by David Albano, Senior Associate
I. Background
Larry English’s situation was unenviable, to say the least. His client, Robert McCoy, was charged with first-degree murder of his mother-in-law, stepfather, and son in Bossier City.[1] McCoy was facing the death penalty, and all of the evidence was against him:[2] (1) McCoy had already previously threatened to murder his wife;[3] (2) his wife’s mother was heard yelling “Robert, she ain’t here!” before a gunshot rang out on a 911 call the night of her murder;[4] (3) McCoy’s car was seen leaving the scene of the crime driven by a man matching McCoy’s description;[5] (4) McCoy was found with what was determined to be the murder weapon by a ballistics expert;[6] (5) McCoy’s brother and two of McCoy’s friends gave statements to the police that McCoy was in Bossier City and that McCoy had told them he had shot someone that night;[7] and (6) another brother admitted to helping McCoy flee Bossier City that night.[8]
Unfortunately, English’s position was made even more problematic when McCoy demanded that English offer an alibi that was not only “difficult to fathom,” but “incredible.”[9] McCoy, who maintained he was in Texas at the time,[10] claimed the murders were the result of a multi-state conspiracy involving police,[11] medical personnel,[12] lawyers,[13] and United States Senators.[14]
In the face of insurmountable evidence, and without any way to back up McCoy’s alibi, English devised a strategy to defeat the death penalty: he would admit the obvious, but require the prosecution to prove McCoy had the proper mental state.[15] Even if found guilty of first-degree murder, English would use the fragile mental state of McCoy, a man who English believed to be “insane,”[16] in beseeching the jury to spare McCoy’s life and instead sentence him to life in prison.[17] The problem, however, was that despite English “reasonably assess[ing] a concession of guilt as best suited to avoid the death penalty,” McCoy insisted on offering a farfetched alibi that would make a “death sentence . . . impossible to avoid.”[18]
In an effort to save his client’s life, English used his own trial strategy rather than McCoy’s.[19] When he was found guilty of first degree murder and sentenced to death, McCoy appealed his conviction and sentencing.[20]
Ultimately, the following question came before the United States Supreme Court: “Is it unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection?”[21] Louisiana argued English’s behavior should be analyzed under the ineffective assistance of counsel standard found in Strickland v. Washington, which requires a two-step analysis: (1) whether the lawyer’s conduct was unreasonable; and (2) whether this conduct prejudiced the client’s case.[22] Rather than using the Strickland standard, however, the Court found that the right to choose the “objective” of a case is solely the client’s decision and overriding this decision is a per se violation of the Sixth Amendment—a violation which warrants a new trial.
McCoy v. Louisiana, however, offers little guidance on how this rule should be applied, raising both legal and ethical concerns.
II. The Supreme Court Decision
In McCoy v. Louisiana, the Supreme Court determined that it is contrary to the rights granted by the Sixth Amendment for defense counsel to concede guilt when the defendant expressly objects; the holding is muddy, however, in light of the fact that English did not concede guilt to first-degree murder but only to the actus reus element.[23] While English’s strategy to use McCoy’s mental state as a mitigating factor in the sentencing phase would be impermissible if English had conceded guilt to first-degree murder, the holding as written does not address the fact that English’s strategy included contesting the “specific intent” element of the crime. Rather, the holding seems to center on what the Court repeatedly regards as acting against the express wishes of a defendant concerning the “objective” of his case.[24] Specifically, defense counsel may not override a client’s decision concerning his objective and “[f]or McCoy, that objective was to maintain ‘I did not kill the members of my family.’”[25] By contradicting this objective, English infringed upon McCoy’s Sixth Amendment right to counsel.[26]
III. McCoy Misses the Mark
A. Objective
One problem with constitutionally protecting the right to decide a case’s objective is that this right is amorphous. At least in the realm of substantive due process, newly defined constitutional rights should be carefully explained, and this caution should act as the guiding principle any time the Supreme Court finds a new constitutionally protected right.[27] If the right to decide one’s objective is a constitutional one, it should be clear what “objective” entails.
