Scope of representation was a concept that was stressed in law school. There are parameters for when an attorney can make decisions verses when a client can make the decisions in any given case. The lawyer decides questions, objections, and trial strategy. Whereas the client decides whether to enter a plea, represent themselves, waive jury, or if he or she will testify.
But what happens when an attorney’s strategy decision consists of the exact opposite theory of what the defendant wants to put before the jury?
Florida v. Nixon ruled that conceding some elements of a crime and focusing on weaker elements is a defense strategy that does not require a client’s express consent. But what if that client expressed his disagreement with the strategy? What if the client insists on innocence and the attorney wants to concede on guilt on a triple homicide?
Would it change your opinion if the defendant’s theory consists of a plan to testify about a conspiracy that was wholly baseless? Or that the attorney’s strategy is the attorney’s best chance at saving the defendants life because of the State’s overwhelming amount of evidence?
In 2011, Robert McCoy was tried on three counts of first-degree murder for the 2008 shooting deaths of the son, mother, and stepfather of his estranged wife in Bossier Parish, Louisiana. Although McCoy consistently maintained that he was innocent, his attorney took a different approach. He conceded McCoy’s guilt in an unsuccessful attempt to spare his life.
The State had a pretty compelling theory of the case. McCoy was looking for his wife who had recently gone into protective seclusion after McCoy threatened to commit murder-suicide. He went to his in-law’s house in hopes of finding her but when she wasn’t there, McCoy decided to kill her family instead.
The evidence against McCoy was strong. McCoy was seen on a Walmart security video buying bullets on the day of the murders. In the 911 call, McCoy’s mother-in-law is heard yelling, “She ain’t here, Robert [McCoy]. I don’t know where she is. The detectives have her.” Before the call was abruptly disconnected, a gunshot could be heard. A vehicle, later found to be McCoy’s, was seen leaving the residential area. Police officers later found this vehicle abandoned with the phone used to call 911 in it. McCoy was found later in Idaho after hitch hiking rides to California. With him, police officers found the gun used in the triple homicide.
McCoy went to trial and thought his best defense was a combination of an alibi and conspiracy theory. McCoy insisted that he was in Houston during the time of the murders and police officers framed him for revealing that local police were involved in a drug trafficking ring. Sounds like a solid defense. The only thing needed was evidence to corroborate it. But this is where McCoy’s alibi theory fell apart. There were statements from two of McCoy’s friends and two of McCoy’s brothers putting him in Bossier Parish, buying bullets, admitting to killing three people, and fleeing police. Additionally, all twelve alibi witnesses, including a senator and a sitting judge, were dead ends because they either did not know McCoy or only have seen him in passing.
McCoy used his right to counsel and was assigned two public defenders. After the attorney-client relationship went south due to different beliefs in the case, McCoy decided to represent himself for a short time before McCoy’s family hired attorney Larry English. English, although not capital-certified, was a well experienced criminal defense attorney. McCoy waived his right to capital-certified counsel and waived his right to the appointment of co-counsel.
English actively represented McCoy during the pre-trial period by filing motions, gaining funding, hiring experts, negotiating plea offers, and exercising two Batson challenges during voir dire. However, as trial approached, this attorney-client relationship also began to go south. Several hearings were held that turned into arguments between English and McCoy. McCoy was upset that English would not adopt his alibi subpoena requests. English explained to the judge that he questioned McCoy’s competency stating that McCoy has “severe mental issues…continues to make statements that are irrational…and asking me to do things which I cannot do, that goes counter to what his interests are in this trial.” Not once during these proceedings did McCoy request new counsel.
A month before the trial date, English urged McCoy to take the guilty plea in exchange for a life sentence. English did not believe a Louisiana jury would buy McCoy’s baseless theory and believed the case would not be won. McCoy refused and insisted on his innocence. A couple of weeks before the trial date, English visited McCoy and explained to McCoy his plan to concede (admit) McCoy’s guilt in an effort to save his life. McCoy was furious and believed that English was also part of the conspiracy against him. Two days before trial there was a hearing to see if English could be discharged. Even after English explained to the court his tactical decision, the court ruled that English would stay on the case and represent McCoy.
McCoy’s case carried with it a life or death sentence. English believed that the State’s evidence against McCoy was too strong to be refuted by the baseless alibi defense McCoy wanted. English believed that this approach would discredit him for the penalty phase of the trial. Because of this, English decided that the best approach would be a mitigation strategy. He would acknowledge to the jury that McCoy committed these murders, but that McCoy did not possess the intent required of first degree murder. Conceding to second degree murder would allow English to ask the jury to spare McCoy’s life in the sentencing phase.
During opening statements, English did as he said he would and conceded McCoy’s guilt over McCoy’s objections. At the trial’s end, English’s strategy failed. McCoy was found guilty of all charges and sentenced to death.
