Today the Supreme Court ruled in favor of Robert LeRoy McCoy, who was convicted of three counts of murder after his lawyer refused to follow his instruction and plead not guilty as he directed. I had predicted that his convictions would be over-ruled; I also wrote,
“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.”
Well, the vote wasn’t 9-0. I think instead of turning in my license, I’m going to turn in my respect for the so-called conservative wing of the Court. The majority opinion was authored by Justice Ginsberg, with Kagan, Sotomayor, Breyer, Roberts, and Kennedy concurring. Two of the conservatives concurred in a dissent authored by Alito: Gorsuch and thomas.
I haven’t had time to read it as carefully as I have to to do a thorough analysis, but I read it well enough to flag it as an embarrassing collection of rationalizations. While the majority opinion interprets a straightforward case according to what is significant about it—a lawyer pleaded guilty for him when his client demanded that he plead non guilty, thus making the conclusion unavoidable, Alito resorts to desperate excuses. Well, this kind of case isn’t likely to happen again. So what? A man was robbed of his Sixth Amendment rights! His story was ridiculous. So what? If that’s his story, he has the right to tell it. The lawyer was placed in a tough situation by a client whose claims were unbelievable. The jury decides who to believe, and a defendant has the right to let them do that. McCoy’s lawyer didn’t believe him. So what? Welcome to criminal defense work. McCoy was going to be convicted anyway.
What????
I can’t believe a Supreme Court Justice is making these arguments. So what? The principle of the rule of law is that it is vital that the defendant, if he is convicted, is convicted the right way, constitutionally. The conduct of McCoy’s lawyer was indefensible under the ethics rules, and the Constitution.
Reading the whole opinion and the dissent is revealing, and not in a good way. The majority opinion shows us that the Supreme Court can’t say the sky is blue without making the case in the mots turgid way possible. This opinion should have been a few pages at most.
The dissent lets us know that Justices Alito, Gorsuch and Thomas look for minuscule fragments of justifications to avoid doing the right thing.
Ethics Alarms 
“Well, this kind of case isn’t likely to happen again.”
It may only happen .0001% of the time…but the times it happens, it happens 100% of the time to people who have a right to due process.
What an excuse…
Well said.
Awful.
Actually, once of the points I did see in the dissent (skim, I almost certainly missed something) was that the lawyer didn’t plead guilty, he stipulated the fact of the killing but argued that it wasn’t murder. That is not the same as a guilty plea, and it matters at least to a point. The majority opinion probably shouldn’t have treated as identical to guilty plea in their arguments. I believe they also pointed out that the decision was based on points not raised in the appeal, which there are good reasons not to allow.
I think that’s sophistry, though. The client says “I didn’t kill them.” The lawyer cannot say: “He did, but it wasn’t that bad.” As far as the client’s rights and a lawyer’s duty, its a distinction without a difference.
I’m going to do a thorough defenestration of Alito’s dissent.
Couldn’t they just have overturned the state court’s ruling and sent it back to the trial court without comment beyond “Overturned.”
Wow
Excellent decision, and excellent post, Jack.
Any speculations on what Scalia would have done? He had a libertarian streak (flag burning, pro-4th amendment sometimes). I like to think he would have voted with the majority, and maybe even persuaded some of the others.
Jeez, I hope so. Really, Alito’s opinion is shocking, a parody of the lawyer’s missing the forest for the trees weakness at its worst, validating anti-lawyer contempt. I’m a lawyer, and if my lawyer told me, “Now, I’m not going to plead guilty for you, I’m just going to admit that you killed those people…” my response would be, “But I didn’t kill those people, you fool! THAT’S WHY I WANT TO PLEAD NOT GUILTY!”
With all due respect, his lawyer did not plead guilty for his client. Did. Not. He admitted to the killings but he argued, vociferously it appears, that his client lacked the necessary mens rea. Some might call that splitting hairs, and maybe it is, but the law requires splitting hairs every day.
I’ll make you a deal Jack. You dismantle Alito’s opinion and I’ll defend it, even though I don’t buy into it (I just don’t think it’s a terrible legal atrocity). And I’m sure you will, but answer Alito’s question about what the lawyer should have done, facing the circumstances he was.
Jack posted on this when it was first raised, and I don’t want to put words in his mouth, but my take away from it is that the constitution requires legal representation, and that representation is supposed to resemble your wishes.
When the lawyer had laid out the likely scenarios, as I’m sure he did, if the defendant wanted to ignore the qualified advice of his representative, then the lawyer, as his client’s representative, was obligated to accurately represent his client’s wishes in court, no matter how stupid they might be.
Well, that’s not an absolute. A lawyer is not required to follow his client’s wishes if they are unethical. What if a client instructed his lawyer to object to every single question asked of a witness? I don’t think a lawyer would be obligated to follow that either. So a lawyer is not required to follow EVERY dictate from his client. I’m still chewing over whether this case falls within that range, but you can’t simply say a lawyer was absolutely obligated to follow his client’s direction.
