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.
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.”
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 firstname.lastname@example.org.