Wait, WHAT? I Don’t Understand This Case At All: The Louisiana Lawyer’s Betrayal

Robert McCoy (above), facing trial for a triple murder in Louisiana, told his lawyer, Larry English, that he was innocent. Someone else had killed the victims, he insisted. English, however, knew better. He wasn’t buying any of it.

“I met with Robert at the courthouse and explained to him that I intended to concede that he had killed the three victims,” Mr. English stated in a sworn statement. “Robert was furious and it was a very intense meeting. He told me not to make that concession, but I told him that I was going to do so….I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims,” Mr. English said. “But I believed that this was the only way to save his life.”

English’s theory was that in the state’s two-phase trail system, he would lose credibility with the jury if he insisted McCoy was wrongly charged in the face of overwhelming evidence He wanted to have the trust of the jurors in the second phase, when he would have to argue that they should spare Mr. McCoy’s life.

After the meeting, Mr. McCoy tried to fire his lawyer, saying he would rather represent himself—So would I— but Judge Jeff Cox refused to let English off the case. So, as promised, English told the jury during his opening statement that his client was a triple murderer. McCoy objected in court, protesting, “I did not murder my family, your honor ! I had alibis of me being out of state. Your honor, this is unconstitutional for you to keep an attorney on my case when this attorney is completely selling me out.”

The objection was over-ruled.  McCoy’s lawyer, the judge apparently believed, knew better than his client what his client’s best interests were.

He didn’t though. McCoy was convicted and sentenced to death despite all of that supposed good will, credibility and trust English had built up by throwing his own client under the criminal justice bus.  The victim of this Bizarro World representation appealed the conviction to the Louisiana Supreme Court, saying his lawyer had turned on him. The court ruled against him,  holding that

“Given the circumstances of this crime and the overwhelming evidence incriminating the defendant admitting guilt in an attempt to avoid the imposition of the death penalty appears to constitute reasonable trial strategy.”

Now the United States Supreme Court is going to consider the case, McCoy v. Louisiana, and the question of whether a lawyer who disregards a client’s explicit instruction to plead not guilty has breached the Constitutional right to counsel.

I am stunned.  What question? Apparently this is a thing in Louisiana. “Counsel’s strategic choices should not be impeded by a rigid blanket rule demanding the defendant’s consent,” Louisiana’s lawyers  wrote in a brief urging the court to pass on the case. Since 2000, the Louisiana Supreme Court has allowed defense lawyers to concede their clients’ guilt in four other capital cases over the clients’ express objections.

Good grief.

Maybe there is some genuine legal dispute here, but ethically there is none. The legal ethics rules are very clear: the client determines the objective of the representation, and the lawyer determines the best way to achieve them, with the client’s input. McCoy’s objective may have been to avoid execution, but that goal included not being convicted at all.

The Washington, D.C. Rules of Professional Conduct, as in almost every other state, declares.

“A lawyer shall abide by a client’s decisions concerning the objectives of representation…and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.” (DCRPC 1.2 a)

A lawyer simply cannot ethically tell a jury that his client is guilty when the client has ordered him not to.  Such a lawyer’s recourse is to try to withdraw from the case if “obdurate or vexatious conduct on the part of the client has rendered the representation unreasonably difficult [Rule 1.16],” although a judge may well disagree that a man accused of murder is being “vexatious” by merely insisting that he be defended as innocent, as is his right.

I don’t understand a lot of things about this case. I don’t understand what Louisiana is thinking, though that wouldn’t be the first time. The state has the same Rule 1.2 as D.C.’s quoted above. “Abide” means to accept or act in accordance with.  Needless to say (well, needless everywhere but Louisiana!), English wasn’t abiding when he did the exact opposite of what his client decided he wanted  to do. How can the courts in Louisiana hold that a criminal defendant’s rights to counsel have been maintained, when that counsel breached such a basic ethics standard having such a massive effect on the client’s fate? Calling this betrayal isn’t an exaggeration.The Ethics Bureau at Yale, in its amicus  brief supporting Mr. McCoy, concluded that English had essentially switched sides, saying, “Far from testing the prosecution’s case. Mr. English seemed downright eager to advance it.”

Exactly.

