On Wednesday, January 17, the U.S. Supreme Court heard arguments in McCoy v. Louisiana. The issue before them involves the right to counsel. The Constitution (the 6th amendment) quite clearly says that in all criminal prosecutions “the accused shall enjoy the right to a speedy and public trial … and to have the assistance of counsel for his defense.”

McCoy, now on death row, claims that he was denied the right to assistance of counsel in his trial for the murder of three members of his estranged wife’s family, because his lawyer repeatedly admitted his guilt in front of the jury.  McCoy wanted to deny guilt and offer an alibi defense. English believed that the alibi defense was hopeless, the evidence against his client was overwhelming, and that his only chance to save his client’s life was to admit guilt and plead for mercy. English continued to pursue that strategy despite his client’s repeated contrary instructions.

In oral arguments, the attorneys representing the State of Louisiana were peppered with questions that indicated that the Justices saw substance in this claim. Even Neil Gorsuch, the newest Justice, a Trump appointee nominated specifically with the ideas of filling Antonin Scalia’s shoes, asked, “Can we even call it assistance of counsel? Is that what it is when a lawyer overrides that person’s wishes?’

It is possible to be sympathetic to Mr. English. He may well have believed that the best chance to save his client’s life was to admit guilt and ask for a life sentence as an act of discretion/mercy. Nonetheless, a lawyer is the agent of his client, not a principal in the matter.

Right Wing View

The State of Louisiana contends that English was right. He could not ethically have obeyed his client’s instructions without violating his own professional obligations. Thus, it maintains that McCoy did receive the assistance of counsel the constitution demands.

The state’s brief to the SCOTUS begins, “This Court has recognized that in the context of a criminal trial, autonomy has its limits. It has never commanded an attorney to actively assist a defendant in putting on false testimony as a means to prove his innocence….”

One of the cases the brief cites in this line, limiting the autonomy of criminal defendants, is McKaskle v. Wiggins (1984). Another is Florida v. Nixon (2004).

McKaskle arose because a criminal defendant, Carl Wiggins, wanted to represent himself. The court allowed this for the most part, but it also appointed a “standby counsel” as back up, to serve Wiggins in an advisory capacity. Wiggins appealed his conviction on the ground that his stands-by counsel had interfered with his presentation of his defense. That argument, the Supreme Court rejected.

Florida v. Nixon sounds a bit closer to McCoy in its facts than McKaskle does. Florida involved the defense lawyer’s strategy of conceding the defendant’s guilt, despite the fact that the lawyer never had the explicit approval of the defendant for that. In McCoy, though, the situation goes beyond a failure to get explicit approval. There is abundant (uncontested) evidence of McCoy’s explicit disapproval.

From the materials available in such decisions as McKaskle and Florida, the State’s brief contends that the 6th amendment must be understood to allow counsel for a criminal defendant to make reasonable strategic decisions, including the one English made here.

Left Wing View

Authorities across the political spectrum are calling this conviction into question, but for purposes of maintaining the usual template of these columns we will call the defendant’s position on appeal the “left wing view.”

The National Association of Criminal Defense Lawyers has submitted a powerfully argued amicus brief to SCOTUS in this matter. It says that “no decision is more fundamental to one criminally accused than whether to concede guilt on the charged offense. That decision belongs to the defendant, not to the lawyer, and when the defendant communicate an express desire on that ultimate issue, the lawyer must heed it.”

It cites in this connection Jones v. Barnes, in which the Supreme Court said a defendant must retain “ultimate authority to make certain fundamental decisions regarding the case, as to whether top plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.”

The Supreme Court now must decide whether the defendant in McCoy was denied precisely that “ultimate authority,” and if so, whether he is entitled to a new trial as a consequence.