Last year I
posted comments on a case then before the Supreme Court which I thought was important on the issue of client autonomy and allocation of decision making authority within the attorney-client relationship.
The case was decided back in May but I hadn’t had a chance to read the decision yet. Well, I just finished reading it, and I am happy to report that it was decided just like I suggested it should. Here are my initial thoughts.
First, a little background. The case is
McCoy v. Louisiana in which a defendant in a capital murder case appealed his conviction arguing ineffective assistance of counsel based on the fact that his lawyer conceded his guilt over the defendant's objection. You can find all the documents related to, and more information on, the case at the SCOTUSblog
here.
The relevant facts of the case are as follows. Two weeks before trial, the defendant’s lawyer (Larry English) told his client, McCoy, that he thought the evidence against McCoy was overwhelming and that, absent a concession that McCoy was the killer at the guilt stage, a death sentence would be impossible to avoid at the penalty phase. English, therefore, decided to concede that McCoy committed the murders in an attempt to convince the jury not to impose the death penalty. McCoy did not agree, and told English not to make that concession. Instead, McCoy wanted English to emphasize his defense based on an alibi - a story that English did not believe was true. Based on their disagreement, McCoy asked to court to terminate English’s representation but the court refused.
At the beginning of his opening statement at the guilt phase of the trial, English told the jury that McCoy killed the victims. McCoy objected and addressed the judge outside the presence of the jury. Yet, the judge reminded McCoy that he was being represented by English and told him that “the court would not permit any other outbursts.” In his closing argument, English again reiterated that McCoy was the killer.
After he was convicted and sentenced to death, McCoy unsuccessfully moved for a new trial, arguing that the trial court violated his constitutional rights by allowing English to concede McCoy committed three murders over McCoy’s objection. Then, on appeal, the Louisiana Supreme Court affirmed the trial court’s ruling because, according to the court, counsel reasonably believed that admitting guilt afforded McCoy the best chance to avoid a death sentence.
The Louisiana Supreme Court also concluded that English’s refusal to maintain McCoy’s innocence was necessitated by Louisiana Rule of Professional Conduct 1.2(d), which provides that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent” because, according to the court, presenting McCoy’s alibi defense would have forced English to violate his duty against presenting false evidence.
In holding the way it did, the Louisiana Supreme Court did not follow the analysis of three other state Supreme Courts that have addressed the same issue. (See, Cooke v. State, 977 A.2d 803 (Del. 2009), State v. Carter, 270 Kan. 426, 14 P.3d 1138 (2000), and People v. Bergerud, 223 P.3d 686 (Colo. 2010), all of which held that although defense counsel is free to develop defense theories based on reasonable assessments of the evidence, counsel cannot usurp the fundamental choices reserved for criminal defendants.
The US Supreme Court granted review to solve the division of opinion among state courts and agreed with the majority of those state courts that counsel may not admit a client’s guilt over the client’s objection.
If you read my previous posts on this case, you know I think this was the right decision.
First, the Louisiana Supreme Court was wrong when it held that English’s conduct was justified because otherwise he would have used false evidence. As the Court explains, the fact that English did not believe McCoy’s account does not mean that pursuing McCoy’s preferred defense would constitute using false evidence. Louisiana’s ethical rules might have prevented English from presenting McCoy’s alibi evidence if English knew false evidence or perjury was involved, but English did not have such knowledge. According to the rules, mere suspicion (or even a reasonable suspicion) that a client might be lying is not enough to trigger the duties in the rules related to the duty of candor.
More importantly, on the main issue before the Court, the Court held that, as stated in rules of professional conduct, it is the client – not the lawyer – who has the right to make decisions related to the objective of the defense:
. . . Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial. These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are.
. . . When a client expressly asserts that the objective of “his defense” is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt. . . . see ABA Model Rule of Professional Conduct 1.2(a) (2016) (a “lawyer shall abide by a client’s decisions concerning the objectives of the representation”).
For these reasons, it was improper for English to override McCoy’s decision. McCoy’s decision may have been a bad decision, but it was a decision he had the right to make.
Having decided that the lawyer’s admission of the client’s guilt over the client’s express objection the conduct of the attorney was improper, the Court then decided that it was a violation of the client’s Constitutional rights and that, therefore, McCoy must be granted a new trial.
