Darrow’s Spirit Summoned as Lawyer’s Tactics Get SCOTUS Scrutiny

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By Jordan S. Rubin

Clarence Darrow famously had his clients Nathan Leopold and Richard Loeb plead guilty in their notorious 1920s Chicago kidnap-murder case, saving the two well-to-do college students from what he believed was certain execution had they fought the case at trial.

But it wasn’t a defense attorney or civil rights group summoning Darrow’s spirit in late 2017 to support a lawyer’s more recent guilt concession in a capital case before the U.S. Supreme Court.

It was, in fact, attorneys general from the death penalty hotbeds of Arkansas and Alabama.

Those states’ attorneys general, in a Dec. 20 friend-of-the-court brief in the case of McCoy v. Louisiana, joined several other Republican state AGs in defending what they said was a proper concession by defense lawyer Larry English.

“Even Clarence Darrow employed strategic concession in a difficult case, asking that his young clients’ lives be spared but admitting” their guilt and conceding that life sentences would be reasonable, the states’ brief observed.

With his client Robert McCoy on trial in 2011 for triple murder, English felt he had two choices: Advance McCoy’s preferred strategy of what English believed was an unbelievable alibi and conspiracy theory that the cops were out to get McCoy, or admit that McCoy killed his estranged wife’s stepfather, mother, and son.

English chose the latter over McCoy’s express objection. It was, he thought, his best shot at avoiding a death sentence for his client.

He believed the evidence was overwhelming and that McCoy surely would be found guilty. The lawyer reasoned that he’d build credibility with the Louisiana jury for the sentencing phase by admitting his client’s guilt up front.

But his gambit failed. McCoy was convicted and sentenced to death.

McCoy appealed, arguing his right to counsel was violated and that the trial judge never should have let English essentially plead guilty on his behalf against his clear wishes.

The Louisiana Supreme Court ruled against McCoy, finding that supporting his unbelievable alibi would have required English to encourage untruthful testimony.

McCoy then took his case to the U.S. Supreme Court, which will hear arguments Jan. 17.

Concession ‘Commendable,’ State Says

Louisiana prosecutors are fighting McCoy’s appeal by lauding English’s trial tactics.

The U.S. high court “has never commanded an attorney to actively assist a defendant in putting on false testimony as a means to prove his innocence, nor has it required a trial court to protect the defendant’s pursuit of such a defense,” the state said in its merits brief Dec. 13.

English’s “loyalty to McCoy, demonstrated by the numerous motions and appeals he filed and the sincere efforts to save his life at trial, are commendable, not unconstitutional,” the state argued.

It pointed to a 2004 U.S. Supreme Court case, Florida v. Nixon, in which the justices upheld a death penalty lawyer’s concession strategy in the face of his client’s silence on the issue.

Justice Ruth Bader Ginsburg quoted Darrow’s defense of Leopold and Loeb in writing for the unanimous court in Nixon. And Justice John Paul Stevens, who’s now retired, recounted that the pair didn’t “expressly consent” to Darrow’s strategy.

“But he saved their lives,” Stevens said.

The strategic issue is the same in McCoy’s case, even with an express objection, Louisiana argues.

The states’ amicus brief weighed in on the strategy point.

“By admitting to incontrovertible facts, defense counsel builds credibility with the jury, allowing counsel to argue a defense of diminished capacity or to present an effective mitigation case,” it said.

Defendant’s Choice, McCoy & Co. Say

McCoy has supporters, too.

Several outside groups—the American Bar Association, the National Association Criminal Defense Lawyers, a group of law professors and the Ethics Bureau at Yale, the libertarian Cato Institute, and the Criminal Bar Association of England and Wales—joined his quest to keep him out of the death chamber. English’s strategy was unreasonable, they argue.

But more importantly, they say, conceding guilt wasn’t the lawyer’s decision to make in the first place.

And McCoy does more than suggest that Larry English is no Clarence Darrow.

“Although English’s strategy had purportedly focused on mitigating McCoy’s sentence, English in fact called no mitigation witnesses,” McCoy said in his Nov. 13 brief filed by WilmerHale’s Seth Waxman, a former U.S. solicitor general.

The one witness he did call “undercut English’s own theory of mitigation,” he said.

On the other hand, when he defended Leopold and Loeb, Darrow introduced extensive psychiatric evidence aimed at mitigation, an early example of such a strategy.

He also delivered a 12-hour plea for their lives that a federal circuit judge later called “brilliant,” noting it “raised every possible argument and touched on every possible emotion.”

“I know the future is with me, and what I stand for here,” Darrow said to the judge who spared his clients from execution.

Fast forward to the future, nearly a hundred years later, and it remains to be seen whether the high court will bless English’s take on Darrow’s stance, which, ironically, would allow an execution to go forward rather than prevent one.

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 jrubin@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

For More Information

Lousiana's reply brief at src.bna.com/vod.

States' amicus brief at src.bna.com/voc.

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