance must be deficient, and (2) the deficient performance must have prejudiced the defense. The defendant in this case, given the death penalty after pleading guilty to murder, argued that he had ineffective assistance of counsel at the sentencing phase because his attorney did not present character witnesses or order a psychiatric evaluation of Washington. Applying the two-prong standard, the Court held that his Sixth Amendment right to assistance of counsel had not been violated because the prejudice caused by his counsel’s conduct was insufficient to warrant setting aside the death penalty.
Cronic, decided the same day as Strickland, is another ineffective assistance of counsel case. The defendants here were convicted of mail fraud after the government spent almost five years preparing for the trial. After their first lawyer withdrew from the case and 25 days before the trial began, the defendants received a court-appointed lawyer who specialized in real estate law. The Court held that the defendants’ right to effective assistance of counsel under the Sixth Amendment had not been violated, because they could not provide evidence of specific errors that their lawyer had committed during the trial.
(4) Florida v. Nixon
More recently, on December 13, 2004, the Court issued its opinion in Florida v. Nixon, which settled Sixth Amendment issues directly relevant to those in McCoy v. Louisiana. The defendant, Nixon, was convicted of murder and given the death penalty after his lawyer pursued a trial strategy that involved conceding Nixon’s guilt. Nixon argued that he received ineffective assistance of counsel because he did not approve of this strategy. The Court held that merely not giving express approval of a lawyer’s trial strategy did not rise to the level of ineffective assistance of counsel, and reversed the ruling of the Florida Supreme Court that granted Nixon a new trial.
In discussing these cases, McCoy argues that Nixon does not speak to his situation because he, unlike the defendant in that case, did not remain silent when told of his lawyer’s plans. Instead, he objected expressly and repeatedly. Moreover, McCoy argues that he should not have to show prejudice to prevail on his claim. He argues that his attorney’s concession amounts to structural error that requires automatic reversal and that even if his case is analyzed under ineffective assistance of counsel, prejudice should be presumed.
There were seven amicus briefs filed in support of McCoy, including one filed by the Criminal Bar Association of England and Wales. They argued that at the time the Bill of Rights, including the Sixth Amendment, was adopted, the practices of mid-eighteenth century barristers and solicitors support the notion that a defendant is to be the one who chooses his defense. Counsel would be duty bound to adhere to that defense, and if counsel in those days were to take the actions that English did, the conviction would be automatically reversed. The Ethics Bureau at Yale made a similar argument, asserting that the most crucial precept of a criminal defense is for the lawyer to be faithful to his or her client, and that the defendant is supposed to be the master of his defense. Pursuant to the Sixth Amendment, a defendant has the right to counsel and to refuse counsel, and that forcing a defendant to be represented by unwanted counsel did not comport with that right. Allowing that counsel to profess the defendant’s guilt against the defendant’s wishes also violates a defendant’s Sixth Amendment rights.
On the other side, an amicus brief filed by several states in support of Louisiana argued that when there is overwhelming evidence of a defendant’s guilt in a capital trial, partially admitting guilt can be a reasonable strategic decision that helps the defense counsel to build credibility with the jury. McCoy is arguing for a rule that undermines the framework set up by Faretta and Strickland.
Stay tuned to ISCOTUSnow for updates on this case and all things SCOTUS.
This post was written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.