It is not difficult to see where the nebulous nature of an “objective” could lead to complications. If a client tells a lawyer he “does not want” the lawyer to employ a certain strategy, is he making a statement equivalent to “do not employ this strategy”? If a client tells a lawyer not to employ a certain strategy, but is not insistent, is the comment reflective of the client’s objective, or merely a suggestion? Similarly, in Sixth Amendment-Assistance of Counsel-Capital Punishment-McCoy v. Louisiana, the Harvard Law Review notes the problem of proving what a client considers to be his objective, asking “How much objection is necessary to trigger McCoy . . . ?”[28] A criminal court in Texas found that a defendant who did not make an express demand to maintain innocence until after his lawyer admitted guilt in his opening statement had sufficiently invoked his rights under McCoy and was granted a new trial; although the court stated that it appeared counsel knew that admitting guilt was against the client’s wishes, it was not clear that he had made such an insistent declaration of an objective to maintain innocence.[29] This case demonstrates the lack of clarity in determining how a defendant invokes McCoy. The Court’s standard in McCoy also fails to define the parameters of what can be considered an “objective.”
A federal court in New York, in attempting to decipher the term “objective,” explicitly rejected any definition outside of “the defendant’s decision to maintain innocence or concede guilt.”[30] It is not clear, however, that McCoy is limited in that way. In United States v. Rosemond, a lawyer conceded that his client directed others to shoot the victim, over the objections of his client.[31] The district court found that because such a concession—though it may implicate Rosemond in a state crime—would not implicate Rosemond in any of the charged crimes, the concession did not run afoul of the Sixth Amendment.[32] But what if the client’s objective had been to “avoid, above all else, the opprobrium that comes with admitting” such a heinous action?[33] Avoiding ignominy appears to be an objective that the Court in McCoy recognizes, yet the court in Rosemond found there was no violation in admitting the defendant directed the shooting despite the defendant’s express objections.[34] This is just one example of how McCoy’s holding proves unworkable.
B. Ethical Implications
The Louisiana Rules of Professional Conduct contemplate that an attorney should abide by his client’s decision regarding the “objectives of representation.”[35] These Rules do not, however, offer a great deal of guidance concerning clients with diminished capacity, simply instructing a lawyer to maintain as normal an attorney–client relationship “as reasonably possible.”[36] English continued to maintain the belief that McCoy was “insane,” seemingly making his case one subject to special considerations under the Rules of Professional Conduct.[37] On its face, however, the holding in McCoy would seem to dictate that the accused’s Sixth Amendment rights are violated any time an attorney overrides the accused’s wishes concerning the objective, even when the client has limited ability to reason. The Rules of Professional Conduct discuss the situation where a lawyer may override the wishes of a client with diminished capacity regarding disclosure of confidential information when it is done to protect the client.[38] This is an example of how a lawyer’s ethical duties may vary when dealing with a client with diminished capacity so that a normal attorney–client relationship is not possible. To be sure, not every situation involving diminished capacity and the death penalty should necessarily grant a lawyer the ability to override his client’s autonomy.[39] But the Court’s declaration of this unconditional right fails to recognize situations where bizarre circumstances, such as those involving questionable capacity combined with an indefensible alibi and a capital offense, may make the normal attorney-client relationship impossible and extremely fragile. Ultimately, granting a broad right to decide the “objective” of a case without considering the unique factors in any given case may challenge the general principle that the Sixth Amendment should not be construed to be in tension with a lawyer’s ethical obligations.[40]
IV. Conclusion
McCoy v. Louisiana is a problematic opinion because it tenders a broad rule that offers little assistance as to the meaning of its holding and its application. The Supreme Court should define the particular goals a client may maintain that fit into the class of constitutionally protected rights, and the Court should address the mechanism by which a client’s express opinions become his express objectives. Furthermore, the Court should clarify whether this right is an unlimited one or, if in situations involving extraordinary circumstances, it may vary in a way that is consistent with a lawyer’s ethical obligations.