Maybe not absolutely, but generally? And on the topic of the direction of the defense?
Whether or not the defendant pleas guilty would be a more obvious example, but “I didn’t do it” vs. “he did, but it wasn’t murder” cannot possibly be that far removed.
i would agree with that – that the lawyer and the defendant should be aligned on defense strategy. And they were apparently – until the weekend before trial. The lawyer then moved to withdraw and the court said no.
Its a pretty clear distinction: you should read the whole majority opinion. The lawyer chooses the means (though the client get to choose the objective). That’s clear to me. This client’s objective was to present himself as not having killed anyone. He made that clear. The lawyer’s strategy involved admitting that he HAD killed someone. That’s not “means,” that’s stealing the client’s goal, and he has a right to that.
If a lawyer doesn’t like the client’s objective, he resigns. The rules could not be clearer on this. And if he can’t resign, he still can’t choose his own objective over the client’s.
Again, and as I just wrote, this is a distinction without a difference, and the worst kind of trees for forest reasoning….and Aloto should be ashamed of himself. As thge majority opinion makes clear, there is no value to the right to plead not guilty if one’s lawyer can defy a clients directions and say, “Pssst! But he did it!” A lawyer is talking to a jury, not Supreme Court Justices—you think a jury appreciates that distinction, or can comprehend it? The actual consequence of the lawyer stating that his client killed someone is that the jury believes that the man’s lawyer just said he was guilty.
When I write the long version of Alito’s opinion analysis, the easiest part is the supposed “dilemma.” Every defense attorney faces that dilemma regularly: I don’t believe my client, but he says he’s not guilty. The solution has been the same forever: you still defend the client, who must be proven guilty in the eyes of the jury beyond a reasonable doubt in THEIR assessment. The lawyer’s assessment does not matter. Alito’s phony dilemma is what tipped me off that the dissent was boot-strapping nonsense. A lawyer can continue to argue that his client isn’t guilty even if the lawyer KNOWS he’s guilty, as in the client confessed to him!
I’m going to check to see if Alito ever practiced criminal law. This isn’t even a close call.
What a lawyer can’t do is assist a client’s lie on the stand—but that was an ethics problem for another day.
We will have to agree to disagree on whether that is a distinction without a difference. If it is a distinction without a difference, why do they keep saying his lawyer pled guilty for him, instead of saying his lawyer admitted the killings but contested mens rea? I posit it’s because the former has a little more punch and sounds ore egregious (which it is).
Alito was and Assistant U.S. Attorney (under Maryanne Trump Barry)and later the US Attorney for the District of NJ before he was nominated to the Third Circuit, so yes, he has some experience with criminal law.
I myself don’t understand this – I have defended a position I knew was garbage, and I have seen other attorneys defend positions they have to know are garbage, like a recent civil rights case I got tossed, brought by a career criminal who argued he never had a gun, even though the police saw him toss it and a gun was found at the scene. Defending ridiculous positions is par for the course, as long as you don’t knowingly offer lies into evidence.
I wonder whether the issent has its rot in some (many? most?) judges’ inherent and very strong bias toward what they would call judicial or administrative efficiency?
So the guy got off?
By not following his client’s wishes, he got him convicted with a bad process, later to be thrown out.
So, bad lawyer, or THE BEST lawyer?
That’s not how it works. He gets a new trial.
Oh okay. That wasn’t clear.
Depends, there is going to be the question of double jeopardy, and also no prosecutor in his right mind retries anything – the defense has seen his whole case.
It’s not double jeopardy when the defendant has been CONVICTED, though. He’ll get a new trial, he’ll plead not guilty, and he’ll be convicted—fairly, this time.
How does law differentiate between individual crimes or accusations to protect against double jeopardy?
In a single moment someone may break several laws, if prosecution only pursues a single angle from one of the broken laws and fails with a conviction…is it double jeopardy to pursue one of the other laws broken in the same instance? Or is it incumbent on prosecutors to go after all the laws broken in a single act?
Very good, and difficult question. So, of course, there is a lot of arguments about this. Sort of a rule of thumb: prosecutors have to bring everything that comes out of the same set of facts.
I remember this issue coming up where (and I am making some of this up from memory) a guy was charged with DWI and the defense said that violated double jeopardy because he had pled to possession of drugs, which had been the only thing charged after the very same stop that led to the later DWI charge. So, the question was whether the State could bring DWI when he had already been charged and convicted of drug possession. I did not find out the outcome of that case, but I hope the defense won.
By contrast, I don’t think Capone’s tax evasion conviction would have had any impact on a subsequent charge of murder.
-Jut
Thanks!
Correct. Or the prosecution gives him a plea deal. Either way, he’s doing time.
Added just in the interest of completeness.
He’ll be doing time beyond the ten years he’s already done. They arrested him in May 2008.