Guilty Conscience

• Author: Mark Walsh
• Pages: 20-21

Supreme

Court

Report

Guilty Conscience

Court rules lawyers cannot defy their clients’ wishes to argue

for their innocence, even if admitting guilt could save their lives

By Mark Walsh

A recent Supreme Court decision addresses a dilemma that would

challenge any lawyer—how to respond if a client refuses to confess to

a capital crime when the lawyer believes such a strategy may be the

only way to avoid a death sentence.

The May 14 decision in McCoy v. Louisiana looked to

English common law, the American Bar A ssociation’s

Model Rules of Professional Conduct and the cour t’s own

precedents for its holding. The Sixth A mendment, the

court said, gu arantees a defendant the right to choose

the objective of their defense and to in sist that their

lawyer refrai n from admitting guilt, even when t he

lawyer’s view, based on exper ience, is that confessing

guilt provides the defenda nt the best hope to avoid the

death penalt y.

Writing for a 6-3 majority, Justice Ruth Bader

Ginsburg said, “w ith individual liberty—and, in capita l

cases, life—at sta ke, it is the defendant’s prerogative,

not counsel’s, to decide on the objective of his defense:

to admit gui lt in the hope of gaining mercy at the sen-

tencing stage or to maint ain his innocence, leaving it to

the state to prove his gu ilt beyond a reasonable doubt.”

A DIFFICULT POSITION

Some legal observers say the decision wa s an impor-

tant reminder to the legal com munity of a fundamental

concept.

“The lesson we have to remember is that the fi nal

judgment on critical decisions of the repre sentation are

decisions of the client,” says Lawrence J. Fox, a visiting

lecturer at Yale Law School and former chai r of the

ABA’s Standing Committee on Ethics a nd Professional

Responsibility and the Se ction of Litigation. “This is such

an important pri nciple, having it re-es tablished in this

context wil l make sure lawyers remember it.”

Writing in dissent, Justice Sa muel A. Alito Jr. said

that the majority came up w ith “a newly discovered

constitutional right ,” but that defendant Robert L.

McCoy’s situation involved “a freakish c onfl uence of

factors that is un likely to recur.” Still, the decision may

be a factor in other ca ses, he said.

“When guilt is the sole issue for the jur y, is it ever per-

missible for counsel to make the un ilateral decision to

concede an element of the o ense charged?” Alito said.

“If today’s decision were understood to a ddress that

question, it would have important implications.”

There’s at least one thing on which the majority, the

dissent and other intereste d observers would seem to

agree—that McCoy’s defense att orney, Larry Eng lish,

“was placed in a d i cu lt position,” as Ginsburg put it.

McCoy was charged w ith fi rst- degree murder in the

2008 killings of thre e people in Bossier City, Louisiana.

McCoy, then 34, had abused and threat ened to kill his

wife, who was under police prot ection. On the night in

question, McCoy’s mother-in-law called 911 from her

home.

“She ain’t here, Robert. I don’t know where she is. The

detectives have her,” Christine Cols ton Young said on the

call. Moments later, a gunshot was hea rd and the line

went dead. Police arrived to fi nd Young and her husband,

Willie Ray Young, mortally wounded, a long with Gregory

Lee Colston, the son of McCoy ’s wife.

McCoy fl ed, but police recovered a vehicle of his with

a cordless phone handset from the Col stons’ home and

a Walmart receipt for .380- caliber bullets. McCoy was

arrested in Ida ho while hitching a ride in an 18-wheeler.

Police found a .380 handgun behind McCoy ’s seat, and

a ballistics ex pert identifi ed it a s the murder weapon.

Prosecutors had other ev idence linking McCoy to the

slayings, including sur veillance footage of him buying

the bullet s.

McCoy claimed he was in Houston on the nig ht of the

killings and wa s the victim of a far-fl ung conspiracy that

included the police and o cia ls in Louisiana and Idaho.

Psychiatric exper ts found McCoy competent to stand

trial, and he ref used to plead guilty by reason of insa nity.

McCoy clashed with hi s appointed public defenders

repeatedly before decidi ng to represent himself. But

in 2010, his parents hired English to repre sent him.

English concluded the evidence agai nst McCoy was

overwhelming and counseled h im to make a plea deal,

which McCoy refused.

Two weeks before trial, English told McCoy th at he

20 || ABA JOURNAL JULY 2018

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