Abstract. In McCoy v. Louisiana, the U.S. Supreme Court recognized an expanded Sixth Amendment autonomy right for capital defendants, allowing them to maintain their factual innocence at trial at all costs. The Court's concern with such defendants' dignity has an intuitive appeal, and its holding followed neatly from the Court's Sixth Amendment cases.
But McCoy has some troubling implications for another strand of the Court's capital jurisprudence: the requirement that death sentences be proportional both to the offense and to the offender. The core of proportionality is the bifurcated capital trial, which channels aggravating and mitigating evidence--that is, evidence pertaining to the appropriate penalty--into a separate hearing. But staunchly maintaining innocence at the guilt phase of a capital trial--as McCoy now enables capital defendants to do--will often undermine common mitigation strategies at the penalty phase. Moreover, McCoy can be read as shifting control of penalty-phase strategic decisions--classically the province of the lawyer--away from the lawyer and toward capital defendants. In these two ways, McCoy quietly privileges a capital defendant's autonomy over the proportionality requirement, offering some support for the notion that a defendant may waive his right to present mitigating evidence, notwithstanding the need for an individualized accounting of culpability in capital sentencing.
The proportionality requirement protects both individual defendants and society's interest in just, accurate sentencing. By intimating that waiver of mitigation is consistent with that requirement, the seemingly pro-defendant outcome in McCoy may contribute to the trend of narrowing the proportionality doctrine into oblivion.
Table of Contents Introduction I. McCoy v. Louisiana A. "A Difficult Client" B. Defendant Autonomy as Sixth Amendment Right C. Levels of Generality II. McCoy Within the Capital Sentencing Landscape A. Proportionality and Capital Sentencing B. The Penalty Phase, the Right of Self-Representation, and the Duty of Loyalty 1. Mitigation and self-represented defendants 2. Mitigation and defendants represented by counsel C. McCoy and Proportionality: How the Right to Maintain Innocence Can Undermine the Proportionality of Capital Sentences D. McCoy and the Allocation of Responsibility Between Lawyer and Client Conclusion Introduction
The U.S. Supreme Court granted certiorari in McCoy v. Louisiana to resolve a split among state supreme courts as to whether a criminal defense lawyer may concede her client's guilt at trial over his objection. (1) McCoy presents itself as reaching a pro-defendant outcome, invoking the criminal defendant's dignity and autonomy (2) and ultimately granting the petitioner a new trial. (3) But McCoy is a tricky case with the potential to work a great deal of mischief. It implicates a surprisingly common capital trial dilemma: When a defendant opposes presenting some or all mitigating evidence, does his preference control, or does the need for accurate sentencing information take precedence?
This Comment explores the potential impact of McCoy on the proportionality doctrine in capital sentencing--that is, the requirement that a death sentence be proportional to both the seriousness of the offense and the characteristics of the offender. McCoy fits into a line of cases that manifest an urgent tension between the proportionality requirement and capital defendants' right to control what mitigating evidence is introduced at their penalty trials--or even to waive mitigation altogether. By constitutionalizing defendants' right to maintain innocence at the guilt phase of a capital trial, the McCoy majority unwittingly offers some support for waiver of mitigation and, thus, for the trend toward narrowing the proportionality requirement into oblivion. This may have dangerous consequences for capital defendants, who frequently resist presenting mitigating evidence only to change their minds and fight their sentences. McCoy's surprisingly broad holding thus has troubling implications both for proportionality in capital sentencing and for the already muddy division between the decisions lawyers may make unilaterally and those only defendants themselves can make. (4)
McCoy v. Louisiana
"A Difficult Client"
On May 29, 2008, a grand jury indicted Robert LeRoy McCoy on three counts of capital murder. (5) McCoy pleaded not guilty to the charges that he killed the mother, stepfather, and son of his estranged wife, Yolanda. (6) McCoy proved to be "a difficult client." (7) By late 2009, McCoy's relationship with his public defender "had broken down irretrievably." (8) He fired the public defender, briefly represented himself, and then hired Larry English as his attorney. (9) That relationship, too, quickly soured: McCoy refused to submit to examination by the experts English had engaged, and he repeatedly filed pro se motions with the court over English's objections. (10) Finally, McCoy became furious when English informed him that McCoy's best strategy to avoid a death sentence was to admit he killed the victims. (11) McCoy again sought to fire his lawyer, but with the trial set to begin two days later, the court refused to allow English to withdraw, instructing him that as the attorney it was his responsibility to decide how to proceed at trial. (12)