If  this is really the crazy practice in Louisiana, I don’t understand how it has lasted this long without the U.S. Supreme Court slapping it down. 47 years ago, in Faretta v. California, the Court confirmed that that the defendant can’t be vetoed by his lawyer because the Sixth Amendment unambiguously guarantees a right to “the assistance of counsel.”  “[The Sixth Amendment] speaks of the ‘assistance’ of counsel,” Justice Potter Stewart wrote, “and an assistant, however expert, is still an assistant.”

If doesn’t help that McCoy’s arrogant rogue lawyer’s brilliant strategy also didn’t work, but that’s just moral luck. The decision to defy his client’s legitimate and inviolate orders regarding his desire to be defended as innocent would have still been outrageously unethical if English had told the jury McCoy was guilty, and the jury had been so impressed that they decided to acquit to reward the defendant for having such an honest lawyer.

I just don’t understand how this could happen. If the Supreme Court does anything but overrule Louisiana in this case by a 9-0 vote, I may turn in my law license in exchange for a free Whopper at Burger King.

__________________

Pointer and Facts: New York Times

Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts, and seek written permission when appropriate. If you are aware of one I missed, or believe your own work or property was used in any way without proper attribution, credit or permission, please contact me, Jack Marshall, at  jamproethics@verizon.net.

40 Comments

Filed under Ethics Alarms Award Nominee, Law & Law Enforcement, Professions, Rights

40 responses to “Wait, WHAT? I Don’t Understand This Case At All: The Louisiana Lawyer’s Betrayal

  1. Steve Berlin

    Franz Kafka’s novel Der Prozess has been brought to a real-life performance in Louisiana.

  2. Andrew Wakeling

    Surely, surely this can’t stand? This must be some April Fools Day story that has gone off prematurely? Ha ha! You’ve been hacked by Russians (?)

    • Louisiana is an unusual state, to put it mildly. Still, I didn’t think it was this unusual.

      • valkygrrl

        Aside from what was supposed to be solid ground squishing under my feet, nowhere outside of New Orleans struck me as being any different from Mississippi Alabama or Arkansas. Or are you talking about the Napoleonic code thing?

        • You mean culturally? The French, Cajun, Creole influence? The only state we ever had post Yorktown run as a personal political as empire? Historically and culturally, its one of our most distinctive states.

          • valkygrrl

            Mind you that I was only there for a week or so but quite honestly, the towns and the people in them didn’t stand out. Aside from New Orleans, of course.

      • Matthew B

        I’m loathe to bring it up… but I do wonder about the intersection of Mr. McCoy’s race and the fact that it is in Louisiana?

  3. Art

    A minor grammatical point, “The Washington, D.C. Rules of Professional Conduct, as in almost every other state…” Washington, District of Columbia, is not a state.

  4. If the Supreme Court rules in favor of McCoy, his Constitutional rights were violated by his Attorney and the Judge, then what happens to McCoy? What happens to the case? What happens to justice for the victims? What happens next?

    • JP

      I was thinking this exactly. My understanding of court proceedings is limited but this seems to be a case over a desire to see justice verses letting a murderer get off on a technicality. He can’t be tried again under double jeopardy right?

      Just a thought but if this is a case seeking justice perhaps it could be because the current cultural environment?

      • Anonymous Coward

        >this seems to be a case over a desire to see justice verses letting a murderer get off on a technicality

        I mean, while I guess he was technically convicted, given the circumstances of it, is it really fair to say he’s a murderer?

      • Double Jeopardy only comes into play with a not guilty verdict (or a mistrial with some outrageous misconduct by the prosecution). Some convicts spend their entire sentences researching and filing motions for a new trial.

        • Eternal Optometrist

          He will get a new trial where, hopefully, he will be represented by able counsel who will respect his clients wishes. And where hopefully, if he really is guilty, he will be convicted again.

          • If his Constitutional rights were violated, shouldn’t he sue the State for millions then he could use all or a portion of that money for his defense in the next trial?

            • Eternal Optometrist

              Millions of dollars of damages for what? Just because someone violates your Constitutional rights does not result in a blank check. You have to show how you were harmed. He would only suffer damages (but for the minimal amount he paid for his initial defense) if he were later acquitted. Then he could tie the violation to his prolonged incarceration.

              The concurrence by the Louisiana Supreme Court is worth a read. Still not availing, in my opinion, but it perhaps sheds a little light on the trial court’s decision.

