Justices Mull Implications of Capital Lawyer’s Guilt Concession

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By Jordan S. Rubin

The U.S. Supreme Court justices Jan. 17 expressed concerns over the implications of allowing a lawyer to concede his client’s guilt, over his objection, in the hopes of avoiding the death penalty.

They were concerned, on the one hand, that a capital defendant’s autonomy could be overridden by a lawyer’s strategic choice. On the other hand, they were concerned that lawyers would be hampered in defending their clients when they disagree—and not just in death penalty cases.

The tension was perhaps best summarized by Justice Elena Kagan.

The case is about two “conflicting objectives,” Kagan said during the argument: The defendant simply not wanting to admit guilt, and the lawyer wanting to save the defendant from execution.

Defendant Did It, His Lawyer Said

The lawyer here, Larry English, told the Louisiana jury upfront that Robert McCoy killed three people.

English believed the evidence against McCoy was strong, so his strategy was to try to build credibility with the jury for what he viewed as an inevitable penalty phase.

McCoy objected to the strategy, maintaining his innocence and demanding that English put on an alibi defense that English believed was a conspiracy theory contradicted by the evidence.

English went ahead with the concession despite McCoy’s objection. McCoy was convicted and sentenced to death despite English’s efforts.

Where’s the Line?

Several justices expressed line-drawing concerns during the argument.

In a prolonged back and forth at the beginning of the argument, Chief Justice John G. Roberts Jr. prodded McCoy’s lawyer, WilmerHale’s Seth P. Waxman, about the implications of a ruling for McCoy.

Waxman argued that it’s unconstitutional for a lawyer to concede an element of the charged offense against the client’s wishes.

Roberts posed a hypothetical where a lawyer wants to argue the defendant shot a murder victim in self-defense, but the defendant is adamant that he didn’t do the shooting. If the lawyer nonetheless argues self-defense, is that okay? Roberts asked.

Waxman, a former U.S. solicitor general, sought to keep the high court’s attention on the particular facts of this case, rather than its ramifications in other contexts.

The Sixth Amendment, as understood by the framers of the Constitution, rests the choice whether to concede guilt firmly with the client, Waxman said.

The framers would have been “astonished” with English’s guilt concession here over McCoy’s objection, he said.

But there was no right to appointed counsel at the founding, Justice Samuel A. Alito Jr. pointed out, suggesting that the amendment’s history doesn’t settle the case.

Justice Sonia Sotomayor questioned Louisiana’s lawyer about the implications of a ruling for the government here.

Elizabeth Murrill, the state’s solicitor general, argued that the case should be evaluated under the Strickland v. Washington test, to determine whether English’s concession was permissible. McCoy argued it was a structural error requiring automatic reversal.

Justice Stephen G. Breyer told Waxman that, if the high court rules for McCoy, it “will be like a balloon expanding into we don’t know where.”

“And before you know it, lawyers will have a hard time defending this person. And you’re walking right into jail when you start telling your lawyer how to run his case,” Breyer said.

Sotomayor used the same premise to draw a different conclusion.

“People can walk themselves into jail. They can walk themselves, regrettably, into the gas chamber,” she said.

“But they have a right to tell their story,” she said.

The case is McCoy v. Louisiana , U.S., No. 16-8255, 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

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