McCoy appealed claiming ineffective assistance of counsel, entitling him to a new trial. The Louisiana Supreme Court unanimously upheld English’s strategy and the trial judge’s decisions. “Admitting guilt in an attempt to avoid the imposition of the death penalty appears to constitute reasonable trial strategy,” the court concluded, relying on Florida v. Nixon.
Based on initial arguments on January 17, 2018, this case is a tough call. Was English’s decision a reasonable effort to make the best of a bad situation? Did that tactical decision violate McCoy’s Sixth Amendment right?
McCoy argued that the Constitution, “Guarantees a personal defense that belongs to the accused, and whether to admit or contest guilt is paradigmatic example of that personal defense.”
Justices Robert, Alito, and Gorsuch were initially fixated on the issue of where to draw the line if they ruled in favor of McCoy. What kinds of decisions would warrant a new trial if the attorney disregards the client’s wishes? Would that mean a lawyer could not concede on any element? What about smaller decisions? For instance, whether a piece of evidence should stay out or not? What if the client wants to maintain innocence but the lawyer wants to go with an insanity theory, inevitably saying yes, he/she did it but there is an excuse for it? What if the client wants to maintain innocence but the lawyer wants to go with a self-defense theory, inevitably saying yes, he/she did it but for the right reasons?
Justice Breyer took the broadest view, he questioned the defendant’s capabilities of making these decisions. He even took it as far to say, “[Y]ou’re walking right into jail when you start telling your lawyer how to run this case.” Justice Sotomayor fired back explaining that these defendants can walk right into jail, but it is their choice and they have a right to do that.
The State on the other hand, stressed that the Supreme Court has never ruled that an attorney must “actively assist a defendant in putting on false testimony as a means to prove his innocence, nor has it required a trial court to protect the defendant’s pursuit of such a defense.” The State continued by stating in a capital case, the Supreme Court has, “recognized that this defense may be the best and perhaps only viable strategy to save the defendant’s life when the state has overwhelming evidence the defendant committed the charged murders.”
Justice Sotomayor questioned why the State believes this is only true for capital cases. Justice Kagan explains that lawyers have racked up a lot of leeway to make numerous decisions during representation, but why should a lawyer be able to say “it doesn’t matter” if that defendant wants to insist in innocence.
When the trial judge ordered English to stay on the case, English was put in a difficult situation. But was conceding to guilt, when the client maintains innocence, too like a lawyer entering a plea deal? In the end, it seemed the Justices were concerned with where to draw the line for when a lawyer can essentially disregard his client’s wishes.
A decision is expected in late June.
The mentality is: you lose the battle but still have a chance at winning the war.
Although a lawyer must work hard in the present battle, they also need to look at the bigger picture of the war. In other words, the battle takes place during the guilt phase, but the war does not end until the sentencing phase.
When English was thinking ahead to the sentencing phase, he determined that conceding guilt at trial (losing the battle) would maximize his client’s chances of avoiding a death sentence (winning the war). If English fought through the battle advocating, “My client is innocent,” it would have been incredibly difficult to win the jury over during sentencing with a plea of mercy and forgiveness for the murders that English had just denied for the duration of the trial.
When seeing that the defense of alibi in the guilt phase is hopeless, one can understand why English would want to better use that time to gain credibility and trust with the jury. To do this English acknowledged what the jury would have ultimately believed anyways, that McCoy was guilty of committing the murders. The hope being to get a conviction on a lesser murder charge that does not carry a death sentence.
Every criminal defense attorney has walked down a road like this one, but rarely for something as serious as the death penalty. The thought process goes: I am the lawyer. I have trained years to get to this point in my career. I know, better than the client, how to best get out of this jam.
Every case is different, but the courtroom is the lawyers stage. It is their home. They know the ins-and-outs of the law, the pleas likely to be offered, the dynamics of the venue, and the complexities of a jury trial and sentencing. For this reason, lawyers are given leeway to make tactical decisions throughout the representation of their client.
A lawyer is essentially in the service business, like a car salesperson. Lawyers essentially explain to the client which ‘car’ would be the best fit and supply them with all the pros and cons to each choice. After they explain their expertise with the client, it’s up to the client which car he wants. Sounds easy, but the hard work is put in before showing the client all the possible ‘cars.’ This means case construction, investigating the crime, researching relevant law, working with the prosecution to find a middle ground, and the biggest prep work goes into building rapport with the client to find trust.
This poses an ethical dilemma. Lawyers must carry out their client’s wishes, involve their client’s in each step of the process, and make sure their client’s decisions are voluntary and informed. But what if the client chooses a path the lawyer believes will undoubtedly harm him? In this case, kill him. Should the lawyer go along with the clients wishes or pursue a different path?