              • But the opinion is still bats. The argument is basically “the client was so guilty, the usual rules don’t apply.” But it’s not up to the lawyer to decide how guilty the client is. If the clients says he’s innocent, that’s the starting point.

                • valkygrrl

                  That wasn’t my reading. The argument is that the accused, knew the lawyer wanted to say he was guilty so he should have fired him sooner.

                  Which is still absurd. You could know that the the lawyer wants to wear Lady Gaga’s meat dress to court but still expect him to follow instructions not to.

                  • I’m not sure if this changes anything you wrote but; Jack wrote in the blog, “Mr. McCoy tried to fire his lawyer, saying he would rather represent himself—So would I— but Judge Jeff Cox refused to let English off the case.”

                    • valkygrrl

                      I was speaking of the Louisiana Supreme court opinion which said the accused had known for some time that his lawyer wanted to admit guilt but didn’t try to fire him until later.

                      http://www.scotusblog.com/wp-content/uploads/2017/09/16-8255-opinion-below.pdf

                      page 29

                      The record clearly reveals the defendant’s awareness of Mr. English’s trial
                      strategy, to avoid the death penalty by conceding guilt and seeking a life sentence,
                      some eight months prior to July 12, 2011.
                      22 Thus, the trial judge did not abuse his
                      discretion by denying the motion to discharge and replace retained counsel two
                      days before trial. This assignment of error is without merit.

                    • Okay, now I get the full context.
                      Thanks valkygrrl

                    • The client had every reason to assume that his lawyer would follow the rules of the profession, no matter what he insisted before trial. This isn’t the defendant’s fault. If he stood up in court and demanded that the ass be fired THEN, it would still be timely. The Constitution doesn’t guarantee a fair trial as long as a defendant fire’s his lawyer in time. It guarantees a fair trial. A trial where a lawyer says his client is guilty when the client says otherwise is not a fair trial.

    • In both my comment above and below…

      This…

      “…his Constitutional rights were violated by his Attorney and the Judge…”

      …should read…

      “…his Constitutional rights were violated by his Attorney and the Judge and the State of Louisiana…”

  5. In addition to my question above; if the Supreme Court rules in favor of McCoy, his Constitutional rights were violated by his Attorney and the Judge, what happens to the Attorney and the Judge that violated his Constitutional rights?

  6. I agree that the lawyer was wrong to go against the decision of his client, and that the the trial results should be overturned by the Supreme Court. What really gets me, though, is why the lawyer felt the need to plead “guilty”, specifically. What happened to no lo contendere? “I will not admit guilt, but I won’t bother to fight all this evidence.” That would still go against the client’s decision to fight the evidence, but at least it wouldn’t be quasi-slanderous.

  7. Wayne

    Does Louisiana function under the Napoleonic Law code? Just wondering.

  8. I don’t know about Louisiana, but California (and I presume some other states) has a reasonable way of getting around the lawyer’s initial concern about his credibility: They switch to a different lawyer for the death penalty argument.

  9. Pennagain

    That lawyer/defendant situation came close to this scenario once when I was still being called for jury duty (back in the day) when the defendant misunderstood something her lawyer was saying to the jury and told the judge she wanted a new lawyer. The judge explained, kindly, the meaning of the idiom being used (it was southern/country, I don’t remember what: the trial was in Colorado), and asked if she still wanted to fire her attorney but everything was copacetic after that. (And we did find her guilty on grand theft charges).

    But now I look at Mr. McCoy’s situation from that other side and wonder: What if I, as a jury member, had heard the defense counsel declare (or imply strongly) his client’s guilt, the client protest his innocence and ask for a new lawyer (not a new trial, a new lawyer), and the judge refuse . . . or even if the situation were stronger as far as the disloyal behavior of her attorney went — drunk, manic, prejudiced, “I know she’s a whore; she deserves jail for that anyway” — and the judge still went along with it . . . has a juror, or the entire jury, anything to say in the matter? Or do I have to go along with it, or any other breach of rights, (re the entire jury, under threat of nullification), because that’s not my business?

    Everything I find on the Net concerns juror misconduct; nothing about a juror’s rights (other than that being a juror is a right in itself, which I do not dispute, even though it is usually the most unpleasant, uncomfortable experience one can imagine ).

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