In terms of the professional responsibility issue, this decision is correct, and consistent with precedent and logic. The rules reserve the right to decide to the client. The lawyer took away the right when he acted against the client’s instructions. Thus, the lawyer acted improperly.
Yet, as you may recall, I was also interested in this case because I wanted the court to confront its decision in
Florida v. Nixon, in which the court held that a lawyer can make a decision for the client if the client does not object.
Interestingly, Justice Ginsburg wrote the opinion in both cases, although I guess that should not be surprising. I assume that knowing the
McCoy case would force the Court to address what it decided in
Florida v Nixon, she would want to keep control of the discussion to protect her opinion in that case.
I was hoping the Court would use
McCoy to admit its decision in
Florida v. Nixon was wrong, but that did not happen. Justice Ginsburg was very careful to distinguish the two cases:
Florida v. Nixon . . . is not to the contrary. Nixon’s attorney did not negate Nixon’s autonomy by overriding Nixon’s desired defense objective, for Nixon never asserted any such objective. Nixon “was generally unresponsive” during discussions of trial strategy, and “never verbally approved or protested” counsel’s proposed approach. . . . Nixon complained about the admission of his guilt only after trial. . . . McCoy, in contrast, opposed English’s assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court. . . . If a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant’s best interest. Presented with express statements of the client’s will to maintain innocence, however, counsel may not steer the ship the other way.
I understand how the facts in the two cases are different, but I still think that the lawyer in
Florida v. Nixon negated the client’s autonomy just as much as the lawyer in
McCoy. The fact that the client did not object, to me, does not justify a different result.
The decision in
Florida v. Nixon is not as clear as Justice Ginsburg makes it sound today. It is not clear whether the Court found that the lawyer had provided ineffective assistance of counsel (a) because, although the decision was for the client to make, the lawyer could make it because the client was incapable of communicating with the lawyer or (b) because the decision was for the lawyer to make because it was "tactical" in nature.
The first option goes against the rules of professional conduct. The second is based on the position that conceding guilt to avoid the death penalty relates to “means” rather than objectives of the representation and therefore falls under the authority of the attorney.
Do you see the problem? If the decision in
Florida v. Nixon was based on the second argument (and that is what it seems to be the case), how can Justice Ginsburg now be saying in
McCoy that the same decision is exclusively for the client to make?
Once we get to that point, the only way to justify the decision in
Nixon is to say that the fact that the client was unresponsive changed the character of the decision, making it possible for the attorney to make the decision for the client. Yet, this is not what the rules of professional conduct say because the client had diminished capacity and the lawyer is not supposed to make decisions for the client.
The bottom line for me is this. If we are going to accept that, as the Court concludes in
McCoy, “the decision over whether to concede guilt at trial is ultimately the defendant’s to make. It goes to the very heart of the right to put on a defense–a right that personally belongs to the accused,” then we should conclude that the decision in
Florida v. Nixon was wrong and should be overturned.
Thus, for me,
McCoy is an incomplete victory. It is the correct result for
McCoy; but it did not correct the result in
Nixon.
Finally, it should be noted that the three justices considered to be the most conservative (can you guess who they are?) dissented in
McCoy, arguing that the Court should not have granted review in the case because the issue presented was so rare that it did not merit discussion by the court.
On the merits of the question, however, they argued, among other things that attorney English did not admit that McCoy was guilty of murder. Instead, they argued, he admitted that McCoy killed the victims. Based on this distinction, they argued that English did not concede guilt of the crime, but rather, conceded just one of its elements, and they questioned what would be the decision if a lawyer concedes guilt of a lesser included offense.
Finally, they wondered what will happen if petitioner is retried, stating that “it will be interesting to see what petitioner’s . . . counsel . . . will do. It is a safe bet that no attorney will put on petitioner’s conspiracy defense.”
These last two questions might be interesting, but they are irrelevant. The fact of the matter is that the attorney acted improperly in making a decision that is reserved for the client to make. The real issue in the case was whether that conduct amounted to ineffective assistance of counsel. The majority opinion found that it did; the dissenters did not rebut that conclusion.
You can read the full
opinion here.
