For the professional edge in your day-to-day practice, rely on the most timely, objective reporting on significant developments, trends, and emerging patterns in criminal law today—Criminal Law...
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.
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.
“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 firstname.lastname@example.org
To contact the editor responsible for this story: C. Reilly Larson at email@example.com
Full text of amicus brief at src.bna.com/uMc.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)