American Death Row Inmate Should Win, U.K. Lawyers Tell SCOTUS

Bloomberg Law’s® extensive network of reporters and editors helps subscribers to stay ahead of legal

By Jordan S. Rubin

A group of foreign lawyers wants the U.S. Supreme Court to look to the English roots of the Sixth Amendment and the duties of counsel in other countries today when it considers the case of an American death row inmate.

“In the mid-eighteenth century, barristers and solicitors played narrow, clearly defined roles, when they appeared for the defense,” the friend-of-the-court brief from the Criminal Bar Association of England and Wales said.

The association drew the historical parallel in an effort to help the U.S. high court decide Robert McCoy’s capital case, scheduled for argument Jan. 17.

McCoy’s lawyer conceded his client’s guilt as part of a strategy to try to spare him from a death sentence at the penalty phase.

The lawyer thought that by admitting guilt up front, he’d gain credibility with the jury, which could help his client in what he viewed as the likely event of McCoy’s conviction. He was right about the conviction but wrong about the strategy—McCoy was sentenced to death.

At issue in the case is whether it was up to the lawyer to advance that strategy in the first place, over McCoy’s stated objection to it as he continually professed his innocence.

The strategic choice clearly should have been McCoy’s, based on the history of English common law—which inspired the Sixth Amendment right to counsel—as well as the current practice in nearly all countries that abide by that common law system, the bar group’s brief argues. The group’s interest stems from “the shared history of the U.K. and the U.S. legal systems, and its relevance to this case,” according to the brief, filed Nov. 20 by attorneys in the New York office of Squire Patton Boggs.

‘Assistance’ of Counsel

The brief starts by focusing on the history of the right to counsel in England, which influenced the U.S. Constitution’s Sixth Amendment. The amendment guarantees Americans “the assistance of counsel.”

Emphasis on “assistance,” the brief said.

Lawyers in mid-eighteenth century England played limited roles, the brief pointed out.

“The prosecution of a British citizen focused upon the defendant himself,” the brief said; “the defendant remained the central figure in his own defense, and only the defendant could raise his defense and argue it to the jury.”

“There is nothing in the common law history of counsel-client relations before the adoption of the Bill of Rights to suggest that such assistance empowered the advocate to ignore or override the client’s manifest instruction as to his plea and defense. Given the evolving but still limited role of defense counsel, it is not surprising the Sixth Amendment—ratified in 1791—guaranteed that a person facing imprisonment should be permitted the ‘assistance of counsel for his defense,’” the brief said.

Look at Other Countries

“To our knowledge, all common law jurisdictions adhere to the eighteenth-century practice that the defendant determines the fundamental objectives regarding his defense,” the group said in its brief, referring to countries whose legal systems, like America’s, derive from England’s.

In addition to that being the practice in England and Wales, Australia, New Zealand, Scotland, Ireland, Canada, South Africa, “various countries in the West Indies,” and Kenya all abide by the eighteenth-century view, the brief said.

In Kenya, for example, “there is no reported case where a defense counsel has taken a position that is contrary to their client’s instructions with regards to the plea,” it said.

Ignoring the client’s wishes can amount to ethical violations in some of these countries.

The brief observed that, “as of September 2015, 21 Kenyan lawyers had been charged by the Law Society of Kenya with the specific offence of failing to comply with the client’s instructions.”

The case is McCoy v. Louisiana , U.S., No. 16-8255, to be argued 1/17/18 .

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

For More Information

Full text of amicus brief at

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request White Collar & Criminal Law News