English concluded that McCoy was delusional; that the alibi he wished to present--a vast, seemingly preposterous conspiracy involving multiple corrupt police departments killing the victims and then framing McCoy--was certain to fail in light of the overwhelming evidence of McCoy's guilt; and that McCoy's only chance of avoiding a death sentence was to admit he was the killer to maintain credibility with the jury. (13) Motivated by the desire to save his client's life in a criminal justice system he saw as racially biased, (14) English conceded at trial that McCoy had killed the victims, but argued that he could only be convicted of a lesser included offense because he lacked the mens rea required for first-degree murder. (15) McCoy protested that English was "selling [him] out," but the court nonetheless allowed English to tell the jury that the evidence would "unambiguously]" prove that McCoy killed three people. (16) The jury convicted McCoy on all three counts of first-degree murder. (17)
At the penalty phase, McCoy continued to protest in open court that he was being "railroad[ed]" and that English had "piss-poorly represented [him]," (18) and he asked "to go on and get the death sentence." (19) As mitigating evidence, English called a clinical psychologist as an expert witness to testify that McCoy, whose victims were relatives of his estranged wife, suffered from a narcissistic personality disorder and an attachment disorder, conditions which often lead sufferers like McCoy to become convinced that "the woman in their life ... is having affairs." (20) McCoy objected to this testimony, telling the judge, "They want to make it seem like something is wrong with me. There's nothing wrong with me, Your Honor." (21) The jury returned a death verdict on each count. (22)
Defendant Autonomy as Sixth Amendment Right
McCoy sought a new trial in light of English's concession of McCoy's guilt (23) But the Louisiana Supreme Court "affirmed the trial court's ruling that defense counsel had authority ... to concede guilt." (24) In light of a split on this issue between the Louisiana Supreme Court and the high courts of Colorado, Delaware, and Kansas, (25) the U.S. Supreme Court granted certiorari and reversed in a 6-3 decision, holding not only that English violated McCoy's right to define the objective of his defense, (26) but that to override the client in this manner was structural error. (27)
The Court's holding in McCoy has an appealing doctrinal simplicity. First, the Court reaffirmed that the Sixth Amendment grants the right to the assistance of counsel, "and an assistant, however expert, is still an assistant." (28)
The lawyer's role, the Court emphasized, is to use her expertise to achieve the client's objective, not to displace the client's own determination of that objective. (29) Second, the Court applied this familiar principle--that decisions about the goal of the representation are entirely up to the client, while the lawyer is responsible for strategic decisions--to conclude that a defendant has the right to define the objective of his defense to be maintaining his innocence. (30) McCoy's Sixth Amendment right was therefore infringed when English defied his objective--maintaining innocence--by "admit[ting] [his] client's guilt" in pursuit of English's own objective of avoiding a death sentence for McCoy. (31)
McCoy is particularly remarkable for its expansion of the carefully circumscribed category of structural error. Most trial errors, even if properly preserved by contemporaneous objection, are subject to harmless error review: If the government can demonstrate on appeal that the error did not prejudice the defendant, relief will be denied. (32) But there exists a narrow category of errors "so intrinsically harmful as to require automatic reversal" (33) because they "affect the framework within which the trial proceeds." (34) This class of structural error is "very limited." (35)
Within the framework of trial error versus structural error, it may be reasonable to call a concession of guilt to which the defendant objects "structural error" on a theory that it represents something like a complete denial of counsel (in that the defense lawyer joins forces with the prosecution to assert that her client committed a crime) mixed with a denial of self-representation (in that the defendant is deprived of the opportunity to set the direction of his defense). The Court's decision to operate within this framework instead of the ineffective assistance of counsel framework urged by the State, (36) however, is somewhat...