[1] McCoy v. Louisiana, 138 S. Ct. 1500, 1505–06 (2018).
[2] Id. at 1506.
[3] Id. at 1513 (Alito, J., dissenting).
[4] Id.
[5] Id.
[6] Brief for Respondent at 4–5, McCoy, 138 S. Ct. 1500 (No. 16-8255).
[7] Id. at 5.
[8] Id.
[9] McCoy, 138 S. Ct. at 1507; id. at 1513 (Alito, J., dissenting).
[10] Corrected Brief for Petitioner at 14, McCoy, 138 S. Ct. 1500 (No. 16-8255).
[11] Brief for Respondent, supra note 6, at 6.
[12] Id.
[13] Id.
[14] Id. at 7.
[15] McCoy, 138 S. Ct. at 1512 (Alito, J., dissenting).
[16] Brief for Respondent, supra note 6, at 13.
[17] McCoy, 138 S. Ct. at 1506. Concessions to the jury serve to build credibility and are recognized as a legal strategy. Darden v. United States, 708 F.3d 1225, 1230 (11th Cir. 2013).
[18] McCoy, 138 S. Ct. at 1503, 1506.
[19] Id. at 1506.
[20] Id. at 1507.
[21] Petition for a Writ of Certiorari, McCoy, 138 S. Ct. 1500 (No. 16-8255).
[22] Brief for Respondent, supra note 6, at 46; Strickland v. Washington, 466 U.S. 668, 687 (1984).
[23] McCoy, 138 S. Ct. at 1505; id. at 1512 (Alito, J., dissenting).
[24] Id. at 1505, 1508, 1510, 1512 (majority opinion).
[25] Id. at 1510.
[26] Id. at 1512.
[27] See Reno v. Flores, 507 U.S. 292, 302 (1993).
[28] Sixth Amendment–Assistance of Counsel–Capital Punishment–McCoy v. Louisiana, 132 Harv. L. Rev. 377, 383 (2018).
[29] Turner v. State, No. AP-76,580, 2018 WL 5932241, at *21 (Tex. Crim. App. 2018).
[30] United States v. Rosemond, 322 F. Supp. 3d 482, 486 (S.D.N.Y. 2018).
[31] Id.
[32] Id.
[33] McCoy v. Louisiana, 138 S. Ct. 1500, 1508 (2018).
[34] Id.
[35] Louisiana Rules of Prof’l Conduct r. 1.2(a) (2018).
[36] Id. at r. 1.14.
[37] Brief for Respondent, supra note 6, at 13.
[38] See Louisiana Rules of Prof’l Conduct r. 1.14 cmt. 8.
[39] W. Bradley Wendel, Autonomy Isn’t Everything: Some Cautionary Notes on McCoy v. Louisiana, 9 St. Mary’s J. Legal Mal. & Ethics 92, 127 (2018). Wendel’s proposition seems to be that “[o]nly in cases like McCoy, where the [incapacitated] client’s interest is in avoiding the death penalty, will lawyers be permitted to override” the client’s decisions. Id. This Blog Post does not necessarily take such a rigid stance. Rather, this Post suggests that factors—including, but not limited to, a capital charge—may exist in situations with a mentally diminished client that make the attorney–client relationship impossible, and that defining the right to determine a case’s objective as unconditional prohibits a lawyer from taking into account unique circumstances.
[40] United States v. Cronic, 466 U.S. 648, 657 n.19 (1984); Sixth Amendment, supra note 28, at 386 (contemplating situations where attorneys face a mentally incompetent defendant who wishes to assert his constitutional right to decide his objective). In that publication, the author’s solution was for the Supreme Court to issue dicta “call[ing] for state courts to ensure that their competency standards adequately screen out those who lack the capacity to decide the objective of their defense.” Id. As this would not be binding law, the Court should instead clarify whether unique situations involving diminished capacity may ever arise that create an abnormal attorney-client relationship in which a lawyer may have the ability to override his client’s wishes, or if legal competency is the only threshold that must be met for an otherwise unlimited constitutional right.